Gary Shapley’s Goosey Gander: When Investigators Want Treatment They Don’t Accord Others

Update, July 10: In a letter to Lindsey Graham, David Weiss has even more explicitly debunked Gary Shapley’s claims. (Jordain Carney first reported the letter.)

To clarify an apparent misperception and to avoid future confusion, I wish to make one point clear: in this case, I have not requested Special Counsel designation pursuant to 28 CFR § 600 et seq. Rather, I had discussions with Departmental officials regarding potential appointment under 28 U.S.C. § 515, which would have allowed me to file charges in a district outside my own without the partnership of the local U.S. Attorney. I was assured that I would be granted this authority if it proved necessary. And this assurance came months before the October 7, 2022, meeting referenced throughout the whistleblowers’ allegations. In this case, I’ve followed the process outlined in my June 30 letter and have never been denied the authority to bring charges in any jurisdiction.

It was over four-fifths of the way through the interview of purported IRS whistleblower Gary Shapley — at least four hours in, if you include lunch — before the discussion turned to the October 6, 2022 leak about the investigation to Devlin Barrett.

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 to us after this meeting on the 7th, they kind of used that leak as an excuse to exclude us.

The October 7 meeting, at which the leak was agenda item number one, was mentioned during the interview as Shapley’s line in the sand with what he claimed was DOJ misconduct over twenty times before anyone discussed the leak.

The reverse order congressional interview

And so before the actual leak was discussed, Shapley described two different instances where DOJ asked for his emails, as discovery in advance of trial, he described.

The first was in March 2022, the same month as details of the Hunter Biden investigation — including a discussion of the Hunter Biden laptop — appeared in this NYT story.

But, even though he was one of two people who had attempted to interview Hunter Biden in December 2020, Shapley didn’t provide his emails, because — he said — managers’ emails aren’t discoverable to a defendant.

It is common practice for DOJ to ask for the case agents’ communications in discovery, as they might have to testify in court. However, it’s much more unusual to ask for management communications, because it is simply not discoverable.

In March of 2022, DOJ requested of the IRS and FBI all management-level emails and documents on this case. I didn’t produce my emails, but I provided them with my sensitive case reports and memorandums that included contemporaneous documentation of DOJ’s continued unethical conduct. [my emphasis]

Shapley’s discussion of the second request that he turn over his emails appears in conjunction with a discussion of an email he sent in December 2022, which I’ll get to in a sec.

That request for his emails was in October, like the March request, in the same month as a major leak.

[T]his was the culmination of an October 24th communication from Delaware U.S. Attorney’s Office and — well, it was really Lesley Wolf and Mark Daly who called the case agent, [redacted], on the telephone and said, hey, we need — we need Shapley’s emails and his — these sensitive case reports that he’s authored back to May.

And they didn’t ask for discovery for anybody else. They didn’t ask for, from the — mind you, the agents had provided discovery March-April timeframe, so there was 6 months or so of additional discovery, and they’re not asking for that, right? They’re only asking for mine.

So [redacted] sends me an email with Wolf and Daly on it that says, hey, you know, they asked for this, you got to talk to Shapley. I respond, hey, yeah, I’m available 9:15, let’s chat. And she sends that, she forwards my email to Shawn Weede, number [two] — a senior level at Delaware U.S. Attorney’s Office.

And then he contacts me about this discovery, and he’s kind of putting a lot of pressure on me. So even Weiss called up, the deputy chief, to complain about timing of the emails that got turned over from me at that request.

Presented this way, before any discussion of the October 6 leak (to say nothing of the March 2022 leak, which was never explicitly mentioned), Shapley explained that DOJ was only asking for his email because in March he had shared memos critical of their actions, and they wanted to see all the criticism he had memorialized.

That’s important theater behind the way he was able to appear before the House Ways and Means Committee as someone making protected disclosures. DOJ was retaliating against him, he claimed, because he had documented misconduct about the investigation.

Shapley’s thin protected disclosures

There’s something funny about Shapley’s claim to be making protected disclosures, though, and about the documents he shared with the committee that he claimed documented misconduct.

A few things, actually.

You’d think that if his memorialization of misconduct were so damning that DOJ was retaliating against him, he’d have some pretty damning documents to share with Congress.

