[NB: check the byline, thanks. /~Rayne]

Alexei Navalny, Russia’s opposition leader and founder of the Anti-Corruption Foundation, died today as a complication of Vladimir Putin’s trumped-up imprisonment.

Reports indicate Navalny died of an embolism, though no independent autopsy has been scheduled. Putin had previously tried to poison Navalny with nerve agent novichok, the same poison used against former double agent Sergei Skripal in 2018.

Navalny’s work documenting Russia’s corruption tweaked not only Putin but his underbosses and capos.

The example in the video above, centered on the family of Russian Prosecutor General Yury Chaika, offers a reason why Putin targeted Navalny: the Russian emperor is an organized crime overlord whose henchmen have hollowed out Russia.

This is a key reason, too, why Russia is engaged in a war of attrition against Ukraine. It can’t muster the military might to take out Ukraine because its defense department has been riddled with leaks siphoning off the resources needed to build a first world credible military, just as Chaika and his family have bled Russia’s law enforcement and tax revenue structure.

While we can thank this hollowing out for preventing an absolute blow-out against Ukraine, the Russian military as it exists continues to offer the corrupt regime opportunities to vacuum more resources out of the country.

Navalny’s continued existence was a threat to what was yet another of Putin’s war of attrition – the one of organized crime against the Russian people.

It has not helped that the Republican Party has been aiding and abetting Putin’s antidemocratic efforts against Russians by supporting Putin’s useful idiots, most especially Donald Trump.

It has not helped that useful idiots like Tucker Carlson have been so eager to kneel down before Putin and kiss his ring.

Former ambassador and academic Michael McFaul was blunt in his assessment: “Putin killed Navalny, let’s be crystal clear about that.”

Though Navalny had been declared a political prisoner by Parliamentary Assembly of the Council of Europe, Putin certainly did nothing to ensure the safety and longevity of Navalny, who had been transferred to high security penal facility IK-3 in late December 2023.

How convenient for Putin to have Tucker Carlson interview him the week before Navalny died out of the public’s view in thinly-populated western Siberia, providing a synthetic gloss of western approbation over Putin’s criminality.

Navalny may have lost this war of attrition but he was right: “Listen, I’ve got something very obvious to tell you. You’re not allowed to give up. If they decide to kill me, it means that we are incredibly strong.”

If Navalny had not continued to pose a threat to Putin’s regime, he would have been ignored.

On the day that Bill Barr aggressively intervened in the parallel impeachment inquiry and Hunter Biden prosecutions last summer, David Weiss’ office sent out a final deal that would resolve Hunter’s case with no jail time and no further investigation. Within weeks, amid an uproar about claims in an FD-1023 that David Weiss now says were false, Weiss reneged on that deal. With the indictment yesterday of Alexander Smirnov, the source of those false claims, Weiss confesses he is a direct witness in an attempt to frame Joe Biden, even as he attempts to bury it.

On June 7, 2023, Bill Barr went on the record to refute several things that Jamie Raskin described learning about Smirnov’s FD-1023. Specifically, the former Attorney General insisted that the investigation into the allegations Smirnov made continued under David Weiss.

It’s not true. It wasn’t closed down,” William Barr told The Federalist on Tuesday in response to Democrat Rep. Jamie Raskin’s claim that the former attorney general and his “handpicked prosecutor” had ended an investigation into a confidential human source’s allegation that Joe Biden had agreed to a $5 million bribe. “On the contrary,” Barr stressed, “it was sent to Delaware for further investigation.”

“It wasn’t closed down,” Bill Barr claimed. As I’ll show below, according to the indictment obtained under David Weiss’ authority yesterday, that’s a lie. “It was sent to [David Weiss] for further investigation,” Bill Barr claimed, not confessing that it was sent to Delaware on October 23, 2020, days after Trump had yelled at him personally about the investigation into Hunter Biden. According to Barr, Weiss was tasked with doing more investigation into the Smirnov claims than Scott Brady had already done.

In the Smirnov indictment, Weiss now says that he only did that investigation last year, and almost immediately discovered the allegations were false.

The same day the Federalist published those Barr claims, June 7, and one day after Hunter Biden attorney Chris Clark spoke personally with David Weiss, Lesley Wolf sent revised language for the diversion agreement that strengthened Hunter Biden’s protection against any further prosecution.

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.

That language remains in the diversion agreement Leo Wise signed on July 26, 2023.

According to an unrebutted claim from Clark, on June 19, 2023, Weiss’ First AUSA Shannon Hanson assured him there was no ongoing investigation into his client.

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

That day, June 19, was the first day Wise made an appearance on the case.

On July 10, a month after the former Attorney General had publicly claimed that his office sent the Smirnov FD-1023 to Weiss’ office for further investigation in 2020, Weiss responded to pressure from Lindsey Graham explaining why he couldn’t talk about the FD-1023: “Your questions about allegations contained in an FBI FD-1023 Form relate to an ongoing investigation.” The next day, Hanson fielded a request from Clark, noting she was doing so because “the team” was in a secure location unable to do so themselves. “The team” should have had no purpose being in a secure location; they should have been preparing for the unclassified plea deal.

By July 26, the same day Leo Wise signed a diversion agreement that said Hunter wouldn’t be further charged, he made representations that conflicted with the document he had signed, claiming Hunter could still be charged with FARA. That was how, with David Weiss watching, Wise reneged on a signed plea deal and reopened the investigation into Hunter Biden, leading to two indictments charging six felonies and six misdemeanors.

According to the Smirnov indictment, sometime in July (tellingly, Weiss does not reveal whether this preceded his letter to Lindsey Graham, whether it preceded the plea colloquy where Leo Wise reneged on a signed deal), the FBI asked Weiss’ office to help in an investigation regarding the FD-1023.

In July 2023, the FBI requested that the U.S. Attorney’s Office for the District of Delaware assist the FBI in an investigation of allegations related to the 2020 1023. At that time, the United States Attorney’s Office for the District of Delaware was handling an investigation and prosecution of Businessperson 1.

It is virtually certain that the FBI asked Weiss to pursue whether any leads had been missed in 2020, not whether Joe and Hunter Biden had been unfairly framed. That’s because Weiss cannot — should never have — led an investigation into how the Bidens were framed. He’s a witness in that investigation. 

So it is almost certain that the FBI decided to reopen the investigation into the FD-1023, perhaps based in part on Bill Barr’s false claims. It is almost certain that this investigation, at that point, targeted Joe and Hunter Biden. It is almost certain that this is one thing Weiss used to rationalize asking for Special Counsel authority.

And that’s probably why, when Weiss’ team interviewed Smirnov on September 27, Smirnov felt comfortable adding new false allegations.

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

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

Smirnov seemingly felt safe telling new, even bigger lies. In his mind, Hunter and Joe were still the target! Again, that is consistent with the investigation into Hunter Biden being reopened based off Bill Barr’s public pressure.

According to the Smirnov indictment, David Weiss’ team found evidence that proves Bill Barr lied and Scott Brady created a false misimpression — the former, to pressure him — Weiss — and the latter, in testimony to Congress that was also part of the pressure campaign against the Bidens.

Compare Bill Barr’s claim made on the day when Weiss agreed that Hunter would face no further charges with what the Smirnov indictment states as fact. The Smirnov indictment says that Scott Brady’s office closed the assessment, with the concurrence of David Bowdich and Richard Donoghue, which is what Jamie Raskin said (though Raskin said Barr himself concurred).

