Rudy’s Corrupted Devices

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In a remarkable set of filings, Robert Costello — Rudy Giuliani’s defense attorney and a key player in the effort to package up a doctored laptop and pitch it as Hunter Biden’s — has provided an explanation for why his client wasn’t charged for doing the bidding of Russian-backed Ukrainians without registering as a foreign agent: Because many of the devices seized on April 28, 2021 were “corrupted” (his word).

Here are the filings:

  • Joe Sibley’s response to Ruby Freeman’s motion for sanctions
  • Robert Costello’s declaration purporting to describe the Special Master process in Rudy’s Ukraine influence-peddling case
  • A nolo contendere declaration from Rudy stipulating that he will not contest that he made the defamatory statements about Ruby Freeman and Shaye Moss or that the statements were false, but preserving his ability to argue the statements were opinion or otherwise protected speech

No contest that Rudy lied

The last of these, Rudy’s nolo contendere declaration, may be an attempt to put all these discovery disputes behind him by simply stipulating that the information he would have turned over had he complied with discovery would show that he made the defamatory claims about Freeman and Moss and there was no basis for them. His stipulation is limited to this case, so could not be used in an 18 USC 241 case against him.

Rudy is attempting to stop digging himself deeper in a hole.

Let’s see where we might go if we dig further, shall we?

Costello blames the government contractor for “corrupting” Rudy’s devices

Costello’s declaration claims that he encountered numerous technical problems with the data on the devices, and attributes those problems to the government’s vendor. Based on having blamed the government’s discovery vendor for any technical problems, he claims it is impossible for Rudy to have spoiled any of the materials on the phones.

In reviewing the materials, I encountered numerous non-user generated files and what I referred to as computer gibberish. In addition, there were many emails that contained the header with the sender and recipient addresses, but no text in the body of the email. With respect to this material, in September and October of 2021, I made inquiries of the Special Master’s electronic discovery people, and they informed me that this was exactly how they received the electronic materials. The Special Master’s lawyers informed me that they had made similar inquiries to the Government and the Government reported that any errors in the production of the electronic data, would have occurred when PAE, the Government vendor, performed their extraction procedure. I have attached some of the contemporaneous communications with the Special Master’s office in September and October of 2021. See Exhibit C attached.

As a result of that information, you can see that the allegations made by Mr. Gottlieb are false and not based upon any factual material. Mr. Giuliani has not spoliated any electronic evidence. What has been produced is what Mr. Giuliani received from the United States Government. Mr. Giuliani has never possessed the electronic materials since they were seized in April 2021. It was, and is, physically impossible for Mr. Giuliani to have spoliated any of this evidence as Mr. Gottlieb claims. [my emphasis]

Later, Costello outright claims that the government “had apparently corrupted some of the files as they were extracting the data,” and then wiped them.

There was no way for Mr. Giuliani or I, to know that the Government had apparently corrupted some of the files as they were extracting the data. Likewise, there was no way for Mr. Giuliani or I, to know, [sic] that when the devices were returned by the FBI, AFTER they concluded there would be no charges forthcoming, that the actual devices would be wiped clean. [my emphasis]

That, Costello claims, is proof that Rudy couldn’t have destroyed any electronic evidence.

In short, there is simply no factual basis for Mr. Gottlieb’s allegations of spoliation. It was physically impossible for Rudy Giuliani to do what Mr. Gottlieb swears to.

Except that’s not clear at all. That’s true because Costello’s own evidence doesn’t support his claim that the government attributed all of this to the vendor. That leaves the possibility that Rudy spoiled the evidence before SDNY seized his phones. If so, Costello’s claim that Rudy couldn’t have spoiled the evidence after Ruby Freeman’s lawsuit, in December 2021, is true, but it doesn’t rule out Rudy or someone else — perhaps his Russian spy friends — spoiling evidence before the search in April 2021, at which point he was already lawyered up for at least the Smartmatic suit.

Costello misrepresents review scope

Before I show that Costello’s own evidence about the evidentiary problems doesn’t support his claims, let me demonstrate something more basic.

Costello repeatedly claims (and Sibley repeats) that the government reviewed 26 years of electronic evidence. It’s true that there was evidence from 26 years on the devices. But as I’ve explained repeatedly, even the government asked to limit the scope of review to everything after January 1, 2018. And that’s what Judge Paul Oetken approved on September 16, 2021.

An email Costello included with his declaration — directing Rudy what to review next — shows that’s what the scope of the review was.

Costello may have a reason he wants to obscure the scope of the review, which I’ll return to. Or it may be that after discovering the “corruption” on Rudy’s phones, FBI’s technical experts had to look further, using a warrant that is not yet public. But at least given the public record, it is not an honest representation of what was reviewed, as distinct from what was extracted.

The corruption found on Rudy’s phones

Based on Costello’s evidence, there were five different problems found with Rudy’s devices:

  • The dates on emails adopted the date of extraction — July 2021 — as the last modified date
  • Some .jpg files could not be viewed
  • Emails from Rudy’s phone lacked the text of the email
  • There were unreadable files on the larger devices
  • The WhatsApp texts had gotten garbled

Costello includes some cherry-picked emails to substantiate those problems. I’ll put them in order.

The first identified problem was the last-modified date, which Costello wrote someone from Trustpoint to identify on September 15 and which I first noted days later. Costello does not mention whether or how that problem was fixed.

Then, Costello quoted from his own email sent on September 30, which described that everything on seven devices was non-readable non-user created.

The bottom line of which is that there is virtually No User Created Info on the first seven devices. The screen shots of data we observed was non- readable non user created data which is clearly non- responsive and so we shouldn’t raise any objections to it being turned over to the Government.

Additionally we are getting the Special Master to go to the Government and its vendor to see if they can eliminate all of the non- user created data from the 9 remaining devices to make our future work more manageable.

A response from the Special Master on October 1, 2021 describes the problems with those seven devices somewhat differently, this way:

  • .jpg files that cannot be viewed
  • missing email/text body issue
  • unreadable “computer files” on the larger devices

Those devices were reviewed for files through seizure, so they likely had contemporaneous records.

Then, an instruction email from the Special Master team, written on October 15, 2021 — regarding the iPhone from which the bulk of the files were turned over — suggests that on that phone only the missing email/text issue remained. This is one of the only communications that describes something the government represented. And at least per them, it’s not a matter of corruption, it’s a matter of how iPhones work.

It is our expectation that these documents can be reviewed quickly, given that many are very short, and others — as you’ve pointed out previously — contain no “body” text. We have asked the Government why many messages do not contain bodies, and their understanding is that this is the way the iPhone stores backup data.

Then, on October 21, 2021, Costello sent an email noting that the WhatsApp texts were muddled.

Trustpoint reports to us that within the field of approximately 25,000 data items there are approximately 7500 “WhatsApp” entries. The way the Government’s expert presented this evidence almost all the Whats App entries consist of garbled words in English. For example the phrase “In God we trust” would likely appear to us now as “God we trust in”.

[snip]

Frankly we do not know how to deal with this, and we wanted to alert you to his latest glitch which will be found on more than 25% of the items to be searched.

The Special Master responded the following week that they “hope to have a solution shortly.”

As noted above, the Special Master turned over virtually everything on that phone, so they found a way to deal with the WhatsApp issue.

Given the number of files found on the remaining 8 devices, may well have found the same problem on those devices as they did on the first seven.

In short, at least per the record Costello himself provides, he has no evidence the government attributed any of this to the vendor. Costello claimed that the government had told the Special Master that,

the government reported that any errors in the production of the electronic data, would have occurred when PAE, the Government vendor performed their extraction procedure.

But, unless I’m missing it, he provides no evidence of that.

It appears likely that 15 of 16 devices lacked substantive information, and the only thing he provides an explanation for is that some emails — emails that Rudy would have separate access to — weren’t downloaded onto a backup of his phone.

Costello spins on Rudy’s non-compliance on emails

According to Rudy’s own declaration, he helped Trump plot a coup attempt using three different emails, which other documents (including Costello’s own declaration!) reveal must be:

  • rudolphgiuliani at icloud
  • helen0528 at gmail
  • TruthandJustie4U at proton

Rudy’s own privilege log shows that he retained both the gmail and icloud emails — but for things after January 6 and before the seizure, which in the log are fairly presented as privileged.

Rudy’s own privilege log shows none of the protonmail accounts used, even though Bernie Kerik’s does (more on that later).

That’s why it’s so interesting that Costello attacks rather than addresses why Epshteyn (and Christina Bobb) had responsive records that Rudy didn’t turn over.

In paragraph 5 of Mr. Gottlieb’s affirmation, he states that they obtained a December 13, 2020 email from Defendant Giuliani to Boris Ephsteyn [sic] which ” reiterates Defendant’s false claims about Plaintiffs that: “Georgia has video evidence of 30,000 illegal ballots cast after the observers were removed.”” Note first, that the Plaintiffs in in this case were not mentioned, but further note, that when one reviews the citation for this email (ECF-56-7), there is a later email in that same exhibit from Jason Miller that reports: “Statement on hold until further notice, pending Rudy’s talk with the President.” In the spirit of lack of candor, Mr. Gottlieb failed to mention that email.

Here’s the email in question (which redacts which email it went to, but one Bobb turned over was sent to Rudy’s Gmail). But whichever one it came from, it’s an email that Rudy still had access to in 2021, as evidenced by the exhibits presented in this case.

There seems to be good cause to conclude Rudy deleted the email or refused to look for it.

Costello and Sibley’s exaggeration of the investigative closure

Again, 15 of 16 of these devices had some as yet unexplained data that was not user created. I don’t see where Costello substantiated that the government’s vendor did this. Short of doing that, he can’t rule out that Rudy — or, again, the Russian spies he was cozy with at the time — destroyed the data on the devices.

And that’s why I find it notable how Costello and Sibley misrepresent the nature of DOJ’s notice the grand jury investigation into Rudy’s Ukraine influence peddling had concluded.

At the same time as NY State was asking Barbara Jones to serve as the monitor over Trump Organization’s legal woes with the state, SDNY filed this letter, asking Judge Oetken to terminate the appointment of Jones.

The Government writes to notify the Court that the grand jury investigation that led to the issuance of the above-referenced warrants has concluded, and that based on information currently available to the Government, criminal charges are not forthcoming. Accordingly, the Government respectfully requests that the Court terminate the appointment of the Special Master, the Hon. Barbara S. Jones.

As I noted at the time, Costello ran to the press and claimed this meant Rudy would not be charged.

But Costello never claimed to have received a declination letter. And contemporaneous reporting made clear the case remained open.

We now know why: Instead of whatever prosecutors expected to find on at least 7 of Rudy’s phone, they found non-user generated non-readable files. Maybe their vendor fucked up. Maybe something else happened to the devices. But there was nothing there for them to build their case on.

Which is why Costello’s spin on what happened is so interesting. He faults Ruby Freeman’s lawyer for not mentioning that Rudy wasn’t charged.

In his Affirmation, Mr. Gottlieb referenced a criminal investigation run by the SDNY involving Mr. Giuliani, but conveniently failed to mention that it was resolved in Mr. Giuliani’s favor.

[snip]

First, let me state that after the Government, be it the FBI or the U. S. Attorney’s Office for the Southern District of New York (“SDNY”) reviewed 26 years’  worth of electronic data, the SDNY, [sic] issued an unusual public statement declaring that it was not charging Mr. Giuliani with any violation of federal law.

