March 28, 2024 / by 

 

The US Attorney for Delaware Treats Contract Law as a Hypertechnicality

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Neither happened. [my emphasis]

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

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

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

His response to the tolling question is even nuttier.

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

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

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

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

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

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

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

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

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

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


Alexander Smirnov Shared an Already-Debunked Fox News Hoax with His FBI Handler

There’s a mistake that many people covering the Alexander Smirnov case make. This is one example, but similar examples appear everywhere (including in claims made by Democrats in Congress yesterday).

Parnas noted the recent indictment of former FBI informant Alexander Smirnov, who is accused of providing false intelligence about the president and his son during the 2020 presidential campaign. Prosecutors said the information Smirnov shared about the Bidens came from “officials associated with Russian intelligence” and that he was peddling “new lies that impact U.S. elections after meeting with Russian intelligence officials in November.”

The error is in claiming that prosecutors have said that the false claims Smirnov made in 2020 came from Russian intelligence.

Prosecutors have said that Smirnov attributed claims made last September in his FBI interview to Russian spies. That’s the claim that the Russians recorded calls that Hunter Biden made from a hotel in Kyiv.

51. The Defendant also shared a new story with investigators. He wanted them to look into whether Businessperson 1 was recorded in a hotel in Kiev called the Premier Palace. The Defendant told investigators that the entire Premier Palace Hotel is “wired” and under the control of the Russians. The Defendant claimed that Businessperson 1 went to the hotel many times and that he had seen video footage of Businessperson 1 entering the Premier Palace Hotel.

52. The Defendant suggested that investigators check to see if Businessperson 1 made telephone calls from the Premier Palace Hotel since those calls would have been recorded by the Russians. The Defendant claimed to have obtained this information a month earlier by calling a high-level official in a foreign country. The Defendant also claimed to have learned this information from four different Russian officials. [my emphasis]

The reference in the detention memo to Russian spooks, relied on by NBC to substantiate the claim, appears to be a reference to this story, one Smirnov told in 2023. David Weiss appears to be sure that Russian spooks really did tell Smirnov this; he used it to justify detention.

Thus, Smirnov’s efforts to spread misinformation about a candidate of one of the two
major parties in the United States continues. The Court should consider this conduct as well
when evaluating his personal history and characteristics. What this shows is that the
misinformation he is spreading is not confined to 2020. He is actively peddling new lies that
could impact U.S. elections after meeting with Russian intelligence officials in November.

I’m not entirely convinced Smirnov’s Russian spook buddies did tell him this.

After all, prosecutors laid out why it cannot be true that Russia really got recordings of Hunter in the hotel. Hunter has never been to Kyiv, much less this hotel.

If Russian spies actually told Smirnov this, it would either be false, intended to deceive Smirnov, or based on a deep fake.

But I also think it’s possible that, during the September interview, Smirnov started to realize that the FBI had caught him lying, and so invented the story — based on what I understand to be a widely-understood assumption about the Premier Palace — to appear to be useful to the FBI. When you’re a snitch, you’re generally safe doing whatever so long as you remain useful. So Smirnov may have just tried to protect himself by inventing something useful.

As I tried to show here, there’s actually some reason to believe he subsequently created a reporting trail retroactively on this, as if he hadn’t ever made this claim to his handler before his FBI interview and so had to report it prospectively to the handler to cover the claim he made to the FBI. The timeline shows that Smirnov attributed something to four Russian spies in September 2023, but then told his handler he learned it as if it were new in December 2023.

I don’t believe any court filings have yet attributed Smirnov’s false claim in 2020 to Russian spooks.

Indeed, he didn’t have the ties to Russian spies in 2020 he claims to have now. While Smirnov appears to have had ties to Russian Official 5 in 2020 — the guy he flipped for a different, probably Israeli, intelligence service in 2002 but didn’t tell his handler about until 2019 — and through him, Russian Official 6, many of his more senior ties to Russian spooks appear to post-date 2020.

A far more relevant tie in 2020 is his professed tie to Viktor Shokin, going back to 2016.

50. The Defendant told investigators that he had asked the then-Ukrainian President to arrange a meeting between himself and the then-Ukrainian Prosecutor General to talk about Burisma. The Defendant told investigators that this meeting occurred before the then-Ukrainian Prosecutor General resigned, which was early 2016. The Defendant also told investigators this meeting occurred before his meeting with Burisma Official 1 in the coffee shop in a German speaking country. The Defendant told investigators that after he met with the thenUkrainian Prosecutor General, he met with the then-Ukrainian President. The Defendant did not provide any of this information to the Handler in 2020.

Still, one way or another, I don’t believe any court filing tells us who got Smirnov to lie in 2020. It’s one reason I keep insisting that learning how Scott Brady came to look for him may be the most important investigative question, not least because David Weiss has an enormous disincentive to chase that down.

All the more so given the backstory to this photo, which appears in the indictment. After Smirnov promised his handler that he would prove Joe Biden had received a bribe, Smirnov told his handler this picture showed Joe and Hunter Biden with Mykola Zlochevsky.

 

Nancy Mace used the same photo in yesterday’s hearing in an attempt to corroborate serial fraudster Jason Galanis‘ story.

It’s actually not, at all, clear where the picture came from — I’m not even aware that it came from “the laptop.”

But it was first published by Tucker Carlson, then adopted by Fox News, as part of Rudy’s propaganda campaign in 2019, as impeachment began to roll out.

Don Jr posted it.

Then Trump referenced it on Xitter.

The claim was debunked repeatedly: by PolitiFact on October 8, by CNN, and then by USAT after it went even more viral after the release of “the laptop” in 2020 (and therefore after Smirnov’s claims).

And yet, even though this photo had gone viral in 2019, in conjunction with Trump’s impeachment rebuttal, Smirnov made the same claim again in May 2020.

And his handler either didn’t realize or didn’t care that Smirnov was recycling a widely debunked lie, nor is there any evidence the handler pointed out to Scott Brady that it discredited Smirnov’s other claims.

Sedition Hunters will tell you that the FBI is nowhere near as good at using facial recognition as they are (which may not be a bad thing). But the notion that an informant would share such a widely disseminated photo and no one at the FBI would figure out it had been used by Trump and his backers as part of a false propaganda campaign the year before?!?!

Really???

I’ll repeat again: the investigation into this attempt to frame Joe Biden needs to be removed from David Weiss’ purview and put in the hands of someone who’ll review how the FBI let itself get fooled by a widely disseminated piece of propaganda, and why the Attorney General ensured that such embarrassing propaganda got funneled to an ongoing investigation into Joe Biden’s kid.

Because this is just embarrassing.

Alexander Smirnov may have gotten the false claim he made in 2020 from Russian spies. He may have gotten it from Viktor Shokin.

Or maybe he just got it by watching Fox News.

Update: Noted that the USAT rebuttal came after Smirnov’s claims; the others came before.


Judge Mark Scarsi Orders Briefing on Whether David Weiss Is David Weiss

I don’t think Judge Mark Scarsi is going to be very sympathetic to Hunter Biden’s arguments.

But I will give him this: The judge works quickly and attentively.

Just days after Hunter Biden submitted his reply briefs, Judge Scarsi noticed that Hunter’s attorney Abbe Lowell raised two issues in his replies to two technical motions to dismiss that Lowell had not raised in his original motions. Scarsi issued an order offering David Weiss the opportunity to file 5-page sur-replies to each and also ordered Lowell to submit three exhibits he mentioned if he wanted those to be considered as part of the record.

One new issue pertains to whether Weiss is estopped (pages 4-6) from arguing that Hunter was a resident in California in 2017 and 2018 after asserting he was a resident of DC in the DE tax information (I’m not convinced the record on that point backs Lowell).

A more interesting — but related one, one I have raised — has to do with whether two tolling agreements that Hunter signed with the US Attorney for Delaware and DOJ Tax Division apply in the case of an indictment obtained by Special Counsel David Weiss.

I. THE TOLLING AGREEMENTS DO NOT TOLL THE SOL BECAUSE THE SC IS NOT A PARTY TO THOSE AGREEMENTS

The SC’s reliance upon two tolling agreements with Biden is misplaced because the SC is not a party to those agreements. Those agreements are between Biden and the U.S. Attorney’s Office for the District of Delaware and the Tax Division at Main Justice (which acts through specific U.S. Attorney’s Offices). At the time Biden entered into these tolling agreements, he knew he was being investigated for tax violations by the U.S. Attorney’s Office for the District of Delaware, District of Columbia, and the Central District of California, but he entered tolling agreements only with Delaware. Venue and statute of limitations considerations would be unique as to each District.

Similarly, Biden did not enter into any tolling agreements with the SC, as no SC had even been appointed to investigate him when these tolling agreements were signed. The fact that the U.S. Attorney for Delaware David Weiss was subsequently appointed as SC—as opposed to someone else—does not mean the SC’s Office suddenly became a party to those prior agreements. The agreement is with the office, not the man (who did not sign these agreements in any event; AUSA Leslie Wolf signed on behalf of the Office and she is not a member of the Special Counsel’s Office). Weiss’s U.S. Attorney team is separate from his SC team, complete with distinct websites, email addresses (which they insist be used in place of their USAO addresses), stationary, and, more importantly, different responsibilities. Surely, the Delaware Office would not claim that such agreements become void whenever the U.S. Attorney leaves the office. Nor could anyone claim the State of Delaware would be a party to such an agreement if Weiss had become Attorney General of the state instead. Similarly, if John Doe had been named SC, instead of Weiss, there would be no basis for Doe to claim he inherited the tolling agreements entered into by Weiss or any other U.S. Attorney.

Tolling agreements are contracts, and the entry into those agreements by one U.S. Attorney’s Office does not typically bind other government entities absent language saying so. See, e.g., United States v. Viola, 562 Fed. App’x 559 (9th Cir. 2014) (Probation not bound by U.S. Attorney’s plea agreement); see also SOS Co. v. E-Collar Techs., 2017 WL 5714716, at *5 (C.D. Cal. Oct. 17, 2017) (tolling agreement did not apply to non-party that was not the alter ego of a party); Osman v. Young Healthcare, 2023 WL 2021703, at *7 (E.D. Va. Feb. 15, 2023) (tolling agreement with Department of Labor with respect to certain named plaintiffs’ claims did not extent to unnamed plaintiffs); United States v. FedEx Corp., 2016 WL 1070653, at *1 (N.D. Cal. Mar. 8, 2016) (finding tolling agreement with one company did not apply to a related company, even where government believed the agreement covered all related entities); Morning Star Packing v. Crown Cork and Seal, 2004 WL 7339592, at *7 (E.D. Cal. Aug. 3, 2004) (tolling agreements cannot be extended to new parties). The general rule is that agreements entered into by one U.S. Attorney’s Office binds only that office, unless stated otherwise. United States v. Annabi, 771 F.2d 670, 672 (2d Cir. 1985) (“A plea agreement binds only the office of the United States Attorney for the district in which the plea is entered unless it affirmatively appears that the agreement contemplates a broader restriction.”).2 Federal prosecutors in one office, for example, may prosecute a defendant who is immunized by an agreement with another office. See, e.g., Sertich, 649 F.3d 545, at *1 (ND Ind. Prosecution not barred by CDCA plea agreement); United States v. Laskow, 688 F. Supp. 851, 853 (E.D.N.Y. 1988) (finding EDNY prosecution not barred by CDCA plea agreement).3 What is good for the goose is good for the gander. The same rules that hold one U.S. Attorney’s Office not bound by plea agreements reached with other Offices mean that one Office cannot seek the benefits of tolling agreements reached by other Offices. Prosecutors should not be allowed to elect whether they are or are not bound by agreements between other Offices and defendants, depending on what suits them. Moreover, as with plea agreements and diversion agreements, any ambiguities in tolling agreements are construed in the defendant’s favor. See, e.g., United States v. Spector, 55 F.3d 22, 26 (1st Cir. 1995); United States v. Goyal, 2007 WL 1031102, *3 (N.D. Cal. Apr. 3, 2007).

2 The Diversion Agreement made with respect to Biden illustrates the difference. It provides: “This Diversion Agreement (the ‘Agreement’) is entered into between the United States of America, by and through the United States Attorney’s Office for the District of Delaware, and Robert Hunter Biden (“Biden”), collectively referred to herein as ‘Parties,’ by and through their authorized representatives.” (DA ¶1.) Thus, in the Diversion Agreement, the U.S. Attorney’s Office is executing the agreement on behalf of the United States. By contrast, the tolling agreements indicate that the party is the U.S. Attorney’s Office, but not the United States as a whole. Compare United States v. Sertich, 649 F.3d 545, at *1 (9th Cir. Oct. 24, 1995) (unpublished) (explaining an agreement that is confined to a particular U.S. Attorney’s Office binds only that office, as opposed to a more general agreement that binds the United States as a whole), with Thomas v. INS, 35 F.3d 1332, 1335 n.1 (9th Cir. 1994) (explaining an agreement made on behalf of the United States government, as opposed to a sub-part, applies to the government as a whole); United States v. Harvey, 791 F.2d 294, 301−03 (4th Cir. 1986) (explaining that an agreement entered into on behalf of the United States, as opposed to just a particular U.S. Attorney’s Office, binds the United States as a whole); see also Morgan v. Gonzales, 495 F.3d 1084, 1091 (9th Cir. 2007) (“As a general matter of fundamental fairness, promises made by the government to induce either a plea bargain or a cooperation agreement must be fulfilled. . . . A United States Attorney is authorized to enter into cooperation agreements and, in so doing, to make promises that are binding on other Federal agencies.”) (citations omitted).

3 By analogy, Andrea Gacki recently transitioned from her role as Director of the Office of Foreign Assets Control to being Director of the Financial Crimes Enforcement Network. It is difficult to imagine that anyone would think the agreements reached by OFAC under her watch no longer bind OFAC or that FinCEN is now bound by those OFAC agreements.

As I may follow-up, David Weiss is engaged in a number of such shell games, picking and choosing where his legal persons carry over and do not, and where his biological person can avoid accountability.