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

But Barr told the Federalist that it was not closed down, it was forwarded — by Richard Donoghue, days after the President yelled at Barr about this investigation (though he didn’t say that) — to David Weiss for more investigation.

It’s not true. It wasn’t closed down,” William Barr told The Federalist on Tuesday in response to Democrat Rep. Jamie Raskin’s claim that the former attorney general and his “handpicked prosecutor” had ended an investigation into a confidential human source’s allegation that Joe Biden had agreed to a $5 million bribe. “On the contrary,” Barr stressed, “it was sent to Delaware for further investigation.”

Had it been forwarded to David Weiss for more investigation, had he taken those additional investigative steps Barr claims he was ordered to do, Weiss would have discovered right away the key things that proved Smirnov was lying, the claims that Scott Brady had claimed to investigate, the things that the Smirnov indictment suggest he newly discovered months ago.

According to Scott Brady’s testimony to Congress, his team asked Smirnov’s handler about things like travel records and claimed that it was consistent.

Mr. Brady. So we attempted to use opensource material to check against what was stated in the 1023. We also interfaced with the CHS’ handler about certain statements relating to travel and meetings to see if they were consistent with his or her understanding.

Q And did you determine if the information was consistent with the handler’s understanding?

A What we were able to identify, we found that it was consistent. And so we felt that there were sufficient indicia of credibility in this 1023 to pass it on to an office that had a predicated grand jury investigation. [my emphasis]

According to the Smirnov indictment, Weiss’ team asked the handler the same question — about travel records. Only, they discovered that Smirnov’s travel records were inconsistent with the claims the handler himself recorded in the FD-1023.

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

44. The Handler provided investigators with messages he had with the Defendant, including the ones described above. Additionally, the Handler identified and reviewed with the Defendant travel records associated with both Associate 2 and the Defendant. The travel records were inconsistent with what the Defendant had previously told the Handler that was memorialized in the 2020 1023.

Tellingly, when Brady was asked more specific questions about Smirnov’s travel records, his attorney, former Trump-appointed Massachusetts US Attorney Andrew Lelling, advised him, twice, not to answer.

Q And did you determine that the CHS had traveled to the different countries listed in the 1023?

Mr. Lelling. I would decline to answer that.

[snip]

Q The pages aren’t numbered, but if you count from the first page, the fourth page, the first full paragraph states, 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 FD1023 during the relevant time period. The trips included a late 2015 or early 2016 visit to Kiev, Ukraine, a trip a couple months later to Vienna, Austria, and travel to London in 2019. Does this kind of match your recollection of what actions the Pittsburgh FBI Office was taking in regards to this.

Mr. Lelling. Don’t answer that. Too specific a level of detail

Q You had mentioned last hour about travel records.

Did your office obtain travel records, or did you have knowledge that the Pittsburgh FBI Office obtained travel records?

Mr. Lelling. That you can answer yes or no.

Mr. Brady. Yes.

If Brady obtained those travel records, he would have discovered what Weiss did: Neither Smirnov’s travel records nor those of his subsource, Alexander Ostapenko, are consistent with the story Smirnov told.

o. Associate 2’s trip to Kiev in September 2017 was the first time he had left North America since 2011. Thus, he could not have attended a meeting in Kiev, as the Defendant claimed, in late 2015 or 2016, during the Obama-Biden Administration. His trip to Ukraine in September 2017 was more than seven months after Public Official 1 had left office and more than a year after the then-Ukrainian Prosecutor General had been fired.

[snip]

34. Further, the Defendant did not travel to Vienna “around the time [Public Official 1] made a public statement about [the thenUkrainian Prosecutor General] being corrupt, and that he should be fired/removed from office,” which occurred in December 2015.

Paragraph after paragraph of the Smirnov indictment describe how the travel records — the very travel records that the handler and Scott Brady claimed corroborated the allegation — proved Smirnov was lying.

The record is quite clear that Bill Barr and Scott Brady made false representations about activities that directly involved David Weiss in 2020.

And yet Weiss has been playing dumb.

Abbe Lowell made a subpoena request and a discovery request relating to these matters on November 15. Lowell not only laid out this scheme in his selective and vindictive prosecution claim, but he cited the Federalist story in which Barr lied. He cited these matters in his discovery request.

Rather than acknowledging that Weiss’ team had discovered evidence that proved the claims of Barr and Brady were misrepresentations, Weiss’ team lied about the extent of Richard Donoghue’s role — documented in a memo shared by Gary Shapley — in forcing Weiss to accept the FD-1023 on October 23, 2022.

Next, defendant alleges that “certain investigative decisions were made as a result of guidance provided by, among others, the Deputy Attorney General’s office.” ECF 58, at 3 n.4. In fact, the source cited revealed that the guidance was simply not to conduct any “proactive interviews” yet.

And now, on the eve of Abbe Lowell submitting a reply on his motion to compel and a selective prosecution and discovery request in California, David Weiss has unveiled a belated indictment proving that Lowell’s allegations were entirely correct. The indictment may well provide excuse to withhold precisely the discovery materials Lowell has been demanding for months, and it may create the illusion that Barr’s pressure led Weiss to renege on a plea deal. But it is a confession that there was an attempt to frame Joe Biden and his son in 2020.

What David Weiss discovered — if he didn’t already know about it — is that he was part of an effort to frame Joe Biden in 2020, an effort that involved the Attorney General of the United States. If Merrick Garland is going to appoint Special Counsels for these kinds of things, one should be appointed here, especially given that Donoghue required the briefing on the FD-1023 days after Trump personally intervened with Bill Barr.

But David Weiss can’t lead that investigation. He’s a witness to that investigation.

Update: Fixed how long it took Weiss to renege on the deal after Bill Barr’s false claim.

See Hunter Biden’s Eight Legal Chessboards for links to all the filings.

David Weiss has indicted the informant behind an FD-1023 that Bill Barr used to justify the ongoing investigation into Hunter and Joe Biden. Weiss charged Alexander Smirnov with one count of false statement and one count of obstruction.

The indictment alleges that Smirnov lied about the meetings he did have with Burisma, and lied about what Burisma officials told him.

The indictment ties Smirnov’s efforts to frame Joe Biden with Rudy Giuliani’s efforts, though without naming Rudy. For example, the indictment describes that both before and after this article, Smirnov promised his handler that Biden would soon be going to jail.

But the citations of the article simply omit mention of Rudy.  

In describing the side channel that Barr set up, it attributed the project to Jeffrey Rosen, not Barr.

It omitted mention that the side channel was primarily set up so that Rudy could share information, including information from Russian spies. And it didn’t describe that, per Scott Brady, he found Smirnov’s report by seeking information on Hunter and Burisma.

Q And the original FD1023 that you’re referring as information was mentioned about Hunter Bidden and the board of Burisma, how did that information come to your office?

