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David Weiss’ Exhibit List Looks Like One Matt Gaetz or James Comer Would Assemble

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David Weiss’ team has submitted its exhibit list for Hunter Biden’s Los Angeles tax prosecution (as well as their motions in limine, which were — with the exception of a request to exclude mention that Hunter paid his taxes in 2021 — mostly uncontested).

The exhibit list includes a number of things that were expected — including:

  • Almost 40 exhibits pertaining to Hunter’s ex-wife Kathleen Buhle and their contentious divorce
  • Documents pertaining to Jeffrey Gelfound, the accountant who did Hunter’s taxes in 2020, who will almost certainly be a key witness on the most serious tax evasion charges
  • Payment records to Lunden Roberts, Hunter’s expensing of which is one of the most compelling pieces of evidence of intentional tax evasion

But it also includes a number of frothy right wingers’ favorite documents.

There is a Tony Bobulinski email that incorporates the “10 for the Big Guy” email — possibly an attempt to show that Hunter didn’t object to that claim, a complaint that comes straight from Matt Gaetz during Hunter’s testimony.

The indictment makes much of the fact that Hunter cut his partners out of this deal; there are multiple pieces of evidence that show one reason he did was he didn’t like Bobulinski’s Russian ties, which if David Weiss wants to talk about Bobulinski’s Trump and Viktor Vekselberg ties, by all means, let’s have it.

In any case, it doesn’t relate to non-payment of taxes, particularly not in 2018.

There are two references to the SDNY Patrick Ho docket — apparently to the docket itself, not the filing that redacted the name of someone believed to be Hunter.

Hunter did get a huge payment from Ho, ostensibly to find legal representation for Ho’s case. At a time when CEFC was recruiting Trumpsters like James Woolsey, Ho also kept ties with Hunter who — in 2018 — could be of no use to him (which is why CEFC was instead focusing on Woolsey).

Ho has recently claimed — for the benefit of frothers in Congress — that Hunter did nothing for huge payment he got for arranging legal representation in this case. It’s a remarkable claim at this late date and would be still more remarkable if introduced in a tax case.

And finally, prosecutors have included an email that probably dates to 2015 regarding the consulting set up with Blue State Strategies.

On top of the fact that 2015 is not a charged tax year (indeed, the indictment says Hunter declared his 2015 Burisma income) and DOJ reviewed this for years and years and never substantiated a FARA charge, it is likely one of the almost 10% of documents that Joseph Ziegler sourced to the laptop. As I described in this post, the email I have in mind showed up in somebody’s mailbox recognizing “Burisma” as “Burials.”

Prosecutors had moved, with no objection, to prohibit Hunter from arguing that the prosecution team got sucked in by a Russian influence operation (in context, it was a reference to Alexander Smirnov). But if they’re going to rely on one of the most anomalous emails, potentially one only available on a laptop suspiciously similar to the one Lev Parnas said was being dealt by Burisma, the question of Russian influence operation should remain on the table.

Of these documents, only the Ho payment is even directly relevant to the 2018 taxes. And each of these documents would create all sorts of discovery problems and mini-trials about misrepresentations of Hunter’s motive.

Prosecutors have not yet filed their 404(b) notice; perhaps they want to turn the non-crime of monetizing a famous name into a crime?

Or perhaps David Weiss simply wants to use his tax case to feed right wing frothers during an election season.

Hunter Biden Moves to Enjoin David Weiss Under an Appropriations Argument Trump Adopted

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Abbe Lowell has moved to enjoin David Weiss from spending any more unappropriated funds in the prosecution of Hunter Biden.

Mr. Biden moves to enjoin the Special Counsel’s investigation and prosecution of him from now into the future because the Special Counsel lacks a valid appropriation from Congress. Previously, Mr. Biden moved to dismiss the indictment as the tainted fruit of past Appropriations Clause violations (D.E.62). Had that motion been granted, no future violation would have occurred. That said, the Special Counsel insisted dismissal was not the proper remedy and that alleged Appropriations Clause violations “are ‘best seen as requests for injunctions.’” (D.E.72 at 24 (quoting United States v. Bilodeau, 24 F.4th 705, 711 n.6 (1st Cir. 2022)).) Although Mr. Biden preferred dismissal as a remedy (i.e., how could one enjoin past violations?), he did not object to injunctive relief, explaining: “Under either view, this case could not proceed, so it is unclear how the Special Counsel’s preferred remedy would benefit him.” (D.E.80 at 16.) This Court, however, found no Appropriations Clause violation, so it did not reach the question of the appropriate remedy. (D.E.101.) 1

1 At this morning’s hearing, the Court questioned the timeliness of this Motion. As explained above, the Motion is timely because the prior motion to dismiss the indictment was for past Appropriations Clause violations and Mr. Biden now seeks to enjoin future constitutional violations. While the time has passed for Mr. Biden to bring pre-trial motions to dismiss based on the Special Counsel’s past decision to indict, nothing prevents Mr. Biden from seeking to enjoin future constitutional violations. The Special Counsel cannot be given a blank check to indefinitely spend unappropriated federal funds in violation of the Appropriations Clause. The need to explicitly seek injunctive relief did not arise until the Third Circuit Motion Panel’s May 9, 2024 decision dismissed the appeal under 28 U.S.C. § 1292(a) because injunctive relief was not explicitly requested, and the Court declined to hear Biden’s claim for relief at law (dismissal) on an interlocutory basis. Parties frequently seek to cure defects identified by opinions, for example, plaintiffs often file amended complaints and prosecutors file superseding indictments following motions to dismiss all the time, and the situation is no different here. Additionally, the prior scheduling order for pre-trial motions were for motions to dismiss. (D.E.57.) The parties clearly understood there were other “pre-trial motions” that would be filed addressing future issues and this Court set a new schedule for addressing some of those issues (D.E.117 (e.g., motions in limine, expert disclosure motion)), and the Special Counsel filing several such motions in limine this morning. The Court has not limited the Special Counsel orMr. Biden’s from objectingto any kind of future conduct.

Lowell is doing so because the Third Circuit order finding that none of Hunter’s appeals merited interlocutory jurisdiction rejected his challenge to Weiss’ Special Counsel appointment (which argued both the appointing a sitting US Attorney SCO violated DOJ’s own rules and also that Weiss’ appointment was not appropriated) in part because Judge Noreika had not formally refused his injunction.

