Smoking Gun! FBI Didn’t Have “Sufficient Evidence” to Prosecute Firearms Crimes against Hunter Biden

Let’s go back to the Devlin Barrett story that kicked off the manufactured scandal about DOJ slow-walking the Hunter Biden investigation.

That story wasn’t just about tax charges, though those have gotten the bulk of attention. That story claimed that Federal agents had enough evidence to charge Hunter Biden with a false statement tied to purchasing a gun in 2018.

Federal agents investigating President Biden’s son Hunter have gathered what they believe is sufficient evidence to charge him with tax crimes and a false statement related to a gun purchase, according to people familiar with the case.


The gun paperwork part of the investigation stems from 2018, a time period in which Hunter Biden, by his own account, was smoking crack cocaine.

In October of that year, Biden purchased a handgun, filling out a federal form in which he allegedly answered “no” to the question whether he was “an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”

According to a book Hunter Biden later wrote about his struggles with substance abuse, he was using drugs heavily that year.

While it is definitely true that prosecutors ham sandwiched their way through a grand jury on September 14, 2023, charging the President’s son with three felonies (potentially even by relying on the plea colloquy prosecutors obtained before reneging on the deal they made to get it), revelations from that last week have made it clear that while they had enough evidence to charge Hunter Biden, they didn’t have enough evidence to prosecute him.

At the time they indicted, David Weiss had the case file from local authorities showing state prosecutors declining to charge the case days after discovering the gun. Importantly, that case file included evidence photos of the gun itself.

[A]n October 2018 state police case file of the firearm incident that includes interview memoranda and deliberations among Delaware state prosecutors regarding whether to file charges—per the file, on October 30, 2018, after reviewing the facts, New Castle County prosecutors decided not to prosecute and closed the case.


The prosecution produced a Delaware state police case file, which includes a summary of an interview Mr. Biden gave police in October 2018 and other information about the purchase, discard, and recovery of the firearm, as well as evidence photos from its case file. [my emphasis]

They also had the ATF case file, describing more about the gun purchase.

The prosecution also produced an ATF case file that has additional information about the firearm and statements about its purchase.

They had excerpts from Hunter Biden’s book. There’s no indication whether those excerpts include the multiple passages that explain why any digital evidence from 2018 would pose some evidentiary challenges. Indeed, when I asked about one of those challenges in December, Weiss’ spox had no explanation for it.

But there are three things David Weiss only sought after indicting the case — and so over a year after Devlin’s sources got him to publish that there was sufficient evidence to charge Hunter Biden.

Sometime in October, the month after the indictment, they sent the firearm for the first time to an FBI lab to test the residue on the pouch in which the gun was found; the residue tested positive for cocaine. The photos in the local case file are important, because the purported reason an FBI agent accessed the gun in October 2023, the month after the indictment, was to take photos of it.

In 2023, FBI investigators pulled sealed evidence from the state police vault to take photographs of the defendant’s firearm. After opening the evidence, FBI investigators observed a white powdery substance on the defendant’s brown leather pouch that had held the defendant’s firearm in October 2018. Based on their training and experience, investigators believed that this substance was likely cocaine and that this evidence would corroborate the messages that investigators had obtained which showed the defendant buying and using drugs in October 2018. An FBI chemist subsequently analyzed the residue and determined that it was cocaine. [my emphasis]

But the effort to obtain forensic evidence after the indictment was half-hearted; investigators did not test to see how long the residue had been in the pouch, nor did they test for other fingerprints.

(a) a brown pouch (obtained by a scavenger from a public trash can) with cocaine residue was in law enforcement’s possession for over five years, but was not tested until after the charges were brought; (b) even then no test was done for fingerprints or to date how long the residue had been there;

Then, sometime after convening a grand jury for tax crimes in November 2023, the second month after the indictment, Weiss obtained,

testimony (in support of finding probable cause) about the firearm obtained from a witness in a grand jury empaneled in the Central District of California in November 2023 after this indictment had already been brought.

Finally, in December 2023, days after Abbe Lowell asked prosecutors for their evidence of Hunter Biden’s mindset in October 2018, David Weiss obtained — Weiss claims, for the very first time — a warrant to search Hunter’s digital records for such evidence. (Side note: Lowell explains that prosecutors sent him that warrant the day they obtained it, December 4, something Derek Hines didn’t think was important to tell Judge Maryellen Noreika.)

According to the warrant return, Special Agent Boyd Pritchard was still searching for that evidence when Judge Noreika granted my request to unseal it.

That makes David Weiss’ failure, thus far, to actually provide Bates stamps of or describe where they found the messages that prosecutors intend to rely on at trial all the more notable. Even assuming Abbe Lowell’s promised motion to suppress that late warrant fails — and that’s likely — there are aspects of the forensics involved that may make it hard to introduce the messages themselves at trial. Plus, it raises questions about whether they actually found these texts or simply think they know they exist because they read them in some public news report? And if they saw it in a public news report, were those agents tainted by one of the many hard drive sets that have been tampered with?

You can definitely argue, and I’m sure prosecutors will, that some of this late obtained evidence was opportunistic. For example, they may argue that they really did need new photos of Hunter’s gun — photos they did not need to present their case to the grand jury — in advance of trial. They may argue that whatever witness whose November testimony they included in the December warrant was a key tax witness, and they simply locked the person into gun testimony while they had them under oath. That kind of stuff flies under precedents of prosecutorial dickishness all the time.

But, assuming David Weiss’ claim to have only obtained a warrant to search Hunter’s digital evidence for gun crimes on December 4, 2023, you cannot say they had the evidence to prosecute the crime.

They hadn’t looked — not in the over three years they had been combing through Hunter’s digital life. Or, if they had looked, they had done so unlawfully.

That’s not evidence, as Gary Shapley claims, of slow-walking the investigation. That’s evidence that in October 2022, when someone kicked off a scandal that has led to an impeachment inquiry by telling Devlin Barrett what to write down as if it were true, no one planned to take this to trial.

Republicans have spent the 15 months since Devlin’s October Surprise screaming about the investigation, based in significant part on the claims made in Devlin’s story.

But one key claim in Devlin’s story — about how much evidence they had to support the gun charges — has been debunked by David Weiss’ three months of scrambling to get more.

This makes Devlin’s gun claims the second scandal manufactured by the WaPo that has been at least partially debunked in recent weeks.

And Devlin, with his reporting partner Perry Stein, chased Derek Hines’ coke-in-gun stunt; that’s precisely the kind of stunt WaPo Dick Pic Sniffers will jump on every time. But they have not reported that that lab report and the warrant to search Hunter’s digital evidence for gun evidence came after the indictment.

In other words, this is, like Matt Viser’s story about the George Bergès testimony, yet another example of WaPo failing to admit that the scandals they manufactured years ago haven’t held up to the evidence found since.

This Is Why We Vote: Women Are Not Yet Full Citizens

[NB: check the byline, thanks. /~Rayne]

Someone I’ve looked up to and followed in social media wrote yesterday, “Don’t Vote.”

That earned an immediate muting and unfollowing from me. No fucking way.

I’m not going to identify them. I don’t even care what detailed explanation they offered for their statement.

Do not discourage people from participation in democracy when that democracy is fighting for its life.

More importantly, do not discourage citizens from voting when their own human rights are being trampled on.

Yesterday was particularly egregious for women, and one of the worst days to tell women not to vote.

Get your asses to the polls. Take friends and family with you. Vote like your life depends on it because it fucking well does.

~ ~ ~

You’ve probably seen news stories about Texas resident Kate Cox and her rather desperate effort to obtain an abortion. You’ve probably seen stories leading up to this week about the legal volleys between her and the state of Texas — no she can’t, yes she can, no she can’t — a state which outlawed abortions in nearly all cases.