A At a high level, we had asked the FBI to look through their files for any information again, limited scope, right? And by “limited,” I mean, no grand jury tools. So one of the things we could do was ask the FBI to identify certain things that was information brought to us. One was just asking to search their files for Burisma, instances of Burisma or Hunter Biden. That 1023 was identified because of that discreet statement that just identified Hunter Biden serving on the Burisma board. That was in a file in the Washington Field Office. And so, once we identified that, we asked to see that 1023. That’s when we made the determination and the request to reinterview the CHS and led to this 1023. [my emphasis]

It describes that after Pittsburgh closed their assessment (something Bill Barr has public disputed), the FBI interviewed Smirnov again, and he lied again.

It doesn’t describe that after Smirnov changed his story, and days after (in October 2020) Donald Trump yelled at Bill Barr about Hunter Biden, Richard Donoghue ordered David Weiss to accept a briefing on the FD-1023.

And the timing of the claimed investigation stinks.

It claims that some time in July 2023, the FBI asked David Weiss to help investigate the source that Weiss had been ordered to integrate into his investigation years before.

It doesn’t mention that Weiss was already under pressure from Lindsey Graham to use the informant report against Hunter Biden.

The FBI interviewed Smirnov’s handler on August 29 of last year. They interviewed Smirnov on September 27, where — they allege — he told still more lies.

But they did nothing when Hunter Biden asked for discovery on this on November 15, repeatedly misrepresenting Richard Donoghue’s role in it.

They only indicted after Judge Mark Scarsi suggested, in a preliminary hearing on January 11, that he would provide discovery on matters outside of prosecutorial deliberations.

Now they can withhold the details of how David Weiss used “a little more colorful language” when he acquiesced to accepting other materials from Scott Brady.

Great! They indicted another of James Comer’s great hopes to impeach Joe Biden.

But there are few people left in DOJ who are more conflicted on this prosecution than David Weiss.

Update: Took out a reference to the September 2023 interview that was out of timeline.

I knew yesterday was going to be weird. I just didn’t know how weird.

Yesterday, the Hallmark holiday of Valentine’s Day fell on the Christian observation of Ash Wednesday — two very different kinds of days — and then the Kansas City Chiefs went and won the Super Bowl, which added the Chief’s parade and celebration rally to collide with the other two holidays. As the players were boarding the observation deck buses to start the parade, I noticed Chiefs kicker Harrison Butker, who had a cross of ashes on his forehead – a sign he had been to an early morning mass. Behind him was Taylor Swift’s boyfriend and future NFL hall of famer Travis Kelce. Ash Wednesday and Valentine’s Day, right at the heart of the Super Bowl victory celebration.

All around the metro area, schools were closed, in large part because a sizable number of teachers, custodians, bus drivers, and cafeteria workers informed their supervisors that they would be taking the day off, and nowhere near enough substitutes could be found even if the schools wanted to try to hold classes. Similarly, many businesses found the same dynamic with their people wanting to take the day off. Some closed completely, while others tried to make due with a skeleton staff. Estimates of the crowd size went as high as a million people, and traffic around the area certainly made that seem about right.

I was not at the event, but know many who were. I was watching the wall-to-wall coverage on KSHB television, the “home of the Chiefs”. They had reporters all along the parade route, all throughout the crowd, and sitting in midst of the crowd at the rally on an elevated open-air temporary broadcast booth.

The parade rolled out, and many of the players who started on the rooftops of the observation buses got out and walked the route, engaging with the crowd. They signed jerseys, took selfies, and high-fived with what felt like everyone in the front row of the street. They danced and shouted, tossed footballs back and forth with folks in the crowd, and did impromptu interviews with KSHB reporters along the route. And while the parade proceeded, musicians and DJs were amping up the crowd at Union Station who were waiting for them to arrive.

Union Station is a grand old railroad building that sits at the bottom of a massive bowl. To the south is a huge grassy area, which goes uphill to the US National World War I memorial that sits on one of the high spots of the whole city. In that bowl, hundreds of thousands of people had gathered to party. There were old folks, who remember Len Dawson and the first Super Bowl which the Chiefs lost and Super Bowl IV, which they won. There were young folks, who were there in 2020 for the parade and party right before everything shut down for COVID, they were there last year, and they were back again yesterday. There were also the folks in between, who missed the Len Dawson era, but lived through the fifty year drought between Super Bowl wins. There were rich folks and poor folks, lifelong Chiefs fans and newcomer Swifties, there were folks from all parts of Kansas City, from the majority African-American folks south of the Missouri River to the white folks north of the river to the Hispanic community on the west side. Folks from the suburbs were there, from both Missouri and Kansas. Folks from the Ozarks and the Flint Hills, folks from Nebraska, Iowa, Arkansas, and all across the country were there. They brought blankets and lawn chairs and coolers, filled with beverages and food to last the day. It was a joyful sea of red.

The MC for the rally was longtime KC Chiefs radio announcer Mitch Hulthus. He cast the day as a massive history lesson, which other speakers who followed picked up on. KC Mayor Quinton Lucas and Chiefs owner Clark Hunt both spoke of how the Chiefs had changed KC’s image with the world, noting how the Chiefs brought the NFL draft to KC last year and were instrumental in bringing the World Cup to KC in 2026. Missouri’s republican Governor Mike Parson was greeted with loud boos that pretty much battled with the volume on the PA system throughout his speech (boos from Kansas folks because he’s the Missouri governor and boos from the KC folks because he deserves it for his long history of disrespecting Kansas City). When the players took the stage, the crowd went nuts. Every player was grinning from ear to ear, and as the microphone was passed around, the word “Three-peat” echoed louder and louder, and their praise for the Chiefs fans grew ever stronger. Some players were eloquent, some had had one too many adult beverages along the parade route, and quarterback Patrick Mahomes and Mitch Hulthus seemed to be working to keep the rally going while at the same time trying to keep the folks who had overconsumed from falling off the front of the stage. Finally it came to an end, the music came up, and the crowd cheered and shouted and danced.

And then the shots rang out.

Some folks did not hear them at all. Others heard them as they echoed off the surrounding buildings, and wondered where they were coming from. But the folks near Union Station itself heard them, and knew where they came from. Older folks looked around, many wondering what to do, but all the kids didn’t hesitate. Instead of “duck and cover” drills at school that their elders grew up on, they have been living with “active shooter” drills at school for their whole lives, and they took charge and told their elders what to do. Everyone started running.

They jumped barricades and ran into Union Station, which had been blocked off as a staging area for the players, their families, and folks on stage. They jumped barricades on the edge of the bowl, and ran for the side streets. The reporters anchoring the coverage for KSHB threw the broadcast back to the folks at the station, and dropped to the floor of their elevated broadcast area which suddenly felt very exposed and dangerous. At past rallies, it took hours for the area to clear, but yesterday it felt like it emptied out in ten minutes. Left behind were strollers, backpacks, blankets, coolers, and tents. Cell phones were dropped, and there were random empty shoes.

I won’t say more about the deaths and injuries, as the numbers still seem to be shifting. I won’t say much about the shooters, save to say that three people have been taken into custody, no motive has been announced or is obvious from the context, and no description of the specific weapons used has been released.

At the now-routine press conferences afterwards, the familiar words were said. “We stand with the victims . . . We thank the first responders . . .  We pray for those in the hospitals . . . Here’s what we know about the status of the investigation . . .” Just as one press conference was ending, though, the police chief stopped walking away, and turned back to the microphone to make one more statement: “This is *not* Kansas City.” (start at the 11:40 mark)

Those five words touched a nerve.

