You will read a lot of insane reporting about the GOP attempt to prevent the President’s son from pleading guilty in a federal court today.
Virtually all of it will misrepresent the testimony of the so-called IRS whistleblowers who claim that Hunter Biden got a plush deal. That coverage will misrepresent where any potential misconduct may lie.
Here’s what those misrepresentations look like, in this case from NYT:
The committee has heard testimony from two Internal Revenue Service investigators who claim to be whistle-blowers and have told the panel that the younger Mr. Biden received preferential treatment from the Justice Department. Mr. Smith’s brief asked the judge to consider the testimony in deciding whether to approve the agreement.
The judge overseeing the case, Maryellen Noreika, agreed to seal the filing, but not before The New York Times was able to obtain a copy. The brief argued that the plea deal was “tainted,” citing the testimony of the two I.R.S. officials.
“The situation here is not that the Justice Department exercised charging or plea negotiation discretion, but the presence of credible allegations that the investigation, charging decisions and plea negotiations were tainted by improper conduct at various levels of the government,” wrote Theodore A. Kittila, a lawyer who filed the brief on behalf of Mr. Smith.
Republicans have more recently tried to make a case that Hunter Biden’s plea deal was marked by favorable treatment from the Justice Department in his father’s administration. That assertion has been rejected by Attorney General Merrick B. Garland and by the prosecutor who has overseen the case, David C. Weiss, the U.S. attorney in Delaware, a Trump appointee.
It’s true that the so-called whisleblowers complained about things they weren’t able to do — most of which occurred while Bill Barr was Attorney General.
But that’s not the only thing the so-called whistleblowers testified to.
Joseph Ziegler testified that when he asked why Hunter wasn’t being charged, he was told that prosecutors had found emails that led them to worry they couldn’t charge the case at all.
So we found out through talking with our SAC that the attorneys had found — we were always asking for updates on charging. When are we going to charge? When are we going to charge? We were told that the prosecutors had found some emails that concerned them if they could actually charge the case. That’s what they said to us.
He even explained what some of those emails might be: documentation of Sixth Amendment problems with the case and evidence of Trump’s improper influence on it.
Around the same time in 2019, I had emails being sent to me and the Hunter — and the prosecutors on the case, the Hunter Biden prosecutors, from my IRS supervisor. So this was Matt Kutz still.
From what I was told by various people in my agency, my IRS supervisor, Matt Kutz, created memos which he put in the investigative files regarding the investigation potentially violating the subject’s Sixth Amendment rights. He also referred to Donald Trump’s tweets at the time.
I recall that at one point I had to go around my supervisor and ask his boss, ASAC George Murphy, to tell him to stop sending me and the Hunter Biden prosecution team these emails and that I was searching media articles on a weekly basis and was aware of everything being written in the media regarding the case.
There’s documentation in the case file that some part of the investigation — potentially something Ziegler himself did! — created what are probably Confrontation Clause problems for the case generally.
But that may not be the only thing.
Gary Shapley testified that he was distanced and then removed from the case after prosecutors had to ask him to turn over his own emails for discovery review a second time, after he had blown off a request seven months earlier.
Shapley was first asked to turn over his emails about the case in March 2022. But even though he was the one who had prepped to interview Hunter Biden himself, he did not comply.
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]
Then, in October 2022, prosecutors asked again. As Shapley himself described, he was angry that he was being asked for emails that might show exculpatory or impeachment information.
They also renewed the request for all my emails on the case, saying they needed to ensure they were aware of any exculpatory or impeachment effort in the case. But their extraordinary request looked to us just like a fishing expedition to know what we’d been saying about their unethical handling of the case.
[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. [my emphasis]
A month or so later, Shapley made the extraordinary request for the FBI agent reviewing emails to share anything he found in advance. As I’ve noted, Shapley asked for the kind of special treatment he claims Hunter Biden got.
This is what the NYT won’t tell you: That the testimony of both Ziegler and Shapley provides an entirely different explanation for why Hunter Biden wasn’t charged with felonies. And that explanation may have to do with their own conduct, not Hunter Biden’s.