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“Ebb and Flow:” How David Weiss Volunteered for a Subpoena, or Worse

Politico and NYT have stories — relying on what Politico describes as, “more than 300 pages of previously unreported emails and documents exchanged between Hunter Biden’s legal team and prosecutors,” — chronicling the legal negotiations leading up to the failed Hunter Biden plea deal.

Politico’s, written by Betsy Woodruff Swan, is good.

NYT’s is not, in part because it dedicates a long passage to repeating Gary Shapley’s claims without noting the many things in his own testimony that discredit those claims, even while relying on props from Shapley’s testimony that have since been challenged. Luke Broadwater knows where his beat gets sweetened, and it is in treating James Comer like a credible person, not in exhibiting the critical thinking of a journalist.

When first published, the NYT couldn’t even get the date of the failed plea hearing, July 26, correct.

But hey — at least that error is less catastrophic than the one in a WaPo story on the same topic the other day, in which three reporters (at least two of whom never bother to hide their right wing allegiances, particularly when it pertains to chasing Hunter Biden dick pics) claimed that Joe Biden was now a “former” President.

For its errors and other problems, however, the NYT story is useful for the way in which it puts David Weiss at risk for his own subpoena.

Hunter Biden lays the groundwork for holding the government to their signed agreements

To understand why, a review of the current state of the (known) legal case is in order.

On August 11, as Merrick Garland was announcing that he had given David Weiss Special Counsel status, Weiss’ prosecutors filed a motion to dismiss the charges against Hunter Biden. After describing that, “When the parties were proceeding to a negotiated resolution in this matter, a plea in this District was agreed upon,” the filing said that because Hunter did not plead guilty, it may have to file charges in the district where venue lies. At the same time, Weiss also moved to vacate the briefing schedule in the gun diversion.

Judge Maryellen Noreika gave Hunter a day to respond to the motion to vacate. That response, signed by Chris Clark but including Abbe Lowell on the signature line, explained that Hunter planned to fulfill the terms of the gun diversion agreement, which the government had stated was a contract between the two parties.

[T]he Defendant intends to abide by the terms of the Diversion Agreement that was executed at the July 26 hearing by the Defendant, his counsel, and the United States, and concurs with the statements the Government made during the July 26 hearing,1

The Government stated in open court that the Diversion Agreement was a “bilateral agreement between the parties” that “stand[s] alone” from the Plea Agreement, and that it was “in effect” and “binding.”

But, “in light of the United States’ decision on Friday to renege on the previously agreed-upon Plea Agreement, we agree that those issues are moot at this point.” Effectively, Hunter’s team was saying they considered the gun diversion as still valid, recognized everything else was moot, and described that it was moot because the government had reneged on the terms of the deal.

Then Abbe Lowell entered his appearance in the case. And Clark moved to withdraw from the case because — given that the plea and diversion would be contested — he might have to serve as a witness.

Mr. Clark’s withdrawal is necessitated by recent developments in the matter. Pursuant to Delaware Rule of Professional Conduct 3.7(a), “a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless… disqualification of the lawyer would work substantial hardship on the client.” Based on recent developments, it appears that the negotiation and drafting of the plea agreement and diversion agreement will be contested, and Mr. Clark is a percipient witness to those issues. Under the “witness-advocate” rule, it is inadvisable for Mr. Clark to continue as counsel in this case.

Noreika never actually approved Clark’s withdrawal, but the defense team filed notice that Hunter consented to the withdrawal while the docket remained active.

Meanwhile, Noreika ordered the government to reply to Hunter’s response on the briefing, and ordered Hunter to respond to the thing she failed to ask about in the first place, whether he objected to the dismissal of the charges.

Hunter’s team agreed that the charges must be dismissed, but reiterated that the court had no oversight over the diversion agreement (which had been Noreika’s complaint from the start).

Without adopting the Government’s reasoning, as venue for the existing information does not lie in this District, the information must be dismissed.

Further, the Defendant’s position is that the enforceability of the Diversion Agreement (D.I. 24-1 in No. 23-cr-00061-MN) has no bearing on the United States’ Motion to Dismiss for Lack of Venue (D.I. 31 in No. 23-mj-00274-MN), and any disputes regarding the effect of the Diversion Agreement are therefore not before the Court at this time.

The government, meanwhile, filed a seven page reply attempting to claim that the government did not renege on the plea that had been negotiated in advance of its filing in June, by describing how after Hunter refused to plead guilty because Leo Wise, an AUSA who had not been involved in the original deal, claimed its scope was far narrower than Hunter understood, the parties did not subsequently agree on one to replace the signed deal Hunter entered into.

First, the Government did not “renege” on the “previously agreed-upon Plea Agreement,” as the Defendant inaccurately asserts in the first substantive sentence of his response. ECF 33, Def. Resp. at 1. The Defendant chose to plead not guilty at the hearing on July 26, 2023, and U.S. Probation declined to approve the proposed diversion agreement at that hearing.

Then Noreika dismissed the charges.

David Weiss may have plenty of time to argue with Lowell, relying on Chris Clark’s testimony, that he should not be held to the terms of signed agreements he entered into in June.

But the two important takeaways from all this are, first, that Hunter Biden is stating that before the plea hearing, Weiss attempted to change the terms of the signed plea deal, and second, that Chris Clark is no longer bound by any terms of confidentiality that will allow him to prove that’s true.

A senior law enforcement official speaks, illegally

These twin stories are a warning shot to Weiss — before Hunter even gets more discovery on all the other problems with this investigation — what that is going to look like.

Which brings me to the things for which the NYT is really useful: giving David Weiss or someone in his immediate vicinity an opportunity to cause David Weiss more problems.

Three times in the story, NYT provides anonymity to a “senior law enforcement official” to push back on the representation of the deal, including as laid out by documentary evidence. In one such instance, NYT helpfully notes that if Weiss commented, he would be violating DOJ policies and possibly the law (though the leaks in this story don’t appear to violate grand jury secrecy).

A spokesman for Mr. Weiss had no comment. He is legally barred from discussing an open investigation, and a senior law enforcement official with knowledge of the situation pushed back on the idea that Mr. Weiss had been influenced by outside pressures, and ascribed any shifts to the typical ebb and flow of negotiations.

In a second instance, this anonymous “senior law enforcement official” denies something — that David Weiss told an associate that “the average American would not be prosecuted for similar offenses,” the kind of assertion that might provide basis for an exceedingly rare successful claim of selective prosecution — that only David Weiss would know.

Mr. Weiss told an associate that he preferred not to bring any charges, even misdemeanors, against Mr. Biden because the average American would not be prosecuted for similar offenses. (A senior law enforcement official forcefully denied the account.)

This chatty senior law enforcement official similarly denies something else that could bollox any further charges against Hunter Biden — that the only reason he “reneged” on the original terms of the plea deal are because IRS agents got journalists like the NYT’s to report claims of bias that their own testimony did not substantiate.

Now, the I.R.S. agents and their Republican allies say they believe the evidence they brought forward, at the precise time they did, played a role in influencing the outcome, a claim senior law enforcement officials dispute.

Now, normally, misconduct by a prosecutor like Weiss would be reviewed by the feckless Office of Professional Responsibility. But that’s less likely with a Special Counsel, because of the reporting structure for an SCO. And that’s particularly true here given the involvement of Associate Deputy Attorney General Bradley Weinsheimer in earlier discussions about the plea. Weinsheimer oversees OPR, and so any review by OPR presents a conflict. Indeed, Weiss may have asked to be made SCO precisely so he could escape the purview of OPR.