A far more urgent one than these tolling agreement pertains to discovery: Weiss seems to imagine that by becoming Special Counsel, he avoids discovery into materials held by or known to US Attorney David Weiss, including his conversations with (most pertinently) Los Angeles US Attorney Martin Estrada (who, after reviewing the merits of the case, decided not to join it), DC US Attorney Matthew Graves, and DOJ Tax Division (the last of which is a party to the tolling agreement). This is actually the opposite of how Jack Smith has operated and how the Crossfire Hurricane to Robert Mueller to Jeffrey Jensen inquiry operated with discovery, which carried over as one legal entity became another. I asked Weiss’ office some time ago whether they were adhering to the standard used by other Special Counsels but got no response.

It’s an interesting legal question, so I do look forward to Weiss’ legal commitment to a shell game.

Lowell did submit the three exhibits, which show Weiss withdrawing the plea offer, Chris Clark asking for time to consider it, and Derek Hines emailing the docket entry showing the request to withdraw the plea offer.

Update: I changed my mind, above. Lowell is absolutely right on the estoppel claim. The tax information filed in Delaware describes that Hunter’s residency was in DC in 2017 and 2018. It was signed by Leo Wise, so he can’t very well claim that he, personally, has not made that assertion before.


David Weiss Does Not Contest He Reneged on Hunter Biden’s Plea Agreement to Chase Russian Lies

David Weiss has now had five opportunities to contest former Hunter Biden attorney Chris Clark’s declaration that on June 6, Weiss personally discussed language to provide Hunter immunity from further prosecution, and after that language was incorporated into the plea deal, on June 19, Weiss’ First AUSA told Clark that there was no ongoing investigation into the President’s son.

I requested to speak directly with U.S. Attorney Weiss, whom I was told was the person deciding the issues of the Agreement. Later that afternoon, on June 6, 2023, I spoke directly with U.S. Attorney Weiss. During that call, I conveyed to U.S. Attorney Weiss that the Agreement’s immunity provision must ensure Mr. Biden that there would be finality and closure of this investigation, as I had conveyed repeatedly to AUSA Wolf during our negotiations. I further conveyed to U.S. Attorney Weiss that this provision was a deal-breaker. I noted that U.S. Attorney Weiss had changed the deal several times heretofore, and that I simply could not have this issue be yet another one which Mr. Biden had to compromise. The U.S. Attorney asked me what the problem was with the proposed language, and I explained that the immunity provision must protect Mr. Biden from any future prosecution by a new U.S. Attorney in a different administration. The U.S. Attorney considered the proposal and stated that he would get back to me promptly.

Later that same evening on June 6, 2023, at or around 5:47 PM EST, AUSA Wolf emailed me proposed language for the immunity provision that read: “How about this- The United States agrees not to criminally prosecute Biden, outside of the terms of this Agreement, for any federal crimes encompassed by the attached Statement of Facts (Attachment A) and the Statement of Facts attached as Exhibit 1 to the Memorandum of Plea Agreement filed this same day.” (Emphasis in original.)

[snip]

Shortly after that email, I had another phone call with AUSA Hanson, during which AUSA Hanson requested that the language of Mr. Biden’s press statement be slightly revised. She proposed saying that the investigation would be “resolved” rather than “concluded.” I then asked her directly whether there was any other open or pending investigation of Mr. Biden overseen by the Delaware U.S. Attorney’s Office, and she responded there was not another open or pending investigation.

David Weiss is silent about proof that he reneged on immunity agreement made in June

Weiss has filed five responses to Hunter Biden claims that address how Weiss reneged on this agreement to immunize the President’s son from any further prosecution:

None of them contest those two claims from Chris Clark: That David Weiss was personally involved on June 6 before Lesley Wolf sent language immunizing Hunter for everything “encompassed” by the plea and diversion, and that Shannon Hanson assured Clark on June 19 there were no ongoing investigations.

Instead, these filings simply shift focus temporally. The responses to the selective and vindictive claim focus on earlier negotiations to falsely suggest that David Weiss did not personally buy off on language sent out on June 6.

For example, in an email to defense counsel dated May 18, 2023, about “a potential nontrial resolution,” Document 60-6 at p. 2, the AUSA stated, “As I said during our call, the below list is preliminary in nature and subject to change. We have not discussed or obtained approval for these terms, but are presenting them in an attempt to advance our discussions about a potential non-trial resolution . . .” The following week, in an email to defense counsel dated May 23, 2023, Document 60-9 at p. 3, the AUSA stated, “As we indicated in our emails and discussions we did not have approval for a pre-trial diversion agreement. As you know, that authority rests with the US Attorney who ultimately did not approve continued discussions for diversion related to the tax charges.” In response to this email, defense counsel wrote, “Ok. My client has asked that I speak to you further. Are you able to speak? I may have some slight flexibility.” Far from an agreement or an agency determination that these charges should not be brought, as the defense suggests in their briefing, these discussions merely indicate the parties were engaged in plea discussions at the line prosecutor level and the AUSA repeatedly disclosed that such discussions were subject to review and approval by the U.S. Attorney. [emphasis original]

The response to the IRS agent claim argues that because Gary Shapley and Joseph Ziegler had “ceased to have any role in the investigation” when the actual charging decisions were made in September and December, their media campaign could not have caused the earlier decision to renege on the plea deal and endorse precisely their charging decisions.

Here, the defendant does not argue that Shapley and Ziegler used any law enforcement technique that resulted in the charges currently before the court. In fact, the conduct he complains of occurred after Shapley and Ziegler ceased to have any role in the investigation.

Never mind that the claim conflicts with a Joseph Ziegler affidavit, which claims that, “As seen in these emails, we have continued to assist and turnover the Hunter Biden casefile to the new team,” and the related emails showing him still handing off documents on September 1 (though given document metadata, Ziegler continued to access and release to Congress records after that). What matters are not the charging decisions made in September and December but the earlier decision to renege on the plea deal.

What matters is that when Leo Wise stated, on July 26, that prosecutors could bring FARA charges against Hunter Biden, he was reneging on the terms of the signed plea deal.

What matters is that when David Weiss told Lindsey Graham on July 11 that Alexander Smirnov’s FD-1023 was part of an ongoing investigation, he signaled that he had decided to renege on the plea deal even before the plea hearing to chase the claim that the President of the United States had received a bribe, and that decision had nothing to do with Maryellen Noreika’s concerns about the structure of the diversion agreement.

Indeed, Abbe Lowell submitted proof that that was the intent all along, to renege on the plea deal. Weiss had submitted a heavily redacted copy of a letter Chris Clark wrote in response to Weiss’ proposed way to address Judge Noreika’s concerns, claiming that it showed that prosecutors did not, as Lowell had claimed, immediately demand a felony plea. Weiss was right, to a point. At that point Weiss was not demanding felony pleas. In his selective and vindictive reply, a declaration, and a timeline submitted yesterday, Lowell explained that Weiss started demanding felony pleas later than that, on August 29.

After the exchange cited by DOJ where Biden rejected its counterproposals, DOJ informed Biden the deal was off and made clear it would accept or charge felonies during a meeting with Biden’s counsel on August 29, 2023.

But those same papers and the unredacted copy of Clark’s response letter in question showed what happened instead: David Weiss’ first response to the concerns Judge Noreika expressed at the plea colloquy — partly how the diversion agreement worked with the plea, but also Wise’s claim that he could charge Hunter with FARA even though Hanson had said that would not happen a month earlier — was to eliminate any judicial protection and remove the immunity language entirely.

Second, the Government has proposed, without explanation, completely deleting the immunity provision in Paragraph 15 of the Diversion Agreement. We decline to amend the parties’ existing agreement on immunity. We will rely on this provision, as contained in the bilateral agreement that was signed and entered into between the parties.

The same letter showed that Hunter’s team believed the diversion remained in effect.

[W]e are fully prepared to continue proceeding with the terms of the Diversion Agreement, as executed. If the Court should determine that the breach provision in Paragraph 14 of the Diversion Agreement should be amended, then we would be fine with that, and at such time we would entertain making formal, written modifications pursuant to Paragraph 19. Otherwise the parties remain bound to the terms of the agreement that was signed and entered into.

This “offer” Weiss made, then, amounted to torching the signed plea deal and diversion agreement entirely.

This is the background to — as Lowell described — Weiss’ demand that Hunter either accept that useless deal immediately, before — minutes later — Weiss rolled out his Special Counsel authority.

8/9/23: DOJ responds to Biden’s counsel’s August 7 letter, and argues that neither the PA nor DA are in effect, and neither side is bound. In that letter, DOJ withdraws the PA and the DA it offered Biden on July 31, 2023, and withdraws the PA and the DA presented to the Court on July 26, 2023.

DOJ notifies Biden’s counsel that it intends to move to dismiss the tax information without prejudice and pursue charges in another district where venue lies, and requests Biden’s counsel’s position by no later than August 11, 2023.

8/10/23: Biden’s counsel emails AUSA Wise to inform him they are discussing DOJ’s August 9 letter and the options with Mr. Biden. Biden’s counsel asks if they may respond to DOJ’s requested position by Monday (August 14) instead of by Friday (August 11). Alternatively, Biden’s counsel proposes having a conference with the Court.

8/11/23: At Noon (12:00 pm), AUSA Wise replies to Mr. Clark’s email that the United States declines to extend the time in which it asked for Biden’s position on the motions identified in its August 9 letter, and further declines to have a conference with the Court.

Approximately five minutes later, at 12:05 pm EST, before Biden’s counsel could even respond to DOJ or discuss it with Mr. Biden, DOJ moves to dismiss the criminal tax Information without prejudice against Biden, so that tax charges can be brought in another district.

David Weiss replaced Lesley Wolf, and by doing so, has tried to get away with letting Leo Wise and Derek Hines to renege on the terms of a plea deal he himself signed, as if his signature wasn’t on the deal.

And he did so, it is now clear, to chase a Russian information operation. David Weiss got his ass handed to him by Russian spies and to hide his embarrassment, he’s trying to claim that he didn’t renege on a signed plea.

Neither Weiss nor Lowell has yet addressed Smirnov directly

For reasons I don’t understand, Lowell has not filed any motion specifically addressing the role of Alexander Smirnov in all this, in either Delaware or Los Angeles. As a result, the sum total of discussion about the role of the Smirnov claim in Hunter’s prosecution consists of the following:

First, in Lowell’s Reply Motion to Compel in Delaware, he noted that he had asked for things pertinent to the Scott Brady side channel, and the treatment of the Smirnov allegations made that discovery all the more important.

The fact that Special Counsel Weiss, beginning in July 2023, then elected to chase the goose making these unsubstantiated claims— after several DOJ and FBI officials agreed the matter should be closed—is all the more justification for granting Mr. Biden’s request for these DOJ materials.

In response, Weiss tried to anticipate mention of Smirnov in Lowell’s Reply. imagining that because Weiss is prosecuting Smirnov, it debunks the claim Hunter made in his deposition that Congressional Republicans were duped by a Russian disinformation campaign.

He claimed, “Smirnov, who has made you dupes in carrying out a Russian disinformation campaign waged against my father, has been indicted for his lies.”12 While the defendant testified to Congress that the Special Counsel had undermined the impeachment inquiry conducted by House Republicans, to this Court he argues instead that the Special Counsel is working at the behest of House Republicans. Motion at 13. Which is it? Indeed, the defendant has no evidence to support his shapeshifting claims because the Special Counsel continues to pursue the fair, evenhanded administration of the federal criminal laws.

That same day, in Delaware, Lowell cited the newly-released Scott Brady transcript to argue that Weiss, by continuing to prosecute Hunter, is doing just what Russia wanted with the Smirnov operation: to gin up a prosecution of Hunter.

From the filings in Smirnov and other disclosures, it turns out that a Russian intelligence operation has the same goal of spreading disinformation to influence the U.S. presidential election in Russia’s favor.

[snip]

Mr. Wise explained that Smirnov’s “disinformation story” is part of a Russian intelligence operation “aimed at denigrating President Biden” and “supporting former President Trump.”

[snip]

This case illustrates the very continuing harm identified by the Special Counsel. The Special Counsel tells us Russian intelligence sought to influence the U.S. presidential election by using allegations against Hunter Biden to hurt President Biden’s reelection. 3 And what did the now-Special Counsel do? The Office abandoned the Agreement it signed and filed felony gun and tax charges against Mr. Biden in two jurisdictions, which public records and DOJ policy indicate are not brought against people with similar facts as Mr. Biden. In these actions, the Special Counsel has done exactly what the Russian intelligence operation desired by initiating prosecutions against Mr. Biden.

In yesterday’s filing in Los Angeles, however, Lowell was still pretty circumspect about Smirnov.

In the section describing how Weiss had reneged on a signed deal, he attributed Weiss’ decision to renege on the deal to his pursuit of the Smirnov allegations. Then, in the section on Congress’ usurpation of prosecutorial function, Lowell laid out how stupid it is for Weiss to claim the charges against Smirnov, over three years after Weiss first got this referral, is proof that Weiss didn’t bow to pressure from Congress.

DOJ also chooses this part of its brief to argue its indictment of Alexander Smirnov suggests it is not a puppet of the GOP (perhaps DOJ’s whole inspiration for bringing that indictment). (Id.) Biden never suggested DOJ is a puppet of the GOP, but that DOJ has caved to political pressure several times in ways that specifically violate Biden’s rights. And DOJ indicting someone who falsely accused Biden of serious crimes does not prove it is treating him fairly. Instead, it calls into question why DOJ reopened long debunked allegations by Smirnov in July 2023 (as it was reneging on its agreements with Biden) when, having gone down that rabbit hole, DOJ was then forced to defend its actions by charging Smirnov with offenses it could have bought years earlier.

Lowell doesn’t make several details of the timeline explicit.

First, on the same day that Weiss sent Lindsey Graham that letter stating that the FD-1023 was part of an ongoing investigation, July 11, Shannon Hanson described that “the team,” on which she did not include herself at that point, was in a secure location. As I’ve noted, there was no reason for “the team” to be in a SCIF in preparation for the plea deal. There’s nothing classified about it. It’s evidence that, before Wise reneged on the scope of the plea deal on July 26, “the team” had already decided to chase the Smirnov allegation.

My hunch is that we’ll learn that whatever Weiss told Merrick Garland about needing Special Counsel status (note, he bypassed Brad Weinsheimer to get it), he did not represent the plea negotiations as the current record suggests they happened. My hunch is that Weiss may have claimed Hunter was being a good deal more intransigent then simply demanding that a plea be worth the toilet paper it was written on in the first place.

