“Ebb and Flow:” How David Weiss Volunteered for a Subpoena, or Worse

Politico and NYT have stories — relying on what Politico describes as, “more than 300 pages of previously unreported emails and documents exchanged between Hunter Biden’s legal team and prosecutors,” — chronicling the legal negotiations leading up to the failed Hunter Biden plea deal.

Politico’s, written by Betsy Woodruff Swan, is good.

NYT’s is not, in part because it dedicates a long passage to repeating Gary Shapley’s claims without noting the many things in his own testimony that discredit those claims, even while relying on props from Shapley’s testimony that have since been challenged. Luke Broadwater knows where his beat gets sweetened, and it is in treating James Comer like a credible person, not in exhibiting the critical thinking of a journalist.

When first published, the NYT couldn’t even get the date of the failed plea hearing, July 26, correct.

But hey — at least that error is less catastrophic than the one in a WaPo story on the same topic the other day, in which three reporters (at least two of whom never bother to hide their right wing allegiances, particularly when it pertains to chasing Hunter Biden dick pics) claimed that Joe Biden was now a “former” President.

For its errors and other problems, however, the NYT story is useful for the way in which it puts David Weiss at risk for his own subpoena.

Hunter Biden lays the groundwork for holding the government to their signed agreements

To understand why, a review of the current state of the (known) legal case is in order.

On August 11, as Merrick Garland was announcing that he had given David Weiss Special Counsel status, Weiss’ prosecutors filed a motion to dismiss the charges against Hunter Biden. After describing that, “When the parties were proceeding to a negotiated resolution in this matter, a plea in this District was agreed upon,” the filing said that because Hunter did not plead guilty, it may have to file charges in the district where venue lies. At the same time, Weiss also moved to vacate the briefing schedule in the gun diversion.

Judge Maryellen Noreika gave Hunter a day to respond to the motion to vacate. That response, signed by Chris Clark but including Abbe Lowell on the signature line, explained that Hunter planned to fulfill the terms of the gun diversion agreement, which the government had stated was a contract between the two parties.

[T]he Defendant intends to abide by the terms of the Diversion Agreement that was executed at the July 26 hearing by the Defendant, his counsel, and the United States, and concurs with the statements the Government made during the July 26 hearing,1

The Government stated in open court that the Diversion Agreement was a “bilateral agreement between the parties” that “stand[s] alone” from the Plea Agreement, and that it was “in effect” and “binding.”

But, “in light of the United States’ decision on Friday to renege on the previously agreed-upon Plea Agreement, we agree that those issues are moot at this point.” Effectively, Hunter’s team was saying they considered the gun diversion as still valid, recognized everything else was moot, and described that it was moot because the government had reneged on the terms of the deal.

Then Abbe Lowell entered his appearance in the case. And Clark moved to withdraw from the case because — given that the plea and diversion would be contested — he might have to serve as a witness.

Mr. Clark’s withdrawal is necessitated by recent developments in the matter. Pursuant to Delaware Rule of Professional Conduct 3.7(a), “a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless… disqualification of the lawyer would work substantial hardship on the client.” Based on recent developments, it appears that the negotiation and drafting of the plea agreement and diversion agreement will be contested, and Mr. Clark is a percipient witness to those issues. Under the “witness-advocate” rule, it is inadvisable for Mr. Clark to continue as counsel in this case.

Noreika never actually approved Clark’s withdrawal, but the defense team filed notice that Hunter consented to the withdrawal while the docket remained active.

Meanwhile, Noreika ordered the government to reply to Hunter’s response on the briefing, and ordered Hunter to respond to the thing she failed to ask about in the first place, whether he objected to the dismissal of the charges.

Hunter’s team agreed that the charges must be dismissed, but reiterated that the court had no oversight over the diversion agreement (which had been Noreika’s complaint from the start).

Without adopting the Government’s reasoning, as venue for the existing information does not lie in this District, the information must be dismissed.

Further, the Defendant’s position is that the enforceability of the Diversion Agreement (D.I. 24-1 in No. 23-cr-00061-MN) has no bearing on the United States’ Motion to Dismiss for Lack of Venue (D.I. 31 in No. 23-mj-00274-MN), and any disputes regarding the effect of the Diversion Agreement are therefore not before the Court at this time.

The government, meanwhile, filed a seven page reply attempting to claim that the government did not renege on the plea that had been negotiated in advance of its filing in June, by describing how after Hunter refused to plead guilty because Leo Wise, an AUSA who had not been involved in the original deal, claimed its scope was far narrower than Hunter understood, the parties did not subsequently agree on one to replace the signed deal Hunter entered into.

First, the Government did not “renege” on the “previously agreed-upon Plea Agreement,” as the Defendant inaccurately asserts in the first substantive sentence of his response. ECF 33, Def. Resp. at 1. The Defendant chose to plead not guilty at the hearing on July 26, 2023, and U.S. Probation declined to approve the proposed diversion agreement at that hearing.

Then Noreika dismissed the charges.

David Weiss may have plenty of time to argue with Lowell, relying on Chris Clark’s testimony, that he should not be held to the terms of signed agreements he entered into in June.

But the two important takeaways from all this are, first, that Hunter Biden is stating that before the plea hearing, Weiss attempted to change the terms of the signed plea deal, and second, that Chris Clark is no longer bound by any terms of confidentiality that will allow him to prove that’s true.

A senior law enforcement official speaks, illegally

These twin stories are a warning shot to Weiss — before Hunter even gets more discovery on all the other problems with this investigation — what that is going to look like.

Which brings me to the things for which the NYT is really useful: giving David Weiss or someone in his immediate vicinity an opportunity to cause David Weiss more problems.

Three times in the story, NYT provides anonymity to a “senior law enforcement official” to push back on the representation of the deal, including as laid out by documentary evidence. In one such instance, NYT helpfully notes that if Weiss commented, he would be violating DOJ policies and possibly the law (though the leaks in this story don’t appear to violate grand jury secrecy).

A spokesman for Mr. Weiss had no comment. He is legally barred from discussing an open investigation, and a senior law enforcement official with knowledge of the situation pushed back on the idea that Mr. Weiss had been influenced by outside pressures, and ascribed any shifts to the typical ebb and flow of negotiations.

In a second instance, this anonymous “senior law enforcement official” denies something — that David Weiss told an associate that “the average American would not be prosecuted for similar offenses,” the kind of assertion that might provide basis for an exceedingly rare successful claim of selective prosecution — that only David Weiss would know.

Mr. Weiss told an associate that he preferred not to bring any charges, even misdemeanors, against Mr. Biden because the average American would not be prosecuted for similar offenses. (A senior law enforcement official forcefully denied the account.)

This chatty senior law enforcement official similarly denies something else that could bollox any further charges against Hunter Biden — that the only reason he “reneged” on the original terms of the plea deal are because IRS agents got journalists like the NYT’s to report claims of bias that their own testimony did not substantiate.

Now, the I.R.S. agents and their Republican allies say they believe the evidence they brought forward, at the precise time they did, played a role in influencing the outcome, a claim senior law enforcement officials dispute.

Now, normally, misconduct by a prosecutor like Weiss would be reviewed by the feckless Office of Professional Responsibility. But that’s less likely with a Special Counsel, because of the reporting structure for an SCO. And that’s particularly true here given the involvement of Associate Deputy Attorney General Bradley Weinsheimer in earlier discussions about the plea. Weinsheimer oversees OPR, and so any review by OPR presents a conflict. Indeed, Weiss may have asked to be made SCO precisely so he could escape the purview of OPR.

But to some degree that may not matter.

That’s because there are already parallel investigations — at TIGTA and at DOJ IG — into the leaking that occurred during this investigation. David Weiss was already going to be a witness in them, because Gary Shapley made claims about what Weiss said personally at a meeting on October 7, 2022, a meeting that was called first and foremost to discuss leaks.