But he overstates the filing, which only addresses the grand jury in question. And the only reason the statement was unusual is that it wasn’t a declination letter sent to Costello himself.

Given the revelation that at least 7 and possibly as many as 15 of these devices were — to use Costello’s word — “corrupted,” it makes other details of the Rudy investigation more interesting, including a request, reported in April 2022, for help accessing other phones.

If the vendor didn’t “corrupt” the data on 15 of 16 of Rudy’s devices — and I don’t see where Costello shows they did — I can imagine that the SDNY might pursue how they got corrupted.

And that may be why Rudy is attempting to end any further review of why he can’t even find emails that Boris Epshteyn had access to.

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Curious Plea Deals Afoot in Lancaster, PA

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The curious rumored plea deal of Lancaster, PA Jan6er Sam Lazar has a twin now in the curious plea deal of James Breheny.

Lazar, who is from Ephrata, PA, was arrested almost exactly two years ago on assault and civil disorder charges. But he was more notable for his moniker — FacePlantBlowhard — and his networking after the attack with politicians, including Doug Mastriano.

After an extended detention fight, nothing much happened in Lazar’s case. Then there was a year-long gap in the docket, followed by a notice of appearance of an AUSA who is handling some of the more important ongoing prosecutions.

Both Ryan Reilly and Lancaster Online’s Dan Nephin seem to have gotten tipped off to a sealed hearing on March 17 that was, reportedly, a plea hearing.

NBC News spotted Rebeca Lazar, Lazar’s sister who accompanied him to D.C. on Jan. 6, at the Washington D.C. federal courthouse, along with his family members. Lazar’s case was before Judge Amy Berman Jackson, according to the source. The U.S. Attorney’s Office for the District of Columbia did not immediately respond to a request for comment.

But there’s still nothing on the docket.

James Breheny, who has ties to the Oath Keepers, was arrested even before Lazar, in May 2021. He was linked to the Oath Keepers by dint of being added to their comms the day of the attack and — more importantly — inviting Stewart Rhodes to a coordinating event in Quarryville, PA.

On December 21, 2020, BREHENY invited Rhodes to a leadership meeting of “multiple patriot groups” from the Mid-Atlantic states that was to take place in Quarryville, Pennsylvania on January 3, 2021. BREHENY forwarded Stewart Rhodes a message describing the purpose of the meeting, which was to prepare for a January 6 rally in Washington, DC. The message stated, “This will be the day we get our comms on point with multiple other patriot groups, share rally points etc. This one is important and I believe this is our last chance to organize before the show. This meeting will be for leaders only.” In inviting Rhodes to this meeting, BREHENY cautioned, “No cell phones. Need to be Faraday bag prior to site.”

Here’s Lancaster Online’s story on the meeting (which some participants disputed was focused exclusively on January 6):

On this particular Sunday afternoon – Jan. 3, 2021 – the topic was darker and much more urgent.

Members of so-called “patriot” and militia groups from across Pennsylvania and New Jersey strategized about how they would communicate with each other in the event of a major catastrophe. The failure of the electrical grid. An epic natural disaster. An armed clash with their own government.

Many in the room believed the collapse of American society was “inevitable,” that the American political process was broken.

Though Breheny was always treated as part of the Oath Keeper prosecution, he was never joined to one of the existing conspiracies. Instead, his case just kept getting continued every two months. Until, on June 6 — after almost all of the Oath Keepers were convicted and sentenced — Breheny pled guilty to one count of obstruction as part of a cooperation agreement.

There was no one obvious, at that point, to cooperate against.

And today, Judge Mehta set Breheny’s sentencing for February 23, not long after the other cooperating Oath Keepers, who’ll be sentenced in December and January.

There are a few other sleeper plea agreements I have watched. But these are nevertheless two of the most bewildering plea agreements of the twenty or so we’ve seen so far.

And both of them have a tie to the Lancaster, PA area.

Update: Added the piece on the January 3 meeting.

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“Super:” The Day after IRS Got a Warrant for the Hunter Biden Laptop, DOJ Sent Bill Barr a Laptop

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Thanks to Gary Shapley, we have notes from an October 22, 2020 meeting at which the Hunter Biden investigative team scrambled to make sure they had taken care on their handling of the two devices — a laptop that once belonged to Hunter Biden, and a hard drive containing the attempted recovery of the items on the laptop — turned over by John Paul Mac Isaac.

Among other things, Shapley’s notes reflect that on December 9, 2019, the FBI took possession of the laptop. Even before that, starting on December 3, IRS case agent Joseph Ziegler started drafting a warrant to access it.

On December 12, DOJ’s Office of Enforcement Operations authorized seeking a warrant for it. Then on December 13, Ziegler got a magistrate judge, probably in Delaware, to approve his warrant.

In advance of the October 22 meeting, on October 19, Shapley sent an email that has not been made public. In it, he expressed a belief that John Durham had a copy of the laptop.

On October 19th, 2020, I emailed Assistant United States Attorney Wolf: “We need to talk about the computer. It appears the FBI is making certain representations about the device, and the only reason we know what is on the device is because of the IRS CI affiant search warrant that allowed access to the documents. If Durham also executed a search warrant on a device, we need to know so that my leadership is informed. My management has to be looped into whatever the FBI is doing with the laptop. It is IRS CI’s responsibility to know what is happening. Let me know when I can be briefed on this issue.” [my emphasis]

That’s one of the reasons I find it acutely interesting that on December 14 — the day after a magistrate approved the first known warrant for the “Hunter Biden” “laptop,” Will Levi — who was heavily involved in Barr’s micromanagement of the Durham investigation (including in setting up meetings with the UK, Australia, and Italy) — texted his boss’ personal cell phone and told him a laptop was “on way to you.”

Leading up to December 14, Durham was in the thick of a Russian-Ukrainian disinformation operation. It is totally possible that he did get a copy of the laptop. That’s one reason I pointed to DOJ’s discussion of Patrick Byrne’s disinformation in August 2019. Bill Barr’s DOJ was willing to go anywhere to get information discrediting the Russian investigation into Trump, even Russian-backed sources.

Durham’s consideration of Ukrainian disinformation became a prominent issue during the impeachment investigation, the next month, September 2019.

In the FOIA releases showing Barr’s involvement in the Durham investigation released so far, it’s not clear when Durham met with the Ukrainians. It could be this exchange on August 31, 2019, in which Barr suggested Durham reach out to someone. After Durham responded, Barr commented, Having fun.

Levi sent Barr a text, which remained totally redacted on most recent release, the day after the whistleblower complaint went public.

That may not be related.

But by September 22, Barr was definitely in damage control mode, reaching out to Lindsey Graham.

On the morning of September 24, the day Nancy Pelosi would announce support for impeachment and the day the White House declassified “the perfect transcript” showing Trump instructed Volodymyr Zelenskyy, two months earlier, to coordinate with Barr on investigations of Biden, Barr texted Durham and told him to call ASAP.

That night, Barr texted Will Levi to call ASAP.

An hour and a half later, he texted what is probably Eric Herschmann — who at that point was still at Marc Kasowitz’s firm (though he would soon join Trump’s impeachment team) — and instructed him not to call.

Herschmann, of course, would attempt to pitch the laptop himself a year later, before Rudy blew its credibility.

Then later on the night of September 24, Durham texted Barr asking to talk, which may have been a second call that day.

The next day, September 25, DOJ issued a statement revealing that Durham had received information from several Ukrainians who weren’t part of government.

A Department of Justice team led by U.S. Attorney John Durham is separately exploring the extent to which a number of countries, including Ukraine, played a role in the counterintelligence investigation directed at the Trump campaign during the 2016 election,” DOJ spokeswoman Kerri Kupec said Wednesday. “While the Attorney General has yet to contact Ukraine in connection with this investigation, certain Ukrainians who are not members of the government have volunteered information to Mr. Durham, which he is evaluating.”

At 3:44 PM on September 26, the day the White House released the whistleblower complaint, someone from Durham’s team — probably Durham himself — participated in a chat with 8 people.

Less than an hour later, a bunch of people — including Will Levi, Seth DuCharme, and “John” — convened in a lobby bar together, waiting for Barr to arrive.

The following day, when Kurt Volker resigned, there was another group chat.

Barr was still focused on CYA regarding his own involvement. In advance of Lindsey Graham going on the Sunday shows, Barr made sure to get Lindsey his statement claiming not to have spoken to the Ukrainians personally.

On September 29, Michael Mukasey did a column in the WSJ where he pitched the value of speaking to Ukrainians. He suggested that Durham might find the Ukraine leads Trump was looking for.

That Justice Department statement makes explicit that the president never spoke with Attorney General William Barr “about having Ukraine investigate anything relating to former Vice President Biden or his son” or asked him to contact Ukraine “on this or any other matter,” and that the attorney general has not communicated at all with Ukraine. It also contains the following morsel: “A Department of Justice team led by U.S. Attorney John Durham is separately exploring the extent to which a number of countries, including Ukraine, played a role in the counterintelligence investigation directed at the Trump campaign during the 2016 election. While the Attorney General has yet to contact Ukraine in connection with this investigation, certain Ukrainians who are not members of the government have volunteered information to Mr. Durham, which he is evaluating.”

The definitive answer to the obvious question—what’s that about?—is known only to Mr. Durham and his colleagues. But publicly available reports, including by Andrew McCarthy in his new book, “Ball of Collusion,” suggest that during the 2016 campaign the Federal Bureau of Investigation tried to get evidence from Ukrainian government officials against Mr. Trump’s campaign manager, Paul Manafort, to pressure him into cooperating against Mr. Trump. When you grope through the miasma of Slavic names and follow the daisy chain of related people and entities, it appears that Ukrainian officials who backed the Clinton campaign provided information that generated the investigation of Mr. Manafort—acts that one Ukrainian court has said violated Ukrainian law and “led to interference in the electoral processes of the United States in 2016 and harmed the interests of Ukraine as a state.”

I can fathom no way Mukasey would have written this without Barr’s support, and so Barr’s support for continued outreach with Durham.

Barr’s press secretary Kerri Kupec sent him the Mukasey column first thing the next day.

On September 30, Brian Rabbitt told Barr to contact Mick Mulvaney.

On October 2, Barr asked the same Eric — probably Herschman given the person’s contacts with Jared Kushner and Pat Cipollone — if he could call.

 

Later on October 2, Kerri Kupec apologized to Barr that “Sadie” hadn’t gotten editors to change a particular story, probably a reference to this WSJ story, which discusses Barr’s request that Trump give introductions to some foreign leaders.

On October 11, the day after Igor Fruman and Lev Parnas were arrested, Barr sent Eric a one word text — “Ok.”

On October 30, the day after the Democrats released the impeachment resolution, Kupec sent Barr the statement he had made about Ukraine back in September.

A minute later Barr sent that statement to Will Levi, with no further comment.

In spite of all this, DOJ still made little effort to convince Trump to stop Rudy Giuliani from flying to meet Andrii Derkach in December 2019, in precisely the same period Levi sent Barr a laptop. FBI prepared but did not give Rudy a defensive briefing.

Sometime shortly after this, in 2020, IRS Agent Joseph Ziegler got a new supervisor, Gary Shapley. Shapley replaced Matt Kutz, who had concerns about  — and documented — what are probably confrontation clause problems (meaning the investigation was relying on sources that Hunter Biden would never be able to cross-examine) and Trump’s push for this investigation.