What you haven’t seen much discussion about is the reason why she’s been seeking an abortion.

The fetus she is carrying has an autosomal chromosomal disorder which is fatal – trisomy 18, otherwise known as Edwards syndrome.

Read about it:

Most Edwards syndrome cases are diagnosed prenatally, based on antenatal screening with maternal age, maternal serum marker, or by ultrasound findings during the second trimester. Antenatally, Edwards syndrome can reveal intrauterine growth restriction, polyhydramnios, agenesis of the corpus callosum, choroid plexus cyst, nuchal thickening, brachycephaly, clenched hands with overriding index fingers, cardiac defects, omphalocele, and single umbilical artery.[8] Edwards syndrome has a high risk of fetal loss and stillbirth.

Postnatally, Edwards syndrome is characterized by a cluster of phenotypes, as summarized below.

1. Neurologic findings

◦ Neonatal hypotonia followed by hypertonia
◦ Apnea
◦ Seizures
◦ Poor sucking
◦ Delayed psychomotor development and mental retardation

2. Craniofacial findings [9]

◦ Skull: Microcephaly, bitemporal narrowing, and prominent occiput.
◦ Face: Triangular and asymmetric face with facial paralysis
◦ Eyes: Microphthalmia, hypertelorism, epicanthus, short palpebral fissures, coloboma of iris, cataract, corneal clouding, hypoplastic supraorbital ridge, upward or downward slanting palpebral fissures, and abnormal retinal pigmentation.
◦ Nose: Prominent nasal bridge with hypoplastic nasal root, upturned nares, and choanal atresia.
◦ Oral cavity: Micro-retrognathia, microstomia, narrow arched palate, cleft lip, and cleft palate.
◦ Ears: Microtia, preauricular appendages, low-set or retroverted ears, and dysplastic ears.

3. Skeletal [10]

◦ Severe growth retardation
◦ Short neck
◦ Short sternum
◦ Broad chest, with or without widely spaced small nipples.
◦ Incomplete ossification of the clavicle
◦ Hemivertebrae or fused vertebrae, scoliosis
◦ Pectus excavatum
◦ Narrow pelvis and limitation of the hip abduction
◦ Hip dislocation
◦ Arthrogryposis,
◦ Clenched hands with overriding fingers, camptodactyly, syndactyly, single palmar crease and clinodactyly of the fifth fingers, radial or thumb hypoplasia, and hypoplastic nails
◦ Rocker-bottom feet with the prominent calcaneus, talipes equinovarus, dorsiflexed great toes

4. Cardiovascular

◦ Cardiac defects are found in 90% of Edwards syndrome patients.
◦ Ventricular or atrial septal defect, Patent ductus arteriosus, tetralogy of Fallot, overriding of the aorta, coarctation of the aorta, and hypoplastic left heart syndrome
◦ Polyvalvular heart disease (involving two or more valves; the most common aortic and pulmonary valve

5. Pulmonary

◦ Pulmonary hypoplasia
◦ Tracheobronchomalacia, laryngomalacia
◦ Obstructive and central apnea
◦ Early-onset pulmonary hypertension

6. Gastrointestinal:

◦ Omphalocele
◦ Esophageal atresia with Tracheoesophageal fistula
◦ Pyloric stenosis
◦ Ileal atresia
◦ Malrotation
◦ Meckel diverticulum
◦ Diastasis recti
◦ Umbilical hernia

7. Genitourinary

◦ Cryptorchidism, Hypospadias, micropenis,
◦ Clitoral hypertrophy, hypoplasia of the labia majora, ovarian dysgenesis, and bifid uterus
◦ Horseshoe kidney, renal agenesis, hydronephrosis

8. Central nervous system malformations (occur in 30% of cases)

◦ Cerebellar hypoplasia,
◦ Meningoencephalocele, anencephaly
◦ Hydrocephalus
◦ Holoprosencephaly
◦ Arnold-Chiari malformation
◦ Hypoplasia of the corpus callosum

source: Edwards Syndrome

Read more elsewhere into this understanding there are people who will try to persuade you that the extremely small percentage of children born with trisomy 18 will live as long as a year is worth gambling with the mother’s life, or that the quality of life for these severely challenged infants is worth all the torture they will receive in their short lives.

Cox has been in the emergency room several times during this pregnancy. She could have any number of problems like high blood pressure or have been experiencing symptoms indicating miscarriage might be imminent. The reasons why aren’t reported in the media; it’s private personal medical data the media can’t obtain without permission from the patient.

But for some reason the state of Texas – let’s be frank, the bloody Texas GOP – thinks that everything about this pregnancy is its business.

To that end they believe it’s their business Cox must be forced to give birth to a child which will likely suffer a miserable death after all manner of medical interventions.

The Texas GOP at multiple levels of the state’s government, from that corrupt scumbucket AG Ken Paxton to members of the state’s supreme court, believe they know best about this pregnancy.

Never mind the mother and her doctors may already know from testing this fetus has gross deficits incompatible with life outside the womb beyond what a blood test may reveal.

Cox’s plight has fallen under intense public scrutiny while law enforcement and the state judiciary have eaten up days, weeks, months debating the fate of this woman and her pregnancy – all adding to her stress, further hurting the fetus she carries.

This is what the GOP is good at: overt cruelty, without any consideration for the persons it is tormenting as it debates what should never be in their purview.

This is the death panel the GOP wanted Americans to be afraid would be implemented with the Affordable Care Act – except it’s not insurers or hospitals or doctors on this panel.

The death panel is majority white Christian Republican men who will never know what it is to face the body horror of carrying a fetus which isn’t viable, or a fetus which wasn’t wanted, or a pregnancy which poses a mortal threat to the mother.

Welcome to Gilead. Enjoy this enactment of The Handmaid’s Tale where we now wait for the mother to be further persecuted because she took control of her life and left Texas to seek care away from the reach of the Texas GOP death panel.

~ ~ ~

Meanwhile, Michigan’s Governor Gretchen Whitmer signed the last bill yesterday which finalized the codification of the state’s Reproductive Health Act. Voters demanded reproductive rights in November 2022 when they passed the Proposal 3 ballot initiative. The proposal’s passage assured reproductive rights became part of the state’s constitution, which in turned required the repeal of a 91-year-old law banning abortion along with other legislation to ensure access to reproductive health care.

Whitmer is a Democrat; the state legislature has been led by Democrats this term.

This was intensely personal for Whitmer, who had pleaded with her fellow state legislators a decade ago not to pass restrictions on health care insurance for reproductive health. She had been raped in college and shared that personal trauma in order to make her point – but to no avail given the MIGOP led the state’s legislature at the time. Whitmer understands all too well what the stakes were and are with regard to reproductive rights.

Had Kate Cox lived in Michigan, she would not have been named publicly, not been in the news, simply have gone about seeking necessary health care so that she could heal and take care of her family.

The same goes for the 10-year-old Ohio girl who was raped and left Ohio to seek an abortion in Indiana. The same for the Indiana doctor who treated her so that she could return to being a little girl again. Both of them would not have been subjected to the cruelty media exposure brings, nor the harassment of mostly white GOP men using them to stump for votes from anti-abortion voters.

No woman or health care provider in the U.S. should live in fear the way they do in Texas, Ohio, Indiana, and other states which have banned abortion and reproductive health care to the point that persons endowed with uteruses and their health care providers are denied their fundamental rights of personal autonomy and privacy.

They are denied the right to be secure in their persons against unreasonable searches and seizures, unlike those who never had a uterus and identify as men.

Women are not permitted their full right of citizenship everywhere in this country.

This is why we fucking vote, every election, every race, up and down the ticket.

