Special Agent Erika Jensen Did Not Look, and Did Not Find, Evidence of Tampering with the Laptop

The frothy right has gone nuts today because they took a quote out of context and believed it meant that the FBI had validated the content of the laptop.

That quote they’re using was actually a response to a colloquy between Abbe Lowell and FBI Agent Erika Jensen — who is a summary agent, and who testified she’s not a cybersecurity expert — in which she said she had not done anything to validate the laptop.

It’s not her job to validate laptops.

So she didn’t try to validate it. And having not tried, she did not find evidence of tampering.

As I noted here, it remains the case that this laptop came into evidence relying on less evidence than Lesley Wolf cited to in October 2020, just the serial number proving it had been associated with Hunter Biden’s iCloud account and an email sent to that publicly listed email.

Here’s the exchange between Lowell and Jensen.

Q. You have no reason to believe the time the FBI acquired the data from Apple, or what you just described, they changed any part of it, right?

A. Forensic examiners?

Q. Yes, the FBI, they didn’t change anything that you know of, did they?

A. No, I have a small basis of my understanding of how they work, I know they do a lot — they create images files of what would be considered the original data, so it doesn’t change the original data, but beyond that, I’m providing what I know.

Q. And the material that came into evidence that you discussed with Mr. Hines yesterday, as far as you know is the way the FBI obtained it?

A. Yes.

Q. And you indicated what you know about what they did with it, but you have no reason to believe the material that you just described yesterday, and I asked you about today, had been changed, altered, it was authentic as you understood it?

A. What I can speak to is when we obtain the data.

Q. Yes?

A. It was authentic from that point forward.

Q. And then when you provided it to us in discovery, discovery meaning you provided material to the defense, that’s the way it was sent, in the same way that you retrieved it?

A. My understanding is you received copies both of our extraction reports and of the full forensic images of the original data.

Q. I think you said, I don’t know that you identified, that as to the device, the laptop, it came into the possession of the government in December of 2019?

A. Yes.

Q. You understand that from the invoice that you showed about a repair shop that it was brought, according to the owner, in April of that year?

A. Yes. The invoice is dated in April.

Q. So can you tell what happened between the time the invoice indicates that device was brought to the shop and when the FBI acquired it six months later?

A. No.

Q. You are aware from your investigation that the person who claims to have gotten it in April indicates he made copies —

MR. HINES: Objection.

MR. LOWELL: I’ll withdraw the question.

THE COURT: Sustained.

BY MR. LOWELL: Q. Will you put up government Exhibit 40? So this is an invoice you identified yesterday, and I referred to, dated the 17th; right?

A. Yes.

Q. And you indicated that that’s one of the things you obtained from the data that was recovered and that was extracted and that you had reviewed?

A. Yes.

Q. And the date of this is the 17th; right?

A. The date of the e-mail is the 17th.

Q. But you know from your investigation that the person who sent this indicates that he got this device five days before?

A. I know from the investigation that yes, it was reported that it was April 12th.

Q. Do you have any notion of what happened in that device between April he 12th, where your investigation indicates that’s when the person acquired it, and April 17th when he sent the invoice?

A. I have some knowledge, but it’s through somebody else’s statements.

Q. So no firsthand knowledge?

A. No firsthand knowledge.

Q. Now, the last point on this. If the person acquired it in April, and the FBI says it acquired that in December, six months later, did your investigation indicate whether what was put on that machine in April was the way it was originally done by Hunter before then?

A. I’m sorry, ask that one more time.

Q. I didn’t say that right. Benchmarks. April 2019, the person says “I got the device.” Right?

A. Yes.

Q. December of 2019, the FBI acquires it?

A. Yes.

Q. What I’m asking is, did you do an analysis to determine whether on the date that this person says he got it, the data he got was in the format, content, or in any way what had originally been put there by Mr. Biden?

A. You’re asking if on the 12th the person that received it?

Q. I’m asking whatever that person got on the 12th, was the way it was originally put, do you know? Did you do an analysis? Did you find out whether any of the files had been tampered with, added to, or subtracted?

A. I did not. Right, I did not. [my emphasis]

Derek Hines then responded by getting Jensen to testify that, having not checked, she did not find whether any files had been added or tampered with.

BY MR. HINES: Q. Agent Jensen, picking up where Mr. Lowell left off, yesterday you introduced Government Exhibit 16, the laptop; correct?

A. Yes.

Q. And Mr. Lowell was asking you some questions there about whether you knew anything about tampering or something like that, for all his questions just now?

A. Yes.

Q. Have you seen any evidence whatsoever from the data you reviewed from this laptop to suggest that there was tampering?

A. No.

Q. Does the serial number on the laptop, as you discussed in your testimony yesterday, match the serial number registered with Mr. Biden’s iCloud account?

A. Yes. [my emphasis]

The exchange is useless for the purpose people want to use it.

A summary witness who is not a cybersecurity expert, who “I have a small basis of my understanding of how they work,” who was specifically directed what to look at and what not, did not “do an analysis [to] find out whether any of the files had been tampered with, added to, or subtracted?”

And having not looked, she had not, “seen any evidence whatsoever from the data you reviewed from this laptop to suggest that there was tampering.”

She didn’t look for tampering before the FBI got the laptop, and having not looked, didn’t find any tampering.

Update: Okay, this is crazypants. Remember that Jensen did less validation that Lesley Wolf did in 2020. She cited only the emailed invoice from John Paul Mac Isaac sent to Hunter Biden’s iCloud email, which is something JPMI could have sent without ever speaking to Hunter.

The invoice, as released, has no metadata.

Q. So when you looked through the materials that you just reviewed — just described, do you recall that, for example, you see an entry to an Airbnb? Did you see e-mails which reflected the rental of an Airbnb, or a rental house in that period of time, did you look at that?

A. I did not review e-mails, but beyond that —

[snip]

Q. Agent, I’m going to do better starting right now. To be clear, if — you didn’t see any e-mails?

A. I did not review e-mails, beyond the few that we discussed yesterday.

Q. Okay. I’m sorry. So you did review — where did those e-mails come from?

A. So the e-mails that I — from The View, came from the Cloud. There were e-mails from the Cloud. I did not review the entire set of e-mails.

Q. So meaning you were looking for e-mails from the Cloud that said The View?

A. No. I didn’t review the full set that would have been provided to investigators after the forensic analysis.

Q. So you got from somebody else the e-mails that 102, which you identified yesterday?

A. Yes.

That emailed invoice would have been utterly useless to validate the laptop without metadata, without reviewing his emails generally.

Bringing Receipts: Print Date: 10/22/20

The Delaware Courthouse has started making exhibits from the Hunter Biden trial available. There are a few interesting tidbits about the paperwork from the gun shop.

The background check form shows that it was submitted at 6:36PM on October 12, 2018 and came back at 6:37PM.

We knew that already. Ronald Parlimere, the gun shop owner who tried to politicize this in 2020 only to belatedly attempt to doctor the forms in 2021 when the ATF came asking, emphasized that detail to Derek Hines and Erika Jensen when they asked him about the belatedly doctored records a few weeks ago.

Based on Palimere’s review of the documents related to the sale of the revolver, Biden made the purchase of several items including the Colt Cobra revolver at approximately 6:36 p.m. on October 12, 2018. The FBI National Instant Criminal Background Check System (NICS) check came back in about a minute and was a very fast response.

In the interview, Parlimere made some kind of connection between reviewing the form and media attention from people like Tucker Carlson he says happened in 2021. That seems to be one of his excuses for not properly annotating the change to the form three years after the fact (the other being, he didn’t want to call Hunter Biden to get the proper ID he hadn’t gotten years earlier).

Palimere scanned and emailed the certified 4473 to Reisch using his StarQuest email address, [email protected]. Palimere uses this email address exclusively and it is not shared by other StarQuest employees. The form was then filed away. Palimere did not handle the form again for three years and until he was requested to turn it over to ATF SA Veronica Hnat on September 23, 2021.

In 2021, Palimere had significant media attention and he had news crews, Tucker Carlson, the ATF and the FBI contacting him. He received numerous contacts from media including to his email address and on his phone.

Palimere was contacted by Hnat who said she wanted to come by to take custody of the Form 4473. Palimere ultimately went to the ATF building in Wilmington, Delaware, and turned over the annotated 4473. Palimere received a receipt for property from the ATF. Hnat allowed Palimere to make a copy of the annotated 4473 for his records.

[snip]

At the time it was a big scandal and there was intense attention on the incident. It was on prime time on every news channel and USSS was saying they never went into StarQuest. Palimere and the other employees heard that Mac Isaac of the computer store was in protective custody. They were all scared to death. Palimere felt it was necessary to annotate the Form 4473 because he felt they were going to get in trouble just for going up against Biden.

Anyway, what I find interesting about the timing of the background check is that it took another 16 minutes to ring up the purchase, as indicated by the red rectangle on the receipt.

I’m not sure long it should take after all the approvals are done. I do know that Parlimere told Hines and Jensen he wanted to get Hunter out of the store as quickly as possible.

In the case of Biden’s sale, Gordon Cleveland, was the salesman. Palimere was sitting at his desk in the back and Cleveland said something to the effect of, “Hey, Hunter Biden’s here. He wants to use his passport.” Palimere was familiar with Biden’s father’s not being a gun supporter so Palimere thought it would be bad for Palimere’s business to have Hunter Biden seen in his store. Palimere wanted to get the sale completed and get Biden out of the store, so Palimere said yes to using the passport as identification. Palimere never interacted with Biden.

Should it have taken 16 more minutes?

I have no idea. I look forward to Gordon Cleveland’s testimony. He doesn’t have a proffer immunizing him, after all.

According to Erika Jensen’s testimony yesterday, she herself subpoenaed this exhibit.

BY MR. HINES: Q. So looking at the background check paperwork, what does this document appear to show, could you explain it?

A. This is a response for a check of a subject’s background in order to see if they qualify to purchase a firearm.

Q. And when you look at the status on the bottom, what is the status for whether or not Mr. Biden passed the background check?

A. The status response is proceed.

Q. And is that after — that was in the production after the Form 4473; correct?

A. Yes.

Q. Now, turning to page, government’s Exhibit 13(a), page 1, government’s Exhibit 13(a), page 1, is that a receipt — take it down. Is that a receipt that you received from StarQuest?

