Leo Wise Keeps Digging Through Difficulties Caused by a Dumb Prosecutorial Decision

Because I want this language to be available for some other posts, I wanted to look at a ploy Leo Wise pulled in Alexander Smirnov’s Nevada detention hearing (Smirnov has another in Los Angeles later today).

In response to Smirnov’s attorneys describing the document fabrication charge as, “makeweight and politically-motivated; they do not involve espionage or theft and are thus not serious’,” Wise tried to use Hunter Biden’s claims of selective prosecution to rebut it.

MR. WISE: Now/ in addressing the 3142(g) factors, specifically the nature and seriousness of the offense, the defendants argues that “These allegations are make-weight and politically motivated. They do not involve espionage or theft and are, thus, not serious.”

I didn’t know what make-weight meant so I looked it up. According to Miriam Webster, the meaning of make-weight is something thrown into a scale to bring the weight to a desired value. I have no idea what that means in this context. Maybe Your Honor does.

And politically motivated, by whom? If Defense counsel is referring to his client’s allegations, then we agree. His client’s messages that are quoted in the indictment show political bias on his client’s part.

Or is the — is Defense counsel referring to us, the Government in this case? And that would certainly be curious. We’re prosecuting Hunter Biden on tax and gun charges, and his lawyers make the unfounded claim that we’re working at the direction of former President Trump and Congressional Republicans, although they can never explain why or how.

So then I guess what Defense counsel in this case is arguing is we’re working at the direction —

THE COURT: Are you saying Mr. Chesnoff and Mr. Schonfeld said that in their pleadings?

MR. WISE: That’s what they wrote. They wrote the charges in this case are make-weight and politically motivated.

THE COURT: So — but where do they — okay. But I — you’ve taken that quite a bit beyond that they’re saying — what did you just say was . . .

MR. WISE: Well, I’m trying to figure out — it sounds like they’re saying we’re working at the direction of the White House and the Biden campaign. And the other cases —

THE COURT: Is that a leap?

MR. WISE: And the other cases —

MR. WISE: — the Defense counsels are making the opposite argument.


MR. WISE: So we’re sort of curious which it is.

THE COURT: Well, and I’m not getting into the politics of this. I  have to make a determination under the Bail Reform Act whether he’s a flight risk or a danger and whether, if he is, there are conditions or a combination of conditions to address that.

MR. WISE: Right.

THE COURT: So I have no time for the politics of this case. I understand the underlying charges. There’s a component to that. But I’m not going to spend a lot of time here talking about the politics.

MR. WISE: Good. Because when we saw that, we were shocked that he would make the accusations —

THE COURT: So go on and continue with your argument.

MR. WISE: Now, the Defense counsel calls the charges not serious, which begs the question is he serious. The defendant’s lies have captured —

THE COURT: All right. I’m not going to get personal with the attacks on counsel. All right? Let’s keep it to the facts and the law. You don’t need to make snide remarks about “is he serious.” And I’m not going to tolerate that from either side .

MR. WISE: Understood, Your Honor. The defendant’s lies in this case have captured the national imagination. And while the — while the filing says they do not involve espionage, of course the charges do involve foreign intelligence services.

He lashed out again later in the hearing.

MR. WISE: You know, while counsel claims, I guess — I mean, in addition — and I hear him say now that the “serious” comment was about the — the sentence, but that’s — that’s not actually what he wrote. He wrote: “These allegations are make-weight and politically motivated. They do not involve espionage or theft and are, thus, not serious.” That’s — that’s his words. And he — he actually ascribes bad motives to us. He says the only reason we want to keep him in is so that he can’t defend himself, and he mentioned improper motives of the Bureau. I wasn’t quite following what he meant.

MR. CHESNOFF: Your Honor, could you ask him to stop? Like, suggest — enough is enough.

I wouldn’t call these “makeweight.”

It’s likely that close scrutiny of Smirnov’s ties to Russia in the conjunction of involvement in two information operations, to say nothing of his possible retroactive reporting to cover it up, made the charges necessary.

But it is also absolutely certain they would not have been charged if Wise had not used the FD-1023 to reopen the case against Hunter Biden and charge him with a bunch of felonies.

Wise seems to have believed, then, that he could bully his way through charges. And he seems to believe, here, that he can continue to do so.

But ultimately both problems stem from a stupid prosecutorial decision, one that didn’t take the difficulties of this case into consideration.

Update: Smirnov’s attorneys have posted a pretty reasonable release proposal, including a Special Master to prevent spending his millions and assurances from the Israeli consulate that they won’t reissue his Israeli passport.

Update: Judge Otis Wright granted the prosecution request for detention.

45 replies
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  2. Error Prone says:

    Isn’t the point when you are a confidential FBI human source about international intelligence matters, (which can influence politics by what you say), and are repeatedly cautioned of the need to be truthful, and you lie, then you are not credible to say you’d stay for a trial where ways and means and motivation exist to boogie? A willing liar cannot be trusted to adhere to a hard promise. It seems Wise should have pushed lying in the context and to the degree Smirnov did as an absolute red flag he takes the easy way as he sees it. He went rogue and simply cannot be trusted to adhere to any norm.