Around the same time in 2019, I had emails being sent to me and the Hunter — and the prosecutors on the case, the Hunter Biden prosecutors, from my IRS supervisor. So this was Matt Kutz still. From what I was told by various people in my agency, my IRS supervisor, Matt Kutz, created memos which he put in the investigative files regarding the investigation potentially violating the subject’s Sixth Amendment rights. He also referred to Donald Trump’s tweets at the time.

I recall that at one point I had to go around my supervisor and ask his boss, ASAC George Murphy, to tell him to stop sending me and the Hunter Biden prosecution team these emails and that I was searching media articles on a weekly basis and was aware of everything being written in the media regarding the case.

[snip]

A So it was actually Matthew Kutz. He was my supervisor at the time and from the articles that he was sending me, I would say he had more of a liberal view than I had and it was pretty obvious from the things he would send me and discuss. And that’s just me making an observation.

So I later found out about these memos that were put in the file regarding the issues that he saw with the investigation, the fact that we even had it opened. So I only learned about those after. And then it came to a point to where he’s sending us so many media articles about different issues that I had to tell him stop, please.

And I had to go around him. And that’s when I went to my ASAC at the time, George Murphy, who was above him.

Per Shapley’s testimony, he became the primary managerial liaison interacting directly with David Weiss’ office in October 2020, the same month as the laptop was made public.

By that point, someone else was in charge of ingesting Russian disinformation. Scott Brady’s assignment pushing Russian from Rudy may have simply represented a reassignment of the task, from Durham to Brady.

But Durham didn’t stop thinking about it. On January 11, Durham sent an aide the group chats that had occurred at the height of DOJ’s panic on September 26 and 27.

January 11 is the day Treasury sanctioned several more Ukrainians as part of Andrii Derkach’s 2020 influence operation.

Former Ukrainian Government officials Konstantin Kulyk, Oleksandr Onyshchenko, Andriy Telizhenko, and current Ukraine Member of Parliament Oleksandr Dubinsky have publicly appeared or affiliated themselves with Derkach through the coordinated dissemination and promotion of fraudulent and unsubstantiated allegations involving a U.S. political candidate. They have made repeated public statements to advance disinformation narratives that U.S. government officials have engaged in corrupt dealings in Ukraine.

I don’t know whether Bill Barr got a copy of the laptop or not.

I know that years latter — at a time when he was selling a book that attempted to distance himself from all this criming — Barr was nevertheless joining in false claims about the laptop.

So when former staffer Larry Kudlow on Thursday interviewed former attorney general William P. Barr for his Fox Business show, the conversation operated from shared assumptions about Trump’s successes and the toxicity of the political left. The result was that Barr outlined a remarkable hierarchy of importance for actions that might have affected the results of a presidential contest.

Russian interference in 2016, he said, was just “some embarrassing emails about Hillary Clinton and Bernie.” The effort to “suppress” information about Hunter Biden’s laptop, meanwhile, was “probably even more outrageous” and “had much more effect on an election.”

And I know that when Hank Johnson mocked John Durham because he hadn’t indicted Hillary Clinton, Barack Obama, Joe Biden — and “couldn’t even indict Hunter Biden” — Durham responded, “We didn’t investigate Mr. Hunter Biden.”

Obtaining a warrant for Hunter Biden’s laptop would surely qualify as investigating Mr. Hunter Biden.

In 2020, the right wing’s favorite so-called whistleblower believed that John Durham got a copy. And one day after the IRS first obtained a warrant for the laptop, DOJ sent the Attorney General, who was micromanaging the Durham witch hunt, a laptop.

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Unlike Michael Sussmann, Patrick Byrne Was Not Prosecuted for Providing Allegedly False Tips to the Government

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Among the many records on the Durham investigation DOJ newly released to American Oversight on June 1 is an email, dated August 23, 2019, from Seth DuCharme to Durham and one of his aides revealing that “Overstock CEO gave info to DOJ for John Durham’s review of Russia investigation origins.”

We can be fairly sure what Byrne provided DOJ because he first went on Fox and CNN and laid it all out there. His excuse for getting laid by Maria Butina, he said, was that Peter Strzok told him to do it as an investigative ploy (the reasons why have never really made sense).

“I figured out the name of who sent me the orders and this has been confirmed. The name of the man who sent me was Peter Strzok,” Byrne exclaimed, naming the embattled former FBI agent at the center of the right’s Spygate conspiracies. “This is going to be quite a whirlwind.”

At times bursting into tears, Byrne alleged there was a “big coverup” of “political espionage” that was connected to President Trump, Hillary Clinton, Marco Rubio and Ted Cruz, insisting that “this is not a theory” of his because he was “in the room when it happened.”

“Both catching my friend’s murderer and taking on Wall Street were consistent with my values and it was my honor to help the Men in Black and it was the third time that they came to me,” he said at one point. “And I got some request, I did not know who the hell it came from and it was fishy and three years later on watching television and I realized who it was—it was Peter Strzok and [former Deputy FBI Director] Andy McCabe, that the orders came from.”

Byrne said he decided to come forward with his Deep State concerns because he felt guilty for recent mass shootings.

“But the issue is, I realized that these orders I got came from Peter Strzok, and as I put together things, I know much more than I should know and tried to keep silent,” he said. “Everyone in this country has gone nuts, and especially for the last year when I realized what I know, every time I see one of these things, somebody drives 600 miles to gun down 20 strangers in the mall, I feel a bit responsible.”

[snip]

“No doubt Peter Strzok would watch this and say he’s full of it, I had nothing to do with anything,” the Fox News anchor stated.

Here is my first post on the allegations, written the same day as this Seth DuCharme email.

Strzok would ultimately deny the allegations about him specifically.

In early November, he told me that he had never met Byrne, and had “no awareness” of him before reading about him in the news in August, 2019. When I asked about one of Byrne’s most incendiary claims—whether an F.B.I. agent might instruct someone to pursue a romantic relationship with a suspect in order to gather intelligence—Strzok said that the Bureau had thirteen thousand agents, and that, though he couldn’t dismiss Byrne’s story out of hand, it sounded “extraordinarily fantastical.” He went on, “This isn’t some James Bond film—we don’t tell people, ‘Go bed this vixen for your country.’ ”

And, unless I missed it in John Durham’s report, he did not even include this among the things he investigated.

It’s hard to know how seriously DOJ took it, but DuCharme’s involvement shows it had the same kind of high level interest as the Alfa Bank anomalies. One of Bill Barr’s key advisors was involved in it. And whatever heed DOJ paid to it, would be hard to take Byrne’s allegations less seriously than the Cyber agents who dismissed the Alfa Bank anomalies in barely more than a day, making substantial errors along the way.

Plus, DOJ withheld this information under a b7A exemption, reflecting that it was treated as part of an ongoing investigation, until Durham finished. Someone at DOJ treated this with enough seriousness to bury for four years. Which raises the prospect that Durham believed it was sound to criminalize Michael Sussmann, a Democratic lawyer sharing a honestly held tip, but chose to do nothing about a guy with ties to a convicted Russian agent sharing wild conspiracies.

And here we are, four years later, and Byrne continues to share wild conspiracies, most that undermine American democracy.

And now, amid reports that Jack Smith is zeroing in the December 18, 2020 meeting at which Patrick Byrne and others pitched seizing voting machines, Byrne is suggesting he has — and plans to release — kompromat on Smith (he may have deleted this but this thread repeats the theme).

I’m not saying Byrne should have been prosecuted for making unsubstantiated claims about the Russian investigation — unless the government can tie his motive to Butina’s operation.

I’m saying the contrast with what Durham did with Michael Sussmann and what he didn’t do with Byrne is a stark indicator that he would criminalize Democratic politics while ignoring crazy conspiracies from someone with direct ties to a Russian influence operation.

Update: Added a second part from the FOIA. h/t Brian Pillon.

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Chuck Grassley Must Think the FD-1023 Informant Is Worth Killing Off

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In their panic to do something to stave off the Hunter Biden guilty plea next week — and perhaps to bail Gary Shapley and Joseph Ziegler (who are represented by lawyers tied to Chuck Grassley) out of wild and in some cases inconsistent claims they made in their House Oversight debut — Grassley and James Comer have released the FD-1023 form on which they’ve hung their latest conspiracy theories about an attempt to bribe Joe Biden.

They’ve released it with almost no redactions, so it will be very easy for anyone who came in contact with the FBI informant whose interview it recorded — an international businessman — to reverse engineer who he is.

Virtually anyone bound by the principles of physics, by time and space, who has looked at the FD-1023 closely has recognized that the allegation in the report does not match known reality.

Lev Parnas swears it didn’t happen. In this Twitter thread, Thomas Fine calls the report, the Science Fiction Double Feature Bribery Scheme. ABC provided multiple ways the allegations conflict with reality and even notes that Chuck Grassley waged war on the exploitation of such unvetted intelligence with Christopher Steele. Phil Bump last month described how James Comer was spinning his wheels (and the press) but couldn’t find any substance to it; he even noted Ron Johnson’s admission that he couldn’t substantiate a key claim in it.

The most interesting thing, to me, is that FBI agents working with then-Pittsburgh US Attorney Scott Brady, the partisan Republican whom Barr put in charge of ingesting Rudy’s Russian disinformation, didn’t ask, or record, on what date in 2019, a meeting in London addressing an entirely different topic took place at which Oleksandr Ostapenko placed a call to Mykola Zlochevsky so Zlochevsky could provide to the informant very specific numbers of recordings he had involving Hunter Biden and his father.

Brady’s team didn’t get (or record) this date even after a follow-up conversation three days after the original meeting with the informant, even though it would have been the freshest memory for the informant and fairly easy to pinpoint given travel records. They identified with some specificity at which coffee house the meeting with Ostapenko happened (possibly this place), but not the date.

That’s not how the FBI works.

But given the informant’s reference to “recent news reports about the investigations into the Bidens and Burisma,” it is likely the meeting happened during the impeachment investigation, possibly even after Rudy Giuliani met with soon-to-be-sanctioned Russian agent Andrii Derkach in December 2019.

If the meeting came after mid-February, “Hunter Biden’s” “laptop” was already being packaged up for a later political hit job. If the meeting came after October 9, 2019, which is when Parnas’ visibility onto these matters ended because he was arrested but Rudy was not, then it might reflect what happened to the plan to meet Burisma’s CFO and Dmitry Firtash in Vienna to obtain a copy of “Hunter Biden’s” “laptop” after his arrest. It could be possible, after all, that Zlochevsky had said one thing to Parnas earlier in 2019 and another thing after Victoria Toensing had met with Bill Barr.

There’s something else that debunks the story: that Chuck Grassley apparently cares so little about substantiating it he’s willing to risk the life of the informant.

Both ABC and this weaker CNN report describe that the FBI warned releasing this could get the informant killed. The Messenger provides more detail on the various warnings the FBI gave Congress about protecting this information (contrary to its claim, this is not an exclusive; WaPo’s Jacqueline Alemany and Politico’s Jordain Carney both posted one of these letters on Twitter, but don’t appear to have written it up).

FBI officials cautioned lawmakers on several occasions about the dangers that releasing the document could pose to confidential informants and others, according to materials obtained by The Messenger.