A. This is a receipt I received in response to the subpoena to StarQuest.

Given the Bates stamp, it would have been included in the production certified by StarQuest on April 24, 2024.

After admitting the exhibit, which was subpoenaed last fall, Derek Hines walked Agent Jensen through the receipt, showing each of the items Hunter Biden bought back on October 12, 2018.

MR. HINES: Move for the admission of 13(a).

MR. LOWELL: No objection.

THE COURT: Thank you. It’s admitted. (Exhibit No. 13(a) was admitted into evidence.)

BY MR. HINES: Q. If we zoom in on the top. Can you please list what the items are that are listed on this receipt?

A. The first item was an Item Number 18654, was a Colt Cobra 38 Special, Talo Classic, with a serial number RA551363.

Then cuing her by asking not what the date was but whether it was the date that Hunter had withdrawn $500 from an ATM, she noted that the date of the receipt itself is October 12, 2018.

Q. This was the day $500 was withdrawn from the ATM?

A. This was on October 12, 2018.

Q. Looking at the bottom, does it say Robert Biden?

A. Yes.

Q. Did you redact the address that’s listed there?

A. Yes.

Hines made two errors. Hunter didn’t withdraw the money from an ATM. He went to a teller, which was rare for Hunter Biden. And it was $5,000, not $500. We know that, in part, because prosecutors want to compare his signature on the withdrawal form with the signature on the gun purchase form.

Ah well. In the grand scheme of the errors Derek Hines has made, I consider this a fairly minor one.

Anyway, until after we get the Cleveland testimony — to learn why it took another 16 minutes to complete the sale — I’ll hold off on my curiosity about why it took 16 minutes to complete the sale.

In the meantime, though, I want to consider what the other date on the receipt means.

October 22, 2020.

You see, according to Abbe Lowell, in October 2020, Palimere and some buddies had “a plan to send [Hunter’s gun purchase form] to others” to make sure “the gun sale issue and the form [would be] exposed during the Presidential campaign.” But first they “had to get their stories straight.”

It also reveals a now-exposed attempt by the gun store to fabricate a false narrative about the gun sale. Palimere said the addition of the seller transaction serial number (“5,653”) may have been added on October 26, 2018. (TAB 4, Palimere FD-302 at 4). He said the vehicle registration reference was added in 2021. Yet, the government provided WhatsApp communications from October 2020 and February 2021 between Palimere, friends of his, and then-Delaware state trooper Vincent Clemons3 (see TABs 6 – 6C), all of which refer to the form, a plan to send it to others, needing to get their stories straight about what occurred in 2020, and wanting the gun sale issue and the form exposed during the Presidential campaign.

3 Not to be lost is the fact that Clemons was the Delaware State Police officer who first arrived at Janssens’ grocery store on October 23, 2018 when Hallie Biden threw a bag containing the handgun into a trash can in front of the store. It was Clemons who took statements about the handgun from both Hallie and Hunter Biden and was part of filling out an official police report on the issue. Two years later, he is in the communications with Palimere about the Form 4473, one of which states: “Yep your side is simple – Hunter bought a gun from you, he filled out the proper forms and the Feds approved him for a purchase.” (emphasis added). Palimere later responded, “I’ll keep it short and sweet as well: Hunter bought a gun. The police visited me asking for verification of the purchase and that’s all I can recall from that day. It was over 2 years ago.” (TAB 6B, 10/26/20 Palimere-Clemons Texts at 4, 6.) The reference to filling out the “proper forms” is not lost on defense counsel given what transpired thereafter. And, despite the importance of Clemons (e.g., the person who actually took the statements), the Special Counsel is foregoing him as a witness to call two other Delaware officers instead.

Derek Hines says that’s not right, and successfully pitched all this a claim of political bias.

These selected portions3 of communications by Palimere to two friends and also to Sgt. Clemons – were made two years after the events in question when defendant’s father was a political candidate. The defendant inaccurately summarizes them as referring “to the form, a plan to send it to others, needing to get their stories straight about what occurred in 2020, and wanting the gun sale issue and the form exposed during the Presidential campaign.” Supp. Resp. p. 8 and n. 3. Nevertheless, he clearly wishes to confuse the jury by introducing these spliced, non-relevant communications to incite prejudice and emotion among the jury to distract from the elements of the crimes that were complete years before.

And because she fell for one of Derek Hines’ false claims again, Judge Noreika prohibited any of these communications from 2020 from coming in as evidence.

3. Questioning, testimony, evidence or argument, including but not limited to, the additional exhibits designated by the Defendant as tabs “6-6C” to his supplemental submission regarding any witnesses’ political bias are excluded from introduction or admission at trial because such questioning, testimony, evidence or argument is not relevant, is unduly prejudicial and invites nullification.3

2 The government has stated that it intends to call Gordon Cleveland, a gun shop employee, who will testify that he watched Defendant fill out Section A of the Certified Form and that Defendant checked “no” to question 11e about being an unlawful user or addict. Both the Certified Form and the 2021 Form have the same check mark (“X”) responding “no” to question 11e. The addition of “DE VEHICLE REGISTRATION” to a different section of the 2021 Form after the Defendant filled it out does not have “any tendency to make” those two facts, which are “fact[s] of consequence in determining” the charges – that he filled it out and that he said he wasn’t an unlawful user of or addicted to a controlled substance – more or less probable. F.R.E. 401. The Court also agrees with the government that Defendant’s conspiratorial theory about “doctored” forms and currying favor with the government is unsupported rhetoric, which would be prejudicial and confusing to the jury.

Through his considerable power of prosecutorial dickishness, Derek Hines got Judge Maryellen Noreika to exclude these 2020 communications from evidence.

And then he submitted one himself.

Update: In leading gun salesman Gordon Cleveland in the sale yesterday, Derek Hines corrected himself to say that this was a reprint of the receipt.

Q. I’m showing you Exhibit 13(a). Is this the receipt, a reprint of the receipt that rang out the sale for Mr. Biden that day?

A. Yes, it is.

Gaps and Forms: Hunter Biden’s Defense

The first day of the Hunter Biden trial revealed a lot about gaps in the prosecution’s case and Abbe Lowell’s plan to mount a defense.

As this post will show, it will be easier for prosecutors to prove Count 3, Possession of a Firearm by a Drug User or Drug Addict, than the two gun form crimes, even with Judge Noreika’s decision preventing Hunter from discussing how the gun shop sold a gun without obtaining the required ID.

What do prosecutors have to prove?

There are three counts against Hunter Biden: two for lying on a gun purchase form, and a third for possessing a gun while either being an addict or using illegal controlled substances. Given what will already be stipulated (things like that the gun shop is a federally licensed store), here’s what prosecutors have to prove for each:

Count 1: False Statement Material to Firearms Sale 18 USC 922(a)(6)

  • Whether the defendant made a false statement when he filled out the Form 4473
  • Whether the defendant knew the statement was false
  • Whether the false statement was material to the sale

Count 2: False Statement in Firearms Transaction Record 18 USC 924(a)(1)(A)

  • Whether the defendant made a false statement when he filled out the Form 4473
  • Whether the defendant knew the statement was false

Count 3: Possession of a Firearm by a Drug User or Drug Addict 18 USC 922(g)(3)

  • Whether the defendant was either an unlawful user of a controlled substance or a drug addict
  • Whether the defendant knowingly possessed a firearm
  • Whether the defendant knew he was an unlawful user of a controlled substance or a drug addict at any point in time between October 12 and October 23, 2018

Counts 1 and 2 involve Hunter Biden’s mindset at the moment he filled out the gun form on October 12. Count 3 involves what happened between October 12 and 23.

Note: Prosecutors are asking for a unanimity ruling on Count 3, meaning they want all jurors to agree on at least one of those conditions, that Hunter was an addict, or that Hunter used controlled substances while he possessed the gun.

What basis might Hunter Biden have for appeal?

If Hunter Biden is convicted, he will undoubtedly appeal. He would appeal on the rulings Judge Noreika already made. Those are:

  • His diversion agreement immunized him from these charges
  • This was a case of selective and vindictive prosecution and a violation of separation of powers
  • 18 USC 922(g)(3) is unconstitutional
  • David Weiss’ appointment and funding were unlawful

In addition, Hunter would appeal on at least two trial related issues:

  • As applied constitutional challenge to 18 USC 922(g)(3)
  • With her ruling on the gun form, Judge Noreika impaired his Sixth Amendment right to confront the gun shop employee witnesses against him

There’s an important dynamic here. The main gun charge, 18 USC 922(g)(3), might be appealed because it is unconstitutional for everyone under Bruen, or for the specific circumstances of Hunter Biden’s purchase, an as-applied challenge. But even if it were overturned, prosecutors have argued that the two false statements charges — particularly Count 2, which doesn’t involve materiality — would survive. Of course, those two false statements charges should be relatively easier to defeat, if Hunter were allowed to use the purchase form the gun shop doctored.

This is one of a number of reasons why Sarah Isgur’s argument that Hunter should just plead didn’t hold up. Because even a successful appeal on what Isgur mistakenly believed was his best appeal wouldn’t eliminate the exposure on gun crimes.

What evidence do prosecutors have?

There is no doubt that Hunter Biden is a recovering addict. The public, which has seen the pictures and even seen Hunter’s public statements, has little doubt of it. But what jurors will be considering is slightly different: whether Hunter considered himself an addict on October 12, 2018, whether he considered himself an addict at any time over the next 11 days when he possessed the gun, or whether he used controlled substances — crack — over those 11 days.

The government case has some surprising holes, because both of their main sources of evidence — Hunter’s memoir and his own digital evidence — actually don’t say much about his addiction or drug use over those 11 days.

Derek Hines spent much of yesterday playing excerpts of the audiobook of his memoir. But at least 11 of around 17 excerpts predate a rehab attempt Hunter made in August 2018 (many date to 2016), and so don’t say what the state of his addiction was for that period in 2018, and a number of them significantly postdate that period.

Update: The Court has posted yesterday’s exhibits here. Here’s the memoir as it came in as a physical exhibit. This is the entirety of the memoir introduced that pertains to the 11 days in question.

Similarly of the digital evidence submitted yesterday, roughly 29% predates the rehab attempt and 39% post-dates both it and the start of the Ablow Ketamine treatment that Hunter said in his memoir made his addiction worse (though that’s not in evidence).

