In Bid for a Trump Subpoena, Abbe Lowell Cites Trump’s Complaints about Politicization

Abbe Lowell just asked for subpoenas to serve on Donald Trump, Bill Barr, Jeffrey Rosen, and Richard Donoghue so he can see if they have personal records of improper politicization of the case against Hunter Biden.

Lowell describes that he has specifically asked for such records in discovery, yet received nothing, even though some of it likely is (in fact — I would say — abundant records show it is) at DOJ.

To date, the defense has not received such material in discovery from the prosecution or elsewhere, notwithstanding specific discovery requests and that some of this information likely resides with the DOJ.

To support a claim that would be immediately rejected in almost any other situation and likely will still be rejected here, Lowell made two arguments.

First, an argument for the political press: Donald Trump has recently argued that his own case should be dismissed if he can prove political retaliation.

Subpoena recipient President Trump knows full well that improper pressure on prosecutors to bring criminal charges against an individual for political reasons is grounds for seeking to dismiss an indictment because President Trump recently filed a motion to dismiss on this very basis in one of his criminal cases. See United States v. Trump, No. 1:23-cr00257-TSC, D.E. 116 (D.D.C. Oct. 23, 2023).16 Similarly, subpoena recipient Attorney General Barr has explained precisely why the concern Mr. Biden raises here is problematic for this Indictment:

The essence of the rule of law is that whatever rule you apply in one case must be the same rule you would apply to similar cases. Treating each person equally before the law includes how the Department enforces the law. We should not prosecute someone for wire fraud in Manhattan using a legal theory we would not equally pursue in Madison or in Montgomery, or allow prosecutors in one division to bring charges using a theory that a group of prosecutors in the division down the hall would not deploy against someone who engaged in indistinguishable conduct.17


16 Demonstrating hypocrisy and a lack of principles, just last week, Mr. Trump insisted that the weaponization of the judicial process is wrong (and it is), but Mr. Trump claims that he would be justified in weaponizing the judicial process against his political enemies because he believes that he has been a victim of such weaponization. See Kathryn Watson, Trump Suggests He Or Another Republican President Could Use Justice Department To Indict Opponents, CBS News (Nov. 10, 2023), This claim certainly undercuts any notion that Mr. Trump is above such misconduct.

17 Remarks by Att’y Gen. William P. Barr at Hillsdale College Constitution Day Event (Sept. 16, 2020) (emphasis added),

Lowell doesn’t note what I did: Trump invoked his own attacks on Hunter Biden by name in that filing, arguing that he is only being prosecuted because he has demanded that Hunter be prosecuted. Indeed, Trump went so far as claiming a document released after he was indicted in DC on August 1 was the reason why he was indicted in DC.

Without question, this is a “high-profile prosecution with international ramifications no less,” which has a “far greater potential to give rise to a vindictive motive.” United States v. Slatten, 865 F.3d 767, 799-800 (D.C. Cir. 2017). That motive is manifest. President Trump criticized the process and results of the 2020 election. He criticized Biden and his family before, during, and after that election, including with respect to misconduct and malfeasance in connection with the Ukrainian oil and gas company known as Burisma,4 China’s State Energy HK Limited, 5 and Russian oligarchs such as Yelena Baturina.6

4 See Hunter Biden, Burisma, and Corruption: The Impact on U.S. Government Policy and Related Concerns, U.S. Senate Comm. on Homeland Security and Government Affairs and U.S. Senate Comm. on Finance (Sept. 22, 2020),, at 3.

5 See Second Bank Records Memorandum from the Oversight Committee’s Investigation into the Biden Family’s Influence Peddling and Business Schemes, House of Rep. Comm. on Oversight and Accountability (May 10, 2023),, at 5, 9.

6 See Third Bank Records Memorandum from the Oversight Committee’s Investigation into the Biden Family’s Influence Peddling and Business Schemes, House of Rep. Comm. on Oversight and Accountability (Aug. 9, 2023),, at 2. [my emphasis]

That political argument won’t work.

His argument that he’s asking for known documents probably won’t either — but Lowell is right that the public record that such documents exist distinguishes the claim from most other similar requests.

For example, on December 27, 2020, then Deputy Attorney General Donoghue took handwritten notes of a call with President Trump and Acting Attorney General Rosen, showing that Mr. Trump instructed Mr. Rosen and Mr. Donoghue to “figure out what to do with H[unter] Biden” and indicating Mr. Trump insisted that “people will criticize the DOJ if he’s not investigated for real.”6 (These notes were released by the House Oversight Committee as part of the January 6 investigation.)


