Abbe Lowell’s Eight Chessboards

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The developments in two Hunter Biden lawsuits — his Privacy Act claim against the IRS and his hacking claim against Garrett Ziegler — made me think about how many moving parts Abbe Lowell is juggling, and the degree to which he may be staging them all to work together.

First, on January 22, Lowell successfully requested to move the hearing for Garrett Ziegler’s motion to dismiss Hunter’s hacking lawsuit to coincide with Rudy’s (in which Robert Costello is the one defendant, on account of Rudy’s bankruptcy).

IT IS HEREBY ORDERED that the hearing on Defendants’ Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(2), 12(b)(3), and Cal. Civ. Proc. Code Section 425.16 is continued from February 22, 2024, at 10:00 a.m. to March 21, 2024, at 10:00 a.m.

I think this will have the result of delaying Lowell’s disclosure of his theory of venue in California and of hacking, so (for example) Costello — the far better lawyered of the two defendants — now won’t have time to respond to what Lowell unveils against Ziegler. It will likewise delay this reveal until after Hunter testifies in a deposition before Congress.

Meanwhile, on January 16, DOJ filed a motion to dismiss just part of Hunter’s IRS lawsuit based on all the documents released public via Joseph Ziegler and Gary Shapley. Hunter’s lawsuit alleged two counts:

  1. Grossly negligent unauthorized disclosure on behalf of both the IRS agents and their attorneys
  2. Privacy Act violation, based on IRS’ inadequate protections against such disclosures

DOJ moved to dismiss the part of count 1 that included the IRS agents’ lawyers but not the IRS agents themselves, and moved to dismiss the Privacy Act claim for several reasons, two technical, but also a third that Hunter did not adequately allege that IRS had not taken proper safeguards against the disclosures. Yesterday, both sides in that lawsuit asked to delay Hunter’s response to February 20, giving this explanation.

Rule 6(b)(1)(A) of the Federal Rules of Civil Procedure permits the Court to extend the time for answering, moving, or otherwise responding to the complaint for good cause shown. Good cause exists to extend Mr. Biden’s deadline to respond to the partial motion to dismiss to February 20, 2024. Mr. Biden’s counsel is in the process of reviewing the Defendants’ partial motion to dismiss and assessing the appropriate response to the motion. In addition, Mr. Biden’s counsel has a number of filing deadlines in his two criminal cases and several of his pending civil cases in the next few weeks.

Notably, DOJ did not move to dismiss the claim that Ziegler and Shapley were grossly negligent in their treatment of Hunter’s tax information. At the very least, that means Hunter can get discovery on their actions, and it likely means the same DOJ that is prosecuting Hunter Biden for tax crimes agrees that it is plausible that the two agents who were primary investigators for years treated his tax information improperly.

Consider the timing of this extension, though — the claimed basis for it. In the criminal suits, Lowell has to reply to his motions to dismiss in the Delaware case by January 30, then file his initial motions to dismiss — which will significantly overlap with what he already filed in Delaware, but under an order from Judge Scarsi will be a fraction of the length of those in Delaware — on February 20.

Notably, Lowell is not asking for an extension until after he submits his MTDs in Los Angeles. Rather, he asked for an extension to the day those MTDs are due, meaning his response would coincide with the Los Angeles MTDs.

As it stands, then, the reveal of his hacking and venue theories in the two hacking lawsuits will coincide, and the reveal of his plans in the tax case and the IRS lawsuit will coincide.

Looking at the timeline below, some of what Lowell is doing becomes clear.

John Paul Mac Isaac decided to sue Hunter based on a single statement the President’s son made in 2021, one that did not even mention JPMI. That statement was:

There could be a laptop out there that was stolen from me. It could be that I was hacked. It could be that it was the – that it was Russian intelligence. It could be that it was stolen from me. Or that there was a laptop stolen from me.

The statement provided Hunter the opportunity to countersue for something that wouldn’t involve discovery into his entire life.

More importantly, the countersuit gave Hunter a way to obtain JPMI’s copy of Hunter’s data, which is undoubtedly one of the things that gave him the opportunity to sue Ziegler and Rudy (and subpoena Apple), which will — if those lawsuits survive motions to dismiss — provide a way to obtain discovery about the laptop caper from them. Based on that laptop, Hunter has now publicly alleged that his data — the data shared with the FBI and Congress — was stolen.

The competing claims for summary judgment are briefed and ready for a hearing in Delaware.

Even as he was collecting data from JPMI, Hunter also started getting discovery in his criminal cases. Thus far, at least, there’s a great deal that’s in the public record that David Weiss is refusing to officially give Hunter (note, the language covering the three discovery productions below doesn’t claim to have provided discovery on the FARA prongs of the investigation, the prongs that implicate Donald Trump’s crimes).

Then there’s the Dick Pic Sniffing investigation by James Comer and Jim Jordan. I and virtually everyone else you ask says it is insane for Hunter Biden to sit for a deposition before two hostile committees. But I’m … intrigued by the fact that, by using Comer and Jordan’s ineptitude to win a delay, Lowell has ensured that Hunter will have not only have visibility on what JPMI did by the time of the deposition (possibly, though unlikely, even a judgment against him), including on the hard drive the blind computer repairman gave exclusively to Republicans, but he also will have a great deal of visibility not just into the scope of the two charged cases against him, but also the FBI’s provably inadequate treatment of the laptop.

Finally, consider the challenges added by David Weiss’ decision to charge Hunter in two venues, Delaware and Los Angeles. Yes, Hunter is facing two Trump appointees, Maryellen Noreika and Mark Scarsi. But for several of Hunter’s motions to dismiss, if a motion works in one venue, it’ll do real damage to the case in the other one. Lowell already argued that if Judge Noreika rules that the diversion agreement was in effect, it would also bar any but the misdemeanor tax charges in Los Angeles.

Although the only charges now before the Court are the gun charges in the prosecution’s lone Indictment of Mr. Biden in this District, Mr. Biden notes that the sweeping immunity of the Diversion Agreement would seem to bar any plausible charge that could be brought against him (including the recently filed tax charges in California). The only charges that are not be barred by the immunity provision are those filed in the pre-existing Informations filed against him in this District. The Diversion Agreement called for the eventual dismissal of the gun charge Information upon the conclusion of the diversion period, but the prosecution already has dismissed it. Although the Plea Agreement was not accepted on the misdemeanor tax charge Information, the prosecution has dismissed that Information as well. Consequently, the Diversion Agreement’s immunity for gun and tax-related charges would bar any similar charge from now being filed. This sweeping immunity may make it difficult for the prosecutors to appease Mr. Trump and the Republican congressmen who have criticized them, but this is the deal that the prosecutors made and it reflects their choice to place the immunity provision in the Diversion Agreement.

When Lowell argues a selective and vindictive prosecution claim in Los Angeles, he might integrate more information on how the manufactured uproar created by the IRS agents, Comer and Jordan, and Trump led to threats against prosecutors, including David Weiss personally (and also, notably, Los Angeles US Attorney Martin Estrada). More importantly, he’ll already have the DOJ decision that his claim that Ziegler and Shapley were grossly negligent in the way they released Hunter’s tax information (and spoiled the jury pool) has some merit. Perhaps that even gives Lowell cause to ask to delay the prosecution. Also since Lowell first filed a challenge to Weiss’ appointment as a Special Counsel, the degree to which he has never been adequately supervised by a political appointee has become clear, perhaps inviting a Morison v. Olson challenge that might have more merit than the existing challenge.

There are a lot of moving parts here. And while DOJ is still withholding data that is relevant, Lowell actually has information that DOJ likely does not.

I’m really not arguing this is 8-dimensional chess. Hunter is still in a world of hurt.

But Abbe Lowell may well have some dramatic reveals prepared, dramatic reveals that make Hunter’s twin appearances in DC just a preview of coming attractions.

Updated Tax lawsuit below to reflect that Judge Kelly approved the delay.

1) Delaware gun case

[RECAP docket]

September 14: Indictment

October 3: Arraignment

October 12: First Discovery Production (350 pages focused on gun case), including iCloud data and “a copy of data from the defendant’s laptop”

October 13: Motion to Continue

October 19: Order resetting deadlines

November 1: Second Discovery Production (700,000 pages on tax charges — no mention of FARA investigations)

November 15: Hunter subpoena request

December 4: Weiss subpoena response

December 11: Motions due

December 12: Hunter subpoena reply

January 9: Third Discovery Production (500,000 pages focused on tax case)

January 16: Responses due

January 30: Replies due

2) Los Angeles tax case

[RECAP docket]

Hunter was indicted on December 7 and made a combined arraignment/first appearance on January 11. At that hearing, Judge Mark Scarsi set an aggressive (and, from the sounds of things, strict) schedule as follows:

February 20, 2024: Motions due

March 11: Response due

March 18: Replies due

March 27 at 1:00 p.m.: Pretrial motion hearing

April 17: Orders resolving pretrial motions.

June 3 at 1:00 p.m.: Status conference

June 20: Trial

3) House Dick Pic Sniffing Investigation

November 8: James Comer sends a pre-impeachment vote subpoena

November 28: Lowell accepts Comer’s offer for Hunter to testify publicly

December 6: Comer and Jordan threaten contempt

December 13: Pre-impeachment deposition scheduled; Hunter gives a press conference and states his data has been “stolen” from him

December 13: Impeachment vote authorizing subpoena

January 10: Oversight and Judiciary refer Hunter for contempt

January 12: Lowell invites Comer and Jordan to send another subpoena, now that they have the authority to enforce it

January 14: Jordan and Comer take Lowell up on his invitation

February 28 (tentative): Deposition

4) IRS lawsuit

[RECAP docket]

September 18: Privacy Act lawsuit

November 13: DOJ asks for extension to January 16

January 16: DOJ files motion for partial dismissal

January 23: Joint motion to continue

January 30: Original deadline for Hunter response

February 20: New deadline for Hunter response

March 12: New reply deadline for DOJ response

5) John Paul Mac Isaac’s Suit and Countersuit

Last summer, John Paul Mac Isaac and Hunter both sat for depositions, on May 31 and June 29, respectively.

Last fall, Hunter Biden subpoenaed people Rudy Giuliani, Robert Costello, Steve Bannon, Yaacov Apelbaum (who made a copy of the contents of the laptop), Tore Maras (who has described adding things to the laptop). In November, Hunter also served a subpoena on Apple.

On January 4, the parties to John Paul Mac Isaac’s suit and countersuit filed to have their pending motions decided by a judge. The media defendants — CNN and Politico — are filing to dismiss. Hunter and JPMI filed competing motions for summary judgment.