~ ~ ~

Am I hot about this? Yes, yes I am. I have an adult daughter of childbearing age and her career is now shaped by where she can safely travel and live. We’ve had to have unreasonable, unfair discussions about what to do if she travels to a state with aggressive anti-abortion laws – how will she obtain help, who will provide it, how will she securely notify her spouse and/or parents where she is and what help she needs, and who is at risk of legal liability if they help her.

I have an adult son who doesn’t face those same challenges, simply because he doesn’t have a uterus.

However once he enters a serious relationship with a woman of childbearing age, he’ll have to consider similar issues: should he accept a job where his girlfriend/wife will be at risk if she becomes pregnant?

These should not be issues workers from their teens to their early fifties have to worry about. They should free to look at jobs anywhere, evaluate the work and employer on their own merits, not have to turn down jobs because they don’t have the same rights across the country.

Banning access to reproductive health care isn’t hurting just persons of childbearing age by denying them personal freedom – it’s hurting all of us because it’s a restriction on commerce. The best people for a job may not be going to Texas because they don’t want to be tortured like Kate Cox has been.

But again, this is why we fucking vote, every election, every race, up and down the ticket.

You may dislike a two-party system. Point taken. But do not tell me the two parties are the same because one of the two parties doesn’t believe women are entitled to the same rights as men.

~ ~ ~

This is an open thread.

Three Things: Brilliant Opportunities Disguised

[NB: check the byline, thanks. /~Rayne]

At this site we tend to get caught up in the excruciatingly massive tarball that is Donald Trump – the conspiracy to unlawfully aid his 2016 election, his craptastically corrupt and fascistic tenure in the White House, and his ongoing effort to destabilize this country including the rolling insurrection punctuated by January 6.

But Trump is a tarball not only for this site and the American left. He’s a sticky mess tainting right-wing politics in so many ways having opened the door to the right-wing’s worst impulses.

You’d think the folks who identify themselves as conservatives would have clued in by now and begun to deal with the toxic waste Trump represents to the GOP’s future.

Former Chrysler CEO Lee Iococca once said, “We are continually faced by great opportunities brilliantly disguised as insoluable problems.”

Hello, GOP. You could fix your insoluable problems if you quit being bigots and pulled your heads out of your asses.

In the mean time we’re going to look at these as great opportunities demonstrating the Republicans’ inability to govern themselves let alone the entirety of any one community, state, or this nation.

~ 3 ~

This is what came up yesterday afternoon in Google News for Top News about the Florida GOP:

Here are the top four stories which surface in Google News this evening about the Florida GOP.

They’re not about Ron DeSantis, the state’s governor and current presidential candidate, at least not directly.

Not about any other GOP elected official or candidate.

Not related any court case related to Florida legislation.

Nope, it’s just another sex scandal this time involving a prominent member of Klanned Karenhood, I mean, Moms for Liberty and the head of the Florida GOP – a husband and wife couple who swing.

Apparently the husband and head of FL-GOP Christian Ziegler has a wee problem with consent.

The entire GOP has a problem with consent as Trump has demonstrated repeatedly, but this particular problem will likely result in criminal charges for rape and/or sexual battery in Florida.

The most galling part of this scandal is another layer of obnoxious fascist hypocrisy foisted on us by swinging spouse Bridget Ziegler was responsible in a big way for the infamous “Don’t Say Gay” bill foisted on Floridians.

Both Zieglers have been influential in Florida politics, especially after disagreements during the COVID pandemic led to a wave of conservative activism in schools. Bridget Ziegler helped draft the original bill in 2019 that later became the Parental Rights in Education Act after the Sarasota School Board — wrongly, in her opinion — approved guidelines that would make it optional for school officials to tell parents of elementary school children if they requested to go by a different pronoun. Previously she had spoken out against transgender students using restrooms that matched their gender identities.

When DeSantis signed the bill, which prohibits the mention of gender identity and sexual orientation, bans discussions that aren’t “age-appropriate” without defining what that means, and allows any parent to sue a school district over teaching they don’t like with the district paying the bill, Ziegler was standing behind him. The anti-mask-and-COVID-vaccine movement, combined with what critics called the “Don’t Say Gay” law, kicked off DeSantis’ campaign to eradicate “wokeness” and seemingly any acknowledgment of gender identity, sexuality and the racial issues mistakenly called critical race theory from the state.

Her husband went to the victim’s residence uninvited and allegedly raped her after the victim had backed out of another planned sexual encounter because the victim was only it it for Bridget.

In other words, the bill was intended to prevent young people from engaging in their First Amendment rights to discuss political figures like Bridget Ziegler having gay sex.

We know that the authoritarian personalities who make up much of the GOP’s base are immune to the shaming and blind to their hypocrisy about law and order or personal freedom – in this case, the freedom of a woman to say no to sex, or young people’s freedom to talk about their sexuality.

But it’s ridiculous for the GOP to expect Americans to trust them when they break the law while caring little for the fallout. They refuse to discipline themselves or their own party.’

~ 2 ~

Speaking of discipline, the Michigan GOP is a total shit show – one like January 6, in fact.

Half of the MIGOP has broken away in an insurrection against its own party leadership, doing so in a way which denied the just-less-than-half of the party aligned with current party chair and Trumper Kristina Karamo from having a quorum to conduct business.

The breakaway faction wants to kick Karamo to the curb. It’s not clear exactly what triggered their revolt but Karamo has been a crappy manager of the state party’s fundraising and organization.

More than one meeting under Karamo’s reign has resulted in physical altercations between party members.

MIGOP is also flirting with the bottom of its bank account. This past August its state central committee voted to assess party delegates a registration fee.

Big money donors have been thin on the ground; the Trumper who ran for state attorney general, Matt DePerno, bad mouthed them calling them “sore losers” though the big money was not happy pitching money toward an organization still in Trump’s thrall.

You’ll recall DePerno, who ran unsuccessfully for state attorney general in 2022, was investigated and indicted on four charges: undue possession of a voting machine, conspiracy to commit undue possession of a voting machine, conspiracy to commit unauthorized access to a computer or computer system and willfully damaging a voting machine in rural Roscommon, Barry and Missaukee counties.

The incredibly stupid and obvious fact – I cannot emphasize this enough, STUPID and OBVIOUS – about these three counties is that they are hard core GOP. They would not have flipped for Biden and didn’t in 2020, with Missaukee voting 76% and the other two counties hitting the mid-60 percentile for Trump.

Gee, I can’t understand why big donors aren’t throwing money at the MIGOP these days when they have such geniuses representing the party.

Somebody somewhere IS throwing money at defeating a Democrat in this state — like whoever is financing the PAC America Rising. They just aren’t donating to the MIGOP and they’re looking at something other than races in 2024 when they’re funding opposition research to spy on Governor Gretchen Whitmer who is now term limited after winning re-election in 2022.

Why don’t the donors funding a spy – willing to climb a slope approaching the governor’s summer residence this year, risking arrest to obtain photos of the governor and possible guests – doing this through the MIGOP?

~ 1 ~

Lack of personal and party discipline.

Lack of smarts, leadership, and management skills.

That’s the GOP today, as the state party apparatus has demonstrated in Florida and Michigan.

Texas doesn’t want to be left out, though. The Texas GOP is unable to give the heave-ho to Nazis.

You’d think Elon Musk was the TX-GOP party chair given the welcome mat they’ve left out for white supremacist Nick Fuentes.

The TX-GOP party chair Matt Rinaldi is directly involved as he was photographed entering Pale Horse Strategies, a far-right political consulting firm on October 6, as were the consulting firm’s president and other noted far-right political figures.

And of course the party apparatus handled the situation poorly, putting the entire state party on record as being anti-Semitic:

Two months after a prominent conservative activist and fundraiser was caught hosting white supremacist Nick Fuentes, leaders of the Republican Party of Texas have voted against barring the party from associating with known Nazi sympathizers and Holocaust deniers.