Before the government intones its stock phrase, this is no fishing expedition. The statements described in this Motion actually occurred, and the events that transpired both before and after June 20, 2023 are well known to the Court. Mr. Biden seeks specific information from three former DOJ officials and the former President that goes to the heart of his defense that this is, possibly, a vindictive or selective prosecution arising from an unrelenting pressure campaign beginning in the last administration, in violation of Mr. Biden’s Fifth Amendment rights under the Constitution. Moreover, each of the former DOJ officials had known contacts with then President Trump concerning Mr. Biden, and according to recently released IRS investigative case files, each had a hand in one way or another in the still ongoing investigation of Mr. Biden, either in Delaware or elsewhere. Lastly, as reflected by both the handwritten notes taken contemporaneously by Mr. Donoghue (involving Mr. Rosen and Mr. Trump) and Mr. Barr’s vignette in his recent book, these individuals are in fact likely to have relevant materials in their possession that are responsive to Mr. Biden’s document requests. [my emphasis]

There is abundant proof that Trump was intervening with DOJ in this case. Lowell claims he hasn’t gotten that proof from DOJ. So he’s asking for it from DOJ officials directly.

To be fair, only Barr (and Trump) are likely to have documents in their personal possession, because only Barr and Trump have continued to engage in this case since leaving government.

One I’m most interested in is, after Joseph Ziegler testified that Barr, personally, made the decision to put Delaware in charge of the investigation in 2020 (at a time when Rudy Giuliani was already seeking dirt on Hunter Biden and Burisma), whether Barr reached out to someone to get Ziegler to correct his testimony and claim he wasn’t certain that Barr was personally involved.

Again, these requests almost never work. But not even Peter Strzok was able to point to known documentation tying Trump directly to efforts to retaliate against him. Probably, David Weiss will argue and Judge Maryanne Noreika will agree that Trump’s intervention didn’t pertain to the gun investigation, but instead related to the tax and influence peddling investigation which is probably being pursued in Los Angeles right now. Probably, this is an issue Lowell would have to revisit if and when Hunter is charged in such a case. I have suspected that Weiss has delayed any action on related cases to force Lowell to try this selective prosecution claim in Delaware, where it is less relevant, leaving Hunter on the hook for three felony charges, before Lowell tries such a claim where it might work in some other venue.

But it is, nevertheless, the almost unheard of case where a defendant can point to Trump’s personal involvement.

Update: Lowell referenced something I didn’t realize. This passage from Richard Donoghue’s notes shows Trump intejecting a complaint about Hunter Biden (and tying it directly with the Mueller investigation) into his demands that DOJ get involved in overturning the vote on December 27, 2020.

Here’s how Donoghue described that passage to the January 6 Committee.

A Then he went back to Detroit. He said in Detroit they “threw the poll watchers out.” He was complaining, saying they’re not allowed to do that, it’s a violation of the law, they had violated the law all over the county.

He said, you “don’t even need to look at the illegal aliens voting – don’t need to.

It’s so obvious.”

Then he was talking about the FBI. He said, the “FBI will always say there’s nothing there. The leaders there oppose me; As,” which means special agents, “support me.” He didn’t use the term “special agents,” but he said, “the agents” or “the line guys,” something like that, “support me.” I just wrote that down as “SAs.”

Q Yeah. He’s claiming that the FBI leadership somehow is against him or isn’t taking these claims seriously because they dislike himor they oppose him?

A Correct.

Q Was that consistent with your impression of Director Wray and the FBI leadership?

A No a okay.

Then the next page, this is him continuing about the FBI. He says, “I made some bad decisions on leadership there, but I was laboring under an illegal investigation.

The special prosecutor should never have been commenced.”

Then he says he was complaining about the appointment of the special prosecutor, and he says, “You,” meaning DAG Rosen and I, “figure out what to do with Hunter Biden.” That’s up to you guys. But “people will criticize the DOJ if Hunter’s not investigated for real.”

That was sort of an aside. That’s all he said about it. It was a very brief comment. But it was off-topic, and I wrote it down.

Of course, the topic wasn’t off topic. It came in the same conversation where Trump first raised replacing Rosen with Jeffrey Clark and around the time he was talking about replacing Chris Wray with Kash Patel. That is, the Hunter Biden investigation was, along with stealing the vote, one of the things that Trump would install Clark to do for him.

47 replies
  1. Upisdown says:

    “so he can see if they have personal records of improper politicization of the case against Hunter Biden”

    They used an oppo-research book to open a criminal investigation of a private citizen connected to a leading candidate.