In the defendant’s third motion to dismiss, he argued (1) the prosecuting U.S. Attorney’s appointment as a special counsel violated 28 C.F.R. § 600.3(a)’s requirement that special counsel be “selected from outside the United States Government” and (2) the Special Counsel improperly used an appropriation established by Congress for “independent” counsel without the requisite independence. See United States v. Biden, No. 1:23-cr-00061-001, 2024 WL 1603775 (D. Del. Apr. 12, 2024). The defendant contends the denial of this motion is appealable because it, in effect, refused him an injunction. The District Court did not explicitly refuse to enjoin the continued appointment of the special counsel, nor the continued use of appropriation of funds, nor did the defendant explicitly ask for such an injunction. Furthermore, the defendant has not shown the order has a “serious, perhaps irreparable, consequence” and can be “effect[ually] challenged only by immediate appeal.” See, e.g., Office of the Comm’r of Baseball v. Markell, 579 F.3d 293, 297–98 (3d Cir. 2009) (citing Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981)). Accordingly, the denial of the defendant’s third motion to dismiss is not an appealable order denying an injunction.

The District Court’s denial of the defendant’s third motion is also not appealable as a collateral order. For collateral-order purposes, the rejection of the defendant’s claim that the Special Counsel’s appointment violated a regulation is analogous to other challenges to a prosecutor’s appointment or authority. Rejection of these challenges do not constitute collateral orders. See Deaver v. United States, 483 U.S. 1301, 1301–03 (1987) (Rehnquist, C.J., in chambers); United States v. Wallach, 870 F.2d 902, 907 (2d Cir. 1989); Deaver v. Seymour, 822 F.2d 66, 70–71 (D.C. Cir. 1987); United States v. Caggiano, 660 F.2d 184, 191 & n.7 (6th Cir. 1981). Moreover, categorically similar issues have been reviewed on appeal after a final or otherwise appealable decision. E.g., Morrison v. Olson, 487 U.S. 654, 668, 659 (1988); In re Grand Jury Investigation, 916 F.3d 1047, 1051 (D.C. Cir. 2019); United States v. Blackley, 167 F.3d 543, 545–49 (D.C. Cir. 1999); United States v. Wade, 83 F.3d 196, 197–98 (8th Cir. 1996); United States v. Prueitt, 540 F.2d 995, 999–1003 (9th Cir. 1976); In re Persico, 522 F.2d 41, 44–46 (2d Cir. 1975). Similarly, there is no collateral-order jurisdiction over the District Court’s rejection of the defendant’s appropriation argument and this order can be effectively reviewed after final judgment. E.g., United States v. Trevino, 7 F.4th 414, 420–23 (6th Cir. 2021); cf. United States v. Bilodeau, 24 F.4th 705, 711–12 (1st Cir. 2022) (finding appellant’s injunction request could not be effectively reviewed after final judgment). [my emphasis]

In other words, Lowell asked for this injunction so Noreika would refuse it, giving him a better shot at appeal before the Third Circuit.

I’ve consistently said I think this challenge is garbage — garbage on precedent and garbage on DOJ rules.

I still do — though David Weiss’ persistent efforts to claim he is also, simultaneously, the US Attorney who made deals he has since reneged on with Hunter Biden could make the challenge more interesting down the road. Effectively, David Weiss is claiming to be both SCO and US Attorney, all while hiding discovery US Attorney David Weiss knows to exist.

That said, since Hunter first made this argument, Trump has adopted it (I’ve got a post started comparing these things, but remember that Trump was indicted on the stolen documents case two months before Hunter was indicted on gun crimes, but Hunter’s gun trial is scheduled to be done before any of these frivolous hearings start in Florida) — with backing from right wing luminaries like Ed Meese. And Judge Cannon is so impressed with the garbage argument she has scheduled a hearing on it for June 21.

And Hunter has argued this same (IMO, garbage) argument in Los Angeles and the Ninth Circuit, where precedents for such appeals are somewhat more lenient (which Lowell addressed in a follow-up after the Third Circuit decision).

I’m not saying any of this will work. I think Lowell might be better served asking to make an amicus argument before Judge Cannon, if it’s not too late, if only because that’ll disrupt the political bias with which Cannon has run her courtroom. (Though again, that would do nothing to spare Hunter a trial.) We have long since spun free of actual evidence much less law in all these three Trump appointed judge’s courtrooms.

But Hunter’s continued effort to push this may complicate Cannon’s effort to treat this as a novel right wing argument. It could even — though this is unlikely — create a circuit split long before Cannon gets her show hearing. Or it could confuse the right wingers on SCOTUS.

The SCO challenge, in my opinion, is not interesting at all on the law. But the way in which these two cases are working in parallel on this point in particular makes the effort to better frame an appeal immediately more interesting.

Update: Unsurprisingly, the 9th Circuit — a panel of all Dem appointees — rejected Hunter Biden’s bid for interlocutory appeals of his failed Motions to Dismiss.

David Weiss Continues to Misrepresent the Damage Keith Ablow Did to Hunter Biden’s Addiction

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Prosecutors have submitted their motions in limine in the Delaware case. Those include:

Most of these are pretty standard and uncontroversial — though Abbe Lowell made it clear that he reserves the right to contest whether Hunter’s iCloud and laptop had been tampered with before the government obtained them.

Where David Weiss has doubled down on past error comes in his choice of book excerpts he wants to use.

He wants to exclude everything from the book except the excerpts he has chosen.

The government intends to admit into evidence only the excerpts of the book and audiobook that are in Exhibit 1. Federal Rule of Evidence 801(d)(2) provides the statement must be “a statement . . . offered against an opposing party.” Thus, a defendant cannot elicit his own self-serving statements without taking the stand and submitting to cross-examination. United States v. Willis, 759 F.2d 1486, 1501 (11th Cir. 1985); United States v. Wilkerson, 84 F.3d 692, 696 (4th Cir. 1996).

A defendant cannot sidestep the prohibition against hearsay by invoking the so-called “rule of completeness,” contained in Federal Rule of Evidence 106. This rule is designed to prevent “misunderstanding or distortion” caused by the introduction of only part of a statement that could only be cured by admission of the full record. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 172 (1988). It does not allow adverse parties to introduce any unedited statement merely because the proponent party has offered an edited version. Indeed, “it is often perfectly proper to admit segments of prior testimony without including everything, and adverse parties are not entitled to offer additional segments just because they are there and the proponent has not offered them.” United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996). The defendant has not identified for the government any portions of the excerpts that are misleading without additional surrounding context. The other portions of the book are therefore inadmissible hearsay.

The selections are not surprising. But in two ways, they are grotesquely dishonest. First, the chosen excerpts misleadingly lead from something that happened in August 2018.

 

 

To something that happened in February 2019.