But none of the documents he shared about the investigation were documents from 2021, and no document memorializing misconduct from 2022 predated October 7:

Even recreated versions of some WhatsApp messages obtained in August 2020– the big GOP takeaway of the interview — investigatively date to Bill Barr’s tenure at DOJ, as does the transcript excerpt from the December 2020 interview of a Hunter Biden business associate, another complaint about 2020 that Shapley was making.

Crazier still, when Minority Counsel asked Shapley for details of whether he had shared some of the exhibits he presented in the hearing as protected disclosures, he admitted he didn’t share them.

Okay. Now I want to talk about exhibit 6, which is your memo about the laptop and the hard drive. Was this memo provided to anyone?

A This memo was discussed in length with the case agent and co-case agent, but to protect the record, these I couldn’t send to them.

Q Okay.

A So after each time we had calls like this, I would have conversations with them. There was even a document that I produced where they were like, well, there was this problem, this problem, this problem. So I was like, I’ll record it, because we don’t want this to potentially be discoverable and have any issues in the future. So this is an example of that, where if there are at least two people that will say that we talked about this right after, and most of the conversation is to discuss what happened during that, to make sure that it was accurate.

Q But you don’t provide a copy to your supervisor or Mr. Fort or anyone else in your chain of command?

A No.

Q It just stays with you?

A That’s correct.


Now I’m going to look at exhibit 7. And the question is the same as the one before it. Was this memorandum provided to anyone or copied to anybody?

A It was not. Just to reiterate again, that this was discussed right after — I can’t even think of a time when we didn’t have a discussion immediately after these meetings with just me, case agent, co-case agent, and sometimes with FBI agents on the phone to discuss this.

I’ll return to the document about the laptop, but it doesn’t really document misconduct; it documents investigators trying to cover their ass after they discovered that a problematic piece of evidence that they had spent a year reviewing got turned into an election season political hit job. All the more so given that both so-called whistleblowers made clear they replicated the evidence with an August 2020 warrant for Hunter Biden’s iCloud account, obtaining the WhatsApp messages mentioned above.

That said, the document about the laptop would be useful proof for journalists for stories like the March 2022 one.

Minority Counsel asked why Shapley didn’t share his 2020 complaints — the only documents that he claimed described misconduct shared in the interview that predate his October 7 email — during Bill Barr’s tenure.

Q Okay. When we were talking about this exhibit 7, you mentioned that, at the time, Bill Barr was the AG. Why did you not take your concerns up the chain in 2020 at that time?

A Well, as I said before, there is a healthy tension between investigators and prosecutors, right? And there are sometimes when I don’t agree with a prosecutor, but every time I don’t agree with a prosecutor, I’m not going to run to Bill Barr or to senior leadership to — to blow the whistle or make a protected disclosure. The whole focus was to do what we had to do, even if it meant dealing with obstructions from prosecutors to get this case across the finish line, if it was worthy of it. And, that’s what we did. Every single time something happened wrong in this investigation, I couldn’t bring it to Bill Barr or anyone else, so —

Q And did you think about, in 2020 at all, coming to the committee at that point in time? Because I know that you mentioned that there were irregularities that you saw in the summer of 2020. Did you think about coming to the committee or coming forward at that time or making a report to TIGTA in 2020?

A Like I said, we are trained and we work with these prosecutors hours and hours, trips, and spend all this time. We are just trained to trust them, and it was an incredibly high burden. If I wasn’t in the October 7th meeting, my red line might not have been crossed. [my emphasis]

All that led to this weird exchange with Majority Counsel. Shapley claimed to have made protected disclosures without making protected disclosures.

Q Okay. And would it be correct to say that you sought to state your opinion and impact decision making short of protected disclosures before the October 7th meeting?

A Well, I think I reached a level of protected disclosure internally to IRS senior leadership before that.

Q And at what point was that first protected disclosure?

A I believe it was June of 2020. You got to understand, at the time, I wasn’t making a protected disclosure. I was just working a case raising issues, right? It’s not until we’re down the road a hundred miles that that was a protect[ed disclosure] — you know?

Q Yeah. Understood

A But it seems like the October 7th meeting, after that, after I raised issues directly to them, I explained to them the risk of not charging ’14, ’15. I explained to them how we had no mechanism to ever recoup that money, and I went like kind of like point by point how the elements were met.

