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.

11 replies
  1. Upisdown says:

    With her “your dad is the president” justification, it almost seems like Judge Noreika is daring President Biden to get involved and level the playing field that’s stacked against his son.

  2. Zirczirc says:

    So according to Judge Noreika there isn’t and shouldn’t be a firewall between the POTUS and DoJ? Also, your last few posts, EW, have essentially been discourses on judges either ignoring evidence or getting the evidence wrong. What recourse do lawyers, whether prosecutors or advocates for the defendant, have when that happens?


  3. Bay State Librul says:

    David Weiss is a weasel.
    He wants to do damage to Joe Biden.
    Who knows how this will end up — but at least Abbe Lowell is a strategic lawyer.
    If Joe wins in 2024, I hope heads roll.

  4. Krisy Gosney says:

    Thank you for all your incredible research and reports!!! In this report it stuck out to me that the judge is saying there is no evidence that the Trump/R’s pressure campaign on the SC was successful BUT the success evidence is that the SC reneged on the plea deal. That’s seems to have been what the pressure was all about and the SC folded to that pressure and reneged.

  5. freebird says:

    If I did not know better, from reading the selected paragraphs, I would think that Biden appointed Weiss as the US attorney for Delaware. Additionally, I would conclude that Burisma was not investigated by Weiss until he was appointed special counsel and the Smirnov 1023 was uncovered after he was appointed as special counsel. The judge is being proleptic and is justifying the prior DOJ’s investigation as if it the 1023 was true.

    The judge is saying that the hubbub regarding the plea agreement from Comer, Jordan and Trump had no bearing on the independent counsel being appointed. It stretches credulity given the history of independent counsels appointed like Ken Starr.

    • Zinsky123 says:

      I hope you are right, Charles. Clearly, Hunter Biden was a wasted drug addict who made a lot of bad personal decisions and led a wastrel lifestyle for many years, but the gun charges seem picayune and trumped up (pardon the inadvertent pun). He bought the gun legally, except for the fact he may or may not have been wasted when he bought it, apparently never loaded or fired it and then it was discarded. Dumb, but illegal? I don’t see how the firearms charges stand, given the current pro-gun climate in the SCOTUS. The tax charges appear to be the most problematic, but IANAL and Scarsi’s discretion seems to leave a lot of wiggle room for sentencing.

  6. The Old Redneck says:

    I haven’t drilled down on the argument that the gun charges are unconstitutional (at least based on the current Supreme Court’s understanding of what the Second Amendment means). But it looks like that question will have to be addressed. Wouldn’t it be amusing if the Supremes, having made that bed, end up having to let Hunter walk on those charges?

    • emptywheel says:

      Right: But that’s why (after Noreika recommended it) they added the false statements charges. I think that’s likely to keep Hunter out of prison on any gun conviction.

      But Scarsi still has the independent ability to send him to prison for any tax charges if he is convicted.

  7. N.E. Brigand says:

    That’s so bizarre. Isn’t an implication of Judge Noreika’s comments in that last paragraph — “Defendant’s claim is effectively that his own father targeted him for being his son, a claim that is nonsensical under the facts here” — that it would be reasonable for a judge to find that President Biden is directing the prosecution of his political opponent, Donald Trump? (Which of course Biden is not doing.)

  8. zscoreUSA says:

    I am disappointed and confused about the Smirnov trial getting pushed back. The stipulation mentions CIPA scheduling. Which makes sense but I am confused about why CIPA is needed. Wasn’t the purpose of make the charges simple about lying so the classified stuff isn’t necessary to get into?

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