“We have repeatedly explained to you, in correspondence and in briefings, how critical it is to keep this information confidential,” the FBI said in a June 9 letter, obtained by The Messenger, to the Democratic ranking member and chairman of the House Oversight Committee, Rep. James Comer, R-Ky., who has been scrutinizing the Biden family.

“We are concerned that Members disregarded the Committee’s agreement that information from the document should not be further disclosed,” the FBI said in the letter, which came one day after lawmakers on the Oversight Committee were permitted to view the document in a secured room.

Other documents obtained by The Messenger show that the FBI’s warnings not to release the confidential information extended back to May — before Comer and others were allowed to view the FBI form.

The FBI told lawmakers that protecting the secrecy of the FBI form is “critical” to the “physical safety” of the source and others, according to a May 30 letter sent to Comer.

[snip]

Members of Congress were also provided with a warning that the information contained in the document “should be treated confidentially,” before they viewed the form on June 8, saying the agency “expressly does not consent” to the release of the material.

The FBI also raised concerns that lawmakers were taking notes in the meeting, which was prohibited, according to the letter.

Grassley and Comer released this FD-1023 — in almost unredacted form — after FBI warned, multiple times, of the danger of doing so.

This, to my mind, is the biggest tell of this stunt.

If you want to fuel a controversy, you release the FD-1023, even at the risk of getting the informant killed or, at the very least, burning his value as an informant permanently. If you want to pursue the allegation, you do everything you can to protect the FD-1023 and the informant.

Especially given David Weiss’ notice to Lindsey Graham that there is an ongoing investigation into matters pertaining to the FD-1023.

Your questions about allegations contained in an FBI FD-1023 Form relate to an ongoing investigation. As such, I cannot comment on them at this time.

Unless, of course, the GOP is so desperate to kill that investigation that they’d be willing to get the informant behind it killed as well.

Update: Federalist Faceplant Margot, who occasionally gets fed disinformation from Bill Barr, says a source has told her the FBI verified that the human source traveled where he had claimed he had traveled at the times he said he had.

Following the late June 2020 interview with the CHS, the Pittsburgh FBI office obtained travel records for the CHS, and those records confirmed the CHS had traveled to the locales detailed in the FD-1023 during the relevant time period. The trips included a late 2015 or early 2016 visit to Kiev, Ukraine; a trip a couple of months later to Vienna, Austria; and travel to London in 2019.

She’s really one of the few people stupid enough to report this as news. After all, the FBI corroborated that Igor Danchenko traveled to Moscow when he said he had, too. All that meant was that he was in Moscow being fed disinformation when he said he was.

The same is especially likely here because, if the FBI had actual dates for the 2019 trip to London — as Faceplant Margot says they did — then it raises still more questions why they didn’t include the date.

Unless the date would have given up the game by making it clear it happened after Rudy’s made further deals for disinformation.

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The Funny Leak Denials of the So-Called IRS Whistleblowers

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In the hearing platforming the complaints of two IRS agents who are angry their case against Hunter Biden wasn’t charged as a felony, Joseph Ziegler — who had previously made a big deal of hiding his identity — was given an opportunity to deny being a source for public reporting on the Hunter Biden investigation.

In the exchange, Ziegler only denied being the source for Garrett Ziegler’s site — he was not asked, and he never denied, being a source for other media outlets.

Tim Burchett: It’s also come to my attention that today, after this hearing was already under way, apparently oppo research is circulating from, quote, Hunter Biden’s legal team, unquote, suggestions that you had leaked SARs and other investigative information to someone that had released that information online. Is there a statement that you’d like to make about whether you’ve leaked any investigative information to someone to reveal on the Internet? And I’m sure Hunter Biden’s legal team, who’s obviously watching right now, and these dirt bags are trying to smear you through the press. And it’s disgusting. And I’d appreciate hearing a direct answer from you, Brother.

Ziegler: So there’s two parts to this. There was that release of that bank report, my name was listed in there. So my name was out in the public as one of the IRS agents working this case. And that was maybe two or three years ago. So that came out. And then on top of that, me and my husband were in a report that’s out on social media, on Twitter, by a person with the same last name that I have who I’ve never met, I’ve never turned over information to, we just happen to have the same last name. Okay? I was, for my sexuality, my sexual orientation, my husband was put out there, like information related to me, so it was in an effort to discredit me that I’m this person working for the liberal side and I must, must be a plant. And it was awful the things that they were saying about me. But I can tell you that I’ve never turned over any information regarding this case to anyone related to that Marco Polo report or, someone with the same last name that I have.

It was not, at all, a denial that he was the source for other leaks to the press. It was a very limited denial, limited only to Garrett Ziegler, not generally.

He has made at least one other denial of leaking, which I’ll return to.

For now, I’m interested in the way that his claim, given under cloak of anonymity, that he and his spouse were harassed because his name showed up in the SARs and other legal process at Garrett Ziegler’s site is one reason he gave in his Ways and Means testimony for harping on his sexual orientation — about which of course, no Democrat would give a shit.

I’m an American, and my allegiances are to my country and my government. I’m also a gay man. I have a husband, two dogs, a home, and a life full of family and friends. But above all else, I’m a human being. My sexuality doesn’t define me as a person. It’s just who I love.

I’d like to say one more thing regarding this topic of sexuality, especially since it’s the start of Pride Month. But people have said that I’m gay and people have said, because I’m gay and that I am working as the case agent on this investigation, that I must be a far-left liberal, perfectly placed to fit some agenda. This was stuff that was on social media regarding me.

I can tell you that I am none of those things. I’m a career government employee, and I have always strived to not let politics enter my frame of mind when working cases.

I’ve tried to stay so nonpolitical that in the last Presidential election I voted but had decided to not vote for the Presidential candidate because I didn’t want to be asked that question in a court proceeding in the future and I didn’t want to show any potential bias. [my emphasis]

His sexual orientation is relevant to his testimony to the extent that right wingers harassed him after his name was made public by Garrett Ziegler.

In his opening statement this week, he used his sexual orientation again:

I had recently heard an elected official say that I must be more credible because I am a gay Democrat married to a man.

He can’t be accused of lying because he’s a gay man, he parroted others — who again, must be right wingers — as saying. He couldn’t have an association with efforts to leak the contents of a laptop that started getting packaged up the very same month he himself opened an investigation into a relatively small international tax cheat based off payments to Russian sex workers, his very first investigation in the group, because he would be harassed by associates of someone like Garrett Ziegler for who he is. In both cases, he used his sexual orientation as some measure of credibility, one that would never be convincing for actual Democrats, because Democrats just don’t give a shit (and know well that prominent gay men like Ric Grenell are truly epic right wing trolls). But Ziegler wielded his harassment by presumed frothers as if it ensures he’d never associate with people whose readers would harass a gay man.

Meanwhile, at Wednesday’s hearing, Gary Shapley was asked about leaks several times. In one exchange, Ro Khanna attempted, with limited success, to ask him a series of questions. In Shapley’s first answer, he claimed that he was the one who reported the October 6 to “our Inspector General,” so presumably Treasury’s Inspector General, TIGTA.

Ro Khanna: Let me just ask you on the media. You’ve given testimony under oath that you have never spoken to the Washington Post — any reporter on this matter, correct?

Gary Shapley: That’s correct.

Khanna: Do you know — have you spoken to any media outlet on this matter?

Shapley: Uh, I have spoken, after the House Ways and Means Committee,

Khanna: Before that, have you spoken to any media — journalists on this matter?

Shapley: Absolutely not.

Khanna: Do you know if any colleague of yours at the IRS has spoken to any journalist on this matter?

Shapley: Absolutely not.

Khanna: Do you know of any investigation into the leaks on this matter?

Shapley: Uh, … so the October 6 leak, I was the person who referred it to our Inspector General.

It’s an interesting claim because his own exhibit shows the FBI agent, Darrell Waldon, responding to Shapley’s email, which Shapley sent after 6PM on Friday October 7, before 8AM on the Tuesday after a Federal holiday, saying that he, Waldon, would take care of that referral.

It may be that Shapley did make a referral, either via email over the weekend or after receiving an email saying someone else was taking care of it. It may also be that Shapley made his own referral even after Waldon did, which sure might raise questions at TIGTA. But Shapley’s own document raises questions about this claim.

As Khanna attempted to question Shapley further, Shapley kept talking over him, reciting an obviously rehearsed response.  James Comer even tried to force Khanna to relinquish his time so Shapley could answer the question Shapley wanted to answer before Comer realized that’s not how it works.

Khanna: Do you know if any of your colleagues are under investigation —

Shapley: There was a leak on December 9, 2020, around the day of action. And I know the IRS Inspector General and DOJ IG are looking into…

Khanna: Do you know if any of your colleagues are under investigation? Sorry, if I could just finish. Do you know if any of your colleagues are under investigation for that leak?

Shapley: I know of no colleague under investigation for that leak [glances towards the Chair].

Khanna: And just for the record, it is your testimony under oath that you have never spoken to any media person before the House testimony about this matter?

Shapley: It’s not only my testimony under oath today, I’ve provided an affidavit to the House Ways and Means Committee saying the same. I’ve said it to our Inspector General’s office as well. [Crosstalk]

Khanna: I appreciate that. I just want to make a final point on this. One, I think that —

Shapley: Mr. Chairmain, you mind if I — [Shapley’s lawyers consulting behind him]

Comer: Can the Gentleman answer the question you asked, Mr. Khanna?

Khanna: I just don’t want my time to be–

Jamie Raskin: If you’re granting him the time, Mr. Chairman.

Khanna: I just want a minute to wrap up if you’ll give me time.

Comer: Okay, you have a minute.

Shapley was asked about leaks twice more, both times by Dan Goldman. In the first instance, Goldman asked how the October 6 leak came up in the October 7 meeting.

Goldman: You’re familiar with an October 6 Washington Post story entitled Federal agents see chargeable tax gun purchase case against Hunter Biden, is that right?

Shapley: Yes I’m familiar yes.

Goldman: And this was, this meeting occurred October 7, the day after this, right?

Shapley: That’s correct.

Goldman: Was this article discussed at that meeting?

Shapley: It was.

Goldman: And what was the nature of the discussion?

Shapley: Uh, it’s in that document, that email, that basically says we’ve got to keep the sphere small–

Goldman: So it’s pretty clear, you would agree, that this was a leak to the Washington Post by law enforcement agents since it describes what Federal agents believe, right?

Shapley: So it wasn’t actually clear to me that it was because usually they’ll say that it’s a law enforcement source that provided it, and if you see at the bottom it says they corroborated independently and they did not mention law enforcement. [Shapley’s attorney leans over to whisper to him]

Goldman: You don’t think it’s a Federal agent, agents, who leaked this when the headline says, Federal agents see chargeable tax gun purchase case against Hunter Biden?

Comer: Gentleman’s time is expired but feel free to answer the question.

Shapley was being questioned. But Ziegler piped in and offers up a December 9, 2020 leak.

Ziegler: So there, prior to that if you go back to December of 2020, there was another leak to the Washington Post that got, we had to get Department of Justice OIG involved, TIGTA involved so there was other leaks that happened prior to this to the Washington Post that I think, are important for us to understand as well.

Shapley: It has similar information as the October 6 leak.

It’s interesting that Ziegler piped in here, because answering a question about October 6 by raising the December 9, 2020 leak is what he did in his House Ways and Means testimony, too. Ziegler described that he told TIGTA that he believed a December 9, 2020 leak came from DOJ or (!!) the defense. He also described that “we would constantly be talking about” this subject.

