David Weiss Is Wrecking the Right Wing Story (and Likely Sandbagging Hunter Biden)

I confess I love William Shipley — AKA Shipwreckedcrew, or Wreck, for short — the prosecutor turned defense attorney for seeming zillions of Jan6ers.

Don’t get me wrong: in my opinion, he’s an utter whack and a douchebag.

But — and I mean this in good faith — because he’s batshit but also a real lawyer, it makes him the sweet spot among attorneys that Jan6ers will hire and (sometimes at least) retain, but who will give them decent and at times excellent legal representation. There are a lot of batshit grifters who are little more than parasites on Jan6 defendants. And while I want these mobsters to face justice, I also want them to have competent legal representation along the way. Many of them do not. So while I may find Wreck awful personally, I am grateful he is providing competent representation for the kind of Jan6ers who wouldn’t accept representation from superb public defenders that many Jan6ers believe are communists or pedophiles or whatever other conspiracy theory they vomit up.

I also love Wreck because it drives him insane that, even though my graduate degree is a mere PhD, my observations often are more accurate than his. My favorite is probably the time I correctly predicted that John Durham might successfully breach Fusion’s privilege but not be able to use any of those documents at trial (Durham used one to set an unsuccessful perjury trap anyway). When I do stuff like that Wreck waggles his legal experience around and sics his trolls on me and it’s funny every … single … time.

This may be another of those times. Because Wreck is about to make my case that David Weiss tried something noxious in the abandoned Hunter Biden plea the other day.

You see, I agree with what Popehat had to say about the failed Hunter Biden plea the other day. Judge Maryellen Noreika sussed out that there was a key structural problem with the deal and refused to approve it without some more consideration of whether her role in it is even constitutional.

Friends and neighbors, that is shitty drafting. And if you’re Hunter Biden’s lawyer and telling your client that he can’t be prosecuted for crimes related to those income sources because of that language, that’s reckless advice and bad lawyering. It’s a failure by both attorneys. If Judge Noreika spotted that issue, called it out, and asked for an explanation, then good for her — she’s doing her job, which is to make sure the defendant understands the deal they are accepting.

That said, I’m pretty sure it’s a Frankenstein of a deal, in part, for reasons neither side wants to address until it’s done (Politico posted a transcript of the hearing here). Hunter, probably because he was at real risk for felony tax crimes before the government bolloxed the case so badly. His lawyer, Chris Clark, possibly because Abbe Lowell is on the scene and may be pushing a much more confrontational approach to this investigation. And the government because — on top of the things in the emails that prosecutors thought might blow the entire caseother statutes of limitation are expiring, SCOTUS might soon rule the one felony against Hunter unconstitutional. It turns out, too, that for the contested year (the one Joseph Ziegler said was so damning), both sides agree that Hunter’s accountants overstated his income on his taxes, which makes it hard to argue that Hunter’s treatment of some personal expenses as business expenses was an intent to lie to the IRS.

When asked whether there was any precedent to support what Hunter’s lawyers and the government were trying to do, AUSA Leo Wise, who was brought in to replace the team that was too tainted to prosecute this case, admitted, “No, Your Honor. This was crafted to suit the facts and circumstances.”

In other words, because both sides had fucked up so badly, this agreement is a way to move forward. Or would have been if Judge Noreika hadn’t appropriately refused to be part of a plea that might not be constitutional.

But the Frankenstein plea was written on the back of a remarkable statement of facts, a statement of facts that could have been written by Peter Schweizer, which was completely untethered from the narrow crimes in the two deals. It was so untethered from the elements of the offense involved in the crimes in the plea that Judge Noreika had to direct Wise to explain how it actually met the essential elements of the offense.

I have grave concerns about the ploy that prosecutors may have been attempting — may have succeeded in doing — with that statement of facts.

And the statement of facts is where I get to have fun with Wreck again. He agrees with me it is totally unusual. But he’s sure that that’s because the defense attorneys — who he’s sure wrote it — are trying to get away with a fast one.

“There is a purpose behind it,” Wreck said, “and it’s written in a style that I have NEVER seen come from a prosecutor.”

Only, he’s wrong about who wrote it and so undoubtedly wrong about the purpose behind it.

Hunter Biden’s lawyers didn’t write it. At one point, Chris Clark said that explicitly: “Your Honor, we didn’t write this.” Several times, Hunter or Clark struggled to explain what they believed the government meant by something in the statement of facts, in one instance when they had to address that it was totally unclear what income Hunter earned.