    They extorted a foreign leader to look into fake claims spread by Russian cutouts.

    They used a partisan US attorney to open a clearing house for bogus tips on the candidate’s family.

    They disclosed the entire digital history of the private citizen’s life to embarrass his candidate father.

    They used a branch of government to hold fishing trip hearings on the investigation of the private citizen connected to the POTUS.

    They filed an amicus brief against a negotiated plea agreement between that private citizen and the DOJ.

    They appear non-stop on rightwing media outlets spreading brazen lies.

    I can’t imagine how the politicization could be more improper than it already has been.

    • timbozone says:

      How about when Hunter Biden serves time for a crime that no one else ever is prosecuted for? Would that be enough? That’s the problem with this continuing to go on as long as it has—it can very well get worse not better.

  2. scroogemcduck says:

    “Probably, David Weiss will argue and Judge Maryanne Noreika will agree that Trump’s intervention didn’t pertain to the gun investigation, but instead related to the influence peddling investigation which is probably being pursued in Los Angeles right now.”

    You are undoubtedly correct about that. The gun charge is fundamentally different from the other charges. We will see whether it survives the upcoming SCOTUS ruling in United States v Rahimi.

  3. bmaz says:

    This may be the dumbest case in the history of criminal law. If his name was “not” Hunter Biden, there would never be a prosecution, nor relentless fixation on it by the internet.

    • emptywheel says:

      Sure. But that’s not a protected class and chances are still small Lowell will be able to make that case, especially in Delaware.

    • El Señor Onazol says:

      That crown belongs to the McMartin preschool case. At least there’s an actual crime alleged in this one. A victimless, inconsequential, selectively prosecuted, likely soon to be unconstitutional crime, but still.

  4. The Old Redneck says:

    I think Lowell may be letting DOJ know that he’s going to send a trial subpoena to Trump, Barr, et. al., and make them testify in Hunter’s trial about their motives. I have my doubts that it would ever really happen, but DOJ is going to have to think about that possibility. It would certainly hurt their chances of getting a conviction.

    Otherwise, Lowell could have just done a public records request completely outside the discovery process in the criminal case and kept his mouth shut about it.

    It’s one more move in the chess game.

  5. earlofhuntingdon says:

    Trump invoked his own attacks on Hunter Biden by name in that filing, arguing that he is only being prosecuted because he has demanded that Hunter be prosecuted.

    Trump attempting to politicize an individual prosecution by the DoJ is what he would call weaponizing the DoJ. He infamously did that with regard to the Central Park Five decades ago, but then had no authority to make it happen. It’s also something his party thinks is a mortal sin and something only Democrats do – except when Trump does it, which he’s repeatedly promised to do without let-up in his next administration. But I don’t see how his weaponizing the DoJ in that case would save him from all the other crimes he’s been charged with for his January 6th coup attempt.

    • Desidero says:

      Before social media he weaponized it thru a big newspaper ad. He’s done most of his weaponization thru social media, not that his presidential efforts (with social media) were slight. Does not need “authority” for most of this, and he craps on the actual rules & precedents by which he would’ve had some authority, instead playing “I dare you to challenge”. (Gov Ethics rules? Pish!)

      • harpie says:

        And, WHO was TRUMP’s speech writer in 1989?

        […] What has happened to respect for authority, the fear of retribution by the courts, society and the police for those who break the law, who wantonly trespass on the rights of others? What has happened is the complete breakdown of life as we knew it. […]

        [alleging that New Yorkers have become] hostages to a world ruled by the law of the streets, as roving bands of wild criminals roam our neighborhoods, dispensing their own vicious brand of twisted hatred on whomever they encounter. […]

  6. Savage Librarian says:

    Of those four (Trump, Barr, Rosen and Donoghue,) I think Donoghue may be the only one who actually believes in and supports the Constitution. If The Old Redneck (above) is right, then if Lowell does eventually issue trial subpoenas, I think Donoghue would provide the most honest and honorable testimony.

    • OldTulsaDude says:

      I can’t speak for the other three but Bill Barr has made it obvious that he believes his own understaniding of Catholic morality might not at the moment supplant the Constitution but it should.

      • Rayne says:

        No clarification is necessary at all. You start down that road and all other religions will be asked to do the same thing, to explain and justify their existence.

        What needs to happen is more education about the First Amendment’s protection of individual and groups’ religious observations — no matter the religion, US government does not have an official religion, may not regulate religion, and protects individuals’ and groups’ civil rights with regard to freedom of religion.

  7. harpie says:

    I didn’t remember the Hunter Biden reference in DONOGHUE’s notes as I was reading the filing, but it’s IS right there in my attempted transcription:

    Thanks for filling in the details with his testimony.