But to some degree that may not matter.

That’s because there are already parallel investigations — at TIGTA and at DOJ IG — into the leaking that occurred during this investigation. David Weiss was already going to be a witness in them, because Gary Shapley made claims about what Weiss said personally at a meeting on October 7, 2022, a meeting that was called first and foremost to discuss leaks.

So if Michael Horowitz wanted to subpoena Weiss to find out whether he was the senior law enforcement official denying things only he could deny, to find out whether days after being made a Special Counsel, Weiss decided to violate DOJ guidelines to which he still must adhere, the only way Weiss could dodge that subpoena might be to resign from both his US Attorney and his Special Counsel appointment.

And if Weiss and DOJ IG didn’t already have enough to talk about, there’s this passage from the NYT, with its truly epic use of the passive voice: “Mr. Weiss was quietly assigned,” by whom, NYT didn’t choose to explain.

NYT corrected their earlier error on the date of the failed plea hearing, but the date here is probably another: Both IRS agents and the FBI agent have testified that this occurred in 2019, not 2018. Indeed, Joseph Ziegler testified, then thought the better of it, in a period when Bill Barr was making public comments about all this, that Barr himself was involved, which would date it to February 2019 or later, in a period when Barr was engaged in wholesale politiciziation of the department. Who assigned Weiss to investigate Joe Biden’s son as Trump demanded it would already be a question for any inquiry into improper influence, but it’s nice for NYT to make it more of one, in a story otherwise repeatedly sourced to “a senior law enforcement official” who might know.

I don’t know whether Hunter Biden’s lawyers deliberately intended to bait Weiss into responding in the NYT. But under DOJ guidelines, he is only permitted to respond to these claims in legal filings, after Abbe Lowell makes it an issue after Weiss files an indictment somewhere, thereby confirming precisely the concerns raised in these stories and creating another avenue of recourse to address these issues.

But whether that was the intention or not, that appears to be what happened.

And that’s on top of the things that Gary Shapley and Ziegler have made issues by blabbing to Congress: describing documentation in the case file of 6th Amendment problems and political influence, the documentation showing that no one had validated the laptop ten months after starting to use it in the investigation, Lowell’s claims that after the IRS got a warrant for an iCloud account that probably relied on the tainted laptop, they did shoddy summaries of WhatsApp texts obtained as a result and mislabeled the interlocutors, and Shapley’s own testimony showing that he was hiding something in his own emails.

That’s on top of anything that Denver Riggleman’s work with the “Hunter Biden” “laptop,” the one Weiss’ office never bothered to validate before using, has produced.

Don’t get me wrong: if and when Weiss decides to charge Hunter Biden with felonies — and I assume he will (indeed, given that the Bidens are all together in Tahoe this weekend, he may have already alerted Biden to that fact) — it’s going to be hell for everyone, for the entire country. But the IRS agents demanding this happen will have made things far harder for Weiss going forward with their disclosures of details of misconduct conducted under Weiss’ watch.

Hunter’s lawyers have already documented the political influence behind this case

Swan’s story, but not the Shapley-parroting NYT one likely based on the same documents, describes that Hunter’s lawyers repeatedly raised the improper political influence on this case, starting with an April 2022 Powerpoint presentation on why DOJ would be stupid to charge Hunter.

In light of Trump’s ceaseless demands for an investigation of the first son, charging the younger Biden with tax crimes would be “devastating to the reputation” of the Justice Department, his lawyers asserted. It would look like the department had acquiesced to Trump’s political pressure campaign.

They noted that Trump had laid into Biden in his speech to the rowdy crowd right before the Jan. 6, 2021, attack on the Capitol. “What happened to Hunter?” the president said. “Where’s Hunter? Where’s Hunter?”

Biden’s lawyers argued that the political pressure was itself a compelling reason not to bring any charges. A move seen as caving to the pressure, they contended, would discredit the department in the public eye, especially if the Justice Department was only going to charge him with paying his taxes late.

Clark wrote Weiss directly in October 2022, in the wake of the October 6 leak, noting that the only reason an unusual (and potentially unconstitutional) gun charge had been added in the interim was pressure from Republicans.

On Oct. 31, 2022, he wrote directly to David Weiss, the U.S. attorney for Delaware who was overseeing the probe. Weiss had been appointed by Trump and had been allowed to stay on during Joe Biden’s administration to continue the investigation — and Attorney General Merrick Garland had pledged to give Weiss full independence.

But Clark argued in his letter to Weiss that charging Hunter Biden with a gun crime would torpedo public trust in the Justice Department.

Biden, Clark continued, didn’t use the allegedly purchased gun to commit a crime, didn’t buy another one and didn’t have any prior criminal record. No drug user had ever been charged with a felony in Delaware for buying a gun under those same circumstances, he wrote. Prosecutors, he alleged, were weighing gun charges for one reason: “the relentless political pressure from the opponents of the current President of the United States.”

After all, Clark noted, federal law enforcement officials had known about Biden’s gun episode since 2018. Only politics explained why years later they were considering charges, he argued.

In January, Clark did another presentation — the first one threatening to put Joe Biden on the stand to talk about how this case was targeted at him, not Hunter.

He said Joe Biden would undoubtedly be a witness at trial because of leaks about the probe. He wrote that just a few weeks before sending his letter, there had been two back-to-back leaks related to Hunter Biden and the gun issue. First, someone told The Washington Post that investigators thought Biden deserved tax and gun charges. Then a few days later, The Daily Mail reported on a voicemail Joe Biden left for his son in the window of time when he allegedly owned the gun. Surely the back-to-back leaks were part of a coordinated campaign to push the Justice Department to charge his client with crimes. And, Clark said, the leaks prompted the president to address his son’s legal woes the next day on CNN.

“There can be no doubt that these leaks have inserted President Biden into this case,” he said.

On April 26, Associate Deputy Attorney General Bradley Weinsheimer met with Hunter’s lawyers, which immediately preceded the efforts to reach a plea deal.

On May 11, Weinsheimer thanked Clark for the meeting and told him Weiss would handle the next steps. The prosecutors appeared to be nearing the end of their investigation, and they were ready to make a deal. This type of process is not unusual in high-profile white collar investigations where the targets of the probes have engaged with the government and signaled openness to pretrial resolution.

On May 18, another lawyer for Biden sent two Delaware prosecutors — including Lesley Wolf, a senior prosecutor in the Delaware U.S. Attorney’s Office — the first draft of a proposed deal, structured so it wouldn’t need a judge’s sign-off and wouldn’t require a guilty plea from Biden.

As noted, Weiss may have used Weinsheimer’s intervention to justify his request to be appointed Special Counsel, but if he did it may backfire.

At each stage, after another wave of pressure from Republicans, the ask from prosecutors got bigger and bigger, first to include the gun, then to include a guilty plea with diversion.

That’s what the anonymous senior law enforcement official claims was just “ebb and flow.”

On June 7, the immunity agreement was written as follows.

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. This Agreement does not provide any protection against prosecution for any future conduct by Biden or by any of his affiliated businesses.

In the wake of the failed plea, prosecutors demanded that all immunity language be stripped, a truly insane ask.

No wonder Hunter’s lawyers are furious.

No wonder Clark dropped off the case, to be replaced by a far more confrontational Abbe Lowell, so he could lay all this out.

NYT describes that David Weiss thought that being provided Special Counsel status, “could provide him with added leverage in a revamped deal with Mr. Biden,” which is not something included in the Special Counsel regulations. Those regulations especially don’t envision getting that status for the purpose of reneging on already signed deals.