Presented in the way it is, jurors will be wildly misled that Hunter’s New Haven exploits are what happened immediately after he relapsed in August 2018. They will be misled into believing the description of the New Haven depravity represent Hunter’s state in October 2018. They don’t.

Here’s what the language in the book describing his return to Delaware in fall 2018 looks like.

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

Neither happened.

For all the obvious reasons—my extended disappearances, my inability to stay sober, her need to stabilize and reorder her own life and family—Hallie and I called it quits. The relationship no longer helped either of us. Our attempt to reanimate Beau remained as doomed as it was from the start. The fallout piled up. I tried to explain things to my daughters, but how could I expect them to comprehend a situation I hardly understood myself?

Next on my agenda was getting clean. I drove up to Newburyport, Massachusetts, an old New England shipbuilding-turned-tourist town thirty-five miles north of Boston. A therapist ran a wellness center where he practiced a drug addiction therapy known as ketamine infusion. I would make two trips up there, staying for about six weeks on the first visit, returning to Maryland, then heading back for a couple weeks of follow-up in February of the new year.

Prosecutors were perfectly willing to use the transition into this passage in their response to Hunter’s MTD.

He wrote in Chapter 10 of his memoir, “I returned [to the East Coast] that fall of 2018, after my most recent relapse in California, with the hope of getting clean through a new therapy . . . Neither happened.” Id. at 203.

Perhaps now they’ve discovered that the book says nothing about Hunter’s state of mind when he was in Delaware, when he owned the gun.

More importantly, David Weiss repeats what might have been just another stupid error when he made it in response to Hunter’s motion to dismiss:

For example, the defendant admitted that he was experiencing “full blown addiction” to crack cocaine and by the fall of 2018 he had gotten to the point that:

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

David Weiss misrepresented this passage to Judge Noreika (and has not alerted her to the error). The scene in the Super 8 took place in February 2019.

Which means it took place after Keith Ablow’s treatment made Hunter Biden’s addiction worse.

The therapy’s results were disastrous. I was in no way ready to process the feelings it unloosed or prompted by reliving past physical and emotional traumas. So I backslid. I did exactly what I’d come to Massachusetts to stop doing. I’d stay clean for a week, break away from the center to meet a connection I found in Rhode Island, smoke up, then return. One thing I did remarkably well during that time was fool people about whether or not I was using. Between trips up there, I even bought clean urine from a dealer in New York to pass drug tests.

Of course, that made all that time and effort ineffective. I didn’t necessarily blame the treatment: I doubt much good comes from doing ketamine while you’re on crack. [my emphasis]

Weiss wants to exclude this critical context, imagining that Hunter included the Keith Ablow description because he knew that right wingers would demand he be prosecuted for the gun when he wrote it (Weiss emphasizes that Hunter started writing this in 2019, before he even knew of the investigation), and so said that the Ketamine treatment made his addiction worse for the moment he would be prosecuted.

I get what self-serving hearsay is. This is not it (though Judge Noreika has thus far been wildly favorable to Weiss’ misrepresentations).

This is basic facts of timeline — or more specifically, Weiss’ continued effort to misrepresent events that clearly happened in February 2019 as if they’re his smoking gun about 2018.

Judge Maryellen Noreika Prepares for a Hunter Biden Trial … without Bates Stamps

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A series of decisions came down today in the Hunter Biden gun case that tee up the case for trial starting on June 3.

Those were:

  • A Third Circuit order denying his bid for an interlocutory appeal
  • A scheduling order hewing to the previous schedule to start trial on June 3
  • Judge Maryellen Noreika’s order denying Hunter’s motion to dismiss on Second Amendment grounds
  • Noreika’s order denying all Hunter’s requests for discovery
  • Two oral orders scheduling a status conference to deal with major issues on which the deadline has already passed:

ORAL ORDER: Defendant’s counsel has represented that he is unavailable to appear at the in-person May 10, 2024 status conference set in the Court’s Scheduling Order ( 112 ). Although the government objects to moving the conference, IT IS HEREBY ORDERED that the status conference is rescheduled for Tuesday May 14, 2024 at 11:00 am in Courtroom 4B. Defendant is not required to attend.

Virtually all of these should be regarded as expected to presumed. For example, while it wasn’t clear whether Noreika would rule on the 2A challenge before trial (Abbe Lowell had invited her not to), she relied on a recent 8th Circuit appeal to deny his motion, which made it far easier.

The Third Circuit appeal was unsurprising, and involved two Democratic appointees, including a judge — Cindy Chung — appointed by Hunter’s father. I think Hunter has a very good argument on a number of these points on appeal, but little basis to argue for interlocutory appeal.

Parts of the discovery order, however, are different. To be sure, many of these were expected. Having denied Hunter’s selective prosecution (while relying on evidence from Rudy Giuliani and falsely attributing it to Hunter’s memoir!!), it’s unsurprising that Noreika denied his discovery requests about Rudy’s role in the side channel that led to the Alexander Smirnov tip and therefore the collapse of the plea deal. It is nearly impossible to get discovery on grand jury proceedings, not even in a courthouse where a key staffer has it out for a defendant’s dad (which Abbe Lowell didn’t mention and may not know), so it’s unsurprising it failed here. Judges generally rely, as Noreika did, on prosecutors’ assurances they have complied with Brady, even in cases where it’s clear that AUSAs have been sheep-dipped so they don’t learn about Brady.

The degree to which David Weiss sat in a courtroom watching prosecutors make claims he knew to be false will all be ripe on appeal. But it’s not now.

Noreika’s order that prosecutors can sandbag Hunter with 404(b) material (describing otherwise incriminating details, which I expect will include an account from a sex worker in California about Hunter having a gun there, and probably other things from his memoir) a week before trial is churlish, but the kind of thing you might expect after you’ve threatened to mandamus a judge. It is totally within her purview, which is why it so risky to attempt to mandamus a judge before trial.

The one decision that surprises me is Noreika’s decision not to order prosecutors to tell Hunter where they’ve gotten evidence from the laptop.

Defendant closes his motion with a request that the government be ordered to “generally point defense counsel” to where, on a forensic image of Defendant’s “Apple MacBook Pro,” certain text and photographs can be located. (D.I. 83 at 18). That forensic image was produced to Defendant in October 2023 without an index, without any Bates stamps and without any indication of what will be used at trial. (Id. at 17). Although the government produced the laptop in the specific format requested by Defendant (D.I. 86 at 19), he complains that he has been unable to locate on the image certain text and photographs relied upon by the government (D.I. 83 at 17-18). In its opposition, the government provides an exhibit with images and annotations that appears to identify where the information resides on the laptop. (See D.I. 86 at Ex. 1). As best the Court can tell, this response satisfied Defendant, and there are no further outstanding requests with respect to the laptop. (See D.I. 89 at 19-20 (recognizing that the government has no index and expressing appreciation for the government’s disclosure of location of information)). Therefore, Defendant’s request as applied to the Apple MacBook Pro appears moot.