In a 32-29 vote on Saturday, members of the Texas GOP’s executive committee stripped a pro-Israel resolution of a clause that would have included the ban. In a separate move that stunned some members, roughly half of the board also tried to prevent a record of their vote from being kept.

Big donors may have a problem with this situation; billionaire Tim Dunn called it a “serious blunder,” which may pan out in the form of rejiggered donations bypassing the TX-GOP and going instead to other groups or to candidates.

But you can bet some news outlet will point out how the failings of the state GOP parties in these three states — which combined represent 85 electoral votes in the 2024 election — are somehow bad news for Joe Biden, and not the brilliant opportunities they represent for Democrats.

~ 0 ~

This is an open thread. Let’s fucking go!

Gary Shapley’s “Red Line” Tantrum Actually Started Two Weeks Earlier

Days before an October 7, 2022 meeting at which, Gary Shapley has claimed for months, his “red line” was crossed, the thing he has used to excuse months of leaking as “whistleblowing,” he scripted the things — including a demand for a Special Counsel to make the decision that David Weiss announced having made in the meeting — that Shapley claimed to record in real time at the meeting.

Indeed, the documents House Ways and Means released last month purporting to support their complaints about the Hunter Biden prosecution show that Shapley’s tantrum had been going on for weeks and had started in significant part because the charges he was demanding wouldn’t be rolled out in advance of the 2022 election.

It has already been established that no other attendee at the October 7, 2022 meeting has backed Gary Shapley’s version of that meeting. No other attendee remembered David Weiss conveying that he didn’t have the authority to make this charging decision regarding Hunter Biden on his own. Most attendees have charitably explained that Shapley didn’t understand what he was hearing, particularly with regards to Special Attorney versus Special Counsel status. In his testimony to the House Judiciary Committee, Matthew Graves attributed Shapley’s claims to, “the garble that can happen when you layer hearsay on top of hearsay on top of hearsay. And when you look at a lot of this, it’s someone said that someone said that someone said.”

Even just Shapley’s own notes undermine his claim. As I have noted, between his hand-written contemporaneous notes and his emailed memorialization, Shapley reordered how things happened at the meeting, moving the reasons Weiss gave on October 7 for why he wouldn’t charge 2014 and 2015 — the charges against Hunter Biden that would have to be charged in DC — after Shapley’s own claim that David Weiss didn’t have the authority to make that prosecutorial decision.

Per his contemporaneous notes, the first thing discussed after the discussion about the leak was Weiss’ rationale for not charging 2014 and 2015, the two more substantive years that would have to be charged in DC. Once you’ve explained that, then whether or not Weiss got Special Attorney status for DC is significantly moot (2016 was only ever treated as a misdemeanor).

In his email to his boss, though, Shapley moved that discussion to after his argument, covering the DC charges, the LA charges, and the involvement of DOJ Tax Attorney, that Weiss didn’t have authority to charge. If Weiss had already explained his prosecutorial decision about the most problematic Burisma years — something Shapley’s hand-written notes record him has having done — then none of the other complaints about these years (that Weiss or Lesley Wolf let the Statutes of Limitation expire, that Weiss didn’t get Special Attorney authority in DC) matter. Shapely reorders his notes to hide the fact that the DC decision didn’t matter.

Shapley’s hand-written notes record Weiss sharing a prosecutorial decision — not to charge the 2014 and 2015 tax years. By making a decision not to charge in DC, Weiss was exercising the prosecutorial authority Shapley claimed Weiss said he didn’t have. Once you describe Weiss making a prosecutorial decision, then any claim that he didn’t have prosecutorial authority crumbles.

It crumbles even more given a few other details.

Shapley’s retroactive memorialization of the October 7, 2022 expresses great fury over Weiss’ decision not to charge the 2014 and 2015 years, as well as the delay of charges until after the election.

But Shapley learned of this weeks and even months earlier. 

On July 29, for example, Joseph Ziegler asked Lesley Wolf about timing. Per Shapley’s own memorialization, she said Weiss was aiming to indict before the end of September, but Wolf herself expressed doubt that would happen. That comment on timing, coupled with her stated disinclination to toll the 2014 tax year, was a pretty solid indication that she was disinclined to charge 2014.


Any dates or goals?


David has indicated that the end of September would be his goal to charge. The is reflective of keeping everything on track. They do not want to get any closer to a mid-term. If doesn’t happen by end of September it would have to wait until November after the elections. She stated she does not think that is likely to by charged by September.

Sol on 2014 blows on November 8, 2022.

X Factor on timing will include any delay defense counsel has requested and that they would be amenable to toll statutes. She is not leaning toward tolling again…but it is possible.

Current plan is that the prosecution recommendation will be collaborative with DOJ Tax and USAO.


They will communicate any decisions on specific tax years and decision to charge or not charge to the prosecution team in advance of any final document. [my emphasis]

On August 16, the IRS investigators had a meeting with David Weiss, one that Wolf happily arranged on August 8. Because Wolf and other DOJ personnel could’t attend, that would be a second meeting the IRS had with David Weiss alone.

On August 11, DOJ Tax tried to set up a meeting for the following day, an invitation which Ziegler accepted; Shapley was not invited. There’s no memorialization of this meeting, at which DOJ Tax probably explained why it viewed the 2014/2015 tax years as weaker charges.

On August 15, in advance of the meeting with Weiss, Shapley reminded  Darrell Waldon and Michael Batdorf about the forthcoming meeting with Weiss. Only Michael Batdorf, the second-level supervisor who testified that Shapley had a habit of, “a tendency to go to level like grade 7 five-alarm fire on everything,” responded. Shapley’s August 17 memorialization of the August 16 meeting, shared with those supervisors again, showed that Weiss was “leaning” towards only charging the CA charges, 2017 to 2019. Shapley recorded Weiss aiming to charge by the end of September, but said himself it’d be “October/November” (even though, in July, Wolf had said that if it wasn’t charged by September, it would be after November).

Here’s what Shapley said about 2014 and 2015 in that email:

We again pushed back on not charging 2014/2015. DOJ Tax continues the position that the defenses (load/taxes paid by another person on half the income) would make it too complex for the jury. I believe their position is unsupportable–both considering precedent and evidence. I made it clear that not only do we disagree with that position but that we could provide countless prosecution recommendations that included diverted income to nominees and various loan claims to support our position. The USA agrees with us but then talks to DOJ Tax and they convince him otherwise. This has happened a couple times. As a result, we will continue to communicate our position to ensure this moves forward consistent with how other tax cases would be treated with similar fact patterns.

I explained that 2014 is not charged how it would severely diminish of the overall conduct and would essentially sanitize some major issues to include the Burisma/Ukraine unreported income. I also explained that if 2014 is not charged and/or included in a statement of facts in a guilty plea, that the unreported income from Burisma that year would go untaxed. I believe leaving out 2014/2015 would deliver a message that is contrary to IRS’s efforts to promote voluntary compliance. [my emphasis]

Some of this is about getting taxes paid — the explanation Shapley would repeat in his memorialization of the October 7 meeting. But some of it is about tying Hunter’s tax crimes to Burisma.

Once again, Batdorf was the only who responded. He said he would escalate Shapley’s concerns still further, so the Chief and Deputy Chief of IRS could “at least show full support for the 2014/2015 years.” In Waldon’s testimony, he expressed being surprised at the October 7 meeting, because “I was not fully aware of a decision regarding some of the investigative years,” (49) a view that may stem from Shapley’s efforts in August to reverse this decision.

