Our Choice of Fathers

[NB: check the byline, thanks. /~Rayne]

Happy Father’s Day to all the fathers in our community, to the fathers-by-proxy who’ve stood in place of missing fathers, to the mothers and others who’ve had to take on more than one parenting role.

Happy Father’s Day to my friends who aren’t parents at all – may you enjoy the convenient gender-biased hardware marketing blitz aimed at the do-it-yourself dads among us.

(I’m really going to enjoy my new power rotary multi-tool, must say. Been needing one for years and this summer I’ve got a lot of projects a certain father here won’t touch – it’s on me.)

This day offers us not only a chance to thank fathers but to think about fatherhood. It’s hard to escape fathers and fathering in a patriarchal society, but perhaps this is a best reason to consider the nature of fathers.

Especially when this year’s presidential election once again comes down to a choice of fathers.

~ ~ ~

The Los Angeles Times has an excellent piece on its front page below the fold today – Biden, Trump and 2 Very Different Dads – comparing and contrasting fathers Joe Biden and Donald Trump, and their progenitors Joe Biden Sr. and Fred Trump. (Sorry – I want to share a link but LAT makes it impossible for subscribers to do so this soon after publication. As I wrote this it wasn’t available on the LAT website. Article now available at LAT but the headline has changed to Biden brings up ‘Dad’ a lot. Trump, not so much.)

In essence the article describes a father who values dignity and a father who values transactions.

What a distillation.

While we’ve already made comparisons between these two candidates at the polls in 2020, the essentials of these two men have only become more stark over the last four years.

They exemplify neatly George Lakoff’s Moral Politics model of the nurturant parent and strict father which Lakoff first laid out in 1996, again in 2001 and 2016 editions, and discussed further in his 2010 text, Thinking Politics in Chapter 4, The Nation as Family. (Thinking Politics is available for free online for download as a PDF.)

It’s telling that Lakoff categorizes a bifurcated diametric model as nurturant parent and strict fatherpatriarchy is autocratic, rejects departures from black-and-white, wrong-or-right, my-way-or-the-highway binary thinking. Do as your father orders you to do.

The nurturant parent model is inclusive, in contrast. Any gender can identify as and model nurturing. Nurturing is adaptive, because needs change with conditions though fundamental values affirming the dignity of humanity remain set.

Which parent of this nation should we choose at the polls?

I can’t help think of a particular story about Trump as father, in the wake of Hunter Biden’s conviction and Joe Biden’s loving response.

Before the 2016 election, a classmate of Donnie Jr. recounted an episode of physical abuse they felt necessary to share with the public before voters went to the polls.

I was hanging out in a freshman dorm with some friends, next door to Donald Jr.’s room. I walked out of the room to find Donald Trump at his son’s door, there to pick him up for a baseball game. There were quite a few students standing around watching, trying to catch a glimpse of the famed real estate magnate. Don Jr. opened the door, wearing a Yankee jersey. Without saying a word, his father slapped him across the face, knocking him to the floor in front of all of his classmates. He simply said “put on a suit and meet me outside,” and closed the door.

A father willing to do this to his own namesake in front of witnesses, a father who apparently failed to assist his son whose classmate called him a “drunk,” isn’t the kind of person Americans needed in 2016 or in 2024 in the White House.

Reports surfacing only now that Trump while in the White House talked about executing persons including those who leaked information is extremely troubling. What if it had been his own family members leaking information?

If we are a nation as family, whoever the prospective leaker might be is family – and Trump has expressed a willingness to kill them.

Trump has already displayed openly a bent toward violence. The extrajudicial assassination of Iran’s Major General Qasem Soleimani was a demonstration of Trump using violence at the furthest reaches and beyond of his presidential powers. We have heard and read numerous examples of his incitement to violence including the attack on the capitol on January 6. What would he do to Americans at home and abroad if he was elected again?

And of course Trump has already promised retribution against his perceived enemies if he should be re-elected.

Which parent should we choose, indeed.

At least this election we still have this choice. Choose wisely.

The Threats that Hunter Biden’s Prosecutors Pretended Didn’t Exist Continue Unabated

Twice in the lead-up to Hunter Biden’s first trial, Leo Wise and Derek Hines pretended that threats elicited by the political firestorm surrounding the case didn’t exist.

When Abbe Lowell raised the threats David Weiss faced and cited a story describing Weiss’ testimony about the safety of his family, Derek Hines continued to insist that there was no way Trump — who attacked Weiss personally after the plea deal was docketed — could have influenced the case (before Judge Noreika, prosecutors had claimed to be incompetent to find the offending Trump posts on Truth Social).

If the statements by politicians prior to the hearing truly influenced the prosecution in the way the defendant claims they did, why did the government sign the agreements and present them at the hearing? Second, to state an obvious fact that the defendant continues to ignore, former President Trump is not the President of the United States. The defendant fails to explain how President Biden or the Attorney General, to whom the Special Counsel reports, or the Special Counsel himself, or his team of prosecutors, are acting at the direction of former President Trump or Congressional Republicans, or how this current Executive Branch approved allegedly discriminatory charges against the President’s son at the direction of former President Trump and Congressional Republicans. The defendant’s fictious [sic] narrative cannot overcome these two inescapable facts.

Then, in a March hearing on that motion as well as one arguing that the publicity campaign from the disgruntled IRS agents had unlawfully influenced the prosecution, Leo Wise claimed there’s no proof that the IRS agent campaign started the dominoes that led Weiss to renege on the plea deal.

MR. WISE: So I think the Defense’s problem is the same problem you identified in the last motion, which is they offer no proof. None. None whatsoever that there’s causation.

I wrote down what Mr. Lowell said. He said the agents “did the causation.” What does that mean?

Where’s the proof that these two guys going on TV had anything to do with what we did?

Well, they said, “Oh, they started the dominoes.”

What dominoes? Where is the proof of any of that?

Other than insulting us, where is the proof that anything these two agents — who I couldn’t have picked out of a lineup — had anything to do with our decision-making?

Wise said that as David Weiss looked on. While neither Jim Jordan nor DOJ have released the transcript proving it, according to Special Agent in Charge Thomas Sobocinski, both Sobocinski and Weiss acknowledged, after Gary Shapley first started his media tour, that the publicity campaign, “would have had it had an impact on our case,” and that impact had been doxing and pressure on members of the investigative team.

Q After it became public that Gary Shapley was going to come to Congress and he gave, I think, an interview on CBS in the at the end of May before his congressional testimony, who did you discuss that with?

A My team within Baltimore, probably folks within the Criminal Investigative Division. Definitely David Weiss.

Q And what was the nature of your conversation with David Weiss?

A I need to go off the record for a minute.

Mr. [Steve] Castor. Okay.

[Discussion held off the record.]

Mr. Sobocinski. Yeah. In general, it was concerns about how this was going to affect the ongoing case and were there issues we needed to take into at least from the FBI side to move forward.

BY MR. CASTOR:

Q After Shapley’s testimony became public in June, did you have any conversations with David Weiss about that?

A We acknowledged it, but it wasn’t I mean, we didn’t sit there with the transcript going back and forth. We both acknowledged that it was there and that it would have had it had an impact on our case.

Q Okay. Did any of your conversations with David Weiss, you know, have anything to do with like, can you believe what Shapley’s saying, this is totally 100 percent untrue?

A I don’t remember that level of it.

Q If it was

A I was more concerned about how this is affecting my employees. I now have FBI employees that names are out there. I have FBI employees and former FBI retired agents who’ve served for 20plus years whose parents are getting phone calls, whose photos with their girlfriends, who their children who are being followed. That is not something that we were prepared for, and I was concerned about having that continue or expand to other one of my employees. [my emphasis]

The transcripts in which David Weiss, Lesley Wolf, and Martin Estrada described the threats they and their families faced as a result of the pressure campaign from the IRS agents, House Republicans, and Trump have not been released. The outcome of any investigations into those threats likewise remains secret. Similarly, the efforts US Marshals made in response, especially, to the threats against Wolf and Estrada remains secret, though even Ken Dilanian described a special unit to investigate threats against FBI agents on these high profile investigations.

While Abbe Lowell did not focus on the threats elicited by the pressure campaign as much as he might have, to the extent he did, prosecutors simply pretended those threats didn’t exist.

And then, hours and days after the Hunter Biden verdict, the vicious conspiratorial threats went public with the arrest affidavit for Timothy Muller, a Trump supporter in Texas who, six hours after the verdict, called the FBI agent who picked up the laptop from John Paul Mac Isaac (and who may not have been involved in the case since 2021) and threatened him and his family.