Mr. Clark: My understanding, Your Honor, is that sentence picks up the work described in the last couple of sentences, not just the work for Boise Schiller.

The Court: Well, Mr. Biden actually knows.

The Defendant: Yeah, exactly, Your Honor. I believe what the government intended for that sentence was that it was the total income, not just as it relates to my capacity for Boise Schiller.

When asked why the statement of facts said his addiction problems were well-documented, Hunter responded,

Well, I believe the government is referring to a book that I wrote about my struggles with addiction in that period of my life. And quite possibly other news outlets and interviews and things that have been done.

That phrase — well-documented — had absolutely no place in a document like this, certainly without citations. Indeed, how well-documented his addiction is irrelevant to both the tax crimes and the gun diversion.

Yet no one cleaned it up before this attempted plea.

Perhaps the most remarkable exchange happened when Judge Noreika asked Hunter what the statement of facts meant when it said that his tax liability should not have come as a surprise. He seemed totally unfamiliar with the passage, and when asked, Hunter said that it was a surprise.

THE COURT: All right. On the next page, at the end of the second paragraph, starting four lines from the bottom in the middle of the line, the paragraph talks about your tax liability. And it says the end of year liability should not have come as a surprise. Do you see that?

THE DEFENDANT: I’m sorry, I’m just trying —

THE COURT: That’s okay. Take your time.

THE DEFENDANT: Yes, I see that here.

THE COURT: It says it should not have come as a surprise. It wasn’t a surprise, is that right?

THE DEFENDANT: Yes, Your Honor.

THE COURT: And you knew —

THE DEFENDANT: Well, I don’t — I didn’t write this, Your Honor, so the characterization —

MR. CLARK: Can we elaborate the time there, Your Honor?


MR. CLARK: So essentially there was a tax treatment that was undertaken in that year, and it changed the tax treatment at the very end of the year for a particular asset. And so I think the point is, and I didn’t write this either, there was substantial influx of income during that year. There was an issue with this last minute tax treatment change, and so there were expressions at times of surprise at that. I think the government’s point is you knew you made a lot of money, it shouldn’t have come as a surprise.

THE COURT: My only concern is when I read this as a lawyer, it shouldn’t have come as a surprise, that doesn’t preclude Mr. Biden from saying yes, it did.

MR. CLARK: Your Honor’s characterization is exactly right.

THE COURT: You’re saying it actually was a surprise?

MR. CLARK: In that year.

THE COURT: You guys are okay with that?

MR. WISE: Yes, Your Honor.

Hunter Biden was under oath for this colloquy (as all plea colloquies are), trying to explain why a document he didn’t write was riddled with ambiguous language and unsubstantiated claims.

And here’s the concern: When Hunter’s lawyers agreed to this, they believed that FARA charges were off the table. But about half the way through this hearing, Wise made it clear they were not.

THE COURT: All right. So there are references 6 to foreign companies, for example, in the facts section. Could the government bring a charge under the Foreign Agents Registration Act?

MR. WISE: Yes.

THE COURT: I’m trying to figure out if there is a meeting of the minds here and I’m not sure that this provision isn’t part of the Plea Agreement and so that’s why I’m asking.

MR. CLARK: Your Honor, the Plea Agreement —

THE COURT: I need you to answer my question if you can. Is there a meeting of the minds on that one?

MR. CLARK: As stated by the government just  now, I don’t agree with what the government said.

THE COURT: So I mean, these are contracts. To be enforceable, there has to be a meeting of the minds. So what do we do now?

MR. WISE: Then there is no deal.

I can’t speak to whether any FARA charges against Hunter are meritorious or not and if they are, without taint, by all means prosecute him. The admitted facts about Burisma and CEFC, while far smaller than laid out by Republicans (including, potentially, by Joseph Ziegler and Gary Shapley under oath), are interesting as much for the kind of information operation we saw being alleged in the Gal Luft prosecution as they are for the possibility they support a FARA prosecution (which is one of two things — the other being the loan that Hunter got from Kevin Morris to pay off his taxes in the first place — for which the statute of limitations would not have expired).

But that’s as much an information operation as it is a FARA violation.

It’s my opinion that this plea deal was crafted to give DOJ a way out of grave problems that exist in their existing case file — problems that Ziegler described in testimony — while kicking off a FARA investigation with sworn admissions made based on, at best, misunderstandings — and possibly outright misrepresentations — of the scope of the deal.