Given that Noreika has relied on laptop-derived evidence while ruling that Rudy didn’t have any influence in this case, this alarms me.

For reasons I don’t understand, after threatening to file a motion to suppress the laptop, Abbe Lowell has not done so. But the admissions Derek Hines made so far make it clear he has already relied on material that may violate US v. Riley not to mention material that will be ripe for other evidentiary challenges. And that came before the Robert Savage lawsuit made it clear this investigation has been tainted by fabricated evidence.

The decision not to move to suppress laptop evidence is Abbe Lowell’s. I can’t pretend to understand that choice.

Nevertheless, if prosecutors try to rely on laptop-based evidence, as they did extensively in defeating Hunter’s motion to dismiss, the decision to let prosecutors proceed without Bates stamps seems wildly ill-considered — all the more so given that they relied on evidence that arguably should have been treated as privileged and claimed sawdust was cocaine.

At the very least, it’ll dramatically raise the import of expert disclosure, which hasn’t even started, because someone from Hunter’s team and from the government team are going to have to argue at trial about whether every bit of evidence is reliable or is, instead, potentially the result of hacking. And it risks bogging down the trial. Thus far, the government hasn’t committed — at all!! — to have someone testify about why someone allegedly called John Paul Mac Issac to find out how to break into the machine before they had a warrant, about why they never took basic forensic steps with the laptop. If they intend to rely on laptop based evidence without Bates stamps, it will dramatically intensify any effort to admit this evidence.

Like I said, almost all of these decisions could be expected. They tee up a trial that will be enormously damaging to the President’s son.

But they also lay out decisions that I believe are incredibly ripe for appeal … after trial.

Update: Judge Mark Scarsi has denied David Weiss’ demand that Scarsi make Hunter adhere to the existing pretrial schedule. Hunter’s bid for interlocutory appeal is slightly less of a longshot in the 9th Circuit, though threatens to hold Hunter to existing deadlines.

To be clear, the Court has not vacated the pretrial schedule, and absent a request for relief, Mr. Biden ignores the Court’s orders at his own peril. If the Ninth Circuit dismisses the interlocutory appeal for lack of jurisdiction, the Court intends to proceed to trial without significant delay.

Brett Kavanaugh Thinks that Jack Smith Is as Crazy as Ken Starr Was

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There was a subtle moment in yesterday’s SCOTUS hearing on Trump’s absolute immunity claim.

Former Whitewater prosecutor Brett Kavanaugh asked Michael Dreeben whether DOJ had weighed in on this prosecution.

Did the President weigh in? he asked. The Attorney General?

JUSTICE KAVANAUGH: As you’ve indicated, this case has huge implications for the presidency, for the future of the presidency, for the future of the country, in my view. You’ve referred to the Department a few times as having supported the position. Who in the Department? Is it the president, the attorney general?

MR. DREEBEN: The Solicitor General of the United States. Part of the way in which the special counsel functions is as a component of the Department of Justice.

The regulations envision that we reach out and consult. And on a question of this magnitude, that involves equities that are far beyond this prosecution, as the questions of the Court have —

JUSTICE KAVANAUGH: So it’s the solicitor general?

MR. DREEBEN: Yes.

Having been told that Jack Smith consulted with a Senate-confirmed DOJ official on these tough issues, Kavanaugh immediately launched into a screed about Morrison v. Olson, the circuit court decision that upheld the Independent Counsel statute.

JUSTICE KAVANAUGH: Okay. Second, like Justice Gorsuch, I’m not focused on the here and now of this case. I’m very concerned about the future. And I think one of the Court’s biggest mistakes was Morrison versus Olson.

MR. DREEBEN: Mm-hmm.

JUSTICE KAVANAUGH: I think that was a terrible decision for the presidency and for the country. And not because there were bad people who were independent counsels, but President Reagan’s administration, President Bush’s administration, President Clinton’s administration were really hampered —

MR. DREEBEN: Yes.

JUSTICE KAVANAUGH: — in their view —

MR. DREEBEN: Mm-hmm.

JUSTICE KAVANAUGH: — all three, by the independent counsel structure. And what I’m worried about here is that that was kind of let’s relax Article II a bit for the needs of the moment. And I’m worried about the similar kind of situation applying here. That was a prosecutor investigating a president in each of those circumstances. And someone picked from the opposite party, the current president and — usually —

MR. DREEBEN: Mm-hmm.

JUSTICE KAVANAUGH: — was how it worked. And Justice Scalia wrote that the — the fairness of a process must be adjudged on the basis of what it permits to happen —

Kavanaugh slipped here, and described the horror of “Presidents,” not former Presidents, routinely being subject to investigation going forward.

MR. DREEBEN: Mm-hmm.

JUSTICE KAVANAUGH: — not what it produced in a particular case. You’ve emphasized many times regularity, the Department of Justice. And he said: And I think this applied to the independent counsel system, and it could apply if presidents are routinely subject to investigation going forward. “One thing is certain, however. It involves investigating and perhaps prosecuting a particular individual. Can one imagine a less equitable manner of fulfilling the executive responsibility to investigate and prosecute? What would the reaction be if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as picking the man and then searching the law books or putting investigators to work to pin some offense on him? To be sure, the investigation must relate to the area of criminal offense” specified by the statute, “but that has often been and nothing prevents it from being very broad.” I paraphrased at the end because it was referring to the judges.

MR. DREEBEN: Mm-hmm. Yes.

JUSTICE KAVANAUGH: That’s the concern going forward, is that the — the system will — when former presidents are subject to prosecution and the history of Morrison versus Olson tells us it’s not going to stop. It’s going to — it’s going to cycle back and be used against the current president or the next president or — and the next president and the next president after that. All that, I want you to try to allay that concern. Why is this not Morrison v. Olson redux if we agree with you? [my emphasis]

Kavanaugh pretended, as he and others did throughout, that he wasn’t really suggesting this was a case of Morrison v. Olson redux; he was just talking hypothetically about the future.

JUSTICE KAVANAUGH: Right. No, I was just saying this is kind of the mirror image of that, is one way someone could perceive it, but I take your point about the different structural protections internally. And like Justice Scalia said, let me — I do not mean to suggest anything of the sort in the present case. I’m not talking about the present case. So I’m talking about the future.