Hey [j], you little cock-sucking pussy! You can run, but you can’t fucking hide. You covered up child pornography. You covered up [Hunter Biden] raping his own fucking neice, you fucking piece of fucking degenerate shit! So here’s how it’s gonna go: [Trump’s] gonna win the re-election. and then we’re gonna fucking go through the FBI and just start throwing you cock-suckers in jail. OR, you can steal another election, and then the guns will come out, and we’ll hunt you cock-suckers down and slaughter you like the traitorous dogs you are in your own fucking homes. In your won fucking beds. The last thing you’ll ever hear are the horrified shrieks of your widow and orphans. And then you know what we’re going to do? Then we’re going to string those fucking cock-suckers up. We’re going to slaughter your whole fucking family, you fucking pedophile! It’s like THAT now. So choose. Jail? Or getting strung up and lynched like the fucking traitor you are. That’s what happens when you cover up for fucking pedophiles, you piece of fucking shit!

Trump supporters are calling investigators and threatening to lynch them because they’re not prosecuting conspiracy theories ginned up by fellow Trump supporters.

When staffers asked David Weiss last November about these threats, he offered up the word, “intimidation” (then disclaimed understanding the motive for such threats).

Q Has this outsized attention led to increased attention on your office specifically?

A It’s led to increased attention for everyone who has touched the case. I think that’s correct.

Q Has the outsized attention given to this case resulted in threats and harassment against members of your office?

A Yes. Members of my office, agents assigned to the case, both from the IRS and from the FBI, doxing family members of members of my office. So, yeah, it’s part and parcel of this case.

Q Do you have concerns for the safety of individuals working in your office?

A Sure. I have safety concerns for everybody who has worked on the case, and we want to make sure that folks — yeah, folks are encouraged to do what they need to do with respect to the pursuit of justice generally and they not be intimidated in any way from performing their responsibilities.

[snip]

Q Do you have concerns for your safety or that of your family because of these threats?

A You know, I’m not — for myself, I’m not particularly concerned. Certainly I am concerned, as any parent or spouse would be for — yeah, for family, yep.

And at least as expressed by Muller, these threats are intimately tied (as exploitation of Rudy Giuliani’s copy of the laptop and Trump’s threats to replace DOJ officials with Jeffrey Clark were in the first place) to Trump’s false claims about the 2020 election, to Trump’s bid to become a dictator from day one.

And even as prosecutors serve up one after another humiliating trial during campaign season, they’re pretending the campaign against Hunter Biden isn’t all part of Trump’s bid for unaccountable power.

Fridays with Nicole Sandler (and LOLGOP and Spocko)

Nicole Sandler was quite sick today so LOLGOP and Spocko helped fill in.

Listen on Spotify (transcripts available)

Listen on Apple (transcripts available)

The Pee Tape: The Media’s Obsession with Jill Biden May Undermine the Jury

Let say at the outset, I absolutely support the decision of the jury to convict Hunter Biden, based on the evidence submitted to them.

This description, from Juror 10, describes that Abbe Lowell’s attempt to explain away the 7-Eleven texts sprung on the defense the morning of closing arguments convinced the jury that Hunter had been trying to buy crack shortly before he denied being an addict on the gun form.

The 68-year-old juror from Sussex County, Delaware described the case to Fox News but said he didn’t buy the defense’s narrative that Hunter may have gone to a 7-Eleven to buy coffee — and said he thought he was probably buying crack-cocaine.

“Nobody is above the law, doesn’t matter who you are,” the juror said.

Prosecutors had suggested that Biden was trying to reach out and find drug dealers when he was arranging to meet someone at a Wilmington convenience store at 5 a.m. 7-Eleven was referenced in Biden’s Oct. 15-16, 2018, text messages. Biden also wrote about the convenience store in his memoir, “Beautiful Things,” explaining it was the type of place he would go to buy drugs.

That would suggest any question about the verdict would focus more on the way the prosecution submitted these texts, without identifying them as exhibits first, as a rebuttal case.

As zscoreUSA and I were discussing when I described the background of the texts, by submitting them in this way, Abbe Lowell had no opportunity to conduct a technical review of how those SMS texts, probably sent from a phone that Hunter lost the day he sent them, came to be found on a laptop that didn’t first associate to Hunter Biden’s iCloud account for another ten days. (He may later have found the phone, but this particular instance is a case that prosecutors would need to explain.)

So admitting them in this way did two things: Admitted case-in-chief evidence as rebuttal evidence, even though it had no plausible tie to rebutting Naomi Biden’s testimony, the pretext prosecutors used for doing so, and in so doing, depriving Lowell of making a technical challenge to their admission.

As I said before those texts came in, the case that Hunter used drugs during the period he owned the gun was strong. That made the decision on Count Three, possession, fairly clear cut. Short of nullification, the biggest question was whether jurors would find the sketchiness surrounding the form raised enough questions about it to give pause on the two form-related charges. Apparently it did: according to one report the last thing the jury decided was whether the form could be deemed material in a case where the gun shop admitted they sold the gun even though the paperwork was improper.

But once those 7-Eleven texts came in, it made any attempt to explain mindset at the gun shop far less convincing. As Lowell said, the texts were “case changing.”

So any question about the verdict will focus not on the jury, but on five decisions Noreika made:

  • To permit the prosecution to rely on laptop evidence without indexing and Bates stamping it first
  • To admit laptop evidence via summary, evading any technical validation
  • To prohibit virtually all discussion of the gun shop’s own alleged misconduct with respect to the form
  • To allow prosecutors to admit these texts as rebuttal, when they should have come in — as identified exhibits — in their case in chief
  • To keep “knowingly” off the verdict form

Again, with regards to the substance of the evidence, all of the many juror interviews demonstrate that the verdict was proper. I’m grateful for their service and happy that they’re not terrified of being doxxed, as all the Trump jurors (wisely) appear to be.

That said, the media’s obsession on whether Jill Biden’s presence in the courtroom played a factor — a question they seemed to ask every time a juror gave an interview — could undermine the jury in another way, because it introduces questions of juror credibility and raises further questions about their discussions before deliberating.

That’s because this tweet from Glenn Thrush suggests that jurors and the media were, at a minimum, aware of, if not interacting with, each other as they all stayed at the Doubletree Hotel next to the courthouse.

Juror 10, who lives an hour away from the courthouse, is among those who might have stayed at the hotel.

The jurors all promised they would keep an open mind. But there wasn’t a single journalist at the trial who exhibited an open mind — and almost none of them exhibited an understanding of the elements of offense for each of the three charges. Almost none of them understood that the four years of evidence of addiction was not dispositive about Hunter’s mindset on October 12, 2018.

The jurors were much smarter about the case than the tabloid journalists covering it. So even if jurors just heard reporters discussing the case at breakfast or the hotel bar, it might taint their understanding of the case (though Judge Noreika asked jurors Tuesday morning and they said they had not “[heard] anything” outside of the courtroom).

All the more so given that jurors went from a 6-6 split on the verdict on Monday to coming to unanimity after a few hours on Tuesday.

Because of the import of the 7-Eleven texts, any such taint likely wouldn’t matter.

But there is something that jurors have said that might raise questions.

Because the press asked and asked and asked about Jill Biden’s presence, there are many descriptions of how the jury viewed her presence,  such as this claim from the ubiquitous Juror 10.

Some jurors confessed that they didn’t initially recognize the first lady, who was a constant figure sitting behind Hunter Biden in the courtroom gallery.

“People were saying, ‘I didn’t even know what President Biden’s wife looked like,’” juror No. 10 said, adding that he felt badly that Hunter Biden’s daughter, Naomi Biden, was called to testify.

Juror 10 balked at that same question here.

CNN, however, said that all the jurors it spoke with “acknowledged the weight of having her in the courtroom,” (with yet another quote from Juror 10).

The reason this matters is that one juror and two alternates ran into Jill Biden and Melissa Cohen Biden last Wednesday when they decided to use the public bathroom rather than the dedicated jurors’ bathrooms.

THE COURT: So during the break, three jurors decided that they didn’t want to wait in line in the jury room because there are 16 of them and one bathroom or two, and so they went out in the hall and they went to the bathroom. It was juror number nine, and it was two of the alternates, I believe it was the remaining — the first two remaining alternates, not the older woman on the —

MR. KOLANSKY: Younger woman.

THE COURT: Yes, the two younger women. And so they went to the bathroom and the Marshal saw them in there and came back. Mr. Biden’s wife was in there at the time. And she was in the stall, and she was coming out of the stall when they were — when they were — I guess washing their hands or something.

So I instructed my deputy that he needs to be much sterner that they — with all the jury, that they cannot leave unaccompanied. I then called in each of the jurors one at a time into my chambers to reinforce that, but also to ask them what happened.

They each gave very similar stories. They said you know, didn’t want to wait in line, they opened the door from my chambers, there is a hallway back here, my chambers is on the other side, so they walked down this hallway, got to the door, and they saw security. I assume it was Secret Service, because I think Mrs. Biden stands out there. They said they waited and someone gave them a thumbs up and they walked to the bathroom, went to the bathroom, were coming out and as they were coming out, they saw Mrs. Biden, the younger Mrs. Biden, coming out of the stall. That there were no — there was no discussion, no interaction, but they saw her, and then one of the jurors said when it was — one of the alternates, she said when she was walking back, she looked sideways, and saw the first lady, that one didn’t bother me because you can see the first lady sitting in the courtroom. That’s what happened, if you guys want to do anything, if you want to ask them any questions you can, but I just want to put on the record that happened.