But to get Special Counsel status, Weiss likely claimed he was going to investigate Joe Biden.

While it’s true that Garland assured Weiss he could get Special Counsel status whenever he asked, investigating the President is the only thing that presents the kind of conflict that would require full Special Counsel status. And, as I’ve noted, Weiss grounds his authority to prosecute Smirnov in the language in the Special Counsel appointment permitting him to investigate anything that comes out of the investigation authorized with the appointment itself, which must, then, have included Joe Biden as well as his son.

Lowell made this point in his Notice of Authority submitted in Delaware.

The connection between the reopening of the Smirnov allegations and the then-U.S. Attorney’s Office’s total rejection of the Agreement it made has, at the least, the appearance of catering to the shouts of extremist Republicans to scuttle the deal and keep an investigation into Mr. Biden alive.

But he has not done so in Los Angeles.

On August 29, prosecutors expressed overconfidence about their investigation

Lowell has declined to do so even though the timeline he lays out — how, on August 29, prosecutors demanded felony pleas — intersects closely with the Smirnov one. Lowell’s declaration describes that at 11AM on August 29 — in what appears the first meeting after Weiss got Special Counsel status and after Judge Noreika dismissed the tax indictment — Leo Wise fully retracted all offers that had been discussed to that point.

3. On August 29, 2023 at approximately 11:00 AM, I (along with my law partner, Christopher Man) met with Assistant United States Attorneys Leo Wise and Derek Hines at the U.S. Attorney’s Office in Wilmington, Delaware. The meeting lasted approximately one hour. Our position was that the Diversion Agreement was in effect, and we sought to work with the government to effectuate the substance of the proposed Plea Agreement by addressing the procedural concerns the Delaware court raised on July 26, 2023.

4. During that meeting, Mr. Wise stated, in sum and substance, that DOJ was no longer willing at this point in time to (i) carry out the misdemeanor tax agreement it had made; (ii) commit to a “no jail” recommendation for Mr. Biden that it also had made; and (iii) maintain the parties’ agreed-to immunity provision. While Mr. Wise said he was only in a “listening mode,” the only type of charge even mentioned at the meeting were felonies, which are exactly what the Office filed about two weeks later in the District of Delaware.

At that same meeting, Lowell requested that he get an exact copy of the laptop.

The defendant’s counsel met with government counsel in Wilmington on August 29, 2023, and made a specific request for an exact forensic copy of the laptop and external hard drive. His defense counsel reiterated this request in an email dated September 25, 2023, in which defense counsel stated “we want to ensure the data we receive is an identical copy as you have it and that the data will retain its native forensic properties (e.g., time and date stamps, file paths, operative system characteristics, user profile information, etc.)” and that the “data loaded on the hard drive is complete and identical in every shape and manner to that obtained by the FBI when it acquired possession” of the laptop and hard drive. The government accommodated this request.

And prosecutors also claimed (erroneously, it now appears) that they had clean sources for everything otherwise found on the laptop.

As to the meeting between Mr. Biden’s counsel and prosecutors in Wilmington on August 29, 2023 (Opp. at 19), Mr. Biden notes that prosecutors indicated, during that meeting, that they possess “independent sources” for any material on the laptop device that would be helpful to the prosecution’s case, presumably referring to material subpoenaed from third parties, such as Apple, Inc. or various cellphone carriers. For this reason, it was curious to Mr. Biden’s counsel when reviewing the prosecution’s response that it elected to cite to and quote from messages and photos contained on the device it possessed (lacking any Bates stamps) rather than from those “independent sources” included in the discovery produced to the defense.

That same day prosecutors mistakenly claimed they wouldn’t have to rely on the laptop to prosecute Hunter Biden, also on August 29, Smirnov’s handler described that he and Smirnov reviewed the allegations against President Biden after the FD-1023 leaked and Smirnov stood by his claims.

43. On August 29, 2023, FBI investigators spoke with the Handler in reference to the 2020 1023. During that conversation, the Handler indicated that he and the Defendant had reviewed the 2020 1023 following its public release by members of Congress in July 2023, and the Defendant reaffirmed the accuracy of the statements contained in it.

Did representations from Smirnov’s handler contribute to prosecutors’ hubris in imagining they had all the evidence they needed against the President’s son? Did they initially pursue particularly draconian charges against Hunter in hopes they could get him to flip against his father?

At some point — the indictment doesn’t reveal whether the handler only came clean about Smirnov’s lies in the following weeks — Smirnov’s handler provided the messages and travel records that made it clear Smirnov was lying.

44. The Handler provided investigators with messages he had with the Defendant, including the ones described above. Additionally, the Handler identified and reviewed with the Defendant travel records associated with both Associate 2 and the Defendant. The travel records were inconsistent with what the Defendant had previously told the Handler that was memorialized in the 2020 1023. The Defendant also provided email communications with both Associate 2 and Burisma personnel beginning in 2017 to the Handler, which the Handler reviewed with the Defendant and shared with FBI investigators.

On the day Weiss discovered Smirnov was lying, he should have called up Merrick Garland, told him he had to recuse from both the Smirnov investigation and — because of the apparent role of the Smirnov 1023 in his decision to renege on the plea agreement — even the Hunter Biden one. On that day, Weiss became a witness to a potential criminal conspiracy.

Weiss’ false claims about discovery into the side channel

Weiss did not do that.

Instead, at least in the months before the Smirnov indictment, he prevaricated over discovery.

On November 7, over a month after the FBI interviewed Smirnov and confirmed his lies, David Weiss told the House Judiciary Committee Chief Counsel Steve Castor that the side channel would only show up in his eventual report.

Q Brady told us that he had such trouble getting ahold of you and your office, that he had to go through the PADAG, and basically the PADAG had to intervene and instruct your office to take a meeting with him.

A Is that a question?

Q Yes. Why wouldn’t you meet with Mr. Brady?

A I’m not at liberty to discuss that at this time. I look forward to the opportunity to addressing this in the special counsel’s report at the appropriate time.

Weiss committed that Brady’s role in this would only appear in the final report after a number of details of Brady’s claims to have vetted the Smirnov claim — which Jerry Nadler referred to both Michael Horowitz and Merrick Garland for potentially criminal investigation — had been publicly aired.

Then, on November 15, Lowell asked for discovery that would cover the side channel and also permission to subpoena those, like Bill Barr, who continued to engage in discussions of the side channel as private citizens, without protection of prosecutorial immunity.

The response to the latter, written in December by then newly promoted “Principal Senior Assistant Special Counsel” Leo Wise, repeats Weiss’ silence about his decision to renege on the plea deal. Given the accumulating evidence that Weiss reneged on the plea deal in order to chase the Smirnov allegation, such silence is deafening.

It blows off the request for a subpoena to Bill Barr — who made public representations about the side channel the day after Weiss agreed to immunize Hunter against further investigation, the agreement on which Weiss reneged — by emphasizing that as former Attorney General, Barr could have no influence on Weiss’ actions.

Defendant asks the Court to enter an order directing subpoenas, which seek broadly worded categories of documents across seven years, to former President Donald J. Trump, former Attorney General William P. Barr, and two other former officials in the U.S. Department of Justice. Defendant contends that the requested material “goes to the heart of his pre-trial and trial defense that this is, possibly, a vindictive or selective prosecution that arose out of an incessant pressure campaign that began in the last administration, in violation of Mr. Biden’s constitutional rights.” ECF 58, at 14. It is worth noting from the outset that defendant misunderstands the difference between pretrial arguments to dismiss an indictment and trial defenses. It is black-letter law that claims of vindictive and selective prosecution are not trial defenses and may only be brought and litigated pretrial. They are not defenses and, therefore, are never argued to trial juries.

In any event, both vindictive- and selective-prosecution claims turn on the actual intent of the specific decisionmaker in a defendant’s case: here, the Special Counsel. But not only does defendant’s motion fail to identify any actual evidence of bias, vindictiveness, or discriminatory intent on the Special Counsel’s part, his arguments ignore an inconvenient truth: No charges were brought against defendant during the prior administration when the subpoena recipients actually held office in the Executive Branch.

And in response to the request for a subpoena to Richard Donoghue, the response noted that Donoghue ordered that, “the Delaware investigation receive the information from the Pittsburgh team, which was being closed out.”

Against this backdrop, the gaps in defendant’s motion become glaring: absent is any credible argument that (a) one of the subpoena recipients, rather than the Special Counsel, made the decision to prosecute the defendant and that the Special Counsel merely followed an order, or (b) that the Special Counsel himself has treated similarly situated individuals differently or decided to prosecute for discriminatory purposes. In fact, throughout the defendant’s entire constructed narrative, he barely refers to the actions or motives of the then-U.S. Attorney, nowSpecial Counsel, much less makes Armstrong’s “credible showing” of disparate treatment, discriminatory intent, or retaliatory motive on his part. Nor has defendant addressed the impact of the sitting Attorney General’s subsequent determination that, “to ensure a full and thorough investigation” of these matters, it was necessary to confer the additional jurisdiction and independence outlined in 28 C.F.R. § 600.04–600.10. See Order No. 5730-2023.

Defendant’s attempts to manufacture discriminatory treatment or intent on behalf of the U.S. Attorney fall apart under the most minimal scrutiny. First, defendant obliquely references that “IRS files reveal that [Richard Donoghue] further coordinated with the Pittsburgh Office and with the prosecution team in Delaware, including issuing certain guidance steps regarding overt steps in the investigation.” ECF 58, at 2-3 & n.3. Looking behind the defendant’s ambiguously phrased allegation reveals the actual “overt steps” involved: (1) the U.S. Attorney making an independent assessment of the probable cause underlying a warrant and (2) a direction by Mr. Donoghue that the Delaware investigation receive the information from the Pittsburgh team, which was being closed out. See ECF 58, at 3 n.3 (citing memorandum of conference call). Assessing the validity of a warrant and merely receiving information from other investigating entities does nothing to show any disparate treatment or animus. Next, defendant alleges that “certain investigative decisions were made as a result of guidance provided by, among others, the Deputy Attorney General’s office.” ECF 58, at 3 n.4. In fact, the source cited revealed that the guidance was simply not to conduct any “proactive interviews” yet. Likewise, defendant’s last attempt to create a link involved guidance not to make any “external requests (outside of government),” which followed the long-standing Department of Justice policy to avoid overt investigative steps that might interfere with ongoing elections. See ECF 58, at 3 n.5; cf., e.g., Federal Prosecution of Election Offenses 40 (2d ed. 1980). In other words, the most defendant claims is that the Deputy Attorney General’s office was aware of and involved in some specific investigatory decisions in the most banal fashion possible—by waiting to take specific investigative steps at certain times out of caution.

None of these contacts or events provides any evidence involving either the disparate treatment of similarly situated individuals or a discriminatory intent behind the U.S. Attorney’s prosecutorial decision. [my emphasis]

The existence of the side channel alone is testament to disparate treatment of Hunter Biden. Importantly, Donoghue is a fact witness about what Weiss did in 2020.

The response to Lowell’s request for discovery on the side channel, a request that explicitly applied to the diversion agreement as well, was even more non-responsive. It simply ignores Bill Barr’s role entirely.

It’s the response to the subpoena that looks particularly damning, though.

As I’ve noted, there are some key gaps in the Smirnov indictment. First, in describing who set up the side channel in the first place, Weiss claimed Deputy Attorney General Jeffrey Rosen set it up, when Brady testified that Barr was personally involved (as Barr’s public comments make clear).

22. In June 2020, the Handler reached out to the Defendant concerning the 2017 1023. This was done at the request of the FBI’s Pittsburgh Field Office (hereafter “FBI Pittsburgh”). In the first half of 2020, the United States Attorney’s Office for the Western District of Pennsylvania (hereafter “USAO WDPA”) had been tasked by the Deputy Attorney General of the United States to assist in the “receipt, processing, and preliminary analysis of new information provided by the public that may be relevant to matters relating to Ukraine.” As part of that process, FBI Pittsburgh opened an assessment, 58A-PG-3250958, and in the course of that assessment identified the 2017 1023 in FBI holdings and shared it with USAO WDPA. USAO WDPA then asked FBI Pittsburgh to reach out to the Handler to ask for any further information about the reference in his 2017 1023 that stated, “During this call, there was a brief, non-relevant discussion about former [Public Official 1]’s son, [Businessperson 1], who is currently on the Board of Directors for Burisma Holdings [No Further Information]”

The silence about Barr’s role is particularly telling given persistent misrepresentations of Hunter Biden’s discovery asks about Barr.

More tellingly, the indictment doesn’t confess that Donoghue ordered Weiss to look at the FD-1023 in 2020, days after Trump called up Bill Barr and screamed at him for not investigating Hunter Biden more aggressively.

40. By August 2020, FBI Pittsburgh concluded that all reasonable steps had been completed regarding the Defendant’s allegations and that their assessment, 58A-PG-3250958, should be closed. On August 12, 2020, FBI Pittsburgh was informed that the then-FBI Deputy Director and then-Principal Associate Deputy Attorney General of the United States concurred that it should be closed.

Leo Wise’s description of this process at Smirnov’s first detention hearing was even more dishonest.

[T]he FBI in Pittsburgh took some limited investigative steps, but their steps were limited by the fact that they were only conducting an assessment, which under FBI policies is not an investigation. And it prevents, for instance, the use of compulsory process like grand jury subpoenas or the compulsion of testimony. So based on that limited review, the FBI closed its assessment in August.

Weiss has a problem.

He was ordered to investigate this in 2020, and did nothing, possibly because Lesley Wolf knew the entire side channel project was corrupt. But if that’s why Weiss did nothing in 2020, it makes his decision to renege on a plea deal to go chase this lead inexcusable.

He ignores his earlier receipt of this tip in the indictment to create the illusion that he investigated the FD-1023 for the first time starting in July.

But in the opposition for subpoenas in December, Leo Wise acknowledged that Donoghue issued that order in 2020.

Weiss is saying one thing in the Smirnov prosecution and saying something else in an effort to hide Smirnov discovery from Hunter Biden.

And he’s saying those conflicting things after telling Congress that Brady’s role in this would show up only in his closing report, and not in follow-up indictments for false claims to Congress.