    12/27/20 [afternoon] [TRUMP is at Mara Lago]

    [p4] – [“FBI” in margin] I made some bad decisions on leadership there, but I was laboring under an illegal investigation – Special Pros[ecutor]. Should never have been commenced
    You figure out what to do with H. Biden – people will criticize the DOJ if he’s not investigated for real.


    [p6] [D]: Told him flat out that much of the info he is getting is false, +/or just not supported by the evidence – “we look at the allegations, but they do not pan out

    Pthis is election-turning fraud [no quotation marks in original]
    “We have an obligation to tell people that this was an illegal, corrupt election.” [quotation marks in original]
    – People tell me Jeff Clark is great, I should put him in
    – People want me to replace DOJ leadership

    [D] fine, but won’t change the Depts’ position
    -you should have the leadership you want

    • harpie says:

      I just want to say that IF TRUMP and his handlers get their dearest wish, and win re-election, then Jeff CLARK at DOJ will be only one of MANY big-problem TRUMP leadership appointments in the federal government.

    • harpie says:

      This should be just before the first entry, above:

      FBI will always say there’s nothing there. The leaders there oppose me; A[gent]s support me.

    • scroogemcduck says:

      Jesus, it doesn’t matter how many times I read that, I’m still shocked and horrified every time.

  8. earlofhuntingdon says:

    Trump files his bid with Judge Engoron for a mistrial. All the usual crap. From his cold opening “Preliminary Statement”:

    While counsel are subject to a gag order apparently imposed to impede the issues herein presented from becoming public, it is a fundamental precept of American jurisprudence that sunlight is the best disinfectant.

    Wrong. The gag order limits very little of what defense counsel would like to say. But if it did, Trump’s motion for a mistrial would violate it. I’m also pretty sure that bringing up sunlight as a disinfectant is neither a legal argument nor good PR for anyone who survived Covid during Trump or Andrew Cuomo’s administrations.

    In their tireless efforts to elicit a mistrial, defense counsel also claim that Engoron, “has restricted public criticism of itself on the issues herein presented in a series of unconstitutional gag orders entered sua sponte.” Actually, in gagging Trump and his counsel from publicly commenting on his staff (as well as the defense counsel, the prosecution, and both their staffs), Engoron explicitly excluded himself. So, Trump’s counsel can’t read or are again lying to the court. And that’s just from the first paragraph of this fairy tale legal memorandum.

    • SteveBev says:

      One piece of arcana within the motion that might appear to have substance- namely the political contributions of the principal law clerk, and whether they breach the relevant rules – turn out to be a misapprehension/ misapplication of the rules.

      It is claimed that the applicable rule limits her contributions to $500 in a year.

      However, she is a candidate for judicial office so different considerations and conditions apply, and not the rule as cited in the motion.

    • Rugger_9 says:

      Meidas Touch has covered this extensively by Michael Popok and worth checking into. The tl;dr version is that Kise, Habba and Robert are not particularly experienced in NYS law practice and do not understand how the normal process works there. For example, Habba is the most experienced but her ‘office’ in NYC is a shared rental space and her experience is less than a dozen cases.

      I would tend to believe someone with 30+ years practicing in NYC (i.e. Popok) on this topic. His take is that the defense team’s lack of institutional knowledge has led to errors in filings, motions, failures to ask for jury trials, etc. that the defense is using to ‘prove’ Judge Engoron is biased. There is also some weirdness in the way that the appeals process is run in NYS compared to elsewhere.

      Popok also thoroughly addresses the principal law clerk position in NYS courts which has more responsibilities than elsewhere (i.e. Florida). In short, things are running as expected in a NYS courtroom and this motion for a mistrial will fail.

      • scroogemcduck says:

        It will fail, but as with a lot of Trump’s Court filings, this is not really a motion for a mistrial. What it really is, is a hook on which to hang a fundraising campaign for the Trump Grift PAC and a topic for the right wing talking heads to excitedly shout about on the focksnooos.

    • scroogemcduck says:

      I read the motion and specifically the part where they accuse Judge Engoron of publicly commenting on pending actions and thought “Wait that’s bad!”. Then I read it and realized that he posted links without providing any comments, in relation to actions that weren’t pending.

      It’s pretty hilarious that some poor lawyer had to go and research the Wheatley School Alumnus for links to abovethelaw articles where Liz Dye took Alina Habba to pieces and called her a complete dumbass, so that Habba could flag it up in this bullshit mistrial motion. Links such as this one:

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