MR. LOWELL: Appreciate you telling us that, there was no verbal interaction?

THE COURT: There was no verbal interaction, were you guys discussing anything you’re not supposed to be discussing about the case, were you discussing anything in the bathroom?

MR. LOWELL: There is nothing I need to say.

THE COURT: No, she didn’t do anything wrong.

MR. LOWELL: She just went to the bathroom?

MR. HINES: Today?

MR. LOWELL: Right. I understand.

Getting questioned — without warning to the lawyers in advance — about this interchange changed the focus on Jill Biden.

We know, from the sidebar on Hallie Biden’s interactions with her spouse, that jurors were discussing interactions with family members when they shouldn’t have been. Indeed, one of the alternate jurors was the one who first raised the exchanges Hallie Biden was having from the witness stand.

And Juror 10’s chummy interviews with the press raises questions about discussion of Jill Biden’s presence, possibly in response to this exchange.

Leo Wise’s Performed Ignorance

I want to look at a tactic that Leo Wise — who purports to be enforcing Rule of Law — used at the Hunter Biden trial, because it demonstrates how aggressively he polices the boundaries of his own plausible deniability, plausible deniability he used elsewhere in these proceedings to make claims he should know are false.

I’ve already pointed to the nutty response Abbe Lowell elicited from Jason Turner who, when he worked at the gun shop where Hunter bought a gun (he now works for the US Mint!), was in charge of ensuring paperwork was in order.

Turner’s testimony appears to be totally honest. He said, first, that he told Gordon Cleveland to get a second form of ID. And then, without saying whether Cleveland did do so or not, said that if he had, Turner would have written it on the line for doing that.

Q. Then you said that you told Mr. Cleveland something, right?

A. He needed to get further government issued identification with an address on it.

Q. Right. And if he did, what would you do with that?

A. I would have written it right in there. [my emphasis]

When Lowell asks Turner why it’s not on the form, Turner then changes from the conditional tense to the past tense. “I would have written it … I wrote that.”

Four times Turner asserts he did write that he had gotten a vehicle registration.

According to the publicly known facts, he did write it — two or three years after the fact.

Q. But you don’t see such writing in there, do you?

A. When I wrote that out, I wrote the car registration.

Q. You don’t see such a writing in there, do you?

A. When I wrote that out, I wrote car registration.

Q. When you wrote this out, you wrote car registration here or car registration there?

A. 18(b), car registration.

Q. You wrote it?

A. I wrote it.

Q. Where is it?

A. I wrote vehicle registration in there. [my emphasis]

But then Lowell asks him where it is on the form. “It’s not there,” Turner also truthfully describes.

Q. I’m asking you if you did and this is the form, where is it on the form that you say you wrote?

A. It’s not there.

Leo Wise — who purports to be enforcing Rule of Law — interrupts to halt this line of questioning. He states that this line of questioning has been excluded (expanding the already expansive limits on Hunter’s Sixth Amendment Judge Noreika authorized), and then offers up that poor Jason Turner is simply describing his memory of writing the form.

The second form of identity required by rule of law, Leo Wise — who purports to be enforcing rule of law — says, is irrelevant.

MR. WISE: Your Honor, may we approach side-bar?

(Side-bar discussion.

MR. WISE: So this line of questioning was excluded, he has a memory of writing it, he hasn’t established when, he’s not impeached him, he said he remembered writing it in. He’s asking him about the day, but he’s not distinguishing, and this is simply irrelevant, a secondary form of ID is irrelevant.

Lowell responds (and while all the lawyers in this case were willing to game the limits of trial conduct, in this case, this is completely believable) that he had no idea how Turner would respond to his question.

MR. LOWELL: Wow. I have no idea he was about to say what he just said, that he wrote in a different form of identification.

THE COURT: He’s confused as to the time.

MR. LOWELL: I know he is and I’m not going there but he said it, so I just wanted to ask who wrote it, where is it, I didn’t know he was going to say that, judge.

MR. WISE: He did know that because the [Jencks] that we gave you from Palimere, said Palimere told him to write it.

MR. LOWELL: Two years later.

MR. WISE: That’s not your question.

MR. LOWELL: I’m asking him on that day, I’m asking him on that day.

THE COURT: What you can do now is you can just say there is nothing about the vehicle registration. It is not written in this box on this version of the form.

Ultimately, Judge Noreika believes that Lowell had no idea how Turner would respond, because she was surprised herself.

MR. LOWELL: Okay. But let’s be clear on the record, when you say I knew he was going — I had no idea he was going to say that.

THE COURT: I take your word for that. I didn’t know he was going to say that.

After that exchange, Lowell got Turner to concede that the registration was not marked on the form.

(End of side-bar.

BY MR. LOWELL: Q. So what I was asking you is from whatever you just said about the testimony of anything having to do with the registration, you and I can be clear that on this form that has the date on it, there is no such reference in line 18(b), right?

A. There should be.

Now, note that Leo Wise handled cross of Turner and — as we’ll see — of Ron Palimere, the gun shop owner. We know that Derek Hines attended an interview with Palimere in May, and neither prosecutor attended an interview with Cleveland; FBI Agent Erika Jensen did that by herself.

But Wise undoubtedly knows that Hines met with Palimere mere weeks ago, at which Hines reiterated the proffer that prohibited prosecutors from using Palimere’s admission that, “No one thought to get supplemental information” substantiating that Hunter lived at his father’s address because, “everyone in the area knows who lives” there. Wise undoubtedly also knows that Palimere described just writing something convenient in on the form, because “it was all they could think of.”

Palimere decided to write Delaware registration in the box labeled 18.b. Palimere does not know why that was chosen but he knew it had to be an official document and it was all they could think of. Turner was the one who wrote Delaware vehicle registration in the box.

Palimere thinks that if Biden presented a vehicle registration on the day of the sale, it would have been documented on the certified 4473.

Normally, they would call a customer if they found an error/omission and needed to annotate the Form 4473. The ability to annotate the Fom 4473 is allowed by the ATF. For this case, a typical customer would have been called and told they needed to come back in and bring registration to show the residency.

Palimere was not about to call Biden. Palimere felt they could not have him come into the store. Plus, Palimere did not want to contact Biden and tell him he needed to come in and he was being investigated.

Wise undoubtedly knows all that.

But he did something notable to pretend to have plausible deniability about it, to pretend to have nothing to do with any uncertainty that Lowell might introduce.

When Lowell asked Palimere a question he didn’t ask of Turner (whether they had ever met before, a fairly standard trial question), Leo Wise objected when Lowell said that Palimere had met with “prosecutors,” plural.

Q. My name is Abbe Lowell, we’ve never met?

A. No, sir.

Q. Never spoken?

A. No, sir.

Q. You have spoken to the prosecutors and investigators in the case, right?

A. Yes, sir.

Q. And we have —

MR. WISE: Your Honor, I object to that question, prosecutors and investigators, we’ve never met as well.

MR. LOWELL: I’m sorry.

BY MR. LOWELL:  Q. You have met with members of the FBI?

A. Yes, sir.

Q. Even recently; correct?

A. Yes, sir. [my emphasis]

Wise objected to the question, one that Palimere had already answered in the affirmative, creating the illusion of plausible deniability, one that served to obscure that Derek Hines had not only met with Palimere, but learned that Palimere knowingly sold a gun without proper paperwork.

Wise had no questions for Parlimere.

But he did for Turner.

Indeed, even before he introduced himself, he asked Turner whether Hunter’s attorneys had succeeded in meeting with him before trial. Turner didn’t respond. Instead he suggested that they had set up a meeting but Hunter’s attorneys, “can’t be on time for nothing.”

Q. Good morning, Mr. Turner.

A. Good morning.

Q. So you were subpoenaed by the defense as a witness, right?

A. Correct.

Q. Did they try to talk with you before they did that, before you testified here today?

A. That’s a whole mess of stuff right there.

Q. Really?

A. I got the subpoena, I had to call them.

Q. Uh-huh.

A. And they can’t be on time for nothing.

Q. What does that mean?

A. I work third shift.

Q. Uh-huh.

A. And so I should be sleeping right now.

Q. What does third shift mean?

A. Third shift, that’s on the other side of the clock from everybody else, I go in at 6:00 p.m., I get done at 5 a.m.

Q. Is that what you got done today?

A. Yes.

Q. All right. So I just have a — you and I have never met, right, Mr. Turner?

A. I don’t even know you from nobody.

Q. I just have a couple of questions?

In fact, Judge Noreika even interrupted to remind Wise to introduce himself!

THE COURT: Did you introduce yourself?

MR. WISE: I’m not sure. I will.

THE COURT: He said he doesn’t know you.

