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.

Maryellen Noreika and Mark Scarsi’s Schrödinger’s Cat

David Weiss invokes Maryellen Noreika in the very first sentence of his Los Angeles — but not his Delaware — response to Hunter Biden’s immunity bid (not to mention, extrinsic evidence that, per his position that the diversion agreement was unambiguous, should be irrelevant).

The defendant has moved to dismiss the indictment returned by the grand jury in this district on the ground that a proposed diversion agreement presented to the United States District Court for the District of Delaware on July 26, 2023, which the district court rightly referred to as a “proposed agreement,” which required the approval of the Chief United States Probation Officer to enter into effect, which she expressly declined to give, see Exhibit 1, and as to which the district court in Delaware “deferred” a decision on accepting, nonetheless is in effect and confers “sweeping” immunity on the defendant in this case. [my emphasis]

The filing uses the word “proposed” 43 more times, almost all discussing either the diversion agreement or the tax plea agreement and in one case, including it in brackets within a quote of Leo Wise’s own words, effectively putting what Weiss claims Noreika said into Wise’s mouth even though Wise didn’t say it himself.

Only, Weiss misquotes what Judge Noreika said.

The word “proposed” was uttered once in the failed plea hearing, referring to both the plea and the diversion. Judge Noreika didn’t call either document a “proposed agreement;” she instead described “what is being proposed.” And before she used that word, “proposed,” she twice called the documents “agreements,” with no modifier.

THE COURT: Now, we have two cases and two agreements and I understand that the Diversion Agreement is not something that is typically before the Court, but you all did send it to me so I do want to talk about that a little bit. There are some provisions in those agreements that are not standard and are different from what I normally see, so I think we need to walk through these documents and get some understanding of what is being proposed so that I can give due consideration to the determination that you all are asking me to make. So I want to start with Criminal Action 23-274 involving the tax charges. [my emphasis]

In Weiss’ Delaware response, he only places that word in Judge Noreika’s mouth on the second page, and in full context, and only uses the word proposed 33 times. He never misquotes Noreika to Noreika.

In context in the plea hearing, Noreika was probably referring not to either document as “proposed.” She was probably referring to the way the two documents worked together and the expectations the two documents, working together, would put on her and Delaware head of Probation, Margaret Bray.

This immunity bid, along with three other motions to dismiss and a discovery motion, have now been fully briefed before Judge Noreika for 66 days. During those 66 days, both sides briefed the same issues before Judge Scarsi, he held a motions hearing, and issued a decision — a decision that would mean representations on which she made decisions last year are no longer valid.

I described the other day that Noreika appears to be frozen in uncertainty about what to do about these motions. And since Judge Scarsi issued his weird ruling on this same motion on Monday, neither side has noticed Noreika of the decision. It’s as if everyone is hunkering down waiting for Noreika to rule to see how it affects all these other moving parts.

I want to propose something about this dispute, about what is making it so difficult — for Noreika, especially — to decide. As Noreika herself noted in that passage from which David Weiss misquoted her, Judges don’t usually get involved in diversion agreements. But she did here. And in an effort to get out of that diversion agreement, Weiss has made Noreika’s intervention into the diversion agreement the subject of the dispute.

Noreika did not approve the plea on July 26 of last year for two reasons.

First, she was uncomfortable with the role she played in the diversion agreement, which all sides agreed she had no role in approving.

The immunity provision, for all crimes — gun, drug, and tax — was in the diversion agreement, not the plea agreement, but was cross-referenced in the plea agreement.

Both sides told her that she was only approving the plea, but since they had given her the diversion agreement, she inquired about how her role would work.

THE COURT: All right. Now at this point I would normally ask Mr. Biden how he pleads, but as we’ve already discussed, the Diversion Agreement is out there in a felony case, it is cross-referenced in the Memorandum of Plea Agreement. The Plea Agreement is cross-referenced in the Diversion Agreement, so before I ask him how he pleads, I need to understand — well, ask him how he pleads or decide if I can accept the Plea Agreement, I need to understand the Diversion Agreement.

So the felony gun charge here is a bit unusual, and we don’t usually make diversion agreements public. I don’t usually see a diversion agreement as the parties up here have hinted, but in fact you all did send it to me and it is referenced in the agreement that is before me in the tax case.

She objected to the way the diversion agreement included her as a finder of fact in case of a breach of the agreement.

THE COURT: All right. Thank you.

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.

One provision in particular stands out to me, and that is paragraph 14. That paragraph says if the United States believes that a knowing material breach of this agreement has occurred, it may seek a determination by the United States District Judge for the District of Delaware with responsibility for the supervision of this agreement.