Social media exploded in Kansas City, with many chiming in to say “this is *exactly* who we are.” Kansas City set a record last year for homicide deaths, largely involving guns. There is huge distrust in the police within the African American community, because of a pattern of racist (and deadly) police interactions with that part of Kansas City that finally forced the resignation of the previous police chief. Similarly, a non-trivial part of the white community thinks the police are being too lenient with “those people” and that is why violent crime is so bad. In one of the more racist parts of Kansas City, a young black youth named Ralph Yarl rang a doorbell, mistakenly coming to the wrong house to pick up his siblings (he had the right house number, but should have been one street over), and the elderly white homeowner shot him through his door. Kansas City has a pattern of using guns to settle beefs, to “stand your ground” when threatened by innocent folks, and to a non-trivial degree, don’t trust the police to help.

For all the talk that “the Chiefs bring people together” (or, more generally, “sports” or “the Super Bowl”, as Biden said in his post-shooting statement yesterday), this is not the first time gun violence has touched the Chiefs in a very personal way. Back in December 2012, well before the Patrick Mahomes/Andy Reid era, 3rd year linebacker Jovan Belcher came to the Chiefs facilities on a Saturday morning, got out of his car, and pointed a gun at his head. He told then-general manager Scott Pioli and other coaches that he had killed his girlfriend/mother of his child, Kassandra Perkins. They tried to talk him into putting the gun down, but Belcher pulled the trigger and killed himself. Police soon discovered that he had been drinking, and had been having relationship issues with Perkins. When the police went to her home, they found her dead – shot and killed by a different gun legally belonging to Belcher. Maybe I’m the only one who connected yesterday with Belcher and Perkins. I listened to the news coverage, and heard nothing. I ran an online search for mention of Belcher in the last 24 hours, and came up with *crickets*.

Despite KCPD Chief Graves’ words, guns and gun violence have become an ordinary part of ordinary life, and not just in Kansas City. We use them to end our own lives, when we feel things are so out of control in our lives that ending it all seems like the only solution. We use them to settle beefs in our homes, either by using them to threaten or using them to kill. We use them to settle beefs in our communities. We use them to settle beefs in our nation.

And all that world-wide coverage of the Chiefs that Clark Hunt and Mayor Lucas talked about is now going to come back to bite Kansas City. In Europe, every major shooting in the US makes folks wary about traveling here. Now, even as Kansas City worked hard to win the right to host several games in the 2026 World Cup, this shooting will make hosting those games that much more difficult — and not just in Kansas City. Who wants to risk their lives for a sporting event?

This was not the first shooting involving the Chiefs. It wasn’t the first shooting of the year in Kansas City, or even the first shooting of the day in Kansas City. As one local sports talk-radio host said yesterday, Kansas City has joined the list of cities where you say the name and everyone thinks about guns and violence and death, like Uvalde or Sandy Hook. When folks say “Super Bowl rally”, it will evoke the same memories as Marjory Stoneman Douglas High School (which happened on Valentine’s Day six years ago!), the Pulse Nightclub, and Columbine High School. This is who we are, now.

I’ll say it again: no, Chief Graves, this *is* who we are. It’s who we are, in Kansas City and across the country. The gun in that photo above lists for the low, low price of $2999.99 at Guns.com. It is, however, out of stock. Why doesn’t that surprise me?

Until we learn to argue with one another without leaping to violence, the question is not if there will be another shooting like this, but where it will be. I’m not one of those folks who were asking “how could this happen here?” yesterday. My question is simply “Who is next?”

________

Corrected to note that Ralph Yarl survived being shot. I inadvertently mixed up that shooting with another event.

Even if Judge Maryellen Noreika threw out the gun charges against Hunter Biden today, I’d be grateful for the recent squabble over Hunter Biden’s motion to compel, and not just for the endless amusement of seeing an experienced drug prosecutor like Derek Hines claim sawdust on a table saw is cocaine.

That’s because by providing what he thinks is solid proof that Hunter was an addict in 2018, Hines has revealed a bit about where such evidence exists among the digital evidence he has in hand and where it doesn’t.

Most significantly, for this case, it appears Derek Hines relied exclusively on the laptop to get the texts surrounding the period immediately after Hunter Biden bought a gun. Particularly given the turmoil in Hunter’s access to his devices in those precise days, without validation of the texts in an Apple database, that would make the texts far harder to use at trial.

As a reminder, the Apple data at issue comes from three places:

• An initial warrant dated August 29, 2019 to obtain all the contents of Hunter Biden’s iCloud account
• The December 13, 2019 warrant to access all the contents of the laptop obtained from John Paul Mac Isaac, which investigators used to access devices backed up to iTunes on it
• A follow-up warrant dated July 10, 2020 to access the backups of four devices saved to Hunter’s iCloud account, described in a fourth warrant as:
  • iPhone X (Apple Backup 1)
  • iPhone 6S (Apple Backup 2)
  • iPad Pro (Apple Backup 4)
  • iPhone XR (Apple Backup 11)

In December, Hines got a warrant to search the existing data for gun crime evidence, but did not go back to obtain a warrant to access any backed up devices — if they exist — that would be more appropriate to the gun charges.

Hines claimed, in his response to Hunter’s selective prosecution bid that, “the results of the search” of the laptop “were largely duplicative of information investigators had already obtained from Apple.” In his response to Hunter’s motion to compel, he claimed that, “Many of the same messages, photographs, and information that were obtained from the iCloud warrants were also located on the defendant’s laptop,” but made no representations about the reverse — whether all the messages present on the laptop were in the iCloud production.

It appears they were not.

This table shows my rough transcription the 28 items included in Hines’ exhibit of gun-related evidence. Let me know of errors, particularly with my time conversations between UTC and “Hunter time,” which I’ve assumed was PT for the earlier texts and ET for the later ones. I’ve bolded those instances where “Hunter time” is the day before UTC time. My transcription of the hex identifiers, where Hines included them, are especially likely to have errors (and only include the first identified hex for each item).

These items include:

Items 1, 26-28: Four pictures, all of which he has presented without hex identifiers or EXIF metadata. Two come from iPhone backups obtained from Hunter’s iCloud (one being the iPad on which items 28-25 were found); two (including the sawdust picture) come from what is described as an iPhone 11 backed up to iTunes, apparently found on the laptop; I’m aware of no public record of Hunter owning an iPhone 11. Note: for the reason zscoreUSA notes below, Hines’ label of the sawdust picture as an iPhone 11 must be an error, as those were first released on September 20, 2019, too late to be on the laptop, and only possible to be included in the iCloud returns if Hunter got one the day they were released and backed up everything to an iPhone 11. So it may be a typo for iCloud backup 11, which would be an iPhone XR. 

Items 2-10: Nine texts, dated between May and July 2018, obtained from iCloud Backup 1, which the warrant return describes as an iPhone X. Six of those, items 5 through 10, appear to record a drug transaction arranged over the course of a half hour overnight on July 25-26. While this backup is associated with an iPhone X of uncertain vintage (Hunter went through at least three iPhone Xes in 2018), seven items were obtained from a device called XRNASHUA, an iPhone XR; Apple did not introduce the iPhone XR until October 2018 and Hunter is not known to have obtained his first one until spring 2019, in New Haven, not Nashua. The only two communications obtained from an iPhone X, Items 3 and 4, used an unknown phone number. Item 2 is a WhatsApp text.