And, it was that meeting where I think DOJ started to look into the discovery that I had provided back to March, because I was like, this is not right, there’s a big, huge problem here. And it switched from me raising just concerns, hoping that they’d be remedied, to now I’m like, no, this is a problem. And I think because of that, they went and looked at all my documents that I contemporaneously documented over the years. And then I think they started attacking me. And I think I read a part in my opening statement, the email that I sent to my director of field operations exactly on that topic. [my emphasis]

This is what led me to look back at the letter Shapley’s lawyer sent to Congress in April, which was the subject of a great deal of press attention at the time. It explained that his client — Shapley — had already made protected disclosures.

My client has already made legally protected disclosures internally at the IRS, through counsel to the U.S. Treasury Inspector General for Tax Administration, and to the Department of Justice, Office of Inspector General.

I remember at the time thinking that the Inspectors General must not have been very impressed with those disclosures, if the anonymous whistleblower — who we now know was Shapley — was going to Congress with them.

And when Minority Counsel invited him to explain why he hadn’t brought his concerns to Treasury’s Inspector General, his attorney piped in to say that his attorneys have made such disclosures.

MINORITY COUNSEL 1. But if you’d like to answer about the inspector general that is fine, too, but I was asking about Main Treasury.

Mr. Lytle. Just to clarify, his attorneys have made some disclosures to all of these entities so —

MINORITY COUNSEL 1. That is fine. But I am not asking about those. I was asking more at the time —

Mr. Lytle. Got it.

But by timeline, none of these occurred before DOJ was already demanding his emails in the wake of a second major leak about the investigation (because he didn’t lawyer up until still later).

All of which suggests that Gary Shapley didn’t start claiming to be making protected disclosures of any substance until after he started worrying he was under investigation for leaks, and his lawyers’ contact, by that point, would have been with two Inspectors General investigating those leaks.

Gary Shapley’s Investigative Priorities

Which is why some of Shapley’s purported protected disclosures are so interesting. He complains, over and over, that his team wasn’t permitted to take steps that might leak or would be really showy. IRS wasn’t permitted to send out subpoenas using Hunter Biden’s own name in advance of the election because those might leak. IRS wasn’t permitted to interview Hunter Biden’s children. IRS wasn’t permitted to conduct physical surveillance — 14 days before a Presidential election!! — of Hunter Biden.

Shapley was really angry, in fact, that Delaware US Attorney David Weiss congratulated the team in December 2020, as they prepared to take their first overt steps, that the investigation had remained secret up to that point (though the very next day, a December 9, 2020 story confirming the investigation, which included Barrett’s byline, did provide non-public details about the investigation).

A I think that she wasn’t worried about that part. She was worried about blow-back from doing a search warrant that was related to Hunter Biden. I think all of these things that they didn’t allow us to do, even back in June of 2020, was because their primary goal was to keep this investigation secret, right?

And even on December 3rd of 2020, when we’re in Delaware U.S. Attorney’s Office prepping for the day of action on December 8, Weiss came in and was like — congratulations for keeping it secret. And I was like, well, I thought that we were conducting an investigation here. I didn’t think that what we were doing was trying to keep a secret.

But Shapley’s complaint about emphasizing secrecy, which in addition to avoiding political blowback would have protected the investigation, is wholly inconsistent with his claimed reason to be concerned that the Secret Service got tipped off the day before he tried to interview Hunter Biden on December 8, 2020, or that, days later, Hunter Biden’s lawyers were asked to comply with a subpoena of a storage facility rather than permitting a search.

On December 10th, 2020, the prosecutorial team met again to discuss the next steps. One piece of information that came out of the day of action was that Hunter Biden vacated the Washington, D.C., office of Owasco. His documents all went into a storage unit in northern Virginia. The IRS prepared an affidavit in support of a search warrant for the unit, but AUSA Wolf once again objected.

My special agent in charge and I scheduled a call with United States Attorney Weiss on December 14th just to talk about that specific issue. United States Attorney Weiss agreed that if the storage unit wasn’t accessed for 30 days we could execute a search warrant on it.

No sooner had we gotten off the call then we heard AUSA Wolf had simply reached out to Hunter Biden’s defense counsel and told him about the storage unit, once again ruining our chance to get to evidence before being destroyed, manipulated, or concealed.

Gary Shapley didn’t want any of the subjects of the investigation to get advance notice, because they might obstruct the investigation.

However, the night before, December 7th, 2020, I was informed that FBI headquarters had notified Secret Service headquarters and the transition team about the planned actions the following day. This essentially tipped off a group of people very close to President Biden and Hunter Biden and gave this group an opportunity to obstruct the approach on the witnesses.

It’s a fair consideration! Most investigators are going to feel the same!