It then goes on to say that if I do find a breach, then the government can either give the Defendant time to remedy the breach or prosecute him for the crime that is the subject of the information or any other that falls within the language of the agreement. Do I have that understanding correct?

[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?

[snip]

THE COURT: I’m concerned that that provision makes me a gatekeeper to criminal charges and puts me in the middle of a decision as to whether to bring a charge. And we already talked about separation of powers and that choice as to whether to bring charges is not — that’s the executive branch, not the judicial branch, so is this even constitutional?

MR. CLARK: I believe it is, Your Honor, because what the structure makes clear is that Your Honor is just finding facts. [my emphasis]

Importantly, all three sides — Hunter Biden’s team, David Weiss’ team, and Judge Noreika — made comments at this plea hearing that were internally inconsistent.

In Judge Noreka’s case, some of those comments pertained to whether her role was presiding over just the plea, or also the diversion agreement, which both parties to it said she had no authority to approve.

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 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.

So this is what I am going to do. These agreements are not straightforward and they contain some atypical provisions. I am not criticizing you for coming up with those, I think that you have worked hard to come up with creative ways to deal with this. But I am not in a position where I can decide to accept or reject the Plea.

[snip]

THE COURT: I certainly understand what — if it’s a plea under subsection (c)(1)(B), I am not going to just agree with you as to the limits of my role. My problem is I am not — I am not sure, and I need to understand the propriety, it may very well be that it is appropriate, but as I said, it did catch my attention, you throw me in there, Judge, you’re the gatekeeper and then you take me out of the other aspects of the — you throw me into the Diversion Agreement and then you take me out of the Memorandum of Plea Agreement.

So I cannot accept the Plea Agreement today.

Even though the government did repeatedly tell her that the diversion agreement was only between the parties, they have also pointed to her docket minutes in support of their argument that the diversion had not come into effect.

The Court deferred a decision on the plea and pretrial diversion agreement.

But here’s the thing: If Noreika believes it is a separation of powers violation for Article III to be involved in a diversion agreement, then the diversion agreement should not be in that docket minute. It should, instead, say something like she was deferring a decision on the plea because of concerns about the diversion agreement.

I have argued that Judge Mark Scarsi misapplied Schrödinger’s cat paradox to his own weird decision on the diversion agreement. But one thing that happened here is that someone outside to the diversion agreement observed it with the result that the status of it changed. We are still debating on the status of that contract to which she is not a party because of her interventions.

And now Judge Noreika has been asked to rule on whether that contract that became a not contract because of her observations on it is a binding contract.

But that brings us to the other reason Noreika refused to approve the plea. Noreika didn’t accept the plea because Leo Wise told her there was an ongoing investigation.

THE COURT: Is there an ongoing investigation here?

MR. WISE: There is.

THE COURT: May I ask then why if there is we’re doing this piecemeal?

MR. WISE: Your Honor may ask, but I’m not in a position where I can say.

This, right at that moment, was a separate breach of the agreement between the parties, and deserves more attention. As I have laid out, Weiss has had five different opportunities to contest Abbe Lowell’s representation that on June 19 of last year, David Weiss’ office told Chris Clark that there was no ongoing investigation. Weiss has waived the opportunity to contest that. Leo Wise’s claim, at the hearing, was a breach of those representations.

And then, specifically referencing Wise’s affirmation that there was an ongoing investigation, Noreika asked if FARA charges could be charged and Leo Wise said they could, while Hunter and his attorneys believed that was prohibited by the diversion agreement. Along the way, Wise misrepresented the nature of the agreement, suggesting that Noreika would sign the diversion agreement.

MR. WISE: Because by the terms of the Plea Agreement, the only function, the Diversion Agreement — well, it has no function but the parties negotiated that their view, and it’s their view, probation can take a different view, Your Honor can take a different view, their view is the firearms offense should not be considered relevant conduct for calculating the guidelines related to the tax offense, that is all that 5(b) says. It does not incorporate the paragraph 15 or any part of the Diversion Agreement, it simply says our view is the Diversion Agreement, the firearm offense should not be considered relevant conduct in calculating the guidelines. 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.

MR. CLARK: That’s my understanding, Your Honor, we would be enforcing a contract with the Department of Justice.

THE COURT: I don’t understand how you have an agreement not to pursue other charges in the case, the misdemeanor case, and you say that is not part of his Plea Agreement.

MR. WISE: Because the Plea Agreement does not include that.

THE COURT: All right. So let’s talk a little bit more about this. To the extent that the agreement —
you can sit down. To the extent that the agreement not to prosecute is promised, do the parties have some understanding what the scope of that agreement is?

MR. WISE: Yes, Your Honor.

THE COURT: No, tell me, like specifically what does it include. You said that there is an investigation, I don’t know what that is, but you must know that if there are particular charges that could be brought based on the facts that are there.