BY MR. WISE: Q. My name is Leo wise, I represent the United States in this case. Nice to meet you.

So if we could have government Exhibit 10A on the screen. This is the form that Mr. Biden filled out that Mr. Lowell asked you about, right?

A. Correct. Actually that form is wrong.

As she did not do when, for example, Kathleen Buhle answered a question that had been excluded from questioning by offering up that Hunter had, “gotten kicked out of the Navy for testing positive for cocaine,” Judge Noreika warned Turner not to answer questions prosecutors had not asked.

THE COURT: Just take it one step at a time, only answer the questions that he asks.

THE WITNESS: Yes, ma’am.

Wise badly wanted to know whether Lowell had learned any of the details prosecutors were hiding from him, so much so he forgot his manners.

Part of this was about preventing jurors from learning that Leo Wise’s application of Rule of Law is, in fact, selective, from learning that Wise’s sidekick Derek Hines had in fact already immunized a potential crime, one with potentially greater impact on society, from these witnesses.

But part of it was also about policing his own plausible deniability.

Denial and Forgetting at the Hunter Biden Trial

Consider the levels of denial and forgetting that it takes to write this paragraph the week that Hunter Biden, charged by a Trump US Attorney turned Special Counsel using evidence significantly sourced from a laptop handed over by John Paul Mac Isaac, stood trial.

While president, Mr. Trump repeatedly told aides he wanted the Justice Department to indict his political enemies. The Justice Department opened various investigations of Mr. Trump’s adversaries but did not ultimately bring charges — infuriating Mr. Trump and contributing to a split in 2020 with his attorney general, William P. Barr. Last year, Mr. Trump promised that if elected again, he would appoint a “real special prosecutor” to “go after” Mr. Biden and his family.

Five years ago, Donald Trump was impeached for extorting Ukraine to announce an investigation into Hunter Biden. The press covered it — and the way Rudy Giuliani continued to solicit such dirt from known Russian spies as impeachment loomed — with seriousness.

The following year, when Rudy rolled out a “laptop” once associated with Hunter Biden’s Apple account days before the 2020 election, media outlets including WSJ and Fox exercised some skepticism about the story of Hunter Biden abandoning a laptop with a blind computer repairman who would then share it with the guy who had been seeking just such a laptop for almost two years. Even at the NYPost, some reporters withheld their byline.

Yet that caution, and the details disclosed by past diligent reporting, has disappeared. It seems that, over the course of the last five years, Hunter Biden has become icky, leading almost all interest in the source of this investigation that led to his conviction to disappear. And Hunter Biden has become icky precisely through the process of the unprecedented GOP hit job against him.

Even Judge Maryellen Noreika bought into the icky storyline, dismissing the claim that Rudy Giuliani had any impact on this prosecution by claiming that texts that only existed publicly thanks to Rudy Giuliani instead appeared in Hunter Biden’s memoir.

That process of making Hunter Biden icky enough that his due process didn’t matter simply got whitewashed in the trial.

WaPo described the guy who started snooping through Hunter Biden’s private data almost immediately, whose claims to the FBI about what he found have not borne fruit, and who then sought out Donald Trump’s personal lawyer and shared bootable hard drives of Hunter Biden’s laptop, “a sort of whistleblower.”

That John Paul Mac Isaac even shared the bootable hard drive with Rudy (who then shared it with Jack Maxey, who then shared it with WaPo) has disappeared from this narrative.

NBC’s biggest scoop of the week — one representative of their tabloid coverage of the trial — likewise laundered the hit job that led to this trial. In describing how Hunter’s spouse attacked the man who had spent years demanding criminal investigations into Hunter based on texts extracted from the bootable hard drive, Sarah Fitzpatrick described Garrett Ziegler as no more than a former Trump trade policy aide, not someone who played a key role in the Big Lie and the coup attempt.

In a tense moment outside the courtroom where Hunter Biden is on trial for gun charges, his wife, Melissa Cohen-Biden, confronted former Trump White House aide Garrett Ziegler, who has been in the courtroom.

Ziegler, who worked on trade policy in the White House, was part of an effort by Trump allies to make public the contents of a laptop to embarrass Joe Biden’s son in the final days of the 2020 election. Hunter Biden sued Ziegler and the company he founded, Marco Polo, in September of last year, claiming they broke state and federal laws in an effort to create a searchable online database with 128,000 emails.

And Fitzpatrick whitewashed the substance of the lawsuit, which focuses on Ziegler’s admission that he broke the encryption of a phone backup included on the hard drive. Hunter isn’t suing because Ziegler made the texts from that phone available (Ziegler also made Ashley Biden’s diary available). He’s suing because Ziegler took actions to access the content that go well beyond publication.

In his response to the lawsuit, Ziegler argued that because Hunter never owned the hard drive on which the phone backup had been transferred, cracking that password does not amount to hacking.

Finally, as noted, WSJ similarly laundered part of the campaign that brought Hunter Biden to the point of facing felony gun charges. As a story on Merrick Garland’s relationship with some Special Counsels (WSJ ignores John Durham), it describes that David Weiss asked for Special Counsel status so he could pursue a list of FBI tasks, specifically the Alexander Smirnov allegations.

By 2022, prosecutors and agents had already believed that Hunter Biden committed tax crimes, but Weiss still seemed no closer to charging him or resolving the case. FBI officials asked Garland’s office if he could help move Weiss along.

Garland refused to prod Weiss, saying he had promised him broad independence to pursue the inquiry as he saw fit.

FBI agents drafted a list of final steps to push the probe forward—including to follow up on allegations from an FBI source that tied Hunter Biden’s financial misdeeds directly to his father.

Weiss’s office reached a tentative plea deal with Hunter Biden in June 2023, in an agreement that would likely include no jail time. Republicans in Congress alleged that Hunter Biden was getting a sweetheart deal, which fell apart a month later. In August, Weiss asked Garland to make him a special counsel, pointing to the FBI’s list and asking for independence. Garland agreed, recognizing that he had earlier promised Weiss autonomy and any resources he sought. [my emphasis]

There’s so much that any story about the Smirnov allegation might include: the way in which Bill Barr effectively immunized Rudy’s dalliance with Russian spies and set up a side channel targeting Joe Biden’s kid, FBI’s failures to respond when Smirnov shared recycled Murdoch dirt, the pressure brought to bear by Bill Barr’s public comments last summer, Smirnov’s self-proclaimed ties to Russian spooks, Weiss’ own conflicts as a witness to the side channel.

But at the very least, describe that David Weiss sought Special Counsel status to chase an effort to frame Joe Biden, one he had had in hand since 2020, one identified because Barr set up a way to look for it.

The felony gun charges against Hunter Biden might never have happened without the Special Counsel status. And the Special Counsel status arose out of a foolish effort to pursue a transparently false effort to frame Joe Biden.

The jurors did their job Tuesday. They looked at the evidence provided to them, and judged that Hunter Biden had knowingly lied when he purchased a gun over five years ago.

It is not their place to measure whether the process by which Trump partisans relentlessly campaigned to demand the criminal investigation into Joe Biden’s kid — and with the Smirnov hoax, into Joe Biden himself — amounts to due process or justice.

But it is the job of journalists to remember how we got here, to convey the role that Trump’s effort to investigate Joe Biden and his kid has had in this process.

This prosecution happened because of stupid things Hunter did five years ago, during the depths of his addiction.

But it would never have happened without the partisan interventions of John Paul Mac Isaac, Rudy Giuliani, and Bill Barr (to say nothing of the House GOP chasing the files they all made available). It likely would never have happened if David Weiss hadn’t credulously chased a hoax from a snitch with ties to Russian intelligence. It might never have happened without the gun shop owner — the same guy who admitted selling a gun without proper paperwork because he wanted to get Joe Biden’s kid out of his store — making a stink about the gun purchase just in time for the election.

It is true that almost nobody else would have been charged based on the facts of this case.

It is also true that almost nobody else (with the possible exception of Hillary Clinton) has faced such an unrelenting partisan campaign demanding criminal prosecution.

What Happened to Hunter Biden’s Plea Agreement

Because people who ignored the motion to dismiss proceedings have now decided to weigh in on what happened with Hunter Biden’s failed plea agreement last year, I wanted to lay out what is actually known to have happened, rather than what pretty faces like Ken Dilanian falsely claim happened.

The timeline makes several things clear: First, Weiss did revoke the terms of the immunity agreement he offered in June 2023. But that’s not what killed the plea deal. Hunter was willing to accept a narrowed plea deal. What killed it was Judge Noreika’s intervention in the Diversion Agreement. Once she gave David Weiss the opportunity, he withdrew all remaining meaningful terms of the plea deal, got Special Counsel status, and chased the Alexander Smirnov hoax.

Weiss was personally involved in a plea offer on June 6 that would have immunized Hunter against further charges on the fact set under discussion (so guns, taxes, drugs, and FARA). It remains uncontested that Weiss’ office told Chris Clark on June 19 there was no ongoing investigation.