So if Michael Horowitz wanted to subpoena Weiss to find out whether he was the senior law enforcement official denying things only he could deny, to find out whether days after being made a Special Counsel, Weiss decided to violate DOJ guidelines to which he still must adhere, the only way Weiss could dodge that subpoena might be to resign from both his US Attorney and his Special Counsel appointment.

And if Weiss and DOJ IG didn’t already have enough to talk about, there’s this passage from the NYT, with its truly epic use of the passive voice: “Mr. Weiss was quietly assigned,” by whom, NYT didn’t choose to explain.

NYT corrected their earlier error on the date of the failed plea hearing, but the date here is probably another: Both IRS agents and the FBI agent have testified that this occurred in 2019, not 2018. Indeed, Joseph Ziegler testified, then thought the better of it, in a period when Bill Barr was making public comments about all this, that Barr himself was involved, which would date it to February 2019 or later, in a period when Barr was engaged in wholesale politiciziation of the department. Who assigned Weiss to investigate Joe Biden’s son as Trump demanded it would already be a question for any inquiry into improper influence, but it’s nice for NYT to make it more of one, in a story otherwise repeatedly sourced to “a senior law enforcement official” who might know.

I don’t know whether Hunter Biden’s lawyers deliberately intended to bait Weiss into responding in the NYT. But under DOJ guidelines, he is only permitted to respond to these claims in legal filings, after Abbe Lowell makes it an issue after Weiss files an indictment somewhere, thereby confirming precisely the concerns raised in these stories and creating another avenue of recourse to address these issues.

But whether that was the intention or not, that appears to be what happened.

And that’s on top of the things that Gary Shapley and Ziegler have made issues by blabbing to Congress: describing documentation in the case file of 6th Amendment problems and political influence, the documentation showing that no one had validated the laptop ten months after starting to use it in the investigation, Lowell’s claims that after the IRS got a warrant for an iCloud account that probably relied on the tainted laptop, they did shoddy summaries of WhatsApp texts obtained as a result and mislabeled the interlocutors, and Shapley’s own testimony showing that he was hiding something in his own emails.

That’s on top of anything that Denver Riggleman’s work with the “Hunter Biden” “laptop,” the one Weiss’ office never bothered to validate before using, has produced.

Don’t get me wrong: if and when Weiss decides to charge Hunter Biden with felonies — and I assume he will (indeed, given that the Bidens are all together in Tahoe this weekend, he may have already alerted Biden to that fact) — it’s going to be hell for everyone, for the entire country. But the IRS agents demanding this happen will have made things far harder for Weiss going forward with their disclosures of details of misconduct conducted under Weiss’ watch.

Hunter’s lawyers have already documented the political influence behind this case

Swan’s story, but not the Shapley-parroting NYT one likely based on the same documents, describes that Hunter’s lawyers repeatedly raised the improper political influence on this case, starting with an April 2022 Powerpoint presentation on why DOJ would be stupid to charge Hunter.

In light of Trump’s ceaseless demands for an investigation of the first son, charging the younger Biden with tax crimes would be “devastating to the reputation” of the Justice Department, his lawyers asserted. It would look like the department had acquiesced to Trump’s political pressure campaign.

They noted that Trump had laid into Biden in his speech to the rowdy crowd right before the Jan. 6, 2021, attack on the Capitol. “What happened to Hunter?” the president said. “Where’s Hunter? Where’s Hunter?”

Biden’s lawyers argued that the political pressure was itself a compelling reason not to bring any charges. A move seen as caving to the pressure, they contended, would discredit the department in the public eye, especially if the Justice Department was only going to charge him with paying his taxes late.

Clark wrote Weiss directly in October 2022, in the wake of the October 6 leak, noting that the only reason an unusual (and potentially unconstitutional) gun charge had been added in the interim was pressure from Republicans.

On Oct. 31, 2022, he wrote directly to David Weiss, the U.S. attorney for Delaware who was overseeing the probe. Weiss had been appointed by Trump and had been allowed to stay on during Joe Biden’s administration to continue the investigation — and Attorney General Merrick Garland had pledged to give Weiss full independence.

But Clark argued in his letter to Weiss that charging Hunter Biden with a gun crime would torpedo public trust in the Justice Department.

Biden, Clark continued, didn’t use the allegedly purchased gun to commit a crime, didn’t buy another one and didn’t have any prior criminal record. No drug user had ever been charged with a felony in Delaware for buying a gun under those same circumstances, he wrote. Prosecutors, he alleged, were weighing gun charges for one reason: “the relentless political pressure from the opponents of the current President of the United States.”

After all, Clark noted, federal law enforcement officials had known about Biden’s gun episode since 2018. Only politics explained why years later they were considering charges, he argued.

In January, Clark did another presentation — the first one threatening to put Joe Biden on the stand to talk about how this case was targeted at him, not Hunter.

He said Joe Biden would undoubtedly be a witness at trial because of leaks about the probe. He wrote that just a few weeks before sending his letter, there had been two back-to-back leaks related to Hunter Biden and the gun issue. First, someone told The Washington Post that investigators thought Biden deserved tax and gun charges. Then a few days later, The Daily Mail reported on a voicemail Joe Biden left for his son in the window of time when he allegedly owned the gun. Surely the back-to-back leaks were part of a coordinated campaign to push the Justice Department to charge his client with crimes. And, Clark said, the leaks prompted the president to address his son’s legal woes the next day on CNN.

“There can be no doubt that these leaks have inserted President Biden into this case,” he said.

On April 26, Associate Deputy Attorney General Bradley Weinsheimer met with Hunter’s lawyers, which immediately preceded the efforts to reach a plea deal.

On May 11, Weinsheimer thanked Clark for the meeting and told him Weiss would handle the next steps. The prosecutors appeared to be nearing the end of their investigation, and they were ready to make a deal. This type of process is not unusual in high-profile white collar investigations where the targets of the probes have engaged with the government and signaled openness to pretrial resolution.

On May 18, another lawyer for Biden sent two Delaware prosecutors — including Lesley Wolf, a senior prosecutor in the Delaware U.S. Attorney’s Office — the first draft of a proposed deal, structured so it wouldn’t need a judge’s sign-off and wouldn’t require a guilty plea from Biden.

As noted, Weiss may have used Weinsheimer’s intervention to justify his request to be appointed Special Counsel, but if he did it may backfire.

At each stage, after another wave of pressure from Republicans, the ask from prosecutors got bigger and bigger, first to include the gun, then to include a guilty plea with diversion.

That’s what the anonymous senior law enforcement official claims was just “ebb and flow.”

On June 7, the immunity agreement was written as follows.

The United States agrees not to criminally prosecute Biden, outside of the terms of this Agreement, for any federal crimes encompassed by the attached Statement of Facts (Attachment A) and the Statement of Facts attached as Exhibit 1 to the Memorandum of Plea Agreement filed this same day. This Agreement does not provide any protection against prosecution for any future conduct by Biden or by any of his affiliated businesses.

In the wake of the failed plea, prosecutors demanded that all immunity language be stripped, a truly insane ask.

No wonder Hunter’s lawyers are furious.

No wonder Clark dropped off the case, to be replaced by a far more confrontational Abbe Lowell, so he could lay all this out.

NYT describes that David Weiss thought that being provided Special Counsel status, “could provide him with added leverage in a revamped deal with Mr. Biden,” which is not something included in the Special Counsel regulations. Those regulations especially don’t envision getting that status for the purpose of reneging on already signed deals.

Abbe Lowell (who is not named in either of these stories) has something else entirely in mind.

Gary Shapley used notes that utterly contradict his public claims to dupe credulous reporters like Broadwater to build pressure on Weiss. Hunter’s team laid out that long before that, they had made the case that this prosecution was designed to target Joe Biden. Since then, they’ve identified at least one witness who could testify that Weiss is pursuing charges he knows other Americans wouldn’t face and learned of another — Ziegler’s first supervisor — who documented improper political influence from the start.

That’s before getting discovery that may show how Ziegler sat and watched as Hunter Biden’s digital identity got stolen and rather than doing anything to halt that attack in process, instead responded by deciding to charge Biden, not those tampering with his identity.