On August 18, Mark Daly from DOJ tax sent the investigative team (but not Shapley) an email that seems consistent with presenting to grand juries in both Delaware and Los Angeles in September — but not DC, once again consistent with a decision not to charge 2014 and 2015. Of note: this email was saved on June 27 of this year, before Ziegler and Shapley testified to the Oversight Committee on July 19 and Ziegler offered to go back to find more materials. Ziegler appears to have already taken steps to share information that he feigned was just a response to Congressional inquiries.

Shapley appears to have memorialized an August 25 email from Lesley Wolf asking a newly added FBI agent, along with Ziegler and Mark Daly, not to use email to coordinate between meetings. Shapley wasn’t a recipient of this particular email. It’s an example of the double set of books Shapley confessed to in his original deposition.

On September 20, 2022, over a week before the interview of James Biden (Hunter’s uncle and sometime business partner and Joe’s brother) and the day after Martin Estrada was confirmed as US Attorney for Los Angeles, Shapley emailed Weiss, cc’ing no one else, asking for a call in the following two days. The next day, September 21 at 1:23PM, Weiss said he would set up a meeting “in the near term,” including IRS and FBI, to provide an update. This email thread, which Shapley would pick up over a month later, would become the one where Shapley’s paranoia about Weiss cutting off communication with Shapley first expressed. As we’ll see, this Shapley request to Weiss was also the ultimate genesis of the October 7 meeting.

Just over two hours after Weiss promised an update shortly on September 21, Shawn Weede, Weiss’ Criminal Chief, wrote to set up the meeting Weiss had promised, proposing the meeting for September 28 (still one day before the interview of James Biden). Shapley responded 22 minutes later, noting that he would be in the Netherlands on the day of the proposed meeting, but would be willing to call in.

The next day, at 11:15AM, Weede wrote back to say a “sanitized” meeting was unworkable, and so proposed the meeting for the week of October 3, after Shapley got back.

Also on September 22, Shapley memorialized a meeting that started at 2:30PM noting that Lesley Wolf and DOJ Tax’s Mark Daly joined the meeting late, but without documenting anyone else who attended. The memorialization was closely focused on briefings of Estrada’s office on the case (though Shapley refers to Estrada as “her”). It also clearly records DOJ tax still conducting their review, as well as a decision not to charge either the gun charge and/or anything else until after the election — precisely the eventuality that Wolf had warned would happen almost two months earlier.

Gun charge will likely not be indicted in October.


USAO and DOJ Tax made the decision not to charge until after the election. They said why should they shoot themselves in the foot by charging before.

Within an hour after the start of the call, Shapley was going ballistic about precisely that eventuality. Starting at 3:34PM, Shapley alerted Batdorf — but not his immediate supervisor, Waldon,

Big news on Sportsman. Joe Ziegler and I need to speak with you as soon as possible.

In a follow-up, Shapley explained that the “bad news” he had was precisely what he had been warned about in July, that the charges would be delayed until after the election.

Bad news. Continued inappropriate decisions affecting timing. i.e. Election. We can talk later if you are busy….I believe their actions are simply wrong and this is a huge risk to us right now.

Note: There was no risk to the IRS of delay after the election. It would mean the 2014 charges would toll (unless Hunter’s lawyers agreed to waive tolling, as they had before), but that’s another thing Shapley was warned about. A significant part of Shapley’s tantrum seems to stem from a personalized concern that charges would not come out before the election.

Batdorf ended the exchange by instructing, “Please ensure your ASAC and SAC are updated as well.”

Shapley did that, but not until almost two hours later, in a 5:28PM email to Darrell Waldon (his ASAC), Lola Watson (his SAC), and Michael Batdorf. Without noting that he had already bypassed chain of command, Shapley complained,

During todays SM call there was some information provided to the team concerning decisions made by the USAO and DOJ that need to be discussed. For example, the AUSA stated that they made a decision not to charge until after the election. In itself, the statement is inappropriate let alone the actual action of delaying as a result of the election. There are other items that should also be discussed that are equally inappropriate.

None of those other items “that should be discussed” were obviously reflected in his memorialization of that call.

At least on paper, this tantrum, made two weeks before a pre-election leak to the WaPo, was about something he had been warned of in July, not news at all, but one tied — explicitly in his mind — to the election, not timing per se.

Side note: Unlike Ziegler’s, many of the documents Shapley shared are stripped of all metadata. Not this email, though. This email — which he shared twice (Attachment 5, Attachment 24) — both reflect a creation date of September 20 (this is European notation), over eight hours apart, with the second reflecting Tristan Leavitt as document author.

That would mean these documents were saved after Darrell Waldon (September 8) and Michael Batdorf (September 12) testified. There’s good reason to believe these documents were chosen with some knowledge of the IRS supervisors’ testimony.

To make it plain: For months, Gary Shapley claimed that his red line was crossed on October 7, 2022. But the emails he himself turned over show that’s not true. His red line was crossed on September 22, 2022, and the red line had a lot to do with making charges public in advance of the election.

Importantly, that means his red line was crossed before the leak to the WaPo, not afterwards.

The day after Shapley’s tantrum started — which no one at DE USAO or FBI would have known about — the FBI ASAC seconded the plan to wait until Shapley returned before holding the meeting that would become the October 7 one, noting that then Weiss could be present.

Meanwhile, on September 28, Waldon emailed Ziegler and all the other people Shapley had involved in his tantrum, noting that he was trying to arrange a meeting with Weiss and Poole. Ziegler responded to everyone, on the morning of September 29, promising any update from prosecutors in CA. Waldon responded asking Ziegler to call him. And Ziegler responded, suggesting they should do a pitch on the 2014 and 2015 years to DC prosecutors: “we also need to request the presentation of 2014 and 2015 to the criminal chief / US attorney in DC – similar to what we would do in California for 2017 2018 and 2019.” Again: Waldon seems to have been surprised when, at the October 7 meeting, Weiss announced that the decision had been made.

That was at 11:11AM on September 29. At 2:25PM, Ziegler went into the interview with James Biden, Hunter’s uncle. Lesley Wolf and two other prosecutors who, like Ziegler, would not be at the October 7 meeting, also participated in the interview. The interview focused largely on the 2017 to 2019 years (though also asked questions that might reflect a campaign finance investigation into Kevin Morris), but which Ziegler now points to as critical testimony supporting his argument for felony charges in 2018. Shapley was already a week into a tantrum about charges not being filed before the election before this interview.

Seven minutes after the James Biden interviewed finished — based on public records, at least, the last major investigative step in the investigation, Weede proposed and the ASAC confirmed a meeting for October 7 at 11AM. The FBI ASAC confirmed as well. Then the next day, a Friday, the ASAC followed up to confirm once again, management and investigators would be present. She followed up again at end of day Monday, October 3, confirming she and her boss, Thomas Sobocinski would attend. Weede confirmed. The ASAC touched base once again on Tuesday morning.

Only at that point, on October 4 — with no record in the thread that Shapley had told his own boss, Waldon, that this meeting was in the works, did he respond to the ASAC alone, asking for her top three items “so we can be on the same page.”

His own list might was effectively a first draft of the things he would record as having happened in notes and a memorialization email days later: Special Counsel, the delay until after the election, and venue.

At 2:26PM, WaPo posted the story that preempted prosecutors’ decision to wait until after the election before charging — the decision Shapley first learned of in July but staged a tantrum about more recently.

At 4:34, the ASAC responded, asking if Shapley’s ASAC (Waldon) would attend, and describing her own agenda as:

  • Delays
  • Venue
  • Communication
  • Anything further that develops by tomorrow

Of course: that “anything further that develops” had already developed: the story in the WaPo.

Shapley responded a minute later, saying, he had just tried to call her, but that yes, both Shapley and his SAC would attend.

Nine minutes after that exchange occurred with no mention of the WaPo story, Shapley informed his bosses about it.