This intervention came long after Kavanaugh suggested that charging Trump with defrauding the US for submitting fake election certificates and charging Trump with obstructing the vote certification after first charging hundreds of others with the same statute amounted to “creative” lawyering.

JUSTICE KAVANAUGH: Okay. For other official acts that the president may take that are not within that exclusive power, assume for the sake of argument this question that there’s not blanket immunity for those official acts but that to preserve the separation of powers, to provide fair notice, to make sure Congress has thought about this, that Congress has to speak clearly to criminalize official acts of the president by a specific reference. That seems to be what the OLC opinions suggest — I know you have a little bit of a disagreement with that — and what this Court’s cases also suggest.

JUSTICE KAVANAUGH: Well, it’s — isn’t — it’s a serious constitutional question whether a statute can be applied to the president’s official acts. So wouldn’t you always interpret the statute not to apply to the president, even under your formulation, unless Congress had spoken with some clarity?

MR. DREEBEN: I don’t think — I don’t think across the board that a serious constitutional question exists on applying any criminal statute to the president.

JUSTICE KAVANAUGH: The problem is the vague statute, you know, obstruction and 371, conspiracy to defraud the United States, can be used against a lot of presidential activities historically with a — a creative prosecutor who wants to go after a president.

But Kavanaugh returned to his insinuation that it was a stretch to prosecute a political candidate for submitting false certificates to Congress and the Archives under 18 USC 371 after his purported complaint about Morrison v. Olson.

Second, another point, you said talking about the criminal statutes, it’s very easy to characterize presidential actions as false or misleading under vague statutes. So President Lyndon Johnson, statements about the Vietnam War —

MR. DREEBEN: Mm-hmm.

JUSTICE KAVANAUGH: — say something’s false, turns out to be false that he says about the Vietnam War, 371 prosecution —

MR. DREEBEN: So —

JUSTICE KAVANAUGH: — after he leaves office?

None of this intervention made any sense; it wouldn’t even have made sense if offered by someone who hadn’t criminalized an abusive, yet consensual, blowjob for years.

After all, contrary to the demands of many, Merrick Garland didn’t appoint a Special Counsel until Trump declared himself a candidate. By that point, hundreds of people had already been charged under 18 USC 1512(c)(2) and DOJ was at least four months into Executive Privilege fights over testimony from Mike Pence’s aides and Trump’s White House counsel. Jack Smith was appointed nine months after Lisa Monaco publicly confirmed that DOJ was investigating the fake electors and six months after overt subpoenas focused on the scheme came out (to say nothing of the treatment of Rudy Giuliani’s phones starting a year earlier).

This is not a Morrison v. Olson issue.

Rather, Kavanaugh is using his well-established hatred for Morrison v. Olson to complain that Trump was investigated at all — and that, after such time that a conflict arose, Garland appointed a non-partisan figure to head the already mature investigation.

It was one of many examples yesterday where the aggrieved white men on the court vomited up false claims made by Trump.

Kavanaugh made no mention of the appointment of Robert Hur — not just a Republican but a Trump appointee who had deprived Andy McCabe of due process — to investigate Joe Biden for precisely the same crime for which Trump was charged. That’ll become pertinent at such time as Donald Trump’s claim to Jack Smith’s appointment gets to SCOTUS. After all, in that case, Trump will have been similarly treated as Joe Biden. In that case, Hur’s distinction between Biden’s actions and Trump’s should (but probably won’t) reassure the right wing Justices that Trump was not selectively prosecuted.

Speaking of things Kavanaugh didn’t mention, his false complaint — and which Clarence Thomas raised as well — comes at a curious time.

Because of Aileen Cannon’s dawdling, Trump’s challenge to Jack Smith’s appointment won’t get to SCOTUS for months, if ever.

But Hunter Biden, whose challenge to David Weiss’ appointment takes the same novel form as Trump’s — an appropriations clause challenge — may be before the Third Circuit as soon as next week. In a passage of Abbe Lowell’s response to Weiss’ demand that the Third Circuit give Lowell, an observant Jew, three days including Passover to establish jurisdiction for his interlocutory appeal, Lowell scolded Weiss for presuming to know the basis of his appeals.

The Special Counsel boasts that it prepared its motion in “two days” (Mot.Exped.3), but the legal errors that permeate its motion to dismiss only underscore why more time is needed to adequately research and thoughtfully brief the jurisdictional issues for this Court. The Special Counsel ignores numerous bases for jurisdiction (e.g., 28 U.S.C. §§ 1291 (collateral order doctrine), 1292(a)(1) (denial of Appropriations Clause injunction), and 1651 (mandamus)) over this appeal, and the legal claims it does make are flatly wrong, compare Mot.6 (falsely claiming “all Circuit Courts” reject reviewing denials of motions to enforce plea agreements as collateral orders), with United States v. Morales, 465 F. App’x 734, 736 (9th Cir. 2012) (“We also have jurisdiction over interlocutory appeals of orders denying a motion to dismiss an indictment on the ground that it was filed in breach of a plea agreement.”)

In addition to mandamus (suggesting they may either attack Judge Noreika’s immunity decision directly or ask the Third Circuit to order Delaware’s Probation Department to approve the diversion agreement that would give Hunter Biden immunity), Lowell also invoked an Appropriations clause injunction — basically an argument that Weiss is spending money he should not be.

Normally, this would never work and it’s unlikely to work here.

But even on the SCO challenge, there are a number of problems in addition to Lowell’s original complaint: that Weiss was appointed in violation of the rules requiring someone outside of DOJ to fill the role.

For example Weiss keeps claiming to be both US Attorney and Special Counsel at the same time (most obviously in claiming that tolling agreements signed as US Attorney were still valid as Special Counsel), or the newly evident fact that Weiss asked for Special Counsel status so that he could revisit a lead he was ordered to investigate — in the wake of Trump’s complaints to Bill Barr that Hunter Biden wasn’t being investigated diligently enough — back in 2020, a lead that incorporated Joe as well as Hunter Biden, a lead that uncovered an attempt to frame Joe Biden, an attempt to frame Joe Biden to which Weiss is a witness.