Abbe Lowell (who is not named in either of these stories) has something else entirely in mind.

Gary Shapley used notes that utterly contradict his public claims to dupe credulous reporters like Broadwater to build pressure on Weiss. Hunter’s team laid out that long before that, they had made the case that this prosecution was designed to target Joe Biden. Since then, they’ve identified at least one witness who could testify that Weiss is pursuing charges he knows other Americans wouldn’t face and learned of another — Ziegler’s first supervisor — who documented improper political influence from the start.

That’s before getting discovery that may show how Ziegler sat and watched as Hunter Biden’s digital identity got stolen and rather than doing anything to halt that attack in process, instead responded by deciding to charge Biden, not those tampering with his identity.

Sure. Weiss can charge the President’s son now — and he may well have already refiled tax charges in California.

But like his bid to renege on the original terms of the plea deal, that may not work out the way he thinks.

Trump’s “Hunter Biden” “Laptop” Consiglieres Want to Be Paid

I’ve been waiting for Robert Costello to sue Rudy Giuliani. After all, Costello’s firm successfully sued Steve Bannon to get nearly $500,000 he owed them.

Costello has been representing Rudy longer than he has Bannon. And — at least given the filings in Ruby Freeman’s lawsuit — Rudy’s a bigger deadbeat than Bannon.

Perhaps Costello hasn’t sued because he knows it would be fruitless. Rudy really is broke. Or perhaps it’s that he still believes he — and Rudy — should be paid by Trump.

CNN has a story about how Costello and Rudy went to Mar-a-Lago together in April to explain in person why Rudy should be paid (who could then, I assume, pay Costello).

With his attorney in tow, Rudy Giuliani traveled to Mar-a-Lago in recent months on a mission to make a personal and desperate appeal to former President Donald Trump to pay his legal bills. By going in person, a source familiar with the matter told CNN, Giuliani and his lawyer Robert Costello believed they could explain face-to-face why Trump needed to assist his former attorney with his ballooning legal bills.

Giuliani and Costello traveled to Florida in late April where they had two meetings with Trump to discuss Giuliani’s seven-figure legal fees, making several pitches about how paying Giuliani’s bills was ultimately in Trump’s best interest.

But the former president, who is notoriously strict about dipping into his own coffers, didn’t seem very interested. After Costello made his pitch, Trump verbally agreed to help with some of Giuliani’s legal bills without committing to any specific amount or timeline.

Trump also agreed to stop by two fundraisers for Giuliani, a separate source said.

[snip]

[W]hat has surprised those in Trump’s inner circle is the former president’s unwillingness to pay for Giuliani’s bills, given Giuliani could find himself under intense pressure to cooperate with the federal and state prosecutors who have charged Trump. Giuliani sat down voluntarily with special counsel Jack Smith’s investigators this summer, and he was indicted this week in Georgia by the Fulton County district attorney.

“It’s not a smart idea” for Trump to refuse to pay Giuliani’s legal fees, one person close to the situation told CNN,

This claim–that Trump is notoriously strict about dipping into his own coffers?!?! It’s hogwash. Just between Stan Woodward and John Irving, Trump — or rather Trump’s PAC — is paying for the defense of eleven people who are witnesses in the stolen documents case alone. According to the latest motion for a Garcia hearing, at least two of those people aren’t even Trump employees.

So while it’s true that Trump is a notorious tightwad when paying for things out of his own pocket, and it is also true that Trump’s use of PAC funds to pay for the legal defenses of a growing mob of people likely stretches the bounds of legality, it’s not true he refuses to pay the legal defense of people who can hurt him.

As CNN notes, Trump’s PAC is the benefactor that — as described in a May filing in Ruby Freeman’s lawsuit — paid Trustpoint so Rudy could partially, but only partially, comply with discovery in that case.

Another source told CNN that Trump only agreed to cover a small fee from a data vendor hosting Giuliani’s records. And months later, Trump’s Save America PAC paid $340,000 to that vendor, Trustpoint, federal campaign filings show. CNN has now confirmed the payment was intended to settle Giuliani’s outstanding bill with the company.

So Trump at least coughed up to pay something to stave off an imminent holding of contempt from Beryl Howell. Trump’s PAC has reportedly paid for a good deal of document discovery firms, so this payment may be about the type of payment, not who got it.

Still, something has to be different about Rudy such that Trump’s not willing to pay. And it may actually overlap with one possible explanation for why Rudy with Costello thought an in-person meeting about Trump’s own best interests might be more persuasive, something about which CNN exhibits no curiosity.

After all, Costello is more than just Rudy’s lawyer. He’s also centrally involved in the “Hunter Biden” “laptop” caper, so much so he showed off to New York Magazine how he accessed the drive he got from John Paul Mac Isaac and rifled through the Venmo account that was both central to the predication of the tax case against Hunter Biden, but also potentially evidence of identity theft that IRS investigators simply watched as it happened.

The Mac Isaacs decided to alert Congress to the existence of the laptop. They reached out to the offices of Representative Jim Jordan and Senator Lindsey Graham but heard nothing back. They tried to get in touch with the president through the contact page on the White House website. While the process dragged on, Trump was acquitted by the Senate, Joe Biden clinched the nomination, and the pandemic shut down the world. Mac Isaac started to wonder, What if Biden was elected? Nine months after the FBI’s visit, he decided to pursue his fail-safe option.

The next link in the chain of custody was Robert Costello, the lawyer for the president’s lawyer. Costello was representing Giuliani in an FBI investigation into his own Ukrainian activities, and as such, he had asked the former mayor’s staff to be alert for new information coming in over the transom. On August 27, 2020, according to the text of an email Costello shared, one of Giuliani’s assistants forwarded a strange tip that had come in through the contact portal on the Giuliani Partners website:

From: John Paul Mac Isaac

Subject: Why is it so difficult to be a whistle blower when you are on the right?

For almost a year, I have been trying to get the contents of Hunter Biden’s laptop to the proper authorities. I first reached out to the FBI and they came and collected it but I have reason to believe they have destroyed it or buried it in a filing cabinet … Luckily for my protection I made several copies and I have been trying quietly to bring it to people’s attention.

The tipster went on to claim to have “email proof” that Hunter and a business partner had been paid more than a million dollars in fees by Burisma and that they had used “their influence at the White House to pressure the Ukraine government to stop investigating” the company. “I feel the closer we get to the election,” Mac Isaac wrote, “the more this will be ignored.”

Costello wrote right back, telling Mac Isaac that he and Giuliani were “in position to get the information to the right places, provided the information is accurate and was obtained lawfully.” The timing was auspicious. A Republican-controlled Senate committee was working on an investigation of Hunter Biden, and Democrats were attacking the probe as a partisan smear job. The following month, the committee’s report would cite bank records to conclude that Biden and his business associates had received at least $4 million in fees from Burisma as well as millions more from other “foreign nationals with questionable backgrounds.” Trump was seeking to capitalize on the issue. His campaign soon started selling T-shirts that asked WHERE’S HUNTER?

Mac Isaac replied to Costello by sending him an image of the signed repair order and the subpoena, which seemed to indicate that the laptop was relevant to a criminal investigation. Mac Isaac sent a copy of the laptop’s contents to Costello’s home, where he booted up the drive with the assistance of his son, who was handier than his dad was with computers.*

Everything fit on an external drive, a black box about the size of a pack of cigarettes. “It’s not big,” Costello said one morning in June this year, as he showed the drive to a reporter. “But it’s powerful.” Sitting at a desk in the living room of his home in Manhasset, the white-haired attorney, who was dressed for golf, booted up his computer. “How do I do this again?” he asked himself, as a login window popped up with a username: “Robert Hunter.” (Hunter Biden’s given first name is Robert.)