On July 20, Probation agreed to changes to the Diversion Agreement, seemingly indicating approval. But then, as Wise and Hunter were signing the Diversion Agreement on July 26, the head of Probation told AUSA Ben Wallace she would not sign the Diversion Agreement; no one ever told Hunter this in the hearing or the negotiations immediately after the hearing, but it appears that Judge Maryellen Noreika knew Probation was not going to sign.

Before any specific discussion of scope of immunity, Judge Noreika suggested Probation could veto Diversion Agreement because grant of immunity is too broad. After that, she complained over and over and over that she didn’t get to sign the Diversion Agreement.

At the plea hearing, Leo Wise asserted (contrary to earlier assurances) there was an ongoing investigation.  After Wise said the immunity permitted FARA charges and there would be no deal if FARA were excluded, Clark agreed to orally modify the scope of immunity, and by the end of the hearing both Wise and Noreika recognized that. At that point, Hunter believed he had a signed Diversion Agreement covering guns, taxes, and drugs (but no longer FARA).

After complaining that she didn’t get to sign the Diversion Agreement over and over, Noreika deferred the plea, and ordered more briefing.

Hunter pled not guilty.

In their first offer after the plea hearing, Weiss proposed getting rid of judicial arbitration and also eliminating all immunity, effectively throwing out the plea. After Hunter didn’t immediately accept the no-immunity, no-arbiter plea, Weiss got Special Counsel status.

Hunter was willing to take a plea without FARA immunity. But because Noreika wanted the ability to veto the scope of immunity, she didn’t approve the plea. And that led Weiss’ office to immediately revoke all meaningful substance of a plea offer.

Timeline

June 6, 2023: Chris Clark spoke to David Weiss and told him any “Agreement’s immunity provision must ensure Mr. Biden that there would be finality and closure of this investigation.” In response, Lesley Wolf proposed this language, to which Chris Clark agreed on Hunter’s behalf:

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.

June 7: Bill Barr tells Margot Cleveland that the Smirnov FD-1023 had been sent to David Weiss for further investigation.

It’s not true. It wasn’t closed down,” William Barr told The Federalist on Tuesday in response to Democrat Rep. Jamie Raskin’s claim that the former attorney general and his “handpicked prosecutor” had ended an investigation into a confidential human source’s allegation that Joe Biden had agreed to a $5 million bribe. “On the contrary,” Barr stressed, “it was sent to Delaware for further investigation.”

June 19: Per claim from Chris Clark that Weiss never contested in Motions litigation, Weiss’ First AUSA told him that there was not another open or pending investigation into Hunter Biden.

Shortly after that email, I had another phone call with AUSA Hanson, during which AUSA Hanson requested that the language of Mr. Biden’s press statement be slightly revised. She proposed saying that the investigation would be “resolved” rather than “concluded.” I then asked her directly whether there was any other open or pending investigation of Mr. Biden overseen by the Delaware U.S. Attorney’s Office, and she responded there was not another open or pending investigation.

July 19: Chief of Probation Margaret Bray recommends Hunter for 24-month diversion.

July 20: AUSA Benjamin Wallace tells Noreika’s Courtroom Deputy that the government, Hunter’s team, and Probation have agreed to changes in the diversion agreement.

The parties and Probation have agreed to revisions to the diversion agreement to more closely match the conditions of pretrial release that Probation recommended in the pretrial services report issued yesterday.

July 20: Chuck Grassley and James Comer release Smirnov FD-1023.

July, ND (per indictment): FBI requests Weiss assistance in investigation of FD-1023.

July 26 Plea agreement (note, the links to the transcript come from references Judge Noreika made in her order denying immunity under the Diversion Agreement, as well as all the complaints about not getting to sign the Diversion Agreement which she left out; the order is best understood as an effort to refashion her own intervention):

  • Before Noreika enters the room: Leo Wise and Hunter Biden sign Diversion Agreement
  • As Wise and Biden are signing Diversion Agreement, Wallace approaches Bray regarding Diversion agreement, and she, “expressly declined to sign the draft diversion agreement” [at this point, the prosecution and Probation know she has refused to sign, but Hunter does not; for reasons I laid out here, it appears Noreika did know Bray was not going to sign]
  • 12: Noreika does plea colloquy
  • 40: Hunter says he’s relying on promises in Diversion Agreement
  • 42: Noreika asks whether this is a plea under Rule 11(c)(1)(B) or Rule 11(c)(1)(A)
  • 43: Clark says the plea stands alone
  • 45: Clark says government has reassured him they’ll stand by Diversion Agreement
  • 47: Noreika suggests Probation could reject the Diversion because immunity grant was too broad; Wise says that’s discretion of DOJ
  • 48: Wallace — the only prosecutor who definitely knew Probation had refused to sign — agrees that if the immunity were in the plea, it’d be under Rule 11(c)(1)(A)
  • 51: Wise says there’s an ongoing investigation (conflicting with reassurance offered by Weiss’ office in June)
  • 51: Noreika complains she can’t sign the Diversion Agreement
  • 52: Clark says the Diversion Agreement has been approved by Probation; no one corrects him
  • 52: Noreika complains the Diversion Agreement treats her as a rubber stamp
  • 56: Wise says they could bring FARA charges
  • 56: Wise says if FARA is included, then “there is no deal”
  • 58: Clark agrees to orally modify immunity provision to apply to only drugs, guns, and taxes
  • 84: Wise says the parties to the Diversion Agreement are DOJ and Hunter
  • 90: Wise states that the immunity paragraph has been orally modified to apply only to drugs, guns, and taxes
  • 93: Noreika complains that there’s no place for her to sign off on Diversion Agreement
  • 96: Noreika complains that DOJ won’t be able to charge Hunter if she doesn’t agree he has violated Diversion Agreement
  • 102: Wise repeats that they’ve agreed to terms of Diversion Agreement
  • 105: Noreika complains that she doesn’t have the ability to sign off on immunity
  • 105: Noreika defers plea
  • 106: Noreika asks for briefing on why it’s a plea under Rule 11(c)(1)(B)
  • 106: Noreika recognizes Clark has orally modified the scope of immunity, but tells him to put it into writing
  • 110: Hunter pleads not guilty

July 31 DOJ proposes changes:

  • Eliminate judge as arbiter
  • Delete immunity provision
  • Eliminate cross reference between plea and Diversion agreements

August 7: Clark insists on retaining judge as arbiter and retaining immunity provision

August 9: Wise withdraws all agreements by August 11

August 10: Clark asks to have until August 14

August 11: Before Hunter can respond, Weiss withdraws tax agreement and Garland names Weiss Special Counsel

August 29: FBI interviews Smirnov handler

August 29: Weiss tells Lowell they insist on felony pleas, claims they don’t have to rely on laptop

September 27: FBI interviews Smirnov

The Scolding that Hunter Biden Should Have Pled Guilty Ignores the Complexity of What Happened

In the wake of yesterday’s verdict against Hunter Biden, there are a lot of armchair quarterbacks and hacks mulling why Hunter Biden didn’t simply plead guilty.

One of the only thoughtful, factually accurate pieces I’ve seen is this, from Dennis Aftergut. After accurately describing how David Weiss reneged on the original plea deal in the face of Republican pressure, Aftergut nevertheless describes that Hunter should have pled guilty anyway, assuming that the judge who intervened to kill the diversion that would have amounted to a probation sentence would sentence Hunter leniently if he took responsibility as he tried to last July.

Maybe he thinks he’s got a chance on appeal, given the Supreme Court’s expansion of Second Amendment rights. But successful appeals of criminal convictions are historically very long shots — about 1 in 15 get reversed — and it’s hard to see appellate courts ruling that the right to buy a gun includes the right to lie to get one.

The conviction will hurt Hunter Biden’s father personally, and it can’t help him politically. The right wing’s fact-free attempts to link President Biden to his son’s criminality would have been there even with a plea, but Hunter taking responsibility for his conduct would have diminished the MAGA narrative’s staying power.

One thing’s for sure: The hung jury or the acquittal Hunter Biden was hoping for would have been a political disaster for his father — and for the nation, in this election where the rule of law is on the ballot. For many in the media and for a substantial portion of the electorate, former President Donald Trump’s conviction for falsifying business records in connection with buying Stormy Daniels’ silence to corrupt the 2016 election contrasted with Hunter’s non-conviction would have exponentially amplified the MAGA screams claiming that there are two standards of justice.

Even ignoring Noreika’s statements (including a comment in a bench conference that she thinks Hunter violated the law by putting his dad’s address on the gun form), one problem with these think pieces is, to the extent they consider appeals, they usually limit their consideration of the nature of appeal. Most, as Aftergut did, focus primarily on a Breun appeal of the gun charge.

Prosecutors charged this to make such a challenge almost useless. Even at the plea hearing, Judge Noreika inquired why prosecutors hadn’t included a felony false statements charge, particularly in light of constitutional challenges to the underlying statute.