Just an FYI that there was a media leak today purportedly from the “agent” level on Sportsman. I imagine it will be a topic of discussion at tomorrows meeting in Delaware. I spoke with Justin Cole about this to provide anything he may need.

I have no additional insight that is anything but a rumor.

Federal agents see chargeable tax, gun-purchase case against Hunter Biden –

Just keeping you informed.

[Link to original WaPo story, but note that Shapley shared an Espotting link]

As I’ve noted, Shapley’s reference to rumors is inconsistent with his past statements about the leak.

As all that was going on, the other DE AUSA besides Wolf, Carly Hudson, wrote Ziegler at 10:07AM on October 6, asking him what he was supposed to remind her about — something he heard immediately after the James Biden interview on September 29.

David asked me to remind him what you [s]aid “regarding the call you received from management after the James Biden meeting.”  I’m not 100% sure what he means.  Would you mind reminding me about that call so I can remind him?

Ziegler didn’t respond until 6:51PM, well after the WaPo had published the story. Ziegler explained that IRS management had been informed that DOJ Tax didn’t anticipate charging until 2023; they weren’t done with the approval process.

They heard from DOJ-Tax that they don’t expect the case to be indicted until 2023 as they still have various levels of approval. I think this is what you are asking about.

There’s no documentary record of it, but it would be inconceivable that Ziegler hadn’t shared this with Shapley when he heard it, on September 29. Which is to say that Shapley knew there were reasons — beyond the fact that James Biden wasn’t interviewed until September 29 and beyond the election — why Hunter wasn’t going to be charged until after the election.

Nevertheless, going into a meeting he would much later pitch as his “red line,” a meeting that ended up significantly focused on a pre-election leak promising charges, Shapley would claim the election was what was causing the delay.

Face-Eating Leopards Shocked to Find Leopards in Their Casino

Apparently, it wasn’t obvious to Republicans the problem with nominating a guy who had never passed a bill as their Speaker.

Apparently, it wasn’t obvious to Republicans the problem with nominating a guy who has scant fundraising, so few carrots to offer in exchange for votes, to say nothing of his inclination to deny the existence of carrots as soon as he offers them.

Apparently, it wasn’t obvious to Republicans the problem with nominating someone who elicits death threats as a means of exercising power.

Politico has a delicious article describing how Jim Jordan’s efforts to win the Speaker’s gavel through sticks and more sticks has backfired.

Jim Jordan’s allies attempted to badger House Republicans into making him speaker. Those tactics backfired on Tuesday, and could soon doom his speakership push outright.

The Ohio Republican’s most vocal GOP defectors during Tuesday’s failed speaker vote said they were pressured to back Jordan by party bosses back home and national conservatives with big megaphones. Most of those skeptics viewed it as a coordinated push with a threatening theme: Vote for Jordan — or else.


“Jim’s been nice, one-on-one, but his broader team has been playing hardball,” Rep. Don Bacon (R-Neb.) told POLITICO about Jordan’s network of supporters, adding that he’s been getting calls from party chairs back in Nebraska. He added that his wife even received multiple anonymous emails and texts saying: “your husband better support Jim Jordan.”


Rep. Carlos Gimenez (R-Fla.), who voted against Jordan on Tuesday despite outreach on Sunday, vowed after the first ballot on Tuesday that he wasn’t switching his position — ”especially now, in the light of these pressure tactics.”

”He supposedly said ‘stand down’ and they haven’t stood down. Leaders are followed,” Gimenez said, lamenting that ”some friends of mine [are] actually believing” conservative claims that he’s prepared to vote for a Democratic speaker.

Another Floridian who also opposed Jordan was more blunt: “The one thing that will never work with me — if you try to pressure me, if you try to threaten me, then I shut off,” GOP Rep. Mario Díaz-Balart said.

One of those Jordan-friendly commentators on the right, Benny Johnson, spent the day of the speaker’s race singling out Jordan’s possible opponents. In a move that is likely to further rankle already wary Republicans, Fox News host Sean Hannity’s staff posted a list of the 20 Republicans who didn’t vote for Jordan along with their office phone numbers.

“He’s lost support because of this,” said another House Republican who was granted anonymity to discuss internal conversations, pointing to a barrage of complaints from GOP lawmakers about Jordan allies’ tactics. “Constant smears — it’s just dishonesty at its core.”

There’s not a single one of these Republicans who hasn’t benefitted from decades of similar smear campaigns from Fox News — including the very same ferocity cultivated by Sean Hannity (who yesterday claimed his bullying was mere “straight news coverage“). Almost all grew inured, then resigned, then welcomed Trump similar tactics over the last 8 years.

And those very same Republicans are deluding themselves if they believe, as Politico describes, that “Jordan has publicly avoided” this kind of “strong-arming” in recent years. He has, instead, been targeting it at people who are just as innocent of the smears as Gimenez is — people like FBI agent Tim Thibault, who was targeted as “Public Enemy #1” for a year even after busting two Democratic members of Congress and twice approving the use of partisan propagandist Peter Schweizer as an FBI source, but people who were useful targets to froth up the base. Jordan has targeted such campaigns at government itself, focusing especially on rule of law.

There’s no telling how this will end up — whether, as Politico suggests, it’ll result in an agreement to make Patrick McHenry a caretaker as Republicans try to mend their ways or whether Jordan will somehow pull this out.

But just like serial loser Donald Trump, few Republicans aside from Ken Buck will come to the conclusion that tactics designed to destroy government will eventually destroy your own governance.

As Jordan Goes Down, Nancy Pelosi Mocks Republican Men Who Can’t Count

Jim Jordan just did worse on the first round of voting than Kevin McCarthy did in January: 200 votes compared to Hakeem Jeffries’ 212.

Jeffries has, by my count, now gotten the most votes to be Speaker in a dozen votes this year.

I’m mostly posting this as an open thread. But I have to say I was gleeful that minutes after I wished someone would interview Nancy Pelosi about how Republican boys can’t count, she said,

“I feel sad for the institution. I think it’s sad that they’re getting worse and worse.”

“They should take a lesson in mathematics and learn how to count.”

Update: Jordan has delayed a revote until tomorrow at 11.

George Santos’ Other Shoe

Back on September 12, I noted that EDNY seemed to have a plan in place such that George Santos might be considering a plea even as the drama in the GOP House caucus played out.

Which is to say that Big Kev may lose the deciding vote that made him Speaker even before discussions of impeachment and shutdowns are resolved.

Santos’ vote was not enough to save Kevin McCarthy on October 3 (though McCarthy seems unconvinced he’s done, so Santos might yet have another chance to provide McCarthy a deciding vote). And he was in the fractious House meeting when EDNY rolled out a superseding indictment. Santos will vote for someone today, but it’s unclear that’ll result in the election of a Speaker.

The superseding indictment should have come as no surprise. It adds two schemes to the charges in his original indictment. One was mapped out in the criminal information to which Santos’ campaign treasurer Nancy Marks pled guilty last week: in order to qualify for the NRCC program, he and Marks allegedly falsely claimed family members had supported his campaign. For that scheme, EDNY indicted Santos with:

  • Conspiracy to defraud the US (the single charge to which Marks pled guilty) [count one]
  • Two counts of wire fraud for each false FEC report [counts two and three]
  • False statements and falsification charges for the 2021 FEC report claiming the donations [counts four and five]
  • Identity theft tied to misuse of the identities of 11 donors [count six]
  • False statements and falsification charges for the 2022 FEC report claiming Santos had given himself a $500,000 loan [count seven and eight]

In addition, Santos is charged with access device fraud and identity theft [counts nine and ten] falsely using someone else’s credit card to make donations to himself. Specifically, Santos is accused of making a $12,000 payment on August 1, 2021 to a company associated with Santos, most of which Santos then pocketed.

All those charges were larded onto the other counts originally charged in May.