MR. WISE: So I can tell you what I think we can’t charge. I can’t tell you what the ongoing investigation is. So, for instance, I think based on the terms of the agreement, we cannot bring tax evasion charges for the years described in the factual statement to the Plea Agreement. And I think we cannot bring for the firearms charges based on the firearm identified in the factual statement to the Diversion Agreement.

THE COURT: All right. So there are references to foreign companies, for example, in the facts section. Could the government bring a charge under the Foreign Agents Registration Act?

MR. WISE: Yes.

THE COURT: I’m trying to figure out if there is a meeting of the minds here and I’m not sure that this provision isn’t part of the Plea Agreement and so that’s why I’m asking.

MR. CLARK: Your Honor, the Plea Agreement —

THE COURT: I need you to answer my question if you can. Is there a meeting of the minds on that one?

MR. CLARK: As stated by the government just now, I don’t agree with what the government said.

This was earlier in the hearing; it precedes Noreika’s concerns about the diversion agreement. But it is one reason she was so concerned about her inclusion in the diversion agreement: because the two parties disagreed on the scope of the immunity provided.

Or rather, because Leo Wise had already changed the terms of the agreement, to include an ongoing investigation that Chris Clark had been assured did not exist.

We can now be quite sure what that ongoing investigation is: David Weiss reneged on the terms of the agreement, claiming there was an ongoing investigation when his office had previously assured Clark there was not, after members of Congress made Alexander Smirnov’s FD-1023 public. Faced with renewed attention on it, David Weiss was chasing the lead he was ordered to investigate in 2020, chasing it only to find out it was a false claim of bribery against Joe Biden.

When this dispute started back in December, how these parts fit together was not clear. Since, it has become clear that having been ordered to investigate the FD-1023 days after Donald Trump pressured Bill Barr in October 2020, under pressure from Congress, Weiss reneged on the assurances his office had given Clark in June 2023, which was the understanding on which the diversion agreement was signed, in order to be able to chase the Smirnov lead.

And now Weiss is presiding over an investigation into how Smirnov’s false claims came to be mainstreamed into the investigation of Hunter Biden in which he is a witness, a wildly unethical position to be in.

But by all appearances that is what explains the two breaches here: first, to Leo Wise reneging on the terms agreed before he was party to this prosecution, and then, to Wise’s refusal to brief the diversion agreement that Judge Scarsi says is binding, but instead to strip it of all immunity altogether.

Judge Maryellen Noreika’s decision on the diversion agreement and on the circumstances that led Weiss to renege on assurances he had given Clark is quite different than Scarsi’s. That’s true, in part, because by intervening in a signed contract to which she was not party, she led to the abrogation of that contract.

And then, because she took steps to ensure the rights of Hunter Biden — to ensure that the misdemeanors he thought he was facing were really what he was facing — prosecutors used that opportunity to slap on a bunch of felonies that, evidence before her makes quite clear, they had never bothered to investigate in the years they had investigated Hunter Biden.

I have no idea how she’ll ultimately rule. If she hoped that Scarsi would come up with a solution she could adopt, the prior representations about the status of the agreement, on which she based some decisions last year, may preclude her from simply adopting his weird solution. But she also faces a different legal and ethical position vis a vis the contract than Scarsi, because prosecutors took advantage of her good faith efforts to protect Hunter’s rights as a way to renege on the agreement altogether.

Bullshit and Also, Aileen Cannon, Post

I know you all probably want a thread where you can talk about Aileen Cannon’s 3-page order denying Trump’s motion to dismiss based on bullshit claims about the Presidential Records Act.

For these reasons, accepting the allegations of the Superseding Indictment as true, the Presidential Records Act does not provide a pre-trial basis to dismiss under Rule 12(b)(3)(B)(v)—either as to Counts 1 through 32 or as to the remaining counts, all of which state cognizable offenses.

Separately, to the extent the Special Counsel demands an anticipatory finalization of jury instructions prior to trial, prior to a charge conference, and prior to the presentation of trial defenses and evidence, the Court declines that demand as unprecedented and unjust [see ECF No. 428]. The Court’s Order soliciting preliminary draft instructions on certain counts should not be misconstrued as declaring a final definition on any essential element or asserted defense in this case. Nor should it be interpreted as anything other than what it was: a genuine attempt, in the context of the upcoming trial, to better understand the parties’ competing positions and the questions to be submitted to the jury in this complex case of first impression [ECF No. 407]. As always, any party remains free to avail itself of whatever appellate options it sees fit to invoke, as permitted by law.

Fine, fine, have at it. She claims Jack Smith is the one making nutty requests, not herself.

