David Weiss May Have More Bluster than Tactical Leverage

There’s something missing from coverage of the claim, made in the second-to-last sentence of a Speedy Trial filing submitted Wednesday, that David Weiss will indict Hunter Biden before September 29, when — according to calculations laid out by prosecutor Leo Wise in the filing — the Speedy Trial Act mandates an indictment.

None of the coverage has considered why David Weiss hasn’t already charged the President’s son.

The filing was submitted in response to an August 31 order from Judge Maryellen Noreika; its very last sentence politely asked her to butt out: “[T]he Government does not believe any action by the Court is necessary at this time.” Given the unusual nature of this legal proceeding, there may at least be question about Wise’s Speedy Trial calculations. One way or another, though, the Speedy Trial clock and the statute of limitations (which Wise said in July would expire on October 12) are ticking.

It would take probably half an hour to present the evidence for the weapons charge — which would consist of the form Hunter signed to purchase a gun, passages from Hunter’s book, a presumed grand jury transcript from Hallie Biden, and testimony from an FBI agent — to a grand jury. It would take maybe another ten minutes if Weiss wanted to add a false statements charge on top of the weapons charge. There certainly would be no need for a special grand jury.

Any tax charges would be more complicated, sure, but they would be in one or another district (probably Los Angeles), ostensibly severed from the weapons charge to which the misdemeanors planned as part of an aborted plea deal were linked.

So why wait? Why not simply indict and avoid any possible challenge to Speedy Trial calculations?

The answer may lie in something included in a long NYT story citing liberally from an anonymous senior law enforcement official who knew at least one thing that only David Weiss could know. That story explains that Weiss sought Special Counsel status, in part, to get, “added leverage in a revamped deal with Mr. Biden.”

If Weiss indeed sought Special Counsel status to get leverage for a deal, then at least last month when he asked for it, he wasn’t really planning on indicting Hunter Biden. He was hoping to get more tactical leverage to convince Hunter Biden to enter into a plea agreement that would better satisfy GOP bloodlust than the plea that failed in July.

Now he has used the opportunity presented by Noreika’s order to claim he really really is going to indict Hunter, a claim that set off predictably titillated reporting about the prospect of a Hunter Biden trial during the presidential election.

Again, if you’re going to charge Hunter Biden with a simple weapons charge, possibly a false statements charge, why not do it already, rather than threatening to do it publicly? Why not charge him in the week after Noreika entered that order, mooting all Speedy Trial concerns?

Abbe Lowell appears unimpressed with Weiss’ promised indictment. He repeated in both a separate filing and a statement to the press that Weiss can’t charge Hunter because he already entered into a diversion agreement pertaining to the charge.

We believe the signed and filed diversion agreement remains valid and prevents any additional charges from being filed against Mr. Biden, who has been abiding by the conditions of release under that agreement for the last several weeks, including regular visits by the probation office. We expect a fair resolution of the sprawling, five-year investigation into Mr. Biden that was based on the evidence and the law, not outside political pressure, and we’ll do what is necessary on behalf of Mr. Biden to achieve that.

I think few stories on this have accounted for the possibility that that statement — “we’ll do what is necessary … to achieve” a fair resolution of the case — is as pregnant a threat as DOJ’s promise to indict in the next several weeks. That’s because everything leading up to David Weiss obtaining Special Counsel status actually squandered much of any leverage that Weiss had, and that’s before you consider the swap of Chris Clark as Hunter’s lead attorney for the more confrontational Lowell, making Clark available as a witness against Weiss.

As Politico (but not NYT, working off what are presumably the same materials) laid out, Hunter’s legal team has long been arguing that this investigation was plagued by improper political influence.

But even before the plea deal was first docketed on June 20, the GOP House started interfering in ways that will not only help Abbe Lowell prove there was improper influence, but may well give him unusual ability to go seek for more proof of it.

It appears to have started between the time the deal was struck on June 8 and when it was docketed on June 20. AUSA Lesley Wolf, who had negotiated the deal, was replaced by Leo Wise and others. When Weiss claimed, with the announcement of the deal, that the investigation was ongoing and he was even pursuing dodgy leads obtained from a likely Russian influence operation, it became clear that the two sides’ understanding of the deal had begun to rupture. This is the basis of Lowell’s claim that Weiss reneged on the deal: that Weiss approved an agreement negotiated by Wolf but then brought in Wise to abrogate that deal.

Whatever the merit of Lowell’s claim that the diversion agreement remains in place — the plea deal was such a stinker that both sides have some basis to defend their side of that argument — by charging Hunter, Weiss will give Lowell an opportunity to litigate the claim that Weiss reneged on the diversion agreement, and will do so on what may be the easier of the two parts of the plea agreements to make a claim that Weiss reneged on a deal, with Judge Noreika already issuing orders to find out why this stinker is still on her docket. I’m not sure how Lowell would litigate it — possibly a double jeopardy challenge — but his promise to do what’s necessary likely guarantees that he will litigate it. He’ll presumably do the same if and when Weiss files tax charges in California. It’s not necessarily that these arguments about reneging on a deal will, themselves, work, but litigating the issue will provide opportunity to introduce plenty more problems with the case.