Realistically, the investigation into how Smirnov allegedly framed Joe Biden should go in at least three directions: First, into Russia and Ukraine (and possiblyIsrael)’s specific role in his alleged lies, such as whether Andrii Derkach had ties to Smirnov in 2020. As part of that, the FBI will need to investigate why Smirnov didn’t disclose his earlier ties to Russian Official 5 to his handler, whom he flipped for a third country in 2002, until 2019.

The investigation needs to figure out how Scott Brady came to look for Smirnov’s earlier FD-1023 in the first place, because his claimed explanation makes no sense. It’s possible that arose from some mutual tie between Smirnov and Rudy Giuliani and could implicate Rudy personally. At the first Smirnov detention hearing, Wise at least mentioned Rudy Giuliani’s role in all this, suggesting Weiss’ team might fancy they’re pursuing that angle, at least. But they have no business doing so, because that implicates Weiss’ contacts with Brady. Again, he is a direct witness.

But just as importantly, the investigation needs to examine why Brady claimed the tip had been vetted in 2020, and why Brady created the impression with Congress that Smirnov’s travel records matched his claims, rather than debunked them. The investigation needs to examine whether Barr, or the indictment, is telling the truth about what Weiss was supposed to do with the lead in 2020. Neither Brady nor Barr are immunized as prosecutors anymore. And there’s no reason their attempts to influence the criminal investigation into Joe Biden’s son in advance of an election should evade scrutiny.

That goes right to the heart of why Weiss reneged on the plea deal. It goes to all the discovery and subpoenas that Weiss has already refused, claiming that it had no bearing on diversion or a vindictive prosecution claim. It goes to Weiss’ wildly unsound decision to remain on the case after he became a witness in it.

As it turns out, it has everything to do with Hunter’s diversion and vindictive prosecution claims.


Hunter Biden’s Replies to His Motion to Dismiss

I was laughing that David Weiss’ prosecutors would get sloppy with Roger Stone references in a case I was covering closely. It got me two citations in Hunter’s reply on selective prosecution.

8 Stone, No. 21-cv-60825, DE 1 ¶¶ 40-53 (accusing Stone of seeking to shelter his wealth from criminal forfeiture); Bill Barr Repeatedly Lied, Under Oath, About Judge Amy Berman Jackson, https://www.emptywheel.net/; United States v. Stone, Case 1:19-cr- 00018-ABJ DE 260 (Verdict Form). It is particularly ironic that DOJ would try to use Biden’s gun charge under a statute expressly reserved to protect public safety—to justify criminal tax charges when only Stone was charged with endangering anyone.

9 DOJ acts like, rather than honestly describe his struggles, Biden published his memoir to brag about his crimes, which is particularly absurd considering the memoir mentions neither the gun he is accused of purchasing nor his failure to pay his taxes.

10 See Marcy Wheeler, David Weiss is Smoking Roger Stone’s Witness-Tampering Gun, Emptywheel (Mar. 11, 2024), https://www.emptywheel.net/2024/03/11/david-weiss-is- smoking-roger-stones-witness-tampering-gun/. This included an introduction repeating the false claims at the core of his 2019 convictions for threats and intimidation, and Stone even litigated whether his memoir was covered by the gag order the judge issued in response to his threats. See Stone, No. 1:19-cr-00018, DE61 (S.D. Fl.).

As I’ll lay out later, it’s now crystal clear that David Weiss reneged on the plea deal in order to chase Alexander Smirnov’s lies.

Here are the reply motions:


A Third Tie between Trump World and Alexander Smirnov

Before I point to a report on third known link between Alexander Smirnov — the FBI informant whose allegedly false claims about Joe Biden were laundered through a process Bill Barr set up for Rudy Giuliani in 2020 — and Donald Trump, let me lay out several details that are important to assessing the import of such ties.

  • Smirnov was admonished on the limits of permission to engage in Otherwise Illegal Activities on at least five occasions, including on August 7, 2020. That’s what the FBI does before they pre-approve you committing a crime because they want to learn about the other people committing crimes involved. For any given sketchy business someone reports Smirnov to have engaged in, there’s a distinct possibility he was engaging in it because the FBI was interested in the other people engaged in the business.
  • Smirnov’s ties to Russian spies go through at least one other intelligence service — probably Israel. But, at least for the last six months, he has been hanging out on the megayachts of Russian Oligarchs, almost certainly in Dubai, where, according to him, he was part of a plan to end the Ukraine war and elect Donald Trump.
  • One unanswered question that will be key to understanding how Smirnov attempted to frame Joe Biden is to identify how MAGAt US Attorney for Pittsburgh Scott Brady came to chase an otherwise unremarkable earlier Smirnov informant report mentioning Hunter Biden in passing. Given that Brady’s project catered to Rudy, any link involving Rudy as well would be significant.
  • But we may not discover that unless something dramatic happens, because David Weiss has no business overseeing this investigation, as he’s a direct witness to the involvement of Brady and Bill Barr. Indeed, as Hunter Biden attorney Abbe Lowell recently pointed out, Weiss has misrepresented his involvement in the Smirnov lead, going back to 2020, and by chasing this lead and extending the prosecution of Hunter Biden, he is effectively doing Russia’s bidding.

We already know of two ties between Trump world and Smirnov. His cousin, Linor Shefer, has ties to Trump through a Miami Real Estate developer.

Shefer, a 38-year-old Israeli-American, was a former contestant on the Israeli version of reality show Big Brother, and in 2014 won the Moscow beauty pageant ‘Miss Jewish Star’.

According to her LinkedIn page, she has been an ‘Inhouse Consultant’ for Dezer Development in Miami, Florida since 2022.

Dezer partnered with Trump’s organization to develop the $600 million Trump Grande Ocean Resort and Residences and $900 million Trump Towers. The company is run by Gil Dezer, and founded by his Israeli-American billionaire father Michael, who is a Trump donor.

And Smirnov has ties to Sam Kislin, who not only has long-standing ties to Rudy and Trump, but who came under some scrutiny during the 2019 impeachment.

Around 2021, on the beach at a private club in Boca Raton, Smirnov pitched Kislin on founding a company together that would market electric-car batteries and capture federal subsidies, Kislin said.

Smirnov told him he also could use his FBI ties to help him unfreeze more than $21 million in infrastructure bonds that belonged to Kislin but which Ukrainian authorities deemed had been issued illegally, embroiling Kislin in a corruption probe, Kislin said.

Kislin had for years been seeking to unfreeze the funds, traveling to Ukraine and meeting with officials there. His travel there coincided with efforts by Giuliani and his associates to push the Ukrainian government to investigate Biden, and in 2019, Kislin was subpoenaed by House impeachment investigators who were looking into those efforts. Kislin’s lawyer said he didn’t have relevant information, and he didn’t ultimately testify.

Smirnov set his fee for recovering Kislin’s $21 million at $1 million, according to Kislin, who said he paid Smirnov $224,000—partially as an advance and partially as an investment in the car-battery company, incorporated in Nevada in May 2021 as Quantum Force.

After a little over a year, Quantum Force dissolved and registered by the same name in a different state—this time without Smirnov listed in the corporate records.

When a solution to Kislin’s problem in Ukraine failed to materialize, Kislin said he deduced that Smirnov had taken him for a ride.

The Guardian points to a third — one through another of the sketchy businesses with which Smirnov worked, which includes a Middle East real estate tie:

Back in 2020, Smirnov was paid $600,000 by a company called Economic Transformation Technologies (ETT), prosecutors said. That same year, Smirnov began lying to the FBI about the Bidens, according to the indictment.

ETT’s CEO is the American Christopher Condon, who is also one of three shareholders in ETT Investment Holding Limited in London. Other shareholders in the UK include Pakistani American investor Shahal Khan and Farooq Arjomand, a former chairman and current board member of Damac Properties in Dubai who is also listed as an adviser on ETT’s American website.

[snip]

The exact business model of Texas-based ETT is murky. Its mission statement reads in part: “ETT set up the chess board to bring in top notch executives from those sectors to help implement its vision of love and social impact to improve the quality of human existence through the application of ‘new age’ technologies.”

The current CEO, Condon, is a California man who has been involved in several civil lawsuits, including a civil Rico case in 2010 that he won on appeal. Condon’s official biography says he is “a former professional tennis player, financial advisor, and currently is an entrepreneur focused on social-impact projects, public-private partnerships, and creating smart communities that benefit both individuals and governments”.

Condon, Arjomand and Khan registered ETT Investment Holding Limited in the UK on 6 March 2020. Khan, an investor who purchased the Plaza Hotel in 2018, and Arjomand have ties to Donald Trump through Trump associates and Damac, a major Middle East developer that has partnered with Trump for a decade. Arjomand, Khan and Condon owned 34%, 33% and 33% of ETT Investment Holding Limited respectively, according to UK business filings. No other information on the UK company is readily available.

The WSJ story — the same one that focused on Kislin — already laid out some sketchy aspects of Smirnov’s ties to ETT, and states that the relationship began in 2019.

Smirnov helped another company—Texas-based Economic Transformation Technologies, a software platform focused on “sovereign economic performance”—solicit investors starting around 2019, former associates said.

Smirnov was aware of concerns among investors and employees about some of the company’s practices, one of the associates said. The company was failing to pay some of its bills and several of its employees despite spending lavishly on travel and maintaining its exorbitant rent in the Dallas Cowboys headquarters, former associates and investors said.

Still, Smirnov brought in investors to meet with the company’s chairman, Christopher Condon, and other company executives—among them Kislin, who didn’t ultimately invest. Condon described Smirnov to associates as a “Russian friend of ours” who was skilled at fundraising, a former associate said.

It described that Condon knew of Smirnov’s FBI ties.

Smirnov’s FBI connections often came up in conversation as he hawked his services. Condon, the ETT chairman, also told people that Smirnov had “friends” in the FBI and described him as his protector who could help shield him from investigations, former associates said. Condon’s lawyer said Condon didn’t know the extent of Smirnov’s FBI involvement, and Condon denied describing Smirnov as a protector.

There are a lot more details of the Trump ties of Khan and Arjomand in the Guardian piece. What’s not included in there is the date in 2020 that ETT paid Smirnov. Particularly given Condon’s other sketchy ties, if that payment was anywhere close to August 2020, when we know Smirnov was given permission to engage in otherwise illegal activity, it may be his business ties were done with the knowledge and permission of the FBI.

Of course, the people with whom he engaged in OIA could well have a link to Scott Brady’s discovery of Smirnov. That’s why it is so problematic that Weiss, a witness, is leading this investigation.

In a status hearing for Hunter Biden yesterday (at which his gun trial was tentatively scheduled for the first two weeks of June), prosecutor Derek Hines suggested the Smirnov trial is still set to go starting on April 23, in spite of a recent CIPA filing. Also yesterday, Judge Otis Wright denied Smirnov’s bid to be released to San Francisco to receive glaucoma care.

Update: Fixed spelling of Shefer’s first name.

Update: CBS has a story describing a past complaint that Smirnov is a fraudster and a liar. Again, it’s hard to distinguish, without knowing more, whether for the FBI, that was the point.

Smirnov surfaced as a key secret witness in a sweeping racketeering case in California in 2015. In that case, the Justice Department brought charges against 33 defendants with ties to Armenian organized crime groups. Among the charges were money laundering, health care fraud and even a murder-for-hire.

Smirnov’s information contributed to the case against a married couple, Tigran Sarkisyan and his wife Hripsime Khachatryan, charged with conspiring with others to use fake identities to collect tax reimbursements from the federal government. The couple eventually pleaded guilty to a single count of racketeering in May 2017. In a 2018 sentencing memorandum, the couple’s lawyers flatly accused Smirnov of deceit.

“The [Confidential Human Source] was known to the United States as a liar and fraudster,” the sentencing brief states.

A footnote in the document states that the government was provided with the notes of their private investigator’s interview with a close associate of Smirnov who repeatedly called him a “liar.”

[snip]

Benincasa believes federal prosecutors realized they had a problem. According to Benincasa, the prosecutors had originally indicated they would be seeking a 10-year sentence as part of any plea deal. But after the lawsuit was filed, the government softened its position. Benincasa said he believes prosecutors wanted to avoid seeing Smirnov deposed in the civil case and possibly have his identity as an informant exposed. In the end prosecutors asked for 21 months, an unusually sharp reduction from the original 10 years that Benincasa says they were seeking. The judge ultimately sentenced the couple to 15 months.


The “Waiting for Mueller” Mistake and the Right Wing Bubble

Simon Rosenberg didn’t panic about a 2022 Red Wave. As analysts everywhere were wailing that the Sky Was Falling, he was quietly confident.

Keep that in mind as you listen to this conversation he had with Greg Sargent. I have about the same cautious optimism as Rosenberg (I was less confident than he was in 2022) on this year’s election, but he’s a pro who works from fundamentals, not just last week’s poll results.

Among other things, he talks about how any of six big negatives for Trump could blow the election for him:

  1. He raped E. Jean Carroll in a department store dressing room
  2. He oversaw one of the largest frauds in America history and that he and Rudy Giuliani through all their various misdeeds own over $700M dollars
  3. He stole American secrets, lied to the FBI about it, and shared these secrets with other people
  4. He led an insurrection against the United States
  5. He and his family have corruptly taken billions from foreign governments
  6. He is singularly responsible for ending Roe and stripping the rights and freedoms away from more than half the population

I would add two more: First, Trump routinely defrauds MAGAt supporters. Over the last week, he turned the RNC into a means to do so on a grander scale. Republicans need to hear that they’re being taken to the cleaner by Trump — and by Steve Bannon, whose trial for doing so will also serve as backdrop to this election season.

More tellingly, Rosenberg addressed this detail when he described how Biden’s two big negatives have resolved (my biggest complaint about this interview is it didn’t address Gaza, the unmentioned third), not when he addressed Trump’s scandals.

The Biden crime family story, we just learned in the last few weeks, was a Russian op that was being laundered by the Republican party that blew up in their face.

Rosenberg treated the manufactured “Biden crime family” that was actually a Russian op laundered by the GOP as a resolved Biden negative after he made this point, the most important in the interview, in my opinion.

