Brett Kavanaugh Thinks that Jack Smith Is as Crazy as Ken Starr Was

There was a subtle moment in yesterday’s SCOTUS hearing on Trump’s absolute immunity claim.

Former Whitewater prosecutor Brett Kavanaugh asked Michael Dreeben whether DOJ had weighed in on this prosecution.

Did the President weigh in? he asked. The Attorney General?

JUSTICE KAVANAUGH: As you’ve indicated, this case has huge implications for the presidency, for the future of the presidency, for the future of the country, in my view. You’ve referred to the Department a few times as having supported the position. Who in the Department? Is it the president, the attorney general?

MR. DREEBEN: The Solicitor General of the United States. Part of the way in which the special counsel functions is as a component of the Department of Justice.

The regulations envision that we reach out and consult. And on a question of this magnitude, that involves equities that are far beyond this prosecution, as the questions of the Court have —

JUSTICE KAVANAUGH: So it’s the solicitor general?

MR. DREEBEN: Yes.

Having been told that Jack Smith consulted with a Senate-confirmed DOJ official on these tough issues, Kavanaugh immediately launched into a screed about Morrison v. Olson, the circuit court decision that upheld the Independent Counsel statute.

JUSTICE KAVANAUGH: Okay. Second, like Justice Gorsuch, I’m not focused on the here and now of this case. I’m very concerned about the future. And I think one of the Court’s biggest mistakes was Morrison versus Olson.

MR. DREEBEN: Mm-hmm.

JUSTICE KAVANAUGH: I think that was a terrible decision for the presidency and for the country. And not because there were bad people who were independent counsels, but President Reagan’s administration, President Bush’s administration, President Clinton’s administration were really hampered —

MR. DREEBEN: Yes.

JUSTICE KAVANAUGH: — in their view —

MR. DREEBEN: Mm-hmm.

JUSTICE KAVANAUGH: — all three, by the independent counsel structure. And what I’m worried about here is that that was kind of let’s relax Article II a bit for the needs of the moment. And I’m worried about the similar kind of situation applying here. That was a prosecutor investigating a president in each of those circumstances. And someone picked from the opposite party, the current president and — usually —

MR. DREEBEN: Mm-hmm.

JUSTICE KAVANAUGH: — was how it worked. And Justice Scalia wrote that the — the fairness of a process must be adjudged on the basis of what it permits to happen —

Kavanaugh slipped here, and described the horror of “Presidents,” not former Presidents, routinely being subject to investigation going forward.

MR. DREEBEN: Mm-hmm.

JUSTICE KAVANAUGH: — not what it produced in a particular case. You’ve emphasized many times regularity, the Department of Justice. And he said: And I think this applied to the independent counsel system, and it could apply if presidents are routinely subject to investigation going forward. “One thing is certain, however. It involves investigating and perhaps prosecuting a particular individual. Can one imagine a less equitable manner of fulfilling the executive responsibility to investigate and prosecute? What would the reaction be if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as picking the man and then searching the law books or putting investigators to work to pin some offense on him? To be sure, the investigation must relate to the area of criminal offense” specified by the statute, “but that has often been and nothing prevents it from being very broad.” I paraphrased at the end because it was referring to the judges.

MR. DREEBEN: Mm-hmm. Yes.

JUSTICE KAVANAUGH: That’s the concern going forward, is that the — the system will — when former presidents are subject to prosecution and the history of Morrison versus Olson tells us it’s not going to stop. It’s going to — it’s going to cycle back and be used against the current president or the next president or — and the next president and the next president after that. All that, I want you to try to allay that concern. Why is this not Morrison v. Olson redux if we agree with you? [my emphasis]

Kavanaugh pretended, as he and others did throughout, that he wasn’t really suggesting this was a case of Morrison v. Olson redux; he was just talking hypothetically about the future.

JUSTICE KAVANAUGH: Right. No, I was just saying this is kind of the mirror image of that, is one way someone could perceive it, but I take your point about the different structural protections internally. And like Justice Scalia said, let me — I do not mean to suggest anything of the sort in the present case. I’m not talking about the present case. So I’m talking about the future.

This intervention came long after Kavanaugh suggested that charging Trump with defrauding the US for submitting fake election certificates and charging Trump with obstructing the vote certification after first charging hundreds of others with the same statute amounted to “creative” lawyering.

JUSTICE KAVANAUGH: Okay. For other official acts that the president may take that are not within that exclusive power, assume for the sake of argument this question that there’s not blanket immunity for those official acts but that to preserve the separation of powers, to provide fair notice, to make sure Congress has thought about this, that Congress has to speak clearly to criminalize official acts of the president by a specific reference. That seems to be what the OLC opinions suggest — I know you have a little bit of a disagreement with that — and what this Court’s cases also suggest.

JUSTICE KAVANAUGH: Well, it’s — isn’t — it’s a serious constitutional question whether a statute can be applied to the president’s official acts. So wouldn’t you always interpret the statute not to apply to the president, even under your formulation, unless Congress had spoken with some clarity?

MR. DREEBEN: I don’t think — I don’t think across the board that a serious constitutional question exists on applying any criminal statute to the president.

JUSTICE KAVANAUGH: The problem is the vague statute, you know, obstruction and 371, conspiracy to defraud the United States, can be used against a lot of presidential activities historically with a — a creative prosecutor who wants to go after a president.

But Kavanaugh returned to his insinuation that it was a stretch to prosecute a political candidate for submitting false certificates to Congress and the Archives under 18 USC 371 after his purported complaint about Morrison v. Olson.

Second, another point, you said talking about the criminal statutes, it’s very easy to characterize presidential actions as false or misleading under vague statutes. So President Lyndon Johnson, statements about the Vietnam War —

MR. DREEBEN: Mm-hmm.

JUSTICE KAVANAUGH: — say something’s false, turns out to be false that he says about the Vietnam War, 371 prosecution —

MR. DREEBEN: So —

JUSTICE KAVANAUGH: — after he leaves office?

None of this intervention made any sense; it wouldn’t even have made sense if offered by someone who hadn’t criminalized an abusive, yet consensual, blowjob for years.

After all, contrary to the demands of many, Merrick Garland didn’t appoint a Special Counsel until Trump declared himself a candidate. By that point, hundreds of people had already been charged under 18 USC 1512(c)(2) and DOJ was at least four months into Executive Privilege fights over testimony from Mike Pence’s aides and Trump’s White House counsel. Jack Smith was appointed nine months after Lisa Monaco publicly confirmed that DOJ was investigating the fake electors and six months after overt subpoenas focused on the scheme came out (to say nothing of the treatment of Rudy Giuliani’s phones starting a year earlier).

This is not a Morrison v. Olson issue.

Rather, Kavanaugh is using his well-established hatred for Morrison v. Olson to complain that Trump was investigated at all — and that, after such time that a conflict arose, Garland appointed a non-partisan figure to head the already mature investigation.

It was one of many examples yesterday where the aggrieved white men on the court vomited up false claims made by Trump.

Kavanaugh made no mention of the appointment of Robert Hur — not just a Republican but a Trump appointee who had deprived Andy McCabe of due process — to investigate Joe Biden for precisely the same crime for which Trump was charged. That’ll become pertinent at such time as Donald Trump’s claim to Jack Smith’s appointment gets to SCOTUS. After all, in that case, Trump will have been similarly treated as Joe Biden. In that case, Hur’s distinction between Biden’s actions and Trump’s should (but probably won’t) reassure the right wing Justices that Trump was not selectively prosecuted.

Speaking of things Kavanaugh didn’t mention, his false complaint — and which Clarence Thomas raised as well — comes at a curious time.

Because of Aileen Cannon’s dawdling, Trump’s challenge to Jack Smith’s appointment won’t get to SCOTUS for months, if ever.

But Hunter Biden, whose challenge to David Weiss’ appointment takes the same novel form as Trump’s — an appropriations clause challenge — may be before the Third Circuit as soon as next week. In a passage of Abbe Lowell’s response to Weiss’ demand that the Third Circuit give Lowell, an observant Jew, three days including Passover to establish jurisdiction for his interlocutory appeal, Lowell scolded Weiss for presuming to know the basis of his appeals.

The Special Counsel boasts that it prepared its motion in “two days” (Mot.Exped.3), but the legal errors that permeate its motion to dismiss only underscore why more time is needed to adequately research and thoughtfully brief the jurisdictional issues for this Court. The Special Counsel ignores numerous bases for jurisdiction (e.g., 28 U.S.C. §§ 1291 (collateral order doctrine), 1292(a)(1) (denial of Appropriations Clause injunction), and 1651 (mandamus)) over this appeal, and the legal claims it does make are flatly wrong, compare Mot.6 (falsely claiming “all Circuit Courts” reject reviewing denials of motions to enforce plea agreements as collateral orders), with United States v. Morales, 465 F. App’x 734, 736 (9th Cir. 2012) (“We also have jurisdiction over interlocutory appeals of orders denying a motion to dismiss an indictment on the ground that it was filed in breach of a plea agreement.”)

In addition to mandamus (suggesting they may either attack Judge Noreika’s immunity decision directly or ask the Third Circuit to order Delaware’s Probation Department to approve the diversion agreement that would give Hunter Biden immunity), Lowell also invoked an Appropriations clause injunction — basically an argument that Weiss is spending money he should not be.

Normally, this would never work and it’s unlikely to work here.

But even on the SCO challenge, there are a number of problems in addition to Lowell’s original complaint: that Weiss was appointed in violation of the rules requiring someone outside of DOJ to fill the role.

For example Weiss keeps claiming to be both US Attorney and Special Counsel at the same time (most obviously in claiming that tolling agreements signed as US Attorney were still valid as Special Counsel), or the newly evident fact that Weiss asked for Special Counsel status so that he could revisit a lead he was ordered to investigate — in the wake of Trump’s complaints to Bill Barr that Hunter Biden wasn’t being investigated diligently enough — back in 2020, a lead that incorporated Joe as well as Hunter Biden, a lead that uncovered an attempt to frame Joe Biden, an attempt to frame Joe Biden to which Weiss is a witness.

The oddities of Weiss’ investigation of Joe Biden’s son may even offer another claim that the right wing Justices claim to want to review. Jack Smith claims to have found only two or three charges with which Kavanaugh, who insists (former) Presidents can only be charged under statutes that formally apply to Presidents, would leave available to charge a President. But there’s one he missed: 26 USC 7217, which specifically prohibits the President from ordering up a tax investigation into someone, which Lowell invoked in his selective and vindictive prosecution claim. Lowell has not yet proven that Trump directly ordered tax officials, as opposed to Bill Barr and other top DOJ officials, to investigate Hunter Biden for tax crimes. But there’s a lot of circumstantial evidence that Trump pushed such an investigation. Certainly, statutes of limitation on Trump’s documented 2020 intrusions on the Hunter Biden investigation have not yet expired.

The Hunter Biden investigation has all the trappings of a politicized investigation that Kavanaugh claims to worry about — and with the Alexander Smirnov lead, it included Joe Biden, the Morisson v. Olson problem he claims to loathe.

That’s a made to order opportunity for Brett Kavanaugh to restrict such Special Counsel investigations.

Except, of course, it involves Democrats.

WaPo Gives Bill Barr Platform to Attack Joe Biden without Mentioning Barr’s Role in Framing Biden

WaPo wrote a story on Bill Barr’s statement on Fox News that he would support Trump over Biden because Biden would represent a “continuation of the Biden administration is national suicide.”

On Wednesday, Barr maintained that voting for Trump would still be “Russian roulette” but claimed that a “continuation of the Biden administration is national suicide, in my opinion.”

Nothing in this story is news. It was always clear Barr was going to vote against Democrats, whom he decries (though the article notes that last July, he claimed to not know).

Much of the story simply regurgitates Barr’s own propaganda about how he is a “vocal critic” of Trump, without mentioning that before he criticized Trump’s Big Lie, Barr kicked it off, by attacking mail-in ballots. It doesn’t mention that the same people, Rudy Giuliani and Sidney Powell, whose election lawyering Barr attacked, Barr protected and enabled as Attorney General, shielding Rudy from any legal consequences for soliciting campaign dirt from known Russian spies, and helping Sidney Powell attempt to reverse the prosecution of Mike Flynn.

Crazier still, it makes no mention — none! — of the side channel Barr set up to funnel that dirt Rudy obtained from known Russian spies.

As I’ve reported repeatedly, in January 2020, Bill Barr ordered Scott Brady to conduct a side review of the dirt Rudy Giuliani collected from Russian spies and others. Via still unexplained circumstances, that side channel resulted in a claim from Alexander Smirnov being shared first with Brady, and then with Hunter Biden prosecutor David Weiss, a claim that Joe Biden had accepted a bribe from Burisma. After having received the lead in 2020 and not pursued it, Weiss revisited it after Barr made public comments last summer, as Republicans in Congress were chasing the claim.

That push to review what is now known as the Smirnov allegation resulted in David Weiss reneging on the plea deal he made with Hunter Biden and chasing the Smirnov allegation, only to discover Smirnov made it all up.

WaPo knows these details. A long piece on Smirnov described the side channel, though did not mention that Brady claimed to have verified precisely the travel details that Weiss alleges debunk Smirnov’s claims.

In October 2023, several months after Grassley’s release, Scott Brady, the former U.S. attorney for the western district of Pennsylvania, appeared before the GOP-controlled House Judiciary Committee to answer questions about the claims. Brady, who did not respond to a request for comment, had been tasked in 2020 by then-Attorney General William P. Barr to review information about Biden gathered in Ukraine by Trump attorney Rudy Giuliani.

Brady characterized the bribery claims as not thoroughly vetted as of 2020. At the same time, he told the committee that it was “correct” that the FBI considered that person credible at the time of the allegations.

And a piece from Devlin Barrett, listed as a contributor to this story, wrote a piece that obscured rather than highlighted the insanity behind Weiss’ decision to renege on the scope of the plea deal he made with Hunter to chase Smirnov’s allegations anew (Devlin did not mention Barr’s role in pitching the allegation in both 2020 and 2023).

Smirnov’s account was passed along to investigators in Delaware who were involved in the Hunter Biden investigation — a move which years later led to the charges against Smirnov, these people said.

U.S. authorities said that when agents questioned Smirnov again in 2023, he repeated some past lies, changed other parts of his story and offered new falsehoods after claiming to have met with Russian officials.

Bill Barr’s decision to set up a side channel to funnel dirt collected by Donald Trump’s lawyer on Trump’s opponent’s son to prosecutors already investigating Hunter Biden led directly to Joe Biden being framed. And it remains unexplained how Scott Brady came to find the lead — or whether it has anything to do with DOJ’s reported closure of an investigation into Mykola Zlochevsky in this same period.

At this point, Barr’s role in setting up a side channel that led to Biden being framed ought to be included in all discussions of his animus to Biden or his decision to back Trump. All the more so given that Jerry Nadler referred Scott Brady to at least DOJ IG for investigation of the way he misled Congress about his vetting corroborating Smirnov’s claims. After all, such an investigation may lead to places that scrutinize Barr’s own actions.

Sure Barr is going to back Republicans over Joe Biden, the guy he helped frame. But if the investigation into how that side channel ended up framing Biden gets very far, Barr may have far more self-interested reasons in ending Democratic control of DOJ.