Prior to this, there were other leaks. After our day of action in December of 2020, we got word that a couple of the news sources were going to release an article on the investigation. This was a couple days prior to us going public — going overt.

So that leak happened, and nothing changed after that one. And everything indicated, even in communication in meetings from what I recall — we thought that the leak was potentially from someone in [the] Department of Justice. So we would constantly be talking about, yeah, it’s not an IRS person. It’s not anyone on the team. It’s always — it appeared like it was someone from Department of Justice. So that’s what kind of shocked me with this moving forward.

I was interviewed by an investigator — I think they were with TIGTA. I told them, I didn’t leak anything. I thought that the leak might have come from either defense counsel, or from DOJ like the other ones came.

But back to Wednesday’s hearing. Goldman asked Shapley again about leaks in a later round.

Goldman: Gentlemen, I want to return to the Washington Post October 6 article and I’d ask unanimous consent to enter it into the record. In your testimony, Mr. Shapley, before the Ways and Means Committee, you stated, quote, there was a leak, it appeared to come from the agents level, who was critical of the prosecutors for not charging the case. What you testified earlier was a little different. Which one do you stand by today?

[pause]

Shapley: I’m sorry, could you repeat that?

Goldman, quoting: “There was a leak, it appeared to come from the agents level, who was critical of the prosecutors for not charging the case.”

Shapley: Yeah, I said it appeared, because I said it came from the agents’ level, but the source was a source familiar with the topic and it didn’t say it was a law enforcement source.

Goldman: Okay, that seems to be a distinction without a difference. And then, you understand that, obviously leaks of grand jury information is a felony, right?

Shapley: Leaking investigative information including 6103 would be a felony, yes.

Goldman: Well that’s true as well. So would you agree that there would be some skepticism from prosecutors about which of the agents may be the source of a leak?

Comer: Gentleman’s time is expired but feel free to answer the question.

Shapley: Since there have been multiple leaks in this investigation, and the one on December 8 or December 9, 2020, it appears to come from someone, as Lesley Wolf stated —

Goldman: I was just asking about October 6, 2022.

Shapley: So I

Goldman: It would cause anyone suspicion, right?

Shapley: If it says it comes from an agent level. [His attorney leans over, whispers something.]

Goldman: That’s what you said.

Comer: Gentleman’s time has expired.

Now, Goldman didn’t actually quote Shapley exactly. Here’s the full quote from Shapley’s Ways and Means testimony.

Q In No. 1 on this email you prepared, says: “Discussion about the agent leak — requested the sphere stay as small as possible…DOJ IG will be notified. FBI — HQ is notified.”

What was the specific leak?

A So there was a leak, I’m not sure what outlet, on October 6th of 2022 — it appeared to come from the agent’s level, who was critical of the prosecutors for not charging the case.

Q Okay. Talking about the Hunter Biden case?

A Yes, not charging the Hunter Biden case.

So, obviously that was part of the discussion at the beginning. And there have been multiple leaks in this case going back, and this one was handled a lot differently because I guess it was purportedly from the agent’s level.

So this drastic — you know, they used that as an excuse to kind of — to do what they were doing to us after this meeting on the 7th, they kind of used that leak as an excuse to exclude us.

In context, the view from others was that this was an agent level leak. Given his later use of the word, “purportedly,” I’m not sure it was Shapley’s espoused view.

I’m more interested in other aspects of this exchange.

In May, when Shapley answered a friendly question from the Majority Counsel, he feigned uncertainty what outlet this was from. In July, in public, Shapely kept answering questions about the October 2022 leak by responding about the December 2020 leak — and Ziegler explained they were doing so because “there was another leak to the Washington Post,” which by his telling they talked about all the time.

More interesting, though, is Shapley’s claim that, “this [leak] was handled a lot differently because I guess it was purportedly from the agent’s level.”

Both he and Ziegler described that this leak was the excuse to start excluding the IRS agents from the case.

But Shapley’s claim that the October 2022 leak was treated differently is likely false.

As I noted in this post, there was another leak, to the NYT in March 2022 (right after the IRS agents submitted their prosecution memo and asked DC to partner on it). That same month, for what Shapley presents as discovery purposes, everyone was asked for their email. But even though he had attempted to interview Hunter Biden himself in December 2020, he didn’t comply with that request.

It is common practice for DOJ to ask for the case agents’ communications in discovery, as they might have to testify in court. However, it’s much more unusual to ask for management communications, because it is simply not discoverable.

In March of 2022, DOJ requested of the IRS and FBI all management-level emails and documents on this case. I didn’t produce my emails, but I provided them with my sensitive case reports and memorandums that included contemporaneous documentation of DOJ’s continued unethical conduct. [my emphasis]

After the October meeting, prosecutors came back to Shapley, and asked again, which he got really touchy about.

[T]his was the culmination of an October 24th communication from Delaware U.S. Attorney’s Office and — well, it was really Lesley Wolf and Mark Daly who called the case agent, [redacted], on the telephone and said, hey, we need — we need Shapley’s emails and his — these sensitive case reports that he’s authored back to May.

And they didn’t ask for discovery for anybody else. They didn’t ask for, from the — mind you, the agents had provided discovery March-April timeframe, so there was 6 months or so of additional discovery, and they’re not asking for that, right? They’re only asking for mine.

So [redacted] sends me an email with Wolf and Daly on it that says, hey, you know, they asked for this, you got to talk to Shapley. I respond, hey, yeah, I’m available 9:15, let’s chat. And she sends that, she forwards my email to Shawn Weede, number [two] — a senior level at Delaware U.S. Attorney’s Office.

And then he contacts me about this discovery, and he’s kind of putting a lot of pressure on me. So even Weiss called up, the deputy chief, to complain about timing of the emails that got turned over from me at that request. [my emphasis]

It appears that it’s not that DOJ treated the leak differently, it’s that they noticed that the first time they asked for emails, he had blown off the request.

Again, as I noted here, as Darrell Waldon, the same agent who said he’d take care of the TIGTA referral, started reviewing his emails, Shapley asked for advance notice of anything suspicious — precisely the thing he said Hunter Biden should not get.

If you have questions about any emails I would ask you share it in advance so I can look at them and be prepared to put them into context. The USAO was so eager to got my emails (which they already had 95% of) … then surprise … they “might” have a problem with a few of them that memorialized their conduct. If the content of what I documented, in report or email is the cause of their consternation I would direct them to consider their actions instead of who documented them.

I have done nothing wrong. Instead of constant battles with the USAO/DOJ Tax, I chose to be politically savvy. I documented issues, that I would have normally addressed as they occurred, because of the USAO and DOJ Tax’s continued visceral reactions to any dissenting opinions or ideas. Every single day was a battle to do our job. I continually reported these issues up to IRS-CI leadership beginning in the summer of 2020. Now, because they realized I documented their conduct they separate me out, cease all communication and are not attempting to salvage their own conduct by attacking mind. This is an attempt by the USAO to tarnish my good standing and position within IRS-CI … and I expect IRS-CI leadership to understand that. As recent as the October 7 meeting, the Delaware USAO had nothing but good things to say about me/us. Then they finally read “discovery” items (provided 6 months previous — that are not discoverable) and they are beginning to defend their own unethical actions.

Consider the below:

  1. I am not a witness — therefor Jencks/impeachment is not an issue.
  2. I am not the receiver of original evidence nor engaged i any negative exculpatory language against the subject … My documentation only shows the USAO/DOJ Tax’s preferential treatment of this subject. [bold underline original, italics mine]

Shapley’s boss, Michael Batdorf, was, at that point, quite supportive of the possibility that Shapley would have concerns about prosecutorial misconduct. Two months later he began to put a hold on what Shapley and others were doing.

I don’t think any of this shows that these IRS agents were leakers one way or another, and I also think it likely that whoever did some of these leaks used a cut-out.

Shapley may not be the leaker. But he sure seems to be hiding stuff in his emails. And only after his emails got turned over did he start claiming to be a whistleblower.

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Michigan Attorney General Dana Nessel Charges Michigan’s Fake Trump Electors

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The whole time that DC journalists were focused on Fani Willis’s Georgia fake electors investigation and — more recently — Arizona, I was laughing because I knew prosecutors in Michigan were working away quietly.

Today, Attorney General Dana Nessel charged Trump’s 16 fake electors with 8 felonies apiece.

They include very senior Republicans, including former GOP Chair, Meshawn Maddock, and close Ronna McDaniel associate Kathy Berden.

As I noted in March, one thing horse race considerations always forgot is that very senior Republicans in at least three swing states risked charges themselves. They risked charges — and Trump attorney Kenneth Chesbro knew they did, because he wrote that down in a December memo.

Several States also had rules requiring electors to cast their votes inthe State capitol building, or rules governing the process for approving substitutes if any original proposed electors from the November ballot wereunavailable. As a result, Chesebro’s December 9, 2020, memo advised the Trump Campaign to abide by such rules, when possible, but also recognizedthat these slates could be “slightly problematic in Michigan,” “somewhat dicey in Georgia and Pennsylvania,” and “very problematic in Nevada.”18

In the case of Michigan’s electors, Michigan law requires electors sign their paperwork in the Capitol. Instead, Trump’s fake electors did that in the basement of their own party headquarters.

These defendants are alleged to have met covertly in the basement of the Michigan Republican Party headquarters on December 14th, and signed their names to multiple certificates stating they were the “duly elected and qualified electors for President and Vice President of the United States of America for the State of Michigan.” These false documents were then transmitted to the United States Senate and National Archives in a coordinated effort to award the state’s electoral votes to the candidate of their choosing, in place of the candidates actually elected by the people of Michigan.

As I said in March, no one can predict how the party will respond if Trump’s recklessness starts getting other senior Republicans charged.

We’re about to find out.

Update: Here’s the affidavit behind the charges.

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WaPo Is Suppressing Information that Might Debunk Devlin Barrett’s Latest Spin

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Last week, I asked the WaPo if they would release the two reports — one from Johns Hopkins professor Matt Green and the other from InfoSec expert Jake Williams — that were the basis of this report on the “Hunter Biden” “laptop.”

I had asked once before, in May 2022.

But since I had originally asked, a bunch of things had happened to make those reports more newsworthy. Hunter Biden had countersued John Paul Mac Isaac (here’s the WaPo’s report). James Comer has stumbled over and over in his unabashed effort to manufacture a scandal (in which the WaPo has played along, still treating it as a credible investigation). Delaware US Attorney David Weiss’ office released a plea deal to which Hunter Biden is expected to plead guilty next week (here’s the WaPo report). IRS agents claiming to be whistleblowers, Gary Shapley and Whistleblower X, shared notes that raised questions about the FBI treatment of the device (but WaPo didn’t mention that in their report). Abbe Lowell claimed that Shapley misidentified Hunter Biden’s interlocutors in some key WhatsApp messages (something else WaPo didn’t mention even while repeating the substance of the contested WhatsApp texts). Denver Riggleman, who has been working as part of a Hunter Biden team to examine what has been released, has alleged some of the data has been manipulated (something WaPo hasn’t bothered to cover at all).