One thing prosecutors plan to do is argue, fairly, that at all times in the four year period in question, Hunter was an addict. But that’s different than him viewing himself as an addict during those 11 days.

Two women will be absolutely critical witnesses to fill this gap. Zoe Casten, with whom Hunter was having a relationship, will reportedly testify that after Hunter did rehab in August 2018, she spent time with him in September 2018, and he was still using drugs.

Hallie Biden will authenticate a bunch of texts she exchanged with Hunter during the period in question (in pink in the table). Those texts show him telling her he was doing or buying crack, discussing his addiction, and also that he recognized she had taken his gun almost immediately, which will show that he knew he was a gun owner in the period in question. If her testimony is credible, it will go a great way to proving Count 3, because it will show he thought of himself as an addict during the period he owned the gun, probably used crack, and knew that he owned the gun.

Prosecutors have texts showing Hunter buying drugs in May 2018, November 2018, and February 2019. They don’t have any during the period he owned the gun. As a proxy for such proof, they have pointed to how much cash he was withdrawing from his bank account, implying that the cash went to pay for crack. It’s circumstantial, but jurors are instructed to use circumstantial evidence.

Hunter’s defense

To create reasonable doubt in jurors’ minds, Hunter needs to explain what he was thinking when he bought the gun and needs to discredit the evidence that will come in through Hallie that shows he used or considered himself addicted to crack during the 11 days.

To present his mindset when he bought the gun, Abbe Lowell described how Hunter simply wandered over to the gun shop while he was waiting for a replacement phone and got up-sold by the gun shop owner.

Across the parking lot from the AT&T store was another business. StarQuest Shooters and Survival. An interesting name. Later, from the AT&T store, as you’ll see in documents with time stamp, he went in, and you will see when he went into StarQuest, this is what he saw. You will see the evidence of what happened next. On display you will see in the front are a number of utility tools and knives, there were flash lights, and there were BB type guns. You will see that on that day, he bought one of each. So how did the purchase of the handgun come about?

As he walked around, a salesperson named Gordon Cleveland approached him. Mr. Cleveland will be a witness that Mr. Hines said will be theirs. Mr. Cleveland asked Hunter if he was looking for anything in particular. Hunter said he was browsing. Mr. Cleveland led Hunter to a display on the wall where the handguns were. Mr. Cleveland showed him the wall and asked if he was interested in buying a gun. The only time Hunter had any guns before was when he and his brother Beau went skeet shooting with shot guns. Mr. Cleveland explained what could be used at a range and selected a handgun for Hunter to see. Later, Mr. Cleveland also explained to Hunter the need for bullets and a speed loader. Hunter wouldn’t have known what a speed loader was until Mr. Cleveland told him.

But Hunter also confirmed that the gun came with a lock box to carry it in.

Cleveland told the prosecution that he doesn’t much care about paperwork — his job is just to make the sale. He did not walk Hunter through the gun form before he checked the boxes.

And the box that asks about drug use does not include a long paragraph after the fact explaining what it means like — for example — the question about whether you are a felon or not.

There are a whole bunch of tactical reasons why Lowell is doing this, I think, which I’ll return to. Effectively, though, he will argue that because the federal gun form does not define what being an addict is, if Hunter can provide evidence he relied on the form, then his mindset when he checked that box may not qualify him as an addict even though he was under the common jury instructions.

To discredit the evidence that he was using drugs during the period in question, Hunter will effectively argue he was too functional during the 11 days he owned a gun to be using crack, and that his references to being an addict in that period were references to alcohol.

In other words, Hunter will claim that the evidence he was addicted during those 11 days arises from abusing alcohol, not crack.

As to Hallie’s testimony? One thing he will do is attempt to prove that he was telling the truth in this exchange, in which he accused Hallie of taking the gun from the locked box in his truck, and she replied by claiming that the gun was not locked.

Hallie has told prosecutors the lock was broken. Hunter will get one of his daughters and uncle to testify that the lock was not broken. If he can get jurors to believe that Hallie only claimed the box was unlocked to excuse herself for getting him in trouble, then it might support his claim — otherwise a big stretch — that his references to doing crack were just attempts to tell Hallie to bug off.

There is a logic here, especially tactically. But Hunter faces a much steeper challenge on Count 3 than the gun form charges.

But it’s not impossible. Just as a measure of their concern, prosecutors are leaving the “knowingly” prong of the elements of offense off their statements anywhere they can get away with it (though some of that’s just expert prosecutorial dickishness).

It’s one thing to prove Hunter was an addict. That’s easy.

It’s another thing to prove precisely what he was thinking in those 11 days in October 2018.

Special Agent Erika Jensen: Watch the Summary Witness’ Blind Spots

The only witness who testified at yesterday’s opening day of the Hunter Biden trial yesterday was a 20-year FBI Special Agent named Erika Jensen. As Derek Hines had her introduce herself, she’s just a summary witness, and as presented so far, almost exclusively with regards to, “addiction and illegal controlled substances.” She’ll probably be on the stand for at least an hour today.

Q. Can you describe the types of crimes you have investigated during the course of your career?

A. I am primarily a criminal agent, so I have worked matters such as drugs, gangs, firearm offenses. I have done white collar, which is bank related crime, corruption, and other criminal matters.

Q. Were you assigned to a criminal investigation of the defendant, Robert Hunter Biden?

A. Yes.

Q. Approximately when were you assigned?

A. In the fall of 2023.

Q. Are you testifying today to summarize certain evidence collected during the investigation?

A. Yes.

Q. What kind of evidence are you summarizing today?

A. It’s going to be evidence of addiction and the use of illegal controlled substances. [emphasis]

Now, it is normal for prosecutors to rely on summary witnesses to admit a bunch of evidence. They used Jensen to admit all the parts of Hunter’s book that made his addiction look really bad, a bunch of communications, and select financial records. It is very common for the summary witnesses to be deliberately compartmented from anything prosecutors want to hide from the defense or jury or public.

In this case, the entire prosecution team (with the very notable exception of David Weiss, who has sat in two courtrooms watching Leo Wise make claims that are not true) is effectively a clean team, made up of people who were not part of a lot of sordid things that happened years ago, sordid things that are likely a big part of the reason David Weiss was originally willing to end this investigation with misdemeanors and a diversion agreement. So after Weiss reneged on that plan, using the disgruntled IRS Agents’ complaints as an excuse, everyone got replaced. Poof! Sordid past becomes plausibly denied.

Jensen adds a layer of compartmentation on top of that. Because she only joined the team in the fall, for example, she is likely entirely compartmented from the way Leo Wise chased Alexander Smirnov’s fabrications about Joe Biden. She didn’t do any of the exploitation of the digital evidence. She’s likely not the person who told Derek Hines that sawdust is cocaine, though whoever did was likely playing the role she’s now playing. She’s not the person who made a show of reviewing the digital data after prosecutors finally got a warrant to search for gun crimes in December 2023; a Special Agent named Boyd Pritchard did that (indeed, her summary claims to be relying on the 2019 and 2020 warrants to access the data, something that may come up in cross today).

Again, all of this is common, if not expected. If trials provided opportunity to learn what really went on in criminal investigations, there’d be fewer guilty verdicts.

There are, however, some embarrassing things that Jensen does or likely knows. For example, it appears that, after prosecutors frothed up the entire dick pic sniffing brigade by claiming the pouch in which the gun was found had cocaine residue, they discovered Hallie Biden put the gun there, as Hines made clear in his opening argument.

Hallie found the gun, as well as his drug paraphernalia, drug remnants scattered in the truck. Concerned about the gun, she decided to get rid of it. She panicked, she put the gun in the defendants leather pouch, which was also in his truck, a leather pouch which he used to store his crack cocaine, an accessory, she put the gun, pouch, speed loader and ammunition in a gift bag.

Additionally, Jensen interviewed Gordon Cleveland — alone, a no-no in FBI procedure — about why the gun shop doctored the gun purchase form. That means she’s the only witness to Cleveland’s observation that he doesn’t much care about the documentation. But since that’s not yet in evidence, it’s not clear Lowell will be able to cross-examine her on it (which may have contributed to prosecutors’ decision to start by proving that Hunter was an addict — to protect both Jensen and Cleveland’s credibility after they both did something stupid, though they could bring Jensen back to summarize everything else).

Prosecutors use summary witnesses to protect weaknesses in their case.

But because they do, you can sometimes learn something about a case from the negative space outlined by the testimony of a summary witness. It points to areas where prosecutors wanted their summary witness to remain intentionally dumb.

A glaring example evident already from Jensen’s testimony is Keith Ablow. Derek Hines had Jensen introduce the invoices from a rehab center Hunter attended in August 2018, which will admittedly be an absolutely critical issue of contention going forward (because prosecutors only have testimonial evidence that Hunter used drugs between then and when he bought a gun).

Q. What does the top show, page 1?

A. So the top shows where the e-mail was received from at The View, and it’s sent to [email protected], and the date of 8/22/2018, the time and the attachment of invoice.

Q. What is The View?

A. The View is a detox center, rehab center.

Q. Where is it located?

But he didn’t have her pull invoices relating to the Keith Ablow Ketamine treatment. And when Abbe Lowell asked her about it on cross, she said she was not going to pull any of that evidence, and so could only offer a vague date about when it was.

Q. That’s when he left Delaware to go to Massachusetts for another form of rehab. Isn’t that what happened in the chapter? Isn’t that the date? After —

A. I have a date when he went to Massachusetts, that I saw — I’m not going to pull that from the excerpts though, I don’t know that we have that, but it was November, mid November is what I believe.

Q. So after the October incidents, he goes to Massachusetts and there he is entering another form of rehabilitation, is that your understanding of the timeline?

A. Yes. Yes.

So it was left to Lowell to point out that a great deal of the texts on which she relied came from after that treatment, well after Hunter ever owned a gun.

Q. And then the texts that I started with when I was asking you questions start in the end of 2018 after November, to 2019, we established that timeline; right? I’m sorry, we established that timeline — sorry, we established that timeline, that the —

A. Yeah. Yes, we went over messages from February of 2019.

Q. Following his going to Massachusetts which you and I just established was in November of 2018?

A. Correct.

Q. And that was after the October purchase of the gun?

A. Yes.

Q. And that was after the gun was no longer in his possession?

A. Yes.

Remember: Hines has always very deliberately buried this passage from Hunter’s book.