And Hunter is filing to quash a bunch of subpoenas, initially 14, to Hunter’s parents, uncle, ex-wife, former business partners, and several people with his father, like Ron Klain and Mike Morell. Though after that, JPMI attempted to subpoena Hunter’s daughters.

6 and 7) Garrett Ziegler and Rudy Giuliani hacking suits

[RECAP Ziegler docket; RECAP Rudy docket]

September 13: Complaint against Ziegler

September 26: Complaint against Rudy and Costello; noticing Ziegler suit as related case

November 15: Ziegler gets 30 day extension

December 1: Costello gets 30 day extension

December 7: After swapping attorneys, Ziegler gets extension to December 21

December 21: Ziegler motion to dismiss and request for judicial notice (heavily reliant on JPMI suit)

January 17: Costello motion to dismiss with Rudy declaration that makes no notice of his fruit and nuts payments relating to Hunter Biden

January 22: Lowell successfully requests to harmonize MTD hearing for both hacking lawsuits

February 8: Rescheduled date for hearing on motion to dismiss

February 22: Rescheduled date for hearing on motion to dismiss

March 21: Joined date for hearing on motion to dismiss

8) Patrick Byrne defamation suit

November 8: Complaint

January 16: After swapping attorneys, Byrne asks for 30 day extension

February 6: Rescheduled response date

Hunter Biden Lost His Phone(s) in the Same Days He Bought a Gun

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Ho hum. Another day, another David Weiss filing that may face significant evidentiary challenges at trial.

In past posts, I have shown how one after another sex worker, payments to whom prosecutors have made central to their allegations that Hunter Biden cheated on his taxes, may pose evidentiary problems if the case goes to trial.

In one case, David Weiss included in the tax indictment the first Venmo payment — and its misleading payment description and Weiss’ likely incorrect date — that Hunter made after two new devices accessed the account, 12 minutes apart, from two different cities. In another, I showed that a sex worker the IRS actually interviewed about her dates with Hunter was among the last people Hunter spent time with before he attempted to reclaim the part of his digital life hosted at Apple, using a laptop that would eventually be found at Fox News pundit-shrink Keith Ablow’s office when the DEA searched it in February 2020.

Even as the IRS spent years scrutinizing Hunter’s digital payments, they appear to have ignored how his digital life faced one after another compromise, most (but potentially not all) undoubtedly arising from the erratic habits of an addict. Those potential compromises should have elicited an entirely different investigative focus, but they also will make any digital evidence obtained from Hunter Biden’s devices difficult and at times impossible to validate for trial.

Take the texts that Hunter Biden sent Hallie in the two days after he purchased the gun for which he has been charged with three felonies, texts that Weiss has admitted he did not seek until last year, apparently only after indicting the President’s son. Prosecutors are very excited about obtaining these texts, after the fact, to prove that Hunter was smoking crack during the days he possessed a gun.

On October 13, 2018, and October 14, 2018 (the day after and two days after he purchased the firearm), the defendant messaged his girlfriend about meeting a drug dealer and smoking crack. For example, on October 13, 2018, the defendant messaged her and stated, “. . . I’m now off MD Av behind blue rocks stadium waiting for a dealer named Mookie.” The next day, the defendant messaged her and stated, “I was sleeping on a car smoking crack on 4th street and Rodney.”

Weiss doesn’t say what time these texts were sent. Nor does he say whether these were telephony or app texts (Hunter was using at least WhatsApp in the period), and if the former, via which phone account.

But it happened on the same days that Hunter was informed that someone, whose name does not otherwise show up in public emails, emailed Hunter to tell him “you left your phone,” followed, after three attempts, by a shared Note that appears to link to a live Apple account (the times here are UTC-3, so one hour ahead of EDT; I hope I’ve adjusted all the times below to EDT).

And, indeed, Hunter does appear to have left his phone — or phones, plural — somewhere, probably the day before he bought the gun.

In those same two days in which those texts were sent to Hallie, there were four different attempts to replace phones via an Asurian protection plan, two of which ended in the delivery of phones he is known to have adopted as his primary phones afterwards, two of which tied to other numbers that ended in uncertain status. In addition to those iPhones he would use to replace his main phones, Hunter (or someone else) accessed his digital identity from a Samsung Galaxy, a rare deviation from Hunter’s commitment to Apple products.

A week later Hunter’s account would begin to be accessed using the laptop that would ultimately end up with the FBI.

The traffic for just those three days looks like this, with the emails from Joey bolded and two key account changes italicized:

October 12, 12:56PM: As you requested, your temporary [AT&T] password is: ****** Use your user ID and temporary password to sign in to your account.

October 12, 12:56PM: Looks like you recently updated the AT&T password.

October 12, 12:57PM: Critical security alert for your linked Google Account, Sign-in attempt was blocked for your linked [RosemontSeneca] Google Account [device not specified]

October 12, 3:25PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 431] has been started

October 12, 3:32PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 431] has been started

October 12, 3:38PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 579] has been started

October 12, 3:40PM: Your [AT&T] insurance claim [phone ending in 96]

October 12, 3:44PM: Your [AT&T] insurance claim [phone ending in 13]

October 12, 3:49PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 701] has been started

October 12, 3:55PM: Please complete and return your claim documents Wireless Number: **94

October 12, 3:57PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 799] has been started

October 12, 4:03PM: Please complete and return your claim documents Wireless Number: **29

October 12, 5:35PM: Hello. Review your AT&T order

October 12, 6:22PM: Good news. Your replacement device [grey Apple iPhoneX] has shipped. [phone ending in 13]

October 12, 6:24PM: Phone [from Joey]

Hey, You left your phone and other things. Tried to reach you at 202 and 302 all day but no luck. Let me know where to overnight.

October 12, 7:20PM: Good news. Your replacement device [iPhone 8] has shipped. [phone ending in 96]

October 12, 8:00PM: Verify your Samsung account [accessing Hunter’s iCloud]

October 12, 11:31PM: Someone Just Checked Your Background Report

October 13, 7:10AM: You left your phone. How do I get it to you?

joey

October 13, 7:26AM: You left your phone. How do I get it to you?

joey

October 13, 11:13AM: Let’s setup your AT&T replacement device [phone ending in 13]

October 13, 12:35AM: Someone Just Checked Your Background Report

October 13, 2:00PM: Hello, Review your AT&T order [changes to wireless]

October 13, 9:17PM: Your [RosemontSeneca] Google Account was just signed in to from a new Samsung Galaxy Note 9 device

October 13, 11:36PM: Wells Fargo Has Registered Your Mobile Device

October 14, 2:24PM: Your Apple ID password has been reset

October 14, 2:24PM: Your Apple ID was used to sign in to iCloud on an iPhone X

October 14, 3:28PM: Wells Fargo card added to Apple Pay

October 14, 3:36PM: Verify your Samsung account [on iCloud]

October 14, 7:48PM: “Overcoming myself” [from Joey]

When you have a minute, read ….

Open my shared note:

Interspersed with this traffic, Hunter’s accountant was trying to get him to file his 2017 taxes, Twitter was informing him of this story showing that Jared Kushner hadn’t paid taxes for years, Hunter was draining his bank account one $800 withdrawal after another, and his business partner was approving a payment to Hunter’s lawyer that would all but drain the Hudson West business associated with CEFC. A different business partner, Eric Schwerin, was also pushing Hunter to resolve their business interests during the 2018 tax year, something he failed to pull off.

Without the location and IP addresses, it’s not entirely sure what happened here (Weiss should have that with the iCloud data). It’s not even clear that Hunter had a phone, at all, between the time he lost his phones, plural, on October 11 and started using his new iPhone X on October 14 (though he did have a third phone tied to an account he used with sex workers). Hunter may have used the Samsung as a temporary phone for those two days or borrowed someone else’s Samsung to check his email; but it wasn’t verified to his iCloud account before October 14 at 3:36PM, and so may not have been able to access some Apple services. Importantly, however, that phone accessed his RosemontSeneca Google account after Hunter had started using one of his new replacement iPhones, something that doesn’t make sense if he was borrowing it.

If the texts to Hallie were sent after Hunter changed his wireless account at 2PM on October 13, they might be traced to a secure telephony account. But if they were sent via iMessage or WhatsApp before Hunter changed his iCloud password at 2:24PM on October 14, then you’d have to use location and IP data to rule out that someone else sent those texts to Hallie, using Hunter’s still accessible iCloud account via his lost phones (plural, apparently).

Because this particular verification challenge involves iCloud, which should have the location and IP data to verify which devices were used, and because (unlike the sex workers) it wouldn’t involve Hunter’s copresence with someone accessing his bank account via biometrics that others might access if he were wasted, this should be something that prosecutors could definitively prove, if indeed Hunter did send these texts.

If they can’t prove the location and IP from which these texts were sent, they may not be admissible at all, because prosecutors may not be able to prove that they are, in fact, Hunter’s words and not those of someone using his lost phones.

If this goes to trial, it might be worth forcing prosecutors to go through the effort to prove Hunter did send the texts, because it not only demonstrates how uncertain this evidence can be five years after the fact, but it would also show that Hunter spent hours trying to reclaim his digital identity — possibly using the laptop that would end up in Ablow’s possession — during the period when, prosecutors would be arguing, he was sleeping [in] a car and smoking crack.

Plus, that process would demonstrate something else. First, note that Hunter never verifiably made efforts that he did in August (the day before the dual Venmo access) to shut down access others would have via those lost devices to his digital identity. There’s no evidence here that Hunter deleted those phones, as he had only just finished doing weeks earlier with an iPad taken in August. That is, if Joey or whoever had one or two phones that Hunter had been using for weeks or months, there would be a great deal of data on them that would allow them, or anyone who subsequently got the phones, to carry out a much more systematic compromise of Hunter’s digital identity in the future.

There’s also no evidence that Hunter changed passwords besides the AT&T one, including for the RosemontSeneca email account that hosted all the work emails that would become so controversial years later. If he didn’t do that, then at least one of those two lost phones could likely access that account without interruption.

I’m not yet ready to show it, but this process, the incomplete effort to reclaim his digital identity, continued through the period where Hunter’s account started being accessed by a new laptop on October 21. And, depending on how the progression from prosecutors’ initial August 2019 iCloud warrant to the December 2019 warrant for that same laptop itself to the warrant to expanded scope of Hunter’s iCloud in July 2020 culminating in December 2023 in the use of those iCloud texts to substantiate a gun case occurred — something that Derek Hines deliberately obfuscates in this same filing — it may mean that this entire investigation has been built on this impossibly rocky foundation since 2019.