Elon Musk’s Xitter Stalls a Criminal Investigation, Again

On Friday, DC Chief Judge James Boasberg released a redacted version of a March 29 opinion on another attempt by Xitter to refuse compliance with legal process based on a complaint about a gag order (formally, a non-disclosure order, referred to as an NDO below). Kyle Cheney, who first posted on it and who tends to have a good read on these things, noted that it seems important.

As you recall, Xitter successfully delayed Jack Smith’s access to Trump’s Xitter account for 23 days in January and February of last year (from when then-Chief Judge Beryl Howell approved the warrant on January 17 until when Xitter finally complied on February 9), then spent several more months arguing that it should be able to inform Trump they had provided the information and should not have to pay fines for being in contempt.

This time around, Xitter delayed DOJ’s access to the mere subscriber records — that is, records showing who owns the accounts in question — for two Xitter accounts for over two months (January 25 through March 29 of this year) based on a similar complaint: that before it complied, it should be able to tell the subjects of the criminal investigation about the request.

While (as Cheney noted) there’s no clear tie to Trump, this investigation is focused on public figures of some sort.  We know that because Xitter argued that notifying the targets would not harm the investigation, and then claimed there was nothing publicly known about the targets to suggest informing them would lead to witness intimidation or any of the other bases DOJ provided for delaying notice for a year.

Judge Boasberg debunked Xitter’s claim. There was information in the affidavit, he said, even just “based on what is publicly known about the investigation’s targets,” to show that disclosure might result in witness intimidation. Xitter also complained that the government offered more information to justify its gag after Xitter challenged it, but Boasberg declined to “infer” from that the initial basis was lacking.

And while there’s no reason to believe that those public people have a tie to Trump, Boasberg cited last year’s legal dispute in three places to justify denying Xitter’s demand.

He invoked Yogi Berra (and the government’s filings) to explain why Xitter’s “imagined categorical prohibition on omnibus NDOs” was little different than the arguments it made last year.

On that question, much of X’s argumentation may be characterized by Yogi Berra’s immortal line, “It’s déjà vu all over again.” That is because the company mostly regurgitates the arguments that it made — which both this Court’s predecessor and the D.C. Circuit rejected — just last year in a case involving the same parties. See In re Sealed Case, 77 F. 4th 815, aff’g in the Matter of the Search; see also Redacted Gov’t Mot. at 13 (asserting that X “knows [its arguments] are losing arguments — having just had the D.C. Circuit reject them last year when it challenged a different NDO”); see also id., at 1, 7-8. The NDO at issue in In re Sealed Case accompanied a search warrant directing Twitter to produce information related to former President Trump’s account. See 77 F.4th at 821. Twitter challenged the NDO on much the same grounds as it does here, and the Circuit did not bite.

Boasberg likened Xitter’s glib offer to tell only the subjects of the investigation to Xitter’s similar offer last year to tell only Trump, which the DC Circuit rejected.

The company believes that “[a] less restrictive means of furthering the government’s interests . . . would be to permit X to disclose the Subpoena’s existence to the targeted users, while prohibiting disclosure . . . to anyone else.” Id. at 24. That is akin to asking for the donut minus the hole.

Indeed, the Circuit rejected an analogous alternative in In re Sealed Case. There, the company proposed notifying just Trump–the target of the warrant that the challenged NDO accompanied–of the warrant’s existence. Yet the Circuit considered that alternative a “nonstarter[]” because it “would not have maintained the confidentiality of the criminal investigation and therefore risked jeopardizing it.” In re Sealed Case. 77 F.4th at 831. Nor would it have safeguarded the security and integrity of the investigation, as the whole point of the nondisclosure was to avoid tipping off the former President about the warrant’s existence.” Id. at 832. X’s proposal here falls flat for precisely the same reason: permitting it to disclose the subpoena’s existence [redacted] would neither protect the investigation’s confidentiality nor safeguard its integrity. See Redacted Gov’t Mot. at 12 n.4.

[Paragraph redacted]

Notably, last year Xitter at least relied on a purported interest in preserving Executive Privilege. Here, there’s no such claim; just a specious argument that DOJ should have to get individualized NDOs for every subpoena it submits in this investigation, even if all of them ask for no more than basic social media account information. So this is not some protected class, like a member of Congress or staffer.

Perhaps Boasberg’s most interesting invocation of Xitter’s earlier attempt to tamper in the Trump investigation is where, in almost entirely redacted language, he compares the urgency of this investigation with that of Jack Smith’s investigation into, “activity intended to alter the outcome of a valid national election for the leadership of the Executive Branch of the federal government.”

He spends three (redacted) paragraphs describing the import of the investigation.

To be sure, the Government’s interest in In re Sealed Case “was particularly strong” because of the goal of the investigation at issue: “[T]o ferret out activity intended to alter the outcome of a valid national election for the leadership of the Executive Branch of the federal government . . . and to assess whether that activity crossed lines into criminal culpability.” In re Sealed Case. 77 F4th at 830. The United States does not purport to target election interference in this case. But it submits that its interest are nevertheless heightened here for another reason: [1.5 lines redacted] The Court wholly agrees based on the evidence outlined in the Government’s ex parte briefing. [3 paragraphs redacted]

Whether or not this has a direct tie to Trump, it’s worth noting that Musk met with Trump (on March 2) during the pendency of this fight; last year, Musk met with Jim Jordan twice during Xitter’s challenge to the Trump warrant.

Whatever that three paragraph description was, Boasberg described the type of investigation using a short word — four or maybe five characters. This could be a FARA investigation or a leak investigation, for example, or perhaps he cited code to describe it.

Update: I guess I should explain why I used Musk’s Council of Nicea tweets as my featured image? In this post (linked above), I noted that on the day Xitter started complying with the Trump warrant, Musk posted this tweet:

So I went to Musk’s tweets from the day after Boasberg’s order and noted that he tweeted obliquely about “trac[ing] to source documents.”

If this is a leak investigation, it could be a reference to an attempt to source a leak.

Timeline

December 11, 2023: Application for omnibus NDO

January 5, 2024: DOJ serves Xitter with subpoena for subscriber information

January 24: Xitter moves to vacate the NDO, review the affidavit, and stay compliance

January 25: Initial deadline for compliance

March 2: Musk meets with Trump in Florida

March 29: Boasberg orders Xitter to comply

April 12: Boasberg released redacted opinion

Media Organizations Omit Mention of Trump’s Allegedly Criminal Exploitation of 2020 Debates

Twelve media organizations are clamoring for another set of debates between Donald Trump and Joe Biden. In their naive call for debates, they claim that because the stakes on this election are so high, “there is simply no substitute” for the candidates “debating” each other, presenting, “their visions for the future of our nation.”

With the contours of the 2024 general election now coming into clear focus, we – the undersigned national news organizations – urge the presumptive presidential nominees to publicly commit to participating in general election debates before November’s election.

General election debates have a rich tradition in our American democracy, having played a vital role in every presidential election of the past 50 years, dating to 1976. In each of those elections, tens of millions have tuned in to watch the candidates debating side by side, in a competition of ideas for the votes of American citizens.

Since 1988, the nonpartisan Commission on Presidential Debates has sponsored all presidential general election debates. The Commission has previously announced dates, times, and eligibility criteria for 2024 debates. Though it is too early for invitations to be extended to any candidates, it is not too early for candidates who expect to meet the eligibility criteria to publicly state their support for – and their intention to participate in – the Commission’s debates planned for this fall.

If there is one thing Americans can agree on during this polarized time, it is that the stakes of this election are exceptionally high. Amidst that backdrop, there is simply no substitute for the candidates debating with each other, and before the American people, their visions for the future of our nation. [my emphasis]

I mean, they’re not wrong that debates provide an opportunity to display a candidate’s vision for America.

In the first debate in 2020, for example, Biden asked Trump to disavow right wing violence, and instead, Trump told the Proud Boys to “Stand Back and Stand By.”

Stoking political violence certainly is part of Trump’s “vision for the future of our nation.”

Because of the way Trump’s comment drove recruiting for the Proud Boys, it made the opening arguments of the Proud Boy leaders’ sedition trial.

If we’re lucky enough to get a Trump trial for January 6 (one that would likely create scheduling difficulties for a debate in any case and as such Trump would use as another attempt to stall accountability), Trump’s call out to the violent militia that kicked off the attack on the Capitol will feature prominently again. Prosecutors have already informed Judge Tanya Chutkan they plan to use both Trump’s call out and his later coddling of Enrique Tarrio to show how, both before and after the attack, Trump encouraged that assault on democracy.

The Government plans to introduce evidence from the period in advance of the charged conspiracies that demonstrates the defendant’s encouragement of violence. For instance, in response to a question during the September 29, 2020, presidential debate asking him to denounce the extremist group the Proud Boys, the defendant instead spoke publicly to them and told them to “stand back and stand by.” Members of the group embraced the defendant’s words as an endorsement and printed merchandise with them as a rallying cry. As discussed below, after the Proud Boys and other extremist groups participated in obstructing the congressional certification on January 6, the defendant made clear that they were acting consistent with his intent and direction in doing so.

[snip]

Of particular note are the specific January 6 offenders whom the defendant has supported— namely, individuals convicted of some of the most serious crimes charged in relation to January 6, such as seditious conspiracy and violent assaults on police officers. During a September 17, 2023, appearance on Meet the Press, for instance, the defendant said regarding Proud Boys leader Enrique Tarrio—who was convicted of seditious conspiracy—“I want to tell you, he and other people have been treated horribly.” The defendant then criticized the kinds of lengthy sentences received only by defendants who, like Tarrio, committed the most serious crimes on January 6.

Effectively, this will make the Proud Boys quasi co-conspirators with Donald Trump at trial.

This is the kind of overt act in a criminal conspiracy to attack democracy itself that media outlets say is vital to our democracy.

But Trump’s exploitation of debates does not stop there.

Consider the allegations surrounding Tony Bobulinski, Fox News’ favorite source — at least, the favorite source who has not yet been indicted — for scandal-mongering about Hunter Biden.

For the third debate in 2020, after top Trump aides pitched Bobulinski tales to the WSJ based on laptop content that Hunter claims was stolen, Trump hosted Bobulinski as his guest. The very next day, Bobulinski marched into the FBI and is recorded as telling them a bunch of things that Bobulinski now claims he didn’t say — including that he saw Joe Biden get an enormous diamond from China. Weeks later, according to Cassidy Hutchinson, he had a secret meeting with Mark Meadows. Bobulinski doesn’t (now that Hutchinson released video evidence) deny the meeting; he denies he was handed something that might or might not be an envelope.

I guess framing your opponent’s son, like attacking democracy itself, is part of Trump’s vision for America. But actual journalists should not need — or want — a debate to serve as vehicle for that.

And while the circumstances around the third such instance of potentially criminal activity tied to a 2020 debate are less clear, one thing is not. As part of the Jeffrey Jensen effort to reverse the conviction of Mike Flynn, dates got added to the notes of Peter Strzok and Andrew McCabe — inaccurate dates in at least one case.

Based on that inaccurate date, first Sidney Powell (who was in contact with Jenna Ellis at the time) and then Trump himself falsely claimed that Joe Biden — and not Bob Litt, as other evidence makes clear — first raised concerns that Mike Flynn may have violated the Logan Act by undermining foreign policy before he became National Security Advisor.

Trump gleefully used that fraudulent claim in the first debate against Biden.

President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.

It was another instance of an attempt to falsely frame his opponent.

So let’s grant the media outlets that Trump has gleefully displayed his vision of America at the 2020 debates with Joe Biden by serially attempting to frame his competitor and inciting violence.

But what I don’t understand — what makes me genuinely embarrassed for the group of good journalists who work at some of these media outlets — is why they believe there is “no substitute” for debates to tell such a story.

Are you telling me the only way you can convey to voters that Trump’s vision for America is violence, fraud, and revenge is by giving him a platform to engage in such activities? Why wouldn’t you instead pursue aggressive journalism to tell more of these stories?

Twelve media outlets claim that the only way they can display Trump’s dystopian vision for America is by being complicit in it.

Update: Many people, in comments and on social media, reminded me that Trump willfully exposed Biden and others to COVID.

Judge Maryellen Noreika’s Unconstitutional Concerns about Unconstitutional Concerns

On April 12, the same day that Judge Maryellen Noreika finally issued her opinions rejecting Hunter Biden’s motions to dismiss based on immunity and selective and vindictive prosecution, Hunter filed a notice of interlocutory appeal of all of Scarsi’s opinions. My Hunter Biden page has been updated to reflect these developments.

I think, but am not certain, that the notice of appeal came after Noreika released her opinions, and so might be a response to it.

It’s unclear what basis Lowell believes he has for an interlocutory appeal. At the initial appearance, Judge Scarsi had instructed Abbe Lowell to brief whether he could file such an appeal for the diversion agreement, which Lowell failed to do in his motions to dismiss. One possibility is that Lowell plans to argue that Delaware, as the first filed case, should have ruled first. He argued this in a February motion to continue the similar filings.

“[W]hen cases between the same parties raising the same issues are pending in two or more federal districts, the forum of the first-filed action should generally be favored.” Heieck v. Federal Signal Corp., 2019 WL 1883895, at *2 (C.D. Cal., Mar. 11, 2019). This approach maximizes judicial economy, avoids the possibility of inconsistent judgments, and minimizes any unnecessary burden on the two Courts’ or the parties’ resources.

If that’s the case, however, the facial similarity of the two diversion agreement opinions might doom an appeal that would be extremely unlikely to work anyway. Both judges ruled that because Probation did not sign the diversion agreement, it was not in place and so Hunter got no immunity from it. The rulings are not inconsistent on their key point (though are in other key ways).

That said, even though neither side formally called attention to Judge Scarsi’s rulings, Judge Noreika noted it in a really confusing footnote.

5 This Court recognizes that, relying largely on California and Ninth Circuit law, the judge overseeing tax charges brought against Defendant in the Central District of California decided that Probation’s approval is “a condition precedent to performance, not to formation,” and that the absence of Probation’s approval means that “performance of the Government’s agreement not to prosecute Defendant is not yet due.” United States v. Biden, No. 2:23-cr-00599-MCS-1, 2024 WL 1432468, at *8 & *10 (C.D. Cal. Apr. 1, 2024). Neither of those issues nor that law was raised by the parties before this Court.

I don’t know what “law” she’s referring to — possibly the Ninth Circuit precedent Scarsi relied on? If that’s the case, then she would be affirming precisely the problem Lowell pointed out: by relying on different precedents, Scarsi has created inconsistency in the judgments.

But she’s flat out wrong that the government’s arguments about whether Probation’s signature was a condition precedent to the formation or the performance of the diversion agreement; it was central to the government’s response.

Applying contract law principles, the approval of U.S. Probation was a condition precedent to the formation of the contract. “A condition may be either a condition precedent to the formation of a contract or a condition precedent to performance under an existing contract.” W & G Seaford Assocs. v. Eastern Shore Mkts., Inc., 714 F.Supp. 1336, 1340 (D.Del.1989) (citing J. Calamari & J. Perillo, Contracts § 11–5, at 440 (3d ed.1987)); Williston on Contracts §38.4. “In the former situations, the contract itself does not exist unless and until the condition occurs.” Id.; Willison on Contracts § 38.7.