But that’s why that December 2022 Shapley email sent to FBI Special Agent Darrell Waldon and cc’ed to Michael Bartoff is so interesting.

Waldon was part of the case team, but also the guy who referred the Barrett leak to IRS’ Inspector General. Bartoff is the guy to whom Shapley claimed to have made protected disclosures.

It turns out that Shapley was on vacation as DOJ was reviewing his emails. He sent the email to ask Waldon to let him explain any emails before they got shared with anyone else.

If you have questions about any emails I would ask you share it in advance so I can look at them and be prepared to put them into context. The USAO was so eager to got my emails (which they already had 95% of) … then surprise … they “might” have a problem with a few of them that memorialized their conduct. If the content of what I documented, in report or email is the cause of their consternation I would direct them to consider their actions instead of who documented them.

I have done nothing wrong. Instead of constant battles with the USAO/DOJ Tax, I chose to be politically savvy. I documented issues, that I would have normally addressed as they occurred, because of the USAO and DOJ Tax’s continued visceral reactions to any dissenting opinions or ideas. Every single day was a battle to do our job. I continually reported these issues up to IRS-CI leadership beginning in the summer of 2020. Now, because they realized I documented their conduct they separate me out, cease all communication and are not attempting to salvage their own conduct by attacking mind. This is an attempt by the USAO to tarnish my good standing and position within IRS-CI … and I expect IRS-CI leadership to understand that. As recent as the October 7 meeting, the Delaware USAO had nothing but good things to say about me/us. Then they finally read “discovery” items (provided 6 months previous — that are not discoverable) and they are beginning to defend their own unethical actions.

Consider the below:

  1. I am not a witness — therefor Jencks/impeachment is not an issue.
  2. I am not the receiver of original evidence nor engaged i any negative exculpatory language against the subject … My documentation only shows the USAO/DOJ Tax’s preferential treatment of this subject. [bold underline original, italics mine]

This was an email asking — at a minimum — for the kind of advance notice that Shapley believed Hunter Biden should not get. And given that Shapley’s other testimony (in which he said he didn’t turn over any of his email) seems to conflict with his claim here that DOJ already had 95% of them, it might be more than that.

Just before the end of the interview, Shapely implored the committee to help him, because, “My life’s on the line here, so do what you can.” He repeated Whistleblower X’s complaint that the IRS and DOJ aren’t considering the human cost of their actions after the October 2022 leak.

But the document which Shapley points to as documentation that he raised such concerns made a request — an opportunity to participate in an investigation — that he himself complains Hunter Biden started getting over two years into the investigation. That’s his complaint: That Hunter Biden got to look at stuff in advance, starting two years into an investigation.

And in response to that, he ran to Congress and, with Whistleblower X, made disclosures that didn’t consider the impact they’d have on the equally human life of Hunter Biden.


2007: Shapley at NSA IG

2010: Whistleblower X starts at IRS

July 2009: Shapley starts at IRS

April 12, 2016: Mesires email (from laptop)

January 16, 2017: Schwerin email to Hunter

July 30, 2017: Date of suspect WhatsApp message

November 2018: Whistleblower X moves to International Tax and Financial Crimes; opens criminal investigation into Hunter Biden (after prior civil action)

March to April 2019: DOJ Tax reviews Whistleblower X’s lead

2019: IRS supervisor documents Sixth Amendment problems with case, collects Trump’s tweets

October 16, 2019: First lead on laptop

December 9, 2019: FBI takes property of laptop

December 13, 2019: Search warrant for laptop

January 2020: Shapley becomes supervisor over Sportsman Case

March 6, 2020: Request for physical search warrants in CA, AR, NY, DC

April 2020: Latest date on laptop timeline

June 16, 2020: Call about search warrants

June 16, 2020: Meeting with DFO about foot-dragging

August 2020: iCloud returns with WhatsApp messages

September 3, 2020: Donoghoe imposes halt on pre-election activities (Lesly Wolf denies SW, also warrant for Blue Star Strategies — but it was OEO that denied that)

September 21, 2020: FBI tries to limit number of interviews

October 19, 2020: We need to talk about the computer (mention of Durham)

October 22, 2020: Meeting about laptop

October 2020: Shapley IRS CI Manager interacting with Weiss’ office

November 17, 2020: Original plan to go overt delayed

December 3, 2020: Wolf objects to questions about Joe Biden; Weiss congratulates on keeping investigation secret