Lee Kovarsky, who generally has a great read about the appellate posture of such things, warns that it’s unlikely Smith will ask for a writ of mandamus, but might ask for her recusal, which probably won’t work.

But really, I’m more immediately interested in this superb quote Will Oremus included in a WaPo article describing disgruntled new owners of a Xitter blue check, which may be my best ever quote in a mainstream publication.

Marcy Wheeler, an independent journalist covering national security who greeted her blue verification badge Wednesday by posting an expletive, said she remains on X mostly to monitor right-wing narratives and disinformation so she can push back on them. She said she believes the verification changes are part of an effort to restore X’s status as a “public square” so that Musk can use it to “mainstream far-right ideas.”

On Thursday, Musk amplified various posts from verified X users defending a Jan. 6, 2021, suspect, decrying a rise in the “foreign-born” population under President Biden, highlighting crimes by Syrian migrants, mocking diversity and inclusion programs, and suggesting that leftists want to disarm American citizens “because they intend to do things that American citizens would want to shoot them for.”

In between, he agreed with a post that said that “a blue checkmark is a stamp of authenticity.”

As I said, have at it!

NYT’s Limited Understanding of Trump’s “Tactics for Avoiding a Crisis Like the One He Now Faces”

There’s a funny passage in the 2,800-word NYT piece contrasting how Trump has managed Michael Cohen and Allen Weisselberg.

Initially sympathetic, Mr. Trump called Mr. Cohen a “good man” and the search “a disgraceful situation.” He also called Mr. Cohen with a message — stay strong — and the Trump Organization paid for Mr. Cohen’s main lawyer.

But Mr. Trump’s advisers were concerned about witness tampering accusations and he stopped reaching out. Their relationship soon soured.

NYT claims — apparently intending this to be a serious explanation — that Trump stopped trying to buy Cohen’s silence with a pardon and payments for a lawyer because of concerns about witness tampering.

I mean, I’m sure some of NYT’s sources claimed that. But given the amount of witness tampering Trump continued to engage in — publicly and privately — after leaving Cohen to fend for himself, the explanation is not remotely credible.

A far, far more likely explanation — one that is also more consistent with other aspects of NYT’s story — is that Trump and his attorneys intervened in the privilege review of phone content seized from Michael Cohen to conduct a risk assessment. (NYT says it relied on court records to tell this story, but they don’t mention that Trump abandoned Cohen only after getting access to what had been seized and why.) What Trump’s team saw before them in both the seized materials and the warrants used to seize Cohen’s devices may have led Trump to conclude, first, that Cohen had already showed signs of betrayal, by secretly recording the phone call over which they planned the hush payments to Karen McDougal.

Mr. Cohen’s lawyers discovered the recording as part of their review of the seized materials and shared it with Mr. Trump’s lawyers, according to the three people briefed on the matter.

“Obviously, there is an ongoing investigation, and we are sensitive to that,” Mr. Cohen’s lawyer, Lanny J. Davis, said in a statement. “But suffice it to say that when the recording is heard, it will not hurt Mr. Cohen. Any attempt at spin cannot change what is on the tape.”

NYT (including Maggie Haberman, who was also part of this story) was the first to break that story, and did so in the days after Cohen hired Lanny Davis, but it is not mentioned here.

Perhaps more importantly, Trump would have gotten a misleading sense from reviewing seized materials that Cohen was only being actively investigated for the taxi medallions and the hush payment.

That warrant may have led Trump to sincerely believe that prosecutors were only looking at the hush payment and business-related crimes, as he claimed on Fox News.

When Mr. Trump called into one of his favorite television shows, “Fox & Friends,” a few weeks after the search, he distanced himself from Mr. Cohen, who he said had handled just “a tiny, tiny little fraction” of his legal work, adding: “From what I understand, they’re looking at his businesses.”

“I’m not involved,” Mr. Trump added three times.

The warrants against Cohen built on each other and so built on the Mueller investigation, as I laid out here and here. But the warrant overtly tied to the April 2018 seizure didn’t mention other aspects of the investigation that might have made Trump more cautious about hanging Cohen out to dry, had he seen them.

Trump would not have known that Robert Mueller had succeeded in doing something SDNY does not seem to have done: accessed Cohen’s Trump Organization emails from Microsoft, thereby discovering documents regarding Trump’s ties to Russia that Trump Org had withheld from subpoena responses. Trump would not have known, then, that Mueller had established that Cohen told Congress a false story to cover up Trump’s own lies about Russia. That led to the first damning testimony from Cohen about Trump: That on his behalf, Cohen had contacted the Kremlin during the 2016 election and then lied to cover it up.

Plus, if Trump used the privilege review as a means to assess risk, it was based on a faulty assumption, an assumption mirrored in the NYT story.