That’s part of what was missed in coverage of this development this week. Weiss promised to indict. Lowell responded, effectively, by challenging the newly-minted Special Counsel to bring it on, because it will give Lowell opportunity to substantiate his claim that Weiss reneged on a deal because of political influence.

And those IRS agents claiming to be whistleblowers have only offered gift after gift to Lowell to destroy their own case. In their own testimony they revealed:

  • From the start, a supervisor documented concerns about improper influence and Sixth Amendment problems with this investigation
  • Joseph Ziegler, the IRS agent who improbably claims to be a Democrat, treated such concerns as liberal bias, evincing political bias on his own part
  • DOJ didn’t do the most basic due diligence on the laptop and may have used it in warrants, creating poisonous fruit problems
  • Ziegler treated key WhatsApp messages obtained with a later warrant with shocking sloppiness, and may even have misidentified the interlocutors involved
  • Ziegler didn’t shield himself from the taint of publicly released laptop materials (and Shapley was further tainted by viewing exhibits during his deposition)
  • Gary Shapley is hiding … something … in his emails

These two self-proclaimed whistleblowers have made evidence from this case public — all of which would never have seen the light of day if Weiss had honored the plea agreement — without the filter of a prosecutor to clean it up in advance.

All that’s before you consider the rampant leaking.

In both their depositions and their giddy public testimony before the House both Shapely and Ziegler did plenty of things that will provide basis to impeach them, not just as witnesses, but even as investigators, as did their anonymous FBI agent colleague’s laughable claim in his deposition that this was not an investigation riddled with leaks. James Comer seems intent on inviting all the other investigators who have complained they weren’t able to bulldoze rules designed to protect sensitive investigations to be deposed in an adversarial setting, which will provide still more surface area that Lowell can attack.

The gun charge is simple. But what investigative witnesses would present any tax case against Hunter Biden and would their testimony be impressive enough to sustain a case after Lowell serially destroyed Ziegler as the key investigator? And because Weiss has left Lowell with a viable claim that the diversion remains valid, he may be able to introduce the taint of the tax case into any gun prosecution.

Some of this shit goes on in any case, though not usually this much with politically exposed people like the President’s son. But prosecutors have a great number of tools to prevent defendants from learning about it or at least keeping it off the stand. Many of the IRS agents’ complaints were really complaints about Lesley Wolf’s efforts to preserve the integrity of the case. By bitching non-stop about her efforts, the IRS agents have ensured that Hunter Biden will get access to everything that Wolf tried hard to stave off from the investigation.

And there’s something more. Ziegler provided the name of his initial supervisor, who documented concerns that this case was politicized from the start. Both IRS agents identified for Lowell a slew of irregularities he can use to undermine any case. Republicans in Congress have bent over backwards to expose witnesses against Hunter to adversarial questioning (and both IRS agents got downright reckless in their public testimony). The way in which this plea collapsed provides Lowell reason to challenge any indictment from the start.

But the collapse also provided something else, as described in the NYT story: a David Weiss associate told the NYT that Weiss told them that any other American would not be prosecuted on the evidence against Hunter.

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.)

If this witness makes themselves available to Lowell, it provides him something that is virtually unheard of in any prosecution: Evidence to substantiate a claim of selective prosecution, the argument that Weiss believes that similarly situated people would not have been prosecuted and the only reason Hunter was being prosecuted was because of non-stop GOP bloodlust that originated with Donald Trump. It is darn near impossible for a defense attorney to get discovery to support a selective prosecution claim. Weiss may have given Lowell, one of the most formidable lawyers in the country, a way to get that discovery.

And all that’s before Lowell unveils whatever evidence he has that Joseph Ziegler watched and did nothing as Hunter Biden’s digital life was hijacked, possibly by people associated with the same Republicans driving the political bloodlust, possibly by the very same sex workers on which the case was initially predicated. That’s before Lowell unveils evidence that Ziegler witnessed what should have been clear alarms that Hunter Biden was a crime victim but Ziegler chose instead to trump up a weak criminal case against the crime victim. I suspect that Weiss doesn’t know what Lowell knows about this, either, adding still more uncertainty to any case he charges.

Over four weeks ago, Leo Wise asked Noreika to dismiss the misdemeanor tax charges against Hunter so they could charge them in another venue.

In light of that requirement, and the important constitutional rights it embodies, the Government moves the Court to dismiss the information without prejudice so that it may bring tax charges in a district where venue lies.

Now he and Weiss have made promises of another upcoming indictment, without yet charging it. At the very least, that suggests that there are a number of challenges to overcome before they can charge Hunter.

They likely still have time on any 2019 tax charges — the ones where, reportedly, both sides agree that Hunter overstated his income, which will make a tax case hard to prove. I’m not saying that Weiss won’t charge Hunter. Indeed, he has backed himself into a corner where he likely has to. But with each step forward, Lowell has obtained leverage to make Weiss’ own conduct a central issue in this prosecution (and even Wise may have made himself a witness given the centrality of his statements during the plea colloquy to Lowell’s claim that the diversion remains valid).