December 7, 2020: Notice to Secret Service and transition team

December 8, 2020: Day of action, attempted interview of Hunter Biden, interview of Rob Walker

December 9, 2020: Article confirming investigation includes inside details

December 31, 2020: Don Fort leaves as Chief of CI, replaced by Jim Lee

March 2, 2021: Mention of blowing whistle about DOJ handling of the case

May 3, 2021: Wolf chooses not to examine campaign finance (loan to Hunter), which Shapley documents to chain of command (not shared in interview)

August 18, 2021: Plan to interview Hunter’s children

October 21, 2021: Wolf nixes plan to interview Hunter’s children

January 27, 2022: Prosecution memo

February 9, 2022: Christy Steinbrunner sends prosecution plan forward with concur

February 11, 2022: CT responds with non-concur

March 2022: DOJ presents prosecution plan to DC USAO, DC rejects prosecution, Hunter Biden extends SOLs first of two times

March 16, 2022: NYT story including inside information

March 2022: DOJ asks for all management-level emails (Shapley doesn’t produce)

May 2022: Joe Gordon asks why IRS doesn’t ask for Special Counsel

April 26, 2022: Garland response to Bill Hagerty promises independence

June 15, 2022: Bigger meeting at DOJ, explaining why they couldn’t charge the case

July 29, 2022: Wolf says Weiss sets September as indictment for 2014, 2015 charges

August 12, 2022: Prosecutors claim Chris Clark said charging Hunter Biden would be career suicide

August 16, 2022: Prosecutorial meeting, discussion of CT’s nonconcur memo

August 25, 2022: FBI Supervisor Curley complains about missed communication between meetings

September 2022: IRS presents case in CDCA

September 22, 2022: Wolf says no action until after midterms

October 6, 2022: Devlin Barrett leak

October 7, 2022: Meeting about leak, and DC approval

October 12, 2022: Final interview in case

October 17, 2022: Investigators told no grand jury available

October 24, 2022: DOJ renews request for Shapley emails

November 2022: DOJ lets statutes of limitation on 2014, 2015 expire

November 7, 2022: SA Mike Dzielak says DOJ requests management and senior management documents pertaining to case

December 8, 2022: Waldon and Weiss cancel meeting about case

December 12, 2022: Claims concern about emails about documentation of misconduct

February 2023: Batdorf pauses ongoing investigation

March 1, 2023: Grassley asks Garland about case

March 16, 2023: DOJ Tax Mark Daley stated they would give approvals for charge (overheard)

April 13, 2023: Whistleblower X emails Lola Watson

April 19, 2023: Mark Lytle letter to Congress

May 15, 2023: DOJ requests new IRS team

51 replies
  1. John Paul Jones says:

    When you look at the timeline, it looks very much like a sustained effort on Shapley’s part (assuming he is implicated in the leaks), to force the investigation to go the way he has already determined it ought to go, even as the investigation is incomplete and ongoing, and as well to impose his own pace on it. Every time he thinks “his” case has hit a setback, something leaks about the case. The only surprise here is that he was left in place by management for so long.

    • emptywheel says:

      Oh, I suspect it’s worse than that.

      His treatment of the laptop, especially, is very suspect.

      Plus, he’s someone with apparent ties to Rod Rosenstein who was put into place just as Billy Barr was trying to feed this investigation with dirt from Rudy.

      • wetzel-rhymes-with says:

        Maybe Shapely finally had found his ‘special purpose’. One day he was Elliot Ness, and then the deep state pulled the rug out from under him. Maybe it happened to Shapely at the IRS like it did to Kent Mansley in “The Iron Giant”. Maybe it was a mid-life crisis.

        I don’t know if suspect treatment of the laptop means to be malicious because in the paranoid attribution style of the modern GOP, the laptop is the totem or MacGuffin at the end of the rainbow. Maybe it’s a social contagion that can strike any Republican at any time, Hunter Biden laptop sickness. Suffering the delusions of grandeur of his sad-sack mid-life crisis, this may all have been too potent a mix for Shapely, not when they started “politically interfering” with his investigation. Why else would they object to the physical surveillance of the son of the Presidential candidate two weeks before the election?