The oddities of Weiss’ investigation of Joe Biden’s son may even offer another claim that the right wing Justices claim to want to review. Jack Smith claims to have found only two or three charges with which Kavanaugh, who insists (former) Presidents can only be charged under statutes that formally apply to Presidents, would leave available to charge a President. But there’s one he missed: 26 USC 7217, which specifically prohibits the President from ordering up a tax investigation into someone, which Lowell invoked in his selective and vindictive prosecution claim. Lowell has not yet proven that Trump directly ordered tax officials, as opposed to Bill Barr and other top DOJ officials, to investigate Hunter Biden for tax crimes. But there’s a lot of circumstantial evidence that Trump pushed such an investigation. Certainly, statutes of limitation on Trump’s documented 2020 intrusions on the Hunter Biden investigation have not yet expired.

The Hunter Biden investigation has all the trappings of a politicized investigation that Kavanaugh claims to worry about — and with the Alexander Smirnov lead, it included Joe Biden, the Morisson v. Olson problem he claims to loathe.

That’s a made to order opportunity for Brett Kavanaugh to restrict such Special Counsel investigations.

Except, of course, it involves Democrats.

David Weiss Treats IRS Agents Who Accused Him of Misconduct as “Whistleblowers”

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Hunter Biden is attempting to appeal the adverse decisions from both Maryellen Noreika and Mark Scarsi, both attempts for which there is no obvious basis to make an interlocutory appeal. As I’ll return to, in the Delaware case, David Weiss’ prosecutors are trying to prevent the appeal from delaying a not-yet established deadline for Hunter to reveal what he knows.

After the Ninth Circuit set a normal briefing schedule, with Hunter’s opening brief due on July 5 and the response a month later, after the scheduled trial date, Weiss moved to have that appeal dismissed on — facially at least — sound jurisdictional grounds, asking the court to dismiss this appeal by May 14, in time for existing pretrial deadlines.

Aside from its treatment of three prior Ninth Circuit plea agreement appeal attempts — two successful (including one Abbe Lowell cited in the Third Circuit) and one not — that motion is uninteresting. Except on one point: it calls the media campaign by the disgruntled, debunked IRS agents at the core of Hunter’s egregious misconduct claim “whistleblower disclosures.”

Defendant moved to dismiss the indictment for due process violations based on outrageous government conduct, specifically pointing to whistleblower disclosures to Congress and the media of alleged grand jury information in violation of Federal Rule of Criminal Procedure 6(e) and confidential tax return information in violation of 26 U.S.C. § 6103 by two IRS agents involved in the investigation of defendant. (GEX 55)

While it’s true that Congress made a big stink over covering the release of otherwise prohibited disclosures of taxpayer materials under a whistleblower claim, Hunter’s claim includes conduct that precedes that stink, and also includes grand jury materials and a non-jurisdictional committee not covered by such stink.

Plus, I find it especially weird for David Weiss, who testified to Congress that the disgruntled IRS agents were wrong about their claims as to his charging authority, to call them whistleblowers. Similarly, he told Congress that Lesley Wolf is “a person of integrity” and agreed that Wolf, “did her work on the Hunter Biden matter in a professional and unbiased manner without partisan or political considerations?” He even described remembering Gary Shapley’s “body language” at the October 7 meeting whence Shapley invented claims that formed the basis of his later media campaign. David Weiss’ testimony is inconsistent with calling those disclosures whistleblower disclosures.

So I find it odd that Weiss, here, treats the IRS agents as whistleblowers. He didn’t do so in his response to Hunter’s motion. Derek Hines called them whistleblowers once in the motions hearing before Judge Scarsi. Leo Wise, in his brazenly false claim that there’s no proof the IRS agents affected the case, instead called them, “hyenas, baying at the moon.”

But then Abbe Lowell noted that the record before Scarsi included an instance where the agents “blew by” whistleblower procedures.

I’ll ask you to look at what we’ve put in as — and what the record shows about just compare what the IRS — and by the way, earlier, you called them whistleblowers. I know that that’s a word. I am going to put that word in quotes for a variety of reasons because they were told what whistleblowers are supposed to do. They were even admonished to do anything they do the right way, and they blew past those warnings. And they blew past those warnings by doing that at a congressional committee. That’s not covered by the whistleblower statute or the whistleblower procedure.

It won’t matter for this appeal. And while I expect Weiss has totally misapprehended the nature of Lowell’s appeal, it is still highly likely that Weiss’ motion to dismiss this appeal will work.

But along the way, Weiss has ceded whistleblower status to the IRS agents who invented conspiracy theories about his own actions.

Maryellen Noreika Never Answered Mark Scarsi’s Question

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As I laid out in this post, Judge Maryellen Noreika’s opinion denying Hunter Biden’s bid for immunity under his diversion agreement provided new insight on the nature of her intervention at the July 26, 2023 plea hearing, and her attempt to refashion that intervention after the fact. Among other things, I showed:

  • Judge Noreika provided several indications that she knew, during the hearing, that Probation head Margaret Bray had refused to sign the diversion agreement before the hearing. Given the logistics as described by AUSA Benjamin Wallace, her knowledge of that fact almost certainly had to come from conversations between Bray and Noreika in advance of the plea hearing, and as such, Bray’s refusal to sign the agreement may amount to proxy refusal from Judge Noreika, who was not a party to the agreement.
  • Bray’s discussion with Wallace (which, if Bray refused to sign the diversion agreement at Noreika’s direction, would amount to ex parte communication between the judge and prosecution) created information asymmetry in the hearing. When Leo Wise made comments about the diversion only going into effect once Bray (or Noreika, as he once misspoke) signed it, Hunter’s team had no way to know that that discussion was only happening because of Bray’s earlier refusal. When Wallace piped up to affirm Judge Noreika’s question about the clause under which she should review the plea, Hunter’s team had no way of knowing that his assent may have reflected ex parte knowledge of Noreika’s concerns about how the plea and diversion agreements worked together.
  • Contrary to her portrayal of the hearing in her opinion, Noreika’s intervention in the diversion agreement preceded the moment when Leo Wise “appeared to revoke” the deal. The deal collapsed, temporally at least, first because of her intervention and only subsequently because her intervention gave Wise opportunity to renege on the scope of the immunity agreement.
  • Judge Noreika still claims to have a veto over the substance of the diversion agreement, a contract to which she is not a party.
  • After intervening based on a claim that Hunter’s immunity wasn’t as broad as he understood, her opinion ruled that even though none of the parties to the diversion agreement disputes that it would cover at least gun, tax, and drug crimes, she nevertheless ruled the immunity grant was too uncertain to be applicable to gun, tax, and drug crimes.

Given the assertions and omissions in Noreika’s opinion, Hunter Biden may have a plausible argument that she did precisely what she claimed she feared: unconstitutionally intervened in a prosecutorial decision that David Weiss had already committed himself to.

Noreika’s opinion puts her actions that day at issue, every bit as much as Weiss’ subsequent actions are.

