Abbe Lowell Already Accused David Weiss of a Brady Violation

There was something subtle but potentially important in Abbe Lowell’s motion to compel discovery in Hunter Biden’s gun case.

First, after discussing the discovery requests he sent in October and November, he described reminding prosecutors (this is actually in the October letter) that Leo Wise had assured Judge Maryellen Noreika on July 26 that prosecutors had provided all Brady materials.

Mr. Biden reminded the prosecution that this Court ordered the production of Brady materials on July 26 and October 3 and asked the prosecution to confirm whether further productions were forthcoming, or Mr. Biden would need to move to compel. Id. As the Court may recall, the prosecution told the Court at the July 26 hearing that it had already produced all Brady material. (7/26/23 Tr. at 7 (“THE COURT: Has all Brady material been produced? MR. WISE: Yes, Your Honor”.).) Yet, the prosecution did not send the first production for almost three months, until October 12, 2023, with a cover letter noting its production was “in response” to Mr. Biden’s October 8 letter requesting discovery. [emphasis original]

Then, later in the motion, Lowell described that the Delaware case file prosecutors didn’t provide until October 12 — in response to the October 8 letter — included a declination decision.

Despite assuring the Court all Brady material had been produced on July 26, 2023, since then, the prosecution has produced an October 2018 state police case file of the firearm incident that includes interview memoranda and deliberations among Delaware state prosecutors regarding whether to file charges—per the file, on October 30, 2018, after reviewing the facts, New Castle County prosecutors decided not to prosecute and closed the case. [emphasis original]

A decision not to charge for state crimes would be helpful but not definitive at a trial on federal charges. But it pretty clearly is helpful to Hunter Biden’s defense.

And yet, prosecutors hadn’t provided it to Chris Clark before, on July 26, Leo Wise assured Judge Noreika that prosecutors had provided all Brady.

I suspect the motion to compel is designed as much as a challenge — “is this your final answer?” — before Lowell makes further allegations that prosecutors withheld material helpful to Hunter’s defense. That is, I suspect Lowell knows of certain things, perhaps the memos that Joseph Ziegler’s original supervisor, Matthew Kutz, included in the case file documenting improper political influence, that also clearly count as Brady that he hasn’t received yet.

That said, I suspect there was a pretty good reason prosecutors didn’t bother to give Clark that Delaware case file before the hearing on July 26: because there was never any consideration of actually charging Hunter on the gun crimes. That is, whatever Brady they provided was likely focused on the tax case, not the gun one, because the gun charge was never going to be charged.

Until Leo Wise, who assured Judge Noreika that prosecutors had complied with Brady, decided that he was going to charge those gun crimes.

Particularly given DOJ’s increased focus on such things in recent years after some really big Brady violations, a serious Brady violation is one of the few things that would actually give Merrick Garland cause to shut down David Weiss as Special Counsel.

The declination decision, turned over a month after the indictment, isn’t that, yet. For Leo Wise, who assured the judge in this case that all Brady had been turned over, however, it’s a detail that might be more convenient if treated as proof they weren’t going to charge gun crimes before they did.

31 replies
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  2. ApacheTrout says:

    With these implications of incompetence and political interference, I’d be ashamed of this prosecution if I were Merrick Garland.

    • Overt_Act says:

      Expecting honest and responsible behavior out of the DOJ, FBI, IRS, Secret Service, etc is nearly delusional at this point. Just look at the completely ineffective investigation/coverup into the Trump/Putin election interference case. They followed the trail to the brink of the conspiracy and then effectively said “Nothing to see here, move along.”
      Since then we’ve had multiple out of control special prosecutors, some of whom were specifically appointed as Trump lackeys, who have been pursuing politically motivated witch hunts with nary a word from DOJ leadership. Or consider the IRS investigations into Comey and McCabe, which was officially declared a “coincidence.” If you believe that then I can introduce you to a Nigerian Prince who will not only sell you the Empire State building, but has the location of the Fountain of Youth which he will gladly share with you.
      The FBI is 100 years old this year, and there has never been a Democrat in charge of the agency. The bias is baked into the system. This is more of the same.
      The DOJ is so terrified of being attacked for being partisan that they have abandoned their responsibility to apply the law equally. I also think that many are personally intimidated by the prospect of right wing violence and are letting that effect their behavior.
      So the DOJ is happy to go after the foot soldiers of the insurrection, but have been conspicuously absent from going after the leadership. Jack Smith and his team are doing something, but it seems to be very narrowly focused. The application of the rule of law is being left fo a few brave state prosecutors while federal agencies are sitting on their hands. That’s not a opinion, it’s an observation.