NYT ties Cohen’s import as a witness to the crimes for which Cohen was investigated personally, even focusing exclusively on the hush payment and ignoring the lies about Russia. In a description of the damage Cohen’s congressional testimony did to Trump, NYT suggests that damage was limited to the hush payment, the thing that Trump allegedly engaged in financial fraud to cover up (predictably, NYT doesn’t mention the financial fraud alleged in the cover-up, just the cover-up).

When he pleaded guilty to federal charges that August, Mr. Cohen pointed the finger at Mr. Trump, saying he had paid the hush money “at the direction of” his former boss — an accusation he is expected to repeat on the witness stand in the Manhattan trial. A spokeswoman for Alvin L. Bragg, the Manhattan district attorney, declined to comment.

Before going to prison, Mr. Cohen also appeared before Congress, where he was asked who else had worked on the hush-money deal. His answer: Mr. Weisselberg.

The far more damaging thing Cohen did in that congressional testimony, though, was to tee up the way Trump adjusted his own business valuations he used for his business to maximize his profits. That was the basis for the fraud trial against Trump Org, and if the verdict sticks, it may cost Trump a half billion dollars and, unless he finds a way to cash in on Truth Social, may create follow-on financial problems.

In other words, Trump seems to have imagined Cohen would not find another way of avenging being hung out like he was, and NYT doesn’t include that other way — predicating investigations that threaten Trump Org itself and led to Weisselberg’s twin prosecutions — in their story.

Ultimately, NYT is still telling this story as if the newsworthy bit is Trump’s continued success at cheating the law, what they describe as, “the power and peril of Mr. Trump’s tactics for avoiding a crisis like the one he now faces.”

This “power and peril” pitch makes Trump the hero of the story and Cohen and Weisselberg contestants in a reality show, with Cohen inflating that contest with his wildly premature boast that “the biggest mistake” Trump ever made was not paying for Cohen’s defense and his claim, “I was the first lamb led to the slaughterhouse.”

If NYT weren’t making this a reality show, it might take away different lessons:

  • Trump has invested a great deal in using associates and co-conspirators to learn of the criminal investigation into him, with a Joint Defense Agreement incorporating 37 people during the Mueller investigation and $50 million of Republican campaign funds invested instead in paying attorneys who will at a minimum report back on investigative developments. Even with that $50 million investment (and the potential damage it’ll do to GOP fortunes in November), Trump has fewer tools to discover the status of ongoing investigations than he had when Republicans on both Intelligence Communities were using the committee to spy on investigations for him. Yet even with far more access to information than he currently has about ongoing investigations (the two federal cases against Trump are different, because Jack Smith has overproduced discovery), Trump miscalculated with Cohen.
  • The risk Cohen posed was not just — as NYT portrays — that he’ll testify against Trump at trial, at this trial. It was that he would disclose information that implicated Trump (and Weisselberg) in new investigations, as he did. As such, one lesson to take away from this, at least for those who don’t have an incentive to make Trump the protagonist of all stories, is that those spurned by Trump know a whole lot of shit about him, and that shit could turn into investigations that implicate the fraud that lies at the core of his persona. John Bolton, Mike Esper, and Mike Pence are all people whom Trump accused of disloyalty who thus far have only shared shit about Trump when prosecutors came asking. That could change.
  • As noted, NYT didn’t mention that Trump only turned on Cohen after discovering that prosecutors had obtained a damning recording from his phone. But he’s not the only Trump associate whose own blackmail on Trump was implicated in a criminal investigation. Mueller’s prosecutors were seeking Stone’s notes of all the calls he had with Trump during the 2016 election when they searched his homes (it’s not clear whether they ever found it), the existence to which Steve Bannon was also a witness. Both Stone and Bannon got their pardons, perhaps because they were better able at leveraging dirt on Trump for legal impunity than Cohen was.
  • NYT describes the injury to Trump here as, “his long-held fear that prosecutors would flip trusted aides into dangerous witnesses.” That’s just weird. It’s as if NYT hasn’t considered that the real danger is that he’ll do prison time for his crimes. The focus on loyalty rather than truthful testimony is especially odd in a piece that describes that Hope Hicks is likely to testify in Alvin Bragg’s case, who’ll testify with less of the circus and more credibility than Cohen. After all, even Jason Miller, still a top campaign manager for Trump, would be a key witness against Trump in a January 6 trial if he repeated the true description of how the campaign started refusing to support the Big Lie after a period in 2020. Bannon provided damaging testimony in the Roger Stone trial by being held to his prior grand jury testimony, and he remains a MAGAt in good standing.

Sometimes, it’s not disloyalty that can sustain a conviction, it’s truth, even truth from still-loyal associates.