        [Thanks for updating your username to meet the 8 letter minimum. /~Rayne]

      • BRUCE F COLE says:

        AKA actual “Weaponization of the Justice Department”

        I wish there would be some comparison of Garland’s leaving and giving-over all these inquiries into Dem players with GOP prosecutors, while Trump just wholesale pardons convicted felons on his party

        • BRUCE F COLE says:

          In fact, Biden could go a long way toward promoting that disparity in he GOP’s concept of justice by announcing that he would never consider pardoning his son because of the indelible stain it would leave in American jurisprudence, which is already tarnished by many of Trump’s partisan pardons.

  2. earlofhuntingdon says:

    Not that your posts leave any doubt, but Shapley is full of it:

    “But, even though he was one of two people who had attempted to interview Hunter Biden in December 2020, Shapley didn’t provide his emails, because — he said — managers’ emails aren’t discoverable to a defendant.”

    His argument is nonsensical in the context of a demand from DoJ to produce his e-mails to the DoJ. You’d think the guy was trying to hide something, and that he thinks he has enough external support to get away with it.

    • Shadowalker says:

      Those e-mails are discoverable, which is why the DoJ kept requesting them. They don’t want to get blindsided in court, after a judge orders him to turn them over.

    • emptywheel says:

      One thing I understand is that Whistleblower X was documenting NOTHING, and Shapley was documenting everything. So when they asked for his stuff it may also have included … more interesting things.

      • Savage Librarian says:

        I can imagine! The email discovery in my own modest case was quite interesting. Some even had handwritten notes because they had been printed out and passed on to others. Wiles and gambits were the order of the day, so to speak.

        Whistleblower X seems to have a style Trump might appreciate. Shapely must have missed that memo.

        • Shadowalker says:

          Probably saving them to write a book. Though I don’t know how he gets around the Federal Records Act. Someone should FOIA them, like they did with the failed prosecution of McCabe.

    • Marinela says:

      Don’t they have Shapley’s emails already from the IT department? Why would Shapley need to be involved to provide the emails in the first place?
      If you become a whistleblower, that status protects investigators from seeing the emails?

    • Marc In Denver says:

      If his government computer login screen is anything like mine, he would have seen that he has no reasonable expectation of privacy in any government system he was accessing, including emails. So I call b.s. (though not as anyone in an official USG capacity, because that, too, would be against the rules).

  3. earlofhuntingdon says:

    “My life’s on the line here….” Amazing exaggeration here, unless he knows of crimes he committed that aren’t yet public. Otherwise, he might face investigation, sanctions or dismissal from a gubmint job he seems remarkably ill-suited to perform. It’s not like he’s trying to escape from an authoritarian regime. Or is he auditioning to work for one?

    • Ginevra diBenci says:

      This one really seems to think he’s Tom Cruise, playing himself in the movie.

  4. John Colvin says:

    The excuse that “managers’ emails are not discoverable” evinces a poor understanding of the law as well as an intentional mischaracterization of what DOJ was doing. With respect to the law, there is nothing magical about manager’s emails that protects them from discovery. With respect to what DOJ was doing with its request, there seem to be two possibilities. First, DOJ may have been proactively reviewing what it might have to turn over if the matter went to trial, looking for things like potential Brady material. (This type of review ordinarily only happens post-indictment, but I can imagine the DOJ might want to be extra careful in a high profile case.) If this were the case, then the argument that “manager’s emails are not discoverable” is absurd, because DOJ is attempting to see what a worst case scenario might look like. Shapley would be preventing DOJ from gaining an understanding what might have to be turned over to the defendant if the matter went forward. Second, DOJ might have been looking for the leak, in which case Shapley’s failure to turn over his emails looks like an attempt to avoid inculpating himself. Neither is a good look for Shapley.

    • Ravenous hoarde says:

      Is it a similar level of absurdity as trying to use executive privilege to keep material away from DOJ?

      Also, would there normally be another way for Shapley to expect DOJ to get “manager” emails or is his excuse just patently ridiculous on its face?

      • Shadowalker says:

        Worse. Since those e-mails fall under the Federal Records Act, they aren’t and never were his to decide what can be withheld in a trial.

      • theartistvvv says:

        FWIW, I will note that there may exist a managerial privilege in *civil* cases where the deliberations, *etc.”, of management can can be the subject of attempt to assert and claim privilege.

        Wouldn’t apply here, of course.

    • earlofhuntingdon says:

      Shapley seems to be setting himself up for a big fall/fail and might recognize that his only hope is wingnut welfare. Whatever, he doesn’t belong in government, let alone as a purported investigator for the IRS.