Sure. Weiss can charge the President’s son now — and he may well have already refiled tax charges in California.

But like his bid to renege on the original terms of the plea deal, that may not work out the way he thinks.

113 replies
  1. Upisdown says:

    “Biden, Clark continued, didn’t use the allegedly purchased gun to commit a crime, didn’t buy another one and didn’t have any prior criminal record. No drug user had ever been charged with a felony in Delaware for buying a gun under those same circumstances, he wrote. Prosecutors, he alleged, were weighing gun charges for one reason: “the relentless political pressure from the opponents of the current President of the United States.”

    And I would be willing to bet that no drug user had ever been similarly charged because feds had to use an autobiography to document the drug use. That is probably a one-off.

    • bmaz says:

      I have defended clients in rather large drug conspiracies. Have never seen that charge. Ever. Even when it was out there. It has been used before apparently, but not commonly or often.

      • scribe says:

        I am aware of a case along the lines – using the possessing-drugs-and possessing-firearm charge as an agreed resolution by plea.

        The guy was addicted and dealing pot. While he and his love-and-save-the-fallen-bad-boy girlfriend were sleeping someone came into their dwelling. Probably to collect a debt or steal the stash – never fully explained. Addicted dealer boyfriend slept with a handgun under his pillow – not unreasonable in context.

        Intruder capped girlfriend then left. Probably by mistake but I don’t know for sure. That woke her up. Boyfriend never pulled his gun – perp got the drop on him. Girlfriend survived, went to hospital, seemed to get better.

        Her parents had now had enough of her charity work and sent her half-a-continent away to recover from her injuries and her boyfriend. She was, after all, a graduate of a fine highly competitive Eastern college and surely could do better (even though boyfriend was from a good, well-to-do family and fell into addiction through painkillers, post-auto accident). A couple months later, while in that distant state, she threw a clot and died.

        So, now it’s a murder case.

        The cops – local and feds – are leaning hard on boyfriend believing, not without reason, he knew who capped his girlfriend. His family gets him one of the better lawyers in the state to defend him and he has the sense to STFU.

        After probably a year of this boyfriend, through counsel, makes clear he won’t give up the perp. Code of the street. More to fear from talking than from jailers.

        Counsel and the feds work out a plea to a felony charge of possessing a firearm while using/addicted to illegal drugs. He does 6 months. Murder remains unsolved. No SoL on murder so the authorities figure he’ll talk sooner or later and implicate the shooter, but they’re going to take their pound of flesh now for not talking now by sending him up.

        Yeah, it’s a one-off. I know. But it did happen.

        One cannot discount – in discussing the complex of facts and circumstances surrounding the decision to charge the gun charge against Hunter Biden, a couple things.

        1. Not only did he acquire and possess a firearm while an addict (itself still a crime, even if of dubious constitutionality post-Bruen), but he also lied on the 4473 form he filled out when going through the mandatory background check. No one seriously disputes the constitutionality of a lying-on-a-government-form charge. 5-year felony, IIRC. You might recall, the Secret Service attempted to grab the gun dealer’s records of the transaction and the dealer – following the law about such things – successfully refused. (That, at a time when Hunter was not entitled to Secret Service protection, let alone cop-interdiction.) Not that they were trying to cover for him or anything, of course. Lol.

        2. He was pretty idiotic about handling the gun, allowing it to be disposed of in a trash can outside a supermarket. Cf. Youngstown about letting loaded guns lie around.

        3. There are all those naked-Hunter-holding-a-gun pictures on the laptop from Hell. Some of them may well have been taken while in California or some state other than Delaware, meaning there’s a strong likelihood he not only traveled across state lines with a gun he should not have had under federal law, but probably broke local/state gun control laws in more than one way while in those non-Delaware states. Some of the pics include putative hookers, so Mann Act or some sex-trafficking charge while possessing a gun. Not insignificant.

        4. Seen from the POV of the gun-owning population through the lens of Hunter’s dad being the biggest proponent of gun control possibly ever to inhabit the White House, not charging the gun charge would reek of hypocrisy, rights-for-me-and-not-for-thee-you-plebian, and special privilege no end. One cannot pass a background check if one holds a medical MJ card – even without actually using it but only getting the card just to get the card (9th Circuit said so several years ago)- and this crack addict gets a walk after lying on a 4473, probably carrying without a permit in one state or another (how did the gun wind up in the hotel rooms, anyway? In a locked case in his checked baggage?), then letting the gun be dumped in a trash can near a supermarket. And then the super-cops try to cover it up and ditch the records.

        Not going to fly. Cannot be allowed to fly. The optics of giving Hunter a pass on the gun charge just too odious.

        • bmaz says:

          Diversion is much harder here, though have gotten it for clients. The gun charge on Biden is a no brainer, and extremely easy to understand. Not used in a crime? Not a problem. The entire argument as to “gun crime” is stupid.

        • Shadowalker says:

          “ There are all those naked-Hunter-holding-a-gun pictures on the laptop from Hell. Some of them may well have been taken while in California or some state other than Delaware, meaning there’s a strong likelihood he not only traveled across state lines with a gun he should not have had under federal law, but probably broke local/state gun control laws in more than one way while in those non-Delaware states. Some of the pics include putative hookers, so Mann Act or some sex-trafficking charge while possessing a gun. Not insignificant.”

          Pictures can be manipulated and have been in the past and with the advent of AI being used can even create fake video with audio that can depict an event that never happened. This is not film, but digital which lends itself to manipulation that even an expert would have a hard time if not impossible detecting just by looking at the end product. Those pics would not be allowed as evidence unless they were backed up by other evidence as proof it occurred and not fabricated.

          • John Paul Jones says:

            People don’t realize how relatively easy it is, within Photoshop and similar programs, to blend layers of images. You import something into the image on a separate layer, and then adjust lighting, colour, contrast, etc., so as place whatever it is seamlessly into the image. You need to know what you’re doing, but, given a few hours, it can be done.

            • Shadowalker says:

              Even the metadata can be manipulated. Though it is much harder to cover your tracks if it’s sourced from a distributed system like iCloud.

        • emptywheel says:

          Some of those pictures depicting both guns in CA and sex workers likely were tampered with. As noted above, the heroic IRS whistleblower watched as people serially stole his digital identity and then used that to build his so-called case.

          Plus, as noted, Weiss already signed to the gun diversion. I’ll place my bets that Abbe Lowell will make that one stick.

          Note, one of the things the diversion included is lifetime ban on ownership.

          • Shadowalker says:

            Plus “the laptop” is not the laptop that would be used as evidence in a court. I’m pretty sure if Weiss had that evidence, Hunter’s ass would have been nailed to the wall with it back in 2019.

            • BrokenPromises says:

              Again with the speculation. 80% of your claims above are this and that and the other and could have and possibly none with a shred of evidence or actual import. Mann act? With adult prostitutes who are paid, as in an ad hoc verbal contract? Meanwhile Gaetz faced zero for allegations of transporting actual minors.
              And even then you’re just making it up. Your whole thing seems to be about attacking Hunter right through “nailed to the wall” via a computer you know virtually nothing about but you can implicitly waive aside EWs description of the one hacked one used (illegally it appears) against Hunter by the IRS agent and played off it seems by the DOJ. Either show an actual analysis or move on. Don’t just speculate. Ya sound like you work for the Republican Comer.

              • Shadowalker says:

                “ Mann act? With adult prostitutes who are paid, as in an ad hoc verbal contract?”

                There is no federal statute prohibiting prostitution. In fact, it is legal in some locales. Because of this, any federal prosecution requires the State (where it is illegal) to take action first, some parts even require the State AG request involvement from the USAG.

                “ Your whole thing seems to be about attacking Hunter right through “nailed to the wall” via a computer you know virtually nothing about but you can implicitly waive aside EWs description of the one hacked one used (illegally it appears) against Hunter by the IRS agent and played off it seems by the DOJ.”