Not for NYT, I guess. In a piece trying to extend this analogy to Walt Nauta and Carlos De Oliveira (the latter of whom, who really does have a colorable claim he didn’t know he was obstructing an investigation, is not similarly situated in my opinion), NYT describes that they were charged for their loyalty, not claims that sound pretty obviously false in the indictment.

Like Mr. Weisselberg, Mr. Nauta and Mr. De Oliveira remained loyal, and they are now paying the price: Mr. Smith charged both men not only with obstruction of justice, but also with lying to investigators.

Nauta and De Oliveira got charged, in part, because prosecutors believe they lied to protect Trump because that is a crime, just like it was a crime when Cohen and Stone and Mike Flynn and George Papadopoulos and Paul Manafort did it (Manafort was punished but not charged for those lies). But Nauta, especially, almost certainly got charged because prosecutors still haven’t been able to account for how much Trump intended to steal classified documents when he left the White House and still haven’t been able to account for the stolen classified documents that got flown to Bedminster in 2022. Nauta probably figures it’s a good bet to hope that Trump wins the presidency, ends his prosecution (or pardons him) and rewards him with a sinecure. That’s how having dirt on Trump works! But the prosecution is not over yet, and especially given the likelihood that this won’t go to trial before the election, he may change his mind.

Trump has absolutely succeeded in bolloxing all his criminal cases and may well succeed in delaying all the rest until he can pardon his way out of most of them. But if that effort fails, basic rules of gravity are likely to kick in and Trump will no more be a protagonist than all the other suspected criminals investigated by state and federal authorities.

David Weiss Is Withholding the Proof Leo Wise Claims Doesn’t Exist

Leo Wise continues to engage in a kind of arbitrage to win his argument that politics didn’t lead David Weiss to renege on Hunter Biden’s plea agreement, making claims that may be true for him and Derek Hines, but are patently false for David Weiss, the only prosecutor still on the team who was involved in the plea deal itself.

According to the Daily Mail, Wise insisted in the hearing the Hunter Biden prosecution last week that there’s no proof the claims of disgruntled IRS agents Joseph Ziegler and Gary Shapley affected the case.

‘These two agents started the dominos,’ Lowell said. ‘When was the last time a chair of a congressional committee sought intervention to stop a plea deal?’

Wise hit back that the claim he was influenced by former IRS agents was ‘patently absurd’, adding ‘I couldn’t pick them out of a lineup’.

‘The defense’s problem is… they offer no proof,’ Wise said. ‘Other than insulting us, where is the proof?’

The proof exists in official testimony that DOJ witnessed and surely has in its possession.

On September 7 of last year — just days before the first indictment — Special Agent in Charge Thomas Sobocinski (who also remained on the case before and after the reneged plea deal) described that after Gary Shapley went public in late May, he and David Weiss spoke about how Shapley’s comments would affect the case.

The way it affected the case, Sobocinski explained, was that family members of investigative team members were getting stalked.

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

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

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

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

Mr. [Steve] Castor. Okay.

[Discussion held off the record.]

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

BY MR. CASTOR:

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

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

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

A I don’t remember that level of it.

Q If it was

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

Obviously, both Sobocinski and David Weiss (who attended the hearing) know about the discussions they themselves had about how Shapley’s media tour led family members of the investigative team to be stalked. FBI’s Assistant General Counsel Megan Greer and DOJ’s Deputy Assistant Attorney General for Legal Affairs Sara Zdeb attended the deposition as well and so know of this testimony. It is my understanding that DOJ has reviewed these transcripts for accuracy, and so must have copies of them.

The proof is there, almost certainly in DOJ custody. It’s just that David Weiss is withholding it from Hunter Biden.

I will cycle back to this issue once a transcript becomes available. I’ve seen no mention of the uncontested assertion by Abbe Lowell that David Weiss came to fear for the safety of his family. Judge Mark Scarsi reportedly asserted that the only evidence Lowell presesnted is stuff on the Internet — but of course, there’s a DC Circuit opinion that found that Trump’s threats “have real-world consequences.”

It’s not enough for Leo Wise to claim that Shapley’s actions had no impact on his own behavior. He needs to address whether it had an impact on Weiss’ actions.

And according to the FBI supervisor overseeing this case, Shapley’s actions “had an impact on our case,” because they led everyone to start worrying about the safety of their families.

Leo Wise may claim that because it wasn’t his family being stalked, the media tour didn’t have an impact on his decisions. But he would never have been added to the team if not for the campaign by the disgruntled IRS agents.