There is a bigger difference between the two opinions, though: how they understand Probation’s decision not to sign the plea. As I’ve noted, Scarsi effectively rewrote one of the exhibits he relied on to claim that Probation was not part of revisions to the diversion agreement. As I’ll show, Noreika does not deny that Probation was a part of those revisions, but nevertheless, with no explanation, held that Probation didn’t approve the agreement.

And that’s important because Noreika doesn’t explain her own intervention in the approval of the diversion agreement, effectively intervening in a prosecutorial decision, a problem I pointed out in this post. Indeed, the opinion is consistent with Margaret Bray refusing to sign the diversion agreement because of some interaction Bray had with Judge Noreika before the hearing.

Before I explain why, let me emphasize, Hunter Biden is well and truly fucked. What I’m about to say is unlikely to matter, and if it does, it’s likely only to matter after two judges who seem predisposed against Hunter make evidentiary decisions that will increase the political cost of two trials, if and when juries convict Hunter, and after those same judges rule on whether Hunter can remain out on pretrial release pending the appeal of this mess, which Scarsi, especially, is unlikely to do. Worse still, after I laid out all the ways Judge Scarsi had made his own opinion vulnerable on appeal, he ruled against Abbe Lowell’s attempt to certify all the evidence Scarsi said had not come in properly. Scarsi is using procedural reasons to protect his own failures in his opinions. He’s entitled to do so; he’s the judge! So what I’m about to write does not change the fact that Joe Biden’s son is well and truly fucked.

Judge Noreika refashions her intervention in the plea hearing

In his omnibus ruling on Hunter’s motions to dismiss, Judge Scarsi only cited the plea hearing transcript six times, entirely focused on the end of the discussion (the Xs describe who is being quoted in the citation).

The parties submitted the Plea Agreement and the Diversion Agreement to United States District Judge Maryellen Noreika in advance of a scheduled July 26, 2023, Initial Appearance and Plea Hearing. (See Machala Decl. Ex. 1 (“Del. Hr’g Tr.”), ECF No. 25-2.) At the hearing, after questioning Defendant and the parties, the District Court Judge expressed concerns regarding both Defendant’s understanding of the scope of the immunity offered by the Diversion Agreement and the appropriateness of the District Court’s role in resolving disputes under the Diversion Agreement. (Del. Hr’g Tr. 103–08.) The District Court Judge asked the parties to rework the agreements and provide additional briefing regarding the appropriate role of the District Court in resolving disputes under the Diversion Agreement. (Id.) At the hearing, Defendant entered a plea of not guilty to the tax charges then pending in Delaware. (Id. at 109.)

[snip]

6 This observation begs a question regarding another provision, the parties’ agreement that the United States District Court for the District of Delaware would play an adjudicative role in any alleged material breach of the agreement by Defendant. (Diversion Agreement § II(14).) The judge overseeing the action in Delaware questioned whether it was appropriate for her to play this role. (Del. Hr’g Tr. 92–104.) The Court is uncertain as to whether the parties understood the Probation Officer also to have a role in approving the breach-adjudication plan in her capacity as an agent of the court. See 18 U.S.C. § 3602. But these issues need not be resolved to adjudicate the motion.

[snip]

On July 26, 2023, the district judge in Delaware deferred accepting Defendant’s plea so the parties could resolve concerns raised at the plea hearing. (See generally Del. Hr’g Tr. 108–09.)

By contrast, Judge Noreika cited her own hearing transcript 33 times: 24 times in her background section, four times in her sua sponte section deeming the extent of Hunter’s immunity uncertain, three times in a sua sponte section that intruded on the Executive’s prosecutorial function where she said it would be unconstitutional to intrude on the Executive’s prosecutorial function, and twice more in a section misrepresenting the focus of Hunter’s judicial estoppel argument. 21 of her citations were substantially to her own comments in the hearing.

The degree to which this opinion makes claims about what Noreika actually did at the plea hearing matters. Not only does Noreika fluff the nature of her own intervention, but her discussion left out critical discussion about the nature of approvals required for the diversion agreement (including but not limited to those marked in blue above). That includes five complaints about the fact that she was not asked to sign the diversion agreement and a key intervention in which she expressed an opinion on the scope of the authority for Margaret Bray to intervene in the diversion agreement.

Additionally, in one place, she misrepresented the transcript in a way that minimized her own intervention.

That is, Noreika used her own opinion to refashion the intervention she made in the plea hearing.

The last example — when she misrepresented the transcript — is instructive. As noted, though neither side made this argument, Noreika nevertheless spent 2.5 pages arguing that the scope of the immunity grant in the diversion agreement was not sufficiently clear to be contractually enforceable. In it, she claimed that the uncertainty over the scope of the immunity, and not her own intervention, was the only reason the plea collapsed, a claim she carries over to the selective and vindictive prosecution opinion.

Then, she declined to accept Chris Clark’s oral modification of the immunity provision to include just gun, tax, and drug crimes.

Pressing the parties on their respective understandings of what conduct was protected by the immunity from prosecution led to a collapse of the agreement in court. (D.I. 16 at 54:10-55:22).

Apparently acknowledging that the immunity provision as initially drafted was not sufficiently definite, the parties attempted to revise the scope of the immunity conferred by the Division Agreement orally at the July 2023 hearing. (See D.I. 16 at 57:19-24 (“I think there was some space between us and at this point, we are prepared to agree with the government that the scope of paragraph 15 relates to the specific areas of federal crimes that are discussed in the statement of facts which in general and broadly relate to gun possession, tax issues, and drug use.”)). The Court recognizes that Delaware law permits oral modifications to contracts even where the contract explicitly provides that modifications must be in signed writings, as the Diversion Agreement did here. (See D.I. 24, Ex. 1 ¶ 19 (“No future modifications of or additions to this Agreement, in whole or in part, shall be valid unless they are set forth in writing and signed by the United States, Biden and Biden’s counsel.”)). That being said, although the government asserted that that oral modification was binding (D.I. 16 at 89:9-14), the Court has never been presented with modified language to replace the immunity provision found in Paragraph 15. [my emphasis]

This is a nutty argument to begin with: Neither side is arguing that gun crimes were not included in the diversion immunity (to which elsewhere she limits her review); neither is even arguing there was uncertainty as to the application of immunity to tax and drug crimes. The only uncertainty pertained to FARA (and that only because — as Noreika herself described it, Leo Wise “revoked” a signed agreement).

This discussion is especially problematic because, elsewhere, she left out a crucial part of her own invitation to clarify the immunity language, which the opinion describes this way:

The Court also suggested that the parties clarify the scope of any immunity conferred by the immunity provision of the Diversion Agreement. (Id. at 105:16-22).

Noreika’s reference to the government’s assertion that Chris Clark orally modified the scope of immunity by agreeing to limit it to tax, guns, and drugs pertains to this comment from Leo Wise:

Obviously this paragraph has been orally modified by counsel for Mr. Biden and we would — I’m not going to attempt to paraphrase it. I don’t want to make the record muddy. The statement by counsel is obviously as Your Honor acknowledged a modification of this provision, and that we believe is binding.

Importantly, when Noreika invited the parties to clarify the diversion scope (claiming all the while she was not trying to tell the parties how to negotiate), she treated the Clark comment as having been orally modified.

you might, though I’m not trying to tell you how to negotiate the Diversion Agreement, you might fix that one paragraph that you have orally modified today.

At the hearing, Noreika treated the diversion scope as orally modified, but in this opinion she not only omits mention that she did so, but she suggests that because the parties didn’t modify the contract about prosecution declination to her liking, then it is not binding.

She’s claiming to have no role in the drafting process, and then she’s demanding changes in the contract that she already said had been adopted, a contract in which she repeatedly says would be unconstitutional for her to intervene.

The logistics of the asymmetric knowledge of Margaret Bray’s non signature

All this matters because of something else: Judge Noreika’s opinion exhibits knowledge of something to which she was not a witness. It arises from the logistics from that plea hearing.

As I noted, while claiming he was ruling on the diversion agreement as an unambiguous contract, Judge Scarsi nevertheless relied on extrinsic evidence — a declaration from AUSA Benjamin Wallace. Before Wallace submitted the declaration before Judge Scarsi, Wallace withdrew his appearance before Judge Noreika, in a letter signed as a Delaware AUSA reporting to US Attorney David Weiss, someone who is no longer before that docket.

Given that Wallace referred to final agreements four times as drafts in the declaration, it deserves close scrutiny.

In it, Wallace described that before Judge Noreika took the bench and while Chris Clark and Leo Wise were signing the plea agreement and diversion agreement on July 26, he told Margaret Bray that she could soon sign the diversion agreement. According to Wallace, she “expressly declined to sign the draft diversion agreement.”

3. Before the District Judge took the bench, the parties signed the draft plea agreement in No. 23-mj-274 and the draft diversion agreement in No. 23-cr-61. Leo J. Wise, Special Assistant United States Attorney, signed on behalf of the government. Mr. Biden and his attorney, Christopher J. Clark, signed on behalf of Mr. Biden.

4. While Mr. Biden, Mr. Clark, and Mr. Wise were signing the two agreements, I approached the Chief United States Probation Officer for the District of Delaware, Margaret M. Bray, to tell her that the draft diversion agreement would be ready for her signature shortly. Ms. Bray expressly declined to sign the draft diversion agreement.

In the Los Angeles motions hearing, Abbe Lowell suggested there was something funny about this timing and asked a more important question: Why the head of Probation was not the one submitting the declaration.

MR. LOWELL: It probably — well, it matters in the following way. If what was happening was questions were being raised, and that’s why she didn’t do it, or for any other reason, after she manifested her agreement in what she sent to the court on July 20th or what the Government said, then it probably doesn’t matter.

I don’t think it really matters why at that moment and when it doesn’t — when it happened. I’m just saying that I think the sequence of what happened on July the 26th is murky, at best.

And I’d like to have Ms. Bray be the one to give a declaration, not somebody else that talks about what happened and when it happened and why it happened. I was there, so it would be good if the person who did it, did it. But that’s not what they submitted.

But Noreika’s opinion makes it clear why the timing and substance matters — and why Margaret Bray, the person that both Noreika and Scarsi have ruled effectively vetoed this agreement by not signing it, should have been the one submitting a declaration.

Assuming Wallace’s description of the timing is correct — that this happened while Clark and Wise were busy signing the documents themselves and before Judge Noreika entered the courtroom — then it would create an asymmetry of knowledge among the participants in the hearing. Bray, who never spoke at the hearing, would know she had refused to sign. Wallace would know and therefore did know when he made his single comment at the hearing: agreeing that if the immunity language had been included in the plea agreement rather than the diversion agreement, it would change the rule under which Judge Noreika was reviewing the plea agreement.

THE COURT: And if it were included in the Memorandum of Plea Agreement, would that make this plea agreement one pursuant to Rule 11(c)(1)(A)?

MR. WALLACE: It would.

Did Wallace make this comment because of something Bray told him before the hearing? Importantly, Noreika relies on this assent to use her own uncertainty about the proper clause under which to consider the plea to replace authority to alter the diversion. That is, Noreika effectively used Wallace’s assent to suggest she had the authority to draft the diversion agreement. If he learned that Noreika had a concern about that clause from Bray, it would amount to an ex parte communication between the prosecution and the judge.

Over the course of the hearing — most notably, between the time Leo Wise made a comment about the limits of Probation’s involvement and the time when Wise said the diversion agreement would only go into effect after Bray signed it — Wallace could have shared that knowledge with the other prosecutors. That is, it is possible but uncertain whether prosecutors used this asymmetric knowledge to get out of the plea deal.

But Hunter Biden’s team would never know this occurred, which is consistent with Chris Clark’s repeated statements that he believed Probation had already approved the diversion, which Weiss’ team did not dispute.

And, because all this happened before she took the bench, Judge Noreika should not have known that Ms. Bray refused to sign it. She should not have known it, that is, unless she and Margaret Bray had discussions before the hearing about Bray not signing the agreement.

If they did, then Bray’s failure to sign the diversion agreement would effectively serve as a proxy disapproval from Judge Noreika. It would amount to Judge Noreika, who is neither a party to this agreement nor someone authorized to approve or disapprove it, vetoing the agreement by instructing Bray not to sign it.

Noreika exhibited knowledge of Bray’s lack of signature

There are three times in Noreika’s opinion where she exhibits some knowledge that Bray had not signed that diversion agreement before the hearing.

First, in her treatment of Hunter’s half-hearted attempt to claim that judicial estoppel prevents the prosecution from had not started yet, she described believing at the time and still believing that the government did not believe the diversion period started until Bray signed the agreement.

As the Court understood that statement at the time, the government’s position was that the diversion period did not begin to run until Probation’s approval was given – approval to be indicated by a signature on the Diversion Agreement itself. That is, the Diversion Agreement would not become effective until approval through signature was given. That continues to be the Court’s understanding today.

Having such a belief at the time would only make sense if she knew the diversion had not yet been signed and, given the logistics, that would seemingly require having known before Bray told Wallace she would not sign it.

In her section rejecting Hunter’s argument that by recommending Hunter for diversion on July 19 and then, along with the parties, tweaking the diversion agreement, Noreika offered no reason why she was unpersuaded that Bray had indicated her assent by participating in those changes, something about which her courtroom deputy received emails.

Defendant nevertheless suggests that Probation’s approval may be implied from the fact that Probation recommended pretrial diversion and suggested revisions to the proposed agreement before the July 2023 hearing. (D.I. 60 at 18-19). The Court disagrees. That Defendant was recommended as a candidate for a pretrial diversion program does not evidence Probation’s approval of the particular Diversion Agreement the parties ultimately proposed. Probation recommended that Defendant was of the type of criminal defendant who may be offered pretrial diversion and also recommended several conditions that Probation thought appropriate. (D.I. 60, Ex. S at Pages 8-9 of 9). That is fundamentally different than Probation approving the Diversion Agreement currently in dispute before the Court. And as to Probation’s purported assent to revisions to the Diversion Agreement (D.I. 60, Ex. T at Page 2 of 28), Defendant has failed to convince the Court that the actions described can or should take the place of a signature required by the final version of an agreement, particularly when the parties execute the signature page. Ultimately, the Court finds that Probation did not approve the Diversion Agreement. [my emphasis]

Importantly, Noreika does not address the scope via which Probation, having already approved the parts they would oversee, could reject this deal.

But the most important evidence that Judge Noreika knew of something during the hearing to which she was not a direct witness was a question she posed — invoking the first person plural — suggesting that Probation should not approve the deal.

THE COURT: All right. Now, I want to talk a little bit about this agreement not to prosecute. The agreement not to prosecute includes — is in the gun case, but it also includes crimes related to the tax case. So we looked through a bunch of diversion agreements that we have access to and we couldn’t find anything that had anything similar to that.

So let me first ask, do you have any precedent for agreeing not to prosecute crimes that have nothing to do with the case or the charges being diverted?

MR. WISE: I’m not aware of any, Your Honor.

THE COURT: Do you have any authority that says that that’s appropriate and that the probation officer should agree to that as terms, or the chief of probation should agree to that as terms of a Diversion Agreement?