Even with the ten new counts, Santos may not be done.

The credit card fraud counts — two right now — remain fairly amorphous. While Santos is alleged to have attempted to make numerous credit card payments, only that one on August 1, 2021 is enumerated.

And there’s nothing in the indictment specifically tied to Sam Miele, Santos’ finance guy who was indicted on August 15 for impersonating a key McCarthy staffer. Miele’s case was continued in September to last Friday; time was excluded last week until today (extending past yesterday’s grand jury meeting); and yesterday EDNY asked for another month-long continuance, to November 14. Miele hasn’t, apparently, availed himself of the kind of no cooperation plea deal that Nancy Marks entered into last week. But EDNY seems to think he might, on short order.

As it is, Republicans are likely to face a two week window between the time former Rhode Island Congressperson David Cicilline is replaced on November 7, probably by Democrat Gabe Amo, and the time former Utah Congressperson Christ Stewart is replaced on November 21, probably by Republican Celeste Maloy, in which their margin will shrink by one. But EDNY is increasing the heat on George Santos.

And it seems like there’s likely still another shoe yet to drop there.

Update: Roger Sollenberger reported before the superceding indictment came out yesterday that ultimately there was $500,000 that ultimately back-filled the bullshit financial loan Santos made to his campaign. But it’s not clear, yet, whence it came.

Big Kev Belittled

I just realized I’ve been so entranced by the shitshow Matt Gaetz created in the House I forgot to create a space where we could all laugh about it.

Kevin McCarthy has been removed as Speaker, with 8 Republicans voting to oust him. Patrick McHenry holds the gavel until someone figures out what comes next.

In the Senate as this was all going down, Democrats were making history as Laphonza Butler was sworn in to replace Dianne Feinstein.

In New York, Trump was slapped with his first (limited) gag order after he targeted the First Clerk of Judge Arthur Engoron.

As Tea Partiers were eating Kevin McCarthy’s face, Joe Biden rolled out Medicare drug price negotiations on ten key drugs.

Jury selection started in the Sam Bankman-Fried case.

The Fifth Circuit enjoined the Cybersecurity Information Security Agency from speaking with social media companies.

And somewhere way down the list of newsworthy events, Hunter Biden pled not-guilty.

Gary Shapley’s Notes Show That Gary Shapley Misrepresented David Weiss

When Gary Shapley wrote down what was said about charging Hunter Biden with tax crimes in California at a contested meeting on October 7, 2022, he quoted Weiss as saying that if the US Attorney declined to prosecute, Weiss, “will request approval to proceed in CA” [my emphasis].

When Shapley relayed what happened in the meeting to his boss around six hours later, he described that Weiss “would have to request permission,” [my emphasis] even while admitting he was “unclear” on what Weiss said about where he’d get that permission.

Shapley’s lawyers shared these handwritten notes, over three months into his media tour with the right wing congressional set, because they think the fact that Shapley wrote down his understanding that Weiss said, “he is not the deciding person” [the latter part of which is redacted in the hand-written notes], that they disprove the testimony of others at the meeting.

The Special Agent in Charge, Thomas Sobocinski, said that both before and after the meeting, he understood Weiss to be the final decision-maker.

But this discrepancy later in his notes — Shapley’s replacement of “will” with “would have to,” his replacement of “approval” with “permission” — instead reveals that Shapley misunderstood what was said in the meeting, and then misrepresented what happened both that same day, with his supervisor, and ever since, with dumb right wingers in Congress.

To be sure, both versions are consistent with what David Weiss and Merrick Garland have been saying all along — including to Jim Jordan in June and to Lindsey Graham in July: that if Weiss decided to bring charges outside Delaware and the local US Attorneys didn’t want to partner on the case, he could ask for Special Attorney authority under 28 USC 515 and Garland would grant it. Both versions are consistent with the process Weiss has laid out. You ask the local US Attorney, and if they say no, you get Special Attorney authority.

But in the notes Shapley took in the meeting, he recorded Weiss committing to taking the steps to charge the later tax years — the ones that had to be charged in Los Angeles, two of the three years that were part of the plea deal. In his email to his supervisor, Shapley transformed that into his panic that, “this case could end up without any charges,” [emphasis and panic Shapley’s], something that was sharply at odds with the commitment Shapley had recorded Weiss making in the meeting — will — to follow the process necessary to charge the case. Plus, Weiss’ description of seeking “approval” rather than “permission” substantially disproves Shapley’s claim that anything said at the meeting was “inconsistent with DOJ public position and Merrick Garland testimony.” Shapley had to reword what he originally recorded Weiss as saying to support that claim.

That he did so — that he rewrote his own notes to match his belief, and then shared the rewritten version rather than the original with Congress — damages his credibility rather than backing it.

To be sure, neither set of notes is reliable.

For example, there is at least one thing missing from Shapley’s hand-written notes that he records in the email to his boss: the substance of his objection to David Weiss’ decision not to charge the 2014 and 2015 tax years.

I stated for the record, that I did not concur with that decision and put on the record that IRS will have a lot of risk associated with this decision that there is still a large amount of unreported income in that year from Burisma that we have no mechanism to recover.

Shapley’s claim may not be (or may no longer be) true: at the plea hearing, AUSA Leo Wise stated that there was no restitution owed. But I have no doubt Shapley did make this objection. If he didn’t record making a statement he thought to be that important, then, what else did Shapley say that he didn’t write down?

More importantly, what did Shapley not say that he didn’t record?

There’s nothing unredacted in Shapley’s notes recording Sobocinski’s question — which Shapley included in his email to his boss — about whether there was any problem on the case with politicization.

FBI SAC asked the room if anyone thought the case had been politicized — we can discuss this [if] you prefer.

That’s important because, at least per Sobocinski’s interview with the Committee, no one raised concerns about politicization at the meeting. “I was asking in a room of leaders on this case to say, ‘Hey, we are working together. We’re moving this thing
forward. Do you think there’s any manipulation from the outside that’s stopping us from what we’re doing?'” Sobocinski told the House Judiciary Committee about the question. And, at least per Sobocinski’s representation, “nobody in that room raised their voice to say anything other.”

So unless the redacted lines at the end of Shapley’s notes record Shapley providing some kind of affirmative answer, then there’s no evidence he took the opportunity to express the wild claims of politicization he was making contemporaneously, but he also didn’t record himself passing up that opportunity. At least per Sobocinski’s memory, the SAC gave him an opportunity to air those concerns and he didn’t take it, an opportunity that might have elicited a very simple explanation about what Shapely was misunderstanding about how the Special Attorney process worked and might have saved us from all the theatricality that threatens all charges against Hunter Biden now.

Indeed, whether or not Shapley said anything in response to Sobocinski’s question, the most suspect part of his email to his boss was an offer to discuss politicization in person: “we can discuss this [if] you prefer.” Both these documents are designed to provide for accountability, but Shapley appears to have declined to write down anywhere what his claims about politicization were, which would have made him accountable to his claims just like he wants to hold Weiss accountable for what he understood him to say.

Shapley reorganized his notes between the hand-written ones and the email in a way that changes their meaning, too.

Per his contemporaneous notes, the first thing discussed after the discussion about the leak was Weiss’ rationale for not charging 2014 and 2015, the two more substantive years that would have to be charged in DC. Once you’ve explained that, then whether or not Weiss got Special Attorney status for DC is significantly moot (2016 was only ever treated as a misdemeanor).

In his email to his boss, though, Shapley moved that discussion to after his argument, covering the DC charges, the LA charges, and the involvement of DOJ Tax Attorney, that Weiss didn’t have authority to charge. If Weiss had already explained his prosecutorial decision about the most problematic Burisma years — something Shapley’s hand-written notes record him has having done — then none of the other complaints about these years (that Weiss or Lesley Wolf let the Statutes of Limitation expire, that Weiss didn’t get Special Attorney authority in DC) matter. Shapely reorders his notes to hide the fact that the DC decision didn’t matter.