Items 11-17: These texts, showing exchanges between Hunter and Hallie Biden on October 13, 14, and 23, derive from what Hines describes as an iTunes Backup. Hines doesn’t identify of which phone — not even the device type — nor does the metadata included identify which phone Hunter used. Just one of the texts Hunter sent, item 13, is described as “delivered” after it was “sent.” I’ll return to these below.

Items 18-25: These texts came from an iPad Pro called “Robert’s iPad” which, based on the serial number included in Gus Dimitrelos’ report, was purchased in November 2015.

iPad Pro 12.9-inch (1st generation) Wi-Fi
Purchase Date: November 2015

Serial Number: DLXQL4EUGMLD

Emails released on BidenLaptopEmails dot com show someone logging into Hunter’s iCloud, Facetime, and iMessage with an iPad Pro on November 11, 2015, the same day Gus Dimitrelos shows it — named as Roberts, no apostrophe, iPad — logging into Hunter’s iCloud account. The next day, a pricy iPad pencil was ordered from Apple, though it was on backorder until January 2016. On May 20, 2016, Find my iPad was used to play a sound on an iPad called “iPad 206” twice. The process of signing into iCloud, then Facetime and iMessage with an iPad Pro, was repeated on September 11, 2016, what Dimitrelos describes as the first access by iPad 206, the one already associated with Hunter’s account earlier that year. On October 26, 2016, Find my iPad was disabled on iPad Pro 206 and on November 13, 2016 the cards were removed and the device was deleted — presumably, given that Find my iPad had been disabled, in person. Those same publicly released emails show no other iPad Pros logging for the first time into Hunter’s account, though in August 2018, an iPad (not identified as a Pro) was deleted, with that process completing in September 2018. But Dimitrelos shows four other iPads named either “Robert’s” or “Roberts” iPad logging into Hunter’s account (February 19, 2013, August 24, 2017, October 21, 2017, January 21, 2018). Of the texts included in Hines’ exhibit, which were sent between November 8 and December 27, 2018, just one, item 20, was marked as delivered and read, and it wasn’t one of the ones sent to probable family members.

I’ll leave the technical discussion there, in case anyone understands how Apple tracks iMessage texts or the difference between texts saved in ChatStorage and SMS.

But several general conclusions stick out. First, it’s likely that two of the devices for which Hines got a new warrant for drug crimes in December 2018, iCloud Backup 2, a 6S, and iCloud Backup 3, seemingly a different XR, had no communications pertinent to the year in question, 2018 [update: unless the explanation for Hines’ error in labeling photos as iPhone 11 is a typo for iCloud backup 11]. That will be of interest if Abbe Lowell ever gets to file a suppression motion, since there could be no probable cause to obtain content from an unrelated period. Second, it’s not clear that any of these devices were the devices on which the communications in question were sent. Hines’ best evidence of a drug purchase — those texts from July 25-26, 2018 — would probably have been sent in an iPhone X and then synched onto an iPhone XR purchased quite a bit later. As with all the other digital evidence Hines seems not to have thought through, given how often Hunter lost devices with access to his iCloud account and how rarely he reset it, it’s not enough to show that texts saved through Hunter’s iCloud showed evidence of a drug purchase. You would have to show that the phone on which those texts were originally sent was in Hunter’s hand at the time the texts were sent.

And this problem is especially fraught for those October 13-14 texts sent between Hallie and Hunter in October 2018, by far the most important evidence for his case. Here’s how they fit in with the timeline I laid out here, showing how Hunter responded after realizing he had misplaced both his main phones on October 11. The two main texts (in bold below) appear to have been sent before Hunter first logged into his new replacement iPhone and before he changed his password, even while people were clearly trying to break into some of his accounts. So prosecutors would have to prove that those texts weren’t sent by whoever inherited the phones Hunter had just lost.

Timeline

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

joey

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

joey

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

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

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

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

October 13 10:30PM: I’m now off MD Ave behind blue rocks

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

October 14, 5:37AM: I was sleeping in a car

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

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

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

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

October 14, 7:48PM: (Email from Joey) “Overcoming myself”

When you have a minute, read ….

Open my shared note:

I’m close to bed, so I won’t read it here, but here is Jack Smith’s SCOTUS response on Trump’s immunity claim. This was Trump’s appeal.

Remember that this was technically an application for a stay, not the entire appeal (though one option for SCOTUS is that it treats Trump’s request as a cert position). What Jack Smith is arguing is that the stay should be lifted.

As Garrett Ziegler was confessing, again, to have accessed a password-protected phone backup (for which Hunter Biden is suing him), he described that this is a photo of a photo in the office of then-still licensed psychiatrist Keith Ablow, which Ablow sent Hunter Biden, explaining that the photo came from an expert carpenter who was trying to kick a coke habit.

Ziegler was even kind enough to include the June 2, 2022 extract date of the iPhone XS iTunes backup where he found the picture, even while bitching of the dishonor and incompetence of David Weiss and his team.

David Weiss says the picture isn’t one of sawdust passed on by Keith Ablow. He says it’s a picture that Hunter Biden took himself of “apparent cocaine” sometime in late 2018.

During November and December 2018, the defendant took multiple photographs of videos apparent cocaine, crack cocaine, and drug paraphernalia.

Weiss doesn’t provide a date for the photo. But he says it came from an iPhone 11 backup stored to iTunes, though he’s not telling whether he found it in an iTunes backup in Hunter’s iCloud account obtained in September 2019, or an iTunes backup found on a laptop attributed to Hunter Biden obtained in December 2019.

iTunes Backup (iPhone 11) – Production 1

Now, perhaps it’s a good thing that David Weiss didn’t know he was (at least per Ziegler, who — bizarrely — has more credibility than the people who have a stack of warrants and lots more metadata) falsely claiming that this picture depicted cocaine. Perhaps that means he didn’t breach Hunter’s privileged communications with Ablow and read what the then still-licensed psychiatrist had to say to his client.

But he has just made the competence of his team’s forensic analysis an issue, and done so in a filing in which Derek Hines appears to be claiming they don’t need any expert forensic reports.

In the motion to compel to which Hines was responding, Abbe Lowell had claimed that Weiss had not turned over any expert reports.

Mr. Biden requested the ongoing production of all materials subject to disclosure under FRCP 16(a)(1)(A), (B), and (D). (See DE 65.) Mr. Biden notes that his October 2023 Rule 16 requests also cover any expert reports that the prosecution intends to rely upon at trial; to date, however, no expert reports or materials have been identified or produced to defense counsel.

The prosecution produced a Delaware state police case file, which includes a summary of an interview Mr. Biden gave police in October 2018 and other information about the purchase, discard, and recovery of the firearm, as well as evidence photos from its case file. The prosecution also produced an ATF case file that has additional information about the firearm and statements about its purchase. Mr. Biden asks the Court to order the prosecution to either (1) confirm no further responsive documents or communications exists in its possession (which includes material in the possession of all relevant government agencies and officials), or (2) produce the requested documents (including any expert reports) and, if the prosecution believes any responsive documents are protected from disclosure, identify those documents and the reasons why the prosecution believes they need not be disclosed.

Not true!, responded Hines in the filing where he appears to have claimed a photo of sawdust taken by a Keith Ablow client was instead a photo of cocaine taken by Hunter Biden.