Like many Gen-Xers, Hunter Biden was apparently unwilling to entrust his data solely to the cloud. He used desktop applications and backed things up to a device, which was his undoing. Costello first scrolled through the laptop’s email inbox, which contained tens of thousands of messages, fragments of everyday existence: a Politico newsletter dated January 31, 2019; Wells Fargo statements; a Google alert for the name “Biden”; a youth-soccer-game reminder. “Going through it,” Costello said, “you become familiar with someone.” He opened an email from Venmo, a receipt for a $2,400 “art consultation” with a woman with a Russian-looking name.

Costello hasn’t hidden his role in the laptop caper; he bragged about it.

I can see how Rudy might imagine that Trump would want that side of the story suppressed. But I can also see how — even ignoring his ballooning legal bills — Rudy with Costello might visit Trump, in person, about all this in April.

Starting in February, Abbe Lowell started talking both civil and criminal consequences for the “laptop” caper. In March, Hunter counter-sued Mac Isaac, with plans to depose both Rudy and Costello. More recently, IRS Agent Gary Shapley shared contemporaneous notes showing that ten months after the IRS took possession of the laptop in 2020, DOJ still hadn’t done basic validation of the laptop and probably had used it to get further warrants targeting Hunter.

And given the collapse of the plea deal, that may lead to a giant game of chicken. Lowell has now taken the lead on Hunter’s defense, and I expect … something from David Weiss now that he has gotten Special Counsel status.

If Weiss charges Hunter with felony counts, it’s going to set off a discovery process that will be juiced by the public disclosures Joseph Ziegler and Shapley, among others, have made. Hunter Biden will be able to demand documents and depositions that prosecutors could normally suppress (and that Shapley had always assumed would be suppressed). That discovery process will raise real questions about why Ziegler kept collecting evidence that should have raised questions about whether the former Vice President’s son was in the process of being hacked, and yet Ziegler did nothing to stop it, but instead decided to keep building a criminal case off what was now tainted evidence. That should raise questions about why Hunter Biden is the one being prosecuted and not Rudy Giuliani.

All that might make Rudy, with Costello, more likely to get Trump’s assistance.

But then there’s that something else. Costello was also the lawyer who conducted the privilege review for the devices seized from Rudy on foreign agent charges in April 2021. Costello even submitted a declaration describing that at least seven of the devices seized by the FBI in 2021 were corrupted when FBI tried to image them (though he blames the FBI). However it happened, the corruption of those devices may be why Rudy escaped charges for soliciting something that looks just like the Hunter Biden laptop, down to the Venmos from Russian escorts. Except in that telling, Rudy was not getting the laptop via Costello from a blind computer repairman, but was instead soliciting it from people even Trump’s Administration deemed likely Russian spies.

Trump should pay Rudy’s defense, because if he ever got desperate enough to flip — if prosecutors ever believed they could make Rudy a credible witness — then he could provide really damaging testimony against Trump.

But if he ever decided to flip, it might implicate Trump in something, a direct conspiracy with Russian spies, that Trump has been fleeing since 2016.

Update: Corrected title of NY Magazine.

As Xitter’s Lawyer Stalled DOJ, Elon Musk Met with Jim Jordan (Twice!) and Kevin McCarthy

August 17, 2023/52 Comments/in 2020 Presidential Election, Hunter Biden, January 6 Insurrection /by emptywheel

Elon Musk has been eerily quiet about being held in contempt by Beryl Howell since the DC Circuit opinion was first released on August 9.

It’s not like him to pass up the opportunity to make an obnoxious comment.

Which is why I’m interested in what Musk was doing during the period when Xitter’s counsel was stalling on the DOJ request — including a visit to Kevin McCarthy on January 26.

Beryl Howell approved the warrant on January 17. After several failed attempts, the government served it to the official portal on January 19. But then Xitter’s senior-most legal person stalled for 12 days, until she told DOJ that Xitter was going to make a First Amendment challenge so Trump could invoke executive privilege.

The government’s initial service attempts on Twitter filed twice, with the government’s receipt both times of an automated message indicating that Twitter’s “page [was] down.” Gov’t’s Mot. at 2 (alteration in original). On January 19, 2023, the government was finally able to serve Twitter through the company’s Legal Requests Submissions site. Id

Twitter, however, somehow did not know of the existence of the Warrant until January 25, 2023—two days before the Warrant returns were due. That day, the government contacted Twitter about the status of the company’s compliance with the Warrant, and Twitter’s Senior Director of Legal, JN [redacted], indicated she was not aware of the Warrant but would consider it a priority.” Id; see also Decl. of [redacted], Senior Director of Legal for Twitter (“[redacted] Decl”) 2 (SEALED), ECF No. 9-1. The government indicated that they were looking for an on time production in two days time” to which [J redacted] responded, “without knowing more or taking any position that would be a very tight turn around for us.” [Jl Decl. ¶ 2. The government sent the six pages of the Warrant and the NDO directly to [J redacted] later that evening Meanwhile, [J redacted] directed Twitter’s personnel to preserve data available in its production environment associated with the Target Account, and “have confirmed that the available data was preserved.” Id. ¶ 4.

Twitter notified the government in the evening of January 26, 2023, that the company “would not comply with the Warrant by the next day, “Id. 5, and responded to the government’s request for more specific compliance information, by indicating that “the company was prioritizing the matter and taking it very seriously” but that [redactedl had the Warrant and NDO only “for two days,” id. ¶ 8, even though the government had tried to submit the Warrant and NDO through Twitter’s Legal Requests Submissions site nine days earlier. The Warrants deadline for compliance makes no exception for the provider’s failure to have a fully operational and functioning system for the timely processing of court orders.

On January 31, 2023, Twitter indicated for the first time that the company would not comply with the Warrant without changes to the NDO, stressing as “essential to Twitter’ business model including [its] commitment to privacy, transparency, and neutrality) that [Twitter] communicate with users about law enforcement efforts to access their data.” 1d. 10.

The Legal Director’s declaration is more obnoxious than that. She made no mention of DOJ’s attempts to serve the warrant before she got involved and makes much of a claim that it took the AUSA two efforts to email a separate copy to her. Her assurances that everything was preserved — made as of January 25 — don’t rule out any deletions before that.

It wasn’t until February 1 that WilmerHale was officially involved.

And in the meantime, Elon Musk had made a widely covered trip to DC. He met with Jim Jordan on Thursday January 26, Kevin McCarthy that evening, and then Jordan (again) with James Comer the next day (Axios, NYT, CNN)

As of now, at least, Jordan and McCarthy are two of the just 51 people that Trump follows, who could have sent him DMs.

The next week, Comer formally announced his dick pics hearing, which (as Allison Gill observed yesterday) took place the day between two hearings on the warrant, as contempt fees started piling up. In that hearing, Republicans spun Musk’s willful violation of the consent decree against Xitter as an assault on the First Amendment.

As it was happening, Musk posted a tweet with nothing more but a period.

This was happening in the period when Xitter was doing more intensive searches to get — for example — the second preservation of Trump’s account from January 12, 2021 and all other accounts associated, via common device, cookie, or IP, with Trump’s own.

In the February 7 hearing, then-Chief Judge Beryl Howell questioned whether Xitter was stalling on this production because Musk “wants to cozy up with the former President, and that’s why you are here?”