The laptop that FBI started using as evidence without first fully validating it destroys chain of custody not just because it was accessed by a hostile person over the course of months before being delivered to the FBI, but also because Hunter’s use of it would have been built on a digital identity that was totally compromised.

Normally, financial records are what make tax cases easy to prove (and, to be sure, many of the financial records used for Hunter’s tax indictment will be easily verifiable). Normally, these kinds of digital communications are what make other indictments easy to prove without having to rely on a sympathetic witness like Hallie Biden, one personally implicated in the insecure disposal of a gun.

But even ignoring the likelihood that more nefarious people might have compromised Hunter’s identity in this period (for which these is some evidence), Hunter’s addiction meant that his digital identity was persistently in a state of half-compromise through this entire period. His addiction led him to do things that prosecutors have now charged him for. It also adds a good deal of validation challenges for the kind of evidence that normally is routine.

David Weiss’ Indict First, Seek Warrants Later Ethic

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I want to further elaborate on a point in this post: It appears that David Weiss did not obtain a reliable warrant for the most showy evidence in his response motion to Hunter’s selective and vindictive prosecution claim until after he indicted Hunter for 3 gun felonies — indeed, he appears not to have obtained it until after Abbe Lowell asked for this kind of evidence.

I think it likely that, as a result, David Weiss will technically be relying on evidence from the laptop he obtained from John Paul Mac Isaac, which (as I’ll show in a follow-up), may be a particularly acute problem for the period in question.

I’ve put a timeline below, relying on Weiss’ response motions on selective prosecution and discovery. Because Weiss did not provide dates for any of the warrants described in the former, I’ve noted the closest unsealed dockets before and after each warrant docket included to approximate the dates for those warrants.

The gun indictment, which Weiss obtained just before the statute of limitations expired, did not provide any proof that Hunter Biden was an addict when he purchased a gun on October 12, 2018. It simply stated, for each of three charges, that he knew he was.

[T]he defendant, Robert Hunter Biden, provided a written statement on Form 4473 certifying he was not an unlawful user of, and addicted to, any stimulant, narcotic drug, and any other controlled substance, when in fact, as he knew, that statement was false and fictitious.

It’s true that on July 26, 2023, Hunter Biden admitted he was in treatment for addiction in Fall 2018 — but that admission was obtained with the promise of a diversion agreement — a point that Abbe Lowell noted in his motion to dismiss on immunity grounds.

Hunter was arraigned — initially with a 30-day deadline for pretrial motions — on October 3, 2023. At the hearing, Lowell said that he was going to ask for an evidentiary hearing, which (along with his TV appearances) would have alerted Weiss that he would seek to dismiss the indictment.

By Weiss’ own admission, he didn’t provide any discovery until October 12, four days after Abbe Lowell asked. He describes that that initial production, of just 350 pages, included “statements of the defendant including his admissions that he was addicted to crack cocaine and possessed a firearm in 2018,” electronic evidence from Hunter’s iCloud account, as well as “search warrants related to evidence the government may use in its case-in-chief.”

On October 12, 2023, the government provided to the defendant a production of materials consisting of over 350 pages of documents as well as additional electronic evidence from the defendant’s Apple iCloud account and a copy of data from the defendant’s laptop. This production included search warrants related to evidence the government may use in its case-in-chief in the gun case, statements of the defendant including his admissions that he was addicted to crack cocaine and possessed a firearm in 2018, and law enforcement reports related to the gun investigation. [my emphasis]

But he doesn’t say he provided all the warrants behind the evidence the government will use in its case-in-chief.

As I’ve noted, Hunter’s book is 272 pages long, so if Weiss included the book in that initial production, then there were only 78 other pages, to include warrants and law enforcement reports pertaining to the gun.

Among the things Lowell asked for in that initial discovery request was information “reflecting Mr. Biden’s sobriety in 2018” and “information reflecting Mr. Biden’s treatment for any substance or alcohol abuse in 2018.”

Weiss described that he provided evidence about payments to rehab programs in 2018 (this will include Keith Ablow!!!) on November 1.

On November 1, 2023, the government provided a production of materials to the defendant that was over 700,000 pages and largely consisted of documents obtained during an investigation into whether the defendant timely filed and paid his taxes and committed tax evasion. These documents included information of the defendant’s income and payments to drug and alcohol rehabilitation programs in 2018, the same year in which the defendant possessed the firearm while addicted to controlled substances.

Weiss didn’t describe providing any more information about Hunter’s addiction or sobriety.

Weiss didn’t describe providing any more discovery — and didn’t describe providing any more warrants at all — until January 9, almost a month after Lowell’s deadline for pretrial motions, including motions to suppress.

In advance of his initial appearance on the tax indictment, the government made a production of materials to the defendant on January 9, 2024, which included over 500,000 pages of documents and consisted of additional information related to the tax investigation.

Yet, by Weiss’ own admission, he never had a warrant to access iCloud content for gun charges — as opposed to tax and foreign influence charges — until he got it with District of Delaware Case No. 23-507M. If my approximations below are correct, Weiss didn’t obtain a warrant to search Hunter’s iCloud content for gun charges until sometime between November 30 and December 4 of last year. As noted previously, I asked Weiss’ spox to correct me if this was an error, but they declined to comment beyond what is in the filing.

Weiss is wildly squirrely about all this, as I’ll show. But he basically admits that he’s relying on that warrant — which it appears he obtained over two months after indicting Hunter — for the only evidence in this motion that shows Hunter’s drug use during the period he possessed the gun (and as noted, Weiss doesn’t describe when in 2023 the FBI first decided to send the gun to a lab for testing, but he admits it wasn’t until 2023).

Prior to October 12, 2018 (the date of the gun purchase), the defendant took photos of crack cocaine and drug paraphernalia on his phone.

Also prior to his gun purchase, the defendant routinely sent messages about purchasing drugs.

On October 13, 2018, and October 14, 2018 (the day after and two days after he purchased the firearm), the defendant messaged his girlfriend about meeting a drug dealer and smoking crack. For example, on October 13, 2018, the defendant messaged her and stated, “. . . I’m now off MD Av behind blue rocks stadium waiting for a dealer named Mookie.” The next day, the defendant messaged her and stated, “I was sleeping on a car smoking crack on 4th street and Rodney.”

On October 23, 2018 (the day his then-girlfriend discarded his firearm), the defendant messaged his girlfriend and asked, “Did you take that from me [girlfriend]?” Later that evening, after his interactions with law enforcement, he messaged her about the “[t]he fucking FBI” and asked her, “so what’s my fault here [girlfriend] that you speak of. Owning a gun that’s in a locked car hidden on another property? You say I invade your privacy. What more can I do than come back to you to try again. And you do this???? Who in their right mind would trust you would help me get sober.” In response, the girlfriend stated “I’m sorry, I just want you safe. That was not safe. And it was open unlocked and windows down and the kids search your car. You have lost your mind hunter. I’m sorry I handled it poorly today but you are in huge denial about yourself and about that reality that I just want you safe. You run away like a child and blame me for your shit . . .”

Elsewhere in this response, Weiss quotes liberally from Hunter’s book, but the book really doesn’t say much about Hunter’s state in the 11 days he owned the gun.

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.

Here’s how Weiss — in the paragraph immediately preceding this evidence — describes how — after Delaware cops had already seized the gun — investigators obtained evidence showing the purchase was illegal:

C. While Investigating the Defendant for Tax Violations, Investigators Obtained Evidence Showing His Prior Gun Purchase Was Illegal Because He Was Addicted to Controlled Substances

In August 2019, IRS and FBI investigators obtained a search warrant for tax violations for the defendant’s Apple iCloud account. 2 In response to that warrant, in September 2019, Apple produced backups of data from various of the defendant’s electronic devices that he had backed up to his iCloud account. 3 Investigators also later came into possession of the defendant’s Apple MacBook Pro, which he had left at a computer store. A search warrant was also obtained for his laptop and the results of the search were largely duplicative of information investigators had already obtained from Apple. 4 Law enforcement also later obtained a search warrant to search the defendant’s electronic evidence for evidence of federal firearms violations and to seize such data. 5

2 District of Delaware Case No. 19-234M and a follow up search warrant, District of Delaware Case Number 20-165M.

3 The electronic evidence referenced in this section was produced to the defendant in discovery in advance of the deadline to file motions.

4 District of Delaware Case No. 19-309M.

5 District of Delaware Case No. 23-507M

Weiss says he first obtained a warrant for Hunter’s iCloud account in August 2019, but that was just for tax violations. He doesn’t describe the temporal scope of that warrant. Joseph Ziegler predicated the investigation off a 2018 Suspicious Activity Report tied to payments to sex workers, but he only got approval for a criminal investigation by claiming — a claim that the tax indictment debunks — that no taxes were paid for his 2014 Burisma payments, so it’s possible that initial warrant only focused on 2014 and 2015 (particularly given that Hunter couldn’t have committed a tax crime in 2018 until October 2019, after that warrant was obtained in August 2019).

In a footnote but not in the text of the paragraph, Weiss mentions, oh, by the way, we got a follow-up warrant in 2020; he doesn’t provide the date, but it would have been between July 9 and 16, 2020. According to Gary Shapley, investigators obtained 2017 texts with that 2020 warrant — which again may suggest that Weiss didn’t obtain later content until after obtaining it first on the laptop.

Back in the main text, Weiss describes obtaining the laptop [bum bum BUM!!!]. But he claims that what he got from the laptop was “largely duplicative” of what he “already obtained” with the iCloud warrant.

Then, finally, he admits he never got a warrant to search the iCloud (he’s silent about the scope of the laptop warrants, but Ziegler only talked about tax and foreign influence peddling scopes) for evidence of gun crimes until that warrant that, if my approximation is correct, was after the indictment and after Weiss claimed to have provided all discovery for the gun crimes.

Note, significantly, that in a footnote Weiss said, “The electronic evidence referenced in this section was produced to the defendant in discovery in advance of the deadline to file motions,” but doesn’t say anything about when he provided that (apparent) December 2023 warrant to Lowell? It’s not clear whether Weiss included this among the iCloud and laptop material provided on October 12, or among the 700,000 pages provided on November 1.

But whichever it is, if I’m right about the timing of that gun crime warrant, Weiss did not yet have a warrant to access that material for the already obtained indictment yet. Lowell had the content, but not the notice that Weiss was going to use it for the gun crime.