The Speedy Trial filings seem to have hinted at an intense game of chicken between Weiss and Lowell. And thus far at least, Weiss seems more afraid of a Hunter Biden indictment than Lowell is.

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102 replies
      • Rugger_9 says:

        There are a lot of similarities, in that Weiss appears to think he needs to find ‘something’ to appease his de facto masters in the MAGA caucus. Unlike Durham I don’t see Weiss as a true believer but more as someone leveraged himself to take on a case he no doubt sees as D.O.A. because of all the holes Lowell will be able to drill into it for a reasonable doubt finding.

        I’d be interested in bmaz’s opinion if this is more prosecutorial overreach / grandstanding than Fani Willis’ case in GA.

        So if / WHEN this case collapses as expected what will be the potential collateral damage to the ‘whistleblowers’ or other non-congressional enablers? I don’t see Comer. et al being on the hook because they do have the power to investigate, but all of the RWNM bozos seem to be open to defamation claims if Lowell chooses to litigate in that direction.

        It will also be interesting to see if /when the Ds take back the House that equal opportunity is provided for the TrumpOrg kids to explain themselves in investigations. I don’t know why the Senate hasn’t already started, because even Comer thinks Jared’s deals in the ME stink.

          • Charles Wolf says:

            When the crime involves an attempt to overthrow an election for President of the USA, or in other words, a coup d’état, I don’t see how it is possible to overreach in the pursuit locking up the perps. Organizing a revolution large enough to overcome this country is an enterprise grade Enterprise.
            There is a real case of overreach however wrt Georgia’s RICO prosecutions of Cop City demonstrators, who were not trying to start a revolution.

            • bmaz says:

              No, it is an overreach in both cases. Fulton County has a history in this regard, even before Willis. It is abusive, inappropriate and unnecessary.

        • Shadowalker says:

          “ don’t see Comer. et al being on the hook because they do have the power to investigate”

          Oversight does not mean interfering in another branch’s constitutional function. Nor does it mean they can assume the constitutional roles of both the executive and judiciary. And we’re only discussing half a branch.

          The Dems aren’t going to waste their time going after the Trump kids, they would have done it before when they had control of both houses.

  1. Drew in Bronx says:

    I heard a legal commentator (can’t remember for sure, maybe Ken White) who thought that the gun charge promise was a placeholder, that the prosecutors put in because the judge was pressuring them for something concrete and the gun charge is concrete & simple, though it would be a pretty sad prosecution at this point.

    The point was that *maybe* a tax charge is forthcoming, but they haven’t got it worked out yet. As you say, they’d better hurry if they don’t want to miss the bus.

    • emptywheel says:

      She no longer has the tax charge in front of her. It’s no longer her business. This is, though.

      I really think it’s an attempt to scare Hunter.

      • Thomas_H says:

        Interesting observation; attempting to scare Hunter Biden. At this point, I would think the actual response of Mr. Biden would be annoyance, even anger. Especially given the array of levers that Mr Lowell seems to have accumulated.

      • soundgood2 says:

        I agree, my question is, what do they think scaring him will accomplish? Particularly now that he has Abbe Lowel? Are they prepared for the can of worms they are about to open? Hunter has already agreed to plead guilty to things he probably could beat in court. Do they want him to implicate his father? It is sad but so often the case that people with serious drug problems can cause so many problems for the people in their life who genuinely want to help them. I think Joe was trying to keep Hunter sober and out of trouble and so took him on trips he never should have been on.

        • bmaz says:

          He has had Abbe for a long time, just not as lead. The decision to move Abbe to lead was tactical so the earlier lead could be a witness. No common citizen would, usually, ever be charged with the “tax charges” if they had paid the back taxes with interest and penalties. This whole case is just stupid.

          • Shadowalker says:

            I’m not aware of a single case where they filed criminal charges when the taxes were paid, including interest and penalties. There is a rumor Weiss is going to try to upgrade them to felony, but that requires willful intent, not sure he has enough to get a grand jury to vote a true bill.

        • Shadowalker says:

          There not trying to scare him, they were using his father’s reelection to apply pressure for him to plead guilty (that’s what the plea deal was about), normally defense would say “see you in court”. Only thing is, Republicans want to drag this out and won’t let him go unless he fully implicates his father to go along with their own corruptly twisted narrative.

          • emptywheel says:

            Right: Include the indictment threat in a filing, elicit all those stories on how it’ll affect the election.

            But they’re not banking on this being a story about Rudy and Trump, not Hunter.

            • Marc in Denver says:

              I so wish that Lev and Igor wouldn’t have been arrested, because I would love to have seen the RWNM try to explain how (all the dirt on) “Hunter’s laptop” ended up on computer files coming out of Ukraine.

              • emptywheel says:

                THAT laptop could not have been the primary means by which THIS ONE was made available. I think they may be related, but can’t be sure.

        • Harry Eagar says:

          I think it a pretty good bet that a jury would fail to convict on either the gun or the ax charge.

          Except for the expense, a conviction doesn’t do HBiden much harm; but a trial seems likely to embarrass the government mlghtily.