The US Attorney for Delaware Treats Contract Law as a Hypertechnicality

Before I lay out how David Weiss responded to Judge Mark Scarsi’s invitation to address two legal issues with four of the charges against Hunter Biden, let me emphasize: these two arguments are a sideshow. Even if Abbe Lowell’s argument that the statute of limitations expired for Count 1 and his argument that venue is improper for Counts 1-4 of the indictment succeeded, the guts of the indictment, three felony counts for the way in which Hunter paid his 2018 taxes, would remain, along with one misdemeanor each for 2018 and 2019. Lowell also challenged how Weiss charged one of the felonies and the 2019 misdemeanor, but still, the core felony conduct remains unchallenged with these technical challenges (as distinct from the more substantive motions to dismiss).

I’m interested in them, though, for what they might say about Weiss’ conception of his transition from US Attorney to Special Counsel. I’m interested in them for what they might say about a potentially more serious problem with the way Weiss is approaching discovery. I’m interested in them because of the way that Leo Wise and Derek Hines have persistently dodged the unrebutted evidence that David Weiss really did renege on assurances given to Hunter’s attorneys last June that there was no ongoing investigation into the President’s son when he signed the plea deal.

I laid out all the “technical” motions to dismiss here. I wrote about Judge Scarsi’s order for sur-reply briefing here. Links to all these filings are on this page.

I expected Weiss’ sur-reply to address the new legal questions Lowell raised: Did the tolling agreement Hunter signed with Delaware US Attorney David Weiss carry over after Weiss became Special Counsel? Does judicial estoppel prevent Weiss from claiming Hunter was a resident of California in 2018 when he asserted that Hunter was a resident of DC in 2018 in the tax information filed in Delaware?

Sadly, Weiss engaged with neither of those interesting legal questions. Instead, to both questions, he responded with an evidentiary claim, a legal dodge, and an attack (Leo Wise and Derek Hines seem to love such manufactured attacks).

Here’s how it looked in the tolling sur-reply:

  • Charging 2016 as a crime that occurred in 2020 was not a way to get around statutes of limitation; it was, instead, an allegation that willfulness pertaining to Hunter’s 2016 taxes only happened in 2020.
  • Weiss only raised the tolling agreement to demonstrate he wasn’t operating in bad faith by charging the 2016 year.
  • How dare Hunter Biden neglect to mention the tolling agreements that Hunter Biden believes are legally irrelevant for this indictment!

Here’s how it looked in the judicial estoppel sur-reply.

  • Hunter presented no evidence that the prosecution knew he only moved to California in 2019 and the grand jury found that Hunter was a resident of California in 2018, so there.
  • There’s no legal authority for dismissing an indictment based on a judicial estoppel claim.
  • How dare Hunter Biden neglect to mention that “the government” told Judge Noreika that “venue for these offenses and any other related tax offenses lies either in the Central District of California or in the District of Columbia,” which is irrelevant anyway because that statement would have incorporated the felony counts for which venue is California! [my emphasis]

In both retorts, though, Weiss evinced precisely the kind of legal slovenliness I suspect is behind any discovery problems and the refusal to deal with the unrebutted evidence about what Weiss said last June.

Start with the argument that Weiss is estopped from arguing that Hunter was a resident of California in 2018. Weiss relegates that claim — the entire purpose for this sur-reply — to a footnote. The footnote doesn’t address whether Weiss is estopped from making this claim. Rather, he says it’s not a basis to dismiss an indictment.

1 The defendant also argues that the doctrine of judicial estoppel bars the prosecution “from taking inconsistent positions before different courts,” although he cites no authority for the proposition that an indictment returned by a grand jury can be dismissed on that basis. Dkt. 53 at 5.

Is Weiss now arguing that a grand jury presentation is not a court proceeding? Because if he is estopped from making the argument, then how can he make it to a grand jury? Will this give Hunter opportunity to demand grand jury presentation records? And if he is estopped, how does he plan on making the argument at trial?

Plus, by focusing on his evidentiary claims rather than the legal question, Weiss has created a new problem for himself. He asserts that Hunter never moved back to the East Coast in 2018, even though Weiss has charged him for owning a gun starting on October 12, 2018, meaning Weiss is well aware Hunter had left California before his October 15, 2018 extension date for tax filing.

The defendant moved to California in the first week of April 2018 and expressed his intention to stay in California in a text message that he sent from California to his sister-in-law on April 12, 2018, writing, “I’m staying here indefinitely.” While he may have visited the east coast for brief periods later in 2018, he returned back to California, where he continues to live today. It is worth noting that defendant does not proffer any facts to support his claim that he lived in the District of Columbia through the summer of 2019.

This citation to something Hunter wrote to his “sister-in-law” is new; it’s not in the response. Hunter would be within his right to ask to file a sur-sur-reply on this point. And it might be worth doing.