That all led me to start looking at the publicly released (but unreliable) emails at BidenLaptopEmails dot com, where I’ve discovered that during a period when Hunter Biden was getting Ketamine treatment and bookended by two communications from him that indicated he was not getting outside comms, someone:

  • Split Hunter’s Uber account, on which his two iCloud accounts had previously been joined
  • Accessed Hunter’s rhb iCloud account from a browser
  • Changed the password and related phone numbers to his rhb iCloud account
  • Installed and gave full access to his droidhunter gmail account a real app, called Hunter, that can send email on someone else’s behalf
  • Signed into that droidhunter account using a new device
  • Again changed emails and phone numbers associated with his rhb account
  • Asked for a full copy of his rhbdc iCloud account
  • Reset the password of that rhbdc iCloud account
  • Made droidhunter account the notification email for the rhbdc account
  • Downloaded all Hunter’s Apple Store purchases
  • Made changes to the Uber (and Waze) account associated with an XS phone that would be included in the “laptop”
  • Restored rhb as an alternate address to the account
  • Restored contacts from an unidentified prior change
  • Obtained — including at the droidhunter email account — a download link of the entire rhbdc iCloud account
  • Backed up the XS phone to the laptop
  • Gotten a trial app of a photo editor
  • Backed up an iPad to the laptop
  • Changed the iTunes password
  • Added the Dr. Fone account, allowing you to adopt a chosen second phone number for a phone, to a second of Hunter’s accounts
  • Signed into the droidhunter account from a burner phone
  • Restored the prior trusted phone number
  • Added software that could record calls
  • Started erasing and then locked a laptop — probably the one that would eventually end up in Mac Isaac’s store
  • Got a new Mac phone for the droidhunter account

That series of changes are not the only emails in the MarcoPolo set that should raise questions about whether Hunter Biden’s digital identity may have been compromised.

Two that are important to the topic of this post are, first, that a great many devices logged into Hunter Biden’s iCloud accounts in 2018 and 2019, yet many of them don’t appear to be tied to him getting his own new iPhone or computer, and only rarely are the existing devices shut down or passwords changed afterwards. The sheer number should have raised alarms that people had broken into Hunter Biden’s iCloud accounts when the IRS asked Apple for Hunter Biden’s subscriber information in November 2019, in advance of writing a subpoena for the laptop in custody of John Paul Mac Isaac. Additionally, there were a bunch of attempts to get into Hunter Biden’s Venmo account, and the account added two new Remembered Devices within 12 minutes of each other in August 2018, one in the LA foothills and the other in Las Vegas. That and other details (including texts and emails) might have raised questions about whether sex workers from the very same escort service on which the IRS had predicated this entire investigation took steps to compromise Hunter Biden’s devices.

But the timeline above provides some reason to believe that at the time the “laptop” was packaged up for delivery to John Paul Mac Isaac, Hunter Biden did not have complete — if any — control of his own communications.

I wouldn’t be able to prove whether Hunter Biden was hacked during this key period in 2019. It would require subpoena power and access to reliable data. But as it happens, Whistleblower X had subpoena power — and was already watching Hunter Biden closely — in precisely the period this happened.

For those of us who don’t have subpoena power, though, we have to rely on publicly available evidence, filtered through partisan gatekeepers alleged to have tampered with the device.

The two reports done for the WaPo are the only known assessments of the drive containing the “laptop” primarily using forensic — as opposed to a correlative — methodology. The correlative methodology, which shows all the communications on the drive confirm the others, unsurprisingly concludes that the “laptop” came from one of Hunter Biden’s several iCloud accounts.

The forensic methodology looked for digital verification — not just of email signatures, but also of the drive itself. Both Green and Williams raised questions about the treatment of and missing digital signatures on the drive, questions that seem to match what Riggleman’s team is seeing.

Indeed, the concerns that Green and Williams raised may explain something the FBI itself found. Shapley’s notes recorded that on March 31, 2020, someone wrote an email “about quality and completeness of imaged/recovered information from the hard drive” — an email that was being intentionally withheld from the agents (especially Whistleblower X) who might one day testify at trial.

This sounds like it might reflect the same concerns raised by anyone external examining the drive forensically. If it does, it would suggest that some of the irregularities everyone can see in drives released via Rudy Giuliani and Steve Bannon always existed, including in the one shared with the FBI and in any separate drive shared with Republicans in Congress.

Because of all the new questions raised about the “laptop,” and because of the centrality that the Republicans want it to have on the upcoming election, I thought it reasonable to ask the WaPo to do what even the Washington Examiner was willing to do: show their work. While the Examiner’s report from Gus Dimitrelos tellingly excludes many of the details I’ve laid out above and hides both some key later device accesses and types of apps — especially spyware — loaded onto Hunter Biden’s iCloud accounts, while the way the Examiner released it exacerbated the privacy violations on Hunter Biden himself, it nevertheless was useful for explaining how two iCloud accounts were loaded up onto one laptop and how the government was able to obtain WhatsApp texts that don’t show up on the unencrypted parts of the laptop.

After I made several requests, WaPo PR manager Savannah Stephens declined to release the reports, calling the two reports, “foundational reporting documents.”

Marcy, thank you for reaching out. We do not release foundational reporting documents. Our coverage at the time was transparent about how the study was conducted, including this report.

Even though it has two reports that could significantly impact fairly pressing debates — debates the WaPo itself treats as important — the WaPo refuses to release more on these expert reports on the laptop.

Instead of doing that, the WaPo is instead paying Devlin Barrett to do what he does best — write down as true what right wingers tell him to write, not what the public evidence actually shows.

In a story with Matt Viser (the same guy who repeated the content of contested WhatsApp texts without revealing that Abbe Lowell had contested them), Barrett wrote that the testimony of the men he calls “whistleblowers” “show Hunter Biden’s laptop had little role in the investigation into Hunter Biden.”

Barrett and Viser utterly misrepresent the debate over the laptop — dodging the question, in the lede, at least, of whether the laptop can help get to the truth — something once considered the purview of journalism and something WaPo’s own report on this drive had previously done.

For more than two years, Democrats and Republicans have hotly debated the importance of the “Hunter Biden laptop” — insisting that it was either key evidence of corruption or fool’s gold meant to con 2020 voters into abandoning then-candidate Joe Biden.

Both theories were largely wrong, according to two of the agents closest to the investigation of tax crimes allegedly committed by President Biden’s son.

[snip]

But the agents’ accounts also indicate that the laptop played at best a small role in the criminal investigation into potential tax and gun-purchasing violations. Far from a smoking gun, the laptop appears to have been mostly an afterthought to the reams of text messages, emails and other evidence that agents gathered from Hunter Biden’s cloud data. A lawyer for one of those agents said he nevertheless was frustrated by the Justice Department’s refusal to let them review the laptop’s contents.

I’m very interested in the project of this column, because not only is this not what Shapley and Whistleblower X’s testimony said, but it misrepresented and misunderstands how evidence works.

This is a tax investigation. It came from, per Whistleblower X, his examination of what is probably a Russian escort service. But it’s a tax investigation: it relies on financial data that comes directly from banks and other financial institutions, institutions that are — to the extent they aren’t tainted by identity theft or hacking, like people seem to have tried to do to Hunter Biden’s Venmo — inherently reliable.

As for emails and texts, the IRS agents’ testimony (taken in conjunction with the report that the Washington Examiner was ethical enough to release), shows that the IRS didn’t obtain what is probably Hunter Biden’s rhb iCloud account — from which the cited, contested WhatsApp messages were probably obtained a second time — until August 2020, after it got some of the same material on the laptop. That potential taint may be why someone told Barrett to downplay the import of the laptop.

While the laptop may not have played a key role in substantiating a tax case against Hunter Biden, it may well have tainted the evidence in the case. It may well be part of the reason why Hunter Biden is getting to plead to misdemeanor rather than felony tax charges — because as even Whistleblower X explained that he had been told, there are emails that raised concerns about whether this could be charged at all, suggesting this case couldn’t withstand discovery.

Plus, WaPo is being coy here: The laptop may have played little part in a tax investigation reliant on bank records. But it did play a central part in allegations, including WaPo’s own reporting, of foreign influence peddling involving (among others), Burisma, the hack of which became public between the time the IRS started using this laptop as evidence and the time they learned Rudy Giuliani had a role in it.

That part is all pitch, though — yet another instance where Devlin Barrett writes down what right wingers tell him to say and WaPo reports it as if it were true. It’s what WaPo pays him to do.

It’s the claims about the laptop — from an outlet sitting on two reports that raise questions about its reliability — that I find especially curious. Start with this paragraph, which conflates the steps FBI took in November 2019 to authenticate that the laptop was Hunter Biden’s — subscriber information from Apple, a purchase record in Delaware, two but maybe only two phone calls with Mac Isaac, and “other intelligence” — with what the AUSA on the case said about it almost a year later.

After being handed the device by a Wilmington, Del., computer shop owner in 2019, the FBI quickly concluded by examining computer data as well as Hunter Biden’s phone records that the laptop was genuinely his and did not seem to have been tampered with or manipulated.

That last bit — “did not seem to have been tampered with or manipulated” — published by an outlet sitting on two reports that show the laptop was tampered with? It is a paraphrase from a meeting in October 2020, not a description of legal process served in November 2019. And therein lies a big part of the scandal.

In the actual quote, Wolf — painted as the bad guy here by the IRS agents — was saying that it “is not a priority” for the investigative team to see “if anything was added to the computer by a third party” even after learning that the lawyer for the President, whose demands for this investigation had raised influence problems from the start of the investigation, had some kind of tie to it.

This is as if Peter Strzok, rather than just failing to make sure people writing FISA applications had adverse information about the Steele dossier (which is what frothers think the IG Report showed), had instead said, “fuck it, I don’t care if it is tainted.” These notes show the Hunter Biden investigative team did what right wingers accuse the Crossfire Hurricane team of doing, blowing off the import of the involvement of a campaign in a key piece of evidence.

When the WaPo conflates those two items again later in the piece, they date the quote to May 2020.

Democrats suggested the data might have been doctored or possibly a Russian-backed disinformation campaign. The information provided by IRS agents to Congress seems to put both the accusations and counter-accusations to rest.

FBI agents were able to determine in early November 2019 that the device they had was registered to Hunter Biden, and phone records showed he had been in contact with the computer shop owner.

“We have no reason to believe there is anything fabricated nefariously on the computer and or hard drive. There are emails and other items that corroborate the items on the laptop,” Shapley wrote in notes that dated that determination to around May 2020.

Dating Lesley Wolf’s comment saying they had no reason to believe anything on the laptop was fabricated to May 2020 is either a deliberate error or a confession that two journalists proclaiming the laptop to lack any taint have no fucking clue what they’re reading.

Wolf said this, at a meeting the investigative team had on October 22, 2020, in the wake of the discovery that Rudy Giuliani had some tie to the laptop, as the team scrambled to memorialize how they had treated a key piece of evidence about which a bunch of questions would now be raised.

A Yes. So there are a couple significant parts of this. One was that, at this time, the laptop was a very big story, so we were just making sure that everything was being handled appropriately.

So we wanted to go through the timeline of what happened with the laptop and devices.

Because the laptop had become a huge story, “we were just making sure that everything was being handled appropriately,” Devlin Barrett’s star “whistleblower” explained.

And Shapley shows Wolf saying that they had no knowledge, in October 2020, of any fabrications on the laptop. But he records her saying that after “computer guy” said “they could do a csv list that shows when everything was created.”