The therapy’s results were disastrous. I was in no way ready to process the feelings it unloosed or prompted by reliving past physical and emotional traumas. So I backslid.

Unless I’m misunderstanding the excerpts that did come in (which were wildly skewed to years long before he owned a gun), it’s not in evidence. So when Hines relied heavily on some 2019 communications to try to suggest a continuity to Hunter’s addiction yesterday, he didn’t tell the jury that, at least according to Hunter’s own reconstruction, what Hines is relying on is actually worse than his state in 2018, when he bought a gun.

Hines has always been relying on Hunter’s state after Keith Ablow got to him, but yesterday he tried to entirely obscure that fact.

No doubt because he’s relying on massive bank withdrawals as a proxy for spending on drugs the consumption of which he has no direct proof, Hines similarly did not have Jensen tally out what Hunter was spending money on in fall 2018 (and there has been no mention of sex worker payments, which both the prosecution and defense know, but will not explain, made up a big part of those expenses).

Q. And can you go to the next page. It says August 21st. Can you go to the next page? With the amount 5,000. Can you go to the next page, please? And then the next page. And you see the dates, August 23rd of ’18, do you see that?

A. Yes.

Q. Okay. The next page, please? And there is another amount. And then the next page. And it says stabilization, there is another amount. Do you know who paid those invoices?

A. I think I know who paid part of them

Q. Go ahead.

A. But I don’t — I’m trying to think of my source of information, I think it was partially paid, I seen a record in Mr. Biden’s bank account for at least a payment, yes, and I think there were family assisting.

Q. When you were pointing out, for example, the issues of his bank account and the $5,000 that you then talked with Mr. Hines and the other amounts of a few thousand dollars, did you match up those withdrawals to these invoices?

A. No.

Prosecutors use summary witnesses to introduce a lot of evidence, but also to protect weak parts of their case. So it’s worth tracking the negative spaces of where they don’t ask summary witnesses to look.

That may become interesting this morning, as Lowell continues cross-examination.

Jensen’s introduction of the digital evidence was very cursory. Thus far, for example, Jensen’s description of how investigators validated the laptop is laughable.

Q. Ultimately in examining that laptop, were investigators able to confirm that it was Hunter Biden’s laptop?

A. Yes.

Q. How?

A. Among other things, there was a serial number that’s on the back of this laptop that matches the Apple subpoena records that they obtained in 2019, so it matches the registration of this particular device to the iCloud account at a particular date.

Q. And is that serial number FVFXC2MMHB29?

A. Yes.

Q. And that’s also in the Apple records, you said?

A. Yes.

[snip]

Q. Now, you mentioned being able to corroborate that that was in fact the defendant’s laptop. Did you also see information on the laptop when it was examined that showed that he had dropped it off at the MAC shop?

A. So, there was an e-mail that was obtained from the iCloud warrant returned, that showed an invoice from the MAC Shop to Mr. Biden with the — yes.

Q. I’m showing you Exhibit 40. Is that the e-mail you just referenced?

A. One second. Yes.

All she has done, so far, is show that the laptop was at one point registered to Hunter’s account and that John Paul Mac Isaac sent Hunter’s publicly identified email account an invoice. That’s not remotely adequate validation (and note, Hines uses the word “corroborate,” not “validate”). Notably, Hines didn’t ask her about several other things we know Lesley Wolf originally relied on to claim validation, most importantly, calls to and from a phone number belonging to Hunter, as well as a cigar bar purchase. Hines also asked her whether the was Hunter’s, not whether it had a clean chain of custody.

So this, too, may become an interesting negative space as cross-examination resumes.

Keep an eye on the summary witness’ deliberate blind spots and negative space: because that’s precisely what prosecutors are trying to hide.

Update: I’m reading today’s transcripts and several intentional blind spots are clear.

First, she knows almost nothing about finance. She knows less about Hunter’s corporate person, Owasco PC, than about 50 Congressional interns. She didn’t track money flow. She doesn’t know how Hunter paid for rent or where he lived.

And she looked at almost no emails. Which is especially nutty, because she used an email to validate the laptop.

Judge Noreika Joins Derek Hines in Selective Adherence to the Laws of Physics

In addition to making false claims about Abbe Lowell’s argument, Derek Hines’ successful reply brief excluding the form gun shop employees doctored to cover up their own potential crime made an argument about physics: Anything that happened after Hunter Biden allegedly checked a box could not be relevant to his actions.

II. StarQuest Employees’ Actions After the Defendant Completed Form 4473 §A Are Not Relevant

The government intends to call Gordon Cleveland to testify because he is the witness from Starquest who observed the defendant fill out Section A of the form 4473 where the defendant identified himself and stated that he was not an unlawful user of or addicted to a controlled substance. The other two individuals the defendant has subpoenaed, Turner and Palimere, cannot testify to that fact. They, and not Cleveland, were involved in adding “DE VEHICLE REGISTRATION” to the form more than two years after the defendant filled it out. Palimere exchanged text messages, again two years after the events that are the subject of the indictment, that indicate a bias against the defendant. The addition of “DE VEHICLE REGISTRATION,” and Palimere’s political views are sideshows that the defendant is attempting to inject into the trial and are irrelevant. The government does not intend to call either Turner or Palimere because they lack first-hand knowledge of the defendant’s actions. Their addition of “DE VEHICLE REGISTRATION” to the form after the defendant filled it out does not have “any tendency to make” those two facts, which are “fact[s] of consequence in determining” the charges—that he filled it out and that he said he wasn’t an unlawful user of or addicted to a controlled substance—more or less probable. F.R.E. 401. Therefore, their testimony on the addition of “DE Vehicle Registration” to the form, years after the defendant’s conduct occurred, is irrelevant and should be excluded.

[snip]

Whatever action was taken after the fact with respect to the form is immaterial.

They adopted exactly the opposite approach with communications regarding drug use. Abbe Lowell had tried to exclude the communications — including those after Keith Ablow’s Ketamine treatment made Hunter’s addiction worse — because they were sent so long after the gun purchase and disposal.

But prosecutors argued that communications (and photos and videos) from months after the gun was disposed are somehow proof about what happened in October.

The defendant objects to the messages in Rows 214-292 in the government’s 1006 Summary Chart as cumulative and occurring subsequent to the defendant’s gun purchase and therefore prejudicial under Rule 403.

The redacted message in Row 215 – “that’s a line brighter than throwing my gun in a full trash can in a busy grocery store and then some kid blows his sisters head off and you go to prison for the rest of your life” – is an admission regarding the gun which was made by the defendant to Witness 3 and therefore admissible under F.R.E. 801(d)(2).

With respect to Row 214 and Rows 216-292, these are admissible under Rules 401 and 402 as probative of his active addiction. In Chapter 11 of his book, the defendant admitted that he was actively addicted to crack cocaine between 2015 and 2019. See Government’s Motion to Admit Portions of Defendant’s Book and Audiobook and Motion in Limine to Exclude use of Self-Serving Statements (ECF 119) and Ex. 1 attached thereto. The messages in Row 214 and 216-292 are are relevant because they show that the defendant’s statement in his book was accurate and indeed his addiction continued into 2019, without disruption. The messages have a tendency to make the fact that he was an addict and user more probable than it would be without the messages. Fed. R. Evid. 401(a), 402. Moreover, the fact that he was addicted to crack between the fall of 2016 and the spring of 2019 is a fact of consequence relevant to all three charges in the indictment. Fed. R. Evid. 401(b); see United States v. Corona, 849 F.2d 562 (11th Cir. 1988) (abrogated on other grounds) (evidence of social use of cocaine and admissions during treatment over 2.5 year period is sufficient to sustain conviction). His admissions in his messages have probative value which is not substantially outweighed by a danger of unfair prejudice or other issues under Fed. R. Evid. 403.

Note, as I said here, I think the government is right about Row 215.

And Judge Noreika bought that argument too, deciding to let prosecutors waste hours of jurors’ time hearing messages about buying drugs that date to long after the time Hunter owned the gun.

THE COURT: Okay. Defendant has objected to a number of the government’s objections, first, rows 214 to 292 of the government’s summary chart, Exhibit 18. Those objections are overruled.

Row 215 is a message from the defendant about the disposal of the gun in a trash can in a grocery store, it is an admission and admissible under Rule 801(d)(2). Rows 214 and 216 through 292 are messages probative of defendant’s drug addiction. Although the messages are dated after the date defendant bought the gun, they are not being offered in isolation but rather with other evidence of his addiction before, during, and after the time he purchased the gun. They are circumstantial evidence as to whether he was an unlawful user of, or addicted to any controlled substance when he purchased and possessed the firearm and so they are admissible under rules 401 and 402.

Next, we have a series of photos or videos marked as Exhibits 18C through F. Those objections are also overruled. The primary objection to those is they are dated after October of 2018, for the same reasons I allowed the text, I will also allow those exhibits. They are circumstantial evidence of defendant’s addiction and relevant and admissible.

As to Exhibit 18C, which defendant also objects to as it shows him unclothed, the clip is redacted so that it only shows him from the chest up, so I will not exclude it on that basis.

Similarly, Judge Noreika sustained the government’s objections to virtually all context Lowell had tried to include from the book.

She also seemingly expanded the scope of her ruling on the gun shop actions, prohibiting Lowell from raising anything the gun shop employees did wrong, which I’ll return to.

Noreika’s waste of jurors time may actually work against the prosecutors: Lowell had just a few moments of cross examination regarding all this evidence at the end of today; he started by pointing out that most of the evidence submitted was long after the alleged crimes. I wonder whether jurors will fail to see some really damning texts from the period he owned the gun for the forest of texts that came long afterwards.

Maryellen Noreika Falls for Derek Hines’ False Claims, Again

If I were a newish judge like Maryellen Noreika, I’d be a bit wary about accepting the representations of a prosecutor like Derek Hines who once claimed that sawdust was cocaine. Particularly when bowing to his request to exclude the original form from a trial about whether Hunter Biden lied on that form.

My post yesterday describing that Judge Noreika had prohibited Hunter Biden from showing the jury the actual physical form on which he is alleged to have lied was based off Derek Hines’ reply to a supplemental response that Abbe Lowell filed on Saturday — but the supplement was still sealed.