That’s because, in his Delaware response to Hunter’s selective prosecution claim, Weiss relies heavily on this passage of Hunter’s memoir, almost the only thing Hunter said in his book about events from October 2018:

I had returned that fall of 2018, after my most recent relapse in California, with the hope of getting clean through a new therapy and reconciling with Hallie.

Neither happened. [my emphasis]

Only, Weiss replaced the bolded bit — which explains why Hunter returned, to attempt to salvage a romantic relationship with his sister-in-law — with an ellipsis.

Over and over again, Weiss has made the memoir the centerpiece of his reason for charging. Over and over again, Weiss has treated the memoir as transparent truth. Yet the memoir makes it clear that when Hunter moved back in fall 2018, he had the intent of staying, staying with Hallie (as reflected by Weiss’ obnoxious description of Hallie as Hunter’s “girlfriend” in this period), apparently the same person on whose communications with Hunter he relies to claim that Hunter moved permanently to California in 2018.

Weiss may well be able to establish that Hunter was in California for enough days to amount to residency. But he hasn’t addressed the legal question of whether he’ll be legally permitted to argue that.

His response to the tolling question is even nuttier.

Weiss argues that because the US Attorney for Delaware and DOJ’s Tax Division could have charged Hunter for an April 2017 violation, it’s proof that “the government” could have charged him.

The United States’ Attorney’s Office for the District of Delaware and the Tax Division are parties to the tolling agreement. Dkt. 29 at 1. Assuming for the sake of argument that the defendant is correct that the Office of Special Counsel would be time barred from bringing failure to pay charges for the 2016 tax year in April 2017 because it was not a party to the agreement, those two entities would not be. The Tax Division can file criminal tax charges in any judicial district in the United States with or without the participation of a United States Attorney’s Office. See 28 C.F.R. §§ 0.70. Further, even before he was made Special Counsel, David C. Weiss, as United States Attorney for the District of Delaware, had full authority to bring criminal tax charges in this case. While Mr. Weiss was appointed Special Counsel on August 11, 2023, he is still the United States Attorney for the District of Delaware and either that office or the Tax Division could have brought the charge in Count 1 and any of the other tax charges contained in the indictment. Nothing about Mr. Weiss’s appointment as Special Counsel precludes that. Thus, the argument that the government had to charge failure to pay for tax year 2016 in June 2020 because it couldn’t charge it in April 2017 is clearly incorrect.

Weiss uses “the government” ten times in the body of this filing, all but one in the section on the tolling agreements.

This is a version of an argument Weiss made aggressively in his Delaware response to Hunter’s Special Counsel challenge (and less aggressively in his Los Angeles response). Insisting that US Attorneys do what they’re permitted to do and Special Counsels do what they’re permitted to do is a “hypertechnicality,” Weiss argued in January.

[E]ven assuming the Attorney General’s delegation of authority under §§ 509, 510, 515, and 533 is unavailable, defendant’s argument boils down to a quibble that the indictment reads “Special Counsel” beneath David Weiss’s name and not “U.S. Attorney.” ECF No. 40, at 4. Such hypertechnicalities have no impact on the indictment’s validity or to the prosecutor’s statutory authority to conduct this litigation on behalf of the United States. Dismissal is thus wholly inappropriate.

Remember: That was a response to an argument that Weiss can’t be Special Counsel because DOJ regulations envision someone who can’t just flip back and forth between one title and another.

The argument is even worse here. The point is, though, that DOJ Tax didn’t charge Hunter with failure to pay his taxes in 2017.

And after that, David Weiss made some non-public argument to Merrick Garland that he legally required the independence granted by Special Counsel status, yet he keeps arguing that (perhaps now that he has discovered Alexander Smirnov was lying when he attempted to frame Joe Biden) he could flip back to US Attorney status with no legal bar. He’s making that argument even though public records indicate that DOJ Tax had real problems with even the charges Weiss was considering in 2022, much less the jerry-rigged charges as presented in Los Angeles. He’s making that argument even though, as Special Counsel, David Weiss appears to have withheld from discovery fairly damning details of the investigation conducted under US Attorney David Weiss. He’s making that argument even though he has never addressed the legal assurances the US Attorney’s Office in Delaware gave to Hunter’s lawyers.

In the diversion motions to dismiss, Hunter is arguing that Weiss breached a contract. Here, the US Attorney for Delaware, where so much of US contract law goes through, is arguing that even someone who is not party to a tolling agreement — which Hunter argues is a contract — can invoke it to deprive someone of his freedom.

Again, I don’t expect Judge Scarsi to be all that sympathetic to Hunter’s arguments and Scarsi could well just adopt Weiss’ argument that both are evidentiary issues for the jury to decide. But I also don’t imagine he’ll appreciate the way this sur-reply dodges both legal questions that Lowell raised.

image_print