It’s my opinion that this statement of facts was intended to get Hunter to admit under oath to facts underlying FARA violations that DOJ otherwise couldn’t use because the way they got this evidence has been so tainted by Trump’s political influence and hacked computers and other poisonous tree they’d never get it admitted in court.

DOJ already admitted — to Joseph Ziegler at least — that they couldn’t prosecute any of this because of some kind of taint. And it sure looks like this “plea deal” is an attempt to sheepdip the entire prosecution to get Hunter Biden to clean the taint himself.

30 replies
  1. BRUCE F COLE says:

    Fucking brilliant, as usual. With Clark this will leave a mark, one would hope.

    Thanks Marcy, as always.

  2. improperyour says:

    While I agree (because I don’t know any better) with what has been said here.

    Is this not also a pretty big “egg-on-face” for Hunter Biden’s lawyers as well? Did they not read the plea agreement closely enough?

    [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. “improperyour” is your second user name; you commented last as “Jimmy Two Pants.” Pick a name which is unique and a minimum 8 letters in length and stick with every time you comment. Thanks. /~Rayne]

    • EuroTark says:

      The Popehat/Ken White article referenced in the intro explains that part pretty well:

      Based on reading them I think this is a combination of my second and third possibilities discussed above — the government was sloppy and Biden’s lawyers didn’t read carefully.

    • emptywheel says:

      As I noted above, an Axios report emphasized Abbe Lowell’s presence at the hearing.

      I wonder whether Clark doesn’t get paid — for five years of work — unless this plea happens. And Lowell has a donor so he would happily take over.

  3. Spooky Mulder says:

    So was this a twist on the “draft subpoena” maneuver? An old friend and ex-cop described how you would create a scenario where the person you want to get rid of does it to himself. He referred to this as “baking a cake” for someone.

  4. Peterr says:

    I had the feeling as I was reading that the govt’s draft plea agreement smelled less like sloppiness and more like it was intentional, and by the time I finished I was right there with you.

    I wonder, though, if this is ethical prosecutorial behavior. I get that investigators and prosecutors want to trip someone up while interrogating them, but this seem to me as well beyond that. As a non-lawyer, it smells kind of like a devious prosecutor trying to use a plea agreement to get a defendant to admit to information first divulged in a proffer that would otherwise be unusable in court.

    Am I expecting too much of prosecutorial ethics, or is this sanctionable behavior?

    • emptywheel says:

      In the hearing Clark said he was happy with the Brady disclosure he was given. I don’t understand how anyone could be given what Ziegler said, but a lot of what Ziegler said might be considered Jencks.

      But this prosecutorial team is entirely new, a literal sheepdip as well. So I think they don’t much care. They don’t know the full extent of what they’re doing. It’s like a torture taint team that way.

      • Brad Cole says:

        “The truth is, these are not very bright guys and things got out of hand” might not be applicable here.

    • Rugger_9 says:

      For lack of a better description, is this a Barr crew or a Garland crew? Weiss himself was appointed by Barr IIRC, but what about Wise or the rest of his team? To me, the sloppiness (being charitable here) points to Barr holdovers.

      Hunter Biden was fortunate to have Clark there otherwise he’d have copped to something he wasn’t aware of. The RWNM is also making hay over the gun possession charge, so what happens with that? So, if I’m keeping score here (and I’m not on the jury yet) it would appear that the government tax case has pretty significant holes that Clark and/or Lowell can run over but because Hunter signed for not being an addict on his gun form, that might be harder to squash.

      Would FARA apply if no apparent lobbying or influence can be entered into evidence?

      • zscoreUSA says:

        Weiss was not appointed by Barr. Barr took office in early 2019 after the 2018 midterm when Sessions was fired.

        “Weiss was serving as acting U.S. Attorney for Delaware when he was nominated to the permanent position by then-president Donald Trump. On February 15, 2018, his nomination to be the United States Attorney was confirmed by the Senate by voice vote. He was sworn in on February 22, 2018”

      • Ginevra diBenci says:

        My understanding is that Clark did not prevent HB from getting into this, and it was the judge who caught it. But I confess that the recent developments in this case have me confused as hell.

  5. ShallMustMay08 says:

    Thank you fleshing transcripts out here and quoting the court asking HB directly and good on judge to ensure personal understanding. Sausages get made fast.

  6. P J Evans says:

    It does seem very odd that the FARA stuff only came up in the written deal presented to the court. Surely that should have been discussed first?

  7. Tullalove says:

    The context isn’t quite right, but Tom Petty’s “You Wreck Me” doesn’t seem totally off the mark here.