And all this is before you consider the possibility that the second warrant, obtained in 2020, relied on the laptop (something that is consistent with Shapley’s testimony). If that’s the case, then Weiss would have a whole slew of other problems — not least, that John Paul Mac Isaac claims FBI was accessing the laptop before the date that Shapley says they got a warrant.

Update: Let me clarify why this matters. There’s no question that there was probable cause for gun crimes available for a warrant affidavit last year. And it is fairly common for prosecutors to get new warrants for content they’ve already seized; SDNY did so against both Michael Cohen and Rudy Giuliani, for example.

One reason this is problematic, though, is the timing. Weiss is arguing that he always intended to prosecute gun crimes, but he appears not to have gotten a warrant until after he charged it, which hurts his argument that he always intended to prosecute it (as does the delay in sending the gun to the lab). So it could hurt Weiss’ chances to win these motions.

Unless one of three things happened, David Weiss would be able to use this data at trial.

  • If the warrant to obtain the 2018 data was the warrant obtained in 2020 and it relied on stuff from the laptop, the laptop may have tainted the 2020 warrant. There are several ways the laptop may have tainted the 2020 warrant, one of which is JPMI’s claim that FBI was accessing the laptop before they got a warrant.
  • As noted, Weiss is really squirrely about when — or even if — it gave Abbe Lowell the warrant for this material. If they gave it to him after the deadline for these motions to suppress, it would mean they’ve deprived him of the ability to file a motion to suppress.

Timeline

August 22, 2019 [19-mj-232]

August 2019: Weiss first obtains iCloud data, for unstated dates, limited to tax crimes [19-mj-234]

In August 2019, IRS and FBI investigators obtained a search warrant for tax violations for the defendant’s Apple iCloud account. 2

2 District of Delaware Case No. 19-234M

August 27, 2019: [19-mj-235]

October 16, 2019: Mac Isaac’s father first contacts FBI [Shapley’s notes]

December 3, 2019: Ziegler first starts drafting search warrant for laptop

December 6, 2019: [19-mj-302]

December 9, 2019: FBI takes possession of laptop; per John Paul Mac Isaac, “Matt” called several times, asking for help accessing the machine, and revealing “we” had already tried to boot it up.

“Hi, it’s Matt again. So, we have a power supply and a USB-C cable, but when we boot up, I can’t get the mouse or keyboard to work.”

I couldn’t believe it—they were trying to boot the machine!

“The keyboard and trackpad were disconnected due to liquid damage. If you have a USB-C–to–USB-A adaptor, you should be able to use any USB keyboard or mouse,” I said. He related this to Agent DeMeo and quickly hung up.

Matt called yet again about an hour later.

“So this thing won’t stay on when it’s unplugged. Does the battery work?”

I explained that he needed to plug in the laptop and that once it turned on, the battery would start charging. I could sense his stress and his embarrassment at having to call repeatedly for help. [my emphasis]

December 12, 2019: Obtain OEO approval for warrant

December 13, 2019: Obtain warrant for laptop [date per Shapley]

Investigators also later came into possession of the defendant’s Apple MacBook Pro, which he had left at a computer store. A search warrant was also obtained for his laptop and the results of the search were largely duplicative of information investigators had already obtained from Apple.

4 District of Delaware Case No. 19-309M.

December 13, 2019: [19-mj-311]

December 14, 2019: Will Levi sends Bill Barr text stating, “Laptop on way to you”

July 9, 2020: [20-mj-162]

July 2020: Weiss obtains follow-up warrant, by description still limited to tax crimes (but almost certainly also including foreign influence peddling) [20-mj-165]

In August 2019, IRS and FBI investigators obtained a search warrant for tax violations for the defendant’s Apple iCloud account. 2

2 and a follow up search warrant, District of Delaware Case Number 20-165M.

July 16, 2020: [20-mj-177]

ND, 2023: FBI first does lab tests on gun and finds cocaine residue

September 14, 2023: Gun indictment

October 3, 2023: Arraignment

October 8, 2023: Request for discovery

On October 8, 2023, the defendant made a request for discovery under Federal Rules of Criminal Procedure 16.

October 12, 2023: First discovery production

On October 12, 2023, the government provided to the defendant a production of materials consisting of over 350 pages of documents as well as additional electronic evidence from the defendant’s Apple iCloud account and a copy of data from the defendant’s laptop. This production included search warrants related to evidence the government may use in its case-in-chief in the gun case, statements of the defendant including his admissions that he was addicted to crack cocaine and possessed a firearm in 2018, and law enforcement reports related to the gun investigation. [my emphasis]

November 1, 2023: Discovery production 2

On November 1, 2023, the government provided a production of materials to the defendant that was over 700,000 pages and largely consisted of documents obtained during an investigation into whether the defendant timely filed and paid his taxes and committed tax evasion. These documents included information of the defendant’s income and payments to drug and alcohol rehabilitation programs in 2018, the same year in which the defendant possessed the firearm while addicted to controlled substances.

November 15, 2023: Follow-up request for discovery regarding Trump’s interference and Brady channel

November 15, 2023: Abbe Lowell requests subpoenas for Trump, Bill Barr, and others

November 30, 2023: [23-mj-504]

ND, 2023:

Law enforcement also later obtained a search warrant to search the defendant’s electronic evidence for evidence of federal firearms violations and to seize such data.5

5 District of Delaware Case No. 23-507M

December 4, 2023: [23-mj-508]

December 7, 2023: Tax indictment

December 11, 2023: Hunter’s motions due

ND: Third discovery production

In advance of his initial appearance on the tax indictment, the government made a production of materials to the defendant on January 9, 2024, which included over 500,000 pages of documents and consisted of additional information related to the tax investigation.

January 11, 2023: Arraignment

The Coke-in-Gun Actually Harms David Weiss’ Case

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As prosecutors are wont to do, David Weiss’ prosecution team used its response to Hunter Biden’s selective and vindictive prosecution claim to air embarrassing dirt.

As dick pic sniffing scribes are wont to do, most outlets glommed onto those details — one in particular — rather than discussing Weiss’ legal arguments. NYPost, CNN, AP, WaPo all presented the following detail without any consideration of whether it helps — or hurts — David Weiss’ case against Hunter.

In 2023, FBI investigators pulled sealed evidence from the state police vault to take photographs of the defendant’s firearm. After opening the evidence, FBI investigators observed a white powdery substance on the defendant’s brown leather pouch that had held the defendant’s firearm in October 2018. Based on their training and experience, investigators believed that this substance was likely cocaine and that this evidence would corroborate the messages that investigators had obtained which showed the defendant buying and using drugs in October 2018. An FBI chemist subsequently analyzed the residue and determined that it was cocaine. To be clear, investigators literally found drugs on the pouch where the defendant had kept his gun.

At the very least, the incident betrays the lack of certain kinds of evidence that Weiss may need to defeat the filing in question — and arguably, helps to prove Hunter’s argument that Weiss only considered gun charges after Republicans started ratcheting up political pressure to do so.

As noted, this is a response to Hunter’s motion to dismiss on selective and vindictive prosecution grounds, in which he argued that:

  • DOJ would not charge other people based on the same set of facts — and indeed had guidelines advising against it
  • In response to political pressure, including but not limited to Republican Members of Congress and Trump, David Weiss reneged on a plea deal and decided to charge Hunter with three felonies rather than respect a diversion agreement
  • Congress forced this issue by demanding Weiss prosecute more harshly

Weiss’ response — written by Derek Hines, the same AUSA who simply did not address some of the evidence of politicization Hunter cited — spent over half the filing addressing Hunter’s selective prosecution claim, in spite of the fact that that’s the easiest claim to rebut. He simply repeated, as all such responses do, that Hunter hasn’t found someone similarly situated who wasn’t charged (the argument surely invites Abbe Lowell to raise Don Jr’s apparent impairment or Trump’s temporary possession of a gun after having been charged with dozens of felonies). There are weaknesses in that section — he ignores DOJ’s guidance, rather than addressing Hunter’s assertion that the charge is used in conjunction with other crimes, he instead uses data on straw purchases (which this was not) to claim Hunter’s lie was itself an aggravating factor.

With this chart, Hines is, at best, misleadingly presenting Hunter’s alleged false statement as a different, far more premeditated false statement than Hunter is accused of.

Abbe Lowell will have plenty of meat to respond to in that section, but as I have said repeatedly, Hunter probably doesn’t offer as much as he’d need to to win a selective prosecution claim.

A vindictive prosecution claim is something else. Hines admits that Hunter describes a right he exercised that was the reason for the vindictive prosecution, but complains that merely being the sole surviving son of Donald Trump’s opponent is not a constitutionally protected right.

The defendant does not attempt to show causal linkage between a legal right exercised by him and his prosecution. In his motion, the defendant appears generally to identify one legal right that he claims he exercised which he alleges caused his indictment: “engaging in constitutionally protected speech and political activity.” ECF 63 at 49. But he fails to identify with any specificity what his constitutionally protected speech or his political activity was. For example, he does not contend that he made a public political statement, nor does he identify which statement caused prosecutors to have animus. His failure to identify facts that support any actual legal right that he exercised should prevent this court from moving forward to even analyze his vindictive prosecution claim because no court has recognized a derivative vindictive prosecution claim based on a family member’s exercise of rights. [emphasis original]

Hines pretty much lies about how much Weiss ratcheted up the potential punishment against Hunter, which is the proof that prosecutors took vindictive action against Hunter for exercising his rights.

What Hines does not do — not in the least — is address Lowell’s map of how, as political pressure from Republicans ratcheted up, David Weiss reneged on the specific terms in a plea agreement. The latest communication from the ones submitted to the record that he cites was dated May 23, 2023, before the political pressure started ratcheting up.

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.” [emphasis original]

Hines ignores that, according to Chris Clark’s declaration and a great deal of back-up submitted with it, David Weiss was personally involved in language crafted two weeks after that May 23 email.

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.

29. 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.) After speaking with Mr. Biden, I responded to AUSA Wolf that the language she sent me “works” and is suitable for Mr. Biden as well, at which point the Parties had a deal. A true and correct and correct copy of AUSA Wolf’s June 6, 2023, email to Chris Clark is attached hereto as Exhibit K.

30. On June 7, 2023, AUSA Wolf emailed me a revised draft of the Diversion Agreement that incorporated the language she had proposed in her June 6 email to me. In that draft, the revised Paragraph 15 provided that “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 added.) A true and correct copy of AUSA Wolf’s June 7, 2023, email and redlined Diversion Agreement to Chris Clark is attached hereto as Exhibit L. [emphasis original]

That is, as late as June 6 — the day before that the pressure on Weiss started to publicly ratchet up — David Weiss had personally sanctioned a misdemeanor plea with a gun diversion. That was long after, importantly, the agreement to treat the gun charges via diversion.