But it may be more than that.

Musk is solidly part of the far right culture that might have been involved in any DM lists organizing the insurrection. One of the main reasons he started considering buying Xitter is because of the efforts Xitter took in the aftermath to crack down on violence.

And in the lead-up to Musk’s purchase of Xitter, someone — there’s reason to believe it might be Stephen Miller, who had been interviewed by Jack Smith’s prosecutors in November, before he was interviewed in a privilege-waived interview in April — texted Musk personally to raise the sensitivities of restoring Trump to Xitter.

And one of Musk’s phone contacts appears to bring Trump up. However, unlike others in the filings, this individual’s information is redacted.

“It will be a delicate game of letting right wingers back on Twitter and how to navigate that (especially the boss himself, if you’re up for that),” the sender texted to Musk, referencing conservative personalities who have been banned for violating Twitter’s rules.

The anonymous texter then offers up a suggestion for “someone who has a savvy cultural/political view to be the VP of actual enforcement.” That suggestion: “A Blake Masters type.”

Any delays and obstruction may not just be an effort to protect Trump.

It could be Musk’s effort to protect his own network — and people in DC like Jim Jordan.

How James Comer’s Counsel, James Mandolfo, Conducts an Investigation

August 15, 2023/10 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

Amid the excitement yesterday, the Oversight Committee released the transcript of the now-retired FBI Agent who would have interviewed Hunter Biden if a bunch of things had gone differently on December 8, 2020.

Because I appear to be the only one who read the Gary Shapley and Joseph Ziegler interviews closely, I wanted to make sure to describe this one — to describe how James Comer’s counsel, James Mandolfo, simply ended the interview when the witness started describing how the rules about lawyers, sensitive persons, and elections — the same rules that Republicans claimed to care about with Carter Page — would have required the FBI to adopt less intrusive methods than they might otherwise have done.

As to the topic that the Oversight Committee cared about, the agent admitted he was upset that the Biden Transition Team learned of the interview in advance (though as he described, he only heard that from Gary Shapley). He also revealed that he and Shapley had another person to interview that day.

A We waited a period of time. You know, I will add, it was frustrating, and I know supervisor number two was very frustrated, and I understood that frustration, but I also ‐‐ we had other ‐‐ another interview to conduct. So after a certain period of time, and I don’t exactly recall how long, we transitioned to make an attempt to interview another ‐‐ or a witness as part of the investigation.

Shapley didn’t describe that detail. When being questioned by Democrats, the agent described that he simply moved on after this, and said he personally had not witnessed any politicization.

When Mandolfo asked for more background on Shapley’s claim that the FBI agent had asked, in May 2022, why the IRS weren’t asking for a Special Counsel, the agent’s attorney advised him not to answer on deliberative privilege basis.

The agent retired just a month after that, after the normal 20-year career at the FBI.

When the Democrats questioned the witness, though, he provided answers that were less helpful to James Comer’s conspiracy theories. He described how careful the FBI has to be when investigating attorneys and that such an investigation might require using least intrusive investigative methods. He described addition approvals required for Sensitive Investigative Matters. He described the care required during an election.

Effectively, he described that the FBI applied the rules required by the FBI’s investigative manual, the same ones that protected Donald Trump’s during the 2016 election.

Things got weirder when the Democratic staffers asked about the leaks. They appeared to be doing the same thing, basically getting this witness to explain why the things Shapley and Ziegler complained about all had ready explanations. And ultimately, the FBI agent did concede that if leaks got really bad it might make sense to reassign a team.

But when asked if he had ever been part of an investigation from which there were leaks, he denied it.

Q Generally speaking, do you think it could be problematic for agents’ views in 4 any ongoing investigation to be publicly reported or released to news sources?

A Yes.

Q And it could create problems potentially for the integrity of an investigation?

A Yes.

Q In your career, have you ever worked on an investigation in which there were leaks? And you don’t need to be specific, just yes or no.

Mr. Zink [the Agent’s attorney]. Leaks to the press?

[Dem staffer]: To the press.

[Retired FBI Agent] Sorry. My pause is I’m thinking back through my career.

[Dem staffer] No, that’s fine.

[Retired FBI Agent] Not that I recall.

Wrong answer!!

The Hunter Biden investigation had several major leaks, starting in 2020, and continuing through the period when he retired (he was also part of the Duke Cunningham investigation, though I don’t recall major leaks from that).

Having not recalled that this investigation had serial major leaks, his answer about what he would do if he learned of one was still weirder.

[Retired FBI Agent] Not being part of one previously, I’d ‐‐ I, you know, believe it would 10 go to our Internal Investigations Section. Whether there was ‐‐ now, if you’re asking if it was an unsubstantiated allegation versus something I did believe happened, you know, then maybe potential removal of ‐‐ of, you know, the agent in question from the case to protect the integrity of the investigation. You know, I’d want those steps to be taken.

[Dem staffer to Dem staffer] do you have any other questions before we stop?

[Dem staffer] So the question my colleague was asking you is there’s ‐‐ there’s an ongoing investigation. There’s a concern that there is a leak coming from someone on the investigative team, but ‐‐

Mr. Zink. You mean generally or ‐‐

[Dem staffer] Generally.

Mr. Zink. Okay.

[Dem staffer] and ‐‐ but there is no clear answer as to who on the investigative team it is. Would it be reasonable for management to consider removing the entire investigative team in order to protect the integrity of the investigation?

Ultimately the agent, who claimed he would have told his supervisor if there were a leak as there had been on this case which he didn’t acknowledge had been riddled by leaks, conceded that you might ultimately remove people from the team.

The discussion then turned to details about the investigation when someone — possibly the agent himself — asked to go off the record.

And that was it.

Mandolfo came back and ended the interview.

Mr. Zink. Just want to confirm with counsel for majority and minority that the terms “target,” “subject,” and “witness” as they were used in today’s questioning modify and relate to the FBI and Department’s investigation, not the grand jury’s investigation. Just confirming that.

Mr. Mandolfo. Yes. And just based upon the narrow scope and agreement that was formed amongst counsel and the parties that this would be limited to a very limited set of facts, we are now going to conclude with speaking with [Retired FBI Agent] at this time.

It’s not clear whether Mandolfo ended the interview because the retired agent realized he had violated grand jury rules (thus the clarification from his lawyer), whether he realized answering the question about other agencies would do so, or whether the discussion of leaks had been so unhelpful that Mandolfo had to stop.

But the tactic was a fairly telling indicator of what would happen if there were a substantive review of the investigation into Hunter Biden.

Perhaps we’ll now see some of that in discovery.

In Hunter Biden Case, Abbe Lowell Enters His Appearance

August 14, 2023/128 Comments/in 2024 Presidential Election, Hunter Biden /by emptywheel

In Hunter Biden’s filing responding to David Weiss’ motion to vacate Judge Maryellen Noreika’s order for more briefing on the form of the plea deal, Abbe Lowell signed the response, pending his entry of appearance.

His appearance is as significant as what appears inside the response filing.

Chris Clark, who had been leading Hunter Biden’s team for years, is a very good lawyer and had been quite accommodating with the prosecution, even deferring on issues of discovery in the plea hearing he might not have otherwise, given the things the IRS Agents had disclosed about undue influence and Sixth Amendment problems with the case between the filing of the deal and the plea hearing. Lawyers often will do that to maintain cordiality to help craft a plea deal.