MR. WISE: Your Honor, I believe that this is a bilateral agreement between the parties that the parties view in their best interest. I don’t believe that the role of probation would include weighing whether the benefit of the bargain is valid or not from the perspective of the United States or the Defendant. (46)

Not only did Noreika suggest that some collective “we” had been reviewing diversion agreements together, but she suggested Bray could still reject the deal based on the scope of David Weiss’ prosecutorial decision. She suggested Bray could dictate to Weiss how much he could include in a declination statement.

This is precisely the kind of usurpation of the Executive’s authority that Noreika said would be unconstitutional. Which was precisely Leo Wise’s response: he responded that Bray did not have the authority to opine that the parties had entered into a contract that did not sufficiently protect the interests of the United States.

Shortly after that exchange, Judge Noreika started complaining that she was not asked to sign the diversion agreement.

I think what I’m concerned about here is that you seem to be asking for the inclusion of the Court in this agreement, yet you’re telling me that I don’t have any role in it, and you’re leaving provisions of the plea agreement out and putting them into an agreement that you are not asking me to sign off on. (50)

[snip]

But then it would be a plea under Rule (c)(1)(A) if the provision that you have put in the Diversion Agreement which you do not have anyplace for me to sign and it is not in my purview under the statute to sign, you put that provision over there. So I am concerned that you’re taking provisions out of the agreement, of a plea agreement that would normally be in there. So can you — I don’t really understand why that is. (51)

[snip]

All right. Now I have reviewed the case law and I have reviewed the statute and I had understood that the decision to offer the defendant, any defendant a pretrial diversion rest squarely with the prosecutor and consistent with that, you all have told me repeatedly that’s a separate agreement, there is no place for me to sign off on it, and as I think I mentioned earlier, usually I don’t see those agreements. But you all did send it to me and as we’ve discussed, some of it seems like it could be relevant to the plea. (92)

[snip]

THE COURT: First it got my attention because you keep telling me that I have no role, I shouldn’t be reading this thing, I shouldn’t be concerned about what’s in these provisions, but you have agreed that I will do that, but you didn’t ask me for sign off, so do you have any precedent for that? (94)

[snip]

What’s funny to me is you put me right smack in the middle of the Diversion Agreement that I should have no role in, you plop meet [sic] right in there and then on the thing that I would normally have the ability to sign off on or look at in the context of a Plea Agreement, you just take it out and you say Your Honor, don’t pay any attention to that provision not to prosecute because we put it in an agreement that’s beyond your ability. (104)

The first two of these citations — the ones that precede Leo Wise’s “revocation” of the plea deal — are not mentioned in Noreika’s opinion. The other three are invoked several times in references to the transcript (including three of the references made by Judge Scarsi), but in none of those references does Noreika admit she was demanding the authority to sign off on the diversion agreement. 

The Court pressed the government on the propriety of requiring the Court to first determine whether Defendant had breached the Diversion Agreement before the government could bring charges – effectively making the Court a gatekeeper of prosecutorial discretion. (D.I. 16 at 92:22-95:17).

[snip]

The parties attempted to analogize the breach procedure to a violation of supervised release, but the Court was left with unanswered questions about the constitutionality of the breach provision, leaving open the possibility that the parties could modify the provision to address the Court’s concerns. (Id. at 102:5-106:2).

She presented these demands to sign off on the diversion agreement as the exact opposite of what they were: a concern that she would be usurping the role of prosecutors if the diversion went into effect, when in fact she was concerned that she wasn’t being given opportunity to veto prosecutors’ non-prosecution decision.

Notably, Judge Noreika mentions Chris Clark’s failure to object after Leo Wise (after such time as Wallace could have told him that Bray did not sign the diversion agreement) said the agreement would go into effect when Probation signed it.

4 Although not part of the Court’s decision, the Court finds it noteworthy that the government clearly stated at the hearing that “approval” meant “when the probation officer . . . signs it” and Defendant offered no objection or correction to this. (D.I. 16 at 83:13-17 & 90:13-15).

She doesn’t mention her own failure to correct Wise when he said she could sign the diversion agreement.

I think practically how this would work, Your Honor, is if Your Honor takes the plea and signs the Diversion Agreement which is what puts it into force as of today, and at some point in the future we were to bring charges that the Defendant thought were encompassed by the factual statement in the Diversion Agreement or the factual statement in the Plea Agreement, they could move to dismiss those charges on the grounds that we had contractually agreed not to bring charges encompassed within the factual statement of the Diversion Agreement or the factual statement of the tax charges.

This doesn’t prove that Judge Noreika asked Margaret Bray not to sign the diversion before Bray told Wallace she would not sign it. But it does show that Noreika thought one of the two of them, either she or Bray, should have the power to veto a prosecutorial decision.

And Judge Noreika refashions her intervention in the plea hearing to obscure that point.

Noreika shifts her demands for sign-off power

As noted, even in spite of her minute order that reflects she deferred agreement on both the plea agreement and the diversion agreement in which it would be unconstitutional for her to intervene, Noreika suggests that the plea fell apart only because of the dispute about immunity that started after she had already intervened in signing authority.

She does ultimately deal with her demands — in a section reserving veto authority over the diversion agreement based on her authority to dictate public policy to prosecutors!

In a truly astonishing section, Noreika applies contract law about a diversion she claims, with no basis, has been made part of the plea deal and uses it to claim she could veto a prosecutorial decision.

Contractual provisions that are against public policy are void. See Lincoln Nat. Life Ins. Co. v. Joseph Schlanger 2006 Ins. Tr., 28 A.3d 436, 441 (Del. 2011) (“[C]ontracts that offend public policy or harm the public are deemed void, as opposed to voidable.”). “[P]ublic policy may be determined from consideration of the federal and state constitutions, the laws, the decisions of the courts, and the course of administration.” Sann v. Renal Care Centers Corp., No. 94A-10-001, 1995 WL 161458, at *5 (Del. Super. Ct. Mar. 28, 1995). Embedded in the Diversion Agreement’s breach procedure is a judicial restriction of prosecutorial discretion that may run afoul of the separation of powers ensured by the Constitution. See, e.g., United States v. Nixon, 418 U.S. 683, 693 (1974) (“[T]he Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case . . . .”); United States v. Wright, 913 F.3d 364, 374 (3d Cir. 2019) (“[A] court’s power to preclude a prosecution is limited by the separation of powers and, specifically, the Executive’s law-enforcement and prosecutorial prerogative.”).

At the hearing in July 2023, the Court expressed concern over the breach provision of the Diversion Agreement and the role the parties were attempting to force onto the Court.8 (See D.I. 16 at 92:12-98:19). In the Court’s view, the parties were attempting to contractually place upon the Judicial Branch a threshold question that would constrain the prosecutorial discretion of the Executive Branch as to the current Defendant. As the government admitted, even if there were a breach, no charges could be pursued against Defendant without the Court first holding a hearing and making a determination that a breach had occurred. (Id. at 94:10-15). If the Court did not agree to follow the procedure, no charges could be pursued against Defendant. (Id. at 94:16-20). Mindful of the clear directive that prosecutorial discretion is exclusively the province of the Executive Branch, the Court was (and still is) troubled by this provision and its restraint of prosecutorial decisions. Although the parties suggested that they could modify this provision to address the Court’s concerns (id. at 103:18-22), no language was offered at the hearing or at any time later. And no legal defense of the Diversion Agreement’s breach provision has been provided to the Court – the deals fell apart before any supplemental briefing was received.

Even if the Court were to find the Diversion Agreement was approved by Probation as required and the scope of immunity granted sufficiently definite, the Court would still have questions as to the validity of this contract in light of the breach provision in Paragraph 14. To be clear, the Court is not deciding that the proposed breach provision of Paragraph 14 is (or is not) constitutional. Doing so is unnecessary given that the Diversion Agreement never went into effect. The Court simply notes that, if the Diversion Agreement had become effective, the concerns about the constitutionality of making this trial court a gatekeeper of prosecutorial discretion remain unanswered. And because there is no severability provision recited in the contract, more would be needed for the Court to be able to determine whether this provision could properly remain in the Diversion Agreement and whether the contract could survive should the Court find it unconstitutional or refuse to agree to serve as gatekeeper.

This entire opinion is rife with examples where Judge Noreika placed herself in a contract to which she was never a party, effectively dictating what David Weiss could include in a prosecutorial declination. But she claims she’s doing the opposite, not snooping into a contract that should only be before her for its immunity agreement, but instead protecting prosecutors’ ability to renege on a declination decision.

I will leave it to the lawyers to make sense of the legal claims here.

But there’s a procedural one that Noreika overlooks.

As noted here, Scarsi’s ruling that the diversion agreement remains binding on the parties conflicts with Noreika’s claim that the problem here is that no one briefed her to placate her complaints.

There are other places where Scarsi’s ruling and Noreika’s conflict — specifically about Probation’s involvement in revisions to the terms that Probation actually governs. But if Scarsi is right, than Noreika’s order withdrawing the briefing order was withdrawn improperly.

Alexander Smirnov Goes Missing — from Judge Noreika’s Opinions

The name Alexander Smirnov appears in neither Judge Maryellen Noreika’s opinion rejecting Hunter Biden’s immunity nor her opinion rejecting his selective and vindictive prosecution claim. Whereas it appears that Judge Mark Scarsi believes that Smirnov is not before him at all, Lowell did raise Smirnov — whose arrest postdated the reply brief deadline before Noreika and so couldn’t have been included in motions filings in Delaware — as an additional authority for his selective and vindictive claim.

The detail matters because of the way Noreika handled the two motions, which she treated as related by relying on the facts laid out in her immunity opinion in her selective prosecution opinion, even though her position in those two opinions is slightly different.

For the selective prosecution opinion, Noreika used Abbe Lowell’s request, in his reply brief, that she focus on David Weiss’ decision to abandon the plea and diversion agreement, an approach she adopted.

Defendant’s motion sets forth a winding story of years of IRS investigations, Congressional inquiries and accusations of improper influence from Legislative Branch and Executive Branch officials within the prior administration, including former President Trump himself. (See D.I. 63 at 4-20). Yet, as Defendant explains in reply, his selective  and vindictive prosecution claims are focused on “the prosecution’s decision to abandon the Plea and Diversion Agreement framework it had signed in response to ever mounting criticism and to instead bring this felony indictment.” (D.I. 81 at 2 n.1). That decision occurred in the summer of 2023. Any allegation of selective or vindictive prosecution stemming from the IRS investigations or prior administration officials or any conduct that preceded this past summer appears largely irrelevant to the present motions. Moreover, the only charges at issue in this case are firearm charges  — Defendant’s financial affairs or tax-related charges (or investigations thereof) also appear irrelevant. Thus, the only charging decision the Court must view through the selective and vindictive prosecution lens is Special Counsel David Weiss’s decision to no longer pursue pretrial diversion and instead indict Defendant on three felony firearm charges.

But Noreika’s treatment of when the decision occurred is fuzzy. In one place she describes that it happened in summer 2023, which could include everything from June 21, 2023 on (the day after the diversion and plea were published).

Defendant claims that the Special Counsel’s decision to abandon pretrial diversion and indict Defendant on the three felony firearm charges in this case is presumptively vindictive. (See D.I. 81 at 2 n.1). Because that decision occurred in the summer of 2023, his complaints about original charging decisions (or lack thereof) in this case are irrelevant, as are charging decisions for the unrelated tax offenses being pursued in another venue. Yet even as to the Special Counsel’s decision to indict after failing to reach agreement on pretrial diversion, Defendant fails to identify any right that he was lawfully exercising that prompted the government to retaliate. [my emphasis]

Her temporal argument doesn’t seem to support the point she uses it for: That Weiss’ decision to change his mind means that what he changed it from, “are irrelevant” (this is particularly important given how she treats the dispute over immunity).

Elsewhere, she treats the entirety of the decision to be after the failed plea hearing.

Defendant has made clear, however, that his selective prosecution claim is focused on the decision to abandon pretrial diversion and pursue indictment on the three felony firearm charges – a decision that occurred after the Court’s hearing in July 2023. (See D.I. 81 at 2 n.1). [my emphasis]

It’s not remotely clear how she adopted this timeframe. But by doing so, she excluded from her consideration things that clearly were part of abandoning the existing plea deal, most notably reneging on the full extent of the immunity. (She also excluded from her consideration her own role in the process, which as I’ll show, she makes a good case was unconstitutional.)

She did so even while describing that “the government appeared to revoke the deal” when Hunter Biden insisted on the terms of immunity that had been negotiated in June.

Having received contradictory sworn statements about Defendant’s reliance on immunity, the Court proceeded to inquire about the scope of any immunity. At this point, it became apparent that the parties had different views as to the scope of the immunity provision in the Diversion Agreement. In the government’s view, it could not bring tax evasion charges based on the conduct set forth in the Plea Agreement, nor could it bring firearm charges based on the particular firearm identified in the Diversion Agreement, but unrelated charges – e.g., under the Foreign Agents Registration Act – were permissible. (D.I. 16 at 54:13-55:9). Defendant disagreed. (Id. at 55:17-18). At that point, the government appeared to revoke the deal (id. at 55:22) and proceedings were again recessed to allow the parties to confer in light of their fundamental misunderstanding as to the scope of immunity conferred by the Diversion Agreement (id. at 57:1-7). The hearing resumed, with Defendant’s attorney again reversing position and explaining to the Court that the immunity provision covered only federal crimes related to “gun possession, tax issues, and drug use.” (Id. at 57:23-24).

For reasons I’ll explain in a follow-up, Noreika sua sponte conducted a lengthy discussion of the scope of immunity. But just that observation that the government “appeared to revoke” the terms of the deal, paired with the uncontested claims that Hunter had been assured there was no ongoing investigation on June 19, should make Weiss’ decision to chase the Smirnov claims central.

Noreika also claimed that by adopting Lowell’s framework about how the deal was abandoned, it put the actions of all Trump’s officials out of play.

Yet, as was the case with selective prosecution, the relevant point in time is when the prosecutor decided to no longer pursue pretrial diversion and instead indict Defendant. Whether former administration officials harbored actual animus towards Defendant at some point in the past is therefore irrelevant. This is especially true where, as here, the Court has been given no evidence or indication that any of these individuals (whether filled with animus or not) have successfully influenced Special Counsel Weiss or his team in the decision to indict Defendant in this case. At best, Defendant has generically alleged that individuals from the prior administration were or are targeting him (or his father) and therefore his prosecution here must be vindictive. The problem with this argument is that the charging decision at issue was made during this administration – by Special Counsel Weiss – at a time when the head of the Executive Branch prosecuting Defendant is Defendant’s father. Defendant has offered nothing credible to support a finding that anyone who played a role in the decision to abandon pretrial diversion and move forward with indictment here harbored any animus towards Defendant. Any claim of vindictive prosecution based on actual vindictiveness must fail.

Except it shouldn’t. Lowell cited Barr’s intervention in the FD-1023 discussion in his original motion to dismiss, intervention that happened between the time Weiss agreed to a deal and the time he started reneging on the immunity he had offered. The Brady side channel was a central part of Lowell’s argument about the selective prosecution role of Trump’s officials.

Plus, Noreika’s silence about Smirnov matters because Noreika invests a whole lot of energy in prosecutors’ claims that they couldn’t be retaliating against Hunter Biden because Hunter’s father runs the Executive Branch.