That is, Derek Hines simply doesn’t address the abundant evidence that Weiss reneged on a commitment he had personally committed to after coming under political pressure.

As I have laid out, normally these kinds of vindictive prosecution claims are almost as easy to rebut as selective prosecution claims. I described what you might expect in a case arguing that a prosecutor decided to ratchet up charges in response to improper influence: Some kind of language addressing what changed to justify ratcheting up the charges.

You can see how this works in the case of Hatchet Speed, based on facts — involving felony gun charges in one district and the addition of a felony charge to a misdemeanor in another — not dissimilar from Hunter’s case. On January 6, Speed was an NRO contractor with TS/SCI clearance and a Naval reservist still training at Andrews Air Force Base. He had ties to the Proud Boys and expressed a fondness for Hitler. He went on a $50,000 weapon buying spree after January 6, including devices that — prosecutors successfully argued in a second trial — qualified as silencers under federal law. He was charged for unregistered silencers in EDVA and, at first, misdemeanor trespassing charges for his actions on January 6. Between the time his first EDVA trial ended in mistrial and a guilty verdict in his retrial, DOJ added a felony obstruction charge in DC, which his excellent FPD attorneys argued was retaliation for the mistrial. But DOJ responded with an explanation of the process leading to the addition of the felony obstruction charge: they added a second prosecutor, got better at prosecuting obstruction for January 6, found some more damning video of Speed at the Capitol, and came to recognize how Speed’s comments about the attack would prove the corrupt intent required for obstruction charges. They were pretty honest that they regarded Speed as a dangerous dude that they wanted to put away, too.

The same process might well happen if Lowell files a vindictive prosecution claim. Under Goodwin, Weiss might have to do little more than say there was a societal interest in jailing Hunter Biden to affirm the import of the gun laws his father continues to champion.

Normally, prosecutors simply point to some evidence obtained after an initial prosecution decision that changed prosecutors mind about charging.

But Hines doesn’t assert to have any of that in this filing!! Not even the argument I expected — that it’s important that Joe Biden’s kid be subject to the same gun laws that his father champions with everyone else.

What he has (as noted by the timeline below) are a series of dates — including for the discovery of the cocaine residue in the pouch — that Hines obscures.

Rather than a specific explanation of what changed to merit the three gun felonies instead of a diversion, there’s this patently dishonest claim about when the prosecution got evidence in this case.

First, the defendant claims, “DOJ obtained the facts underlying this case years ago and was satisfied the case did not warrant prosecution.” ECF 63 at 50. This is inaccurate. Many of the incriminating facts were discovered years after the conduct when prosecutors had received the defendant’s Apple messages and when the defendant released his incriminating book. There is no evidence that the DOJ decided that this case did not warrant prosecution “years ago.”

The thing about investigations into events that happened five years ago is that prosecutors can have obtained evidence “years ago” that they nevertheless obtained “years after” the alleged crime. Hines is playing word games: The indictment relies heavily on Hunter’s 272-page book, which had been out over two years before David Weiss personally blessed a diversion for the charges.

What prosecutors don’t say — what they would have to say to explain how new evidence led them to change their minds about charging — is that they obtained that evidence between the day David Weiss blessed a diversion agreement — well before June 6 — and the date he decided to charge felonies that Hines argues, while reserving the right to ask for a bunch of enhancements, expose Hunter to 15-21 months’ imprisonment.

Instead, Derek Hines hides what date prosecutors obtained that coke residue evidence. If I’m right that the warrant to search Hunter’s iCloud content was obtained in December — after indicting this crime — then it would be the opposite of proof (again, I’ve asked Weiss’ office for clarity on this point, because I can’t believe they’d only obtain that warrant after indicting). But that is consistent with the discovery motion that described the first batch of discovery only amounted to 350 pages of evidence (which, if it included the whole book would only include 78 additional pages of evidence).

On October 12, 2023, the government provided to the defendant a production of materials consisting of over 350 pages of documents as well as additional electronic evidence from the defendant’s Apple iCloud account and a copy of data from the defendant’s laptop. This production included search warrants related to evidence the government may use in its case-inchief in the gun case, statements of the defendant including his admissions that he was addicted to crack cocaine and possessed a firearm in 2018, and law enforcement reports related to the gun investigation.

More importantly is what this motion doesn’t say. First of all, in spite of falsely treating Hunter’s false statement as if it were a straw purchase to claim an aggravating factor, it provides zero evidence that Hunter had the intent of deceiving on that form. It provides evidence, instead, that Hunter was paranoid and trying to find a way to protect himself and totally out of his mind, the opposite of what you need to prove a willful lie.

Worse still, what the motion literally shows is the reverse of what Hines’ dick-wag in the paragraph all the dick pic sniffers have picked up on. Yes, “to be clear, investigators literally found drugs on the pouch where the defendant had kept his gun.” That impressed the hell out of the dick pic sniffers. But to be clearer, investigators literally didn’t look for drug residue on the gun until five years, possibly longer, after law enforcement seized the gun. 

Even if that drug residue had been found between July 26 and September 14, it’d still be proof that prosecutors never took basic steps towards charging gun crimes until after Republicans brought their heat. If it happened before June 20 in 2023, it’d be even further proof that that Devlin Barrett story did what it was designed to do: to politicize this case. If it happened in December, then it’s a sign of real negligence and dishonesty.

Whatever it is, it proved more useful for impressing the dick pic sniffers than it will in defeating Hunter’s vindictive prosecution claim.

Update: Weiss’ spox declines to comment beyond the court filings.

Update: Fixed the grammar in vindictive action.

Timeline

October 2018: The gun, ammunition, and speed loader were placed in evidence

August 2019: The tax and foreign influence peddling iCloud warrant Weiss claims to be relying on obtained

December 2019: When Weiss obtained the laptop, but he doesn’t provide the exact date or discuss the provenance problems of it

August 2020: An iCloud warrant, probably the fruit of the laptop and almost definitely also limited to tax and influence peddling crimes, that Weiss mentions in a footnote but doesn’t acknowledge in the text

April 6, 2021: Publication date of Hunter’s book, which specific date Weiss does not include in the filing.

March 2022: Prosecutors first inform Chris Clark they are considering gun charges.

October 6, 2022: Politicized leak to Devlin Barrett designed to pressure David Weiss into charging gun charges.

October 31, 2022: Chris Clark notes that prosecutors didn’t tell him of potential gun crimes until March 2022.

Since December 2020, nearly all of our meetings, phone calls, and correspondence with your Office have related to the Government’s investigation of Mr. Biden for possible tax offenses. It was not until a phone call in March 2022—over a year into our cooperative dialogue—that your Office disclosed a potential investigation of Mr. Biden for possible firearms offenses (the “Firearm Investigation”).

September 14, 2023: Weiss obtains gun indictment just before speedy trial clock expires.

ND: Prosecutors obtain a warrant, listed as 23-507M, to “to search the defendant’s electronic evidence for evidence of federal firearms violations and to seize such data.” The filing does not provide a date for this warrant, but 23-mj-504 was an arrest warrant obtained on November 30 and 23-mj-508 was an arrest warrant obtained on December 4, 2023. I have asked Weiss’ office for clarification on whether this warrant could possibly have been obtained in December, almost three months after the indictment.

ND: Sometime in 2023, date not given, but by description after the gun-related warrant, prosecutors access the gun that has been in storage for over 5 years and “notice” it has cocaine residue on it, which is when they first sent it for FBI analysis.

David Weiss Buries Bill Barr Right Alongside Tony Bobulinski

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For a second time, David Weiss’ Special Counsel team has buried an inconvenient (some)body to avoid accounting for the politicization of the investigation they claim is not political.

This time, it’s Bill Barr.

Across three responses pertaining to political influence submitted yesterday — request for discovery, immunity through diversion agreement, and selective and vindictive prosecution — the prosecutors used a variety of tactics to simply avoid dealing with inconvenient evidence.

In the discovery response, after describing discovery production to date — 500,000 pages of which came on January 9 — Derek Hines argued that under Armstrong, Hunter Biden hadn’t reached the threshold for discovery, primarily addressing selective prosecution rather than vindictive (as I’ll show, Hines ignores much of Hunter’s vindictive prosecution argument). In claiming there’s no evidence to support discovery, his discovery response doesn’t address a single piece of evidence that Hunter showed to support his argument. Instead, it paraphrases Hunter’s two discovery requests (one, two) this way:

  • Emails, documents, and information reflecting deliberative processes and decision-making of DOJ concerning the investigation and its decision to bring charges against the defendant. ECF 65 at ¶¶ E, G
  • Emails, documents, and information concerning communications with Congress and “any person at the U.S. Department of Justice” “concerning the investigation or prosecution of Mr. Biden, including the decision to bring any particular charges.” ECF 65 at ¶ H
  • “All documents and records reflecting communications from January 20, 2017 to the present (the “Relevant Time Period”) to, from, between, or among Donald J. Trump, William P. Barr, Geoffrey Berman, Scott W. Brady, Richard Donoghue, or Jeffrey A. Rosen relating to or discussing any formal or informal investigation or prosecution of Hunter Biden, or a request thereof” ECF 66 at ¶ 1
  • “All documents and records reflecting communications from the Relevant Time Period to, from, between, or among Donald J. Trump, William P. Barr, Geoffrey Berman, Scott W. Brady, Richard Donoghue, or Jeffrey A. Rosen and any Executive Branch official, political appointee, Department of Justice official, government agency, government official or staff person, cabinet member, or attorney for President Trump (personal or other) discussing or concerning Hunter Biden.” ECF 66 at ¶ 2

The paraphrase ignores items in Hunter’s first request pertaining to John Paul Mac Isaac (yesterday’s filings reference the laptop without describing its provenance or whether and how follow-on warrants relied on it), to disciplinary investigations, leak investigations, and other communication with the press (one of which Hines specifically relies on in his responses), as well as draft 302s and FD-1023s like the one recording an unreliable Tony Bobulinski interview made after being hosted by Donald Trump (which, as I noted, Weiss distorted the facts to exclude from the tax indictment, just as he distorts the facts regarding Barr’s involvement) or an informant report obtained via a dedicated channel for Rudy Giuliani’s dirt.

That is, Hines simply ignores a number of items in Hunter’s request that prove Trump’s personal and ongoing tampering in this investigation.