                You seem to be confused. All I said was that the only “laptop” that mattered was the one currently in FBI custody and not these 10 or so “mirror” copies (ever wonder why none of them are exactly alike?) that someone obviously planted in the public space.

                “ Ya sound like you work for the Republican Comer.”

                Oh please. Comer is a fool, if he or any of the other congress critters had to go through the scrutiny that Hunter has they would be forced out of office long ago, because everybody has skeletons.

                • BrokenPromises says:

                  I won’t pretend I don’t fall victim to being confused but I can address that when things are made clear. Still what the heck does thins mean?:

                  “I’m pretty sure if Weiss had that evidence, Hunter’s ass would have been nailed to the wall with it back in 2019.”

                  Right from the first report of Hunter’s laptop at a strange computer shop I suspected a frame job. Now here’s EW detailing strange goings on in Hunter’s life and his laptop back in 2019. She brings up a plausible (if hard to support in court) scenario of just that frame job. There’s not one plausible claim against Hunter, other than tax payment problems and actual messing up with a gun purchase both of which the experienced lawyers here scoff at as a prosecutorial scenarios….

                  Your nailed to the wall back in 2019 is just another fill in the blank for me. Perhaps though you can reveal some believable story of that with evidence. For me it will require a much more factual basis than probably transporting an illegal gun across state lines.

                • Shadowalker says:

                  “ I won’t pretend I don’t fall victim to being confused but I can address that when things are made clear. Still what the heck does thins mean?:

                  “I’m pretty sure if Weiss had that evidence, Hunter’s ass would have been nailed to the wall with it back in 2019.””

                  The crimes Weiss appears to be prosecuting are those he had the evidence for in 2019 including the laptop (beginning 2020). SoL (which is 5 years) begins when the offense is committed. Weiss as a Trump appointee could have charged these crimes back then (instead of waiting for the last moment and risk a 5th amendment due process violation) and was only kept on to prevent political claims of a coverup.

                  Oh and the laptop is just a continuation of the Burisma/Ukraine operation that got Trump impeached the first time. They couldn’t get Ukraine to announce an investigation so they tried again with the DoJ.

        • zscoreUSA says:

          3. There are all those naked-Hunter-holding-a-gun pictures on the laptop from Hell. Some of them may well have been taken while in California or some state other than Delaware, meaning there’s a strong likelihood he not only traveled across state lines with a gun he should not have had under federal law, but probably broke local/state gun control laws in more than one way while in those non-Delaware states. Some of the pics include putative hookers, so Mann Act or some sex-trafficking charge while possessing a gun. Not insignificant

          Interesting example of the gun charge. In Hunter’s case, it looks like he did indeed travel with the gun across state lines. I have not seen any evidence or suggestion from any sources that the gun was ever located in California, but there are images of him with the gun in New Jersey, where he was most likely in possession of drugs based on images from the Marco Polo Report. And evidence he was in New York the next day. A few days later he was back in Delaware, when the family member threw the gun into the dumpster, so most likely Pennsylvania as well. That’s 3 other states, if there is some sort of interstate travel consideration, and if evidence is allowed to be taken from the laptop.

          The gun was in possession for less than 2 weeks. Curiously, or coincidentally, this 2 week time period was most likely when the Mac Isaac laptop was purchased as it connected to Hunter’s iCloud account (which was noted on this site and the Maryman Report for Daily Mail, 1 day before Dimitrelos lists under “Device Added Date”, & 2 days before gun tossed into dumpster), and he logged into a new iPhone 8 (in the midst of gun tossed into dumpster & dealing with the fallout, and not listed in the Dimitrelos Report chart Associated Date column).

          • emptywheel says:

            I would appreciate if you treated the Marco Polo report as evidence of a crime by Garrett Ziegler, not one of Hunter’s crimes.

            Once you understand that it relies on tampered and almost certainly hacked information, then you will be better able to sort through this morass.

            • zscoreUSA says:

              My interest in following Hunter Biden “laptop” is that I do believe it was most likely a hack and dump operation. I wouldn’t be reading through the Marco Polo Report or Laptop From Hell, etc, if I wasn’t trying to understand how the hack and dump would have went down, if indeed it was a hack and dump. My comments on this topic I intend to provide context to facilitate discussion of how this hack and dump played out, or the legal case involving Hunter.

              My comments in this thread I intended to be relevant to comments above mine, that are without source and which I did not bring up, about whether a gun charge is impacted by interstate travel and that there are photos with the gun in California. I apologize if my comments were not relevant or used a source that is not appropriate for such discussion.

              Outside of right wing crazy and ops, I don’t see anyone else covering this topic, so I am really grateful that you are. I feel like we are living through a Watergate or Iran-Contra size scandal, I don’t know if anyone else would agree.

            • Shadowalker says:

              There are three copies of the “laptop” in FBI custody. On October 20, 2020, Rudy gave a copy to the New Castle County PD in Maryland, who in turn transferred custody to the FBI. I remember an interview with Rudy where he seemed to insinuate that there were pictures of young girls that would be considered a crime. The reason why he gave it to them was because as a former prosecutor he knows what a crime looks like, and someone should be looking into it. Though he never actually explained why he gave it to Maryland.

        • bacchys says:

          I haven’t been able to find a single appellate case construing the “drug use” language of Form 4473. In short: it’s a grey area in the law. Whether Biden’s conduct constitutes lying on the form is not an easily answered question.

          [Welcome back to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. “bacchys” is your first username; you commented recently as “redleg13Z” which complies with the site’s standard. Thanks. /~Rayne]

    • jill_20AUG2023_1830h says:

      This is just one federal district and only a sample of cases


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  2. Patrick G. says:

    A while ago I decided to become a monthly subscriber to this blog – stories like this are the reason why. Time and again MW points out factual, sometimes deliberate errors on the part of reporters working at major media outlets, which set the narrative for the entire country. It’s a huge contributing factor in how we ended up with an incompetent criminal as POTUS. I’m not the smartest guy but I try to seek out the most accurate & reliable sources for news, and in my opinion Emptywheel deserves a Pulitzer. Thanks to Marcy & all the contributors to this blog for your hard work – you guys are providing an invaluable service.

  3. Wajimsays says:

    The MAGA crowd won’t be satisfied until they see Hunter Biden (and Hillary, of course) go to a jail in Benghazi. After that happens, they still won’t be satisfied. There is no appeasing these people, so why try? “Equal Justice Under the Law” is a noble idea, but we don’t now and very rarely have ever applied it

  4. Ginevra diBenci says:

    I hope Joe Biden hangs the stunning hypocrisy of Hunter’s gun charge around his GOP opponents’ supposed “2A” supporting necks on the campaign trail. Assault rifles are fine and cool and legal in the hands of teenage mass murderers, while Democrats need only buy a handgun under the flimsiest false pretenses to have hellfire and brimstone rained down for five years.

    It’s the Trump playbook, except that in Hunter’s case it’s true. He really is a victim a political prosecution, it seems. I’m not saying he’s innocent. I don’t like him, and he sure has plenty of amends to make. But this? The gun charge? This is not equal justice under the law. As EW writes, it is/may be “unconstitutional.”

    • Shadowalker says:

      Courts haven’t had to look at it before since it has been used so rarely. 2A proponents don’t want to raise the issue since being addicted is a crime in some circles, except when it happens to be one of their own.

    • bmaz says:

      It is not just the stupid “gun charge”. It is the tax counts. And once somebody pays attention they may figure out the problems with those as well. This is such stupid nut clownery, it is painful.

      • earlofhuntingdon says:

        Exactly. Apart from overt evidence of politicization, statistically, the tax cases would never have been charged. The taxpayer cooperated, and paid overdue tax and penalties. Further consequences, if any, are normally administrative. Charging him is abnormal. There’s also a looming SOL problem.