    • Troutwaxer says:

      The problem for Wise is that he can’t say “The plea deal we’d arranged with the President’s son broke down on the basis of Mr. Smirnov’s lies, and now Hunter Biden’s defense lawyer is stomping all over us on the basis that Mr. Smirnov lied, (and all the other stupid stuff we said/did/believed) so could we get some relief here, your honor?” With a side-order of ‘we’d like to put this guy in jail because he made us look bad.’

      The other problem for the prosecution? If Smirnov is let out on bail and interviewed by a journalist someplace, he might repeat his lies about Hunter Biden. At that point the prosecution’s ex-witness is repeating Moscow’s old line instead of their new one, or maybe Lowell complains that the prosecution allowed Smirnov to be out in public specifically in order to lie about his client. Porque no los dos?

      Then there’s the problem of believing someone who spouts Moscow’s party line in the first place? Hey feebs, ya stupid or something?

      So please, your honor, lock this guy up so we can lie about HB in peace?

      • Error Prone says:

        In effect, as Marcy says, “unfortunate prosecution decision.” Weiss/Wise should have said, at risk of being fired, that a deal was made on the other stuff and should stand, and if DOJ – White House wants this bribery allegation vetted, pick somebody else, our job’s been done. There was a DOJ rebellion against Jeffery Clark, it worked, and Weiss should similarly have stood on principles. A fresh look at the CHS and handler and underlying evidence, by one not already having handled gun/taxes in an ordinary way would have been far cleaner.

        What’s the chance Weiss will be nominated for a judgeship by either party after this dust has settled? Career choices are made.

        But that form was hearsay upon hearsay, and the handler seeing “game changer” dimension to it, should have asked for travel records, or check past expenses Smirnov had billed the FBI, hotel, car rental, flight tickets, for backup evidence in support of the “game changer,” veracity. Besides Smirnov, the handler is in a hot seat. Fill out the form and go have lunch is not due diligence, if so to him, not so to everybody else. When the source says the President was bribed five million, but you cannot trace it, that should trigger something?

        • freebird says:

          Your comment elucidates what is so perplexing about the reported evidence concerning Smirnov. Neophyte analysts or auditors would have evaluated all of the questions and told the higher ups the cost and time variances of what Smirnov did. It appears that there was initial no internal audit function to evaluate internal controls on this serious case.

          What happened to trust but verify?

          • wetzel-rhymes-with says:

            There once was a guy called “The Handler”
            Like someone from Raymond Chandler
            His seat is so hot
            But a patsy he’s not
            So they’re fitting both sides for an antler

        • Shadowalker says:

          It did trigger something, in 2023, when they looked into the allegation. Remember, in May 2020 when that allegation was made, they couldn’t conduct an investigation into any political candidate to prevent any undue influence in an upcoming election. It’s likely that particular FB-1023 was forgotten after the candidate it referred to won the election.

          They rebelled against Clarke, because Barr had tasked 17 prosecutors with election fraud experience to investigate any instances that would change the results. After the election, the group sent a letter (made public) stating after their in-depth examination (conducted before, during and after in whatever districts they were operating) there was no evidence of election fraud that would change the end results. Everybody knew, beyond a shadow of a doubt, that Biden won and Trump lost. Clarke was just another desperate attempt to impose Trumpian rules on everything and everybody.

      • earlofhuntingdon says:

        It’s fucking stupid to give press interviews when you’re out on bond and facing multiple felony charges.

        • Troutwaxer says:

          Absolutely agreed… Under normal circumstances. But the strategy will be interview/delay ad-nauseum, then get pardoned by Trump. (Or cross a border with Putin’s help.)

        • timbozone says:

          It’s also fucking stupid to lie to the FBI with Russian planted disinformation against the incoming US President’s son. Or at least it used to be anyways.

  3. freebird says:

    I am gobsmacked that a US Attorney didn’t know what make weight meant. In high school the wrestlers went through extraordinary measures like riding an exercise bike in a sauna in a sweat suit to make weight. On the other hand, what Smirnov’s lawyer meant refers to drug dealers both legal and illegal who add fillers to their products to “make weight” in order to give the illusion of purity.

    I would have guessed that the DOJ would have investigated criminal fraud regarding adulterated products.

    • Ebenezer Scrooge says:

      I’m twice as gobsmacked as you because I’m a (retired) lawyer. “Makeweight” is a well-understood legal term of art, used correctly by the defense counsel. It almost always modifies the word “argument.” Maybe Wise is trying a “country slicker” act. That’s another legal term of art, for a smart lawyer who plays dumb to bamboozle a dumb lawyer who thinks s/he’s smart. If so, it fell like a lead balloon.

      • DevilsAdvocate_26FEB2024_0942h says:

        I just asked my 10 year old what he thinks makeweight means – guess what, he thinks – make it heavier

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      • earlofhuntingdon says:

        He acts as if he’s been listening too much to Sen. Kennedy, another country bumpkin, who graduated magna from Vanderbilt, and has law degrees from UVa and Oxford.