To the extent that Defendant’s claim that he is being selectively prosecuted rests solely on him being the son of the sitting President, that claim is belied by the facts. The Executive Branch that charged Defendant is headed by that sitting President – Defendant’s father. The Attorney General heading the DOJ was appointed by and reports to Defendant’s father. And that Attorney General appointed the Special Counsel who made the challenged charging decision in this case – while Defendant’s father was still the sitting President. Defendant’s claim is effectively that his own father targeted him for being his son, a claim that is nonsensical under the facts here. Regardless of whether Congressional Republicans attempted to influence the Executive Branch, there is no evidence that they were successful in doing so and, in any event, the Executive Branch prosecuting Defendant was at all relevant times (and still is) headed by Defendant’s father.

This entire argument fails if, as the available evidence suggests, David Weiss asked for Special Counsel status to pursue a bribery investigation into Hunter and his father. Once you include the Smirnov claims, Joe Biden is the subject of the investigation, an investigation that was only made possible by reneging on the immunity agreement.

Judge Noreika clearly stated that the government appeared to revoke the deal based on Hunter’s statement about immunity. If that’s right, then Smirnov has to be central to her considerations. Instead, she ignored him.

Judge Maryellen Noreika Confuses Hunter Biden’s Memoir for the NYPost

Judge Maryellen Noreika has finally ruled on (three of) Hunter Biden’s motions to dismiss; like Judge Mark Scarsi, she rejected them.

In a follow-up, I’ll show how Noreika conceives of what went down in the failed plea hearing last summer. Her conception of it has some problem of its own, but it does shore up some problems created by Judge Scarsi’s opinion.

Before I get there, though, I want to look at a key passage of her selective and vindictive prosecution opinion, in which she lays out what she suggests is sound reason for this prosecution.

Although Defendant asks this Court to find that the prosecution’s decision to abandon pretrial diversion and proceed with indictment on the three firearm charges only occurred because of Defendant’s political affiliations (or his father’s political affiliations), Defendant has failed to offer “clear evidence” that that is what happened here. Moreover, in this case, there appear to be legitimate considerations that support the decision to prosecute. See Armstrong, 517 U.S. at 465 (recognizing “the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan” as legitimate factors that may motivate a particular prosecution). Defendant has published a book about his life, where he admitted that his firearm was taken from him at some point after purchase and it was discarded (along with ammunition) in a public trash can, only to be discovered by a member of the public. (D.I. 68 at 2, 7). The government has an interest in deterring criminal conduct that poses a danger to public safety, and prosecutors are not frozen in their initial charging decisions. See Goodwin, 457 U.S. at 382 (“A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct.”) [my emphasis]

This paragraph is a formulaic paragraph in virtually all selective and vindictive prosecution opinions. You cite Armstrong for reasons prosecutors might charge besides animus, you cite Goodwin to lay out that they can change their minds, and then you cite some thing that justifies the prosecution.

Because the standards laid out in Armstrong and Goodwin are so high, you don’t have to include much to justify meeting that standard.

But what you cite generally has to be true.

And it is not true that Hunter Biden wrote in his memoir about the gun. He wrote about someone else pulling a gun on him, which is cited on a different page of the government response Noreika cites for the claim.

One night, while looking for crack and stepping around people curled up on cardboard, the defendant pulled back the flap on a tent and, from the pitch black, saw a gun pointed at his face. Id. at 190.

Only a few months after this happened, on October 12, 2018, the defendant chose to buy his own gun, and during this period he continued to be addicted to crack. Guns and drugs, of course, are a dangerous combination.

He wrote texts — cited in other parts of the selective prosecution motion — to Hallie about the gun.

On October 23, 2018 (the day his then-girlfriend discarded his firearm), the defendant messaged his girlfriend and asked, “Did you take that from me [girlfriend]?” Later that evening, after his interactions with law enforcement, he messaged her about the “[t]he fucking FBI” and asked her, “so what’s my fault here [girlfriend] that you speak of. Owning a gun that’s in a locked car hidden on another property? You say I invade your privacy. What more can I do than come back to you to try again. And you do this???? Who in their right mind would trust you would help me get sober.” In response, the girlfriend stated “I’m sorry, I just want you safe. That was not safe. And it was open unlocked and windows down and the kids search your car. You have lost your mind hunter. I’m sorry I handled it poorly today but you are in huge denial about yourself and about that reality that I just want you safe. You run away like a child and blame me for your shit . . .”

I believe somewhere texts, which I believe to be between Hunter and Keith Ablow, in which Hunter discusses the incident, got cited in this case.

But prosecutors should not have accessed any of the texts before charging. They didn’t have a warrant to do so until 81 days after they indicted.

While Hunter Biden has not yet made a claim, texts between Hunter and Ablow might fall under a doctor-client privilege.

And Abbe Lowell was at least claiming he’d file a motion to suppress the laptop.

Effectively, then, Judge Noreika’s rationale for why it was sound for prosecutors to charge Hunter Biden either amounts to charging Hunter because someone pulled a gun on him (a ridiculous detail to include in the response motion anyway, since it doesn’t pertain to the crime), or because NY Post has been publishing data that Hunter alleges was stolen from him.

Update: The fact that Noreika relies on evidence obtained from Hunter’s laptop is important given the way she dismisses the import of Rudy Giuliani in the selective prosecution motion.

In attempting to show discriminatory purpose, Defendant points to past and recent statements made by former President Trump, alleged conduct of one of the former president’s personal attorneys (Rudy Giuliani) and a purported criticism and pressure campaign by Congressional Republicans. (See id. at 27-37).
None of this evidence, however, is relevant to any alleged discriminatory purpose in this case. The charging decision at issue here – from 2023 – did not occur when the former president was in office. Nor did it occur when Mr. Giuliani was purportedly trying to uncover “dirt” about Defendant and presenting that information to U.S. Attorneys across the country. (See id. at 30). And the pressure campaign from Congressional Republicans may have occurred around the time that the Special Counsel decided to move forward with indictment instead of pretrial diversion, but the Court has been given nothing credible to suggest that the conduct of those lawmakers (or anyone else) had any impact whatsoever on the Special Counsel. It is all speculation.

Leo Wise Has a Sex Worker [and Other False Statement] Problem

It took a while to get a transcript for the motions hearing in Hunter Biden’s Los Angeles case. Now that I’ve read it, I want to revisit two claims Leo Wise made in the same blustery attack on Hunter Biden’s motion to dismiss for outrageous conduct.

His attack was a response to two things that Abbe Lowell said. First, Lowell claimed that the details included in the speaking indictment against Hunter Biden were precisely the details that Gary Shapley and Joseph Ziegler raised in their testimony and public comments, including lifestyle, luxury, drugs, escorts, and sex clubs.

Look in the indictment that you have on your desk.

Each one of the charges is exactly what those two agents said should happen.

What else did they say? They went on and they said, “And this is what he did as opposed to paying his taxes.” And they talked about all of his lifestyle, luxury, drugs, escorts, sex clubs, whatever they put in.

What happened? It’s exactly the phraseology that the special counsel put in, which is abhorrent. It doesn’t happen in pure government tax cases, where they go on for 36 pages, but that’s exactly what the agents demanded and said. So Walters is not just —

The other was that the IRS agents’ testimony set off a series of dominoes in May.

So what we know today is they did the causation. It was those two agents that started the domines. That’s what happened here.

They started in May to complain about what they say is done wrong in the case. The next thing, they’re on the airwaves. The next thing is members of Congress put them in their hearing. The next thing, they reveal what they were — said in the hearing, and release the transcripts wholesale, in the midst of those famous negotiations that were happening.

The next thing that happens is members of Congress complain about the June agreement. The next thing that happens is — while they’re still out there complaining, you know, in May, when they were removed from the case, they didn’t go home. They didn’t go work on some other case, or if they did, they had plenty of time to go on their publicity tour.

So then the next thing that happens is Chairman Smith of the Ways and Means Committee tries to intervene to squirrel the deal in Delaware. All that starts with these agents.

Here’s Wise’s response:

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?

The idea that every American knows this story, that’s absurd. I mean, the myopia of people that live in Washington, to think that everyone in America cares what Gary Shapley and — I don’t even know what Ziegler’s first name is — what Ziegler says. That’s not proof.

You know, he talks about, “Well, did the — where did the prosecutors get the concept of a speaking indictment?”

I’ve been a white-collar prosecutor for 18 years. I’ve been writing speaking indictments the entire time. We didn’t have to get the idea from Gary Shapley saying, “Oh, Biden — Biden was involved with drugs and escorts.”

Biden wrote about that in his book. I mean, we could read about it in the book. America can read about it in the book. You don’t have to watch some obscure pundit on some podcast I’ve never heard of talk about it

So, I mean, this is as weak, as factless as the vindictive selective motion was. This one is even worse, because here, they can’t even articulate a theory of causation. It’s just these guys are hyenas, baying at the moon, and that must have had something to do with us, and there’s simply no proof of it.

Wise does something he and Derek Hines have done over and over: Make up claims that Lowell has insulted them, when instead Lowell has insulted the Republicans targeting Hunter (in the Delaware hearing, Hines also falsely claimed that Lowell was trying to delay the trial).

Then, Wise totally reframes Lowell’s argument, shifting Lowell’s focus to things that happened in May to “our decision-making” that happened in December. That wasn’t what Lowell was arguing, at all.

There may be no proof that Gary Shapley and Joseph Ziegler had any influence on the decision to charge Hunter with precisely the crimes they demanded he be charged with. But as I’ve noted, the proof that they were the dominoes that started the reversal of David Weiss’ initial prosecution decision is in Thomas Sobocinski’s still-unreleased transcript, which describes how Shapley’s May appearances led to threats and stalking of the investigative team. There’s proof. It’s just that everyone is withholding it from Hunter.

Then, for good measure, Wise suggests that it would be myopic to suggest that the non-stop focus on Hunter Biden on Fox News has led people outside of DC to know who Hunter Biden is.

And then — this is the most amazing thing — Leo Wise claimed that, “America can read about it’ — a reference to both drugs and use of escorts — “in the book.”

Nope. There’s one mention of an escort (as a sex worker) in the book — but it’s a description of a way to get drugs. There’s lots of mention of clubs in the book, but not sex clubs. The indictment mentions strippers twice, but only as one of the kind of human detritus a junkie hangs out with.

thieves, junkies, petty dealers, over-the-hill strippers, con artists, and assorted hangers-on,

[snip]

my merry band of crooks, creeps, and outcasts

[snip]

An ant trail of dealers and their sidekicks rolled in and out,

[snip]

Their stripper girlfriends invited their girlfriends, who invited their boyfriends.

Nevertheless, Wise suggested he got his focus — and false suggestion that the women payments to whom Hunter allegedly wrote off improperly were sex workers –from Hunter’s book rather than Ziegler’s obsession with them (or watching Fox News or accessing public content attributed to the laptop).

Remember, Weiss’ team was so excited to include a payment to an exotic dancer in the indictment that they appear to have gotten the date wrong (as I suggested, this may mean that prosecutors didn’t do enough due diligence on what happened to Hunter’s Venmo account after two new devices accessed it in different cities at almost the same time).

Wise did so in a passage where he called Lowell’s motion “factless.” He did so in a hearing where he pounded the table, pretended to be a victim, and used the old “pound the table adage.”

And Judge Mark Scarsi appears to have adopted Weiss’ false claim about escorts being in the book when he said that, “Defendant himself brought notoriety to his conduct though the publication of a memoir.”

I get it: All three parties involved here have been caught making factual errors. Abbe Lowell claimed that public reports of the threats David Weiss faced were death threats and also misstated the timing of threats Trump made. Judge Scarsi claimed that an email said only the parties were involved in revising the diversion agreement, when the email in question said that Probation was involved. And Weiss’ team claimed sawdust is cocaine.

I get it. Much of Wise’s bluster is just totally banal prosecutorial dickishness. Leo Wise has been relying on prosecutorial dickishness for a very long time, at least since the prosecution of Joseph Nacchio bulldozed through Nacchio’s claim that he was prosecuted because he refused to let Qwest participate in Stellar Wind. It works! Especially with judges like Scarsi!

But this is the second time Weiss’ team has made a claim about Hunter’s memoir that was inaccurate (the other being a claim that the state of Hunter’s addiction in February 2019 after ketamine treatment exacerbated it was the state of his addiction when he purchased a gun in October 2018) even while arguing that the memoir is what distinguishes Hunter from other memoir writers like Roger Stone. That, along with the sawdust error and the belated warrant to search the laptop for materials supporting the gun crime raise real questions about what these prosecutors did do before obtaining these indictments. They don’t appear to have read the memoir, they don’t appear to have reviewed the actual laptop, they never indexed the laptop.

Abbe Lowell may not have proved his case that the IRS agents were the dominoes here. I don’t dispute Scarsi’s judgement that the standard here is incredibly high and Lowell didn’t meet it.

But if Weiss’ team didn’t get their sex worker obsession and errors from Ziegler and Shapley, the alternatives — given the evidence that they didn’t look where such evidence is known to be in hand — are actually worse. That is, it may well be they didn’t get their sex worker obsession from Ziegler. Does that mean they got it from Rudy Giuliani?

How Mark Scarsi Post Hoc Dismantled Abbe Lowell’s Juicy Timeline

Update: The day I wrote this post, Judge Scarsi denied Abbe Lowell’s motion to supplement the record on procedural grounds. 

Aside from his opinion on the diversion agreement — which gets weirder and weirder the more I look at it — Judge Mark Scarsi’s denials of the seven other Hunter Biden motions to dismiss were totally in line with precedent and my own expectations of what Scarsi would do.

To each of what I called the technical motions to dismiss, Judge Scarsi left it to the jury to decide. Scarsi relied on prior rulings on past Special Counsel appointments to deem David Weiss’ appointment legal. And for the Selective and Vindictive claim and the Egregious Misconduct claim, Scarsi ruled that the standard for dismissal is extremely high and Hunter Biden didn’t reach it.

Ordinarily, no judge would be reversed by ruling in such a fashion. All of his decisions are the easy out based on precedent — the cautious approach.

But it’s on the last two — the ones where all Judge Scarsi had to say was that the standard was super high — where he may have provided surface area for attack on appeal.

This post got overly long so here’s a map.

First, I lay out how Judge Scarsi claims to be demanding a laudably rigorous standard of evidence and procedure. Then, I show how in one of his correct fact checks of Abbe Lowell, Scarsi ends up providing more focus on the threats David Weiss faced, while debunking that Weiss testified they were death threats; that’s a topic on which Leo Wise provided wildly misleading testimony. I next look at how Scarsi claims to adopt a standard on the influence the IRS leaks had throughout the period of the prosecution, but ultimately only reviews whether those leaks had an effect on the grand jury (the standard Weiss wanted that Scarsi said he did nto adopt). Then I lay out two 9th Circuit opinions via which Scarsi accuses Lowell’s timeline argument to be a post hoc argument. Finally, I show how even while Scarsi fact checks some of Lowell’s claims, elsewhere he arbitrarily changes the timeline or ignores key parts of it. This last bit is the most important part, though it builds on the earlier parts, so skip ahead and read that. Finally, I note that Abbe Lowell may have erred by failing to put details about the Alexander Smirnov before Judge Scarsi.

A laudably hard grader

Ironically, that surface area arises, in significant part, from Scarsi’s attempted attentiveness, which I hailed a few weeks ago when he offered David Weiss a chance to respond to concerns that he was arbitraging (my word) his SCO appointment.