        The political and prosecutorial nuttery is costing taxpayers far beyond any benefit: there’s no further tax or fines to collect, the case is unique and of no or little value as precedent or deterrent. Weiss is fast becoming Durham 2.0

        • Lisboeta says:

          It appears obvious that Hunter Biden is being used as a proxy for his father. Republicans have no evidence on which to indict/impeach the President, much as they may wish to. Thus, Hunter is the pivot on which they’re hanging the epithet of ‘the Biden crime family’. Yes, Hunter messed up his life, but has tried to straighten things out. He’s paid his back taxes, and penalties. As an addict, he shouldn’t have owned a gun but, as far as we know, he never used it (other than to pose for some photos, the authenticity of which cannot be verified).

          Debating legal precedents applicable to Hunter Biden’s transgressions is interesting. But it’s a sideshow, conveniently diverting focus from ‘the Trump crime family’, where the evidence of familial misconduct is much clearer. Although, according to Eric Trump, the only family in US history that didn’t enrich themselves when they went into government is the Trump family.

      • Ginevra diBenci says:

        If David Weiss was accurately quoted in EW’s post, which makes sense, I would assume he meant the tax charges too. Maybe *only* the tax charges, depending on whether the diversion agreement had been signed at the time.

        As a longtime taxpayer myself, I find it frightening that someone who was in arrears with the IRS could pay off his entire outstanding debt and still be charged. That seems both unfair to the individual and a gross misuse of IRS resources, which we taxpayers fund and which would yield much better return on our dollars if they were directed at getting money from those who’ve never paid their debts.

    • dimmsdale says:

      Yes, very much this! Got to admit, though, much as I enjoy Marcy getting bumptious with the press corps propaganda mules, I also value her “attaboys” for the good reporters who actually manage to serve the public. For me these last five or so years have been a real workshop on how to keep one’s wishes from tainting one’s perceptions of who the trustworthy info sources are, and the standards this site maintains are essential to keeping all that straight.

  5. Fancy Chicken says:

    Question- Is it possible for this to be resolved before general election campaigning begins or will the GOP succeed in hanging this grind stone around POTUS’s neck just in time for that to try and create whataboutism propaganda to compare with Trump’s possible convictions at that time. I have no sense whatsoever about a potential timeline for Hunter’s case as it seems there will be a substantial amount of pretrial motions and hearings.


    • Knowatall says:

      With a tip of the hat to Stephen Colbert, the RWNJs care not a whit about truth (or logic). The hatred is a pathology; that’s why this is all so dangerous.

    • BirdGardener says:

      I’ve been speculating that one of the reasons for reneging on the initial deal is to string the case out as long as possible in order to keep throwing shit, as you suggest. Even if the public eventually comes to understand how corrupt this investigation and prosecution is, it’s still a win in that it brings discredit to yet another federal institution. In that way it’s akin to defunding programs that investigate food safety and the like. The long-term aim is to weaken our system of checks and balances and allow the powerful, corporations and individuals alike, freedom to act without fear of government oversight. (And when I say government here, I‘m meaning the ordinary civil servants who conscientiously do their jobs.)

      It’s said that the cleverest way to come out on top is to plan your encounters with your opponent so that you win something important no matter which direction the engagement goes. If the prosecution of Hunter Biden ends with his acquittal and the discrediting of the special counsel, it will nevertheless have served multiple purposes that benefit those who have been undermining our democracy.

      • earlofhuntingdon says:

        Unlike Trump, who leaves a trail of bread loaves of criminality behind him, Joe Biden doesn’t even leave crumbs. With no policy positions to offer against Biden, Trump and his GOP need to invent shit to attack him, and have less remorse than the corporate apology industry about how much damage they do along the way.

        • ButteredToast says:

          This is exactly it. And the particular shit they’re making up  has the related goal of neutralizing Trump’s most glaring electoral liabilities: criminality and corruption. (That is, most glaring to those who haven’t yet been sufficiently repelled by his personal nastiness, incompetence, and bigotry.) The only way to do this is to smear Trump’s opponent as being just as bad or worse. Hence repetition of the words “Biden crime family” to distract from the fact that Trump himself, his children, and his son-in-law spent his entire presidency profiting off their name and positions. The fewer specific claims the average low-info voter is aware of, the better. All that matters is the manufacture of a cloud of scandal. Just as Republicans did with Hillary Clinton.

  6. soundgood2 says:

    Besty Woodruff Swann has been quietly doing good reporting for a long time. She gets overshadowed by her husband. It would be easy to do the story using just the documents and then ask for comment from your insider sources. Write up their comments in a separate story and you don’t have the problem of your sources coloring your reporting. But then you wouldn’t get as many insider tips since their only reason for talking to you is to get you to tell the story they way they want it told. They talk to you because they know you will do that.

  7. Harry Eagar says:

    Would not bringing felony charges against HBiden now, after negotiating minor misdemeanor charges, lead to credible charges of prosecutorial overreach?

    Or, if Weiss were to limit new charges to something similar to the original tax misdemeanors, risk getting a California jury that would say, meh, don’t use dynamite to fish for minnows?

    • bmaz says:

      None of that, it is all complete bullshit. Not sure how any of this is an actual issue. Beyond stupid, do not buy off on this crap.

      • DaveVnAz says:

        You to me you are like Cassandra. It takes a lot of time rereading and trying to understand what you are uttering and then the light comes on, that you are probably right.

        • bmaz says:

          I don’t know. But have been around a bit, and don’t let anybody tell you this is normal. It is most certainly not.

      • zscoreUSA says:

        That would be interesting to get him under oath, which has already happened, as he was exposed by Hunter in Delaware state court recently. Will we ever see that testimony?

        If Mac Isaac is part of a plot to hack and dump Hunter’s material, I would imagine his role was designed to stick to as much of a script as possible. For example, if he claims he made a call to Hunter to pick up a laptop on a certain day, then he probably did. There would be a matching phone record.

        But curious holes and inconsistencies are there, including when he first reached out to the FBI or Giuliani and when his father walked into the Albuquerque FBI office.

  8. Sussex Trafalgar says:

    Excellent piece, MW!

    It has also become apparent that both Judge Maryellen Noreika and now SC David Weiss are intellectual lightweights and fearful of being held accountable by MAGA Republicans and the Federalist Society, most notably by Leonard Leo and his billionaire Republican backers.

    And David Weiss is petrified of testifying under oath to the Jordan House Republican Committee this October 2023.

    Weiss begged AG Garland to provide him SC cover in order to cancel the original Hunter plea deal as part of Weiss’ effort to fend off the insults he’ll surely receive in his October testimony. Weiss is an empty suit and nothing but a beard for Leonard Leo.

    • earlofhuntingdon says:

      You’re a little out over your skis. Judge Noreika is not obviously a legal lightweight.

      She properly questioned the defendant about his plea agreement and then refused to accept it, because the defendant’s understanding of what was in it differed from the position the DoJ took at the hearing, a position that reflected Weiss’s apparent ongoing attempt to renege on the plea deal. Absent a plea agreement, she had no jurisdiction to try the underlying charges. Dismissal was warranted.

      • Sussex Trafafgar says:

        Over my skis; what a dumb comment. Judge Norweika took the extremely easy and safe legal way out of allowing the original deal between the prosecutors and the defendant to be approved. She wasn’t looking out for the defendant’s rights; she was intent on legally terminating the original agreement.

          • Sussex Trafalgar says:

            That’s right! She used her position as a judge to terminate the original agreement. She also had the legal right to put new conditions on the original agreement in order to protect the defendant and preserve the original intent of the original agreement, but her goal was always to kill the original deal per the desires of the Republican MAGA politicians.

            • SteveBev says:

              It seems you are imputing motives based on an assertion of what she ought to have done in your view, which in turn rests upon an number of assumptions re the issues as to what the proper scope of her jurisdiction is in the circumstances as they then appeared.
              Sending the parties away for them to assess for themselves what their respective positions are in the light of circumstances and to make further submissions to the court as to how the matter should proceed is surely, at the very least a reasonable judicial position to adopt , so not warranting the accusations of bad faith and political motivations you suggest?