That is, Wolf said this after “computer guy” described something they had not yet done ten months after obtaining the laptop, had not yet done two months after getting warrants relying on the laptop, that they would need to do to make sure the laptop had not been altered by third parties. Wolf said this after “computer guy” described that the FBI had not done very basic things to verify the integrity of the laptop they should have done ten months earlier, before relying on it.

Again, I’m not sure whether WaPo’s journalists are dishonest or just stupid. But this exchange is critical for another reason. Lesley Wolf’s assertion about the integrity of the laptop relied on correlation: by matching emails on the laptop with emails that could be obtained directly from the provider.

There are emails and other items hat corroborate the items on the laptop and hard dive.

This is the method that Washington Examiner’s expert used to proclaim the laptop authentic. It’s the method that a bunch of other right wing journalists have gotten experts to use to validate the laptop.

If you steal someone’s iCloud account, the way to prove that it is authentic is by proving that it is their iCloud account, which is what correlation does.

But “computer guy” was suggesting using a forensic method, ten months after the fact, to test the integrity of the laptop itself. DDOSecrets has done this test on the publicly released emails — and half of them have a last modified date of February 11, 2019, right towards the end of the timeline I show above.

Lesley Wolf made her comment on October 22, 2020. No one in Gary Shapley’s interview asked him what happened after that. Nor does Devlin Barrett seem curious to ask.

If “computer guy” subsequently did this test, there’s good reason to believe he would have found what DDOSecrets did: that while these emails match the ones in Hunter Biden’s accounts, they were all packaged up on February 11, 2019, at a time it’s not clear Hunter Biden had control of his own digital accounts.

If you use a forensic method to validate these files, you’re not going to get the same results as a correlative method. That’s why it would be very useful for the debate about the laptop for WaPo to share the two known expert reports done using forensic methods on the drive itself, rather than correlation.

There’s one more hilarious thing about this Devlin Barrett creation. He, predictably, repeats his “whistleblower’s” complaints about not getting stuff pertaining to the laptop.

Shapley said a federal prosecutor on the case, Lesley Wolf, told him that the IRS agents couldn’t see the laptop. “At some point, they were going to give a redacted version, but we don’t even think we got a full — even a redacted version. We only got piecemeal items,” Shapley told the committee, voicing his frustration that he would have liked to see all the data.

Devlin Barrett — dishonest or stupid? — quotes Shapley’s testimony out of context. The full quotation makes it clear Shapley is referring, again, to a discussion that took place on October 22, 2020. More importantly, Shapley is not referring to the laptop!!

And when it came down to item number 33 on page 2, Special Agent [Whistleblower X] is saying like, well, I haven’t seen this information. And AUSA Lesley Wolf says, well, you haven’t seen it because, for a variety of reasons, they kept it from the agents. And she said that at some point they were going to give a redacted version, but we don’t even think we got a full — even a redacted version. We only got piecemeal items [my emphasis]

That particular quotation, identified clearly as item number 33, is the report about the laptop — which I’ll copy again here to make it so easy even Devlin Barrett might understand it:

To help a right winger allege corruption, Devlin Barrett quotes his complaint that his team was not given the actual forensic report about the laptop. Corruption, in this story, is withholding a forensic report that might tell people what they need to know about the laptop.

And yet that is precisely what WaPo itself refuses to do: release two reports that raise questions about the quality and completeness of the drive.

According to Devlin Barrett’s own standard — at least the standard he applies when he’s parroting right wingers — withholding such a report is a sign of corruption.

Even the plain language of Gary Shapley’s contemporaneous notes show that Devlin’s claim that, “information provided by IRS agents to Congress” “put[s] … the accusations” that “the data might have been doctored or possibly a Russian-backed disinformation campaign” … “to rest” is wildly false (dishonest or stupid?). It does the opposite: It shows that ten months after beginning to rely on the laptop, the FBI still had not done basic forensic checks of the data on it and the AUSA leading the investigation didn’t think doing so was a priority.

That should be the story. That’s the scandal.

And true to form, Devlin Barrett spins the exactly opposite tale.

The WaPo has in its possession some of the only available information that can help to explain what the FBI saw by March 2020, two independent equivalent reports to the one that Shapley implies it is corrupt to withhold.

And unlike the Washington Examiner, they won’t release it.

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“I can get any source on the planet.” The Pre-History of Gal Luft’s Pre-“Whistleblower” Indictment

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In this post I noted that Gal Luft — the guy who got James Comer all hot and bothered about having a “whistleblower” confirming his conspiracy theories about Hunter Biden — was indicted on November 1, 2022, before the Republicans even won back the House. The timing alone debunks Luft’s and GOP claims that he was charged as retaliation for coming forward to Republicans.

But he might have been charged even before that.

That’s because the statutes of limitation for many of the substantive charges against him — save the alleged conspiracy to violate FARA — would have expired before he was indicted if he hadn’t fled the country when the person referred in his indictment as co-conspirator-1, Chi Ping Patrick Ho, was arrested in November 2017.

Here’s what the charges, duration, and five year Statute of Limitation looks like for the indictment against Luft.

It seems exceedingly likely that SDNY charged Luft on November 1, 2022 because that’s the day the Statute of Limitations would otherwise have expired on the headline charge: the conspiracy to get James Woolsey to act on behalf of CEFC by using Luft’s NGO as a cut-out.

But the five year Statutes of Limitations would have started expiring on the other substantive charges starting in November 2020.

DOJ could still indict Luft on those charges because — as they allude to in the indictment — once his alleged co-conspirator Patrick Ho was charged in November 2017, he fled the US and never returned.

Since the arrest of an associate (“CC-1”) on different U.S. charges in mid-November 2017, LUFT has remained outside the United States.

The known Luft docket doesn’t show any complaint prior to the indictment. But SDNY doesn’t always include prior charges in the prosecution docket (note, for example, that the Oleg Deripaska docket starts with a superseding indictment as document number 1, thereby hiding the timing and content of the prior indictment).

But if DOJ wanted to preserve those other charges until such time as they indicted on the last-expiring one, they might have obtained one or several serial complaints charging them, in case Luft ever happened to fly into the US unexpectedly, which would otherwise have cause those Statutes of Limitation to expire. If that’s right, then SDNY may have started charging Luft as early as November 2020, with more controversial charges involving Iran and Libya the following year.

With that in mind, I want to look at what the Patrick Ho prosecution — Luft’s alleged co-conspirator in counts 1 and 2, as well as Hunter Biden’s associate and legal client through the beginning of Ho’s own prosecution in 2018 — says about the investigation into Luft.

Based on search warrant return dates, DOJ appears to have obtained probable cause against Ho by June 20, 2016 — possibly based off a FISA warrant noticed during the prosecution. Before his arrest, DOJ continued to obtain Ho’s cloud communications at least through March 6, 2017 — meaning they were collecting communications Ho had with Luft during the period he was cultivating the Woolsey deal, and would have been collecting emails with Hunter Biden, except — unless I fucked up the search — none of the noticed email accounts show up in the MarcoPolo set.

While it’s clear CEFC did use charity to try to cultivate Hunter Biden, it’s not entirely clear what role Ho’s NGO played in that process (or whether Hunter had direct involvement with it). It’s worth noting on this point, charges against the Chadian whom Ho was convicted of trying to bribe were dropped. And Woolsey is not known to have been charged, in part because the Chinese payments to him were too well laundered through (allegedly) entities like Luft’s own NGO — likely the same reason why Tony Podesta wasn’t charged for involvement in Paul Manafort’s Ukrainian influence peddling.

Ho was first charged by complaint on November 16, 2017, then arrested as he landed in JFK two days later. On his arrest, the FBI took possession of six USB drives, at least two phones, and an iPad, all of which they presumably searched.

In the wake of Ho’s arrest, DOJ took other overt steps, which they cited in a detention filing to describe how much more they learned after Ho’s arrest. Those steps including interviewing witnesses, executing search warrants — including for Ho’s Virginia NGO, and subpoenaing documents from third parties.

The government first publicly mentioned the arms and Iran conduct subsequently charged against Luft in an October 2018 motion in limine. Because Ho seemed to be preparing to claim his involvement in Chad and Uganda — the two countries he was charged with attempting to bribe — involved charity, a defense that would have skirted aspects of the charged crime, Foreign Corrupt Practices Act, the government argued they should be able to introduce evidence that Ho was pushing CEFC business, not just charity.

On October 2014, the defendant sent his assistant an email stating, “I am going to BJ [i.e., Beijing] this Friday to see [the Chairman of CEFC NGO and CEFC China] on Sat afternoon. The documents I want to send him before hand in separate items are: . . . 7. Iranian connection (brief).”4 On the same date, the defendant sent his assistant another email, attaching a document, which stated, in pertinent part:

7) Iranian Connection . . . Iran has money in a Bank in china which is under sanction. Iran wishes to purchase precious metal with this money. The precious metal is available through a Bank in HK which cannot accept money from the Bank in China which holds the money but is under sanction. The Iranian agent is looking for a Chinese company acting as a middle man in such transactions and will pay commission. (details to be presented orally) The Iranian connection has strong urge to establish trading relationship with us in oil and products . . . .

The following year, in June 2015, the defendant received an email that stated, in pertinent part: “The Iranian team will arrive in BJ . . . . See the attached.” The attachment referenced in the email was a PowerPoint presentation entitled “Presentation to Potential Partners Iran Petroleum Investments.” The next day, the defendant forwarded the email to his assistant, stating, “For writing report to [the Chairman of CEFC NGO and CEFC China].”

The following year, in June 2016, the defendant emailed another individual, blindcopying his assistant, and stated, in pertinent part, “Will get [two executives of CEFC China] to meet with [oil executive at company with operations in Iran] in BJ, and [another individual] also on another occasion if he comes. You can start organizing these. . . . Other matters ftf [i.e., face to face].” [paragraph 78]

[snip]

The defendant also sought to and did broker arms transactions unrelated to the Chad and Uganda schemes charged in this case. For example:

In March 2015, an individual sent the defendant an email, stating, “I have the list and end user agreement. Pls advise next step.” On the same day, the defendant replied, in pertinent part, “Find a way to pass them onto me and we can execute that right away[].” The individual replied, “Attached. [W]e have the funding and processing mechanisms in place. If it works nice there will be much more. Also for S. Sudan.” The attachment to this email was a document entitled “End User Certificate,” certifying that the user of the goods in question would be the Ministry of Defense of the Republic of Libya. The goods listed on the document included numerous arms. [paragraph 48]

The following month, the defendant sent an email that stated in pertinent part: “It so turns out Qatar also needs urgently a list of toys from us. But for the same reason we had for Libya, we cannot sell directly to them. Is there a way you could act as an intermediary in both cases?” The person whom the defendant emailed replied: “Qatar good chance bc there is no embargo. Libya is another case bc going against an embargo is tricky.” The defendant responded: “Qatar needs new toys quite urgently. Their chief is coming to China and we hope to give them a piece of good news. Please confirm soonest.” [paragraph 48]

As linked above, several of the documents described in this motion describing “other uncharged conduct” are documents listed in Luft’s own indictment. Given that he fled upon Ho’s arrest, he seems to have recognized the threat to himself at that point, in 2017. If not, the public docketing of these documents should have made that clear.

The government repeated these references to communications with Luft — among other places — in their sentencing memorandum for Ho, submitted on March 18, 2019, just days before the meeting with Luft in Belgium.