Abbe Lowell — who led Jared Kushner through the Mueller investigation unscathed, and got Robert Menendez acquitted, and got the Tom Barrack aide charged alongside him in a FARA case acquitted — is something else entirely.

I fully expect Weiss to do some outrageous things with his new Special Counsel status. Prosecutors always have a lot of tools, and Merrick Garland unwisely just gave Weiss more tools, including the impunity to engage in abuses like John Durham did.

But Lowell’s appearance and this filing — which asserts that the government “renege[d] on the previously agreed-upon Plea Agreement” — both implicitly and explicitly signal that Hunter’s team will take a far more confrontational view with prosecutors going forward.

As part of that, the Hunter filing makes clear they intend to hold Weiss to the already-signed diversion agreement on the gun charge. Hunter’s team filed it, per Noreika’s order — signed by both the prosecution and defense — on August 2.

The Defendant’s understanding of the scope of immunity agreed to by the United States was and is based on the express written terms of the Diversion Agreement. His understanding of the scope of immunity agreed to by the United States is also corroborated by prosecutors’ contemporaneous written and oral communications during the plea negotiations.

Fourth, the Defendant intends to abide by the terms of the Diversion Agreement that was executed at the July 26 hearing by the Defendant, his counsel, and the United States, and concurs with the statements the Government made during the July 26 hearing,1 and which the Government then acknowledged in its filings agreeing to the public disclosure of the Plea and Diversion Agreements2 —that the parties have a valid and binding bilateral Diversion Agreement.

1 The Government stated in open court that the Diversion Agreement was a “bilateral agreement between the parties” that “stand[s] alone” from the Plea Agreement, and that it was “in effect” and “binding.” (Hr’g Tr. 46:9–14) (Government: “Your Honor, I believe that this is a bilateral agreement between the parties that the parties view in their best interest.”); id. at 91:6–8 (Government: “Your Honor, the Diversion Agreement is a contract between the parties so it’s in effect until it’s either breached or a determination [sic], period.”); id. at 41:12–15 (“Your Honor, the United States[’] position is that the agreements stand alone by their own terms … ”); id. at 89:12–14 (Government: “[T]he statement by counsel is obviously as Your Honor acknowledged a modification of this provision, and that we believe is binding.”).

2 (D.I. 24 in No. 23-mj-00274-MN); (D.I. 20 in No. 23-cr-00061-MN) (stating that the Diversion Agreement was a “contract[] between the Government and a defendant” and that Government assented to public filing because “the Government and the Defendant expressly agreed that this diversion agreement would be public”).

If Noreika upholds the diversion, it not only avoids a felony on the gun charge itself, but a false statement charge that prosecutors told Noreika they waived filing as well. It would take one piece of leverage Weiss had off the table.

If she upholds the diversion, that leaves the tax and any FARA (or related) charges, and potentially an attempt to go after Hunter’s benefactor, Kevin Morris (though once DOJ charges Hunter, he will have the ability to start a legal defense fund that will be opaque to regulators).

As the filing notes and as Lowell noted in a relentless Face the Nation appearance yesterday: The prosecutors were the ones who approached Hunter’s team — in May, the same month the IRS removed Gary Shapley’s entire IRS team from the case — to make a deal to avoid trial. [my emphasis]

First, in May 2023, the Defendant, through counsel, accepted the prosecutors’ invitation to engage in settlement discussions that the Defendant and counsel understood would fully resolve the Government’s sprawling five-year investigation.

Second, as is customary in negotiated resolutions, prosecutors (and not the Defendant or his counsel) proposed and largely dictated the form and content of the Plea and Diversion Agreements. This is true with respect to the form in which the documents were presented to the Court (i.e., as two separate and independent agreements), as well as the express language of paragraph 15 of the Diversion Agreement (the so-called immunity provision). Throughout the settlement process the Defendant and his counsel negotiated fairly and in good faith with the prosecutors.

Third, consistent with their terms, the Defendant signed both agreements, was willing to waive certain rights, and to accept responsibility for his past mistakes. As was required as part of the Plea Agreement, he was prepared to plead guilty to the two misdemeanor tax charges in open court and he truthfully answered Your Honor’s questions, including those regarding his understanding of the promises that had been made to him by the prosecutors in exchange for a guilty plea. The Defendant’s understanding of the scope of immunity agreed to by the United States was and is based on the express written terms of the Diversion Agreement. His understanding of the scope of immunity agreed to by the United States is also corroborated by prosecutors’ contemporaneous written and oral communications during the plea negotiations. [my emphasis]

Part of that is just bluster. As Lowell noted on FTN, obviously Hunter wanted to avoid trial, too. The reasons why Hunter would want to avoid trial, though, are all obvious.

But the press has shown zero curiosity about why Weiss’ team would have wanted to avoid a trial, even after Joseph Ziegler explained some of what that was.

And when asked whether there will be trial, Lowell reminded that now there’ll be discovery and motions and maybe the prosecutors will decide they want to avoid a prosecution in the end too.

MARGARET BRENNAN: The US Attorney said, due to this impasse, a trial is in order. Is a trial going to happen? Can you avoid one?

LOWELL: Well, the answer to the second question is you can but let me answer the first question. When you do not have a resolution and somebody pleads not guilty, as Hunter did, then two things happen. A judge put together a scheduling order, the end of which would be a trial. There’d be discovery and motions, etc. So that’s why that statement was made.

MARGARET BRENNAN: So it’s not inevitable?

LOWELL: It’s not inevitable. And I think what–

MARGARET BRENNAN: And you’re trying to avoid one?

LOWELL: Yes, we were trying to avoid one all along. And so were the prosecutors who came forward to us, and we’re the ones to say, “can there be a resolution short of a prosecution?” So they wanted it and maybe they still do want it. [my emphasis]

Even as noting that a prosecution would entail discovery and motions, Lowell noted that the only explanation for DOJ reneging on the plea agreement was if something besides the facts and the law had infected the process.

MARGARET BRENNAN: So let’s start with why this plea deal hit the impasse.

LOWELL: So if you were in court or read about what happened on July the 26th, you have to ask yourself, as you just asked me, “why?” And there are only a few possibilities. Remember, it were the prosecutors who came forward and asked if there was a resolution possible. They’re in charge of figuring out the form, the document, and the language. They did that. And so the possibilities are only, one, they wrote something and weren’t clear what they meant. Two, they knew what they meant, and misstated it to counsel. Or third, they changed their view as they were standing in court in Delaware. So to answer that question, I’ll ask you a question. And everybody else who’s paying attention, what group of experienced defense lawyers would allow their client to plead guilty to a misdemeanor on a Monday, keeping in mind that they knew that there could be a felony charge on a Wednesday? That wouldn’t happen.

[snip]

LOWELL: –Because I know we were a little rushed. So to answer your question squarely. People should keep in mind that while Mr. Weiss’ title changed last week, he’s the same person he’s been for the last five years. He’s a Republican U.S. attorney appointed by a Republican president and attorney general, who had career prosecutors working this case for five years, looking at every transaction that Hunter was involved in. So whether it was tax or the gun, or possible any other charge, if anything changes from his conclusion, which was two tax misdemeanors, and a diverted gun charge. The question should be asked: what infected the process that was not the facts and the law?

MARGARET BRENNAN: Or new evidence? I mean, are you confident your client won’t face new criminal charges?