              • Sussex Trafalgar says:

                A judge who didn’t have a premeditated desire to terminate the original plea deal could have easily avoided the issues she raises immediately following:

                “Noreika expressed frustration that the two sides structured the tax and gun plea deals in a way where she would need to approve the gun deal, but had no powers to approve or reject the tax agreement.

                The diversion agreement – which isn’t often submitted to a judge – has a provision that says if there is a dispute over whether Hunter Biden breached the terms of the deal, it would go to the judge for fact-finding. Noreika questioned why it would “plop” her in the middle of a deal she didn’t have a say in, and potentially block the Justice Department from bringing charges, a function of the executive branch.

                Biden’s attorney said given the politicization of the case, they wanted a neutral arbiter like Noreika to handle any potential disputes. The judge said she couldn’t decide on the fly if that was a legally workable plan.

                “I cannot accept the plea agreement today,” Noreika said.”

                • emptywheel says:

                  When Noreika asked if there were precedent for said “plopping” in the middle of a deal, prosecutors couldn’t find one, and that is the point.

                  PLUS, you’re ignoring that she unpacked a difference in understanding of the scope of the immunity, which actually IS really critical.

              • earlofhuntingdon says:

                Yes, although it’s not really a question. Rewriting the parties’ agreement is not Noreika’s job. She could have mediated a settlement, but that was foreclosed by the agreed dismissal.

                Beforehand, though, Noreika did not “terminate” the plea deal. She chose neither to approve nor disapprove it. She asked for more briefing, and for the parties tor confer with each other about wtf they were asking her to approve.

                She has since dismissed the tax charges without prejudice. They could be refiled in a district that has both jurisdiction and venue, assuming the govt chooses to do that and does so before the SOL shuts that off.

                Hunter could seek specific performance of the plea agreement, as he suggests he will do regarding the diversion agreement. But he may not want to, given the unusual statement of facts, and the possibility he could win or get a dismissal owing to evidentiary problems, if nothing else.

                Weiss claims that’s off the table. The clamoring of the GOP peanut gallery – an intense politicization of the DoJ’s business that the GOP claims only Democrats engage in – suggests he might try the cases almost regardless of their merit. As Marcy has said, that could lead to big problems for him. He might wish he’d agreed to the original plea deal.

                • SteveBev says:

                  Thank you for enhancing my understanding of the process available to the court and the parties re the possibility of the judge mediating a potential deal.

                  That point and the others serve to emphasise that even if there is a suspicion in the mind of the judge that there might be some backsliding by the prosecution, it is for the defence to figure out how best to address the situation including how to get the judge to rule in their favour if that’s the course of action that is open to them.

                  It just struck me as being unnecessarily critical of the judge to expect her to just step in a fix what had turned into a mess. Especially if there is the possible issue of one party behaving in bad faith.

              • Sussex Trafalgar says:

                This was an easy “workaround” for any judge intent on protecting the defendant’s rights and protecting the intent of the original plea deal. The judge took the easy way out to kill the original plea deal.

                “Noreika expressed frustration that the two sides structured the tax and gun plea deals in a way where she would need to approve the gun deal, but had no powers to approve or reject the tax agreement.

                The diversion agreement – which isn’t often submitted to a judge – has a provision that says if there is a dispute over whether Hunter Biden breached the terms of the deal, it would go to the judge for fact-finding. Noreika questioned why it would “plop” her in the middle of a deal she didn’t have a say in, and potentially block the Justice Department from bringing charges, a function of the executive branch.

                Biden’s attorney said given the politicization of the case, they wanted a neutral arbiter like Noreika to handle any potential disputes. The judge said she couldn’t decide on the fly if that was a legally workable plan.

                “I cannot accept the plea agreement today,” Noreika said.“

                • bmaz says:

                  “The diversion agreement – which isn’t often submitted to a judge…”

                  This is absolute bullshit. It always goes though a judge.

                • earlofhuntingdon says:

                  Straws don’t like to be grabbed that much. You don’t argue as if you understand the legal meaning of words, or even their usual and customary meaning. You just repeat yourself and misunderestimate the role of the judge in an adversarial proceeding.

                  It would be hard for the court to protect what you call the agreement’s original intent, when at the hearing, the parties didn’t agree on what that was, despite having earlier signed it. (EW has argued it looks like the govt changed its mind for undisclosed reasons, and tried to blame the defense.)

                  And when Noreika says, for example, that she “can’t decide on the fly,” and “cannot accept the plea agreement today,” she means not today. Give me more information – and btw, prosecution and defense, get your act together – so that I can come to a decision. If she had rejected the agreement outright, she would have said so.

        • earlofhuntingdon says:

          Apart from the gun diversion, there was no deal to approve. Defendant and prosecutor differed sharply about what the agreement meant. Under basic contract law, that means there’s no deal for Noreika to approve. Why – arguably because Weiss bent to political pressure to renege on it – is another matter.

          • bmaz says:

            No, they did not. Both sides took it to the court. But then something changed. Could it have political? Yes, almost certainly. It was not legal.

  9. earlofhuntingdon says:

    That epic passive voice bit is doing a lot of hidden work. The DoJ might have had legitimate concerns about the legality of Hunter’s business transactions – if they had substantial evidence beyond his status as Joe’s son. But I don’t know what basis they would have for questioning the ethics of them. The most likely arguments they might have would imperil a great swath of corporate America’s transactions.

    As you say, there’s the missing link: exactly who “quietly assigned” Weiss to the Hunter “case,” when, and why. But there’s a missing rationale for why Weiss was “kept on” the case by “officials in the Biden administration to complete the job.” The implication is that there was a serious job to complete and it made sense to let Weiss complete it. What’s missing is that keeping Weiss on the job was probably an attempt to avoid the appearance of political interference, regardless of how credible a case Weiss had.

    • soundgood2 says:

      Same reason Durham was kept on and look how that turned out. Democrats are so busy trying to prove they aren’t acting politically, they bend over backward and end up acting politically. It makes them look weak. They need to stand by their convictions. If there is nothing to investigate, cancel the investigation and stand by the decision. Appeasement never works.

      • Just Some Guy says:

        Not sure I buy that Durham going 0-for-2 hurt the Democratic Party at all. Sure, he released that goofy report, but just about everyone across the political specrtrum who commented on it noted how tenuous Durham’s report was to what actually occurred.

        To make a bad sports metaphor, your comment is like if I was watching a so-called star hitter strike out every time at the plate, but the guy a couple of seats over is insisting those strikeouts hurt the pitcher’s team.

  10. DinnerAtAntoine’s says:

    Thank you for the great work.

    Primarily I’m wondering – can Lowell truly enforce the plea/diversion immunity deal?

    The decision to switch out Wolf seems significant. It could be any civil or criminal matter, the lawyer heading up a significant matter would be kept on it until it was completed.

    And the decision to remove the investigation team – or were they replaced with new personnel?

    Are these matters of intrigue or are these common bureaucratic maneuvers leading to incompetence & breakdown? I don’t know.

    Another aspect is it really behooved Weiss to wrap this up. Not just politically or from an evidentiary stance, but (good lord):
    1 ramping up tax charges in 1-2 new jurisdictions.
    2 the gun charge, weak already has just been neutered by the 5th Circuit.
    3 FARA – this is not easy, though IMO it’s always looked like HB was lobbying to me.
    4 The venues. The USAs in DDC & SDCA declined for a reason, these are charges that never get pushed through.
    5 The draft plea deal may itself become evidence introduced by HB.
    6 The very fact Weiss personally stuck his pen into the plea deal is a huge problem. He’s going to get a recusal motion eventually.

    Wolf was doing Weiss a favor. Who wants to try this stinker?

    • Shadowalker says:

      “ 3 FARA – this is not easy, though IMO it’s always looked like HB was lobbying to me.”

      Looks is not proof in a court. Even Hunter’s business partner said no business was discussed with Joe Biden (at least while he was in office). Both Hunter and his father state no business dealings were ever discussed, official documentation bears this out. So either everyone is lying to the extent that no documentation would be kept (VP is also under the PRA) or the looks don’t match with reality. The burden of proof is always on the accuser.