THE COURT: I have had one or two cases involving a person struggling with addiction who bought a gun, we usually see a felony charge for false statement. The Defendant has admitted that his statement was false, but he wasn’t charged. Again, I’m not trying to get into the purview of the prosecutor, and I understand the separation of powers, it’s in your discretion, but I just want to ask, does the government have any concern about not bringing the false statement charge in light of our discussion of 922(g)(3) and the constitutionality of that charge.

And in their response to Hunter’s constitutional challenge, prosecutors argued that the false statements charges would survive even if SCOTUS overturned the possession charge.

The Supreme Court has concluded in many cases, across many decades, and in many different contexts that a defendant cannot make a false statement to evade a statute the defendant believes is unconstitutional and escape criminal liability for the false statement by arguing the unconstitutionality voids his knowingly false statement: “Our legal system provides methods for challenging the Government’s right to ask questions—lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood.” LaChance v. Erikson, 522 U.S. 262, 265 (1998) (quoting Bryson v. United States, 396 U.S. 64, 72 (1969)). In 1937, for example, the Supreme Court held that defendants charged with defrauding the United States by misrepresenting the identity of hog producers could not escape criminal liability by arguing that the statute and regulations requiring the information to be furnished were unconstitutional. See United States v. Kapp, 302 U.S. 214, 215, 218 (1937)

By charging possession and false statements, prosecutors made it risky at best to plead guilty with the intent of appealing on constitutional grounds alone, because the false statements charges with the same punishment may well survive a successful constitutional challenge anyway.

At least until Judge Noreika prohibited Hunter from introducing the doctored purchase record or even pressing gun shop employees about it, Hunter had a shot at raising questions about other elements of offense on the two documents charge. Indeed, per Juror 10, the question of whether Hunter’s lie on the form was material is the one thing that held up a conviction yesterday, so a bid for acquittal on the document charges had more promise than defeating the possession charge.

Biden also filed an as-applied challenge after the government rested, arguing that the facts as presented at trial make the charge unconstitutional, something that required developing a trial record. That, too, may have been defeated by Leo Wise’s exceptional prosecutorial dickishness. Notably, Lowell argued there was no location data showing him at 7-Eleven.

There is no video of Mr. Biden at the 7-11 or CCTV of him near the intersection where he was supposedly sleeping on his car, no location evidence (and if there was, there are bars and restaurants in the areas as well) , or any other evidence.

And then prosecutors used the pretext of an answer Naomi Biden made to introduce just such evidence, effectively using their pretextual rebuttal argument to fight this as-applied appeal.

Aftergut notes in his piece that Hunter also challenged the indictment on a selective and vindictive basis, which he also describes is almost impossible to win. That remains true. But even in the lead-up to the trial, prosecutors had to confess that the government discovered in 2021 that the gun shop may have also violated the law with regards to this sale by doctoring the form after the fact, but nevertheless extended a proffer to the gun shop owner so he could confess he sold the gun without second ID because he wanted to get Joe Biden’s son out of his store quickly. Prosecutors also turned over evidence that the gun shop owner had worked to make this gun sale public in 2020 in hopes of raising the political pressure on the case not being charged. By going to trial, Hunter developed evidence that prosecutors chose to charge Hunter while providing a proffer to the guy who brought pressure to charge it in the first place.

And there’s a fact set regarding claims of vindictive prosecution that are unprecedented. Noreika simply ignored the import of Weiss’ decision to renege on the deal because he decided to chase the transparently false Alexander Smirnov lead that he had first gotten in 2020, something that Abbe Lowell preserved before her (but did less well before Judge Scarsi). It is literally the case that Donald Trump’s Attorney General set up a side channel for dirt from known Russian spies that resulted in an attempt to frame Joe Biden and that attempt to frame Joe Biden was the reason prosecutors reneged on the deal last summer.

Aftergut is silent about an appeal on the immunity claim, Hunter Biden’s belief that the original diversion agreement which both parties signed prohibited the government from charging these felonies. As it is, there is a District conflict, with Judge Mark Scarsi ruling that the diversion agreement was valid but had not been put into effect, and Judge Noreika ruling that — after her own head of Probation had refused to sign a deal she had already approved — the deal never went into place. If an appeal of that succeeds, especially if it were quick and succeeded before September, then the September trial might be affected as well.

Abbe Lowell also seems to at least suspect that prosecutors have withheld Brady material, which if he can ever prove it, is another thing that would undermine this prosecution.

Now, Hunter could have challenged some of these without going through the pain of trial. But not all of them.

What we have watched since last July is an incredibly contentious fight in which prosecutors who, as Republicans wailed and threats proliferated, chased the false claims of a guy with ties to Russian intelligence, and now demand that Hunter simply suck up felonies because they did so.

And things get worse as we move to Los Angeles. There, the felony counts for writing off payments to people like Lunden Roberts (and several other women, one of whom may be Zoe Kestan, whose fashion business Hunter was fronting) are charged along with three counts of dubious propriety: the 2016 failure to pay (for which Hunter has argued statutes of limitation have expired) and 2017 and 2018 failure to file, for which venue is either definitely (for tax year 2017) or arguably (for tax year 2018) invalid. Hunter could plead to that indictment, but he’d be pleading to charges that were improperly filed.

Prosecutors have promised to make the Los Angeles trial even more cruelly embarrassing than the Delaware trial, introducing a bunch of evidence of influence-peddling that should be unrelated to the tax charges charged. That is, if Hunter goes to trial to argue that he didn’t remember some of the expenses he wrote off and got advice supporting others, Weiss’ team at least plans on airing Hunter’s relationship with people like Tony Bobulinski, yet another witness in this case alleged of wrong-doing on his own part but not charged.

But here’s the thing everyone keeps forgetting: going to trial may not matter. Because Merrick Garland capitulated to David Weiss’ demand for Special Counsel status to chase Alexander Smirnov’s false claims, Weiss gets to write a report. We’ve already seen John Durham simply fabricate things in his report, including things (like a narrative of all the investigations into Hillary during the 2016 election that Durham deceitfully claimed showed special treatment) that were far afield of the investigation itself. And Weiss’ prosecutors have already proven even more dishonest, with Derek Hines falsely implying he found Hunter Biden’s 2019 New Haven crack pipe in Wilmington in October 2018 on four different occasions, the narrative equivalent of a dirty Baltimore cop framing a defendant by bringing a crack pipe to an alleged crime scene and planting it.

Because David Weiss got the mandate to file a report because he chased Alexander Smirnov’s false claims, recent practice means he can say pretty much anything about Hunter Biden in a report he wants. Weiss’ prosecutors did something incredibly stupid and as a result they’re rewarded with a guaranteed opportunity to dirty up Hunter Biden some more.

So the only difference between deliberate humiliation in a September trial and deliberate humiliation in a report is when it takes place. Leo Wise and Derek Hines have made it clear they plan to continue humiliating Hunter Biden no matter what he does.

And that changes the calculus.

It may not change the wisdom of pleading out, perhaps pleading out in Los Angeles before a September trial brings out the obscene Tiger Beat journalists again for the election period.

But it does make simple bromides about how much better it would be to plead out overly simplistic.

“Case Changing:” The 7-Eleven Messages

It can’t be overstated the degree to which calling Naomi Biden to testify backfired on Hunter Biden.

Contrary to the claims of the Tiger Beat reporters at the courthouse, she wasn’t called to “humanize” her father. Rather, they intended to rebut a claim that Hallie Biden had made about the truck: that the console lock had been broken.

Q. So now, your dad has the truck, when you gave your dad the truck, I want you to describe the inside of it. Does the truck have a console?

A. Yes.

Q. And underneath the console, what’s there?

A. It’s like a safe.

Q. And meaning it’s a steel or metal object?

A. Yeah.

Q. Does it have a lock or does it not have a lock?

A. It has a lock.

Q. And when you and Peter had it at the period of time in October, was the safe working?

A. Yes.

Q. Was it broken?

A. No.

Even that backfired. Leo Wise used Naomi’s testimony about a clean truck as circumstantial evidence that between October 19 and October 23, Hunter did crack.

And if you compare what Naomi Biden said that she returned the truck to her father clean on October 19th, 2018, that there were no drug remnants in it and there was no drug paraphernalia in it, to Hallie Biden’s testimony that she searched the truck on October 23rd, just a few days later, that she found drug remnants. Remember, the way she testified what a drug remnant is, is when you break pieces, smaller pieces of crack off a larger rock, a lot of it falls and breaks off, that’s what a remnant is, and that’s what Hallie Biden saw in that truck on October the 23rd, and she also found drug paraphernalia.

So what does that mean? What does a clean truck with no drug remnants and no drug paraphernalia on October 19th, as in the testimony of the defendant’s own daughter, and then a truck with drug remnants and drug paraphernalia on the October the 23rd, what does that mean?