Scarsi’s attentiveness carries over to this opinion.

Once upon a time I was known as a hard grader and so I genuinely appreciate Scarsi’s attention to detail. I think he raises a number of good points about Abbe Lowell’s failure to meet Scarsi’s insistence on procedural rigor and factuality.

On the first part, for example, many reporters had claimed that Scarsi scolded Lowell at the motions hearing that he had no evidence (I’m still working on getting a transcript from Scarsi’s court reporter).

As this opinion makes clear, that was, first and foremost, a comment on the fact that Lowell had not submitted a declaration to attest to the authenticity of his citations.

As the Court stated at the hearing, Defendant filed his motion without any evidence. The motion is remarkable in that it fails to include a single declaration, exhibit, or request for judicial notice. Instead, Defendant cites portions of various Internet news sources, social media posts, and legal blogs. These citations, however, are not evidence. To that end, the Court may deny the motion without further discussion. See Fed. R. Crim. P. 47(b) (allowing evidentiary support for motions by accompanying affidavit); see also C.D. Cal. R. 7-5(b) (requiring “[t]he evidence upon which the  moving party will rely in support of the motion” to be filed with the moving papers); C.D. Cal. Crim. R. 57-1 (applying local civil rules by analogy); cf. C.D. Cal. Crim. R. 12-1.1 (requiring a declaration to accompany a motion to suppress).

In at least one place, Scarsi even makes the same criticism of prosecutors, for not submitting the tolling agreements on which they relied with such a declaration.

This is a procedural comment, not an evidentiary one. It is a totally fair comment from a judge who, parties before him should understand, would insist on procedural regularity. He’s a hard grader.

That said, Scarsi’s claim that Lowell submitted no evidence is factually incorrect on one very significant point: In Lowell’s selective prosecution motion, he incorporated the declaration and exhibits included with the diversion agreement motion, which is cited several more times.

3 The extensive back-and-forth negotiation between the U.S. Attorney’s Office and Mr. Biden’s counsel regarding the prosecution’s decision to resolve all investigations of him is discussed in the declaration of Christopher Clark filed currently with Mr. Biden’s Motion to Dismiss for Immunity Conferred by His Diversion Agreement. (“Clark Decl.”)

So the record of the plea negotiations — an utterly central part of these disputes — did come in under the procedural standards Scarsi justifiably demanded. Even if you adopt Scarsi’s procedural demands, those records of how the plea deal happened are evidence before Scarsi.

Given Scarsi’s procedural complaint, though, it’s not entirely clear what the procedural status of this complaint is. As noted, Lowell did submit a declaration attesting to the authenticity of these documents before Scarsi unexpectedly ruled 16 days earlier than he said he would. Scarsi has not rejected it.

In any case, Scarsi described that he dug up and reviewed “all the cited Internet materials” Lowell cited himself and ruled based on that.

In light of the gravity of the issues raised by Defendant’s motion, however, the Court has taken on the task of reviewing all the cited Internet materials so that the Court can decide the motion without unduly prejudicing Defendant due to his procedural error.21

Having done that, though, Scarsi accuses Lowell of misrepresenting his cited sources.

21 However, Defendant mischaracterizes the content of several cited sources. The Court notes discrepancies where appropriate.

He’s not wrong! And honestly, this is the kind of fact checking I appreciate from Scarsi.

It’s the same ethic that led me to check Judge Scarsi’s claims about an exhibit that he misrepresented in his diversion agreement opinion, claiming that “the parties changed” the diversion agreement when in fact the exhibit said, “The parties and Probation have agreed to revisions to the diversion agreement,” arguably recording the agreement from Probation that, under Scarsi’s ruling, would trigger an obligation that prosecutors adhere to the immunity agreement he says is contractually binding.

It’s the same ethic that led me to check Judge Scarsi’s citation of Klamath v Patterson, only to discover he had truncated his citation, leaving out the bolded language below that would suggest this agreement is ambiguous and therefore should be interpreted in Hunter Biden’s favor.

The fact that the parties dispute a contract’s meaning does not establish that the contract is ambiguous; it is only ambiguous if reasonable people could find its terms susceptible to more than one interpretation. [my emphasis]

I genuinely do appreciate the fact that Scarsi tests the claims people make before him.

I do too.

The threats that at least five witnesses have described were real and likely incited by the IRS agents but may not have been death threats

One fact check of note that Scarsi raises, for example, pertains to Lowell’s citation of Politico’s coverage of David Weiss’ testimony, including the Special Counsel’s admission that he was concerned for the safety of his family. Scarsi notes that Politico doesn’t report, as Lowell claimed, that “Mr. Weiss reported he and others in his office faced death threats and feared for the ‘safety’ of his team and family.”

In a closed-door interview with Judicial Committee investigators in November 2023, Mr. Weiss reportedly acknowledged that “people working on the case have faced significant threats and harassment, and that family members of people in his office have been doxed.” Betsy Woodruff Swan, What Hunter Biden’s prosecutor told Congress: Takeaways from closed-door testimony of David Weiss, Politico (Nov. 10, 2023, 2:05 p.m.), https://www.politico.com/news/2023/11/10/ hunter-biden-special-counsel-takeaways-00126639.34

34 Although Mr. Weiss reportedly admitted “he is . . . concerned for his family’s safety,” Woodruff Swan, supra, this outlet did not report that Mr. Weiss “and others in his office faced death threats.” (Selective Prosecution Mot. 7.)

Scarsi is right. Those words, “death threats,” are not in the story. “Significant threats,” but not “death threats.”

Nor is it in Weiss’ still unreleased transcript, in which Weiss twice used the word “intimidated” when decrying such threats.

It’s not in Assistant Special Agent in Charge Ryeshia Holley’s testimony, where she described precautions taken for at least one of her FBI agents and for prosecutor Lesley Wolf after they were stalked and received comments of “a concerning nature.” It’s not in Lesley Wolf’s own testimony; rather, she described delaying her departure from DOJ because she believed she’d be safer if she remained a DOJ employee. Wolf also explained how her family had, “changed the way we do some things at home because of” the threats and stalking. A specific description of death threats is likewise not in the testimony of Los Angeles US Attorney Martin Estrada — effectively, a local colleague of Judge Scarsi — when he described working with the US Marshals because of “an uptick [of threats and hate mail] when the news came out in the spring regarding the Hunter Biden investigation,” including dozens of hate messages, some using the N-word and others using “certain derogatory terms reserved for Latinos.”

It’s not even in Ken Dilanian’s report (which Lowell did not cite), based off this congressional testimony as well independent reporting, describing how prosecutors and FBI agents have been the target of threats because they weren’t tough enough on Hunter Biden.

Prosecutors and FBI agents involved in the Hunter Biden investigation have been the targets of threats and harassment by people who think they haven’t been tough enough on the president’s son, according to government officials and congressional testimony obtained exclusively by NBC News.

It’s part of a dramatic uptick in threats against FBI agents that has coincided with attacks on the FBI and the Justice Department by congressional Republicans and former President Donald Trump, who have accused both agencies of participating in a conspiracy to subvert justice amid two federal indictments of Trump.

The threats have prompted the FBI to create a stand-alone unit to investigate and mitigate them, according to a previously unreleased transcript of congressional testimony.

None of these sources — and except for Dilanian, who has proven unreliable in the past, I’m working from official sources — mention death threats. Whether they mention influence from the IRS agents’ public campaign is a different issue.

Dilanian insinuated there was a tie between the threats against Wolf and the claims by Gary Shapley and Joseph Ziegler that Wolf “ma[de] decisions that appeared favorable to Biden.” US Attorney Estrada — Scarsi’s quasi colleague in Los Angeles — suggested a temporal tie, but didn’t mention the IRS agents.

As I’ve noted, though, Special Agent in Charge Thomas Sobocinski was more direct. When asked what he meant when he said that he and David Weiss had “both acknowledged that [Gary Shapley’s public comments were] there and that it would have had[,] it had an impact on our case,” Sobocinski described the effect to be the stalking of not just members of the investigative team, but also their family members.

None of this documented testimony described death threats. Scarsi is right on that point! The near unanimity that the prosecution team faced doxing and in some cases threats doesn’t describe the kind of threats, though US Marshals had to get involved on both coasts and some sources attribute those threats to the IRS agents, in Sobocinski’s case, explicitly.

That said, most of this documented testimony is unavailable to Hunter Biden’s lawyers, because Jim Jordan won’t release it, and because instead of sharing it, David Weiss sat in Scarsi’s own courtroom watching Leo Wise make claims about the impact of the IRS agents’ leaks that may be technically true as far as Wise’s experience (it’s not Leo Wise’s family being followed, presumably), but hides the impact on the prosecution team before Wise joined the team — the impact that Sobocinski described to Congress.

So I admire Judge Mark Scarsi for holding Abbe Lowell to the documentary record. As a former hard grader, I think such accuracy is important.

But Scarsi’s complaints about Lowell’s misrepresentation of the reported record about these threats also serve to highlight what David Weiss (and Jim Jordan) are withholding from Hunter Biden and his attorney, even while misleading Scarsi about it.

Incidentally but importantly, because Abbe Lowell relied on a NYPost story for the Estrada citation, he relied on a source that presented only part of what the LA US Attorney said about his team’s analysis of why they recommended against partnering with Weiss on a Hunter Biden prosecution, the part focusing on how resource-strapped he was and how there were many far more urgent crimes to prosecute in LA.

Estrada also said there was an evidentiary part of the discussion.

We only prosecute cases where we believe a Federal offense has been committed and where we believe there will be sufficient admissible evidence to prove a case beyond a reasonable doubt to an unbiased trier of fact.

But of course, that (plus the three underlying reports recommending against prosecution) are another thing Weiss has withheld.

Judge Scarsi adopts — then abandons — a standard on IRS leaks

Which leads me to one of three things that — on top of Scarsi’s miscitation of that exhibit recording involvement from probation in revising the diversion agreement and his truncation of a relevant precedent to give it the opposite meaning — I think may provide more surface area for attack on appeal.

It pertains to Judge Scarsi’s ruling on Hunter’s outrageous conduct motion, in which Abbe Lowell argued that the extended media campaign from the IRS agents had resulted in a grave due process violation.

Scarsi makes a big show of adopting a different standard than the one David Weiss — the guy who reportedly sat in Scarsi’s courtroom and saw Leo Wise make a claim that was not true as it applied to himself — advocated: that the charges themselves “result from” the outrageous government conduct at issue.

48 The Government advances a rule that “the defendant must show that the charges resulted from” the outrageous government conduct to show a due process violation. (Outrageous Conduct Opp’n 4–9.) Though the Government’s presentation is persuasive, the Court stops short of adopting that rule. It is true that courts often consider the doctrine in contexts where the defendant asserts the offending government conduct played a causal role in the commission, charge, or conviction of a crime. (Id. at 7–8 (summarizing Russell, 411 U.S. 423; Pedrin, 797 F.3d 792; United States v. Combs, 827 F.3d 790 (8th Cir. 2016); Stenberg, 803 F.2d 422; United States v. Garza-Juarez, 992 F.2d 896 (9th Cir. 1993); and Marshank, 777 F. Supp. 1507).) And the Government’s proposed rule aligns with the proposition that “the outrageous conduct defense is generally unavailable” where the crime is in progress or completed before the government gets involved. Stenberg, 803 F.2d at 429. But the Ninth Circuit teaches that there is no one-size-fits-all rule for application for the doctrine, see Black, 733 F.3d at 302 (“There is no bright line dictating when law enforcement conduct crosses the line between acceptable and outrageous, so every case must be resolved on its own particular facts.” (internal quotation marks omitted)), and nothing in the Supreme Court’s acknowledgment of the doctrine mandates that the offending misconduct play some causal role in the commission of the crime or the levying of charges, see Russell, 411 U.S. at 431–32. The Court takes the Second Circuit’s cue and leaves the door open to challenges based on “strategic leaks of grand jury evidence by law enforcement.” Walters, 910 F.3d at 28. [my emphasis]

Elsewhere, addressing a slightly different argument from Lowell, Scarsi describes that the standard is “substantially influenc[ing] the grand jury’s decision to indict, or if there is grave doubt the decision to indict was free from the substantial influence of such violations.” [my emphasis]

Exercise of supervisory authority to dismiss an indictment for wrongful disclosure of grand jury information is not appropriate unless the defendant can show prejudice. Walters, 910 F.3d at 22–23 (citing Bank of N.S., 487 U.S. at 254–55). In other words, “dismissal of the indictment is appropriate only if it is established that the violation substantially influenced the grand jury’s decision to indict, or if there is grave doubt that the decision to indict was free from the substantial influence of such violations.” Bank of N.S., 487 U.S. at 256 (internal quotation marks omitted).

Scarsi claims to adopt a standard in which egregious government misconduct could have an influence elsewhere, besides just causing the charges against the defendant, as Weiss wants the standard to be. So Scarsi says the standard doesn’t require a direct influece on the grand jury.

Then he abandons that standard.

In his ruling, Scarsi ultimately adopts Weiss’ standard of causing a prejudicial effect on the grand jury’s decision.

Defendant offers no facts to suggest that the information Shapley and Ziegler shared publicly had any prejudicial effect on the grand jury’s decision to return an indictment. That Shapley and Ziegler’s public statements brought notoriety to Defendant’s case is not enough to show prejudice.50

50 As noted previously, Defendant himself brought notoriety to his conduct though the publication of a memoir. [my emphasis]

In the same breath, he offers up a gratuitous representation that Hunter’s complaint was about notoriety and not, along with the threats to prosecutors’ family members, the ability to get a fair trial.

Judge Scarsi claims he was not going to exclude the impact that leaks might have earlier in the process; he’s referencing a case in which the offending federal official leaked documents for 16 months. But ultimately, he adopts Weiss’ focus on the actual grand jury decision to indict.

Now, as I suggested above, with regards to the evidence in front of Scarsi, his opinion is still totally sound, because Weiss is withholding precisely the proof of influence that Leo Wise claims doesn’t exist. But when Sobocinski’s testimony becomes public — whether via Hunter Biden’s IRS lawsuit, a change in Congress, or discovery challenges launched by Hunter himself — Scarsi’s adoption (then abandonment) of the possibility that strategic leaks could be basis for dismissal could become important. The standard is, as Scarsi says, still very very high. But the evidence in question attributes the stalking and threats against investigative personnel, including Weiss himself, to Shapley’s leaks. The IRS leaks caused the threats which immediately preceded Weiss reneging on the plea deal.

Get Me Roger Stone

As noted, in his discussion of the IRS leaks, Scarsi includes a gratuitous swipe that Hunter Biden’s memoir created notoriety. In doing so, Scarsi probably has adopted the prosecution’s continued misrepresentation of what the memoir does and does not do.

As to the crimes alleged in both the tax indictment and gun indictment, Hunter’s memoir couldn’t have brought notoriety to his conduct from the memoir. As Lowell correctly pointed out, Hunter’s memoir doesn’t describe failing to pay his taxes or buying a gun.

Hunter’s notoriety substantially comes from release of his private files by the same Donald Trump attorney who solicited dirt about Hunter from known Russian spies. Rudy Giuliani’s leaks are before Scarsi in several forms, in articles describing Trump’s politicization of them.