  2. ExRacerX says:

    Am I wrong to assume that at least part of the reason for calling off the plea agreement was to ensure this dogfart of a case lingers as long as possible into the ’24 election?

    • earlofhuntingdon says:

      It seems more likely that Weiss’s hard right patrons were screaming that it wasn’t a tough enough deal for the president’s son – and that they needed a spectacle with more lions and fewer Christians. So Weiss reneged. Meanwhile, his erstwhile patrons were helping to screw things up with their botched hearings and bad witnesses, adding to the apparently botched prosecution.

  3. I Never Lie and am Always Right says:

    Thank you for this outstanding analysis. One as yet unknown factor is the identity of the Judge should HB be indicted in the Central District of California. The range of Judges in this District (my stomping grounds) is broad. There are Judges considered “friendly” to the prosecution and Judges considered “friendly” to the defense, and Judges who are considered “straight shooters.”. There will be lots of issues that need to be addressed by the Judge before (HB’s criminal case ever goes in front of a jury, provided that the case makes it that far. So the identity of the Judge will be important.

  4. Upisdown says:

    Hunter’s state of mind for the gun charge rests primarily on admissions made in “Beautiful Things”. He could easily argue that the incriminating passages were embellished in order to sell more books because his ability to earn money was severely constrained when a partisan computer repairman handed his private personal information to a pair of felony indicted fraudsters who gave it to a defamation tainted media company for publishing.

    It’s an honest and reasonable defense.

      • Shadowalker says:

        Ever hear of “artistic license”, in some cases someone other than the author spices things up. They are after all selling a product. Even if it was true, asking an addict to admit they are using drugs is encouraging them to lie, so the whole question has problems.

      • Upisdown says:

        Honest from the perspective that a recovering addict attempting to make amends often recalls the very worst of their behavior and not how they were thinking on an hourly basis. Some erase the worst from their memory. Others are consumed by the depths of their addict and its fallout.

        I have not read Beautiful Things, but the reviews I have read seem to paint a remorseful Hunter Biden. I’m not sure if he details his state of mind when purchasing the gun? I don’t know, so I have to ask. But it seems extreme to me that they would use a memoir as evidence for bringing felony charges when the work could have been ghostwritten, or heavily edited, to boost sales.

        I doubt Hunter or his publishers expected these charges to come out of that memoir. Just as I doubt that when conservative darling, Oliver Anthony, gave interviews about his drug addiction that he would have thought the pistol he has next to him in his new music video might possibly land him in prison.

  5. jdmckay8 says:

    At least currently, this thing is almost comical given all this maneuvering has almost nothing to do with Hunter’s wrongs and appropriate judicial punishment, if any. Its just all about everything else.

    That was a quick 2 weeks, Marcy.

  6. bmaz says:

    The plea deal was not a stinker. It was more tough than a common citizen with a good attorney would get. Abbe is right to try to enforce it. It should be enforced.

    • earlofhuntingdon says:

      So, you don’t find Weiss’s defense credible, that the plea agreement lacked a necessary signature? Asking for a friend….

      • emptywheel says:

        The diversion is what he’s arguing that about, not the plea. The diversion does refer to “approval” and the “approval” line is not signed.

        The diversion was entered to the docket because a reporter asked that it be entered and a paragraph in the diversion had agreed to release it, which is why Clark was able to submit it to docket during the period when the plea was breaking down.

        The details are far more complex than bmaz either knows or wants to represent, which is why it’s a stinker.

        This is a matter of keystone cops, but the ultimate adjudication will be hotly contested, and will be contested BECAUSE the deal was a stinker that DE USAO itself admitted had no precedent.

        • emptywheel says:

          Adding, I would explain all this but it would be misleading, because it couldn’t properly account for where I think Lowell is going here.

          The plea deal that Leo Wise was brought in to abrogate was the full extent of the covered conduct. To enforce the diversion, Lowell will likely need to successfully argue that both the diversion and the plea agreement were reneged.

          And I don’t really think he has his sight set on enforcing the plea but instead reversing it entirely. The diversion is far broader than it would need to be to match what is normally used. Plus, if Lowell can push this game of chicken out past October 12, Hunter is in the clear on the gun charge.

          • BRUCE F COLE says:

            This is interesting on so many levels, and stinks of so many odors, that it’s really hard to get one’s head around all of it while maintaining one’s sense of smell.

            One Lowell-made point that your report above noted that I wasn’t aware of is that, as part of what they consider the ongoing gun plea deal, regular probation meetings have been occuring. How is that possible without the deal having been “consummated?”

        • bmaz says:

          Lol, the plea was fine. The only “stinkiness” arises because it is harsher treatment that a regular citizen would get.

  7. JimmyAnderson says:

    I really hope that you are enjoying your holiday Marcy, but …. gosh, I’ve missed your razor-sharp break downs.