So when I suggested that Noreika may have credited as accurate something Hines said, I was just basing that off the fact that every time Hines wails about Abbe Lowell lying, it has turned out that he was covering something up.

Noreika likely credited something misleading Derek Hines said in a reply posted shortly before her order which cites to it (he has, repeatedly, projected his own inaccurate claims onto Abbe Lowell, and this may be an instance where, at the very least, Hines misunderstood a reference Lowell made).

Hines made a big stink about a bracketed reference to “a second form of identification” that Lowell had included in a quote from a 302 recording either one (if you believe Hines) or two (if you believe Lowell) interviews of Gordon Cleveland, the guy who sold Hunter Biden the gun, in 2021.

Cleveland has been entirely consistent on the issue of identification in the two interviews where it came up. Defendants claims he has offered an “evolving story,” but that characterization is not accurate based on defendant’s own quotes from Cleveland’s Jencks material. Supp. Resp. at 5. The only form of ID Cleveland saw was the passport. He never saw a Delaware vehicle registration and never claimed to. Instead, in both interviews he stated that Turner, who handled the background check, may have, but Cleveland didn’t have first-hand knowledge of whether he did or didn’t. In his first interview on September 27, 2021, Cleveland told investigators:

“He said he would provide the copy of the U.S. Passport and the firearm information on a sheet of paper to the person sending the background check in. Mr. Cleveland said he did not see the document [a second form of identification] with the ATF Form 4473 he was shown [by the Agent on September 27, 2021].” (TAB 3, 10/12/21 ATF EF 3120 at 2, ¶6) (emphasis added). Supp. Resp. at 5 (emphasis added).

The government at this point is obligated to point out that the defendant is again making malpresentations to the Court. In the above quote from his filing, the defendant inserted brackets into a real quote from the September 27, 2021, interview report for Cleveland. The defendant writes in those brackets that “Mr. Cleveland said he did not see the document [a second form of identification] with the ATF Form 4473 he was shown [by the Agent on September 27, 2021]. Supp. Resp. at 5. What defendant inserted into those quotes in brackets isn’t accurate. The ATF never showed Cleveland “a second form of identification.” If you look at the report, which defendant has and attached to his filing, it says that the only documents that were shown to Cleveland, at any point during the interview, were the following:

The ATF did not show Cleveland “a second form of identification,” as the above list of documents make clear. Defense counsel made that up. [Hines’ bold, Lowell’s italics]

Then Derek Hines accused Lowell of deliberately leaving out part of the 302: Cleveland describing that his colleague, Jason Turner, may have gotten a second form of ID.

What defense counsel chose not to quote from that report was the next sentence: “He said Jason Turner may have gotten the vehicle registration due to the U.S. Passport issue.

Lowell’s supplemental response got docketed overnight. And it makes clear that (as I predicted), Hines is the one misrepresenting things and leaving pertinent quotations out.

The contested quotation comes in a passage where Lowell lays out inconsistencies in Cleveland’s story.

Cleveland (a government witness) sold Biden the handgun on October 12, 2018 and gave him the 4473 form to fill out. Yet, as to what was and was not on the form, who completed it and when, Cleveland offers divergent explanations at different points in time.

Cleveland was interviewed by ATF Agent Hnat on September 27, 2021, just six days after the actual Form 4473 (with additions) was obtained by ATF, and again on October 7, 2021. The interview notes reflect:

Speaking of his general practice he said, “He then gathers the information provided by the customer for the background check, the customers two forms of identification . . .” (TAB 3, 10/12/21 ATF EF 3120 at 1, ¶2).

With specific reference to Biden, “He said he would provide the copy of the U.S. Passport and the firearm information on a sheet of paper to the person sending the background check in. Mr. Cleveland said he did not see the document [a second form of identification] with the ATF Form 4473 he was shown [by the Agent on September 27, 2021].” (TAB 3, 10/12/21 ATF EF 3120 at 2, ¶6) (emphasis added).

Now being shown the added information, “He said Jason Turner may have gotten the vehicle registration due to the U.S. Passport issue.” (TAB 3, 10/12/21 ATF EF 3120 at 2, ¶6).

Later, under oath before a grand jury in April 2022—months after the altered Form 4473 was obtained and after he was shown it on September 27, 2021—Cleveland was asked no questions about the identification issue, the added registration information, or the two forms. (See TAB 3A).

But after issues concerning the different versions of the form were raised at the May 14, 2024 status conference, the Special Counsel went back to Cleveland and this is what was explained:

When Biden presented his passport as identification, Cleveland went into the back and asked Ronald Palimere and Jason Turner if it could be used. Cleveland recalls going back out to Biden and saying something to the effect that if Biden was going to use a passport, they would need another form of identification. [] Cleveland thinks Biden went outside and got something, but he can not say with certainty. Cleveland would not have paid attention to the paperwork side of the sale because he had already done his part by working with the customer and making the sale. Cleveland does not think they would have competed the sale without the second identification, though. (TAB 3B, 5/17/24 Cleveland FD-302 at 1).

Thus, even with Cleveland’s evolving story, he cannot say that Biden presented the vehicle registration, but simply assumes that someone else at the gun store would have obtained a second form of identification. Biden should be allowed to challenge this assumption that the gun store would have followed the law in obtaining a second form of identification. [Lowell’s italics, my bold]

As a threshold matter, Hines either lied or is painfully sloppy. Lowell did include that quotation about Turner. It’s right there, on the next line, precisely where Hines said it should be!

I asked Weiss’ spox whether Hines’ false accusation was a lie or just sloppiness (I also asked him to clarify whether Hines got the number of Cleveland interviews wrong). He responded, “As this case is before the court, we will decline to comment beyond our filings.”

But what Hines didn’t include is the context (and here, I do fault Lowell for not indicating whether the 302, which he describes as recording two interviews, distinguishes between what Cleveland said on September 27 and what he said on October 7; also he’s the one who put that bracket in the quote that simply reflects a paragraph break).

Line one: What do you normally do? Cleveland: I ask customers for two forms of ID.

Line two: Did you do that with Joe Biden’s kid? Cleveland: Nope. I didn’t see any second form of ID.

Line three: Well then, who added the second ID to the form? Cleveland: I dunno. Maybe Jason did it?

Right there, Cleveland has already undermined his own testimony, making it clear that (he claims) he always gets two IDs, but then admitting he didn’t here.

And in context, that “second form of ID” refers to the previous line (that’s called an antecedent, Mr. Hines, look it up! You’ll be amazed how grammar works!!).

It’s clear to anyone who knows how to read that Lowell was not referring to what the ATF agent showed Cleveland. It refers to what Hunter did or did not show Cleveland back in 2018. But Hines left it off, perhaps because it would undermine his false accusations?

The rest of the story Lowell’s filing tells is just as interesting. He reveals that the cop who first went to the grocery store to search for the gun in 2018, Vincent Clemons, coordinated his story with the gun shop owner.

[T]he government provided WhatsApp communications from October 2020 and February 2021 between Palimere, friends of his, and then-Delaware state trooper Vincent Clemons3 (see TABs 6 – 6C), all of which refer to the form, a plan to send it to others, needing to get their stories straight about what occurred in 2020, and wanting the gun sale issue and the form exposed during the Presidential campaign.

3 Not to be lost is the fact that Clemons was the Delaware State Police officer who first arrived at Janssens’ grocery store on October 23, 2018 when Hallie Biden threw a bag containing the handgun into a trash can in front of the store. It was Clemons who took statements about the handgun from both Hallie and Hunter Biden and was part of filling out an official police report on the issue. Two years later, he is in the communications with Palimere about the Form 4473, one of which states: “Yep your side is simple – Hunter bought a gun from you, he filled out the proper forms and the Feds approved him for a purchase.” (emphasis added). Palimere later responded, “I’ll keep it short and sweet as well: Hunter bought a gun. The police visited me asking for verification of the purchase and that’s all I can recall from that day. It was over 2 years ago.” (TAB 6B, 10/26/20 Palimere-Clemons Texts at 4, 6.) The reference to filling out the “proper forms” is not lost on defense counsel given what transpired thereafter. And, despite the importance of Clemons (e.g., the person who actually took the statements), the Special Counsel is foregoing him as a witness to call two other Delaware officers instead.

[snip]

Moreover, it turns out that profiting off an improper gun sale was not the gun shop’s only motive. The gun shop staff recognized Biden and the newly-disclosed evidence from the Special Counsel shows the store’s owner sought to politicize the sale to influence the election, which provides further evidence of bias.

Hines capitalized on Lowell’s mention of the election and Parlimere’s effort to politicize the purchase by presenting this description of a cop and a gun owner coordinating the story they plan to tell as exclusively political.

Among the items the defendant emailed to the Court on Friday night were proposed exhibits – identified as defense tabs “6,” “6A,” “6B,” and “6C” – which suggest that two witnesses are politically motivated. These selected portions3 of communications by Palimere to two friends and also to Sgt. Clemons – were made two years after the events in question when defendant’s father was a political candidate. The defendant inaccurately summarizes them as referring “to the form, a plan to send it to others, needing to get their stories straight about what occurred in 2020, and wanting the gun sale issue and the form exposed during the Presidential campaign.” Supp. Resp. p. 8 and n. 3. Nevertheless, he clearly wishes to confuse the jury by introducing these spliced, non-relevant communications to incite prejudice and emotion among the jury to distract from the elements of the crimes that were complete years before.

Thanks to this latest filing, the defendant’s strategy is now more apparent. He has returned to a claim that this prosecution was trumped up and politically motivated. But to suggest that the gun store owner’s political opinions, expressed two years after the fact, have bearing on whether or not he lied about his drug use on the form 4473 on Section A is absurd and must be excluded under the rules of evidence. There is no evidence to suggest these communications played any part in the witnesses’ actions or inactions with respect to the defendant. And there is no evidence that the defendant was the target of political animus by either witness.