And the IRS agent claims — virtually all of which have been debunked or explained — were different in kind, because they were the kind of claims that could, and did, gin up threats against investigators rather than just Hunter himself. The IRS agents targeted David Weiss and Lesley Wolf. Hunter’s memoir didn’t do that.

Finally particularly in the context of the discussion about the IRS agent, Scarsi seems to adopt this swipe from prosecutors. But I think it overstates what the memoir shows and certainly overstates what is before Scarsi. The two longest quotes from the memoir in the indictment focus on the riff raff being a wealthy junkie attracts. For example, the passages of the memoir before Scarsi refer to strippers but does not say Hunter slept with them.

thieves, junkies, petty dealers, over-the-hill strippers, con artists, and assorted hangers-on,

[snip]

my merry band of crooks, creeps, and outcasts

[snip]

An ant trail of dealers and their sidekicks rolled in and out,

[snip]

Their stripper girlfriends invited their girlfriends, who invited their boyfriends.

This is important because both Shapley and Ziegler focused on prostitutes in their testimony to Congress (indeed, it’s how Ziegler predicated his side of the investigation). Worse still, Ziegler falsely called Lunden Roberts (an exotic dancer when Hunter met her) — who, as the recipient of the best-documented improper write-off from Hunter, may be a witness at trial — a prostitute before he corrected himself. So the IRS agents, not the memoir, pushed one aspect highlighted in the indictment that is not in the book: the sex workers. Remember: the indictment itself conflates women with prostitutes (and appears to ignore a male who tried to insinuate himself into Hunter’s life as an assistant); the same conflation Ziegler engaged in appears in the indictment.

Which brings me back to Weiss’ false claims about memoirs and Roger Stone.

As a reminder, the selective comparator is not a huge part of Hunter Biden’s argument. He focused on the way a political campaign that led to stalking and threats against prosecutors led David Weiss to abandon a plea deal.

But Stone is in there. And in suggesting that Stone is not a fair comparator, Judge Scarsi punts on a number of things. For example, he admits that DOJ accused Stone, via civil complaint, of defrauding the United States.

The Stones intended to defraud the United States by maintaining their assets in Drake Ventures’ accounts, which they completely controlled, and using these assets to purchase the Stone Residence in the name of the Bertran Trust.

But Scarsi seems to dismiss the intent involved in creating alter egos to hide money from the IRS because the civil resolution of the complaint led to voluntary dismissal of the fraud claim.

Nothing in the record of the civil cases, let alone in the circumstances of the “countless others” the Government declines to prosecute, (Selective Prosecution Mot. 19), provides an inference that these individuals are similarly situated to Defendant with regard to indicia of criminal intent. Obviously, Stone and Shaughnessy were civil cases; intent was not a material element of the nonpayment counts at issue. See generally Compl., United States v. Stone, 0:21-cv60825-RAR (S.D. Fla. April 16, 2021), ECF No. 1; 37

37 Intent was an element to a claim for fraudulent transfer the United States brought against the Stones, which the United States eventually dismissed voluntarily. Joint Mot. for Entry of Consent J. 1, United States v. Stone, 0:21-cv-60825-RAR (S.D. Fla. July 15, 2022), ECF No. 63.

But that’s part of the point! IRS used the threat of fraud and evasion charges to get the bills paid, and they dismissed what could have been a separate criminal charge — one they allege was done to evade taxes — once they got their bills paid. Hunter didn’t get that chance, in part because he paid his taxes two years before the charges filed against him.

Stone allegedly evaded taxes for two tax years, not one, and unlike Hunter, had not paid when the legal proceeding was filed against him.

And Scarsi doesn’t address the full extent of Lowell’s rebuttal to Weiss’ attempt to minimize Stone; he doesn’t note they’ve been caught in a false claim.

But adopting Defendant’s position would ignore the numerous meaningful allegations about Defendant’s criminal intent that are not necessarily shared by other taxpayers who do not timely pay income tax, including the Shaughnessys and Stones. (See Selective Prosecution Opp’n 2–4
(reviewing allegations).) Without a clear showing that the evidence going to criminal intent “was as strong or stronger than that against the defendant” in the cases of the Shaughnessys, the Stones, and other comparators, the Court declines to infer discriminatory effect. United States v. Smith, 231 F.3d 800, 810 (11th Cir. 2000).38

For example, Scarsi doesn’t mention, at all, that the other Stone crimes invoked in the DOJ complaint against Stone posed real rather than hypothetical danger to a witness and a judge and were invoked as his motive in the complaint, not even though that was part of the rebuttal that Weiss attempted to make. He doesn’t mention that the complaint against Stone alleges that Stone used his Drake account to pay associates and their relatives, one of the allegations included in the Hunter indictment, nor that it describes how instead of paying taxes the Stone’s enjoyed a lavish lifestyle, again repeating allegations in the Hunter indictment.

32. The Stones used Drake Ventures to pay Roger Stone’s associates, their relatives, and other entities without providing the required Forms 1099-MISC (Miscellaneous Income) or
W-2s (Wage and Tax Statement).

[snip]

[T]he Stones’ use of Drake Ventures to hold their funds allowed them to shield their personal
income from enforced collection and fund a lavish lifestyle despite owing nearly $2 million in
unpaid taxes, interest and penalties.

Scarsi does recognize, in passing, to how Weiss falsely claimed that Stone hadn’t written a memoir when it was actually more closely tied to the complaint than Hunter’s.

38 In his reply, Defendant proffers that Mr. Stone “wrote a memoir about his criminal actions,” as Defendant is alleged to have done. (Selective Prosecution Reply 6 (emphasis removed).) That memoir is not before the Court, and its value as evidence in a putative criminal tax evasion case against Mr. Stone is unestablished.

Now, Scarsi is absolutely right on this point as well: Abbe Lowell should have ponied up for Stone’s reissued Memoir so Scarsi could read it. But some of the evidence of the tie is before him.

Judge Scarsi might include Lowell’s link to my post among those that were not part of the record when he drafted this opinion — what he described as Lowell’s lack of evidence. But it was included among those for which Lowell submitted a declaration before Scarsi docketed his opinion (on which filing Scarsi has thus far taken no action). If Scarsi read all of Lowell’s sources as he claimed, it would be before him. (Welcome to my humble blog, Judge Scarsi!)

While my post did not link the memoir, it included a paragraph by paragraph description of the introduction that violated the gag order. I described how Stone, “Complains about his financial plight,” in this paragraph, which, like the tax complaint, ties Stone’s decision to stop paying taxes to the Mueller investigation:

Furthermore, my post did include a link to this filing, providing much of the correspondence regarding the reissue of the memoir. It includes, for example, Stone’s demand for an immediate wire payment because he owed others — people who worked on the book, but also likely potential witnesses in the Mueller investigation (for example, Kristin Davis, who was subpoenaed in that investigation and the January 6 investigation, was heavily involved in promotion of the book).

Stone was describing doing prospectively what the Hunter indictment alleges prospectively, payoffs to associates and their family members.

It also shows that Stone was paid, once in December 2018 and once in January 2019, to the Drake Ventures account that was used — per DOJ’s complaintwith the intent of defrauding the United States.

In unredacted form, those emails would provide one of just two of the kinds of information for which the tax indictment — as distinct from the gun indictment, which relies on it much more directly (though Weiss got his evidence wrong, again, and so misstates its value) — uses the memoir: To show income that could have gone to paying taxes.

158. In 2020, prior to when the Defendant filed the 2019 Form 1040, the Defendant’s agent received multiple payments from the publisher of his memoir and then transferred the following amounts to the Defendant’s wife’s account in the amounts and on the dates that follow:

a. $93,750 on January 21, 2020; and
b. $46,875 on May 26, 2020.

There was certainly enough in my post such that Scarsi didn’t have to infer that Stone’s two years of alleged invasion and fraud more closely mirror Hunter’s than he let on.

The comparison was never going to be the basis for dismissal. But because of the way Scarsi minimizes this, the comparison with another  “American [who] earn[s] millions of dollars of income in a four-year period and [wrote] a memoir allegedly memorializing criminal activity” will be ripe for inclusion in any appeal, particularly if — as I expect — Hunter’s team demonstrates at trial how prosecutors have mistaken a memoir of addiction as an autobiography, one that hurts their tax case as much as it helps.

Scarsi accuses Lowell of post hoc argument

As noted above, when Scarsi loudly accused Abbe Lowell of presenting no evidence to support his selective and vindictive prosecution claim at his motions hearing, he was making a procedural comment about the way Lowell laid out evidence that pressure from Republicans and the IRS agents led Weiss to renege on a plea deal and file the 9-count indictment before Scarsi.

Scarsi has not rejected Lowell’s belated filing with such a declaration, which leaves me uncertain about whether those materials are now (and therefore were) formally before Scarsi before he ruled, even if only minutes before.

For both the IRS challenge and the general selective and vindictive claim, Scarsi ruled that Lowell had not reached the very high bar for such things. As I noted above, that is the easy decision, one that would almost always be upheld on appeal. These are not, on their face, controversial decisions at all.

Where those decisions become interesting, in my opinion — or could become interesting if they were included along with the inevitable appeal of the weird immunity decision — is in how he rejected those claims.

At the hearing, Judge Scarsi asked Abbe Lowell if he had any evidence of vindictive prosecution besides the timeline laid out in his filing, which relies on all those newspaper articles. Lowell conceded the timeline is all he had, but that “it’s a juicy timeline.” (Wise and Hines both wailed that the description of all this impugns them, an act that is getting quite tired but seemed to work like a charm for Scarsi.)

At the hearing, Lowell reportedly included several things in this discussion:

  • The existence of an already agreed plea and diversion in June
  • Congressman Jason Smith’s efforts to intervene in the plea hearing
  • Leo Wise reneging at the plea hearing on earlier assurances there was no ongoing investigation into Hunter Biden, followed by Weiss’ immediate effort to strip all immunity from the diversion agreement
  • The resuscitation of the Alexander Smirnov allegations
  • A claim (that may reflect ignorance of some grand jury testimony) that, in the tax case, Weiss already had all the evidence in his possession that he had in June 2023 when he decided to pursue only misdemeanors
  • The fact that, in the gun case, Weiss didn’t pursue basic investigative steps (like getting a gun crimes warrant for the laptop content or sending the gun pouch to the lab to be tested for residue) until after charging Hunter
  • The subpoena to Weiss and his testimony just weeks before the tax indictment

In response to Lowell emphasizing these parts of the timeline — not a single one of which relies exclusively on news reports — the Judge who misused the phrase “beg the question” cited two Ninth Circuit precedents, neither of which Weiss relied on, to accuse Lowell of making a post hoc argument.

At best, Defendant draws inferences from the sequence of events memorialized in reporting, public statements, and congressional proceedings pertaining to him to support his claim that there is a reasonable likelihood he would not have been indicted but for hostility or punitive animus. As counsel put it at the hearing, “It’s a timeline, but it’s a juicy timeline.” But “[t]he timing of the indictment alone . . . is insufficient” to support a vindictiveness theory. Brown, 875 F.3d at 1240; see also United States v. Robison, 644 F.2d 1270, 1273 (9th Cir. 1981) (rejecting appearance-of-vindictiveness claim resting on “nothing more than the post hoc ergo propter hoc fallacy”). [links added]

Neither of these opinions are about timelines. Brown involves a case where someone already convicted of a federal weapons crime but awaiting trial in a state murder case escaped; after he made a declaration at his cellmate’s trial for escaping, he was charged himself for escaping. The Ninth Circuit ruled that was not vindictive because prosecutors got newly obtained evidence — his own declaration — with which to charge him for escaping.

Robison involves another case of newly discovered evidence. Several months after a state murder conviction was overturned and as he was appealing a charge for destroying a Federal building, he was charged with burning down a tavern. The court held a hearing (this was back in 1980, when such things were still done), and determined that the evidence implicating Robison in the tavern bombing post-dated his appeals.

Now, Weiss would argue (but curiously has always stopped well short of doing so) that he did get new evidence: He called a bunch of witnesses before a CA grand jury. Best as I can tell, the only thing Lowell has seen from that was testimony used in the warrant to search the laptop for gun crimes after the indictment. In neither LA nor in Delaware is Weiss arguing he got new information (while Weiss did serve a bunch of subpoenas for documents against Hunter, it’s not clear how many witness interviews were part of his apparently abandoned attempt to charge Hunter and his father with bribery). Unlike Jack Smith, Special Counsel Weiss appears not to be sharing all the grand jury testimony against Hunter.

But neither of these cases (as distinct from Bordenkircher and Goodwin) involve a prosecutor upping the ante on the same crimes as Weiss did. More importantly, they were offered to defeat Lowell’s claim of a timeline, a whole series of events. In response, Scarsi offers up cases that involve two (arguably, three with Robison) events.

Lowell’s timeline focuses closely on June and July, not December, and yet Scarsi adopts precedents that focus on the timing of an indictment, not a reneged plea.

I’m interested not so much that these citations are inapt (but they are). It’s what Scarsi does to dismantle Lowell’s timeline.

Scarsi corrects, and then fiddles with, and in two places, ignores the timeline

Scarsi is absolutely right that Hunter’s initial motion is a mess (remember that Lowell had asked for an extension in part because the lawyer responsible for these filings had a death in the family; I suspect that Scarsi had his opinion on this motion written before the hearing and possibly even before the reply). Scarsi makes much, correctly, of several details Lowell erroneously suggests immediately preceded the December tax indictment.

Moreover, Defendant appears to suggest that, after the deal in Delaware fell apart but before the filing of the indictment in this case, Mr. Trump “joined the fray, vowing that if DOJ does not prosecute Mr. Biden for more, he will ‘appoint a real special prosecutor to go after’ the ‘Biden crime family,’ ‘defund DOJ,’ and revive an executive order allowing him to fire Executive Branch employees at will.” (Id. at 7.) The comments he cites all predate the unraveling of the Delaware plea—if not even earlier, before the announcement of a plea.

But in correcting that error, Scarsi has noted (what the Delaware motion does note) that Trump’s attacks on Weiss were an immediate response to the publication of the plea agreement.

And that’s interesting, because Scarsi repeatedly fiddles with the timeline on his own accord.

For example, he starts the entire opinion by laying out what he claims is “a brief background of undisputed events leading up to the Indictment.” In it, he astonishingly declines to date the plea agreement — which was publicly docketed on June 20 — anytime before late July 2023.

By late July 2023, Defendant and the Government reached agreement on a resolution of the tax charges and the firearm charges memorialized in two separate agreements: a memorandum of plea agreement resolving the tax offenses, (Machala Decl. Ex. 3 (“Plea Agreement”), ECF No. 25-4), and a deferred prosecution agreement, or diversion agreement, addressing the firearm offenses, (Machala Decl. Ex. 2 (“Diversion Agreement”), ECF No. 25-3).

So for the opinion as a whole, Scarsi has simply post-dated events that unquestionably happened a month earlier. Much later in the opinion, however, Scarsi cites the evidence (accompanied by a declaration) that that decision happened in June.

On May 15, 2023, prosecutors proposed “a non-charge disposition to resolve any and all investigations by the DOJ of Mr. Biden.” (Clark Decl. ¶ 6.)26 After further discussions over the following month, Defendant and the Government coalesced around a deal involving a deferred prosecution agreement and a plea to misdemeanor tax charges. (See generally id. ¶¶ 7–39.)