That makes the disparate treatment that Judge Noreika and Judge Scarsi gave to Hunter’s selective and vindictive prosecution claim important.

To be sure, both opinions are supposed to be addressing different things, two different prosecutorial decisions. And both opinions, at least at times, artificially limit their consideration to developments after that failed plea.

Nevertheless, even after ruling (before he would rule again) that Abbe Lowell had not procedurally presented his case, Scarsi engaged in a laudable point by point treatment of Hunter Biden’s claims.

As a result, the two judges took a dramatically different approach to Hunter’s claim that Republican members of Congress had attempted to intervene in his criminal case directly. The longer version of that argument from Abbe Lowell, presented before Judge Noreika, looks like this:

Then on July 25, just one day before Mr. Biden’s scheduled plea hearing, Chairman Smith actually tried to intervene in this case to file an amicus curiae brief “in Aid of Plea Hearing” (United States v. Biden, D.E. 7, No. 23-mj-00274-MN), in which, with no shame about doing real political interference while complaining about non-existent involvement by others, he encouraged the Court to “consider” the unfounded allegations by the IRS agent whistleblowers that the probe into Mr. Biden was tainted by political interference and attaching transcripts of their testimony (which contained confidential taxpayer and grand jury information) on the public docket. (D.E. 7-3 (Smith Memo) (“[T]he Defendant appears to have benefited from political interference which calls into question the propriety of the investigation of the U.S. Attorney’s Office . . . it is critical that the Court consider the Whistleblower Materials before determining whether to accept the Plea Agreement.”).) 25

In Scarsi’s response to a shorter version of this argument, which was posted before Judge Noreika ruled, he raised the question of whether Judge Noreika had considered Jason Smith’s attempt to intervene in the case.

On June 23, 2023, the Ways and Means Committee of the United States House of Representatives voted to publicly disclose congressional testimony from the IRS agents who worked on the tax investigation. Jason Smith, chair of the Ways and Means Committee, told reporters that the agents were “[w]histleblowers [who] describe how the Biden Justice Department intervened and overstepped in a campaign to protect the son of Joe Biden by delaying, divulging and denying an ongoing investigation into Hunter Biden’s alleged tax crimes.” Farnoush Amiri, GOP releases testimony alleging DOJ interference in Hunter Biden tax case, PBS NewsHour (June 23, 2023, 3:58 p.m.), https://www.pbs.org/newshour/politics/gop-releases-testimony-alleging-dojinterference-in-hunter-biden-tax-case.29 One day before the plea hearing in the United States District Court for the District of Delaware, Mr. Smith moved to file an amicus curiae brief imploring the court to consider the IRS agents’ testimony and related materials in accepting or rejecting the plea agreement. Mem. of Law in Support of Mot. for Leave to File Amicus Curiae Br., United States v. Biden, No. 1:23-mj-00274-MN (D. Del. July 25, 2023), ECF No. 7-2; Amicus Curiae Br., United States v. Biden, No. 1:23-mj-00274-MN (D. Del. July 25, 2023), ECF No. 7-3.30

29 This source does not stand for the proposition that several leaders of house committees “opened a joint investigation.” (Selective Prosecution Mot. 6.)

30 The docket does not show that the Delaware district court resolved the motion, and the Court is uncertain whether the court considered Mr. Smith’s brief.

[snip]

After the plea hearing, Mr. Smith told Fox News, “I think that justice is being served,” Jason Smith on Hunter Biden plea deal collapse: Justice is being served, Fox News (July 26, 2023, 7:01 p.m.), https://www.foxnews.com/video/6331889313112 [https://perma.cc/YL3P-JNW5]. [my emphasis]

As I noted in this post, Scarsi actually over-read what Abbe Lowell argued here. Lowell only argued that the amicus was proof that Jason Smith attempted to intervene, not that Judge Noreika had considered his amicus.

Meanwhile, Scarsi applies a measure — whether Judge Noreika considered Smith’s amicus, not whether he tried to file it — that Lowell doesn’t make (and which is irrelevant to a vindictive prosecution motion, because Noreika is not the prosecutor); Smith did succeed in getting the amicus unsealed, including the exhibits that Hunter claimed include grand jury materials. Whether or not Judge Noreika considered the content of the amicus, that Smith filed it is undeniable proof that Smith tried to intervene, which is all Hunter alleged he did.

Scarsi, by contrast, raised the question — again, before Judge Noreika ruled — of whether Judge Noreika considered Jason Smith’s plea to scotch the plea deal before she intervened in a contract to which she was not a party. Judge Scarsi raised the question of whether Smith had succeeded in intervening, with Noreika.

Noreika, who offered no indication she had reviewed Scarsi’s selective prosecution language (though his opinion on this topic was in the same omnibus ruling she cited on the diversion agreement), didn’t answer that question. Instead, in her selective and vindictive prosecution opinion, she simply dismissed the bulk of that claim with one paragraph.

In attempting to show discriminatory purpose, Defendant points to past and recent statements made by former President Trump, alleged conduct of one of the former president’s personal attorneys (Rudy Giuliani) and a purported criticism and pressure campaign by Congressional Republicans. (See id. at 27-37). None of this evidence, however, is relevant to any alleged discriminatory purpose in this case. The charging decision at issue here – from 2023 – did not occur when the former president was in office. Nor did it occur when Mr. Giuliani was purportedly trying to uncover “dirt” about Defendant and presenting that information to U.S. Attorneys across the country. (See id. at 30). And the pressure campaign from Congressional Republicans may have occurred around the time that the Special Counsel decided to move forward with indictment instead of pretrial diversion, but the Court has been given nothing credible to suggest that the conduct of those lawmakers (or anyone else) had any impact whatsoever on the Special Counsel. It is all speculation. [my emphasis]

Noreika does three things in this passage (besides ignoring Bill Barr’s intervention last year, which is pertinent to her silence about Alexander Smirnov). First, she treats Rudy’s intervention as contested (even while falsely claiming Hunter had described his gun purchase in his memoir, when instead he only did so in text messages, published by NYPost, that Rudy obtained from Hunter’s hard drive). She did so even in spite of Lowell’s submission of Scott Brady’s transcript, detailing Rudy’s intervention, as a supplemental authority.

Generally, as she does elsewhere, she fails to do what she claimed to do, to consider “the prosecution’s decision to abandon the Plea and Diversion Agreement framework.” Her description of David Weiss as “Special Counsel” is the tell here: she’s dating Weiss’ actions to a date, August 11, that postdates the first steps of abandoning the diversion. And she’s explicitly focused on the indictment, not the abandonment, even though she claims to be considering the abandonment.