The discovery response likewise ignores Hunter’s request for subpoenas for materials in the possession of Trump and others, including Barr, which was cited in Hunter’s own discovery motion, even though Hines dealt with comments Trump made on Truth Social this way, in his selective and vindictive response:

The next statements by Trump cited by the defendant in support of his argument (ECF 63 at 31) occurred in 2023, now on a website called “Truth Social.” After the defendant filed his motion, undersigned counsel have tried to gain access to the website to verify the authenticity of the “Truth Social” messages cited by the defendant, but the site apparently is not functional:

Accordingly, while the government has not verified the accuracy of the messages or been able to assess any surrounding context that the defendant may have omitted, it is still clear that these supposed messages do not advance the defendant’s claim.

“Let me subpoena all the threats made by Donald Trump on his social media site,” Hunter asked. And after Leo Wise claimed that’s not necessary, Hines professed to be utterly incompetent to be able to find those threats, including at least one targeting David Weiss personally, published publicly. That, even though other parts of DOJ have proven perfectly capable of accessing Truth Social — for example, after Taylor Taranto used the address for Barack Obama that Trump posted there to start stalking the Kalorama neighborhood of Trump’s predecessor. DOJ knows how to find threats Trump elicits on Truth Social, but poor Derek Hines claims he doesn’t have any way of doing that.

You know how you might get those posts, Derek Hines? A subpoena.

But it is in Bill Barr’s role where this response is most telling (particularly given Hines’ paraphrase ignoring FD-1023s).

Here’s how, in the selective and vindictive response, he addressed Hunter’s request for information from Bill Barr.

Even the contents of most of the tweets cited by the defendant contradict his claim that he is being selectively and vindictively prosecuted. For example, according to the defendant, on December 12, 2020, former President Trump complained that then-Attorney General Barr did not “reveal the truth” to the public before the election about Hunter Biden. ECF 63 at 29. If the DOJ was acting to pursue a political agenda, wouldn’t DOJ have done the opposite? The defendant says President Trump tweeted, “I have NOTHING to do with the potential prosecution of Hunter Biden, or the Biden family. . . ” Id. That claim of non-involvement does not support his claim. According to the defendant, in his book, Attorney General Barr stated he was asked by President Trump about the investigation of Hunter Biden, and Attorney General Barr refused to tell him about it. Id. at 30. This withholding of information does not support his argument.

And here’s how Hines dodged any discussion of the Deputy Attorney General’s role in channeling Russian disinformation — as well as an FD-1023 obtained via a dedicated channel from Trump’s personal lawyer — into the investigation of the son of Trump’s campaign opponent.

In this same section of his brief, the defendant cites testimony of an IRS employee who stated that DOJ made the decision not to take overt investigative steps that could influence the 2020 election. Id. The problematic conduct that the defendant complains of is that the Deputy Attorney General’s office during the Trump Administration 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 so that that investigation would not influence a Presidential election. If the defendant’s vindictiveness allegations were true, wouldn’t DOJ prosecutors have done the opposite and permitted investigators to take overt steps that could have influenced the election? These claims show only that career DOJ prosecutors and DOJ leadership acted appropriately when investigating the son of a candidate for President. Moreover, against this backdrop, U.S. Attorney Weiss was then asked to remain U.S. Attorney during the Biden Administration, which further underscores the lack of discriminatory intent.

As Wise did in the filing claiming to need no subpoena, Hines did here: both completely ignored that Hunter has pointed to official records, which are in no way deliberative, showing that months after Donald Trump asked Volodymyr Zelenskyy to provide campaign dirt to Rudy Giuliani and Bill Barr, days after (per Chuck Grassley) shutting down an investigation into Mykola Zlochevsky, the former Attorney General set up a channel dedicated to ingesting dirt from Rudy, including from Zlochevsky and known agents of Russia, to be laundered into the investigation of Hunter Biden.

That response ignores several aspects — either implicit or explicit — of Hunter’s request:

  • Joseph Ziegler initially claimed (he subsequently backed off this claim) that Bill Barr personally decided to put the investigation in Delaware, an appropriate venue to investigate Joe Biden, but not for Hunter’s suspected tax crimes
  • Bill Barr set up a back channel to receive Rudy Giuliani’s dirt targeting Hunter and Joe Biden, including dirt obtained from Mykola Zlochevsky and known Russian agent Andrii Derkach
  • Days after Trump harangued Bill Barr personally (described in his book as a response to the initial NY Post story published on October 14), Richard Donoghue ordered Weiss’ team to accept a briefing on the FD-1023 (which happened on October 23 — the same day Bobulinski met with the FBI)
  • Bill Barr told Margot Cleveland, for a story published just as David Weiss started reneging on a plea deal in June, that he was personally involved in sharing the FD-1023 with Weiss’ office

And if Weiss responded to Hunter’s request for “communications with Congress,” he would have to provide the following:

  • Discussions Barr had with Lindsey Graham about the dedicated channel he was setting up to target Hunter Biden
  • The correspondence via which DOJ told Jerry Nadler about the dedicated channel for Rudy’s dirt
  • The July 10 letter from Weiss to Lindsey Graham stating that the FD-1023 produced by that dedicated channel was still being investigated, crucial evidence of what I called the FARA headfake inventing a reason to reopen the investigation
  • Chuck Grassley’s October 23 letter to Merrick Garland describing that days before Barr set up that dedicated channel and around the time when Zlochevsky made unprecedented claims of having bribed Joe Biden, Bill Barr’s DOJ shut down a corruption investigation whence the FD-1023 would be reverse engineered via Barr’s dedicated channel
  • Scott Brady’s testimony describing:
    • The dedicated channel to launder dirt into the Hunter Biden investigation involved 5 prosecutors in Brady’s office (including him), plus some number of FBI people
    • Between January and October 2020, Brady spoke to Weiss every four to six weeks about this dedicated channel
    • Brady demanded — and after some “colorful” language with Weiss, got — interrogatories regarding the scope of Weiss’ investigation
    • In his initial explanation, Brady said his team found that lead via asking the FBI to search on “Hunter Biden” and “Burisma,” precisely the request Trump had made of Volodymyr Zlochevsky
    • The reinterview of the Zlochevsky informant came at Brady’s direction
    • Brady’s claimed vetting of the Zlochevsky lead included checking travel records (the dates of which were not included on the FD-1023) but did not include comparing Zlochevsky’s claims against the materials from impeachment or even public reporting that conflicted with it
    • He “reminded” Weiss of the obligation to investigate leads
    • He provided a report to Donoghue in September 2020 that would in no way be deliberative
    • He got Donoghue to intervene when Weiss’ team showed reluctance to accept his laundered dirt
    • Brady personally kept Bill Barr informed of his efforts
  • David Weiss’ testimony describing:
    • He never spoke with Joe Biden about remaining on as US Attorney, has not been supervised by any political appointee since 2022, and has never once spoken to his boss, Lisa Monaco
    • He did speak with Bill Barr about remaining on as US Attorney
    • He has never had direct communication with Merrick Garland save the written communication in which he asked to be made Special Counsel
    • The discussion he had with LA US Attorney Martin Estrada goes to the merits of the case that Estrada said would not be worth charging that Weiss has since charged
    • He always intended to continue the investigation into Hunter, a claim that materially conflicts with something that Chris Clark says Weiss’ First AUSA told him
    • He believes Leslie Wolf, whom he removed from the Hunter Biden team, is a person of integrity
    • The information laundered through Brady was still ongoing as of November 7
    • His office has been targeted by threats and harassment — and he himself raised concerns about intimidation
    • He still remembers Gary Shapley’s body language in response to Weiss’ comment about the merits of the case
  • Thomas Sobocinski’s testimony describing:
    • After Gary Shapley’s claims went public, threats to personnel on the team “absolutely increased”
    • He “definitely” had discussions with David Weiss about how Shapley’s claims would affect the case
    • After Shapley’s claims, the children of people on the team started getting followed
    • Leslie Wolf has concerns for her safety
  • Martin Estrada’s description of three reports he received, which convinced him it was not worth dedicating resources to prosecuting Hunter Biden for tax crimes in Los Angeles

In short, Hines simply refuses to deal with the evidence — some laid out explicitly in Hunter’s filing — that would substantiate how Bill Barr went to great lengths to let Trump’s personal attorney launder dirt into this investigation, and then continued to politicize this investigation during the period when Weiss’ team was subjected to increased threats.

The record already shows that Trump demanded an investigation, DOJ set one up in the way most likely to implicate Joe as opposed to Hunter, in the wake of pressure from Trump and during the campaign season, DOJ ordered Weiss to accept an informant report reflecting a suspect relationship between Zlochevsky and Trump’s attorney, and that back channel continues to be one of the ways Republicans have provably pressured David Weiss to prosecute Hunter more harshly, after which pressure Weiss did just that.

But by refusing to address the substance of the evidence Hunter laid out showing this investigation was politicized, Hines simply buried all that.

David Weiss’ Responses to Motions to Dismiss

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David Weiss has responded to Hunter’s motions to dismiss. These will definitely be covered by the frothy right.

Nowhere in these filings do David Weiss’ AUSA deny he lied to Congress.

As I have noted, Chris Clark alleges that Weiss’ First AUSA told him on June 19 there was no ongoing investigation. David Weiss told Congress something completely different.

In these filings, Weiss simply ignores the evidence that Weiss reneged on a plea deal in the context of their treatment of the diversion. The two sides are both cherry picking language about whether the diversion went into effect. But you can’t discuss them except in context of Weiss reneging on a signed plea deal.

And in the context of that, Weiss simply dismisses the pressure — much less the threats — from Congress. That goes to the vindictive prosecution claim.

 

 

For Almost a Year, “Jim Jordan” Has Been Saying Hunter Biden Didn’t Need to Testify

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I came to the Hunter Biden beat a bit late — only after I read Gary Shapley’s testimony. And so when Democrats mentioned that Abbe Lowell had sent Congress six letters in last week’s circus hearing — only two of which were cited in the contempt referral — I realized I hadn’t read them all.

I posted them all below.

It turns out, the two earliest ones — the ones I hadn’t read, ones which were sent to James Comer but not Jim Jordan — Abbe Lowell cited Jordan to lay out the impropriety of the requests for information from Hunter.

We know, from the Steve Bannon prosecution, that were the House to refer Hunter Biden for contempt, the first thing DOJ would do is ask for paperwork from both sides. On the January 6 Committee side, that all went through senior staffers. On Bannon’s side, Robert Costello claimed to have certain representations from Trump, but when asked, he admitted he didn’t have anything to backup that claim (Peter Navarro had still less since he didn’t lawyer up until after being charged). DOJ went so far as to get Costello’s call records to make sure there weren’t communications they didn’t know about.