      • Super Nintendo Chalmers says:

        Agreed. IANAL but to me this seems like obstruction to cover up his illegal leaking of information. He wants whistleblower status after the fact despite never following the necessary steps until days before the 2022 election.

    • Desidero says:

      Isn’t Shapley’s deciding to withold “management communications” similar but worse than Kevin Clinesmith’s correcting what he thought was a mistake on his own accord? (Clinesmith mistakenly thought he was helping, both accuracy & speeding things up – Shapley was just deciding unilaterally what he thought the rules were w/o informing anyone he was withholding those comms…)

    • Ravenous hoarde says:

      The next election will tell but I think the 75% of non cultists are finally at :
      “ His claims are so absurd that perhaps people are finally beginning to see him for the propagandist he’s always been.”

      The firehose of bullshit seems to be overwhelming Jordan’s limited faculties. And none of them can even do a decent Benghazi anymore nevertheless a Whitewater out of Hunter.

  5. Joeff53 says:

    For those of us not following this tangled web full time, could someone add to the timeline the date the putative retaliation against Shapely and X took place?
    You have AI beat by a mile! Much respect.

  6. David says:

    Shapely continually sidesteps the most obvious issue. His job is to follow the money, to ascertain taxable income and the appropriate tax liability. But his focus is entirely on something else, which is to find email fragments and other factoids he believes are embarassing to the Bidens, but which have zero legal significance.

    [Welcome back to emptywheel. THIRD REQUEST: Please choose and stick with a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. You have previously commented as “Interested Observer” as well as “David F”; please use the former each time you comment OR create a new site-standard compliant username. Thanks. /~Rayne]

    • Rugger_9 says:

      I know quite well that mere incompetence isn’t a criminal issue when it comes to government conduct, but when I see panty-sniffers like Shapley rooting around like this (and apparently under direction from an unauthorized party) I have to wonder why the feds don’t prosecute abuse under color of authority crimes like I’ve seen done on the state level.

      Since some of this stuff was directed outside of the duties of the given office wouldn’t a conspiracy investigation be warranted?

  7. freebird says:

    This IRS agent is a sociopath who expanded this investigation beyond what his job requires. In a normal investigation the taxpayer comes in with documents to support the tax return and the IRS agent adjusts the return to comport with the tax laws. The taxpayer gets to file an amended return. In a dispute, a case is brought to tax court not criminal court. This what the “McGuffin” in that movie “Everything All at Once,” was about.

    The negotiated agreement normally ends the case.

    • Rugger_9 says:

      Especially considering that Hunter Biden paid up in full years ago, where is the harm to the Treasury? That alone signals just how political this is, combined with the contemporaneous blind eye to the skeevy tax games of Trump allies (and other IOKIYAR types). For example, did Ivanka declare and pay taxes on the PRC trademarks, or Jared on the 2 billion contracts?

    • John Colvin says:

      A taxpayer who fraudulent filed tax returns (or willfully failed to file taxes) is not automatically entitled to come in, report what they owe, and move forward. If this where the case, then everyone who committed tax violations could simply make an agreement, pay the tax and move forward. It does not work this way – taxpayers are not allowed to buy their way out of criminal tax jeopardy.
      That being said, the IRS has a voluntary disclosure policy and will not ordinarily recommend prosecution if the taxpayer comes in the door (disclosing prior incorrect tax filings) before the IRS starts an audit or investigation of the taxpayer. The DOJ is not bound by this policy but would ordinarily follow similar principles.
      The IRS and the DOJ only look at a few thousand people a year for potential criminal tax violations. Tens or hundreds of thousands are permitted to come to agreement with the IRS on adjustments (and/or file amended returns) and move forward with their lives with only a civil liability to the IRS.
      The IRS and DOJ tend to be very selective about which cases are treated as criminal, attempting to investigate criminally only items for which there could be no reasonable dispute about the correct tax treatment. As Shapley solely deals with the criminal side, he would have no occasion or authority to negotiate a civil resolution – other civil agents would have to be brought if a decision were made to forego a criminal prosecution.

      • freebird says:

        Your comment is all well and good, but, the plea agreement is not for fraud but a failure to pay taxes due. Frankly, Hunter partied the money away on wine, women and song among other things. This would not be the first time a junkie did not pay his taxes and that’s what this case is about.