    Thank you for this

  8. Peterr says:

    And all that’s before Lowell unveils whatever evidence he has that Joseph Ziegler watched and did nothing as Hunter Biden’s digital life was hijacked, possibly by people associated with the same Republicans driving the political bloodlust, possibly by the very same sex workers on which the case was initially predicated. That’s before Lowell unveils evidence that Ziegler witnessed what should have been clear alarms that Hunter Biden was a crime victim but Ziegler chose instead to trump up a weak criminal case against the crime victim. I suspect that Weiss doesn’t know what Lowell knows about this, either, adding still more uncertainty to any case he charges.

    Usually, it’s the defense who is staying up late wondering what the prosecution has on them. Here, though, it has to be the other way around, with Weiss et al. having the sleepless nights.

  9. Magbeth4 says:

    Lawyers, Bless their brilliant intelligence, can twist facts and insinuations into a mess that even fairly intelligent people cannot follow. I would hate to be a member of a Jury which considered the “punishment” for someone who was so hopelessly mired in emotional chaos as Hunter Biden back when he did, or didn’t do all the things of which he is accused.

    On the face of what has been presented so far, and not qualified to speculate with any authority, in my innocence, as a judge of character and behavior, I would say that Hunter has coasted on his father’s reputation most of his life, and if that is influence peddling, then he may be accused of cashing in on it. But I, so far, fail to see that the President’s actions in Ukraine provided any benefit to him or to his son in any lasting way, if at all. As far as the tax business, that seems moot, since he paid up with penalties. So, that leaves the women of the night and the drug stuff. Just “sleeze” material for the Republicans in Congress to have their moment of projection of behaviors some of them might be guilty of, as well.

    The most important thing is that people aren’t responsible for the parents they have, nor, at this late point in Hunter’s life, should his father be responsible for his son’s sins.

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  10. Fraud Guy says:

    This breakdown reminds me of the scene in Tombstone (1993) when Johnny Ringo, expecting to have a duel with Wyatt Earp, finds that Doc Holliday has shown up in his stead, and still goes ahead with the fight. [spoiler alert] It does not end well for him.

  11. Christopher Wilsher says:

    “They likely still have time on any 2019 tax charges — the ones where, reportedly, both sides agree that Hunter overstated his income”

    Huh?

    What?

  12. freebird says:

    This like the Whitewater investigation against the Clinton’s. The AG bowed to political pressure and appointed an ideological prosecutor that is keeping the case open until he finds something.

    With Ukraine, the US got them to give up their nuclear arsenal for explicit and implicit support towards democracy and as a buffer against Putin who wanted to reconstruct the USSR. A bribe to Joe Biden would have come from Putin who wanted Ukraine to fail as a country. Stating the obvious, keeping a corrupt prosecutor helps Putin. Manafort, Trump’s convicted campaign manager took money from those who also wanted Ukraine to be an outlaw country.

    For a bribe to work, Joe Biden would have to be aligned with Trump and Manafort.

    • Yankee in TX says:

      Janet Reno appointed Robert Fiske, a moderate Republican, praised by other Republican as IC. But since Fiske couldn’t find a reason to indict the Clintons, he was removed by a 3 judge panel led by a Jesse Helms/Ronny Reagan appointee and replaced by Ken Starr.

  13. Mycotropic says:

    I’m no historian but I listened to the Hard ore History podcast titled Fall of the Roman Republic more than once. It’s a marathon but worth the time. One of the reason the Roman Republic failed was that politicians, once in office, couldn’t be tried for crimes,.but they could be charged, the charge was just put on hold until they were out of office. I believe the Gracci brothers had this happen but this definitely played a role in Julius Caesar’s decisions. So are we accidentally doing something similar with the POTUS or is it just my imagination? Not specifically trump though he’s the most glaring example.

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    • SteveBev says:

      “ Not specifically trump though he’s the most glaring example”
      … of a politician mired in criminality who has abused his office and manipulated various state agencies during his term of office to shield himself from accountability for his many misdeeds, including misdeeds to stay in office beyond his term.
      That glaring example you mean?

    • earlofhuntingdon says:

      Historians have been arguing about why Rome and/or its Republican form of govt fell almost since they fell.

      • P J Evans says:

        I’d argue it was more a collapse like a melting carton of ice cream. Generals taking their troops from government control, rich people not paying taxes and acting like they were their own little countries, that kind of thing.

        • Charles Wolf says:

          I’d also argue that moving the Capitol to Constantinople and deifying christ throughout the Empire didn’t help in the long run.

    • Jared Shoemaker Jr says:

      Actually if you read through Lucy’s history of Rome books 1-10, when the republic is formed magistrates, especially the consuls, would catch a charge, any Roman citizen could bring one, upon the expiration of their office. Usually there was a fine to be paid, if it was serious enoughsometimes exile for a time or permanent (plotline of Coriolanus). The gracchi brothers both held the office of tribune of the plebs and their person was considered sacrosanct and literally couldn’t be touched by any authority except in one instance, if they could be shown to be plotting to restoring the monarchy or overthrowing the republic to install a king. Tiberius, played into his enemies hands by standing for an election for office that was illegal for him to do, they demanded a trial and whipped up a mob along with it and the mob got to him first and beat him to death before he could be tried. Gaius just straight up tried to incite a secession (secessio aka general strike) and no one followed him and the senate…by law had him declared as trying to overthrow the republic and put him down as a rebel.