  3. Rugger_9 says:

    It will be interesting to see how the court rules on the evidence. I wonder what Lowell has to prove to get various things tossed, and hiding exculpatory information not only damages this case for trial but also damages any potential appeals by the government.

    If the shoe was on the other foot (like, say Bannon) this would be all over the TV demanding dismissals of the charges yet we’re only hearing about these details here. It’s not like the courtier press has stopped covering HB.

    • emptywheel says:

      Writing up something about that. But remember there are two issues:

      1) Did FBI really have probable cause to search something.
      2) Can FBI prove reliability for specific evidence based on the half-compromise that Hunter’s digital life was in at the time.

        • Rayne says:

          Why are you asking this question? You’ve come here to comment 48 times suggesting you’ve probably read Marcy’s work here more times than that.

          • Fenix Rising says:

            Excuse me? I asked a simple question because if she publishes opinions elsewhere why would I not want to read it? Many people publish analysis in multiple places. Why do I have to have an ulterior motive or explain myself for asking an innocent question?

            [Moderator’s note: you have a history here of poking the bear. Your question displays a lack of personal motivation wasting comment space; it looks like yet another attempt to stir up trouble which I will not put up with. Do not expect to be hand fed here, this is not PoliSci 101. /~Rayne]

            • earlofhuntingdon says:

              Chill out. You have no idea what Rayne deals with, including a long list of trolls.

              You are at Marcy’s own site. Nearly everything else is derivative and also published here, barring things like the conversational shitkicking on xitter/nitter that you already know about. Read here more and you’ll know that.

  4. Upisdown says:

    On a side note, the House Oversight and Judiciary committees are supposed to interview Tony Bobulinski today. This one really flew under the radar compared to other recent interviews of Walker, Schwerin, Morris and Hunter’s art dealer which the RW media heavily promoted. I think Comer and Jordan have low expectations and are concerned about the minority getting a whack at Bobulinski’s credibility.

    This is the most recent article I’ve seen about this scheduled interview.

    • earlofhuntingdon says:

      MSN is a news aggregator. It doesn’t do its own reporting. Its material has almost always been published somewhere else. It’d be good practice to credit them rather than MSN.

      • Upisdown says:

        Fox News has a paywall. Brooke Singman wrote the article for them. I assume it is reflective of the MSN link.

      • ColdFusion says:

        Not only that, but the articles often go AWOL after a little while. It can show paywalled content however, maybe the msn link should be accompanied by the original, or an archive service? Not sure what’s the right answer.

        EDIT: damnit my username got messed up. Sorry.

  5. Badger Robert says:

    If there was no probable cause and the decision to prosecute the gun charge was based on political influence, at some point the exposure of Weiss may be greater in continuing the case, than in dismissing it and getting a release from Mr. Biden.
    At some point in identifying the gun the Delaware people are going to say that there was no violent event, and Biden had given up the gun.
    I wonder if attorney Lowell has some high level leaks that inform him where to search?

    • grizebard says:

      A “Deep Throat” within the DOJ? – an interesting thought. Just naughty speculation, I dare say, but one does have to wonder what the DOJ top brass think of this ongoing effort to destroy its credibility in service to Trump, that “Midas-in-reverse” whose touch turns everything into sh…

    • emptywheel says:

      The fact that a GJ indicted will be all they need to prove they had probable cause.

      Either this gets dismissed for the contractual basis, for Weiss’ decision to indict after being targeted with threats, or Abbe Lowell chips away at the case.

      There’s abundant evidence Weiss caved to pressure. But the legal precedents make it exceedingly hard to prove that.