It means the defendant used crack in the truck between October 15th, 2018, and October 23, 2018, October 19th, when he got it back.

On cross, Naomi’s claims that her father seemed hopeful in this period quickly fell flat, as prosecutors showed her her own texts frowning that she didn’t get to spend much time with him while he was in NYC.

Q. Well, if we go to the next page, did you send your father a series of texts where you told him that you were in Brooklyn, but that you could have Peter meet him and trade, then did you ask your father if he had seen Peter and did he ask if — and did you ask if you would get to see him, in other words, your dad?

A. Yes.

Q. And was your dad’s response no? This is on page 1719? A. I think he’s saying no to did he call.

Q. Your next message then is “so no see you?!”

A. Yeah.

Q. And then you said, it looks like you did sort of an unhappy face, and the next text? A. Are you asking?

Q. Yes.

A. Yes.

Q. And then the next one is “I’m really sorry, dad, I can’t take this.” And then “I don’t know what to say, I just miss you so much, I just want to hang out with you.” Right?

A. Yeah.

That would have been enough in any case to undermine any defense claim that Hunter had cleaned up in the period he owned the gun.

But then, at 9:30 the night before closing arguments, after originally saying they wouldn’t put on a rebuttal case, prosecutors called Abbe Lowell to say they needed to do so because Naomi misspoke about what day her father had arrived in NYC, the 15th rather than the 17th (actually, she responded in the affirmative when Lowell asked her whether, “When he drove it up, do you recall about what day it was in October, was that October 15th?”).

MR. LOWELL: Last night at 9:30 or whatever after the government said they would not have a rebuttal case, they wrote while preparing for closing argument, and reviewing transcript this evening, we realized that Naomi Biden provided inaccurate testimony about the date when the defendant traveled to New York. That’s what they wrote, that’s the need for rebuttal. I understand, we can address that.

What they have done after that late at night was to provide us a new set of texts, forty-two of them, to propose in between before he got to New York where he was, who he was talking with, and what he was doing, which includes references that could be to try to contact or have people that were contacting him for possible drug use, that was not put in their case-in-chief. If what they said, and this is rebuttal, this is a rebuttal case as to where he was or whether Naomi was wrong, then that’s what the rebuttal is. That doesn’t need forty-two texts that includes all kinds ever other language.

We would be prepared to stipulate that either he you heard evidence from Naomi Biden that he arrived and was there the 15th, that’s not correct it was a few days later, or we can stipulate as to whether he got there, on or we can stipulate as to what locations he was, but then to have forty-two texts of all this other material that they could have proposed is not rebuttal for the proposition, which would be proper rebuttal, and if it was even remotely relevant to that which was the date, then it would be prejudicial beyond any relevance.

To prove that Naomi got the date wrong — to which Hunter’s team was happy to stipulate — prosecutors said that justified submitting 42 new texts as evidence, texts which had not been provided as a potential exhibit before, texts the defense received the morning of the hearing.

Prosecutors used the date discrepancy to submit a bunch of texts showing Hunter hade been arranging meetings at a 7-Eleven.

MR. HINES: The first thing I’ll say is all of these text messages do link to our proof that he was still in Delaware on October 15th, but nonetheless our rebuttal case is not limited, there is no rule of evidence that limits a rebuttal case to exactly the words that the defense witness testified to.

What I’ll say on how it relates to the 15th is that we have location information showing him at a 7-Eleven on October 14th, 15th and 16th, I believe those are the dates that’s reflected in the summary chart.

And location information and a photograph is just that, it’s location information, it does not identify whether the person themself was actually necessarily at that location because the photograph shows a geolocation, it could have been someone else’s photograph. So the other messages that we included are all messages, et cetera, that show the defendant did frequent a 7-Eleven, they are just messages from October 9th through that date when he left the area showing that he was communicating with other individuals to meet at a 7-Eleven.

By doing so, just before closing arguments (and giving Lowell no time to prepare), prosecutors submitted evidence of Hunter trying to meet a guy named Q at a 7-Eleven.

As Lowell described when he vigorously objected, showing texts from October 10 would not rebut Naomi’s perspective of what Hunter looked like on October 19; it was case changing.

MR. LOWELL: I am going to be repetitive, this is a case changing event and it shouldn’t be a case changing event where they shoehorn in this. What is relevant to rebut her perception of him on the 19th can be what? If he didn’t use drugs two weeks before does that rebut her perception? Six days before we know when he is on crack. He has to do it every twenty minutes according to the testimony. There is a disconnect, there is an extraordinary disconnect from her saying I saw him, maybe she wants to look at him in blinders, maybe she doesn’t say what he does, but that’s not —

Particularly given Hunter’s reference to meeting dealers at 7-Eleven in his memoir, this was some of the prosecution’s most probative evidence that he had bought drugs immediately before buying the gun. Indeed, they were among the few things Leo Wise mentioned in laying out the actual circumstantial evidence he was doing drugs that week.

What do we know specifically about that month of October. You see on the screen those drug messages on the 13th and the 14th. You see the addiction messages depicted on the 15th and the 23rd. You see the meeting messages on the 10th and the 11th, the day before he bought the gun on the 12th, and you see on the 23rd both addiction messages and drug remnants and drug paraphernalia recovered by Hallie Biden in the truck. [my emphasis]

Noreika’s decision to allow prosecutors to submit messages from a week before Naomi saw her father to rebut her claim that he looked fine is another of the decisions Lowell will include in any potential appeal.

It’s also a decision, and a development, that hasn’t been fully explained.

There’s a lot of armchair punditry about whether Hunter should have pled guilty (most of which misrepresents what happened to the plea deal, though this is an exception). But few understand how prosecutors used the mere fact that Naomi testified as an excuse to introduce texts that should have been in their case-in-chief.

What Jurors Noticed about Hallie Biden’s Testimony

As I’ve said over and over, Hallie Biden was the most important prosecution witness against her brother-in-law.

In his close yesterday, Leo Wise described that Hallie’s testimony that she found remnants of crack cocaine in Hunter’s truck days after, according to Naomi Biden, it was clean, is compelling circumstantial evidence that Hunter smoked crack in the truck between those days.

And if you compare what Naomi Biden said that she returned the truck to her father clean on October 19th, 2018, that there were no drug remnants in it and there was no drug paraphernalia in it, to Hallie Biden’s testimony that she searched the truck on October 23rd, just a few days later, that she found drug remnants. Remember, the way she testified what a drug remnant is, is when you break pieces, smaller pieces of crack off a larger rock, a lot of it falls and breaks off, that’s what a remnant is, and that’s what Hallie Biden saw in that truck on October the 23rd, and she also found drug paraphernalia.

So what does that mean? What does a clean truck with no drug remnants and no drug paraphernalia on October 19th, as in the testimony of the defendant’s own daughter, and then a truck with drug remnants and drug paraphernalia on the October the 23rd, what does that mean?

Abbe Lowell attempted to pitch her testimony as more inconsistent than that, describing how key parts of her testimony might confuse what happened on October 23, 2018, when she found the gun, and earlier times when she had searched his truck, noting that her testimony that Hunter had spent that night with her was inconsistent with him calling her and then taking an Uber back to her house.

But even she said she did not see Hunter using drugs in this period. And said only that when she went into the truck on October 23rd, first she said there were remnants and paraphernalia, but then when asked said a dusting of powder, I guess. And when I asked her to be more specific and tell us whether those remnants were on the console, steering wheel, floor mats, or car seat, all do you remember she said is, I do not recall.

And when asked what type of paraphernalia, she again said, I do not recall.

Was she remembering what she saw that day or dozens of other days when she, too, was using, where that more likely than not happened, okay. But if you noticed, she could remember that which the prosecutors asked her, the prosecutors who also gave her immunity, but not so much for any number of things. When she saw Hunter when he came back from LA, even if it was on the day he came back to go with her at an appointment she had at a Caron rehabilitation center or facility, when she saw him — or when she saw him, whether it was October 22nd or 23rd, whether it was the night, whether it was the night before, whether it was the early morning or when. And you’ll remember that I asked her whether or not when I could refresh her recollection, did she know that she was not with him that morning. And do you remember when I had to do that by saying do you remember the reference to calling an Uber? And then she said yes. You don’t need an Uber to go from her driveway into the house.

Before he launched that section of his closing arguments, however, he evinced sympathy that Hallie was put into this situation in the first place.

Where else did they go? Poor Hallie Biden, who had to be dragged through this period of her life again, who understandably did not remember a lot of the details.

Poor Hallie Biden didn’t remember a lot of the details…

This is something that we won’t be able to measure, unless and until jurors speak publicly about their deliberations after a verdict. It’s one thing to have sympathy or no for Joe Biden’s son, who was known to have addiction problems in Delaware. It’s another thing to have sympathy for Hallie Biden, the widow of the state’s much better loved former Attorney General.

And that’s why something that happened the day Hallie testified is of interest.

It showed up publicly in this exchange with Leo Wise on redirect, something some journalists covering the trial found odd.