Hines described that the prosecution has provided two expert reports: that of the FBI chemist who — five years after the gun was seized — found cocaine residue in the pouch in which the gun was found, but didn’t look for fingerprints or try to date the cocaine.

The defendant does not allege any Rule 16 materials are missing from the productions other than one assertion that, “to date, however, no expert reports or materials have been identified or produced to defense counsel.” ECF 83 at p 6. He is incorrect. On November 7, 2023, the government produced to the defendant an expert report prepared by an FBI chemist who analyzed the cocaine discovered on the defendant’s brown leather pouch that had contained his gun.1 In this same production, the government also produced an expert report prepared by an agent related to the interstate nexus of the gun charged in the indictment.2 In addition to these reports, the government produced other materials for these two experts, including CVs, as well as a CV for an additional expert.3 By contrast, the defendant has failed to provide any discovery, including any expert discovery.

In addition, prosecutors provided the CV for the witness who’ll attest the gun had a nexus to interstate commerce and the CV for … Hines isn’t describing what kind of witness that is.

But there are at least four reports I expected to see that are missing:

• The FBI agent John Paul Mac Isaac calls “Matt” who (at least per JPMI, who like Ziegler might be as reliable as Weiss at this point) described trying to boot up the laptop on December 9, 2019, four days before the known warrant to access the laptop
• The FBI Computer Analysis and Response Team analyst named Mike Waski, from whom Josh Wilson claims to have obtained the laptop after he had already obtained the laptop four days earlier from JPMI
• The FBI CART analyst, Eric Overly, who actually imaged the hard drive, which Gary Shapley notes happened after December 13; there may be a different CART analyst who imaged the laptop itself who would be on the hook for another expert report
• A March 31, 2020 email about the completeness of the disk image that JPMI had done, which prosecutors were withholding from any agents who might testify at trial but which Shapley has kindly informed us exists
• Any analysis “computer guy” did after October 22, 2020, which is when the FBI realized they had never bothered to check when files had been added to the laptop they had been using for ten months

Those kinds of expert reports are precisely what might have spared poor Senior Assistant Special Counsel Derek Hines from apparently claiming that a photo of a photo of sawdust taken by Keith Ablow is instead a photo of cocaine taken by Hunter Biden.

For example, here’s how Gus Dimitrelos used EXIF data — EXIF data he says he found on most or all of the photos Hunter took — to validate photos to Hunter on the laptop attributed to him.

In this case, Dimitrelos matched the photo to a known iPhone Hunter used and a known location he was at on a particular date and time.

To use photographs to attribute to Hunter Biden cocaine use, those photos are not only going to need to depict cocaine rather than sawdust, but they’re going to need to be accompanied by the kind of forensic data that could prove that a particular phone taking a picture was in Hunter’s hand at the time a picture was taken.

That’s particularly true in this case. Ziegler shows that Ablow texted this photo to Hunter on November 20, 2018.

That happens to be the day when someone first accessed Hunter’s droidhunter account — the one via which his digital life would be packaged up two months later — from a Mac device for the first time after the laptop ultimately shared with the FBI was first logged into Hunter Biden’s iCloud account.

But based on what is available on the public emails, after someone logged into Hunter’s iCloud account with a new laptop on October 21, 2018, it was weeks before a new Mac device logged into his Gmail accounts, starting with a November 16 attempt to log into Rosemont Seneca that was rejected by Google, followed by a reset of the droidhunter account and a login into that on November 20, followed by a login into Rosemont Seneca on November 24. Not only did those attempts come in the midst of a bunch of attempts to get into Hunter Biden’s Twitter account from a Mac. But on November 27, someone appears to have gotten into his iCloud account from Troutdale, OR.

That is, because this text was sent during a period when some crucially important anomalies were happening on Hunter Biden’s digital accounts, you’d need to ensure that whatever device with which Hunter seemingly engaged in this exchange with Ablow was actually in his hand in Newburyport, MA, and not in someone else’s hand in Troutdale, OR. That’s especially important with any conversation with Ablow, because in at least two known conversations — one in which he created the illusion for Hunter that he was speaking to some orthopedic surgeons, and another in which he entirely rewrote a Hunter comment subsequently published in Vanity Fair — Ablow presented as Hunter.

And by claiming a photo of sawdust taken by an Ablow client is instead a photo of cocaine taken by Hunter Biden, Derek Hines may have spoiled his effort to sand-bag Abbe Lowell and avoid a suppression challenge to all this digital evidence. Sure, Hines is claiming that Lowell missed his window to file a motion to suppress by December 11, 2023. But he apparently just claimed that he hasn’t validated the data he’s submitting, as an officer of the court, in filings before Judge Maryellen Noreika. And with this apparent flub, Hines has definitely made the importance of expert forensic reports an issue.

It appears increasingly likely that before Jim Jordan demanded a prosecution of Hunter Biden and before David Weiss started to worry about threats to his family, Weiss or someone who knew better realized that any prosecution that would rely on this digital evidence would be rife with these kinds of embarrassments. But then Weiss decided he’d go forward anyway, he’d bring in experts in prosecutorial dickishness to try to sandbag their way through the difficulties posed by the laptop.

Don’t get me wrong: Hines and Leo Wise have well earned their reputation for prosecutorial dickishness. This effort to avoid any suppression challenge relating to the laptop might yet succeed!

But without the least little understanding of digital forensics, that may not be enough to sustain this case.

Update: According to someone familiar with Ablow’s office in this period, the photo does appear to match one that was in the office. That’s important because the FBI and DEA would have photos of Ablow’s office from the 2020 raid.

Update: We’ve literally come full circle. Fox News is in a tizzy because of these photos, though they appear more careful than DOJ to claim the sawdust is Hunter’s.

 

For years, there have been questions about whether, and if so how, Hunter Biden could ever be prosecuted using evidence from the laptop. As I noted here, David Weiss and Derek Hines revealed how they intend to do that yesterday. The answer is, by engaging in unbelievably dickish sandbagging of the President’s son.

The ploy involved two steps. First, prosecutors provided Hunter digital evidence in October, with warrants only for tax crimes. At that point, there was no reason to assess those warrants for suppression, because they did not permit searches for gun crimes.

Then, exactly seven days before the motions deadline in the case, they provided a new warrant, for the first time presenting a warrant covering gun crimes. They now claim that because Abbe Lowell did not move to suppress the laptop by that motions deadline seven days later, he has waived his opportunity.

I’m not saying that this kind of ethically problematic gimmick won’t work, nor am I saying it only happens to privileged white men like Hunter. But it is shocking that that is how they plan to bury legal and forensic problems with evidence from the laptop.

I think it likely Lowell may respond by saying there are a whole bunch of things — such as evidence the FBI conducted analysis long before they obtained the laptop and determined John Paul Mac Isaac had unlawfully accessed it and known forensic reports describing problems with the data — that he should have been provided. I expect Lowell will point to this gimmick and describe that it is proof these men are no longer entitled to the presumption of regularity, and therefore the gun charges should be reviewed for vindictive prosecution.

Lowell may also point out that evidence Joseph Ziegler made public shows that a key premise behind this gimmick is false.

Part of Hines’ gimmick is a claim that investigators could, and — the response suggests — did, find evidence pertaining to gun crimes while seeking evidence of Hunter’s state of mind pertaining to the tax crimes.