The fact that witnesses in this case held political beliefs about which they communicated two years after the defendant’s alleged crime cannot possibly have any relevance to any fact at issue. The defendant should therefore not be permitted to present irrelevant, confusing and unduly prejudicial facts regarding witnesses’ political views to the jury. See Fed. R. Evid. 401, 402. Even if the communications were somehow relevant – and they are not – such evidence is unduly prejudicial to the government. Courts have excluded evidence at trial of a witness’s bias under Fed. R. Evid. 403 where admission would confuse the issues before the jury. E.g., Blair v. United States, 401 F.2d 387, 390 (D.C. Cir. 1968) (affirming trial court’s conclusion that the probative effect of the impeaching evidence was far outweighed by the potential prejudice)

That may be enough to get texts showing a cop working on a cover story; Judge Noreika cut and pasted Hines’ language treating these as political, and ruled that Lowell can’t raise politics at all, even though the gun shop owner says he rushed the sale to get Hunter out of the shop because his dad is anti-gun.

But it has me wondering something that Lowell apparently is also wondering.

He learned that Cleveland claimed that he always asks for a second ID because Hines just turned over the earlier 302 and Cleveland’s grand jury testimony, from April 2022, as Jencks. It seems that prosecutors may have provided these WhatsApp texts in response to a request for Brady, after Lowell started looking into the altered document.

But they haven’t provided any earlier interview reports from Ronald Palimere or Jason Turner, the latter of whom is the guy who actually altered the gun form.

2 Because the Special Counsel intends to call only Cleveland as a witness, but likely interviewed and has interview memoranda by other law enforcement who interviewed Palimere and Turner, the Special counsel produced only Jencks material for Cleveland (other than the only recently written FBI 302 of Palimere after the issue was raised at the May 14 status conference). Given the issues raised about the form’s accuracy and reliability, defense counsel believes statements byPalimere and Turner (if they exist) would be Brady material and asked again (after the initial discovery requests in October 2023) for Brady and Giglio material after the May 14, 2024 status hearing and again specifically on May 31, 2024. The Special Counsel has not responded.

It is virtually certain there is at least one earlier interview with Palimere, because Derek Hines began the interview by “remind[ing] Palimere of of the provisions of the proffer agreement,” rather than explaining them as if for the first time.

So … it gets worse, probably.

Nevertheless, Judge Noreika not only cut and pasted Hines’ exclusion of all discussion of politics, but she also parroted Hines’ mockery that someone might shade their testimony to protect their own immunity. (This entire footnote will be ripped to shreds if Hunter Biden has to appeal this case.)

The government has stated that it intends to call Gordon Cleveland, a gun shop employee, who will testify that he watched Defendant fill out Section A of the Certified Form and that Defendant checked “no” to question 11e about being an unlawful user or addict. Both the Certified Form and the 2021 Form have the same check mark (“X”) responding “no” to question 11e. The addition of “DE VEHICLE REGISTRATION” to a different section of the 2021 Form after the Defendant filled it out does not have “any tendency to make” those two facts, which are “fact[s] of consequence in determining” the charges – that he filled it out and that he said he wasn’t an unlawful user of or addicted to a controlled substance – more or less probable. F.R.E. 401. The Court also agrees with the government that Defendant’s conspiratorial theory about “doctored” forms and currying favor with the government is unsupported rhetoric, which would be prejudicial and confusing to the jury.

This is not a judgement — that the fact that the gun shop altered a form after the fact to make it look like they had followed the law wouldn’t suggest they might do that more regularly — is not one I’d want to be living down for the rest of my career as a judge. Especially not given that with Hines, there’s usually something worse about to drop.

On Eve of Opening Arguments, WSJ Launders David Weiss’ Russian Disinformation Problem

WSJ has a weird story that purports to describe Merrick Garland’s oversight of Special Counsels.

It twice suggests only the left has complained about a perception that Garland slow-walked the January 6 investigation.

Garland has also become the subject of ridicule on late-night talk shows, including by comedian Bill Maher, who in May echoed the grievances of many on the left when he referred to Garland as “a purse dog” rather than a pit bull.

[snip]

But many on the left wanted more. Some wanted prosecutors to also pursue an aggressive case against Trump himself, specifically for inciting the mob.

That will come as a surprise to Liz Cheney, who was among those claiming that Garland was working too slowly.

It reveals that Robert Hur was considered for the job given to Jack Smith and confirms my suspicions that the decision to hire him came from Lisa Monaco’s office, not Garland’s.

An aide drafted a secret contingency plan, to assign the Jan. 6 investigation related to Trump to a special counsel. At the top of the list of candidates was Smith, a former U.S. prosecutor who was then the chief prosecutor at The Hague investigating war crimes in Kosovo. The deputy attorney general’s office also considered Hur, who at the time was a defense lawyer in private practice, for the post.

But it makes no mention of how DOJ came to consider Hur for the job after settling Andrew McCabe’s lawsuit because he had been denied due process rights in his firing. Hur was a key player in that process of denying McCabe his due process, and yet Garland hired him to investigate Joe Biden.

It even gets the timeline of Hur’s hiring incorrect, ignoring the months of investigative steps taken by John Lausch before Hur was hired.

It mentions Brad Weinsheimer’s role in allowing Rob Hur to emphasize Biden’s age in his report, rather than the fact that Hur couldn’t even prove the documents that might have been intentionally withheld took the path he imagined they might have.

Biden’s lawyers read it and were aghast, objecting to “certain aspects of his draft report that violate Department of Justice policy and practice by pejoratively characterizing uncharged conduct,” they wrote to Garland. They wanted him to take a firmer hand with the special counsel he appointed and whose report they and some former Justice Department officials saw as gratuitous.

Garland didn’t respond, taking the same approach he had with other special counsels. He wasn’t going to step in to protect his boss. Instead, adhering to the Watergate-era policy he helped enshrine, he left it to the agency’s senior career official, Bradley Weinsheimer, who said the language in the report “fell well within the Department’s standards for public release.” Garland, as promised, released it the following day, Feb. 8.

But it doesn’t talk about how having Weinsheimer serve as supervisor for Special Counsels effectively eliminates any DOJ review of ethical violations, which role Weinsheimer would otherwise play.

Most bizarrely, it makes absolute no mention of John Durham, whose investigation Garland oversaw for over two years. It doesn’t explain, for example, why Durham was permitted to fabricate a conspiracy theory against Hillary Clinton in his report. It doesn’t explain why Durham’s lead prosecutor, Andrew DeFilippis, left with little advance notice, between Durham’s twin failed trials, at a time when many witnesses were making claims of abuse.

In short, whatever else this story is, it is not a story that is remotely useful for understanding Merrick Garland’s oversight of Special Counsels.

And in this story that doesn’t do what it says, on the eve of opening arguments in the Hunter Biden gun case, it launders David Weiss’ Russian disinformation problem.

By 2022, prosecutors and agents had already believed that Hunter Biden committed tax crimes, but Weiss still seemed no closer to charging him or resolving the case. FBI officials asked Garland’s office if he could help move Weiss along.

Garland refused to prod Weiss, saying he had promised him broad independence to pursue the inquiry as he saw fit.

FBI agents drafted a list of final steps to push the probe forward—including to follow up on allegations from an FBI source that tied Hunter Biden’s financial misdeeds directly to his father.

Weiss’s office reached a tentative plea deal with Hunter Biden in June 2023, in an agreement that would likely include no jail time. Republicans in Congress alleged that Hunter Biden was getting a sweetheart deal, which fell apart a month later. In August, Weiss asked Garland to make him a special counsel, pointing to the FBI’s list and asking for independence. Garland agreed, recognizing that he had earlier promised Weiss autonomy and any resources he sought. [my emphasis]

To be sure, this might be one of the only truly interesting pieces of news in the piece.

What WSJ is describing (including a journalist, Sadie Gurman, who has had good access to Bill Barr in the past) is that the FBI, including people senior enough to be able to complain to Garland personally, was demanding that David Weiss follow up on Alexander Smirnov’s attempt to frame Joe Biden.

Indeed, this passage wildly conflicts with what David Weiss claimed in the Smirnov indictment — that the FBI just came along in July 2023 and requested that Weiss help investigate (but we knew that was false in any case).

And it does seem to confirm what has been clear for a while: the reason David Weiss asked to be made Special Counsel is so he could chase Smirnov’s allegations.

But somehow WSJ neglects to mention the issue — the several issues — that go to the core of Garland’s inadequate oversight of Special Counsels. First, how was this allowed to get this far? How were senior FBI people bugging Garland about this allegation when the most basic vetting of travel records debunked it? How was the FBI chasing an allegation from a guy who had recycled debunked Fox News propaganda? How was David Weiss permitted to demand Special Counsel status, and renege on the plea deal he made with Hunter Biden, based on a tip he had been given back in 2020?

How is that not election interference?

Just as importantly for the issue of Special Counsel oversight, how can Garland leave Weiss in charge of the Smirnov allegation, when he is a witness to the process — implicating Bill Barr and Scott Brady — that ended up mainstreaming it?

And more importantly, WSJ never mentions that the tip turned out to be a hoax from a guy with close ties to Russian intelligence.

How do you write a piece describing that the FBI was pushing Garland to chase what may be Russian disinformation (and in any case is a hoax from someone with Russian ties), and fail to mention that it was a fabrication?

How, on the eve of opening arguments in the Hunter Biden case, do you launder the fact that David Weiss reneged on Hunter Biden’s plea deal because he was chasing false claims from a guy with close ties to Russian intelligence?

On Eve of Hunter Biden Gun Trial, Judge Maryellen Noreika Covers Up Possible Gun Crime

Judge Maryellen Noreika has ruled that Hunter Biden cannot present evidence that, to cover up that StarQuest gun shop sold Hunter Biden a gun without requiring him to show an ID with his address on it, the shop owner and one of its employees falsely claimed they had seen such ID three years after the fact on the physical ATF form.

They doctored the form.

More importantly, the gun shop owner testified that he did so because Hunter Biden listed a celebrity address (his father’s), and also because he wanted to get Joe Biden’s kid out of his store as quick as possible.

By his own testimony, the gun shop owner only belatedly complied with the required record-keeping because of who Hunter Biden is.

Now I get that Hunter Biden cannot claim that he cannot be prosecuted because the gun shop owner also committed a potential crime. Judge Noreika is perfectly correct to prevent that kind of argument.

But Hunter Biden has to be able to use the shop’s admitted willingness to skip documentary steps with a celebrity client and doctor the forms after the fact, because it leaves open the possibility they did that with more than the identification.

In ruling against Biden, though, she said that the gun shop’s willingness to doctor the form after the fact on one issue would not have any tendency to make it more likely they did elsewhere on the form.