LOWELL: I’m confident that if this prosecutor does what has been done for the last five years, look at the facts, the evidence and the law, then the only conclusion can be what the conclusion was on July 26. It’s new evidence, there’s no new evidence to be found. Some of these transactions are years old. They’ve had people in the Grand Jury, they’ve had data that was provided to them. I don’t know the possibility exists after this kind of painstaking investigation for them to be “oh, my gosh, there’s a new piece of evidence which changes.” The only thing that will change is the scrutiny on some of the charges, for example, the gun charge.

Already, Ziegler, who did nothing as he obtained one after another piece of evidence that people were hijacking Hunter Biden’s digital identity, revealed that there is documentation of undue influence on this prosecution in the case file. And now Lowell is suggesting that the only explanation for any change in Weiss’ posture from May would reflect similar undue political influence on the case.

And that’s the kind of thing that might make motions and discovery more painful for Weiss than the press currently understands.

Alberto Gonzales Lectures Jack Goldsmith about Perception versus Reality in a Democracy

August 13, 2023/120 Comments/in 2020 Presidential Election, emptywheel, Hunter Biden, January 6 Insurrection, Leak Investigations /by emptywheel

I never, never imagined I’d see the day when Alberto Gonzales would school Jack Goldsmith on how to defend democracy.

Once upon a time, remember, it fell to Goldsmith to school Gonzales that the President (or Vice President) could not simply unilaterally authorize torture and surveillance programs that violate the law by engaging in cynical word games.

But now, Goldsmith is the one befuddled by word games and Gonzales is the one reminding that rule of law must operate in the realm of truth, not propaganda.

In a widely circulated NYT op-ed last week, Goldmith warned that democracy may suffer from the January 6 indictment of Donald Trump because of the perceived unfairness (Goldsmith doesn’t say, perceived by whom) of the treatment of Trump.

This deeply unfortunate timing looks political and has potent political implications even if it is not driven by partisan motivations. And it is the Biden administration’s responsibility, as its Justice Department reportedly delayed the investigation of Mr. Trump for a year [1] and then rushed to indict him well into the G.O.P. primary season. The unseemliness of the prosecution will most likely grow if the Biden campaign or its proxies use it as a weapon against Mr. Trump if he is nominated.

This is all happening against the backdrop of perceived unfairness in the Justice Department’s earlier investigation, originating in the Obama administration, of Mr. Trump’s connections to Russia in the 2016 general election. Anti-Trump texts by the lead F.B.I. investigator [2], a former F.B.I. director who put Mr. Trump in a bad light through improper disclosure of F.B.I. documents and information [3], transgressions by F.B.I. and Justice Department officials in securing permission to surveil a Trump associate [4] and more were condemned by the Justice Department’s inspector general even as he found no direct evidence of political bias in the investigation. The discredited Steele dossier, which played a consequential role in the Russia investigation and especially its public narrative, grew out of opposition research by the Democratic National Committee and the Hillary Clinton campaign. [5]

And then there is the perceived unfairness in the department’s treatment of Mr. Biden’s son Hunter, in which the department has once again violated the cardinal principle of avoiding any appearance of untoward behavior in a politically sensitive investigation. Credible whistle-blowers have alleged wrongdoing and bias in the investigation [6], though the Trump-appointed prosecutor denies it. And the department’s plea arrangement with Hunter Biden came apart, in ways that fanned suspicions of a sweetheart deal, in response to a few simple questions by a federal judge [7]. [my emphasis; numbers added]

Rather than parroting perceptions, in his op-ed, Gonzales corrects a core misperception by pointing out a key difference between Hillary’s treatment and Trump’s: Hillary cooperated.

I recently heard from friends and former colleagues whom I trust and admire, people of common sense and strong values, who say that our justice system appears to be stacked against Trump and Republicans in general, that it favors liberals and Democrats, and that it serves the interests of the Democratic Party and not the Constitution. For example, they cite the department’s 2018 decision not to charge Hillary Clinton criminally for keeping classified documents on a private email server while she was secretary of state during the Obama administration.

I can understand the skepticism, but based on the known facts in each case, I do not share it.

[snip]

A prosecutor’s assessment of the evidence affects decisions on whether to charge on a set of known facts, and government officials under investigation, such as Clinton, often cooperate with prosecutors to address potential wrongdoing. By all accounts, Trump has refused to cooperate.

By contrast, Goldsmith simply ignores the backstory to virtually every single perceived claim in his op-ed.

Aside from a slew of other problems with the linked Carol Leonnig article, her claims of delay in the investigation do not account for the overt investigative steps taken against three of Trump’s co-conspirators in 2021, and nine months of any delay came from Trump’s own frivolous Executive Privilege claims
Trump’s Deputy Attorney General chose to release Peter Strzok’s texts (which criticized Hillary and Bernie Sanders, in addition to Trump), but not those of agents who wrote pro-Trump texts on their FBI devices; that decision is currently the subject of a Privacy Act lawsuit
After Trump used Jim Comey’s gross mistreatment of Hillary in actions that was among the most decisive acts of the 2016 election as his excuse to fire Comey, DOJ IG investigated Comey for publicly revealing the real reason Trump fired him
No Justice Department officials were faulted for the Carter Page errors, and subsequent reports from DOJ IG revealed that the number of Woods file errors against Page were actually fewer than in other applications; note, too, that Page was a former associate of Trump’s, not a current one
Investigations against both Hillary (two separate ones predicated on Clinton Cash) and Trump were predicated using oppo research, but perceptions about the Steele dossier ended up being more central because in significant part through the way Oleg Deripaska played both sides
One of the IRS agents Goldsmith treats as credible refused to turn over his emails for discovery for eight months when asked and the other revealed that he thought concerns about Sixth Amendment problems with the case were merely a sign of “liberal” bias; both have ties to Chuck Grassley and one revealed that ten months after obtaining a laptop that appears to have been the result of hacking, DOJ had still never forensically validated the contents of it
In the wake of that organized campaign against Hunter Biden, a Trump appointed US Attorney limited the scope of the plea which led to a Trump appointed judge refusing to accept it

For each instance of perceived unfairness Goldsmith cites — again, without explaining who is doing the perceiving — there’s a backstory of how that perception was constructed.

Which is the more important insight Gonzales offers: That perceived unfairness Goldsmith merely parrots, unquestioned? Trump deliberately created it.

[A]s I watched a former president of the United States, for the first time in history, be arraigned in federal court for attempting to obstruct official proceedings and overturn the results of the 2020 presidential election, I found myself less troubled by the actions of former president Donald Trump than by the response of a significant swath of the American people to Trump’s deepening legal woes.

[snip]

While Trump has a right to defend himself, his language and actions since 2016 have fueled a growing sense among many Americans that our justice system is rigged and biased against him and his supporters.

Sadly, this has led on the right to a growing distrust of and rage against the Justice Department.

[snip]

We have a duty as Americans not to blindly trust our justice system, but we also shouldn’t blindly trust those who say it is unjust. Our government officials have a duty to act at all times with integrity, and when appropriate to inform and reassure the public that their decisions are consistent based on provable evidence and in accordance with the rule of law.

Defendants do not have the same duty. They can, and sometimes do, say almost anything to prove their innocence — no matter how damaging to our democracy and the rule of law. [my emphasis]

Trump’s false claims of grievance, his concerted, seven year effort to evade any accountability, are themselves the source of damage to democracy and rule of law, not the perception that arises from Trump’s propaganda.

Which beings me back to the question of who is perceiving this unfairness. By labeling these things “perceived” reality, Goldsmith abdicates any personal responsibility.