Having post-dated the actual prosecutorial decision filed to docket in June, Scarsi repeatedly says that Hunter doesn’t have any way of knowing when any prosecutorial decisions happened. In one place, he makes the fair assertion that Hunter hasn’t substantiated when particular decisions were made.

Defendant asserts that a presumption of vindictiveness arises because the Government repeatedly “upp[ed] the ante right after being pressured to do so or Mr. Biden trying to enforce his rights.” (Selective Prosecution Mot. 16.) Defendant alleges a series of charging decisions by the prosecution, (id. at 4–7), but the record does not support an inference that the prosecutors made them when Defendant says they did.

[snip]

But the fact of the matter is that the Delaware federal court did not accept the plea, the parties discussed amendments to the deal they struck toward satisfying the court’s concerns, and the deal subsequently fell through.

In another, he makes the ridiculous assertion that Hunter has not substantiated when any prosecutorial decisions were made.

Defendant asserts that the Government made numerous prosecuting decisions between 2019 and 2023 without offering any substantiating proffer that such decisions were made before the Special Counsel decided to present the charges to the grand jury, let alone any proffer that anyone outside the Department of Justice affected those decisions, let alone any proffer that any of those decisions were made based on unjustifiable standards.

Hunter presented authenticated, undisputed proof regarding when one prosecutorial decision was made, and it was made in June, not July, where (in one place) Scarsi misplaces it.

Similarly, Scarsi distorts the timeline when Leo Wise reneged on the assurances that there was no further investigation. He admits that prosecutors withdrew all immunity offer in August, but dates it to after the plea hearing, not before (as represented by Wise’s comment about an ongoing investigation).

On July 26, 2023, the district judge in Delaware deferred accepting Defendant’s plea so the parties could resolve concerns raised at the plea hearing. (See generally Del. Hr’g Tr. 108–09.) That afternoon, Defendant’s counsel presented Government counsel a menu of options to address the concerns. (Def.’s Suppl. Ex. C, ECF No. 58-1.)31 On July 31, Defendant’s counsel and members of the prosecution team held a telephone conference in which they discussed revising the Diversion Agreement and Plea  Agreement. The Government proposed amendments and deletions. (See Lowell Decl. Ex. B, ECF No. 48-3.) On August 7, counsel for Defendant responded in writing to these proposals, signaling agreement to certain modifications but resisting the Government’s proposal to modify the provision of the Diversion Agreement contemplating court adjudication of any alleged breaches and to delete the provision conferring immunity to Defendant. Defense counsel took the position that the parties were bound to the Diversion Agreement. (Id.) On August 9, the Government responded in writing, taking the position that the Diversion Agreement was not in effect, withdrawing its proposed modifications offered on July 31 in addition to the versions of the agreements at play on July 26, and signaling that it would pursue charges. (Def.’s Suppl. Ex. C.)

In the section of his opinion discussion selective prosecution, he accepts that the IRS agents first started leaking in May 2023, but finds — having heard Leo Wise’s misleading claim that he knew of no effect the disgruntled IRS agents had and having also acknowledged that Weiss himself testified that he was afraid for his family’s safety (but leaving it out of all his timeline discussions) — that Lowell presented no evidence that Shapley and Ziegler affected Weiss’ decision-making.

Meanwhile, in late May, Internal Revenue Service agents spoke to news media and testified before the Ways and Means Committee of the United States House of Representatives about their involvement in the tax investigation of Defendant. E.g., Jim Axelrod et al., IRS whistleblower speaks: DOJ “slow walked” tax probe said to involve Hunter Biden, CBS News (May 24, 2023, 8:31 p.m.), https://www.cbsnews.com/news/irs-whistleblower-tax-probe-hunter-biden/ [https://perma.cc/7GQF-2HJA]; Michael S. Schmidt et al., Inside the Collapse of Hunter Biden’s Plea Deal, N.Y. Times (Aug. 19, 2023), https://www.nytimes.com/2023/08/19/us/politics/inside-hunter-biden-pleadeal.html [https://perma.cc/6CVJ-KYDK].27

27 Defendant asserts that the IRS agents’ actions prompted then-United States Attorney David Weiss to change his position away from a non-charge disposition to the plea the parties ultimately contemplated, (Selective Prosecution Mot. 5 & nn.11–12), but the support for this assertion apparently is his own attorneys’ and the IRS agents’ speculation as reported by the New York Times, see Schmidt et al., supra (“Mr. Biden’s legal team agrees that the I.R.S. agents affected the deal . . . .”). For the same story, Mr. Weiss declined to comment, and an unnamed law enforcement official disputed the assertion. Id.

Later in that section, having made his big show of rejecting Weiss’ bid to limit the consideration of IRS influence just to grand jury decisions but then flip-flopped, Scarsi decides that he’s not going to look too closely at this timing (for the egregious violation motion).

43 The particulars of when and how Defendant asserts Shapley and Ziegler made these disclosures, and what their contents were, are immaterial to this Order. The Court declines to make any affirmative findings that Shapley and Ziegler violated these rules given the pending civil case Defendant brought against the IRS related to the alleged disclosures, see generally Complaint, Biden v. U.S. IRS, No. 1:23-cv-02711-TJK (D.D.C. Sept. 18, 2023), ECF No. 1, and the potential for criminal prosecution of such violations. But the Court need not resolve whether their public statements ran afoul of these nondisclosure rules to decide the motion.

That — plus Wise’s misleading comment — is how Scarsi dismisses Lowell’s claim that the IRS agents had a role in killing the plea deal.

(“There is no doubt that the agents’ actions in spring and summer 2023 substantially influenced then-U.S. Attorney Weiss’s decision to renege on the plea deal last summer, and resulted in the now-Special Counsel’s decision to indict Biden in this District.”).) His theory rests on a speculative inference of causation supported only by the sequence of events.

Meanwhile, his efforts to dismiss the import of Congress’ and Trump’s earlier intervention is uneven. Scarsi’s treatment of this passage from Hunter’s motion deserves closer consideration:

Mr. Biden agreed to plead guilty to the tax misdemeanors, but when the plea deal was made public, the political backlash was forceful and immediate. Even before the Delaware court considered the plea deal on July 26, 2023, extremist Republicans were denouncing it as a “sweetheart deal,” accusing DOJ of misconduct, and using the excuse to interfere with the investigation.13 [2] Leaders of the House Judiciary, Oversight and Accountability, and Ways and Means Committees (“HJC,” “HOAC,” and “HWMC,” respectively) opened a joint investigation, and on June 23, HWMC Republicans publicly released closed-door testimony from the whistleblowers, who, in the words of Chairman Smith, “describe how the Biden Justice Department intervened and overstepped in a campaign to protect the son of Joe Biden by delaying, divulging and denying an ongoing investigation into Hunter Biden’s alleged tax crimes.”14 Then, one day before Mr. Biden’s plea hearing, Mr. Smith tried to intervene [4] to file an amicus brief “in Aid of Plea Hearing,” in which he asked the court to “consider” the whistleblower testimony.15

13 Phillip Bailey, ‘Slap On The Wrist’: Donald Trump, Congressional Republicans Call Out Hunter Biden Plea Deal, USA Today (June 20, 2023), https://www.usatoday.com/.

14 Farnoush Amiri, GOP Releases Testimony Alleging DOJ Interference In Hunter Biden Tax Case, PBS (June 23, 2023), https://www.pbs.org/.

15 United States v. Biden, No. 23-mj-00274-MN (D. Del. 2023), DE 7. [brackets mine]

Here’s how Scarsi treats this passage laying out what happened between the publication of the plea and the failed plea hearing:

The putative [sic] plea deal became public in June 2023. Several members of the United States Congress publicly expressed their disapproval on social media. The Republican National Committee stated, “It is clear that Joe Biden’s Department of Justice is offering Hunter Biden a sweetheart deal.” Mr. Trump wrote on his social media platform, “The corrupt Biden DOJ just cleared up hundreds of years of criminal liability by giving Hunter Biden a mere ‘traffic ticket.’” Phillip M. Bailey, ‘Slap on the wrist’: Donald Trump, congressional Republicans call out Hunter Biden plea deal, USA Today (June 20, 2023, 11:17 a.m.), https://www.usatoday.com/story/news/politics/2023/06/20/donald-trump-republicans-react-hunter-biden-plea-deal/ 70337635007/ [https://perma.cc/TSN9-UHLH]. 28 On June 23, 2023, the Ways and Means Committee of the United States House of Representatives voted to publicly disclose congressional testimony from the IRS agents who worked on the tax investigation. Jason Smith, chair of the Ways and Means Committee, told reporters that the agents were “[w]histleblowers [who] describe how the Biden Justice Department intervened and overstepped in a campaign to protect the son of Joe Biden by delaying, divulging and denying an ongoing investigation into Hunter Biden’s alleged tax crimes.” Farnoush Amiri, GOP releases testimony alleging DOJ interference in Hunter Biden tax case, PBS NewsHour (June 23, 2023, 3:58 p.m.), https://www.pbs.org/newshour/politics/gop-releases-testimony-alleging-dojinterference-in-hunter-biden-tax-case.29 One day before the plea hearing in the United States District Court for the District of Delaware, Mr. Smith moved to file an amicus curiae brief imploring the court to consider the IRS agents’ testimony and related materials in accepting or rejecting the plea agreement. Mem. of Law in Support of Mot. for Leave to File Amicus Curiae Br., United States v. Biden, No. 1:23-mj-00274-MN (D. Del. July 25, 2023), ECF No. 7-2; Amicus Curiae Br., United States v. Biden, No. 1:23-mj-00274-MN (D. Del. July 25, 2023), ECF No. 7-3.30

28 This source does not stand for the proposition that “extremist Republicans were [1] . . . using the excuse to interfere with the investigation.” (Selective Prosecution Mot. 5–6.) Of Mr. Weiss, Mr. Trump also wrote: “He gave out a traffic ticket instead of a death sentence. . . . Maybe the judge presiding will have the courage and intellect to break up this cesspool of crime. The collusion and corruption is beyond description. TWO TIERS OF JUSTICE!” Ryan Bort, Trump Blasts Prosecutor He Appointed for Not Giving Hunter Biden ‘Death Sentence,’ Rolling Stone (July 11, 2023), https://www.rollingstone.com/politics/politics-news/trump-suggests-hunter-bidendeath penalty-1234786435/ [https://perma.cc/UH6N-838R].

29 This source does not stand for the proposition that several leaders of house committees “opened a joint investigation.” (Selective Prosecution Mot. 6.) [3]

30 The docket does not show that the Delaware district court resolved the motion, and the Court is uncertain whether the court considered Mr. Smith’s brief. [brackets mine]

First, Scarsi uses an ellipsis, marked at [1], to suggest the only reason Lowell cited the USA Today story was to support the claim that Republicans moved to intervene in the investigation, when the sentence in question includes three clauses, two of which the story does support. The sentence immediately following that three-clause sentence [2] makes a claim — OGR, HWAM, and HJC forming a joint committee, that substantiates that claim. Scarsi’s complaint at [3] is not that the cited article does not include Jason Smith’s quotation; rather, it’s that Lowell has not pointed to a source for the formation of a joint investigation (a later-cited source that Scarsi never mentions does include it). Meanwhile, Scarsi applies a measure — whether Judge Noreika considered Smith’s amicus, not whether he tried to file it — that Lowell doesn’t make (and which is irrelevant to a vindictive prosecution motion, because Noreika is not the prosecutor); Smith did succeed in getting the amicus unsealed, including the exhibits that Hunter claimed include grand jury materials. Whether or not Judge Noreika considered the content of the amicus, that Smith filed it is undeniable proof that Smith tried to intervene, which is all Hunter alleged he did.

Meanwhile, Scarsi relegates Trump’s Social Media threats — which Scarsi later corrects Lowell by noting that they came during precisely this period — to a footnote.

Here’s one thing I find most interesting. Scarsi’s two most valid complaints about Lowell’s filing are that, in one part of his timeline but not another, he misrepresented Trump’s pressure as happening after the plea failed, and that Lowell claimed that Weiss testified he had gotten death threats when instead the cited source (and the Weiss transcript I assume Lowell does not have) instead say that Weiss feared for his family. He acknowledges both those things: Trump attacked Weiss, and Weiss got threats that led him to worry for the safety of his family.

But he never considers Weiss’ fear for his family’s safety in his consideration of what happened between June and July. He never considers whether those threats had a prejudicial affect on Hunter Biden.

And aside from that correction regarding the safety comment, nor does Scarsi consider the most direct aspect of Congress’ intervention in the case — that Congress demanded Weiss testify, and he did so just weeks before he filed the charges actually before Scarsi.

In other words, Scarsi accuses Lowell of making a post hoc argument, claiming that he is simply pointing to prior events to explain Weiss’ subsequent actions. Except he ignores the impact of the two most direct allegations of influence.

Lowell did neglect to notice one important detail

There is one detail that Scarsi entirely ignores — but it’s one area where Lowell’s failures to provide evidence may be the most problematic.

Scarsi doesn’t mention Alexander Smirnov.

But it’s not clear the Smirnov case is properly before Scarsi.

He was definitely mentioned. Weiss first raised Smirnov, though without providing docket information, and Lowell responded.

But as I laid out here, while both discovery requests pertaining to the Brady side channel as well as a notice of the Smirnov indictment are before Judge Noreika, neither filing was repeated before Scarsi. There are allusions to it — such as Jerry Nadler’s efforts to chase down the Brady side channel, but not formal notification in court filings of the FD-1023 or Smirnov’s arrest.

In his introduction to the selective prosecution section, Scarsi noted that there was more in the docket in Delaware, stuff he was not going to consider (which leads me to believe he’s got something specific in mind that he is excluding).

20 The parties freely refer to briefs they filed in connection with a motion to dismiss filed in the criminal case against Defendant pending in Delaware, in which the parties advanced similar arguments, but more voluminously. Although the Court has read the Delaware briefing, (see Tr. 13, ECF No. 18), its resolution of the motion rests only on the arguments and evidence presented in the filings in this case. See United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020). [link added]

Scarsi’s citation seems to suggest that arguments not made before him by Lowell would be improper to consider. But at least with respect to Lowell’s request for the materials on the side channel, it has never been clear whether Lowell was supposed to repeat discovery requests before Scarsi he already made in Delaware.

One way or another, though, Scarsi has not formally considered the abundant evidence that the reason Leo Wise reneged on past assurances that there was no ongoing investigation was so he could chase Smirnov’s false claims of bribery. There are ways that Lowell could present that as new news, but it seems that Scarsi maintains that he has not yet done so, not even when prosecutors were the first to raise it.

As I keep saying, Scarsi’s decision on the selective prosecution and the egregious misconduct are not wrong. But the way in which he rejected them provide reason for complaint.

Lowell has strongly suggested that he will appeal this decision (but he likely cannot do so unless Hunter is found guilty). If that happens, it’s likely these weaknesses in Scarsi’s opinion — his failure to adhere to his own admirably rigorous standards — may make the opinion more vulnerable to appeal.

Update: Note I’ve updated my Hunter Biden page and also added Alexander Smirnov to my nifty Howard Johnson graphic.

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