Here, the first thing Abbe Lowell would do if Hunter were referred to contempt would be to share the six letters he had sent, documenting the authority on which he was relying for asking for further accommodations. The Oversight contempt referral — and even the letter issued Sunday moving toward setting up a deposition — made no mention of the earlier letters. As I noted, when DOJ asked the staffers in charge of the contempt referral what had happened, that hapless person would have to explain why the Committee withheld relevant documents from its contempt referral.

But as I also noted, even when relying on just the more recent letter, Jordan has said enough about the authority of subpoenas that he risked being a witness in any contempt investigation and then trial, something Bennie Thompson studiously avoided by letting staffers manage the guts of the legal issues.

That may explain why Jordan, whose chief counsel Steve Castor is bad faith but a good lawyer, saw the wisdom of issuing a new subpoena.

There’s still a conflict here. Lowell suggested hybrid accommodation in his letter from last week.

You have not explained why you are not interested in transparency and having the American people witness the full and complete testimony of Mr. Biden at a public hearing. If you issue a new proper subpoena, now that there is a duly authorized impeachment inquiry, Mr. Biden will comply for a hearing or deposition. 33 We will accept such a subpoena on Mr. Biden’s behalf.

33 During the January 10, 2024, Judiciary Committee markup, Representative Glenn Ivey suggested a procedure for a hybrid process—a public deposition/hearing with alternating rounds of questions for Republicans and Democrats, and with similar rules (e.g., role of counsel in questioning), as is done in a closed-door deposition. Four Republicans actually voted in committee in support of this process. Perhaps that could be the basis for our discussion.

In Sunday’s letter, Jordan and Comer rejected that, falsely claiming that the rules prohibit it (and ignoring Comer’s offer of public testimony in the past, something that came up in the contempt hearing).

While we welcome Mr. Biden’s public testimony at the appropriate time, he must appear for a deposition that conforms to the House Rules and the rules and practices of the Committees, just like every other witness before the Committees.26

26 For this reason, the Committees cannot accept the so-called “hybrid process” you propose. See January 12 Letter, supra note 1, at 8 n.33

I would not be surprised if Lowell did what Jim Comey did back in 2018, when House Republicans were conducting a similarly politicized non-public investigation into the Russian investigation. He sued to quash the subpoena, largely in an attempt to get some means of preventing Members from making false claims while hiding the transcript. That ended with an agreement that the House would release the transcript a day after the testimony.

The letter Lowell sent Mike Johnson on November 8 already extensively documented the false claims that Republicans had made about Hunter. There are some interesting false claims in the HJC report on the Hunter investigation that would not only further substantiate the need for transparency, but would also bolster Hunter’s claim — made in a motion to dismiss — that the House is unconstitutionally trying to conduct a prosecution of him.

Plus, there are other details of Jordan’s investigation — most notably the threats, which Becca Balint laid out during the contempt hearing last week. It is absolutely critical to Hunter Biden’s legal case that US Attorneys David Weiss and Martin Estrada as well as FBI Special Agent in Charge Thomas Sobocinski testified that threats were made in conjunction with this investigation, threats that in Delaware’s case preceded a radical reversal on the prosecutorial decision. Yet Jordan is sitting on that testimony.

Most people, myself included, think it’d be insane for someone fighting two indictments to appear before a hostile committee, much less without some means of acquiring his own record. But at the same time, Jordan keeps providing Lowell more evidence that the House, not DOJ, is the branch of government driving that prosecution.

1. February 9, 2023: Re request for documents [Comer]

[T]hen Ranking Member Jim Jordan (who sat next to you at your February 8th hearing) stated that a subpoena of President Trump and his family’s personal records was “an unprecedented abuse of the Committee’s subpoena authority[.]”1 Mr. Jordan described the subpoena for financial and business records as an “irresponsible and gravely dangerous course of conduct in a singular obsession of attacking President Trump and his family for political gain.”2 Mr. Jordan feared that Chairman Cummings would selectively release information gained from the subpoena “in a misleading fashion to create a false narrative for partisan political gain.”3

[snip]

Representative Jordan, citing Watkins, even emphasized that private persons have a limited place in Committee investigations: “[t]he Supreme Court has cautioned that Congress does not have ‘general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress.’”4

2. June 14, 2023: Re records from art dealer Georges Bergès [Comer]

I am sure you will remember that it was now Judiciary Chairman Jim Jordan, in his hollering about the subpoena issued to the Presidents’ accounting firm, citing to the same Waikins case, who stated that private persons have a limited place in Committee investigations: “[t]he Supreme Court has cautioned that Congress does not have ‘general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress. ™

[snip]

Let me remind you what then-Ranking Member Jim Jordan stated: that a subpoena of President Trump and his family’s personal records was “an unprecedented abuse of the Committee’s subpoena authority[.]”* (emphasis added). Mr. Jordan described the subpoena for financial and business records as an “irresponsible and gravely dangerous course of conduct in a singular obsession of attacking President Trump and his family for political gain.” (emphasis added). 1 explained in February that Mr. Jordan stated he feared that Chairman Elijah Cummings ‘would selectively release information gained from the subpoena “in a misleading fashion to create a false narrative for partisan political gain.”

[snip]

No sooner did You obtain these financial records then, as admitted in you letter, you released them to the public in your “First Bank Records Memorandum.” In so doing, you decided to ignore the warning of your colleague Chairman Jordan, who cautioned that Democrats would selectively release information gained from the subpoena “in a misleading fashion to create a false namative for partisan political gain.” Oh, what a difference a few years and a change in leadership has made.

3. September 13, 2023: Re Newsmax appearance [Comer]

I write on behalf of our client regarding your statement this morning, September 13, on Newsmax, in which you stated, “We’re headed to court, more than likely. We’ve requested bank records from Hunter Biden and Jim Biden early on, and obviously we never got a response back. We will re-request those this week; if they do not comply with our request, then we will subpoena and no doubt, undoubtedly head to court.”1 Your statement was surprising as it ignores our prior exchanges.

[snip]

We ask that you correct what you said, but more importantly, we remain available to have the discussion that I suggested some seven months ago.

4. November 8, 2023, to Mike Johnson: On false claims made by Republicans [Comer, Jordan, and Smith]

Chairman Jordan, for his part, used his airtime on November 1 to spew false, recycled, and debunked claims about Hunter’s time serving on the board of directors of Burisma, wielding it as an excuse to justify his obsession with pursuing an “impeachment inquiry” into President Biden when he declared: “Hunter Biden gets put on the Board of Burisma, fact number one. Fact number two, he’s not qualified to be on the Board of Burisma. Fact number three, the head of Burisma asks Hunter Biden, ‘can you help us relieve the pressure we are under from the Ukrainian prosecutor?’ Fact number four, Joe Biden does just that.” 9

[snip]

As to Chairman Jordan’s made-up, nonsensical claim that “the head of Burisma ask[ed] Hunter Biden, ‘can you help us relieve the pressure we are under from the Ukrainian prosecutor?,’” I simply would ask Chairman Jordan: what evidence do you have and when is it coming? The answer is “none” and “never.” For all the hours, months, and years Chairman Jordan and others (e.g., Senators Grassley and Johnson) have spent trying to invent a scheme in which Hunter assisted Burisma in any illicit or inappropriate way to “relieve the pressure” stemming from a Ukrainian corruption investigation, while his father was Vice President, they have produced an alarmingly scant amount of proof to show for their claims. Opposite evidence abounds.

5. November 28, 2023: In response to Comer’s Newsmax appearance [Comer and Jordan]

Mr. Chairman, we take you up on your offer. Accordingly, our client will get right to it by agreeing to answer any pertinent and relevant question you or your colleagues might have, but— rather than subscribing to your cloaked, one-sided process—he will appear at a public Oversight and Accountability Committee hearing. To quote your November 8, 2023, letter accompanying the subpoena, “Given your client’s willingness to address this investigation publicly up to this point, we would expect him to be willing to testify before Congress.”6 He is, Mr. Chairman. A public proceeding would prevent selective leaks, manipulated transcripts, doctored exhibits, or one-sided press statements.

December 6, 2023: Public testimony [Comer and Jordan]

As indicated in my November 28, 2023, letter, Mr. Biden has offered to appear at a hearing on the December 13, 2023, date you have reserved, or another date this month, to answer any question pertinent and relevant to the subject matter stated in your November 8, 2023, letter. He is making this choice because the Committee has demonstrated time and again it uses closed-door sessions to manipulate, even distort, the facts and misinform the American public—a hearing would ensure transparency and truth in these proceeding

January 12, 2024: After contempt [Comer and Jordan]

And you, Chairman Jordan, during a House Republican leadership press conference immediately after the actual impeachment inquiry resolution vote finally occurred,stated: “I want you all to think about something. This morning, I was in an impeachment deposition, but then had to leave that to come to the floor for a vote on the rules for impeachment. That [] says it all about this entire process. And it is a sad day.” 11

[snip]

You noticed an impeachment deposition a month before an impeachment inquiry vote was held to authorize such a deposition. Astonishingly, the sequence of events was the same as 2019. Almost four years to the day that Speaker Pelosi made her statement authorizing impeachment-based subpoenas before a House resolution authorized them, it was now Speaker Kevin McCarthy who, despite criticizing his predecessor for trying to do the same thing, did the same thing. On September 12, 2023, Speaker McCarthy said: “These are allegations of abuse of power, obstruction, and corruption. And they warrant further investigation by the House of Representatives. That’s why today, I am directing our House committee to open a formal impeachment inquiry into President Joe Biden.” 12 Chairman Jordan, you should be similarly saddened by your own use of pre–impeachment inquiry subpoenas against Mr. Biden.

[snip]

Thus, “Resolution 660’s direction, however, was entirely prospective. . . . Accordingly, the pre-October 31 subpoenas, which had not been authorized by the House, continued to lack compulsory force.”19 As Resolution 660 was ineffective in 2019, so is Resolution 917 now. To quote you, Chairman Jordan, during the first impeachment of former President Trump, “[c]odifying a sham process halfway through doesn’t make it any less of a sham process.”