We have to learn the lesson from waiting for Mueller. Waiting for Mueller was a mistake by the Democratic Party. It prevented us from prosecuting the case against Trump and his illicit relationship with the Russian government that was out there all for us to see. Right? The Russians played a major role in his election in 2016. This is not in dispute in any way. And so I think now what we need to do is not wait for Jack Smith or wait for Merrick Garland. We need to use what’s in front of us and prosecute this in ways that we know is going to do enormous harm.

No superhero will come tell any one of these stories for Democrats. Trump’s opponents have to tell the story of Trump’s corruption. They cannot wait for Mueller. Or Jack Smith.

One of many reasons I’m so focused on the Hunter Biden story is that it is actually what proves the continuity of that story of Russian influence that Democrats failed to tell. Trump asks for Russian help in 2016 and gets it. As part of a campaign in which Rudy Giuliani solicited Russian spies for dirt on Hunter Biden, Trump withheld security support from Ukraine to get the same. Even after that, Trump’s DOJ created a way to launder the dirt Rudy collected from known Russian spies to use in the 2020 election. That campaign created the shiny object that has created the “Biden crime family” narrative. Like Russia’s role in the 2016 election, none of this is in dispute. It’s just not known.

You cannot wait for Robert Mueller or Jack Smith to tell this narrative. But for four months this entire story — this arc — has passed largely unnoticed, even as Trump took steps to deliver Ukraine’s bleeding corpse to his liege, Vladimir Putin.

Those who want to defeat Trump — and honestly, Republicans like Liz Cheney and Amanda Carpenter have been doing a better job of this than most Democrats — have to make sure this story gets told.

This is what I’ve been trying to say over and over and over. The reason why the moderate press hasn’t been telling the story of Trump’s role in the insurrection, of his ties to militia members and his direct inspiration for the most brutal assaults on cops on January 6 is because all their TV lawyers have been whinging instead about their own misunderstanding of the January 6 investigation. They haven’t been telling the story of what we know.

They have been complaining that Merrick Garland hasn’t compromised the investigation to tell them them more, turning Garland into their villain, not Trump.

In the few minutes after I posted these comments on Twitter, commenters have:

  • Complained that the full Mueller Report hasn’t been released, when really they’ve simply been too lazy to understand that the most damning bits have been released.
  • Bitched that Merrick Garland hired Rob Hur, rather than bitching about Rob Hur telling a narrative even after his own investigation had debunked it.
  • Complained about a delay in the January 6 investigation that didn’t happen.

Kaitlan Collins’ interview with Brian Butler, a former Trump employee whose testimony badly incriminated his one-time best friend, Carlos De Oliveira, has been drowned out by all the complaints.

The story barely made a blip. It’s not just the NYT that buries important Trump stories under complaints about Biden, it’s Democratic supporters.

Rosenberg went on to describe how Democrats need to improve this. He noted that the Right Wing noise machine provides them a great advantage on this front, one that Biden will have to spend to combat.

We have to recognize, Greg, that the information environment in the United States is really broken right now and that the power of the Right Wing noise machine to bully and intimidate mainstream media into being complicit in advancing some of their narratives is something that needs a campaign that has half a billion dollars in it to be able to draw even on. What we’ve learned is there is a structural imbalance in the information game between the two parties, that the Republicans have a significant advantage over us in a day-to-day information war.

This is true. But the insularity of the Right Wing noise machine can be made into a weakness for Republicans, even before spending the money. Because right wingers so rarely try to perform for a mainstream audience, as soon as they do — whether it is rising star Katie Britt or Kentucky redneck James Comer — they look like lying morons.

And in the face of that Right Wing noise, Democrats need to be disciplined.

The Biden campaign’s going to have to be wildly disciplined. They can’t chase the daily story. They’re going to have to pick the two or three things they know from research are the things that are a rubicon with the electorate.

[snip]

It’s going to be incumbent upon them to not allow the Trumpian mania and madness sort of push them around every day. They’re going to need to develop an offensive strategy both on what we’re selling and on what we’re indicting him with.

Rosenberg laid out the six bullets; I added two more. Trump will try to distract from that with daily outrages, with spectacle.

Trump — abetted by social media — will try to distract from that argument by demeaning all ability to make, or understand, coherent arguments.

I’m less sanguine than Rosenberg that even discipline is enough to overcome Trump’s circus. Therein lies the challenge.

But he’s right that those who want to defeat Trump have to make that case themselves. Neither Jack Smith, nor the NYT, will save you.


Tucking In Alexander Smirnov: Abbe Lowell Accuses David Weiss of Doing Russia’s Bidding

I was working on a complex post about a comment David Weiss’ prosecutors made in their response to Hunter Biden’s selective and vindictive prosecution claim in Los Angeles — bizarrely suggesting that because right wing claims had been debunked by David Weiss’ further investigation of Alexander Smirnov, it was proof that they were operating in good faith (while still adhering to claims about Joe Biden’s role in this investigation that are thoroughly debunked by the common sense implication that Biden was targeted by this investigation).

Tucked into a reply brief in Delaware, the defendant claimed that the Special Counsel’s investigation and recent indictment in the case of United States v. Alexander Smirnov “infected this case.” D. Del Dkt. 89 at p. 6. Anticipating he may make this claim in his reply here, the government notes the following. Ironically, in his recent congressional testimony before two House Committees, the defendant cited the indictment brought by the Special Counsel in the case of U.S. v. Alexander Smirnov as evidence that the Special Counsel had undermined the investigation by Republicans. He claimed, “Smirnov, who has made you dupes in carrying out a Russian disinformation campaign waged against my father, has been indicted for his lies.”12 While the defendant testified to Congress that the Special Counsel had undermined the impeachment inquiry conducted by House Republicans, to this Court he argues instead that the Special Counsel is working at the behest of House Republicans. Motion at 13. Which is it? Indeed, the defendant has no evidence to support his shapeshifting claims because the Special Counsel continues to pursue the fair, evenhanded administration of the federal criminal laws.

It was an utterly obnoxious comment, not least because prosecutors have not provided discovery relating to this — including, about David Weiss’ own role in the review of claims in 2020. These men enthusiastically chased Russian disinformation and now they’re trying to be snide about it.

I need not have bothered. In advance of a Delaware status hearing Wednesday, Abbe Lowell just filed what he fashions as a notice of additional authority — invoking the Scott Brady transcript — describing that even though David Weiss claimed to start investigating Alexander Smirnov’s allegation in July, he had already been briefed on Smirnov in 2020, but nevertheless chose to chase Russian disinformation again in July when House Republicans wailed loudly.

Although the Special Counsel claims that its investigation of Smirnov’s fantastical claims about Mr. Biden and President Biden receiving millions of dollars in bribes began in July 2023, Mr. Weiss and his team became aware of Smirnov’s claims years earlier. In October 2020, the FBI and then-U.S. Attorney Scott Brady (W.D.P.A.) passed Smirnov’s allegations to then-U.S. Attorney Weiss, and the Delaware U.S. Attorney’s Office was briefed on the claims contained in the now infamous FD-1023 alleging a fabricated foreign bribery scheme involving Mr. Biden and his father.1 Again, the FBI and DOJ had closed this investigation in August 2020 because they found Smirnov’s allegations baseless, and Mr. Weiss apparently agreed because he took no action based on them for over three years.

Then, in May 2023, it is uncontradicted that extremist Republicans in the House of Representatives pushed for the FBI (even threatening to hold its Director in contempt of Congress) to release the FD-1023 in an effort to publicly air these sensational allegations against Mr. Biden and President Biden, despite those allegations being baseless. Against its wishes, the FBI relented in July 2023. 2 With extremist Republicans and right-wing press outlets reviving interest in Smirnov’s claims, the Special Counsel apparently reopened its investigation days or weeks later. By the end of that month (July), the then-U.S. Attorney’s Office, instead of addressing with Mr. Biden’s counsel the specific questions this Court asked on July 26, instead abruptly backed away from a Plea Agreement that it signed and proposed to this Court and reneged on the Diversion Agreement. The connection between the reopening of the Smirnov allegations and the then-U.S. Attorney’s Office’s total rejection of the Agreement it made has, at the least, the appearance of catering to the shouts of extremist Republicans to scuttle the deal and keep an investigation into Mr. Biden alive.

Effectively, Lowell argues, Weiss’ decision to reopen the case against Hunter amounts to doing Russia’s bidding.

From the filings in Smirnov and other disclosures, it turns out that a Russian intelligence operation has the same goal of spreading disinformation to influence the U.S. presidential election in Russia’s favor. At a subsequent detention hearing in Smirnov’s case, Mr. Wise explained that Smirnov “met with Russian intelligence agencies on multiple occasions, and the U.S. intelligence community has concluded that Russian intelligence interfered in the 2020 election and continues to interfere in our elections by spreading misinformation.” United States v. Smirnov, No. 2:24- MJ-00166-DJA (D. Nev. Feb. 20, 2024) (Ex. 1 at 20). Mr. Wise explained that Smirnov’s “disinformation story” is part of a Russian intelligence operation “aimed at denigrating President Biden” and “supporting former President Trump.” Id. at 20–21, 33. Russia’s support of President Trump makes sense, as President Trump has praised the dictatorship of President Putin repeatedly and he continues to favor Russia over U.S. allies. See, e.g., Kate Sullivan, Trump Says He Would Encourage Russia To ‘Do Whatever The Hell They Want’ To Any NATO Country That Doesn’t Pay Enough, CNN (Feb. 11, 2024). The Special Counsel told the Nevada Court: “The effects of Smirnov’s false statements and fabricated information continue to be felt to this day.” Smirnov, DE 15 at 8 (Ex. 2 at 8); see also Govt’s Memo. in Support of App. for Review of Bail Order, United States v. Smirnov, No. 2:24-cr-00091-ODW, DE 11 (C.D. Cal. Feb. 21, 2024) (Ex. 3).

This case illustrates the very continuing harm identified by the Special Counsel. The Special Counsel tells us Russian intelligence sought to influence the U.S. presidential election by using allegations against Hunter Biden to hurt President Biden’s reelection. 3 And what did the now-Special Counsel do? The Office abandoned the Agreement it signed and filed felony gun and tax charges against Mr. Biden in two jurisdictions, which public records and DOJ policy indicate are not brought against people with similar facts as Mr. Biden. In these actions, the Special Counsel has done exactly what the Russian intelligence operation desired by initiating prosecutions against Mr. Biden.

Read the whole thing — along with other additional authority posted, a Third Circuit case holding that prosecutors have to deliver on their promises.

Whatever else these two filings do, they’ll force Weiss to explain his wildly conflicted role in this case.


David Weiss Is Smoking Roger Stone’s Witness-Tampering Gun

On Friday, David Weiss submitted most of his responses to Hunter Biden’s Motions to Dismiss in the Los Angeles tax case (he should submit a response to Hunter’s claim that the disgruntled IRS agents’ media tour amounted to a gross violation of his due process today; see links for everything here).

Expect a few posts going through them in the next few days.

Start with another embarrassingly false claim Weiss made in response to Hunter Biden’s vindictive prosecution claim that is worse, in some ways, than claiming that Keith Ablow’s picture of sawdust was instead a picture Hunter Biden had taken of cocaine.

It has to do with Roger Stone.

In an effort to claim that Hunter Biden deserves to be criminally prosecuted for tax crimes when Roger Stone was permitted a civil settlement, David Weiss falsely claimed something distinguishes Hunter — that he wrote a memoir about his alleged crime and Stone did not — when in fact, the memoir Stone did reissue during the period he was defrauding the IRS was more closely connected to Stone’s other, more damaging crimes, than Hunter’s memoir was.

If a memoir justifies a tax indictment, then Stone, not Hunter, should be the one facing prison right now.

David Weiss waives response about the import of threats to his family

There are two ways the Los Angeles vindictive prosecution discussion in Weiss’ twin prosecutions of Hunter Biden differs from the one in Delaware, at least so far. Most obviously, it’s a tax case, not a gun case, so Hunter’s attorney Abbe Lowell is making a different argument about how unusual it is for DOJ to charge someone who, like Hunter, late filed his tax returns before he knew of a criminal investigation and then, later, paid those taxes, with penalties.

That’s one difference.

A more subtle one is that Lowell, in his motion to dismiss, made explicit something he had not before: at the time David Weiss reneged on a signed diversion and plea deal, the Special Counsel feared for the safety of his family.

As a result, Mr. Weiss reported he and others in his office faced death threats and feared for the “safety” of his team and family.22

In his response, Weiss didn’t acknowledge, at all, that his own fears for the safety of his family have been made a part of the official record.

Instead, he continued to claim there’s no logical explanation for how the pressure ginned up by Trump and Republicans in Congress led him to renege on a signed plea deal. Weiss continued to claim that any connection is fictional.

[T]o state an obvious fact that the defendant continues to ignore, former President Trump is not the President of the United States. The defendant fails to explain how President Biden or the Attorney General, to whom the Special Counsel reports, or the Special Counsel himself, or his team of prosecutors, are acting at the direction of former President Trump or Congressional Republicans, or how this current Executive Branch approved allegedly discriminatory charges against the President’s son at the direction of former President Trump and Congressional Republicans. The defendant’s fictious narrative cannot overcome these two inescapable facts.

[snip]

Second, to state the obvious, former President Trump is not the President. The defendant’s father is the President. The defendant fails to establish how President Biden or the Attorney General, to whom the Special Counsel reports, or the Special Counsel himself, or his team of prosecutors, are being improperly pressured by former President Trump or Congressional Republicans, such that the Executive Branch approved allegedly selective and vindictive charges to be brought against the President’s son in violation of the law. [my emphasis]

The centrality of Weiss’ claims that President Biden has a role in all this — leftover from the period when the Alexander Smirnov prong of the investigation remained secret — is all the more ridiculous now that it’s public that, after Weiss reneged on the plea deal, he chased Russian disinformation framing Joe Biden.

But is also utterly false that Lowell offered no explanation for how pressure from Trump led Weiss to renege on that plea deal. Once you include Weiss’ own stated fear for his family in the face of threats ginned up by Trump and Congress, what Weiss himself called intimidation, Lowell has established how pressure from Trump and Congress might have led Weiss to capitulate to that pressure. The fear of stochastic terrorism is all you need.

Which brings us to Roger Stone.