So Luft was on notice about this part of the criminal investigation into him when he arranged that meeting and pitched dirt on Hunter Biden. The meeting was literally days after Ho was sentenced on March 25, 2019.

SDNY didn’t charge Ho with either of the conspiracies in which he is named as Luft’s co-conspirator, even though their understanding of the arms control conspiracy was well-advanced by the time of his trial in November 2018. He remained imprisoned in the US until June 8, 2020, well over a year after the interview with Luft, after which Ho was deported to Hong Kong. Admittedly, that was the height of the pandemic and Ho was already 70, and so would have been difficult to keep jailed.

But the timing of Luft’s meeting with the SDNY and FBI — literally days after Ho’s sentencing — suggests that SDNY took that opportunity to advance the several overt prongs of the investigations against him, regardless of what dangle — true or not — about Hunter Biden Luft offered. They had already, publicly, made clear they believed it was criminal conduct.

Luft was on notice about that before the Brussels meeting and, as alleged in the indictment, he lied about the arms control scheme and discussions with Iran.

It probably would have been easier to extradite him from the US Embassy in Brussels than it would from Cyprus, so clearly SDNY wasn’t ready to arrest him yet.

There’s no False Statements charge in the indictment pertaining to Woolsey, however, so it’s unclear whether the FBI asked Luft about that.

Trump’s Criminal Division head, Brian Benczkowski, took credit for the Ho sentencing (and may have had to approve the meeting with Luft). So it seems likely even Bill Barr’s DOJ were fine with those two prongs of the Luft prosecution.

The Woolsey allegation, of course is a different matter.

So, too, might another one be.

Count 7 of his indictment charges Luft with violating sanctions against Iran. It starts, as such charges do, with an explanation of the IEEPA authorizing such sanctions, generally. It spends six paragraphs describing the sanctions regime against Iran. It spends eight paragraphs describing the charged conduct involving Iran. Then, before the two paragraphs charging Luft for evading Iran sections, his indictment includes this paragraph:

80. Several months later, on or about October 10, 2016, CC-2 emailed GAL LUFT, the defendant, that CC-2 had a Chinese client who needed Russian oil, which LUFT confirmed he could help provide: “I just got off the phone with Russia. They have this.” Forwarding this email to CC-1, LUFT wrote: “If [CC-2] really has this client we need to grab it. This is exactly what we need. . . . I can get any source on the planet.”

That’s not related to the current charges (though if Luft continued to pursue business with Russia, particularly after 2017 and 2022 sanctions, those might amount to IEEPA sanctions violations as well). But it suggests DOJ’s interest into Luft may extend beyond China.

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Hunter Biden’s Uber Connection and the K Street Collision

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On December 3, 2018, at least per emails in the MarcoPolo set at BidenLaptopEmails dot com, Hunter Biden accessed his Uber account by logging in using his phone, but logging in through what appears to be a Comcast connection in Newburyport, MA, where he was getting treatment from Dr. Keith Ablow.

I found this request as part of my effort to figure out which iCloud accounts were run by which devices during the period — roughly January 14 to February 15, 2019 — when his digital life was being taken over and packaged up as part of a huge political hit job to be used against his father the following year.

It was surprisingly common for Hunter Biden to access Uber by logging in using a browser from a Mac computer, not the phone app. I’m not an Uber user, but isn’t the point that the service relies on tracking you via your phone and its location data?

But when Hunter Biden logged into Uber using his phone, the normal way, he appears to have used his cell service. Again, the normal way.

But on December 3, 2018, Hunter Biden logged into Uber using some Comcast network — not his cell service — in Newburyport MA, in the town but not the exact location where Dr. Ablow’s practice was; this also appears to be a different location from where Hunter would stay in January, as well.

As I laid out in this post, there were several instances during the period where Hunter Biden appears to have been getting his digital life hacked where his communications didn’t connect, starting with an exchange in January 2019 that Keith Ablow facilitated, in Hunter’s first known email to the shrink. It was an exchange asking two doctors for assistance. Hunter asked at one point, “Guys are you getting my emails?,” and contrary to Ablow’s assurances, it appears they were not. If Hunter wasn’t accessing his cell service in this period, that might help to explain why he was sending messages that their recipients weren’t getting.

But this Comcast log-in to Uber is notable for several other reasons.

Around February 13, 2018, Hunter had added his rhbdc iCloud account — the account believed to be taken over a year later — to his Uber account; prior to that his account was exclusively registered to his rhb iCloud account — the account that would be exposed via an encrypted phone backup available through iTunes. For most of 2018, Hunter Biden’s Uber account was common to both of those iCloud accounts. Both emails would get a notice whenever he used the service.

On December 1, 2018, the password was changed, with notice to just the rhb account. There were a bunch of rides on December 3, paid by Venmo (Hunter’s Venmo had definitely been compromised earlier in 2018, but that’s for another post), the Uber receipts for which don’t appear to be in the MarcoPolo stash of emails. On December 3, the rhbdc account password was changed. There was one ride on the rhbdc Uber on December 3 in Newburyport, the same location where the password had been changed.

But from December 3, 2018 through at least February 8, at least per the emails that ended up in the MarcoPolo set, just his rhbdc iCloud account was getting notices from Uber. The first trip showing that Uber had been set back to the way it had been was on February 19, 2019. Then, in the very last days of this email set, following new devices being added to Hunter’s Uber account, three or even four receipts show up.

Some of the rides during this period are pretty interesting, too — such as a 50-minute, 15-mile drive (with no wait time) to go .1 mile around the corner on a key day of the account takeover.

And while it doesn’t show up in the emails, per Gus Dimitrelos — the forensics guy who did a long report for Washington Examiner — the iPhone XS that would be stored to iTunes (registered to the rhb iCloud) had an Uber account showing a modified date on November 22, 2018, a created date of January 22, 2019 — right in the thick of events, and an accessed date of February 3, 2019. I don’t believe those Uber events show up in the MarcoPolo set, even though the set includes emails from both the rhb and rhbdc iCloud accounts and so should reflect changes made on the rhb Uber account.

Among other things, by splitting these two Uber accounts, you might show “Hunter Biden” in two different places at one time. Imagine, for example, if the “other intelligence” the IRS used to justify obtaining the laptop from Mac Isaac was just one of two Uber accounts showing him to be in Delaware?

The possibility that a digital or even physical Hunter Biden was in two places at once in this period brings me to a story about Lyft.

In addition to Hunter’s failed attempt to email two doctors in early January 2019, this post describes a few other communication disconnects in this key period.

  • He failed to respond to Ablow’s practice manager when she tried to respond to his droidhunter88 account on January 15
  • On January 18, Ablow entirely rewrote a statement for Vanity Fair in such a way that Hunter’s attorney George Mesires — who appears to have passed it onto the magazine — would not have realized it

Metaphorically, at least, Hunter Biden was not publicly speaking for himself in this period.

But there’s one more potential communication disconnect from this period.

On January 24, 2019, an Ablow associate, Greg, had a meeting with Hunter Biden at which (per an email the associate wrote memorializing the meeting), it was decided that Greg would be Hunter’s “Chief of Staff.”

The email memorialization had a list of things Greg was going to do, including communication with two of Hunter’s kids and his lawyer.

And his father’s assistant.

Among the things on the list — right next to sky diving and flying lessons ASAP — was a note to talk to Katie Dodge: “ski’s and gear – need phone number and address to ship to.”

Katie Dodge was Hunter Biden’s long-time personal assistant, who already was doing the administrative things on this list, though not the flying lessons and sky diving. Dodge was doing those administrative things for income less than half of what Greg proposed he should be paid, to do what Dodge was already doing (again, less the flying lessons and sky diving).

On January 29, 2019, five days after this meeting at which Greg made himself Chief of Staff in charge of contacting Dodge about skis and boots — per SMS texts published by Dimitrelos — Dodge wrote Hunter and asked him about paying for his storage facility. At least per the published SMS texts, this was the first she had spoken to Hunter via SMS text since October 2018.

After an exchange about the storage facility, Hunter asked whether she could get his skis and boots and send them to him, “here,” by context, in MA.

Can you get my ski bag- and ski boots – from storage. Fed-ex can pick them up and deliver here or there’s another company that does that and I can get them if someone puts skis and boots where they can pick up.

She seemed surprised by the request, and asked if they had previously been at K Street. She agreed to go get the skis — but noted that would require paying the overdue storage bill — and asked where she should be overnighting them.

Also what resort do they need to go to? What are the dates?

Hunter had no idea where he’s going to be using these skis that he asked her to overnight to MA.

I have neither.

She appears to have sent them, because on February 8, 2019, she asked,

Did you receive your skis?

This SMS conversation — focused largely on paying bills — went on for almost two more weeks. Then, on February 20 (the day after Hunter’s Uber account was restored to the way it had been before December 3), in response to a question about a particular financial change he said he wanted to make, which they had already discussed on February 15, Dodge asked if he had made the call to make that happen.

He seems to have missed that instruction entirely — because of “limited access to communications on all forms.”

No didn’t ! I’ve got limited access to communications on all forms

Then — in what seems like a muddled voice-to-text transmission — he asked her about the skis that she appears to have retrieved from storage by February 8, as if he doesn’t know that.

Ivan you get the skis done I’ll send you a dress tomorrow

She already sent the skis somewhere, but he was offering to send her the address in MA “tomorrow,” so on February 21.

I’m interested in the skis and Dodge’s efforts to retrieve them from storage in the DC area and her follow-up about them on February 8 because one of the things in unallocated space that someone tried to delete — again, per Dimitrelos’s reports — were the February 7, 2019 texts and collision report from a Lyft driver who apologized to “Mr. Biden” for the collision they had had the previous evening, February 6, at roughly this ridiculous part of K Street in Washington DC.

Hunter Biden’s long-time assistant wrote him on February 8, asking if he got the skis she made significant efforts to send him from the DC area to MA a week earlier, with absolutely no awareness that Hunter — or someone presenting as Hunter Biden — was on K Street, side-swiping or getting side-swiped by a Lyft driver.

Now, certainly, it was possible that Hunter Biden drove from MA to DC to be present for a car accident on February 6, 2019. Maybe the trip — by whomever — served to pick up those skis.

But neither he nor his personal assistant seems to have had any clue that that had happened.

Update: After several tries, I’ve taken out errors regarding when the Uber for the XS was set up. Thanks to zscoreUSA for the persistence.

Related posts

The Laptop Everyone Knows as Hunter Biden’s Appears to Have Been Deleted Starting February 15, 2019: This post describes a number of the events that occurred in the key time period, and has a timeline that will have to suffice until I tidy up an updated one.

Gary Shapley and Hunter Biden’s Colleague Named “Z”: One thing that happened in the key period in 2019 is that Hunter Biden’s contacts were restored — which creates the possibility that the publicly released contacts reflect alterations.

Hunter Biden’s Matryoshka Cell Phone: How the IRS and Frothers Got Hunter’s Encrypted iPhone Content: The “laptop” as we know it appears to be the entire iCloud of one Hunter Biden account and a phone containing another iCloud account saved — during the period of compromise — to his iTunes account.

Keith Ablow’s Unallocated Space in Hunter Biden’s Memory: When Hunter Biden went to Newburyport, MA to get Ketamine treatment from Fox News personality Keith Ablow in early 2019, he had a series of communications failures that prevented him from speaking to others directly.

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