[snip]

Still further, on December 13, 2023, you issued a joint statement directly tying Mr. Biden’s subpoenasto the still yet-to-be-authorized impeachment inquiry: “Today, the House will vote on an impeachment inquiry resolution to strengthen our legal case in the courts as we face obstruction from the White House and witnesses. Today’s obstruction by Hunter Biden reinforces the need for a formal vote. President Biden and his family must be held accountable for their corruption and obstruction. And we will provide that to the American people.”27

Scott Perry Explains How Trump, Fox, and Russian Propaganda Made Him Hate Rule of Law

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This exchange, between Scott Perry and Dan Goldman, is one of the best depictions of why and how Republicans have come to hate rule of law.

Jared Moskowitz had just called out Republicans for their utter lack of curiosity about Jared Kushner’s $2 billion windfall for monetizing his role overseeing Middle East policy.

Then Scott Perry — who earlier in the hearing had been brutally criticized for his role in a coup attempt — decided to explain what “galls, or troubles us on this side of the aisle.” He claimed that witnesses in the first impeachment lied in their depositions. “Many of us — I was one of them — sat in a SCIF … for an impeachment [calls out Dan Goldman] … knew there were lies being told to compel the impeachment. … abject straight up lies.”

Then Perry turned to the Russian investigation.

Not to mention the fact that, for years, the other side of the aisle pursued the then-duly elected President of the United States based on pure hyperbole about some Russian hoax that has now turned into, you know, it’s the same old thing from the 1930s in Germany and the 1940s. If you tell a lie enough times it becomes the truth. We sat and watched you dismantle the country and the presidency and any agenda that the American people had voted for based on that.

Then he complained that Hillary Clinton sat for a deposition instead of a grand jury appearance.

Look. Secretary Clinton got away with it. She was allowed to be deposed, not under oath, and her deposition on a Saturday, on a holiday weekend. She got to do that. That galls the rest of America who says, when the FBI or the local magistrate or some law enforcement agency comes knocking on my door and says you’re going to appear, you’ve been served.

In response, Dan Goldman spoke about what distinguished the first Trump impeachment from this GOP inquiry: Fact witnesses. But before he got very far into that, Scott Perry had walked out.

It’s tempting to laugh at this, at the hypocrisy of Perry, who blew off a subpoena himself, and then invoked privileges to withhold evidence of an insurrection from prosecutors, to complain that Hillary also got accommodations from prosecutors. It’s even more tempting to laugh that Perry is so stupid he doesn’t realize neither Trump nor his failson — the latter, a private citizen — did even that in the Mueller investigation; he doesn’t realize that Donald Trump couldn’t even manage what Hillary did. It’s even more tempting to guffaw that Perry has forgotten Hillary’s famous 11-hour Congressional appearance during the Benghazi stunt.

It’s tempting to mock Scott Perry for his belief that the Russian investigation was a hoax, even after five top Trump associates were found, via guilty verdict or judge’s ruling, to have lied to cover up Trump’s ties to Russia. Trump’s campaign manager, coffee boy, his National Security Advisor, his personal lawyer, and his rat-fucker — all of them lied to cover up Trump’s ties to Russia in the year before becoming President.

And I have no idea what he’s referring to when he says witnesses in the first Trump impeachment lied. Perhaps it’s a dispute about Alex Vindman’s testimony that Trump’s White House took out a mention of Burisma in Trump’s perfect phone call with Volodymyr Zelenkyy (though ultimately, even Mike Pence aide Jennifer Williams testified the word Burisma had been uttered). Perhaps he’s adopting the renewed Republican belief — based off what Mykola Zlochevsky told an FBI informant around the time that Bill Barr’s DOJ shut down a corruption investigation into him, that he had bribed Joe Biden — that Biden got Viktor Shokin fired to help Burisma, not to reverse corruption.

It’s tempting to dismiss this rank hypocrisy from one of the key figures in an attack on democracy in 2021.

But it’s important to recognize that Scott Perry believes this. Scott Perry actually believes that Hillary Clinton got better treatment than Donald Trump got. Scott Perry actually believes that the Russian investigation revealed no egregious wrong-doing, including strong evidence that both Trump’s campaign manager and his rat-fucker helped the attack by Russian spies, whether wittingly or not. Scott Perry actually believes that Trump didn’t violate Congress’ appropriation authority to try to extort campaign assistance from a foreign leader.

Sure, those beliefs are ridiculous, and easily factually disproven. But as Perry demonstrated by walking out as Goldman spoke, he’s not going to stick around to be exposed to any facts.

One reason Scott Perry believes all these ridiculous things are because he lives in a right wing media bubble, and the default position for those who live in that media bubble is to believe these false claims. If you consume Fox News, you would have no way of learning that these are all false beliefs. None.

Another reason that Scott Perry believes these things is because he was easily, gleefully manipulated by one of the best con mans of all time, Donald Trump. Scott Perry is so gullible he even believed some of the most whack election conspiracy claims in 2020.

He’s an easy mark, Scott Perry is.

And finally, Scott Perry believes these things because he has become susceptible to Russian propaganda, propaganda designed to make easy marks like Scott Perry hate rule of law, prefer his party, “his guy,” over the Constitution.

Scott Perry attacked his country and he did so — he told us at length on Wednesday — because he came to believe a series of false claims, believe them so deeply that rule of law galls him.

It’s tempting to laugh that someone can be so easily manipulated as Scott Perry has been. But Scott Perry succinctly explained why he attacked the country, why he helped Donald Trump attack democracy. And until we come to grips with the series of things that came to make Scott Perry believe absurd things, we will never convince Trump’s believers to adhere to rule of law.

Update: In a recent post on Elise Stefanik, in which I argued that she adopts Trump’s fascism out of naked ambition, I included a rubric I’ve increasingly used to try to understand why Republicans adopt Trump’s fascism. Because folks in comments are discussing similar ideas, I thought I’d include it.

  1. Cowards afraid of his retaliation
  2. People conned by his grift
  3. Utilitarians who believe he’s the only way GOP wins
  4. Adherents of fascism
  5. Christian nationalists

This post argues that Perry believes a bunch of obviously false things, which would put him into the con category. But he has definitely parroted ideologies that would put him into one of the latter two categories.

Abbe Lowell Invites James Comer to Send a Valid Subpoena, Now That He Has Authority

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Hunter Biden attorney Abbe Lowell sent James Comer and Jim Jordan a letter today that has gotten all the journalists who treat James Comer as a credible human being confused.

Effectively, the letter says:

  • Whatever subpoenas you claim to have sent were invalid because you had no authority to issue an impeachment subpoena
  • Now that you have authority to issue an impeachment subpoena, if you issue one, Hunter is willing to appear at a hearing or sit for a deposition

Much of the rest of the 8-page letter is a legal discussion. There may come a time when a prosecutor or judge will weigh whether Abbe Lowell’s argument was sufficiently sound to mean that any contempt referral against Hunter Biden is garbage.

For the purposes of journalists who’ve believed that James Comer is a credible human being, though, this may be the most important detail: quoting Comer and Jordan asserting, on December 13, that the House needed to vote to authorize an impeachment inquiry “to strengthen our legal case” to subpoena Hunter Biden.

Still further, on December 13, 2023, you issued a joint statement directly tying Mr. Biden’s subpoenas to the still yet-to-be-authorized impeachment inquiry: “Today, the House will vote on an impeachment inquiry resolution to strengthen our legal case in the courts as we face obstruction from the White House and witnesses. Today’s obstruction by Hunter Biden reinforces the need for a formal vote. President Biden and his family must be held accountable for their corruption and obstruction. And we will provide that to the American people.”

If you believe James Comer is a credible human being, then you should take Comer at his word that until the House voted to authorize an impeachment inquiry on December 13, Comer and Jordan didn’t have a very good legal case to enforce an impeachment subpoena to Hunter Biden.

Abbe Lowell may well have had the better legal argument in any case. In his letter, he cites some of the earlier letters he sent that didn’t make the contempt referrals. Those earlier letters are quite central to the legal argument, and the fact that Oversight and Judiciary didn’t mention them in the contempt referrals is going to make things awkward for whatever staffer is going to have to testify about this contempt referral before prosecutors, much less a jury.

And Lowell cites things that Jordan has said himself about the standards for subpoenas. If Lowell is lucky, those past statements will give him a way to call Jordan to the stand, something Bennie Thompson avoided in both the Steve Bannon and Peter Navarro cases.

But for the purpose of journalists who treat James Comer as a credible human being, the important takeaway is this: If Lowell is right — or even if Lowell is just sufficiently right to keep Hunter out of jail for this — then it means everything that came up to this point involved Comer and Jordan deceiving you about what was going on; Comer and Jordan deceiving you, and you believing them, and misleading your readers or viewers about what was really going on.

All those stories about how Hunter Biden “defied” a subpoena? Retract them, or issue a correction and say, “my bad, there was no subpoena. Hunter wasn’t defying anyone.”

All those stories about Hunter refusing to respond to a subpoena requiring a non-public deposition? Retract those too, because there may be no valid subpoena. Up until there’s a clearly valid subpoena, Hunter had every right to seek accommodations, as others have. That’s probably why Lowell says that if Comer and Jordan issue a valid subpoena, Hunter may even be willing to sit for a closed door deposition. That is, it’s not the preference for publicity, it’s the deference to an actually legal subpoena.

You might even do a piece that says, “Wow. That was a really dumbass thing for Comer to do, to issue a subpoena that wasn’t legally valid, because he gave Hunter Biden two opportunities to make him look like a dumbass. If only I were savvy enough to understand that’s what was going on.”

Because, ultimately, if you’ve been treating Comer as if he is a credible human being, you’re not very savvy and you owe your readers an apology.

But, honestly, if you believed any of this was real, then you’re the dumbass. If you believe that Comer and Jordan really are concerned about influence peddling from family members of Presidents, you’re the dumbass. If you believe that Comer and Jordan are primarily interested in Hunter’s testimony, then you’re the dumbass. If you believe there was an accommodation that was going to meet Comer and Jordan’s demands, then you’re the dumbass — indeed, that’s surely why Comer retracted his generous offer to let Hunter testify in public.

There’s a some reason to believe that Comer and Jordan fucked up the accommodation process so badly because they want to ensure that DC USAO or David Weiss — whoever gets any contempt referral they send — decides this contempt referral is legally garbage. Because, they have already admitted in one of the few statements that has been true, they are only looking for something — anything!! — they can use to rationalize an impeachment.

The subpoena was designed, from the start, to fail. That’s because Comer and Jordan know you’re such a dumbass that when it does, you won’t report that the failure is their own damned fault.

Update: Comer and Jordan say they’ll issue a valid subpoena. Congratulations Hill reporters, you’ve spent three months chasing a con.

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