        • John Colvin says:

          There is a misdemeanor for willful failure to file tax returns or pay over tax. 26 USC Sec. 7203. The same principles apply. The IRS and the DOJ tend to want to focus on situations where there is more egregious conduct (and ordinarily prefer felony convictions to misdemeanors), but in the right circumstances will charge violations of section 7203. For example, Wesley Snipes was convicted of three counts of failure to file tax returns, and (because sentencing was largely based on tax loss) received a sentence of three years.
          If the government believes that the taxpayer’s conduct was willful, proof that the taxpayer suffered from drug or alcohol dependency is not a “get out of prosecution” card.
          Admittedly, there are hundreds of thousands (or perhaps millions) of taxpayers who do not file tax returns or pay their taxes in a timely manner. Only a tiny minority are ever prosecuted criminally. Unfortunately, demonstrating that others may have also violated the law and were not prosecuted is not a defense.

        • freebird says:

          You need to read the plea agreement. It says that Biden had income in two years and did not pay taxes owed.

          By the way, when I was a corporate and commercial lender I had borrowers who could not pay taxes do to business and personal setbacks. The IRS would take judgements, lien bank accounts and other properties before they put you in jail. They sometimes established a repayment plan. This only rises to a criminal matter if there is signficant undeclared income which is detectable. Right now, they are spending more on personnel costs they any tax recovery.

        • Shadowalker says:

          They would have to prove criminal intent. Not likely that they could get 12 jurors to find beyond reasonable doubt, and possibly even acquittal since the taxes with penalty and interest were paid in full.

          They just convicted a New Jersey man on one count of tax evasion and not filing between 2014 through 2018, he gave his employer a false W-4 claiming he was exempt from Federal withholding, IRS informed him in 2016 he was NOT exempt, he tells the company he was and it continued to not withhold any taxes.

        • Upisdown says:

          It reads like Shapley was trying to find more than just tax evasion. He appears to be chasing breadcrumbs that he hoped would pull in “the big guy”. If Shapley had stayed in his lane with just Hunter Biden and tax stuff, maybe he could have salvaged his reputation and career.

        • emptywheel says:

          There’s a good case to make that the IRS believed they could get Hunter on FARA (based off Russian disinformation), and then never backed off their theory of the case.

          As my next post lays out, I think the misdemeanors are an attempt to salvage SOME case in the face of a prosecutorial decision they could not bring this to trial.

  8. Molly Pitcher says:

    OT: Lin Wood retires from practicing law.

    Meidas Touch just posted on Instagram, a copy of the letter Lin Wood sent to the Executive Director and General Counsel of the Georgia Bar, that he wished to “transfer to Retired Status effective immediately in a letter dated July 4. He also acknowledges that the Special Master “struck my answers and found them in default…” om two pending evidentiary proceedings.

    • Matt___B says:

      He was mainly a practitioner of “fantasy law”, or “throw-spaghetti-against-the-wall law” or “conspiracy-theory law”. Guess he pushed it as far as he could go and his version of what law is was found to be wanting…nobody will miss him.

  9. Willis Warren says:

    is Fox running nonstop Hunter/Coke in the White House nonsense and ignoring the nuclear issue in Ukraine?

  10. BRUCE F COLE says:

    So can someone tell me who the Minority Counsel is who asking this question of Shapley?:

    –Q And at what point was that first protected disclosure?

    A I believe it was June of 2020. You got to understand, at the time, I wasn’t making a protected disclosure. I was just working a case raising issues, right? It’s not until we’re down the road a hundred miles that that was a protect[ed disclosure] — you know?

    Q Yeah. Understood”–

    I don’t know if they’re the same person throughout, but this lawyer doesn’t have a cross-examining bone in their body. “Yeah, understood,” is the exactly wrong follow-up. It should have been something like this:

    ” Hold on, Agent Shapley, I just asked you: “At what point was the first protected disclosure.” To which you replied “I think it was June of 2020,” and then you immediately proceeded to explain that that date is wrong by, I quote, “a hundred miles!” Now I don’t know why you would make that kind of statement in answer to a simple question, but I do know that I’m asking that that answer get stricken from this interview transcript because I don’t want disinformation being produced in the public record and the repeated in the anti-Biden press, based solely on your admittedly incorrect answer. Can the Chair agree to strike that answer?

    So now please, sir, tell us when the first protected disclosure was made. If you have to think a bit, or refer to notes, we’ll wait.”

    Or something like that. The transcripts in this post are loaded with bland acceptance of incoherent testimony like that, riddled with “OK’s” and “Got it’s” and such. It’s like the Minority Counsel(s) had cut their teeth as a court stenographer.

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