      • DinnerAtAntoine’s says:

        I completely agree about the point about POTUS. I was talking about Rosemont advising clients on ending sanctions & obtaining private equity investment. It’s the reason why the GOP claim that HB did/knew nothing about oil & gas is a blatant lie, HB brought real knowledge & value IMO, but it also underlies possible lobbying when he tried to use connections in DC. Perfectly normal & appropriate connections but still possible lobbying.

  11. Savage Librarian says:

    One Damn Thing…Quietly Assigned

    It just goes to show
    they’re so foul they know
    when their lowdown is so low
    it’s billed ebb and flow.

    Washed to and fro
    how far can they go,
    with their dinghy so
    snagged by their own undertow?

  12. BobBobCon says:

    MW has been ripping into Washington Post editor Philip Rucker for his messed up focus on Hunter Biden.

    I think it’s telling that for over a year Isaac Chotiner has also been mocking Rucker’s book “I Alone Can Fix It” with this only the latest:


    Chotiner has pointed out over and over how the book ridiculously laundered Meadows and Ivanka Trump’s points of view, in ways which have increasingly been clear are hopeless fabrications.

  13. Joeff53 says:

    Re the immaculate appointment of Weiss to the case, the Times’s default editorial voice is the Passive Omniscient. This raises concerns.

  14. Steve_R_ says:

    I’m going to ask what is probably a stupid question–is there any chance the ambiguity in the plea agreement was recognized and deliberate, on both sides?

    Weiss had already asserted that the investigation remained ongoing and that assertion might have been important to him (for reasons beyond the prospect of bringing additional charges against Hunter). Unless he had some target other than Hunter it would appear wholly inconsistent if Weiss were to concede that Hunter had immunity vis-a-vis uncharged conduct.

    Meanwhile, Chris Clark could have felt the admittedly ambiguous language created a decent argument that the plea agreement afforded Hunter the immunity Weiss was not prepared to make explicit. If that dynamic were at play, Norieka’s thoroughly appropriate inquiry seeking to resolve the ambiguity was certain to scuttle a central goal of either Weiss or Hunter.

    While I expect it’s horribly out of place in a plea agreement, it wouldn’t be the first instance where parties to an agreement decided that a contract, treaty, etc. with some unresolvable ambiguity was better than no agreement at all.

      • jdmckay8 says:

        There’s exceptions to every rule. If lawyers involved in just this Hunter case were adhering to rules, ethical and otherwise, this thing would have ended +/- 3 years ago with a whimper.

      • jdmckay8 says:

        I assume you meant to reply to me, since nobody else is participating in this conversation. :)

        I will try to be clearer. You said: “Both parties on a plea agree (…)”. There’s a lot in those few words. Like agree… to abide by everything they discussed would be in the agreement. . Both Hunter’s lawyers have said part of agreement included Hunter would not be charged with anything else implicated by info on the computer. He would only be liable for crimes commuted in the future. Especially taken from your comments about Lowell for quite a while, I assume he’s a straight shooter on these statements.

        Marcy has suggested Prosecutors were attempting to bamboozle Hunter and his team as to no more liability, while possibly already planning more serious charges in other districts. Speculative yes, but well grounded speculation.

        Your statement: “Both parties on a plea agree so as to get it done.”… implies good will and reliability of both parties intentions. Some lawyers here and elsewhere have suggested the Judge’s handling of this suggest a critique of Hunter’s lawyers for not having clarity written into the agreement: no other liabilities. I can’t speak to that, other than it seems reasonable.

        But your statement omits even a hint of this, entirely. Especially given Steve’s question you were replying to:

        is there any chance the ambiguity in the plea agreement was recognized and deliberate, on both sides?

        If he’s relying on you, you can do better in response. Among the many things easily inferred from why Marcy’s writing is so effective, attention to detail is on quality near the top of the list.

    • emptywheel says:

      Keep in mind that (as both NYT and Politico describe, but not with a full explanation), Lesley Wolf, the woman who had negotiated the deal, was not arguing before Noreika.

      The subtext from the Politico reporting SUGGESTS that she was replaced so that someone who was not a party to the deal could change the terms of it.

  15. jdmckay8 says:

    Great post. Illuminating, connects a lot of dots.

    I guess these 300 pages are a leak? (no attribution AFAIK)

    I can see this unfolding a number of completely different, unrelated ways. Weiss looks to be between iraq and a hard spot. I’m thinking he regrets not holding a press conference early on, and explain, matter of factly, any information pulled from that macbook was too badly tainted to be of any use. If what actually happened in the whole laptop process ever gets told, I suspect Comer and Weiss will be publicly disgraced, at the least.

    This improper influence (as you say) has been going on for a loooong time, nothing new.

    One last thing: I watched entire Comer hearing with the 2 IRS agents a few weeks ago. Aside from what you mentioned (eg. both IRS agents’ inconsistencies and more), the hearing was tame by Comer and Jordan standards. Dan Goldman was best informed person in the room, and punched some holes in both IRS agents stories. AOC was more intently civil, than prepared.

    Jordan said of Weiss (my recollection): (a good while ago… 1 year + ?) AG Garland had not interfered, and promised him any resources he needed including SC. Then at that time (eg. when this hearing occurred) Weiss had announced settlement agreement and Republican howling began. Jordan’s unspoken assumption, contrary to anything Weiss had ever said… contrary to anything almost anyone involved ever said excluding 2 IRS agents, underlied his statement: “Why did Weiss change his mind?” (eg. clear implication was Jordan knew someone in Garland’s office had pressured Weiss to make this settlement.) Jordan called this “changing his mind”.

    I hope I captured the absurdity.

    Comer’s worse: He described Hunter’s Ukraine $$ being funneled through all kinds of off-shore accounts to hide transactions from the IRS, saying: “This is what Joe Biden and his crime family always do.” (my emphasis). There was nothing in that hearing to substantiate this. Absolutely nothing.

    I’m expecting a Repub Oct. surprise, because they always do it. I think there’s good chance it may not work this time, with Comer and a few others being exposed for the fraudsters they are, as it seems you laid groundwork in this post. That would be, for me, the best justice available to this hot mess. It would at least give this country a chance to turn things around.

    Thx again.

  16. Frank Probst says:

    Statute of limitations question: What legal moves “freeze” and/or “unfreeze” (apologies for not knowing the exact legal terms) the SOL? If you drop charges in one jurisdiction, does the original SOL apply in terms of being able to refile in another jurisdiction? Or does the first filing “freeze” the SOL in some way? Here, it appears a plea deal fell apart in one jurisdiction, and the charges may now be filed in another one. Hunter Biden is obviously well aware of the potential charges. So how long does he have to keep looking over his shoulder, so to speak, in terms of his legal jeopardy?

    • emptywheel says:

      Until October at least.

      But Weiss doesn’t have much time on the current charges, no.

      I expect the agents will try to investigate Hunter’s benefactor at this point, to get to 2021 conduct.

    • earlofhuntingdon says:

      The general statute of limitations on federal crimes is five years. A few crimes have no or longer SOLs. Famously, there’s no SOL on crimes subject to capital punishment. A few acts will toll or suspend the running of an SOL, such as being a fugitive. In the case of a dismissal, as here, or mistrial, prosecutors generally have seventy days to refile.


  17. BRUCE F COLE says:

    I went over the back-and-forth between Hunter’s team and Weiss’, as described in the Woodruff Swan piece (under her “Making a Deal” sub-header), and several things raise questions in my mind:

    1) The process of entering into negotiations begins with Clark’s banging on DOJ upper-level doors (including Garland himself) via email, to no effect for almost half a year, until he hits ADAG Weinsheimer, who engages with him. Clark is jonsing for a plea deal at this point, to the extent that he’s willing to go over Weiss’ head to make it happen. The fact that he ran into brick walls in that effort for months is reassuring to me, vis a vis the “hands off” treatment that Garland advertised his relationship with Weiss’ Hunter inquiry would take. The fact that Clark eventually did get an audience is troubling in that respect, especially given the wording in his ask to Weinsheimer:
    “Please advise whether you would be the appropriate person to hear our client’s appeal, in the event that the U.S. Attorney’s Office decides to charge Mr. Biden.” Um, ahem. Jesus H Chirst, read the fucking US Code, Counselor. Does the term “Apellate Court” ring a bell?