BY MR. WISE: Q. I just have a few questions, Ms. Biden. The first is were you married just this past weekend, recently?

A. Yes.

Q. And is your husband in the audience?

A. Yes.

Q. And at the breaks have you been looking at him and him looking at you?

A. Yes.

Q. Has any of that had anything to do with your — the substance of your testimony?

A. No, just support.

But two sidebars in the middle of Abbe Lowell’s cross-examination of Hallie explain the background to Wise’s comment: A juror had told Judge Noreika’s courtroom deputy that they had seen Hallie communicating with someone in the courtroom and seemed to find it suspicious.

THE COURT: So one of the jurors said to Mark when she was leaving that when we were over here at side-bar, that they noticed that she was communicating with someone in the back. Now, I don’t know if she has a lawyer here.

MR. HINES: She does.

MR. WISE: Well, it’s her husband. She got married this weekend and I can see him in back.

THE COURT: So she was communicating with someone. They were like mouthing something to her. My guess is it was something on the order of, you know —

MR. LOWELL: What a jerk I am.

THE COURT: My guess.

MR. LOWELL: Could you clean that one up. What a jerk I am. Thank you.

MR. HINES: No objection.

THE COURT: Okay. So they noticed — so one juror, it’s the second alternate, so we know we have the two younger women, so it’s one of them. And then she said to him — and you can ask Mark questions, too, she said to him and other jurors noticed, too.

MR. LOWELL: So I’m sorry to get this right, Mark, Mr. Buckson, the first — second alternate says it to you?

COURTROOM DEPUTY: She stays behind and says, “I have to talk to you a minute.”

MR. LOWELL: When she did, she said other jurors saw it, too?

COURTROOM DEPUTY: She told me what happened and said other jurors saw it, too.

This created two concerns: The juror had found the exchange suspicious. And jurors talked about it.

MR. LOWELL: Meaning that they talked about it.

THE COURT: That’s what I said to Mark, that’s why I want to tell you guys everything that they said. Now what I don’t know — my guess is, it was on the way out the door, so it wasn’t like they had talked about it in the jury room. It was probably one of those things where they were like this, you know, but I don’t know that.

MR. LOWELL: I understand

THE COURT: So if you guys want to ask, you can. So what I thought I would do is tell you now, even though I interrupted your lunch, so you can go back, you can figure out who the person was.

MR. WISE: I saw him.

MR. LOWELL: She also has her lawyer.

MR. WISE: I mean, if someone is mouthing like hang in there, doing, whatever it is, I’m guessing it’s the husband, I don’t think a lawyer is mouthing something.

THE COURT: I don’t know who she was doing it with. Maybe you can go figure out. Maybe you can find out what they are saying and you guys can figure out what you want to do if you want to talk to the jury or you want me to talk to the jury.

MR. LOWELL: Or maybe we let it be.

THE COURT: Let it be with a reminder that don’t talk to each other.

So Judge Noreika and the lawyers discuss how to address this — both the jurors discussing among themselves, and the impression of something suspect going on be allayed — without making the problem worse.

MR. WISE: My only concern if she think she’s being coached or something.

THE COURT: If she’s doing something improper.

MR. WISE: I don’t want that impression to be left on them.

MR. LOWELL: Unfortunately, to figure that out, you would have to start inquiring who were you talking to, what were you mouthing, what was he mouthing back, and that concerns me as much as, you know, as anything because why — how is that helpful, right.

Let’s figure out before we bring them back what is the least that is necessary, if anything, because if you start inquiring, how is that helpful, right, I don’t think that’s helpful. I understand you don’t want the jury to think she’s being coached, certainly not by my party.

MR. WISE: Right.

MR. LOWELL: But I wonder how do you do that with finesse. Nothing comes to my mind at the moment, but I’ll try to put my mind to it. Thank you for telling us. And right now I don’t have anything I would suggest, but I’ll talk to you all about it.

THE COURT: Maybe you guys, somebody can just check with her lawyer and husband and find out what that was.

MR. LOWELL: Thanks, Your Honor, for bringing it to our attention. (End of side-bar.)

COURTROOM DEPUTY: All rise.

THE COURT: All right. So can I just see counsel for one second. (Side-bar discussion.)

THE COURT: So you want me to do what?

The agree that Judge Noreika will admonish the jurors not to talk to each other about the case. But that still left the problem of what to do with the appearance that someone might be coaching Hallie.

MR. LOWELL: I thought the, we talked, I think what we agreed was you don’t have to do it right away or whenever you would, it would just be the normal instructions to the jury just a reminder that you shouldn’t be talking to each other about the case, among yourselves of anything that’s happening, you have that, I don’t know exactly the words.

THE COURT: And then with respect to the discussions, are you okay if they just want to ask her, do you have someone here supporting you or something so the jury understands?

MR. LOWELL: I would object to that as somebody here supporting you.

THE COURT: Someone here —

MR. LOWELL: I mean, if you want to say do you have a relative — I mean, I don’t know. My view is do the least. But if you feel like something needs to be said. But I don’t know how that doesn’t make it worse.

MR. WISE: Was your impression that they thought it was something wrong going on?

COURTROOM DEPUTY: Kind of.

MR. WISE: Okay.

COURTROOM DEPUTY: It was a suspicious.

MR. LOWELL: Let’s say she has a relative, the problem, it still opens the door, what was your relative saying to you, were they just giving you a high five.

MR. WISE: The question would be Ms. Biden were you recently married, yes, just this week, is your husband here in audience to support you, yes.

MR. LOWELL: Not support you.

MR. WISE: Yeah, that’s what spouses do.

THE COURT: Is your husband here with you.

Leo Wise proposes to ask whether the person Hallie has been exchanging words of support with said anything about her testimony. I think that Lowell objected to this, though not vociferously.

MR. WISE: At the breaks, have you been looking at him and exchanging supportive words, has anyone been telling you what to testify about.

MR. LOWELL: I object to all those questions.

THE COURT: Well, I don’t object to has anyone told you what to testify.

MR. LOWELL: I mean in general, yeah.

MR. WISE: I don’t know what the prejudice is for her to say my husband is in the audience, I have been looking at him and he’s been looking at me for support.

MR. LOWELL: For support, how about I have been looking at him and he’s been looking at me.

THE COURT: And anything in that, was he telling you what to say, or something like that?

MR. WISE: Okay.

THE COURT: People are telling you what your testimony should be, something like that.

MR. WISE: Yeah.

THE COURT: Because I — look, I’m just concerned that the jury, there was nothing — I don’t think there is anything that she did wrong.

Over lunch, prosecutors confirmed that Hallie was exchanging comments with her spouse, whom she married the weekend before the trial.

MR. WISE: We confirmed with the lawyer, we said is she talking to you, no, no, the husband is here. He’s not going to obviously tell her anything about her testimony, but I am concerned that we’re leaving an impression with the jury that she’s doing something wrong, so if you just want to say, were you recently married, is your husband here with you, and then have you during breaks looked to him, and did anything that you do — any of your interactions about your testimony or something like that.

MR. WISE: Okay.

MR. LOWELL: Say that, were any of your interactions, sorry, were any of your interactions about your testimony.

THE COURT: Yes.

MR. LOWELL: Is that the phrase?

THE COURT: Yes. I was just trying to get at that it’s not influencing her testimony, but if there is a better word for that.

MR. WISE: I think maybe while you are on the stand.

THE COURT: Yes. While you were on the stand did you occasionally look to him, was any of that about your testimony?

MR. LOWELL: I mean —

THE COURT: I know, and you can object and if you have to object now.

Lowell again objects to any comment specifically about her spouse.

MR. LOWELL: Why don’t, we could that now, let me do it now. Yeah, I just think the more we inquire, the worse it gets, so I object to anything other than the instruction to the jury, telling them that you’re not supposed to be talking about the case before you deliberate.

THE COURT: I understand. The problem is that horse is out of the barn and I can instruct them on that going forward, but for this particular horse and barn, I don’t want the jury left with the impression that something nefarious was going on. I have enough issues with her testimony let alone something wrong.

MR. LOWELL: Let’s put this horse back in the barn, but can we do it with the fewest number of kicks to the side, to use the analogy.

THE COURT: Yes. I think that’s what it is, if you think there is a way that we can kick less, I took out support.

MR. LOWELL: Right.

THE COURT: I took out support and all I wanted to clarify is it didn’t have anything to do with — he doesn’t know anything about her testimony.

MR. LOWELL: But we don’t have to explain that.

THE COURT: Exactly.

MR. LOWELL: Okay. (End of side-bar. )

THE COURT: All right. We can bring in the jury.

Maybe Wise’s comment alleviated any concerns the jurors had about Hallie’s testimony. And who’s to say whether jurors thought someone coaching her would be on behalf of prosecutors or the defense?

But it’s the kind of thing that could significantly impact the impression jurors got of the testimony from the most important witness at trial.

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