Indeed, she seems to misunderstand that the gun shop owner appears to have confessed to doctoring the form.

2. The Court finds that the 2021 Form is irrelevant and inadmissible under Federal Rule of Evidence 401 and excludes it at trial.2 Moreover, even if the 2021 Form were admissible, the Court finds that it is excluded under Federal Rule of Evidence 403 because any probative value it arguably has is substantially outweighed by a danger of unfair prejudice, confusion of issues, and misleading the jury.

2 The government has stated that it intends to call Gordon Cleveland, a gun shop employee, who will testify that he watched Defendant fill out Section A of the Certified Form and that Defendant checked “no” to question 11e about being an unlawful user or addict. Both the Certified Form and the 2021 Form have the same check mark (“X”) responding “no” to question 11e. The addition of “DE VEHICLE REGISTRATION” to a different section of the 2021 Form after the Defendant filled it out does not have “any tendency to make” those two facts, which are “fact[s] of consequence in determining” the charges – that he filled it out and that he said he wasn’t an unlawful user of or addicted to a controlled substance – more or less probable. F.R.E. 401. The Court also agrees with the government that Defendant’s conspiratorial theory about “doctored” forms and currying favor with the government is unsupported rhetoric, which would be prejudicial and confusing to the jury.

One reason her logic he is especially problematic is because it’s clear the form wasn’t prepared at once. The multiple colors make it clear that the date on Gordon Cleveland’s signature — the employee on the hook for selling a gun without seeing an ID with an address on it — was added after the fact, and probably by someone else (Cleveland reportedly testified that his colleague wrote everything in red ink).

Noreika likely credited something misleading Derek Hines said in a reply posted shortly before her order which cites to it (he has, repeatedly, projected his own inaccurate claims onto Abbe Lowell, and this may be an instance where, at the very least, Hines misunderstood a reference Lowell made).

Hines took what appears to be a reference to Cleveland saying he never saw a Delaware registration, and instead insinuated that by that reference to “a second form of identification,” Lowell instead referred to what the FBI showed Cleveland, rather than what Hunter did.

Cleveland has been entirely consistent on the issue of identification in the two interviews where it came up. Defendants claims he has offered an “evolving story,” but that characterization is not accurate based on defendant’s own quotes from Cleveland’s Jencks material. Supp. Resp. at 5. The only form of ID Cleveland saw was the passport. He never saw a Delaware vehicle registration and never claimed to. Instead, in both interviews he stated that Turner, who handled the background check, may have, but Cleveland didn’t have first-hand knowledge of whether he did or didn’t. In his first interview on September 27, 2021, Cleveland told investigators:

“He said he would provide the copy of the U.S. Passport and the firearm information on a sheet of paper to the person sending the background check in. Mr. Cleveland said he did not see the document [a second form of identification] with the ATF Form 4473 he was shown [by the Agent on September 27, 2021].” (TAB 3, 10/12/21 ATF EF 3120 at 2, ¶6) (emphasis added). Supp. Resp. at 5 (emphasis added).

The government at this point is obligated to point out that the defendant is again making malpresentations to the Court. In the above quote from his filing, the defendant inserted brackets into a real quote from the September 27, 2021, interview report for Cleveland. The defendant writes in those brackets that “Mr. Cleveland said he did not see the document [a second form of identification] with the ATF Form 4473 he was shown [by the Agent on September 27, 2021]. Supp. Resp. at 5. What defendant inserted into those quotes in brackets isn’t accurate. The ATF never showed Cleveland “a second form of identification.” If you look at the report, which defendant has and attached to his filing, it says that the only documents that were shown to Cleveland, at any point during the interview, were the following:

The ATF did not show Cleveland “a second form of identification,” as the above list of documents make clear. Defense counsel made that up. What defense counsel chose not to quote from that report was the next sentence: “He said Jason Turner may have gotten the vehicle registration due to the U.S. Passport issue.” As defendant noted, Cleveland was not asked any questions about the form of identification that was used in the grand jury so there is nothing inconsistent between his first interview and his grand jury testimony.

Finally, when asked in his second interview on May 17, 2024, about identification he repeated that he only saw the passport and did not see a Delaware vehicle registration:

When Biden presented his passport as identification, Cleveland went into the back and asked Ronald Palimere and Jason Turner if it could be used. Cleveland recalls going back out to Biden and saying something to the effect that if Biden was going to use a passport, they would need another form of identification. [] Cleveland thinks Biden went outside and got something, but he can not say with certainty. Cleveland would not have paid attention to the paperwork side of the sale because he had already done his part by working with the customer and making the sale. Cleveland does not think they would have competed the sale without the second identification, though. (TAB 3B, 5/17/24 Cleveland FD-302 at 1). Supp. Resp. at 5. [Hines’ bracket, which I’ve bolded, only marks paragraph break; my italics]

In every interview Cleveland stated that Turner handled the part of the form that covered forms of identification, Section B, and he, Cleveland, watched the defendant fill out Section A, where the defendant records information about himself and answers the required questions, including the one that is the basis of the charges, namely, whether he was an unlawful user of or addicted to a controlled substance. Here is what Cleveland said in his first interview:

Defendant claims “Palimere was in discussions with Cleveland and Turner on that date about what was and was not on the form and, thereafter, the sale would be made regardless of legal compliance concerns.” Supp. Resp. at 7. That is not true. Defense counsel made that up, too. And the best evidence it is not true is that defendant cites nothing from any grand jury transcript or interview report in support of that assertion in his supplemental response. To be clear, no one has testified or stated in an interview—not Cleveland, not Turner and not Palimere—that they discussed “what was and was not on the form.” All that was discussed was whether a U.S. Passport could be accepted as a form of identification and whether a Delaware vehicle registration was needed as a second form of identification. And no one has testified or stated in an interview—not Cleveland, not Turner and not Palimere—that they discussed “the sale would be made regardless of legal compliance concerns,” because no such discussions occurred. [my italics]

The quote Hines accuses Lowell of excluding — that Jason Turner may have gotten a second form of ID — is utterly consistent with the reading that Lowell was referring to what Hunter showed Cleveland, not what the FBI did.

Even based off what is public, Hines appears to be misreading the rest, too.

Palimere, the gun shop owner, was in discussions with both Cleveland and Turner about what would be used on the form (the passport only). And while inapt, I believe Palimere’s testimony is only consistent with a claim that the sale would be made regardless.

That’s because it was made regardless, after a discussion about whether to get anything more.

In the case of Biden’s sale, Gordon Cleveland, was the salesman. Palimere was sitting at his desk in the back and Cleveland said something to the effect of, “Hey, Hunter Biden’s here. He wants to use his passport.” Palimere was familiar with Biden’s father’s not being a gun supporter so Palimere thought it would be bad for Palimere’s business to have Hunter Biden seen in his store. Palimere wanted to get the sale completed and get Biden out of the store, so Palimere said yes to using the passport as identification. Palimere never interacted with Biden.

[snip]

Normally, they would call a customer if they found an error/omission and needed to annotate the Form 4473. The ability to annotate the Fom 4473 is allowed by the ATF. For this case, a typical customer would have been called and told they needed to come back in and bring registration to show the residency.

Palimere was not about to call Biden. Palimere felt they could not have him come into the store. Plus, Palimere did not want to contact Biden and tell him he needed to come in and he was being investigated.

We can’t be sure (Lowell submitted his filing under seal because it included grand jury and non-public exhibits), but Hines’ representations seem to take imprecise comments from Lowell and read them in a way that makes no sense.

Noreika’s ruling becomes a problem (and likely will require at least clarification) for two reasons that seep into Hunter Biden’s Sixth Amendment right to impeach the government’s witnesses.

First, in the order, Noreika prohibited all discussion of political bias, which Hines suggested Lowell wanted to present exclusively through Palimere’s efforts to make this public before the 2020 election.

3. Questioning, testimony, evidence or argument, including but not limited to, the additional exhibits designated by the Defendant as tabs “6-6C” to his supplemental submission regarding any witnesses’ political bias are excluded from introduction or admission at trial because such questioning, testimony, evidence or argument is not relevant, is unduly prejudicial and invites nullification.3

3 The Court agrees with the government that the political views expressed in 2020 by the gun shop owner, Palimere (who did not witness Defendant fill out Section A of the Certified Form or check the box for question 11e in 2018), are sideshows aimed at tainting or confusing the jury. [my italics]

But Palimere described that he made an affirmative decision to treat the sale to Hunter Biden differently because of who his father is. Palimere freely confessed that he sold a gun without requiring the proper paperwork because Joe Biden is not a gun supporter.

Palimere was familiar with Biden’s father’s not being a gun supporter so Palimere thought it would be bad for Palimere’s business to have Hunter Biden seen in his store. Palimere wanted to get the sale completed and get Biden out of the store, so Palimere said yes to using the passport as identification.

This is politics. It affected the sale. Noreika doesn’t want that to come in because explaining that the gun store didn’t follow the rules with the sale to Hunter Biden and that they did so because of Joe Biden’s politics would be unduly prejudicial.

That strips Hunter of the ability to present key details about the sale.

And Noreika’s ruling may prevent Hunter from impeaching Cleveland.

A prosecutor can’t simply claim, nope, these statements Cleveland made about the form are not inconsistent. That usurps the role of the jury.

And they are inconsistent. In the first interview, Cleveland said that if a second ID was really requested, Turner handled it (it’s unclear whether Turner ever came to the front room, but since he’s the guy who doctored the form, it would be significant if he did). In the second interview, Cleveland claimed to remember asking for it. If his memory is inconsistent on that point, there’s no reason to credit his memory about how the form was filled out.

That, coupled with Cleveland’s claim he didn’t much care about the paperwork, should be fair game for questions about whether Hunter Biden’s part of the form really was filled out properly. As it is, Cleveland has signed the form even though he didn’t do key parts of it. But Noreika’s exclusion of the form will make it nearly impossible to argue that Cleveland’s testimony about the form is inconsistent.

Judge Maryellen Noreika may think it’s a conspiracy theory that the gun shop doctored the form because they wanted to get Joe Biden’s kid out of the shop quickly. Except it is also precisely what the gun shop owner’s testimony says.