      • Spencer Dawkins says:

        Understood. But I do wonder if the relevant legal precedents are based on the kind of pressure Trump pumps out 24/7.

        A smarter criminal would be quieter when encouraging accomplices to pressure and punish investigators, procedutors, judges, witnesses, and jurors (who else am I leaving out?).

      • Badger Robert says:

        But aren’t there two levels of probable cause? One at the search warrant level, where there was no misuse of the firearm? And the other at the indictment level?
        Please clarify your point.
        This stuff is wonderful. It reminds me of when I used to be able to think three moves ahead. Thanks.

        • Shadowalker says:

          There are two standards, one for the grand jury which is that a crime has likely been committed, and then the trial standard which is beyond reasonable doubt. The grand jury must have a minimum of 16 jurors present with a minimum of 12 voting for a truebill, trial is 12 jurors who must all agree it is beyond reasonable doubt or that it has not been proven for acquittal, if they can’t agree then it is a hung jury.

          DOJ has a policy (unwritten) that though a case may have enough to indict, charges should not be brought if there is a likely hood the trial jurors will not convict. They have a 94% conviction rate (don’t know if that includes pleas), which is why these cases Weiss is pursuing are so out of line.

  6. Operandi says:

    Would evidence of undue political influence (that didn’t bear on actual guilt or innocence) be subject Brady? Jack Smith’s recent response to the Motion to Compel in Florida seemed to come out pretty strongly against that proposition.

    Section I.2, entitled:

    Requests for information pertaining to an allegation of selective prosecution or political bias do not satisfy the materiality requirements of Rule 16 or Brady

    • emptywheel says:

      Great question.

      That’s on a motion to compel discovery. Trump’s doing things in reverse order there, so he’ll later do a selective prosecution. He tried a selective prosecution in DC, though. It rested on, I kid you not, an anonymous quote about something Biden said that never got out of the White House.

      So compare that to this, where the President was personally involved in pressure, where DOJ set up a back channel for Russian spy stuff, and where Trump then elicited threats against the investigative team.

      NOW Hunter is doing his motion to compel, and he’s basically asking for the proof of politicization he wasn’t given.

      Can you see the difference? When I was reading the Jack Smith one I was thinking it might be instructive to compare them.

      • Operandi says:

        Oh yes, I certainly did not mean to imply Trump’s and H. Biden’s selective prosecution claims shared anything beyond the legal standards they must clear. The actual merits and facts buttressing the two claims couldn’t be further apart.

        I’m just curious to see how this plays out, and to probably learn some discovery rules in the process. The materiality standards and deliberative protections espoused Smith would seem to suggest that Weiss could permissibly withhold most internal notes and memos in discovery, even ones that demonstrated damning levels of political meddling. I would not be surprised to see the latter special counsel cribbing from the former when it comes time to respond to Lowell’s motion.

        Still, I’m aware Smith was a prosecutor advancing a very prosecutor-friendly reading of the relevant standards, and may not be the final authority on the matter. Looking forward to reading Lowell’s filings. It seems like an uphill battle, but he’s nothing it not a battler.

        • emptywheel says:

          The standards for everyone is very prosecutor friendly. In both cases, defendants are asking for material beyond the prosecution team (though Weiss is attempting to stave off past prosecutorial actions, like how Lesley Wolf got replaced, or the notes put there by the IRS supervisor). In Trump’s case, it’s an attempt to generate delay. In Hunter’s, it’s an attempt to hold prosecutors accountable for things like the perfect phone call and the Brady side channel.

    • emptywheel says:

      One more thing.

      No, political interference is not Brady. It’s a pretrial motion, what Hunter is doing here.

      Prosecutors would be able to keep almost all of that out at trial, EXCEPT for impeachment purposes.

      • The Old Redneck says:

        To amplify that a little, information about political interference is not exculpatory. It doesn’t tell about us the likelihood that the crime was committed.

        As Marcy says, any attempt to beat the charges based on selective prosecution is a moon shot. It will almost certainly never happen. So I’m thinking Lowell is after something else – prosecutorial misconduct, which really could kill the case. And I think this squabble about the timing of discovery is all about setting Leo Wise up for that.

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