    At least Weinsheimer palms it back off to Weiss with dispatch (but only after arranging a quick sitdown with Clark and Weiss), but one has to assume that he didn’t do that (i.e., engage with Clark in the first place) without higher-up review and approval. Does this call into question Garland’s hands-off promise noted above? Is this an avenue of “appeal” that’s available to anyone else who’s being investigated by the Feds? Might Weinsheimer’s insertion into the process give undo credence to Shapley and Ziegler’s “whistleblowing?”

    2) That contact with Weinsheimer was the beginning of the negotiations, and it included a plea deal proposal by Clark submitted shortly thereafter. As with all negotiations at their beginning, Clark’s proffer was extravagantly in his client’s favor, the kicker in that regard coming at the end of that first proposed deal from Clark:
    “The Department of Justice agrees not to criminally prosecute Robert Hunter Biden and the affiliated businesses (namely: Owasco P.C.; Owasco LLC; and Skaneateles LLC): (a) for any federal crimes arising from the conduct generally described in the attached Statement of Facts (Attachment A); or (b) for any other federal crimes relating to matters investigated by the United States.”

    “(b)” is a non-starter for any prosecutor who is sentient, I would think, and indeed that blanket immunity clause is dropped in a response from Clark to Wolf, 3 weeks later, which includes Wolf’s “must-have” terms of the plea deal (which is basically the one that they eventually went to court with). Here’s how Ms Swan describes it:
    “On the evening of June 2, Clark emailed Wolf to tell her protection from prosecution was vital to the deal. He sent along sample language saying the United States would not prosecute Biden for ‘any federal crimes arising from the conduct generally described’ in two documents that would be part of the final deal. That deal would have two parts: a Memorandum of Plea Agreement for the tax charges and a Pretrial Diversion Agreement regarding the gun.

    ‘This language or its functional equivalent is very critical to us,’ Clark added.

    LEFT UNSTATED WAS A KEY IMPLICATON OF A BROAD IMMUNITY PROVISION: It would give Hunter Biden a layer of protection if Trump or another Republican won the 2024 election and ordered a wide-ranging criminal investigation into the Biden family — something Trump has repeatedly promised to do.”
    [caps mine, because I’m HTML challenged]
    Note that Clark is now relying on the language of Section A of the deal to protect Hunter, in lieu of the blanket immunity clause that they dropped at Weiss’ demand. “Left unstated” is the key to why this thing went sideways.

    Shouldn’t Clark and his team have expected that their interpretation of what the exact conduct those business dealings covered might differ from Weiss’ interpretation? Was FARA even hinted at in this respect by Wolf or anyone on Weiss’ team? And shouldn’t Hunter’s lawyers have assumed that blanket immunity was not in the cards anyway, given their having to drop that clause, at Prosecution’s direction, from the text of that last proposal they made?

    3)Here’s the final text of the plea deal that they all went to court with:
    “The United States agrees not to criminally prosecute Biden, outside of the terms of this Agreement, for any federal crimes encompassed by the attached Statement of Facts (Attachment A) and the Statement of Facts attached as Exhibit 1 to the Memorandum of Plea Agreement filed this same day. This Agreement does not provide any protection against prosecution for any future conduct by Biden or by any of his affiliated businesses.”
    NB: Clark’s immunity from prosecution for any “conduct generally described” in the Statement of Facts is now immunity from “any federal crimes encompassed by the attached Statement of Facts.” That’s where the crux of this “confusion” on Hunter’s part lies, IMO. They got that final language on June 7 and the court didn’t convene to hear the case till 7 weeks later. During that time, did his lawyers clue him into the fact that that change in terms might have some impact on his exposure? Sure seems like a significant change of wording to me.

    I agree with the sentiment that Hunter’s legal troubles are greater than they would be if he weren’t the President’s son. And the political machinations of Comer et al were, and are, heinous and anti-rule-of-law. But for him to go into that court with the expectation that he was free and clear going forward was a counseling misstep his lawyers made, and Noreika was on-target to bring that to light. I think his lawyers fucked up in that respect.

    • emptywheel says:

      We shall see, I guess.

      The important point–described but not really pursued in the reports–is the removal of Wolf. I think there’s a non-zero chance she’s the “associate” who told the NYT that Weiss stated that no one else would be charged for this stuff.

      • BRUCE F COLE says:

        I think you’re right to dwell on that, but it might not be that Wolf was taken out of the picture because she was too amenable to Clark’s arguments; it may be that she was half of a good cop bad cop routine that ended up going south on them when Norieka lifted the veil.

      • BRUCE F COLE says:

        Thanks for the meaningless insult. Very colorful.

        Honest question: have you ever gone over the head of a USA who was investigating your client(s) pre indictment, asking multiple persons in DOJ admin (I won’t even suggest the AG him- or herself, whom Clark did indeed solicit), over the course of several months, whether you could appeal to them if and when an indictment should be handed down by your local USA?

        If not, have you ever known or heard of anyone other than Clark doing that?

        Followup: Is this in any conceivable way an acceptable route for getting the ball rolling on a plea deal for anyone, especially for a relative of the AG’s boss?

        • emptywheel says:

          The public record is full of people who’ve done that — Rudy and VicToensing were pitching as a service for the people who CAME UP with this shit against Hunter Biden in the first place.

          It’s fairly normal for well connected lawyers to appeal to supervisors. And IN THIS CASE there’s a shit-ton of evidence of misconduct, some of which is only becoming public now.

    • Shadowalker says:

      There is one immunity provision you neglect to factor in. Statute of limitations. Any alleged crimes Hunter or a business he has ties to would HAVE to be charged before they run out, or else they can’t even continue to investigate them, let alone bring them to a court only to have them dismissed with prejudice. Limitations are why Weiss tried the plea deal in the first place, because he is simply running out of time.

      • BRUCE F COLE says:

        Certainly Weiss had an SOL dog in that hunt as well, thus his willingness to entertain it. But he didn’t initiate the process according to the narrative Swan puts forward (based on Clark’s own revelations). Clark was banging on DOJ’s doors over Weiss’ head for months and then when ADAG Weinsheimer finally set up a meeting between Clark and Weiss, they both were ready to deal, certainly, but Clark’s team put forward the first draft just one week after Weinsheimer told him the ball was in Weiss’ court.

        But on the other hand, Clark’s incessant pestering of higher-ups at the DOJ was also SOL-influenced: he knew that charges, if they were to come, were imminent for that reason. My biggest problem with all of this is Clark’s multiple asks of DOJ personnel to help him, should charges be brought. That stinks to high heaven.

  18. Scribe says:

    Re the immunity in the original plea deal … it would operate just like a pardon, wiping out any chance of future prosecution. And, like a pardoned criminal, there’d be no way Hunter could avoid being compelled to testify about all of his doings.

    Just like we learned when Bush the Younger commuted, but did not pardon, Scooter Libby, looking those many years ago.

    Pop wanted to make sure the son he is so proud of would have to keep his mouth shut.

    • emptywheel says:

      You’re suggesting, with not a shred of evidence, Joe is now taking a role in his son’s defense?

      • earlofhuntingdon says:

        The way I read it, yes scribe did what EW asked about: “Pop wanted to make sure…,” although that sentence has the nuance of a 2×4. That Joe loves his son without qualification, I believe. We should all be so lucky. But it is not the same as saying he’s proud of him, or happy about his chronic failings and vulnerabilities, or a motive to interfere in a federal prosecution.

        That has nothing to do with a properly drawn plea agreement. You know better than anyone here, its purpose is to resolve claims and foreclose prosecution on crimes that arise out of the underlying facts tied to the agreement. It’s Weiss who seemed to want to tamper in a number of ways with that purpose.

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