Update: One piece of timing of note. ATF picked up the physical form on September 24, 2021. Cleveland was first interviewed on September 27, 2021. It appears they had to have used the physical form, not the scanned one, not least because the reference to the DE registration only appears on page 2 in the form, not the scan (which has a cover sheet). He was not interviewed again until a grand jury appearance. We know investigators did no basic investigative steps (getting a warrant, sending the pouch to be tested) until after the actual indictment.

Which makes me wonder whether they decided not to pursue charges because of this form and now are just (successfully, so far) bulldozing past this real evidentiary problem.

Update: According to the 302 from Cleveland’s May 2024 interview, he stated that he would not have paid attention to the paperwork side of the sale.

Cleveland thinks Biden went outside and got something, but he can not say with certainty. Cleveland would not have paid attention to the paperwork side of the sale because he had already done his part by working with the customer and making the sale. Cleveland does not think they would have competed the sale without the second identification, though.

This is a stunning comment from someone whose name is on the form transferring the gun. I could certainly see questioning about why he signed off on a form without personally taking responsibility for the paperwork, not least because he recognized the passport was not sufficient. His boss has basically put him in a position where he’s on the hook for a crime.

Now, he may contest this representation — 302s are only used to refresh memory, they never go back to the jury.

But if he does, it would be his word against the FBI agent who’ll submit much of the rest of the case, because they broke FBI protocol by not having a second FBI agent there. So Cleveland may be in the position of having to admit he violated gun purchase laws, knowingly, or trying to undercut another key witness.

Chris Kise Asks Aileen Cannon to Sanction Jack Smith because Chris Kise Doctored a Filing

After Jay Bratt asked Aileen Cannon to modify Donald Trump’s bail conditions to prevent him from making up claims that the FBI tried to assassinate him, Trump’s team has not responded. Instead, they filed a motion to strike the request and impose sanctions because — they claim — Bratt did not meet and confer before filing the motion.

The motion, like most other ones these guys have filed, is largely manufactured. They’re pissy that Bratt filed this on a Friday before Memorial Day, they’re pissy that Bratt refused to wait until Monday to submit the filing, they’re pissy that Bratt summarized their objection rather than quoting a long complaint verbatim.

There are rules. You guys violated them. I appreciate the attempted explanation, but it does not in any way pacify us. I am beyond amazed that the government would misrepresent facts to the Court about what happened. You did not even bother to inform the Court that you reached out to us for a “meet and confer” at 5:30 p.m. on Friday night of Memorial Day weekend before filing the motion at 8 p.m. I’m confused as to why you think we could not meaningfully meet and confer about a path forward short of a motion. You did not even bother to inform us of the posts/fundraising emails that gave you all concern until 20 minutes before you filed the motion. We would have been more than willing to discuss with you your concerns prior to filing the motion. You had an agenda and you stuck to that agenda. It is not surprising, but still disappointing. The Court may agree with you that the path you chose was the right one. I do not know.

But please do not try to justify a blatant violation of the rules (and beyond the Local Rules, Judge Cannon’s admonition to all of us last summer). You all made a decision tonight to file this motion without complying with the rules (Local Rules and Judge Cannon). That is your decision.

Nowhere do they address the underlying complaint: that Trump was ginning up false claims of assassination attempts based off Trump’s own lawyers doctoring of the Use of Force Form.

They even claim that Trump’s Truth Social claims are alleged, perhaps blaming Natalie Harp again for authoritarian games.

But that, of course, means it’s likely to work perfectly for Judge Cannon, who otherwise was stuck with a choice of preventing Trump from making false claims or being appealed.

Update: Cannon catered to Trump, once again.

PAPERLESS ORDER denying without prejudice for lack of meaningful conferral 581 the Special Counsel’s Motion to Modify Conditions of Release. Upon review of the Motion 581 [581-1], Defendant Trump’s procedural opposition 583, and the attached email correspondence between counsel [583-1], the Court finds the Special Counsel’s pro forma “conferral” to be wholly lacking in substance and professional courtesy. It should go without saying that meaningful conferral is not a perfunctory exercise. Sufficient time needs to be afforded to permit reasonable evaluation of the requested relief by opposing counsel and to allow for adequate follow-up discussion as necessary about the specific factual and legal basis underlying the motion. This is so even when a party “assume[s]” the opposing party will oppose the proposed motion [583-1], and it applies with additional force when the relief sought — at issue for the first time in this proceeding and raised in a procedurally distinct manner than in cited cases — implicates substantive and/or Constitutional questions. Because the filing of the Special Counsel’s Motion did not adhere to these basic requirements, it is due to be denied without prejudice. Any future, non-emergency motion brought in this case — whether on the topic of release conditions or anything else — shall not be filed absent meaningful, timely, and professional conferral. S.D. Fla. L.R. 88.9, 7.1(a)(3); see ECF No. 28 p. 2; ECF No. 82. Moreover, all certificates of conference going forward shall (1) appear in a separate section at the end of the motion, not embedded in editorialized footnotes; (2) specify, in objective terms, the exact timing, method, and substance of the conferral conducted; and (3) include, if requested by opposing counsel, no more than 200 words verbatim from the opposing side on the subject of conferral, again in objective terms. Failure to comply with these requirements may result in sanctions. In light of this Order, the Court determines to deny without prejudice Defendant Trump’s Motion to Strike and for Sanctions 583 . Signed by Judge Aileen M. Cannon on 5/28/2024. (jf01) (Entered: 05/28/2024)

Jack Smith Invites Aileen Cannon to Protect the Country Rather than Just Donald Trump

Jack Smith has asked Judge Aileen Cannon to prevent Trump from lying about a plot to assassinate him, as he has done since propagandist Julie Kelly made a stink about a routine Use of Force form Trump himself released and misrepresented and created a false scandal. But there’s a detail about how he asked the deserves attention.

The motion describes how Trump filed that routine form, without tying to his demand for suppression, and then started lying about it, only to have other propagandists (it includes an example from Steve Bannon’s show) join in.

On February 22, 2024, Trump filed under seal a motion to suppress evidence obtained through the search of Mar-a-Lago. See ECF No. 566. In setting forth what he described as the relevant facts, Trump stated that the Operations Form “contained a ‘Policy Statement’ regarding ‘Use Of Deadly Force,’ which stated, for example, ‘Law enforcement officers of the Department of Justice may use deadly force when necessary [sic] . . . .’” Id. at 4. Although Trump included the warrant and Operations Form as exhibits to his motion, the motion misquoted the Operations Form by omitting the crucial word “only” before “when necessary,” without any ellipsis reflecting the omission. The motion also left out language explaining that deadly force is necessary only “when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person.” Compare ECF No. 566-3 at 11 with ECF No. 566 at 6. Notwithstanding the misleading characterization of the use-of-force provision when describing the search, the motion did not seek suppression based on the policy, claim that the agents had acted inappropriately in following that standard protocol, or otherwise rely on the policy as part of the argument. See ECF No. 566 at 12-13.

On May 21, 2024, Trump filed a redacted version of his suppression motion and exhibits on the public docket. See ECF No. 566. The next day, Trump publicly claimed that he was just “shown Reports that Crooked Joe Biden’s DOJ, in their illegal and UnConstitutional Raid of Mara-Lago, AUTHORIZED THE FBI TO USE DEADLY (LETHAL) FORCE.” Exhibit 1. Trump also sent an email stating that the government “WAS AUTHORIZED TO SHOOT ME,” was “just itching to do the unthinkable,” and was “locked & loaded ready to take me out & put my family in danger.” Exhibit 2. Trump also publicly claimed that, “[s]hockingly,” the Department of Justice “authorized the use of ‘deadly force’ in their Illegal, UnConstitutional, and Un-American RAID of Mar-a-Lago, and that would include against our Great Secret Service, who they thought might be ‘in the line of fire.’” Exhibit 3. Predictably and as he certainly intended, others have amplified Trump’s misleading statements, falsely characterizing the inclusion of the entirely standard useof-force policy as an effort to “assassinate” Trump. See Exhibit 4. [my emphasis]

Now, that could have been all that Smith needed to do. As he lays out, Judge Cannon has the authority under the Bail Reform Act to modify Trump’s release conditions to protect the safety of the community.

Under the Bail Reform Act, a “judicial officer shall issue an order that, pending trial, the [defendant] be” either released on personal recognizance or an unsecured bond, 18 U.S.C. § 3142(a)(1), released “on a condition or combination of conditions under subsection (c),” id. § 3142(a)(2), temporarily detained pending revocation, deportation, or exclusion, id. § 3142(a)(3), or detained, id. § 3142(a)(4). Here, Trump was released on conditions under subsection (c). ECF No. 17.

Subsection (c) provides that, if a person is released on conditions, the “judicial officer shall order the pretrial release of the person” subject to (1) “the condition that the person not commit a Federal, State, or local crime during the period of release,” and (2) “the least restrictive further condition, or combination of conditions that such judicial officer determines will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(c)(1)(A), (B). The statute then lists several “further condition[s]” that the release order “may include.” As relevant here, those further conditions include that the defendant “satisfy any other condition that is reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community,” id. § 3142(c)(1)(B)(xiv). Subsection (c) further provides that “[t]he judicial officer may at any time amend the order to impose additional or different conditions of release.” Id. § 3142(c)(3).

The Court should exercise its authority to impose a condition that Trump may not make public statements that pose a significant, imminent, and foreseeable danger to the law enforcement agents participating in the investigation and prosecution of this case

But Smith didn’t stop there. Even before that, Smith invoked an argument Judge Cannon made herself last year, when choosing to stick her nose into the public reports that Jay Bratt was mean to Stan Woodward.

The Court has an “independent obligation to protect the integrity of this judicial proceeding,” ECF No. 101, and should take steps immediately to halt this dangerous campaign to smear law enforcement.

This is, at the very least, a subtle dig. Cannon has gone out of her way (with the original search, and then on two of these such occasions) at least three times to protect Trump.

But she has done nothing as Trump, “irresponsibly put a target on the backs of the FBI agents involved in this case,” as the filing describes.

At least one attorney has suggested that Cannon could ding Chris Kise for leaving out the limitations and thereby giving the Use of Force policy the opposite meaning than it really has (bolded above), setting up this propaganda attack.

Instead, Smith has used it as an opportunity to either force Cannon to rein Trump in — or to demonstrate that her bias in this case is contributing to a very dangerous situation.

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