  8. Upisdown says:

    It’s easy to see why Graves and Estrada wanted nothing to do with these Keystone Kops prosecutors.

  9. Ten Bears says:

    Long time lurker, rare-if-ever commenter, but speaking as a Mad Scientist, JDs are Just Doctors, not unlike MDs are Merely Doctors.

    Bill the Butcher had the right idea …

  10. Frank Probst says:

    Some basic questions from the dumb guy:

    1. Has Hunter Biden EVER been charged with any FARA violations? My reading of what you’re saying is that he hasn’t, and the evidence available can’t be used to charge him, because it wasn’t properly obtained. So this plea agreement was a sort of trick to get him to admit to the violations himself while under oath. The defense lawyers missed this, but the judge caught it, which is why the deal fell apart in open court.

    2. How exactly does the statute of limitations work if you’re in the middle of a plea negotiation? Can you plead guilty to crimes for which the statute of limitations expired during the negotiation?

    3. How long is the statute of limitations for FARA violations, and based on what we know, when would the last one have occurred?

    4. How in the world can Hunter Biden’s team go BACK into plea negotiations after this? The prosecutors don’t appear to be acting in good faith. Do you just go back in and try to hammer out a deal that you’re certain is iron-clad in terms of the basic facts that you’re agreeing to?

    (Other things come to mind, but these were the only ones I could come up with after only one cup of coffee.)

    • emptywheel says:

      Hunter has not been charged with FARA. My guess is they’re looking at the admittedly toxic combination of Burisma and CEFC, which would go through 2024.

      SOLs are waived during plea negotiations (that is why Hunter’s lawyers kept waiving the 2014-2015 tax violations, which Ziegler claims were the worst).

      I don’t think Chris Clark believes this deal is dead — though I also wonder whether he’s anxious to be paid for 5 years of work, with Abbe Lowell lurking around.

      • Upisdown says:

        If Hunter Biden has criminal exposure under FARA because of CEFC, wouldn’t all of the people listed on the emailed suggested split also run afoul under FARA? James Biden, James Gilliar, Tony Bobulinski, and Rob Walker?

  11. Zinsky123 says:

    Very interesting how this is playing out – I love the way you are counterpointing all of the right-wing talking points about this messy affair! Not being an attorney, I have wondered since 2018 how Hunter Biden’s laptop or laptops (or the hard drives from them) could ever be used as a source of evidence for a criminal prosecution? They were obtained without going through the appropriate channels (e.g. Delaware escheat laws) and mishandled by Drunk Rudy and Steve Bannon, among others. Isn’t this a “fruit of the poisonous tree” problem? Can’t they move for summary judgment if this goes to trial?

    • emptywheel says:

      That’s my point about why DE USAO would be anxious to make this deal. We don’t know all the ways but it’s clear they found taint when they prepared to charge him with a felony.

  12. Fancy Chicken says:

    I have never had much interest in reading about Hunter Biden. Based on the narrative of the “Laptop from Hell” (just that name alone!) and it’s promoters, I felt as if reading about it even in MSM was giving air to something that should just die.

    However, Dr. Wheeler’s analysis has been incredibly compelling reading and it doesn’t make me feel dirty at all! I’ve been able to go back and read older articles about the laptop armored with analysis rather than my own bias about the matter which never gave me any ability to make a cogent argument about it’s origins, just a moral perch from which to decline engagement.

    I didn’t read about the blown deal last week. Just patiently waited for a post on it to show up here. And now I feel able to go and critically read the coverage of the hearing.

    It’s a real gift to be able to write about something many people consider lurid and actually turn it into compelling, non-gross reading that is genuinely illuminating and not just more click bait material. Kudos again.

  13. Narog907 says:

    “Boise Schiller?” You’d think that with all the work the firm Boies Schiller does in Federal Court the machine language transcription software would get the firm name right. And FWIW the people that live out there under the Potato Taliban call it “Boy-see.”

  14. Maureen A Donnelly says:

    Oh Dr. Wheeler. How I love your work and undying curiosity about all these machinations. This all reads like a GOP driven ram job on Joe through Hunter. While all this hullabaloo around a man who lost his mother and sister tragically, lost his brother–the only other survivor of the accident that ate his family to cancer, was addicted to drugs, got off drugs, and probably used the Biden name to make some coin. Not the first time it’s happened. When will they turn to the Thin Suit and the former favored Daughter??? Thanks. for all of it Marcy. My shero.

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