The warrant authorized investigators to search for the same violations referenced in the previous paragraph, that is, violations of 26 U.S.C. § 7201, Tax Evasion, 26 U.S.C. § 7203, Willful Failure to File Tax Returns or Pay Taxes, and 26 U.S.C. § 7206(1), False Tax Returns. Relevant to this case, this warrant also authorized investigators to seize “evidence indicating the state of mind of the owner and user of the TARGET MACBOOK PRO and TARGET EXTERNAL HARD DRIVE as it relates to the crimes under investigation.” Again, evidence that showed the defendant’s addiction to controlled substances indicates “the state of mind of the owner and user of the TARGET MACBOOK PRO and TARGET EXTERNAL HARD DRIVE as it relates” to the to the tax crimes enumerated in the warrant.

Except Joseph Ziegler helpfully told us what he looked for with that very same warrant when he provided the filter term document to Congress. While he included “halliebiden” (meaning a few of these texts might come in), porn, and girl, he did not include drugs, cocaine, crack, or any other drug-related term.

Cathay

Cathay Bank

CEFC

Cooper

debit

deduction

Dennis Louis

Devon

Dhabi

Dodge

draw

That is investigators wouldn’t find most of these communications as part of the tax investigation.

In fact, Garrett Ziegler has identified several that involve Hunter’s then still licensed psychiatrist, Keith Ablow, which would have been filtered, and aren’t drugs at all.

Again, to be clear, Hines intends to bypass all scrutiny of the laptop with his unethical sandbagging, and he might get away with it.

But in the process, he’s making claims refuted by public evidence.

 

The text for the next posts is Chapter 9 of Hannah Arendt’s The Origins Of Totalitarianism, titled “The Decline of the Nation-State and the End of the Rights of Man”. It’s a short chapter, 37 pages, and can be read as a stand-alone essay. I didn’t discuss it in my series on the book, partly because I didn’t think about its relevance to our current situation. I did remember her discussion of the Rights of Man; and rights are the subject of the current series.

Pre-WWI context

The book focuses on Europe, and ignores much of the rest of the world. The first chapters discuss anti-Semitism and imperialism. Both cover the period from the mid-19th Century and the early 20th. During that time most of Europe coalesced into one of two types of states, nation-states and empires, with the boundaries created by the 1815 Treaty of Vienna as a starting point..

Western Europe was mostly organized into nation-states. Here’s the Wikipedia definition:

A nation-state is a political unit where the state, a centralized political organization ruling over a population within a territory, and the nation, a community based on a common identity, are congruent.

The term “common identity” means roughly cultural homogeneity, so I use the term cultural group instead of nationality. The term nation-state itself isn’t widely used today, perhaps because there aren’t many, if any, today.

The other form, empire, included Austria-Hungary; the Czarist Empire; and, thought it’s not wholly in Europe, the Ottoman Empire. Each of these included a large number of culturally dissimilar groups, including different language groups. Many of these groups had at one time lived in their own Nation-States, including, for example, Poland and Ukraine. Cultural groups in these empires did not have national sovereignty, and often were mixed in with other groups or jammed up against others without formal borders. Ancient animosities persisted for generations. We can see it in recent history, as the break-up of Yugoslavia and Czechoslovakia after the fall of the Soviet Union.

WWI and its aftermath

Arendt describes the impact of World War I as an explosion. I usually think of WWI as a trench warfare stalemate between the English and French and later the Americans against the Germans, but across the European continent and into what we now call the Middle East, there were battles among all of the smaller cultural groups, and destruction aimed at revenge for ancient, if not forgotten, insults. Among the larger groups on the move were Armenians facing genocide by the flailing Ottoman Empire, Poles, Ukrainians, Balkans, the list is endless, and that’s just in Central and Southern Europe. Many Germans lived in the outskirts of the Austria-Hungary Empire, and they were forced out or ran for their lives. And, of course, Jews across the continent were assaulted and expelled.

The war ended in 1918, and the struggle to reorganize European states began. The basic idea was to create nation-states for the large populations, giving them defined borders and international recognition. This animated map gives an idea of the major changes in Europe. One group of people in each successor state was put in charge, and the other large minorities were assumed to somehow participate in the government, as, for example, the Slovaks in Czechoslovakia.

The enormous numbers of migrants were to be protected by the Minority Treaties, which all the new nations except Czechoslovakia signed. These offered some protection, enforceable by the League of Nations. That didn’t happen. The choice faced by the migrants was to assimilate, or to be treated as stateless people. Naturally, many didn’t like that choice.

There were two groups of stateless people: those whose nations had disappeared, like the people formerly in the Austria-Hungary Empire, and those who could not return to their homelands because they’d be murdered, like the Armenians. The Jews fell into both camps.

The entire approach was, in Arendt’s word, “preposterous”. The outcome was obvious. The minorities and stateless peoples were horribly mistreated by the dominant group. At best the minorities were forcibly assimilated, their own culture lost. At worst they were preyed on by an unchecked police force and their new neighbors. The demands of cultural groups, many of which had never controlled their own states, for self-determination were frustrated. This project was doomed, as was the whole idea of a viable nation-state for every aspiring national group.

Ultimately, the interests of nationality dominated the states across Europe. Law itself became subordinate to the demands of dominant nationalistic cultural groups. And the odd part is that across Europe about this time, the idea of self-determination for these cultural groups was gaining ground.

The Rights Of Man

The concept of the Rights Of Man springs from the American Declaration of Independence and the Declaration of the Rights of Man and the Citizen, a document of the French Revolution.  The idea is that from birth all men are equal before the state, all are entitled to certain rights, including life and liberty, and participation in self-government. This last is critical: the state exists to insure the Rights of Man to all. As Jefferson put it: “… to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”.

The Rights of Man is a lovely sentiment. But it turns out that the second part is crucial: there are no Rights of Man without a state that can and will enforce them. High-minded principles are useless in the face of a marauding police force.

Discussion

Several of the books I’ve been writing about here, and reading but not writing about, provide evidence that in-group/out-group hostility has roots in our evolution. For example, Michael Tomasello in The Evolution of Agency says that socially normative agency, the kind he attributes to human beings, is tied to the community of which our ancestors were members. Tomasello says that individual humans can’t survive on their own, that they must belong to a group for survival. He attributes this to the inter-group struggle for scarce resources.

Even if this were true for our ancient ancestors, it doesn’t explain the hatreds we see today. Conflicts over religion, national origin, racial differences, aren’t about resources or physical needs. They’re purely abstract, purely created by us humans. Of course it matters to the rich and powerful. But why would it matter to an IT professional or a goat farmer?

What difference does it make to me who you worship or whether you worship anyone or anything? Why would it matter if long ago some Armenian Hatfield got cross-ways with some Turkish McCoy? Why does some Dublin Catholic boy care who some Derry girl worships or how? Name an inter-group conflict and ask what its basis is. It’s not going to be about whether there’s a tree with ripe fruit or a river full of fish. It’s going to be some mental construct.

It seems to me there’s a deeper issue here. If you were to go to Beijing or Delhi or Harare or Buenos Aires and pick a pair of twenty-somethings, I bet you could plop them down in Pittsburg or Mexico City and except for language you wouldn’t notice them as you walked by. They’d have no problem finding food they liked, and they might even learn to love brats or pork in molé sauce.