The LA decision mattered — the one about which Shapley originally recorded Weiss saying he “will” pursue Special Attorney authority if need be. The DC decision did not.

Just as important a problem for Shapley’s credibility is that for more than three months, Shapley has been claiming the email was his best record of the meeting, without distinguishing what parts of the email were his editorial statements and what parts a record of the meeting. That parts of the email reflected him editorializing should have been clear to anyone smarter than Jim Jordan; Shapley’s use of “I believe” and “in my opinion” are a big tip-off.

But it’s clear that Republicans have nevertheless treated the email, and all its bullet points, as a record of the meeting. That’s most problematic with the way Shapley recorded his understanding that Weiss had asked for permission to file in DC, permission which hadn’t been granted.

Staffers in Congress have been quizzing meeting attendees about things Shapley included in his email, without making clear they were background and not contemporaneous notes. One example that relates to the way Shapley packaged up his notes, at several points Steve Castor quizzed Sobocinski about whether he, “remember[ed] anything in that meeting about the fact that D.C. had declined to bring a case?” Sobocinski didn’t remember that — but likely for good reason. Shapley doesn’t record it as having happened, at all, in this meeting (and Sobocinski did not entirely back Shapley’s claim that that is what did happen). All Shapley recorded in his hand-written notes is that when Weiss asked for Special Attorney status (which Shapley lists as Special Counsel), DOJ — not Matthew Graves — told him to follow the process, which requires first asking if the US Attorney wants to partner on the case.

Even in these hand-written notes, this comment may have been editorializing; after all, Shapley records it after Weiss had already delivered his decision not to charge 2014 and 2015. But his hand-written notes definitely don’t reflect anyone saying that Graves had refused to partner on the case at the meeting.

In Sobocinski’s interview, he talked about how Shapley’s little media tour has created more challenges to actually charge this case, including threats against team members, particularly Lesley Wolf. There is nothing that Shapley has released publicly that helps the case and a great deal that will give Abbe Lowell more ammunition to demonstrate that the people pushing for tax charges against his client were going nuts because they weren’t allowed to violate rules on Sensitive Investigative Matters and because they didn’t understand bureaucratic process.

This is yet another example: Gary Shapley provided his editorialized version of a meeting that, he claims, was his red line to Congress and only months later did he share the underlying notes. Not only do the notes show he misrepresented what Weiss said about Los Angeles, but they raise yet more questions about Shapley’s equivocations about a leak that happened to coincide with a red line that isn’t entirely backed by his own notes. The motivated inconsistencies in the notes are the kind of thing defense attorneys use to discredit entire investigative teams, and Shapley has simply offered it up.

At this rate, Shapley’s media tour will be singularly responsible for making it impossible for Weiss to do the one thing Shapley claimed had to happen: charges against Hunter Biden.

Gary Shapley’s Notes Recorded Something He Claimed Not to Know before House Ways and Means

In his House Ways and Means Committee testimony, when Gary Shapley was first asked about the discussion of leaks in the October 7, 2022 meeting at which — he claims he understood (though his notes make it quite clear he didn’t understand what he was hearing) — David Weiss said he was not the final decision-maker for charging Hunter Biden, Shapley professed not to know what outlet published the leaked information.

Q In No. 1 on this email you prepared, says: “Discussion about the agent leak — requested the sphere stay as small as possible…DOJ IG will be notified. FBI — HQ is notified.”

What was the specific leak?

A So there was a leak, I’m not sure what outlet, on October 6th of 2022 — it appeared to come from the agent’s level, who was critical of the prosecutors for not charging the case.

Q Okay. Talking about the Hunter Biden case?

A Yes, not charging the Hunter Biden case.

So, obviously that was part of the discussion at the beginning. And there have been multiple leaks in this case going back, and this one was handled a lot differently because I guess it was purportedly from the agent’s level.

So this drastic — you know, they used that as an excuse to kind of — to do what they were doing. [my emphasis]

It was an interesting claim — not to know what outlet published the leaked information — then.

It’s a more interesting claim now that his attorneys have released hand-written notes that are, in key respects, inconsistent with the notes he emailed to his colleague later that day (which I’ll lay out in more depth shortly). Those notes make it quite clear the leak was to the WaPo.

He didn’t include that detail — that the WaPo had identified the source as Agents — in his email to his supervisor later that day.

His handwritten notes don’t describe that there will be a criminal referral of the leak, either.

It’s unclear what the last line of his notes on the leak said (“WBers,” suggesting whistleblowers?).

But the important discrepancy is that Shapley told House Ways and Means he didn’t know something he clearly had recorded in hand-written notes he chose not to share with the Committee.

And that’s not the only oddity about Shapley’s testimony about the leak.

I have already noted that while the email he wrote suggests Darrell Waldon would make a referral to TIGTA, in his Oversight testimony, Shapley claimed he had done so. That’s weird, but it’s certainly possible both referred the leak or that Shapley rushed to do it before Waldon did.

And — also at that Oversight hearing — Shapley spun wildly about whether the leak was from Agents or not, with his attorneys saying something to him both times it came up.

Goldman: So it’s pretty clear, you would agree, that this was a leak to the Washington Post by law enforcement agents since it describes what Federal agents believe, right?

Shapley: So it wasn’t actually clear to me that it was because usually they’ll say that it’s a law enforcement source that provided it, and if you see at the bottom it says they corroborated independently and they did not mention law enforcement. [Shapley’s attorney leans over to whisper to him]

Goldman: You don’t think it’s a Federal agent, agents, who leaked this when the headline says, Federal agents see chargeable tax gun purchase case against Hunter Biden? [my emphasis]

Shapley remained squirrely about whether this was a leak from an agent or not later in the same hearing.

Goldman: Gentlemen, I want to return to the Washington Post October 6 article and I’d ask unanimous consent to enter it into the record. In your testimony, Mr. Shapley, before the Ways and Means Committee, you stated, quote, there was a leak, it appeared to come from the agents level, who was critical of the prosecutors for not charging the case. What you testified earlier was a little different. Which one do you stand by today?


Shapley: I’m sorry, could you repeat that?

Goldman, quoting: “There was a leak, it appeared to come from the agents level, who was critical of the prosecutors for not charging the case.”

Shapley: Yeah, I said it appeared, because I said it came from the agents’ level, but the source was a source familiar with the topic and it didn’t say it was a law enforcement source.

Goldman: Okay, that seems to be a distinction without a difference. And then, you understand that, obviously leaks of grand jury information is a felony, right?

Shapley: Leaking investigative information including 6103 would be a felony, yes.

Goldman: Well that’s true as well. So would you agree that there would be some skepticism from prosecutors about which of the agents may be the source of a leak?

Comer: Gentleman’s time is expired but feel free to answer the question.

Shapley: Since there have been multiple leaks in this investigation, and the one on December 8 or December 9, 2020, it appears to come from someone, as Lesley Wolf stated —

Goldman: I was just asking about October 6, 2022.

Shapley: So I

Goldman: It would cause anyone suspicion, right?

Shapley: If it says it comes from an agent level. [His attorney leans over, whispers something.]

Goldman: That’s what you said.

Comer: Gentleman’s time has expired. [my emphasis]

Shapley is really really determined to prove that his impression — that David Weiss said he didn’t have final charging authority — was accurate, but read in conjunction it’s actually clear he simply didn’t know what the fuck he was hearing and made up the most damning explanation.

But along the way, his testimony about the leak itself has acquired more and more inconsistencies.

Most importantly, before House Ways and Means he played dumb about something that he recorded in his own notes: the outlet for the leak.