Goldsmith abdicates personal responsibility for debunking the more obvious false claims, such as that Hunter Biden, after five years of relentless attacks assisted by Bill Barr’s creation of a way to ingest known Russian disinformation about him without holding Rudy legally accountable for what he did to obtain it, after five years of dedicated investigation by an IRS group normally focused on far bigger graft, somehow got a sweetheart deal.

More troubling, from a law professor, Goldsmith abdicates personal responsibility for his own false claims about the legal novelty of the January 6 indictment against Trump.

The case involves novel applications of three criminal laws and raises tricky issues of Mr. Trump’s intent, his freedom of speech and the contours of presidential power.

One reason the investigation took so long — one likely reason why DOJ stopped well short of alleging Trump incited the violence on the Capitol and Mike Pence personally, in spite of all the evidence he did so deliberately and with malign intent — is to eliminate any First Amendment claim. One might repeat this claim if one had not read the indictment itself and instead simply repeated Trump’s lawyers claims or the reports of political journalists themselves parroting Trump’s claims, but not after a review of how the conspiracies are constructed.

As to the claim that all three statutes are novel applications? That’s an argument that says a conspiracy to submit documents to the federal government that were identified as illegal in advance is novel. Kenneth Chesbro wrote down in advance that the fake elector plot was legally suspect, then went ahead and implemented the plan anyway. John Eastman acknowledged repeatedly in advance that the requests they were making of Mike Pence were legally suspect, but then went ahead and told an armed, angry crowd otherwise.

The claim that all three charges are novel applications is especially obnoxious with regards to 18 USC 1512(c)(2) and (k), because the application has already been used more than 300 times (including with people who did not enter the Capitol). The DC Circuit has already approved the treatment of the vote certification as an official proceeding. And — as I personally told Goldsmith — whatever definition of “corruptly” the DC Circuit and SCOTUS will eventually adopt, it will apply more easily to Trump than to his 300 mobsters. And if SCOTUS were to overturn the application of obstruction to the vote certification — certainly within the realm of possibility from a court whose oldest member has a spouse who might similarly be charged — the response would already be baked in.

To argue that 300 of Trump’s supporters should be charged and he should not is simply obscene.

American democracy, American rule of law, is no doubt in great peril and the prosecutions of Donald Trump for the damage he did to both will further test them.

But those of us who want to preserve democracy and rule of law have an ethical obligation not just to parrot the manufactured grievances of the demagogue attempting to end it, absolving ourselves of any moral responsibility to sort through these claims, but instead to insist on truth as best as we can discern it.

Merrick Garland Makes David Weiss a Special Counsel

August 11, 2023/152 Comments/in 2024 Presidential Election, Hunter Biden /by emptywheel

Merrick Garland just announced that after David Weiss requested it on Tuesday, he made Weiss a Special Counsel.

Given the way Garland let John Durham wildly abuse his authority, the way that Weiss tried to sand-bag Hunter Biden, and given Weiss’ permission of really problematic actions during the Trump Administration, I have grave concerns about this.

That said, it will make it harder for James Comer to continue holding dick pics hearings.

Update: Weiss has filed in Delaware to dismiss the tax charges there so they can be brought in a different district (presumably California and DC, though that suggests he’s going to try to file things past their statutes of limitation). This may mean DOJ has to release all the things that Gary Shapley and Joseph Ziegler revealed were in the file, including Weiss’ own disinterest in validating “the laptop.”

Cover-Up: Joseph Ziegler Provided a Different Explanation Why Hunter Biden Wasn’t Charged

July 26, 2023/11 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

You will read a lot of insane reporting about the GOP attempt to prevent the President’s son from pleading guilty in a federal court today.

Virtually all of it will misrepresent the testimony of the so-called IRS whistleblowers who claim that Hunter Biden got a plush deal. That coverage will misrepresent where any potential misconduct may lie.

Here’s what those misrepresentations look like, in this case from NYT:

The committee has heard testimony from two Internal Revenue Service investigators who claim to be whistle-blowers and have told the panel that the younger Mr. Biden received preferential treatment from the Justice Department. Mr. Smith’s brief asked the judge to consider the testimony in deciding whether to approve the agreement.

[snip]

The judge overseeing the case, Maryellen Noreika, agreed to seal the filing, but not before The New York Times was able to obtain a copy. The brief argued that the plea deal was “tainted,” citing the testimony of the two I.R.S. officials.

“The situation here is not that the Justice Department exercised charging or plea negotiation discretion, but the presence of credible allegations that the investigation, charging decisions and plea negotiations were tainted by improper conduct at various levels of the government,” wrote Theodore A. Kittila, a lawyer who filed the brief on behalf of Mr. Smith.

[snip]

Republicans have more recently tried to make a case that Hunter Biden’s plea deal was marked by favorable treatment from the Justice Department in his father’s administration. That assertion has been rejected by Attorney General Merrick B. Garland and by the prosecutor who has overseen the case, David C. Weiss, the U.S. attorney in Delaware, a Trump appointee.

It’s true that the so-called whisleblowers complained about things they weren’t able to do — most of which occurred while Bill Barr was Attorney General.

But that’s not the only thing the so-called whistleblowers testified to.

Joseph Ziegler testified that when he asked why Hunter wasn’t being charged, he was told that prosecutors had found emails that led them to worry they couldn’t charge the case at all.

So we found out through talking with our SAC that the attorneys had found — we were always asking for updates on charging. When are we going to charge? When are we going to charge? We were told that the prosecutors had found some emails that concerned them if they could actually charge the case. That’s what they said to us.

He even explained what some of those emails might be: documentation of Sixth Amendment problems with the case and evidence of Trump’s improper influence on it.

Around the same time in 2019, I had emails being sent to me and the Hunter — and the prosecutors on the case, the Hunter Biden prosecutors, from my IRS supervisor. So this was Matt Kutz still.

From what I was told by various people in my agency, my IRS supervisor, Matt Kutz, created memos which he put in the investigative files regarding the investigation potentially violating the subject’s Sixth Amendment rights. He also referred to Donald Trump’s tweets at the time.

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

There’s documentation in the case file that some part of the investigation — potentially something Ziegler himself did! — created what are probably Confrontation Clause problems for the case generally.

But that may not be the only thing.

Gary Shapley testified that he was distanced and then removed from the case after prosecutors had to ask him to turn over his own emails for discovery review a second time, after he had blown off a request seven months earlier.

Shapley was first asked to turn over his emails about the case in March 2022. But even though he was the one who had prepped to interview Hunter Biden himself, he did not comply.

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

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

Then, in October 2022, prosecutors asked again. As Shapley himself described, he was angry that he was being asked for emails that might show exculpatory or impeachment information.

They also renewed the request for all my emails on the case, saying they needed to ensure they were aware of any exculpatory or impeachment effort in the case. But their extraordinary request looked to us just like a fishing expedition to know what we’d been saying about their unethical handling of the case.

[snip]

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

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

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

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

A month or so later, Shapley made the extraordinary request for the FBI agent reviewing emails to share anything he found in advance. As I’ve noted, Shapley asked for the kind of special treatment he claims Hunter Biden got.

This is what the NYT won’t tell you: That the testimony of both Ziegler and Shapley provides an entirely different explanation for why Hunter Biden wasn’t charged with felonies. And that explanation may have to do with their own conduct, not Hunter Biden’s.

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

July 24, 2023/31 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden /by emptywheel

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

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

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

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

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

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

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

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

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

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

That may not be related.

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

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

That night, Barr texted Will Levi to call ASAP.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

July 23, 2023/109 Comments/in 2016 Presidential Election, 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden /by emptywheel

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

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

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

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

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

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

That’s not how the FBI works.

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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