Killing people over abstract ideas is stupid and pointless. Worse, it’s going to make it impossible to solve the worldwide problems we’ve created with climate breakdown. Right now, there’s pressure on the poor in equatorial regions to move to more temperate climates. Some of the pressure is grotesque governments, some is hunger, some is massive climate change. Think what will happen when the gulf stream stops. The pressure will be the other way, people from the north will want to move south. These problems aren’t solvable if we don’t grow up as a species. These are real problems, not the fake culture war gibberish spouted by the right wing, not abstract ideas about the proper way to worship the proper Deity.

In response to Hunter Biden’s notice of the schedule in California submitted in his Delaware case, Judge Maryellen Noreika asked what was up with Biden’s motion to compel submitted more recently.

ORAL ORDER re 84 Status Report – Having reviewed Defendant’s status report, which states that his motions to dismiss are fully briefed but is silent as to his most recently filed motion to compel discovery (D.I. 83), IT IS HEREBY ORDERED that, on or before February 14, 2024, the parties shall notify the Court whether the parties have reached an agreed-upon briefing schedule for the recent motion to compel or whether briefing will proceed pursuant to the Court’s Standing Order Regarding Responses to Defense Motions in Criminal Cases. ORDERED by Judge Maryellen Noreika on 2/13/2024.

David Weiss responded by explaining his legal basis for accessing Hunter Biden’s dick pics and claiming that Abbe Lowell has forfeited any ability to challenge evidence thus seized. It reveals how Weiss plans to introduce evidence from stolen data that was originally accessed without a warrant in a case against the son of the President of the United States.

It is breathtaking in sheer ethical shoddiness.

And, it may work.

Derek Hines describes that he provided Abbe Lowell the tax warrants to access the iCloud, the laptop, and backups in October, and that because those warrants permitted the search for the what the warrant claims was the email account owner’s state of mind, then searching for evidence of addiction was fair game.

Relevant to this case, investigators were authorized by these warrants to seize “evidence indicating the email account owner’s state of mind as it relates to the crimes under investigation.” Evidence that showed the defendant’s addiction to and use of narcotics indicates “the email account owner’s state of mind as it relates” to the tax crimes enumerated in the warrant. In addition, investigators were also permitted to seize evidence relevant to this case under the plain view doctrine, which they did. This evidence, from the defendant’s backups of his devices to his iCloud account, was produced with the warrants in Production 1 in an easily searchable format. The primary source of electronic evidence in this case is from the defendant’s iCloud account, which investigators were authorized to seize because it showed “the email account owner’s state of mind as it relates to the crimes under investigation” as well as under the plain view doctrine.

Production 1 also included the contract the defendant signed when he dropped off his laptop and hard drive at the computer repair store in which he agreed that, “[e]quipment left with the Mac Shop after 90 days of notification of completed service will be treated as abandoned.” Investigators also obtained a search warrant authorizing them to search the laptop and hard drive that was obtained from the computer repair store. See District of Delaware Case No. 19-309M, issued on December 13, 2019. The warrant authorized investigators to search for the same violations referenced in the previous paragraph, that is, violations of 26 U.S.C. § 7201, Tax Evasion, 26 U.S.C. § 7203, Willful Failure to File Tax Returns or Pay Taxes, and 26 U.S.C. § 7206(1), False Tax Returns. Relevant to this case, this warrant also authorized investigators to seize “evidence indicating the state of mind of the owner and user of the TARGET MACBOOKPRO and TARGET EXTERNAL HARD DRIVE as it relates to the crimes under investigation.” Again, evidence that showed the defendant’s addiction to controlled substances indicates “the state of mind of the owner and user of the TARGET MACBOOK PRO and TARGET EXTERNAL HARD DRIVE as it relates” to the to the tax crimes enumerated in the warrant. In addition, investigators were also permitted to seize evidence relevant to this case under the plain view doctrine. Evidence seized pursuant to this warrant was produced to the defendant in the specific format that he requested. Many of the same messages, photographs, and information that were obtained from the iCloud warrants were also located on the defendant’s laptop. [my emphasis]

In other words, for months, they were claiming that they had found evidence of addiction in the name of searching for tax crimes and if not that, then plain view and that’s all they were relying on while searching Hunter Biden’s dick pics for five years.

Plain view is the concept that if you see evidence of a crime while looking for other crimes, you can use that evidence at trial (usually, after getting another warrant).

Derek Hines described (there are ways to prove this is false, if Lowell gets his shot to do that, but Hines claims he has forfeited that chance) sniffing Hunter Biden’d dick pics for years, all in the name of tax crimes.

Then, Hines described, he got the December 4 warrant for the very same information, and Abbe Lowell acknowledged seeing it on December 5, which gave them another legal authority to sniff Hunter Biden’s dick pics.

On December 4, 2023, investigators obtained an additional search warrant for the defendant’s iCloud account, the backup data associated with his iCloud account, his MacBook Pro laptop, and the hard drive. See District of Delaware Case No. 23-507M, issued on December 4, 2023. This warrant authorized investigators to search for violations of 18 U.S.C. § 924(a)(6) and 924(a)(2) related to making a false statement during a background check to deceive a firearms dealer, violations of 18 U.S.C. § 924(a)(1)(A) related to making a false statement during a background check on records that the firearms dealer was required to maintain, and violations of 18 U.S.C. 922(g)(3). Among other items, the warrant authorized investigators to seize “all evidence relating to addiction, substance use, and controlled substances, to include conversations, message communications, photographs, documents, and videos.” The December 4, 2023, warrant provided yet another legal basis for investigators to seize information relevant to this case from the defendant’s iCloud account, his iCloud backup files, his laptop, and his external hard drive. The warrant was produced to the defendant that same day, December 4, 2023. The following day, December 5, 2023, defense counsel sent the government a letter that acknowledged it had reviewed this search warrant. Because the actual evidence relevant to this case that was previously seized from the laptop, hard drive, and iCloud backup files had already been produced to the defendant on October 12, 2023, there was no additional evidence produced in response to this warrant.

Effectively, Weiss is saying that because Lowell did not immediately move to suppress the laptop and its progeny with just six day’s notice, that claim has been mooted.

The defendant’s pretrial motions were due on December 11, 2023. ECF 57. The defendant did not file any motions seeking to suppress evidence related to the search warrants and evidence produced to him on October 12, 2023, in Production 1. The December 4, 2023, warrant does not entitle him to file any now. In fact, the December 4, 2023 warrant moots any issues that could have been raised by the defendant had he filed a motion to suppress those warrants, and, in any event, he did not elect to file motions to suppress the evidence from the August 29, 2019, December 13, 2019, or July 10, 2020 warrants that were produced to him on October 12, 2023.

As I will show, the places where they obtained communications are themselves problematic, but if this claim that the December 4 warrant moots any suppression claim works, then Lowell will have no opportunity to challenge the fact that David Weiss wants to use stolen data to prosecute the son of the President except by challenging individual communications at trial.

I’ve literally never seen something this ethically brazen. Ever. (Though admittedly, I only cover federal trials; this kind of stuff goes on in state cases all the time.)

And they’re doing it to get away with investigating Joe Biden’s son for years using stolen data.