      Now in Caesar’s case, you’re right he was facing trial for the whole of the Gallic wars because his proconsulship was going to expire, it’s why he wanted to be consul again to avoid charges and a trial. And even though the law about standing for offices and needing to wait 10 years before a second term was still on the books (tables) it was regularly ignored.

  14. old rapier says:

    Shouldn’t news that the Special Counsel is an unnamed source in a news story about the Special Counsel be part of that story? Well I guess not, too hard. That news should probably come in a follow up story, but don’t hold your breath on that. I am sure there will never be a story or any allusion in any story to the fact that ‘people are saying Weiss is leaking to the press.’ No way. There will not be room because of all the stories about how people are saying Obama is Biden’s puppet master. One might think that people chasing stories would check out ones from somebody who deconstructed the Steele Dossier in January 2017 or John Durham’s clown show in real time so would maybe check this Weiss shop leaking one out, or how about Hunter Biden being hacked. Nah.

    Eventually Lowell will get it though their thick heads. I hope.

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  15. Mike Stone says:

    Thank you Marcy for this analysis. It was a great read.

    Weiss has indeed backed himself into a corner and now must try to provide a blood letting from Hunter for the GOP.

    While I know that Hunter and his attorneys agreed to a plea deal, I would think at this point Hunter and Lowell would very much like to go to trial. This would afford them the opportunity to not only expose serious issues in the prosecution and investigation, but also allow them to get into the details of the fabled laptop.

    It seems pretty certain that some people with extremely bad motives were behind this “laptop set up” and associated crimes and a courtroom with Lowell and the investigators looking into the laptop history could provide a compelling story that would not only be damning to parties who should be exposed, but also make Hunter into a person that the public would find sympathetic.

    • bmaz says:

      Let’s be crystal clear, it was not just “Hunter and his attorneys” that agreed to said plea, it was the government too. No, Hunter and Lowell do not want to go to trial, they want the plea they agreed to and submitted to be enforced.

  16. zscoreUSA says:

    as Hunter Biden’s digital life was hijacked,.. possibly by the very same sex workers on which the case was initially predicated.

    Is there going to be a detailed elaboration on this possible method of digital attack?

    • Shadowalker says:

      Depends on what Hunter’s lawyers can get from the government, either through discovery in the case of a trial or by a FOIA request should the case be closed. Either way, the government is withholding an unknown quantity of information, which they will have to turn over eventually, and that is when the fun starts.

      • emptywheel says:

        Note that the state of information is actually slightly different.

        1) Hunter has a ton of his own information about how the digital hijack happened. Perhaps more than the USG, which should not be the case but is, which puts Weiss at a disadvantage.
        2) Re politicization, as I keep noting, normally defendants would NEVER get much of the stuff that the two IRS agents willfully offered up. Not only did they give that up, they probably provided Lowell enough basis to ask for more by itself (eg, to get testimony from the first IRS supervisor).
        3) DE USAO has been on the Brady clock since July. Chris Clark said he had gotten Brady before the plea, but given the blatherings of the IRS agents, it’s likely that Lowell can claim he didn’t get everything he should have gotten. RE discovery itself, that is probably an issue causing Weiss a bunch of heartburn right now, because given the way the stinker deal was yoked, and the way in which Lowell will argue that the choice to renege on both deals is also yoked, Weiss may have a difficult time carving out the evidence that they have to turn over, which in any case the IRS agents have helpfully IDed.

        David Weiss is in a position right now where Lowell knows more about the digital hijack than Weiss does, in spite of the fact that Weiss may have approved warrant affidavits relying on “the laptop.”

        • Shadowalker says:

          1) I’m wondering if Hunter’s team reached out to Apple, and if they did, what information was Apple able to provide them.

          2)Hunter is not a normal case either. I mean they were seriously looking into the payments to the escort service. Really? The only way they could bring charges is if a state or local authority convicted him first of engaging with prostitutes and the payment would have to be $10,000 or more.

          3)Weiss doesn’t have a lot of options, because his time is almost up. He must have filed an information which set off the Speedy Trial Act, because a clock starts when either an indictment or information is presented, which is probably why September 28th was so important. Normally informations are used to arrest the suspect, which starts two clocks, first when they have to bring a formal indictment and the other is for the trial itself. If he fails to bring an indictment in a timely manner, it is grounds for a dismissal on due process violation.

    • emptywheel says:

      The METHOD of digital attack is blatantly obvious to anyone watching closely, as I know you are.

      How different people involved are connected is another issue. But I expect Lowell has sufficiently high confidence in some details right now that he will be able to demonstrate what the government failed to do bc Ziegler was too busy trying to trump up a criminal case against Hunter.

      • zscoreUSA says:

        I must be really slow, as I can’t say confidently that I understand 100% the method of digital attack. This article sounded to me like you suspect at least one specific sex worker of being involved somehow.

        For understanding the method of digital attack, and what Ziegler would be aware of, I am curious about the electronic warrants. Zeigler testified obtaining multiple electronic warrants.