      • freebird says:

        I hope that he is play-acting, but, from the other stuff surrounding this case, I think that he is just fatuous and over his head. When he incorporated the prosecution of Hunter Biden which borders on persecution, I think that was petty and vindictive. My theory of justice sees no benefit in prosecuting a sober drug addict who paid his taxes.

        • Shadowalker says:

          Not sure what the relevance would be in linking the two investigations more than they already are. It almost sounds like he’s saying the charges against Smirnov are primarily based on rebutting the Biden claims.

          • timbozone says:

            It almost sounds like he’s trying to imply that he’s a fair guy who was misled by some spook ploys that were way above his pay grade?

  4. Fancy Chicken says:

    Speaking of being gobsmacked, I was a few days ago when I read that Wise argued at the detention hearing.

    I admittedly don’t know how these things work, but I know from Trump’s cases under the SCO that there are a number of different attorneys arguing for the prosecution on both cases brought by the SCO. Of course Weiss’s operation is much smaller, but it would seem with the timeline of Hunter Biden’s case laid out so far, that the demands of that and a case involving national security elements, we would be seeing new additions to Weiss’s team who have some sort of expertise in national security matters from the get go.

    Wise just seems like the wrong bull in the wrong china shop.

    • Troutwaxer says:

      “…a case involving national security elements, we would be seeing new additions to Weiss’s team who have some sort of expertise in national security matters…”

      Weiss: Hey dude, you’re good at national security stuff. Wanna help me prosecute Hunter Biden?

      Nat. Security Expert: Sorry bud, I’d like a career when this is all over.

    • emptywheel says:

      I agree that Wise was the wrong guy here. But there are two guys who have SOME relevant expertise, one a Public Integrity guy who worked the Elloitt Broidy case, the other a guy who worked one RU case under the appropriate part of NSD, who’ve been added to the team.

  5. PensionDan says:

    I recall an article that gave a good example of a make weight. In a WW2 German prison for captured GIs, cigarettes were used as currency. Inmates would take the cigarettes apart and re-roll them with less tobacco to increase their supply. Eventually, a greater number of cigarettes were demanded as payment; the additional cigarettes as a make-weight.

  6. wetzel-rhymes-with says:

    There once was a man named Wise
    Who learned that the law applies
    Both to Democrats
    And also their brats
    So he made an October surprise

    • Ginevra diBenci says:

      wetzel, practice with this form is paying off! You’re getting the rhyme ‘n’ rhythm combo down to the point where your closing line has real punch. You could start playing around with words within the lines (say, staged instead of made) to get more impact from key verbs. That’s when writing formal poetry started being fun for me, at least.

      Keep it up!

      • wetzel-rhymes-with says:

        I think “both” is necessary to set up the gassy Nina Totenberg tone, like you are starting a homily about nonpartisanship.

        But I fear you are right with “also”. It’s redundant, but if “And to their brats” seems like it’d be better, I tell you that some will read the start there as an iamb and others a pyrric foot, which is no good. I settled to make the meter, but I am a lesser artist. I was thinking “this is the best you can do, wetzel” and “there once was a guy named wetzel” Nothing rhymes with wetzel. “His name rhymed with forgetful” It was tortured like Salieri in Amadeus, a mediocrity.

        Then I realized every good limerick has a thorn in its side, as a sign it is all-too-human, like a Persian rug. To make a perfect limerick would be an offense to Allah.

    • ExRacerX says:

      A rash prosecutor named Wise
      Used one of Russia’s top spies
      To smear Hunter Biden
      But Wise’s recent backslidin’
      Makes the plea deal he trashed seem a prize!

  7. ChrisInVancouver says:

    For an experienced attorney, Wise is acting like a noob (term for newbie from my World of Warcraft days). Why would the judge be interested in Wise’s subjective opinion that boils down to “The defendant in one of my cases says I’m prosecuting him based on political impetus from republicans and the defendant in this case thinks I’m prosecuting him based on political impetus from democrats, so I am obviously impartial.”

    The judge is obviously correct to reject Wise’s implication that the circumstances of an unadjudicated case for one defendant should influence how the judge views an unadjudicated case for another defendant. But Wise also wrongly assumes the only conclusion one could draw the two defendants having conflicting arguments is that the prosecutor is not politically motivated. Another possible inference is that you have a penchant for bowing to political winds instead of pursuing cases based on facts and fairness.

    I’m not saying that the Smirnov charges are without merit, but Wise does invite the question as to whether the timing of the charges is because the prosecution hoped to insulate themselves from Lowell’s accusation that the Hunter Biden prosecution is politically motivated. Also, Wise assumes for the judge that Smirnov’s lawyers are referring to Biden as the motivating political factor, which they apparently didn’t explicitly state. This shows Wise *is* thinking about the case from a political perspective.

      • ChrisInVancouver says:

        It sounds like the judge already shut Wise down for trying to make that unsubstantiated and irrelevant argument, so I’m not sure what you mean.

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