Abbe Lowell raises Roger Stone as a tax cheat who got a civil resolution

As noted, the Los Angeles indictment against Hunter is a tax case. And in a selective and vindictive prosecution claim, you need to explain the norm to be able to prove you’re being treated differently. To be sure, this filing is even less focused on selective prosecution, as opposed to vindictive prosecution, than the gun case, meaning such arguments are a small part of the argument. But Weiss has been unduly focused on selective prosecution from even before Hunter first made the claim, presumably because it’s easier to prove that the Hunter Biden case is different than anything DOJ has seen before than to rebut the evidence that Donald Trump and Bill Barr tried to frame Hunter and David Weiss is a witness to that effort.

So the selective prosecution argument, in which defendants have to argue that people just like them have not been charged before, was a minor part of this filing.

But it explains why Roger Stone ended up in a footnote of the filing — as Chris Clark promised they would do over a year ago.

56 The government does not generally bring criminal charges for failing to file or pay taxes, especially if the individual paid the taxes, interest, and penalty afterwards, as Mr. Biden did in October 2021. According to the IRS Data Book for 2021, 2,600,000 taxpayer returns were not timely filed. Many, if not the vast majority, of those cases were resolved with civil resolutions, even in the most high-profile cases. For example, in United States v. Shaughnessy, a DC law partner and his wife failed to file and pay their taxes for 11 years with nearly $7.2 million owed. DOJ ultimately resolved this civilly with tax, penalties and interest only. See Joint Motion for Entry of Consent Judgment, No. 22-cv-02811-CRC (D.D.C. 2023), DE 9. In United States v. Stone, where former Trump adviser Roger Stone and his wife owed nearly $2 million in unpaid taxes for 4 years, DOJ again resolved the matter civilly. No. 21-cv-60825-RAR (S.D. Fla. 2022), DE 64.

Here’s how Weiss, treating this as the guts of Lowell’s selective prosecution claim and therefore distracting from the rest of it, responded to that footnote:

The defendant compares himself to only two individuals: Robert Shaughnessy and Roger Stone, both of whom resolved their tax cases civilly for failing to pay taxes. Shaughnessy failed to file and pay his taxes, but he was not alleged to have committed tax evasion. By contrast, the defendant chose to file false returns years later, failed to pay when those returns were filed, and lied to his accountants repeatedly, claiming personal expenses as business expenses. Stone failed to pay his taxes but did timely file his returns, unlike the defendant. Neither Shaughnessy nor Stone illegally purchased a firearm and lied on background check paperwork. And neither of them wrote a memoir in which they made countless statements proving their crimes and drawing further attention to their criminal conduct. These two individuals are not suitable comparators, and since the defendant fails to identify anyone else, his claim fails. 5

Roger Stone’s tax fraud is different from Hunter Biden’s and that’s why Hunter’s selective and vindictive prosecution claim must fail, David Weiss says.

Weiss distinguishes Donald Trump’s rat-fucker from Joe Biden’s kid in three ways (note, Weiss doesn’t address that DOJ claimed Stone hid his business income, just as Hunter allegedly did):

  • Stone didn’t pay his taxes, but did file timely returns
  • Stone didn’t buy a gun while addicted (as far as we know — though there are pictures of Stone with guns and some of his associates have alleged that Stone had addiction problems in this period)
  • Stone didn’t — Weiss claims — write a memoir “proving [his] crimes and drawing further attention to [his] criminal conduct”

It’s that last bullet that is garbage bullshit, sawdust-as-cocaine levels of stupid.

But let’s take them in order.

David Weiss uses gimmicks to limit extent that addiction can undermine the tax case

Regarding the first bullet, using the failure to file taxes in the LA case to distinguish Hunter from Stone is problematic for several reasons. First, Lowell is arguing that what changed between the plea agreement, which charged only failure to pay, and the tax indictment, which charged a mix of failure to file and failure to pay, was political pressure (and, now, threats that made Weiss worry about his family’s safety).

Notably, Weiss avoids claiming that Stone didn’t evade taxes, probably because the complaint against him alleges that Stone hid his income from the IRS in an alter ego, Drake Ventures, a kind of tax evasion for which Weiss has charged Hunter Biden, but for which Stone was not criminally charged. “By depositing and transferring” over $1 million paid to Stone in 2018 and 2019, “into the Drake Ventures’ accounts instead of their personal accounts, the Stones evaded and frustrated the IRS’s collection efforts,” the complaint alleges (my emphasis). Right there, in the complaint, DOJ claimed that Stone evaded IRS collection efforts, but Stone was not criminally charged.

To get to claiming that Hunter willfully failed to file his taxes charges during the years of his addiction, Weiss relies on a bunch of gimmicks that are at the core of his indictment against Hunter Biden. In Weiss’ responses to Lowell’s technical complaints about the indictment — which I wrote up here — he explained each of those technical complaints away using a gimmick designed to allow him to ratchet up the charges on Hunter while also mitigating the risk that Hunter’s addiction will make it harder to prove the tax case to a jury.

For example, in addition to claiming he could charge Hunter for the 2016 tax year because the President’s son signed tolling agreements with two entities — the Delaware US Attorney’s Office and DOJ Tax Division — that are not involved in this prosecution, Special Counsel Weiss claims that Hunter’s failure to pay his 2016 taxes occurred in 2020, when Hunter was sober, rather than 2016, when he misplaced a finalized tax submission.

Similarly, it’s not so much that Weiss charged Hunter twice for failing to pay his 2017 and 2018 taxes, which Lowell argued made the charges duplicitous, Weiss claims; it’s that Weiss intends to give the jury a choice for which year they want to convict Hunter on those charges — whether he failed to pay when he missed filing deadlines in 2018 and 2019 or he failed to do so when he ultimately filed in 2020, when he was sober.

It doesn’t matter that Hunter didn’t live in California for some of the tax years for which Weiss charged him in California, Weiss says, because Hunter lived in CA when he ultimately did file his taxes in 2020, without paying them. Weiss has used gimmick after gimmick to eliminate problems posed by both Hunter’s addiction and the fact that he filed his taxes before he learned of the criminal investigation into him, on top of the gimmick that he claims Hunter could afford to pay his tax burden in 2020 because Kevin Morris paid for some of his other expenses.

Effectively, to get around the willfulness problem posed by Hunter’s addiction, Weiss has shifted the date of Hunter’s crimes to 2020. But once you’ve done that, Hunter and Stone did the same thing: fail to pay taxes and also hide their income from 2018 (and 2019, in Stone’s case).

The gimmicks are just the kind of normal prosecutorial dickishness we’ve come accustomed to from this Baltimore crowd. But once you understand the effect of the gimmicks — to displace Hunter’s alleged crimes to 2020, when he submitted tax returns for four years at once — then Hunter and Stone are similarly situated, albeit with Stone accused of “evading” taxes in two calendar years, not one.

Weiss says a gun that was never fired is a worse related crime than witness tampering that was

But Weiss has a bigger problem with his effort to dismiss Stone as a comparator. He pulls two things out of his arse to present as distinguishers between Hunter Biden and Stone without (apparently) first doing the least little due diligence to check whether those things he pulled out of his arse have any basis in reality, much less to make sure they don’t actually prove him wrong.

David Weiss says that Hunter Biden is different from Roger Stone because he unlawfully owned a gun for 11 days in 2018. But the gun charge has no tie to the tax charge. Not even Weiss makes that claim!

Indeed, it’s the reverse: investigators decided not to charge gun crimes in 2018, before the tax investigation started. Prosecutors only reconsidered that because of the tax investigation — and (Lowell has alleged with no response from Weiss) because Republican politicians made Weiss afraid for the safety of his family. The only tie between the gun charges and the tax charges would be exculpatory in the tax case — Hunter’s addiction. Weiss’ prosecutors admitted the inverse relationship in Hunter’s initial appearance in Los Angeles. ‘[A]rguably,” Leo Wise said to Judge Mark Scarsi on January 11, “information in that case that is inculpatory in this case, may be arguably, exculpatory in that case.” The things prosecutors will use to prove Hunter was an addict in 2018 undermine prosecutors’ case that Hunter’s failure to file tax returns for 2017 and 2018 was willful.

By contrast, the government did claim that Roger Stone’s tax avoidance tied directly to his other crimes, crimes for which a jury had already found him guilty when DOJ filed the tax complaint in 2021.

The complaint against Stone described how he engaged in fraud to shelter his money because he was indicted.

40. In May 2017, the Stones entered into an installment agreement with the IRS that required them to pay $19,485 each month toward their unpaid taxes. They made these payments each month from a Drake Ventures’ Wells Fargo account.

41. Roger Stone was indicted on January 24, 2019, and the indictment was unsealed on January 25, 2019.

42. After Roger Stone’s indictment, the Stones created the Bertran Trust and used funds that they owned via their alter ego, Drake Ventures, to purchase the Stone Residence in the name of the Bertran Trust.

[snip]

52. The Stones intended to defraud the United States by maintaining their assets in Drake Ventures’ accounts, which they completely controlled, and using these assets to purchase the Stone Residence in the name of the Bertran Trust.

53. The Stones’ purchase of the Stone Residence using funds they held in the Drake Ventures’ Wells Fargo account is marked by numerous badges of fraud. They include:

a. The Stones were in substantial debt to the United States at the time of the transfer, rendering them insolvent at the time of the transfer and unable to pay their debt to the United States;

b. The Stones faced the threat of litigation. Roger Stone had just been indicted;

c. The Stones anticipated that the United States would resort to enforced collection of their unpaid tax liabilities once they defaulted on their monthly installment payments to the IRS; [my emphasis]

It seems DOJ believed that Stone sought to shelter his wealth in a Florida residence that would be beyond the reach of any criminal forfeiture, just like his buddy Paul Manafort did.

And this is why it matters that David Weiss continues to bury his confession to Congress that, when he reneged on the plea deal, he was afraid for the safety of his family.

The crimes for which Stone was indicted — the prosecution which DOJ explicitly tied to Roger Stone’s efforts to defraud the government — involved real threats, not the hypothetical threat of an addict owning a gun.

Roger Stone was convicted for trying to intimidate Randy Credico against testifying to Congress and Robert Mueller. Credico has described that his first contact with the FBI in 2018 was actually a Duty to Warn meeting associated with the plotting of Stone’s militia buddies, not a witness interview.

And Judge Amy Berman Jackson applied a sentencing enhancement for the threat Stone — again, with his militia buddies — made against her personally.

The defendant engaged in threatening and intimidating conduct towards the Court, and later, participants in the National Security and Office of Special Counsel investigations that could and did impede the administration of justice.

Before the Proud Boys launched an attack on the Capitol to prevent the peaceful transfer of power, before Stone allegedly threatened to assassinate one or another Democratic Congressman as well as Leo Wise and Derek Hines’ colleague and Stone prosecutor, Aaron Zelinsky, Enrique Tarrio helped Stone threaten his judge.

That’s the weapon Roger Stone was found guilty of wielding: stochastic terrorism that posed a risk to justice. Just like Donald Trump attacked David Weiss before Weiss got threats that led him to worry about the safety of his family.

And yet, having systematically ignored the threats that Donald Trump and other Republicans ginned up against his family, David Weiss is arguing that Hunter Biden owning a gun unrelated to failing to pay taxes is more incriminating than DOJ’s claims in the tax complaint that Stone’s adjudged witness intimidation tied directly to Stone’s efforts to defraud the IRS.

One is connected to the charged crime. One is not. One led to threats against a key witness and a judge. One did not.

But David Weiss, still refusing to acknowledge his testimony that he feared for the safety of his family, claims the one unconnected to the alleged tax crimes explains his decision to charge the tax crimes. Weiss’ claims about Stone don’t help his case, they show that a criminal case against Stone had more merit than this one.

David Weiss claims Hunter’s memoir is great evidence and then proves it is not

Crazier still, David Weiss is claiming that Hunter Biden wrote a memoir “proving [his] crimes and drawing further attention to [his] criminal conduct” of being an addict (neither the gun for which he is charged nor his failure to pay his taxes appear in the memoir) but Roger Stone did not.

To raise the stakes of this (embarrassingly false) claim, Weiss dedicates three paragraphs laying out how Hunter’s memoir helps to prove the gun case that, prosecutors have admitted, is inversely related to the tax case.

Then, after announcing his awareness of a federal investigation in late 2020, the following year (2021) he chose to author, sell, and promote his memoir, Beautiful Things, and to release an audiobook in a lucrative deal that heightened his prominence and drew further attention to his crimes. 1

1 As outlined in the Indictment, the defendant made statements and admissions in the book relevant to the charges against him.

B. The Defendant Also Chose to Commit Serious Gun Crimes

The defendant’s crimes were not limited to tax violations. In 2018, he chose to purchase a gun, he chose to lie on background check paperwork by stating he was not addicted to drugs, and he certified that his answers on the paperwork were true, when in fact, he had lied about his addiction. See generally United States v. Robert Hunter Biden, Indictment, Dkt. 40 (D. Del). When he later chose to publish his memoir, he included countless admissions about his drug use in 2018 when he possessed the gun.

Again, prosecutors have described that these cases are inversely related. If you prove that Hunter was an addict, as Weiss says the memoir helps him do, you also make it harder to prove that the failure to file for 2017 and 2018 was willful.

Here’s how Weiss treats Hunter’s memoir in the equivalent filing in the gun crimes case.

After the defendant publicly announced his awareness of a federal investigation of him in late 2020, see ECF 63 at 5, the following year (2021) he chose to author, sell and promote his memoir, Beautiful Things, and to release an audiobook in a lucrative book deal. Relevant to the charges in this matter, the defendant made expansive admissions about his extensive and persistent drug use, including throughout the year 2018 when he purchased the gun. For example, the defendant admitted that he was experiencing “full blown addiction” to crack cocaine and by the fall of 2018 he had gotten to the point that:

It was me and a crack pipe in a Super 8, not knowing which the fuck way was up. All my energy revolved around smoking drugs and making arrangements to buy drugs—feeding the beast. To facilitate it, I resurrected the same sleep schedule I’d kept in L.A.: never. There was hardly any mistaking me now for a so-called respectable citizen. Crack is a great leveler.