        * Do we know the dates of those warrants and which material was obtained? If not, would these details come out via court filings in the coming legal battle?

        * And in the event of a warrant for an Apple ID account, is it possible to obtain data for one of Hunter’s Apple ID accounts but not the other account?

  17. P’villain says:

    [blockquote]Ziegler was too busy trying to trump up a criminal case against Hunter.[/blockquote]

    We all saw what you did there.

    • obsessed says:

      Since we no longer have edit, I may be about to make a fool of myself here, but it wouldn’t be the first time. My theory is that if you use the “less than” and “greater than” symbols instead of brackets around the blockquote tag it’ll work. Here goes nothing (genuflecting …):

      This is the part I want block-quoted.

    • Rayne says:

      I’m rather surprised the name “Dershowitz” doesn’t trigger auto-moderation given Dershowitz’s role as a troll for the fascist right-wing.

    • earlofhuntingdon says:

      Newsweek is not what it was decades ago, but Dershowitz is. Not surprising he would find a home there for his, um, views.

      • David F. Snyder says:

        It used to somewhat left leaning (relative to Time) but in these Trump years it’s just another click-fisher. Still, it’s good to know what the talking-points are. Douche-witz is a reliable source for GOP intellectual-types (leveraging the Fallacy b

  18. Boatsail says:

    AFTER FIVE YEARS OF INVESTIGATING HUNTER BIDEN REpublican U.S. Attorney for Delaware Weiss reached an agreement with Hunter Biden. After right wing racist REpublican political hacks like Comer said it was a “Sweetheart Deal” Weiss reneged on his agreement. No honorable lawyer would have done this. In ordinary cases where the IRS tells somebody they owe taxes and the person pays that’s the end of it. Here when this happened they prosecuted Hunter Biden.

    Politics rules in the case of Hunter Biden.

  19. Surfer2099 says:

    Would like to posit an alternate theory. Wise lets speedy trial expire on Oct 12th and doesn’t bring any charges. He lets the clock run out on Hunter Biden cases due to Trump ally’s political pressure.

    This case is more valuable to Trump as a political arguement in the public sphere and he had a habit of accusing democrats of EXACTLY what he’s actually doing.

    It goes like tbis. Clock runs out on Hunter Biden and Trump starts publicly saying it was Biden who “reneged and ran out tge clock” which is what Trump is attempting to do in his cases.

    Trump doesnt want any conclusion on Hunter Biden. He wants continuation so he can use it to muddy the public waters.

    Just imagine how tbis scenario plays out in the press with the press continuing to report Trump trying to delay and avoid prosecution while Trump scream on Xitter and TS tga Biden interferred in his son’s case and ran out tge clock.

    Anyhoo, yes, i know this is speculation but the cuurent status of Hunter’s case is directly due to Trump ally’s interference on Trump’s behalf. Thus, it should be viewed also through a political lens and not just a legal lens.

  20. Savage Librarian says:

    Bantam Phantom

    You can have a chicken casserole
    with vegetables and rice,
    Or try it oven baked
    with some favorite herbs and spice.

    Or maybe in a sandwich
    where the bread surrounds a slice,
    But playing chicken with a Hunter?
    Bantam phantom, Mr. Weiss.

  21. Justin Beck says:

    Doesn’t DOJ regulations give the Tax Division supervision over tax cases, including any sought to brought by Special Counsel?

      • Justin Beck says:

        As I read the DOJ regulations, the Tax Division has ultimate approval for tax casa, including settlement. They also litigate most District Court taxcasas. Am I wrong here?

        • bmaz says:

          As I read them, the tax division is in charge of the investigation, but is then referred to the criminal division for prosecution. You want to place the tax squirrels in charge of jury trial eligible prosecutions?

  22. Justin T Beck says:

    It might help if you could tell me where, assuming the case was referred to Weiss, he is free to settle the tax case on whatever terms he wants.

      • Justin T Beck says:

        According to both the regulations governing special counsel and the order appointing Weiss he is to comply with the regulations and procedures of the DOJ. If he does beliefs those regulations and procedures prevent the proper performance of his duties, he can seek relief from the AG. In the case of tax laws, the Tax Division, not special counsel, is responsible for uniform enforcement of those laws. See the tax section of the US Attorney
        s Manual

        [Welcome back to emptywheel. Please use the same username and email address each time you comment so that community members get to know you. You have published under two different usernames this week, both “Justin T Beck” and “Justin Beck.” Pick one and stick with it. Thanks. /~Rayne]

  23. BreslauTX says:

    Christopher.J.Coulson @ usdoj. gov handled the Roger Stone tax case. Stone had been battling over taxes for quite a while and didn’t do any prison time for that from what I can remember.

    *********************************************************

    The Jan 6 committee had plenty of material to work with just by interviewing Republicans — Trump World citizens.

    Comer and fellow GOP had a limited amount of material to work with in regards to Hunter Biden, thus they let Ziegler and Shapley be relatively unrestrained to create a bigger splash, but quite possibly hurt/damaged any contemplated actions by the DOJ.

    I don’t know if Comer & Co have the ability to recognize (& admit) that they quite possibly screwed things up for the DOJ by doing what they did in their Committee hearings.