Hunter Biden, Beautiful Things (2021) at 203, 208

In the Delaware case, Weiss is arguing something different than he is in the LA case, that is about how much evidence (Weiss claims) there is to prove the gun case. As I noted, that’s actually counterproductive in the selective prosecution response, because it proves that the evidence Weiss claims to think is so damning was available in 2021, before he decided to divert the gun crime in 2023, before he came to fear for the safety of his family and then reneged on that diversion agreement.

Oh. And also? Weiss again botches the evidence. The passage cited above about a crack pipe in a Super 8 on page 208 describes the aftermath, in February 2019, of the Ketamine treatment Hunter got from Roger Stone buddy Keith Ablow that — Hunter’s memoir describes — made things worse.

The therapy’s results were disastrous. I was in no way ready to process the feelings it unloosed or prompted by reliving past physical and emotional traumas. So I backslid. I did exactly what I’d come to Massachusetts to stop doing. I’d stay clean for a week, break away from the center to meet a connection I found in Rhode Island, smoke up, then return.

[snip]

Finally, the therapist in Newburyport said there was little point in our continuing.

“Hunter,” he told me, with all the exasperated, empathetic sincerity he could muster, “this is not working.”

I headed back toward Delaware, in no shape to face anyone or anything. To ensure that I wouldn’t have to do either, I took an exit at New Haven. For the next three or four weeks, I lived in a series of low-budget, low-expectations motels up and down Interstate 95, between New Haven and Bridgeport.

I exchanged L.A.’s $400-a-night bungalows and their endless parade of blingy degenerates for the underbelly of Connecticut’s $59-a-night motel rooms and the dealers, hookers, and hard-core addicts—like me—who favored them. I no longer had one foot in polite society and one foot out. I avoided polite society altogether. I hardly went anywhere now, except to buy. It was me and a crack pipe in a Super 8, not knowing which the fuck way was up. [my emphasis]

This is in no way a description of the state of Hunter’s addiction in “fall of 2018,” when he bought a gun. It’s a description of the state of Hunter’s addiction in February 2019, after treatment from Ablow exacerbated the addiction. To make things worse, Hunter gets the timing of the 2019 follow-up treatment wrong in the book, saying it happened in February when it started in January. This passage is utterly worthless to prove the gun crime, and instead helps to prove that memoirs, especially those written by recovering addicts, are prone to narrative embellishment and error.

To sum up how dumb it is to use the memoir to rebut a selective prosecution claim at all: First, the existence of a 2021 memoir doesn’t help Weiss’ selective prosecution rebuttal in either case, because that evidence was available before Weiss decided to resolve both cases without jail time in June 2023 and so only raises more questions about why he reneged on that deal. The memoir actually isn’t all that helpful to prove the status of Hunter’s addiction in October 2018, because Hunter doesn’t provide as much detail of that as he did of his exploits in Los Angeles, from earlier in the year. Worse still, relying on a passage describing events in February 2019, after Ketamine treatment led Hunter to backslide, and claiming it describes the status of Hunter’s addiction in fall 2018 is only going to prove you never bothered to check your evidence before you indicted on gun crimes. And, finally, Weiss’ prosecutors have admitted there’s an inverse relationship between these two cases! Proving that Hunter was addicted in this period will only make it harder to prove that his non-payment in 2017 and 2018 was willful and may even provide basis to argue that Hunter didn’t willfully lie to his accountant in 2020, but rather couldn’t remember what happened in 2018. The fact that Hunter gets dates wrong in the memoir will actually help that case.

It’s all such a nutty argument, using this memoir as a distinguisher in the tax case.

Roger Stone’s memoir was far more closely connected to his crimes and tax evasion than Hunter’s was

Nuttier still, given the fact — fact! — that Roger Stone did too write a memoir about his crimes!

The claim that Stone didn’t write a memoir about his crimes is as transparently, embarrassingly false as David Weiss’ claim that a photo of a photo of sawdust was instead a picture of Hunter Biden’s cocaine.

Not only did Stone write a memoir about his claimed actions in the 2016 election, he reissued it in paperback, with a lengthy introduction in which he codified the cover story that would prove to be false at trial later that year. As noted in this post, that introduction made a number of claims that were part of Stone’s cover story, including:

  • Describes learning he was under investigation on January 20, 2017
  • Discounts his May 2016 interactions with “Henry Greenberg” — a Russian offering dirt on Hillary Clinton — by claiming Greenberg was acting as an FBI informant
  • Attributes any foreknowledge of WikiLeaks’ release to Randy Credico and not Jerome Corsi or their yet unidentified far more damning source while disclaiming any real foreknowledge
  • Gives Manafort pollster, Tony Fabrizio, credit for the decision to focus on Michigan, Wisconsin, and Pennsylvania in the last days of the election
  • Blames Jeff Sessions for recusing from the Russian investigation
  • Harps on the Steele dossier
  • Dubiously claims that in January 2017, he didn’t know how central Mueller’s focus would be on him
  • Suggests any charges would be illegitimate
  • Complains about his financial plight
  • Falsely claims the many stories about his associates’ testimony comes from Mueller and not he himself
  • Repeats his Randy Credico cover story and discounts his lies to HPSCI by claiming his lawyers only found his texts to Credico after the fact
  • Suggests Hillary had ties to Russia
  • Notes that Trump became a subject of the investigation after he fired Jim Comey [my emphasis]

Those two bolded bits are the core of the case that would be charged in January 2019 and convicted in November 2019. This introduction is part of the same cover-up, one that attempts to profit off his cover-up and protection of Donald Trump.

He reissued it, in part, for financial reasons, including an effort to pay collaborators in the 2016 story that were likely also trial witnesses. That paperback came out in precisely the period in 2019 during which, the tax claim against Stone alleged, he was shifting money to defraud the government because he had been indicted. Stone planned a media blitz that clashed with the gag imposed on him — imposed on him, again, because he and his militia buddies were posting pictures of Judge ABJ with a crosshairs on it.

We know all this because Roger Stone almost went to jail for it. This post describes that conflict.

On February 21, 2019, Amy Berman Jackson gagged Stone in response to the Instagram post targeting her, describing that his incitement might lead “others with extreme views and violent inclinations” to take action.

Let me be clear, at the time of his post he was permitted to criticize the special counsel, the designation of the cases related, and the previous decisions of the judge to whom the case had been assigned. But I am not reassured by the defense suggestion that Mr. Stone is just all talk and no action and this was just a big mistake.

What concerns me is the fact that he chose to use his public platform, and chose to express himself in a manner that can incite others who may feel less constrained. The approach he chose posed a very real risk that others with extreme views and violent inclinations would be inflamed. You don’t have to read the paper beyond today to know that that’s a possibility.

And these were, let there be no mistake, deliberate choices. I do not find any of the evolving and contradictory explanations credible. Mr. Stone could not even keep his story straight on the stand, much less from one day to another. There is some inconsistency in his telling me on the one hand that these public communications are an existential endeavor, essential not only to his income but his very identity, and then, on the other hand, telling us, It wasn’t me.

On March 1, Stone’s attorneys filed a “notice” arguing that the book should not be covered by her gag. On March 4, they submitted a filing saying, oops! it is too late. On March 5, ABJ denied Stone’s request that the book be excluded from the gag and ordered more briefing. On March 11, Stone submitted a bunch of documentation showing (among other things) that at least one of his attorneys was centrally involved in the book publication.

The Bertran Trust was not only an effort to keep money away from the IRS.

It was an attempt to keep the proceeds of a book that violated the gag order imposed to avoid more incitement. It was an attempt to profit off continuing to protect Donald Trump.

And David Weiss, after relying on a Hunter Biden memoir that might help prove the gun case but actually hurts his tax case, claims that memoir doesn’t exist.

And that’s before you consider the book introduction that Stone wrote for Keith Ablow, the guy whose therapy — Hunter’s memoir describes — made his addiction worse, the guy in whose cottage Hunter was staying when his life was packaged up to be sent to David Weiss to use in prosecution.

After looking at Keith Ablow’s sawdust picture and claiming it was Hunter’s cocaine, Weiss has now looked at Ablow buddy Roger Stone and claimed that a memoir that is more closely connected with his tax dodging and dangerous crimes and instead claimed that memoir simply doesn’t exist.

And that is the basis Weiss gives for charging Hunter Biden with tax crimes.

Timeline

October 30, 2018: ABC reports that Stone hired Bruce Rogow in September, a First Amendment specialist who has done extensive work with Trump Organization.

October 31, 2018: Date Corsi stops making any pretense of cooperating with Mueller inquiry.

November 6, 2018: Democrats win the House in mid-term elections.

November 7, 2018: Trump fires Jeff Sessions, appoints Big Dick Toilet Salesman Matt Whitaker Acting Attorney General.

November 8, 2018: Prosecutors first tell Manafort they’ll find he breached plea deal.

November 12, 2018: Date Corsi starts blowing up his “cooperation” publicly.

November 14, 2018: Date of plea deal offered by Mueller to Corsi.

November 15, 2018: Mike Campbell pitches Stone on a paperback — in part to ‘retake the narrative — including a draft of the new introduction.

November 18, 2018: Jerome Corsi writes up his cover story for how he figured out John Podesta’s emails would be released.

November 20, 2018: After much equivocation, Trump finally turns in his written responses to Mueller.

November 21, 2018: Dean Notte reaches out to Grant Smith suggesting a resolution to all the back and forth on their joint venture, settling the past relationship in conjunction with a new paperback.

November 22, 2018: Corsi writes up collapse of his claim to cooperate.

November 23, 2018: Date Mueller offers Corsi a plea deal.

November 26, 2018: Jerome Corsi publicly rejects plea deal from Mueller and leaks the draft statement of offense providing new details on his communications with Stone.

November 26, 2018: Mueller deems Paul Manafort to be in breach of his plea agreement because he lied to the FBI and prosecutors while ostensibly cooperating.

November 27, 2018: Initial reports on contents of Jerome Corsi’s book, including allegations that Stone delayed release of John Podesta emails to blunt the impact of the Access Hollywood video.

November 29, 2018: Michael Cohen pleads guilty in Mueller related cooperation deal.

December 2, 2018: Roger Stone claims in ABC appearance he’d never testify against Trump and that he has not asked for a pardon.

December 3, 2018: Trump hails Stone’s promise not to cooperate against him.

December 9, 2018: Stone replies to Campbell saying that because he never made money on Making of the President, he has no interest.

December 13, 2018: Tony Lyons and Grant Smith negotiate a deal under which Sky Horse would buy Stone out of his hardcover deal with short turnaround, then expect to finalize a paperbook by mid January. This is how Stone gets removed from the joint venture — in an effort to minimize his risk.

December 14, 2018: Mueller formally requests Roger Stone’s transcript from House Intelligence Committee.

December 17, 2018: Smith, saying he and Stone have discussed the deal at length, sends back a proposal for how it could work. This is where he asks for payment the next day, to pay someone off for work on the original book.

For some reason, in the ensuing back-and-forth, Smith presses to delay decision on the title until January.

December 19, 2018: It takes two days to get an agreement signed and Stone’s payment wired.

December 20, 2018: HPSCI votes to release Stone’s transcript to Mueller.

January 1, 2019: Stone includes Keith Ablow on his annual best dressed list.

January 8, 2019: Paul Manafort’s redaction fail alerts co-conspirators that Mueller knows he shared polling data with Konstantin Kilimnik.

January 13, 2019: Stone drafts new introduction, which he notes is “substantially longer and better than the draft sent to me by your folks.” He asks about the title again.

January 14, 2019: Stone sends the draft to Smith and Lyons. It is 3386 words long. Lyons responds, suggesting as title, “The Myth of Collusion; The Inside Story of How I REALLY Helped Trump Win.” Lyons also notes Stone can share the book with Senators.

Stone responds suggesting that he could live with, “The Myth of Collusion; The Inside Story of How Donald Trump really won,” noting, “I really can’t be seen taking credit for HIS victory.”

By end of day, Skyhorse’s Mike Campbell responds with his edits.

January 15, 2019: The next morning, Smith responds with his edits, reminding that Stone has to give final approval. Stone does so before lunch. Skyhorse moves to working on the cover. Late that day Campbell sends book jacket copy emphasizing Mueller’s “witch hunt.”

January 16, 2019: Tony Lyons starts planning for the promotional tour, asking Stone whether he can be in NYC for a March 5 release. They email back and forth about which cover to use.

January 18, 2019: By end of day Friday, Skyhorse is wiring Stone payment for the new introduction.

January 24, 2019: Mike Campbell tells Stone the paperback “is printing soon,” and asks what address he should send Stone’s copies to. WaPo reports that Mueller is investigating whether Jerome Corsi’s “severance payments” from InfoWars were an effort to have him sustain Stone’s story. It also reports that Corsi’s stepson, Andrew Stettner, appeared before the grand jury. That same day, the grand jury indicts Stone, but not Corsi.

January 25, 2019, 6:00 AM: Arrest of Roger Stone.

January 25, 2019, 2:10 PM: Starting the afternoon after Stone got arrested, Tony Lyons starts working with Smith on some limited post-arrest publicity. He says Hannity is interested in having Stone Monday, January 28 “Will he do it?” Smith replies hours later on the same day his client was arrested warning, “I need to talk to them before.”

January 26, 2019: Lyons asks Smith if Stone is willing to do a CNN appearance Monday morning, teasing, “I guess he could put them on the spot about how they really go to this house with the FBI.”

January 27, 2019: Smith responds to the CNN invitation, “Roger is fully booked.” When Lyons asks for a list of those “fully booked” bookings, Smith only refers to the Hannity appearance on the 28th, and notes that Kristin Davis is handling the schedule. Davis notes he’s also doing Laura Ingraham.

January 28, 2019: The Stones pay $19,485 to IRS.

January 28, 2019: The plans for Hannity continue on Monday, with Smith again asking for the Hannity folks to speak to him “to confirm the details.” In that thread, Davis and Lyons talk about how amazing it would be to support “another New York Times Bestseller” for Stone.

February 15, 2019: After two weeks — during which Stone was indicted, made several appearances before judges, and had his attorneys submit their first argument against a gag — Stone responded to Campbell’s January 24 email providing his address, and then asking “what is the plan for launch?” (a topic which had already been broached with Lyons on January 16). Campbell describes the 300-400 media outlets who got a review copy, then describes the 8 journalists who expressed an interest in it. Stone warns Campbell, “recognize that the judge may issue a gag order any day now” and admits “I also have to be wary of media outlets I want to interview me but don’t really want to talk about the book.”

February 18, 2019: Release of ebook version of Stone’s reissued book.

February 21, 2019: After Stone released an Instagram post implicitly threatening her, Amy Berman Jackson imposes a gag on Stone based on public safety considerations.

February 25, 2019: The Stones transfer $70,000 from Drake to Attorney account.

February 28, 2019: The Stones transfer $70,000 from Drake to Attorney account. The Stones pay $19,485 to IRS.

March 1, 2019: Ostensible official release date of paperback of Stone’s book. Stone submits “clarification” claiming that the book publication does not violate the gag.

March 4, 2019: Stone submits filing saying it is too late to hold the book.

March 5, 2019: The Stones establish Bertran Trust.

March 5, 2019: ABJ denies Stone’s request to exclude the book from the gag and orders further briefing.

March 11, 2019: Stone response to ABJ order, including exhibits showing that at least one of his attorneys knew of the imminent book release at the gag hearing.

March 22, 2019: The Stones purchase condo using $140,000 transfered from Drake Ventures account.

March 27, 2019: The Certificate of Trust recorded in Broward.

March 28, 2019: The Stones fail to make IRS payment, leading to default.

May 24, 2019: The Stones open three bank accounts in name of Bertran Trust.

June 2, 2020: Roger Stone writes forward to Keith Ablow book celebrating Trump.


Fresh Off an Interview with Vladimir Putin, Tucker Carlson Repeats the Trick with Keith Ablow

“I settled a few cases,” onetime Hunter Biden shrink Keith Ablow said, just over ten minutes into an interview with Tucker Carlson. “Because, I don’t know. Maybe God saying ‘you didn’t have the quijones [sic],’ I don’t know. But I wanted some safety for my family.”

It was the only explanation he gave for why Massachusetts stripped his license in the wake of multiple claims he sexually abused patients. For the bulk of the interview, Ablow carried on, as if he were still a shrink.

Ablow similarly claimed to be ignorant of why the DEA searched his office.

“I can’t explain why these things were ever taken or why I would be raided. … I never figured out why the DEA would come to my office. ”

In fact, Ablow provided an anachronistic claim suggesting he got “raided” for the same reason Roger Stone and Donald Trump did — politics, he insinuates.

A: I texted Roger Stone, Man, you, me, and Trump get raided. Who doesn’t get raided. And he, because he’s Roger Stone, he texted right back, “The bad guys.”

T: He’s right. Unfortunately, he’s right.

This exchange couldn’t have been a response to the search of Ablow’s office; rather, it could only have been a response to Trump’s search for stealing classified documents.

This conversation could have occurred no earlier than August 2022 — 30 months after the search of Ablow and 43 months after the search of Roger Stone. It’s an interesting comparison. After all, one of those searches sought notes Roger Stone took of all the conversations he had with Trump in 2016. Another found documents recording a grant of clemency for Roger Stone that has some unknown tie to a French President — possibly Macron, whom in 2017, Stone’s buddies colluded with GRU to target in a hack-and-leak.

Are you really suggesting there’s a similarity between the Stone and Trump searches and your own, Keith? Because that’s a whole lot of rat-fuckery you’re tying this search to.

Having endorsed Ablow’s claim that he, Trump, and Trump’s rat-fucker are really the good guys, Tucker predictably never pointed out that Ablow might learn why he was searched by looking at the warrant, nor did he ask what the warrant said.

Ultimately, after more babbling and blaming an assistant, though, Ablow offered up that if you call in prescriptions to pharmacies around the country, you might get in trouble for doing so.

A: Right. And so no idea, as to motive, agenda, again, I mean, I did have a disgruntled former employee. One who thinks the laptop had nothing to do with it, well maybe that person told them that you were selling drugs. They raided a pharmacy in my town, at the same time, in Newburyport, Mass. Again, no charges. it’s run by a very nice guy, Louis, he’s about 85.

T: Did anyone apologize to you?

A: No. And it’s not necessarily over. They never say, sorry, and by the way, you have a clean bill.

T: Wait. So they can just show up with guns at your house, not explain why they’re there,

A: That’s right.

T: Steal all your stuff. And then never charge you, much less convict you. And that just kind of hangs over your head.

A: It hangs over your head and if I had called my lawyer prior to this, he would have said, absolutely not. You are not going on Tucker Carlson’s show, because, as you know, you’re still under Federal investigation. Any doctor — any doctor in America, if you said, did you ever have to wonder if you could call in prescriptions around the country for pharmacies, would say, I don’t know. I’ve done it. Is that a bad thing, if they fill it? But, if they find out that any single doctor did that, for instance, they can make a beef about it. So this is a way to shut people up. Right. Because anybody can be messed with.

[snip]

The reason I’m here … is I don’t like being shut up. It’s safer not to. Really safer. [my emphasis]

That’s important context to the interview: Slightly more than four years after the DEA search and more than five after Hunter Biden left his care, Ablow is claiming that if anything were to happen to him, it would be because he opened his mouth. The timing of this is important.

Unless someone were charged with a continuing conspiracy through the time Rudy Giuliani started disseminating the laptop, the statute of limitations on Ablow’s hypothetical role would have expired. They would not have, though, on any drug-related crimes that continued through February 2020. “You’re still under federal investigation,” Ablow’s lawyer would say to him.

It as if he’s saying that if he were charged with drug-related crimes, it would be because of his role in the Hunter Biden caper.

That claim came even as Ablow falsely claimed to have protected Hunter’s privacy. He did so, several times, when describing how he came to sit on Hunter’s laptop for a year. In the first instance, he described that, generally, he has no interest in someone’s private life.

T: How did Hunter Biden’s laptop end up in your office or your house?

A: Well, I think that texts and emails that exist would prove out that, you know, he leaves laptops places.

T: Yeah?

A: Despite my saying to him, pick it up, dude, along with your Loro Piana clothes, because they’re my size and I might wear them [laughs], or keep them, he didn’t. And so there it was. And it was taken.

T: You knew it was in your house.

A: Oh yeah. It was … locked up.

T: And you told him, you left your laptop at my place, pick it up, and he didn’t?

A: Correct. Multiple times. [Funny mouth gesture]

T: And so, what happened next? I mean, did you look at the laptop?

A: No. That’s why this theory from Hunter’s pal and benefactor — his lawyer — Kevin Morris is absurd. Cause they could open it up. He has it back! And they could do some sort of forensic look at it. Not only did I never open the lid, I never turned it on, I have no interest in looking at somebody’s private stuff. [my emphasis]

But then prodded by Tucker, he claimed to have Hunter’s secrets independent of the laptop and then shared what he claims Hunter’s diagnosis was — cocaine dependency.

T: But you were his shrink. So you would know his secrets anyway.

A; Exactly.

[Cackling from Tucker.]

A And I don’t have to look at his laptop to know his secrets and his secrets are safe with me, which is why if you have a lawyer, I’ve said this before, if you have a lawyer who represents you, and you allow that lawyer to suggest that your shrink is a scumbag, then I give you a diagnosis, additionally, besides, cocaine dependence, which is scumbag.

T; Yeah.

A: Because that, I made clear to a few people, who suggested, you should have turned it over. Look what you had! You could have helped America! No no no. You don’t understand. This is sacred. This is like a blood oath. If you think I’m gonna be on my death bed, and look my kids in the eyes and say, well I was the one who made it kind of confidential, when you go to a psychiatrist. Uh uh. Like I’m willing to die for that. I’m not breaking confidentiality with a patient, ever. That’s, like, one of those tripwires. [my emphasis]

He has no interest in looking at private stuff, Hunter’s secrets are safe with him, and he wouldn’t break confidentiality, he said, after claiming to repeat a diagnosis that would be useful for prosecutors in the gun case.

The most telling example of Ablow violating Hunter’s privacy, though, is Ablow’s thinly veiled description of his opinion regarding Hunter Biden’s ills. As Ablow explained to Tucker how he (used to, when he had a license, which again he doesn’t mention) helps clients reclaim their own story, he spoke about a hypothetical patient who exactly matches Hunter Biden. His description pitched a claim that Hunter was ordered to earn money for the family by the Bidens — something Hunter expressed when complaining about his financial woes, but something that had far more to do with his divorce than his father. Which is how he insinuated Joe Biden doesn’t love his son.

They suffer depression, anxiety, all manner of things, when their stories are not known to them. When they think of people, let’s say, in the family, or others or events that unfolded as beneficial to them when they were, let’s say, very bad for them. They need to recast the characters that they thought were the heroes in their lives and say, maybe not. Maybe when I abandoned my self, my interest, to take a common example, maybe when I allowed myself to not pursue that real passion of mine because I wanted to satisfy people around me, maybe that means that those people didn’t love me as much as I thought they did. Right? Now, that’s an incredible epiphany, when that happens. If a man, for instance, is supposed to be an artist, and he goes around the globe doing deals, to create wealth for his family, because he’s not sure what else to do because that was assigned to him? That man needs to embrace his art again and reevaluate everyone around him who suggested he not do that. [my emphasis]

We’ve seen this — Ablow minimizing Joe Biden’s love for his son — before. As I showed in this post, Ablow completely rewrote a statement Hunter wrote for a Vanity Fair piece and took out all the love. Ablow replaced this fairly amazing paragraph about Joe Biden … [I’ve left all typos, including the charming, “iOS” instead of “is.”]

The reason people love my Dad Chris iOS because he’s the son they hope to raise he’s the parent they hope to be he’s the brother and friend we all look up to. They love him Chris because he is as real an American as they are and they all want to be. He’s not perfect’ he’s got a horrible temper, he spoils his grandkids, he loves my Mom almost too much and he still thinks he can still make me angrier than anyone on earth sometimes. There’s nobody I want to make more proud of me than my Dad and there’s no-one that I know can ever be more proud of me and my whole family. May Dad never has asked anyone of us to be less human he’s just taught us all what it means to be a good man in hard world. He taught me what his mom and dad taught him “Always remember no man is better than you and you are no better than you.”if er to break I m certain they would all say —no one will ever know you better than your brothers and your sisters you always take their side no matter how badly they screwed up. Every Biden kid knows there’s nothing that they could do to make anyone in this family to stop loving you. And finally always be kind to the people in pain (unless they hurt your grandmother your mom your aunt or your sister- then you’re free to beat the shit out of them if your sister hasn’t beat you to it.) [my emphasis]

With a paragraph that turned Trump’s opponent into a fighter, stripped of his love.

I believe that my father has become an ongoing symbol of what it means to keep on fighting for what is good in oneself, in others and in our country. I can tell you that I wouldn’t be alive today, if my dad hadn’t kept fighting for me, too, through my darkest days. So the idea that tragedy or tough times or any number of trials would dissuade a Biden from serving his fellow man—whether a friend or a fellow citizen—could not be more misguided. My dad has proven, ag ain and again, that he is (as Teddy Roosevelt once said of himself) “as strong as a bull moose” and that America “can use [him] to the limit.”

In an interview in which Ablow advised Tucker to get a dog so he can experience unconditional love, Ablow stole the love Joe has for Hunter, one of the things that has sustained Hunter in sobriety.

Given Ablow’s inconsistent claims about confidentiality and his attack on Joe Biden’s love for his son, take a look at Ablow’s claims about why he got the DEA to give the laptop back to Hunter. As Ablow described it, after the raid he moved immediately to inform the DEA that the Hunter laptop was not his own.

T: So, and then, how did they get Hunter Biden’s laptop?

[describes seizure]

A: And then I immediately called my lawyer and said, look, a patient’s item was taken amongst the things that were mine. It has a sticker on it. It looks different than mine. It’s messy. Mine are clean. His was messy. We have to get it back to him because that’s not okay. And uh, that’s what we did.

[snip]

T: They returned it to him. How did that happen?

A: Well, I did suggest that that would be the right thing for them to do. They made a — they could have made a different decision given that he was under investigation, federally. They didn’t. That’s their business, as to why not. You know it sure put me in a funny position because I had guys like Garrett Ziegler, who’s a far right guy, saying, Keith Ablow must be in business selling drugs with Hunter Biden. He wouldn’t turn over that laptop — he had it all this time. Well, no. It’s patient confidentiality.

He again cited patient confidentiality, the same confidentiality that didn’t prevent him from repeating his diagnosis of Hunter or describing generally what he told Hunter to malign his father’s love. The exclusion of a laptop from a warranted search has nothing to do with patient confidentiality: Ablow has already said that he didn’t look at the laptop. The laptop, at that point, had more to do with Ablow’s rental than with his psychiatric care.

Importantly, Ablow pointed to the fact that he got the DEA to return the laptop to Hunter as proof that he had no role in compromising the other laptop.

I [effected?] the return of Mr. Biden’s laptop to him through my attorney, interacting with the DEA, because that’s the responsible thing to do. Which is, by the way, why Kevin Morris’ theory that Keith Ablow is the source of the laptop originally — he’s the leak — is absurd.

Is it, though? Or did Ablow rush to get the laptop back to Hunter to prevent them from doing a search, to prevent the Feds from seeing the Hunter Biden laptop?

There are two more details of interest. First, note that Ablow is equivocating about what building was — is — next to the cottage Hunter occupied when his digital life got picked up. Yes, that building is currently (as far as I understand it) Ablow’s house. It wasn’t then. It was his office (note Tucker’s reference to house or office above, as if he knows this detail).

It’s an open network of people who have descended in my town. I have a cottage next to mine. They’ve made use of that at times. In order to heal!

It’s very private, etcetera. Of course, not so private if you end up going to dinner many times as we did, in our town, and if you’re a person — [my emphasis]

But in the course of offering up what a private place that cottage is, Ablow let it be known that he and Hunter repeatedly were outside the cottage, in public, at which point the rental cottage would be vacant.

He had nothing to do with the compromise of Hunter’s digital life that occurred while he was staying in the cottage next door to his office, Ablow says. But if it was compromised then and there, he had an alibi: he was out to dinner with Hunter!

Copyright © 2024 emptywheel. All rights reserved.
Originally Posted @ https://www.emptywheel.net/hunter-biden/