    • Shadowalker says:

      DOJ’s case was weak from the beginning. After 5 years and they have a dubious gun charge that historically has a low conviction rate when charged standalone, that charge is usually combined with other charges such as possession or another chargeable felony. And two tax misdemeanor charges where the civil penalty has already been resolved.

      All Comer and his congress critter cohorts have done is inject their clown car tactics. If anything, the laptop did more damage to the case only because it was a shiny object down a rabbit hole that distracted investigators from doing serious investigations that had a chance of seeing a courtroom.

  24. Joeff53 says:

    Just so we’re clear, NOTHING will “satisfy GOP bloodlust” until they can hang Biden fils around Biden père’s neck, albatross style, and parade them both naked through the streets of King’s Landing

  25. tje.esq@23 says:

    “I’m not sure how Lowell would litigate it — possibly a double jeopardy challenge — but his promise to do what’s necessary likely guarantees that he will litigate it.”

    Double jeopardy requires an initial conviction, and i think the gun program is diversionary, which should mean no ‘conviction’ if he completes the entire program. So there’s nothing to ‘bind’ to. Of course, I’m not up on this case like you are, so i may be missing something here or not understand your calculations.

    My Guess is that defense will seek
    Writ of mandamus to force prosecutor/probation dept. to continue executing the contract. YOU HAVE A VALID CONTRACT HERE, Lowell would argue, even without probation department’s signature, because the department has been doing visits — that is, the probation department shows they have indeed entered into the agreement because they have begun EXECUTING their part of it. That is why Abbie Lowell refers to Hunter’s probation visits every single time he speaks on this matter.

    I think he might also seek
    -declaratory judgement asking judge to declare contract valid based on ‘Performance’ in progress. Prosecutor will argue in reply there was no ‘meeting of minds’ (the point Noreika raised at hearing), so contract not valid. Case law in the relevant jurisdiction will determine if indeed there is a contract.
    -Interference with contract, if this exists, (???). Because the ‘Right to enter into contracts and not have them interfered with’ is in the U.S. Constitution, a brief writer might add weight here to his argument, if case law supports, and crim pro rules allow.

    Lowell would NOT seek stay of proceedings or other type of injuntion, I’m guessing, because fed courts don’t grant this willy nilly especially in CRIMINAL PROCEEDINGS (as y’all recall from docs case Trump v. U.S., aka Cannon round 1, and the 11th Circuit poetry around it).

    Writ of mandamus, while also rare, would force probation dept to continue executing probation’s part of the contract (visitation) that is already in progress. These visits would be estopped if Hunter were indicted on the gun charge. Successfully arguing for a Writ of Mandamus would restart the probation visits, under my scenario, too.You probably remember Mandamus from 4th grade coverage of Marbury v. Madison. Lowell could also sue for specific performance here.

    A few other less likely options:
    Can’t sue for breech of contract right now because feds have not yet breeched. And I’m pretty sure this would fail regarding plea offers, may not even be allowed under Criminal procedure rules(?). Feds have only declared intention to breech, which in UCC property law, conveys additional rights to receiver if this were a sale of goods, under Section 2 UCC, but i have no idea if ‘anticipatory repudiation’ applies to plea bargain-diversion-service-contracts. Any contracts experts out there?

    Even more creative???(Totally off base???)
    My property law is weak, but my head is right now mulling around replevin, if prosecution could be seen as taking some tangible thing of value (billable hours where Hunter loses as opportunity cost???) And I see Marcy arguing for a latches-type claim; perhaps even some version of unclean hands.

    More realistically, of course are the anthems in the great American songbook: the standard 5th/ 14th due process claims, and 14th equal protection, and 6th confront-your- accuser-claims, 4th amendment illegal sezure, fruit of poisonous tree claim, if applicable.I am unsure if severed diversionary-contracts in criminal cases fall under the collateral order doctrine that allows for interlocutory appeals. If not, Lowell can’t fight this until after criminal conviction, unless he could successfully argue for equitable jurisdiction / intervention.

    One reason to delay indictment would be to delay breech, so my guess is that Weiss may be unsure of repercussions for contract breach and is mapping that out now. This also leads me to conclude that Hunter is likely not conveyed any right when the promissor anticipatorily repudiates, like in UCC contracts, because he’d have filed something by now.
    I know some of these ideas are crazy, but hopefully they stimulate your your creative thinking side and encourage you to weigh in.
    To be clear here, I’m not saying Hunter would win the argument, just that these are grounds for relief that could potentially be argued. His brief would have to start with Noreika’s ‘meeting of the minds’ objection that Marcy addresses here in her discusion of the Wolfe swap-out. Lowell would have to have super solid evidence of any intentiona. ‘mind shift’ on fed’s part. This is well before discovery. Hopefully, Lowell reads this blog so he could see all of Marcy’s dot connecting in this case in prior posts.

    • bmaz says:

      It really does not require an initial conviction. In a jury trial, jeopardy attaches when the jury is empaneled. In a trial to the court, it attaches the second the first witness takes the stand. Neither necessitates a conviction.

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