Having fiddled with the timing, she then — astoundingly — questions whether and when a pressure campaign from Congress happened! Noreika here cites Lowell’s later discussion of Congressional intervention, not the earlier factual background discussion for the entire motion that mentions Smith’s filing to her own docket specifically.

Given Noreika’s own apparent veto of a contract between prosecutors and Hunter Biden, Noreika’s treatment of Lowell’s separation of powers is more interesting.

At the end of his selective- and vindictive-prosecution arguments, Defendant argues that his prosecution also violates the separation of powers. (See D.I. 63 at 54-60). The gist of Defendant’s argument is that the Legislative Branch has failed to respect the prosecutorial discretion vested in the Executive Branch and instead attempted to usurp that authority. (Id.). In particular, Defendant claims that many members of Congress “are actively interfering with DOJ’s investigation” and conducting “a criminal investigation of private conduct by a private citizen” – i.e., Defendant. (Id. at 58). He goes so far as to assert that these Legislative Branch officials “have overcome Special Counsel Weiss’s independent judgment” and, even further, those officials are the reason that pretrial diversion was abandoned in favor of indictment. (Id.). Defendant’s separation-of-powers argument is not credible.

As an initial matter, Defendant never disputes that the Executive Branch holds the ultimate power to prosecute in his case and that that branch of government is headed by his father. And Defendant does not actually accuse the Legislative Branch of successfully encroaching on or usurping the Executive Branch’s power. Indeed, Defendant’s argument is more subtle and nuanced; he alleges that the Legislative Branch is exerting pressure on the Special Counsel, purportedly causing him to make charging decisions that he would not otherwise make simply because members of Congress are unhappy. Yet members of the Legislative Branch pressuring Executive Branch officials or the Special Counsel to act is fundamentally different than actually making charging decisions or influencing them. And, apart from Defendant’s finger-pointing and speculation, the Court has been given no evidence to support a finding that anyone other than the Special Counsel, as part of the Executive Branch, is responsible for the decision to indict Defendant in this case instead of continuing to pursue pretrial diversion. There is thus no basis to find a violation of the separation of powers under the facts here.

I think the two judges’ opinions that Lowell’s separation of powers argument has no basis in precedent is absolutely right. But Noreika’s treatment of it here is far more suspect given her own description that she intervened in a contract to prevent David Weiss from entering into a contract that limited his prosecutorial authorities. If Noreika thereby usurped Weiss’ authority, then this whole focus on whether Congress influenced Weiss is misplaced.

The question becomes whether Congress influenced her.

And in spite of the fact that Judge Scarsi specifically raised the question of whether Noreika had considered Jason Smith’s intervention, Noreika didn’t answer that question. Instead, her treatment of Lowell’s interference claim — the facts meant to apply to the entire selective and vindictive motion to dismiss — instead entirely dodges the uncontested fact that Smith attempted to intervene with her.

On July 19, 2023, Margaret Bray recommended Hunter Biden for diversion. On July 20, at least per Benjamin Wallace, Probation “agreed to revisions to the diversion agreement to more closely match the conditions of pretrial release that Probation recommended in the pretrial services report issued yesterday.”

Neither judge has addressed why that doesn’t amount to approval to the extent Bray has authority over the diversion. Scarsi simply rewrote Probation’s agreement out of his opinion. Noreika simply dismissed its import.

More importantly, no one explained what happened between July 20 and July 26 such that Bray declined to approve the diversion agreement she had approved six days earlier. What changed?

One thing that changed was the intervention of Congress with Judge Noreika.

Judge Maryellen Noreika’s Unconstitutional Concerns about Unconstitutional Concerns

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On April 12, the same day that Judge Maryellen Noreika finally issued her opinions rejecting Hunter Biden’s motions to dismiss based on immunity and selective and vindictive prosecution, Hunter filed a notice of interlocutory appeal of all of Scarsi’s opinions. My Hunter Biden page has been updated to reflect these developments.

I think, but am not certain, that the notice of appeal came after Noreika released her opinions, and so might be a response to it.

It’s unclear what basis Lowell believes he has for an interlocutory appeal. At the initial appearance, Judge Scarsi had instructed Abbe Lowell to brief whether he could file such an appeal for the diversion agreement, which Lowell failed to do in his motions to dismiss. One possibility is that Lowell plans to argue that Delaware, as the first filed case, should have ruled first. He argued this in a February motion to continue the similar filings.

“[W]hen cases between the same parties raising the same issues are pending in two or more federal districts, the forum of the first-filed action should generally be favored.” Heieck v. Federal Signal Corp., 2019 WL 1883895, at *2 (C.D. Cal., Mar. 11, 2019). This approach maximizes judicial economy, avoids the possibility of inconsistent judgments, and minimizes any unnecessary burden on the two Courts’ or the parties’ resources.

If that’s the case, however, the facial similarity of the two diversion agreement opinions might doom an appeal that would be extremely unlikely to work anyway. Both judges ruled that because Probation did not sign the diversion agreement, it was not in place and so Hunter got no immunity from it. The rulings are not inconsistent on their key point (though are in other key ways).

That said, even though neither side formally called attention to Judge Scarsi’s rulings, Judge Noreika noted it in a really confusing footnote.

5 This Court recognizes that, relying largely on California and Ninth Circuit law, the judge overseeing tax charges brought against Defendant in the Central District of California decided that Probation’s approval is “a condition precedent to performance, not to formation,” and that the absence of Probation’s approval means that “performance of the Government’s agreement not to prosecute Defendant is not yet due.” United States v. Biden, No. 2:23-cr-00599-MCS-1, 2024 WL 1432468, at *8 & *10 (C.D. Cal. Apr. 1, 2024). Neither of those issues nor that law was raised by the parties before this Court.

I don’t know what “law” she’s referring to — possibly the Ninth Circuit precedent Scarsi relied on? If that’s the case, then she would be affirming precisely the problem Lowell pointed out: by relying on different precedents, Scarsi has created inconsistency in the judgments.

But she’s flat out wrong that the government’s arguments about whether Probation’s signature was a condition precedent to the formation or the performance of the diversion agreement; it was central to the government’s response.

Applying contract law principles, the approval of U.S. Probation was a condition precedent to the formation of the contract. “A condition may be either a condition precedent to the formation of a contract or a condition precedent to performance under an existing contract.” W & G Seaford Assocs. v. Eastern Shore Mkts., Inc., 714 F.Supp. 1336, 1340 (D.Del.1989) (citing J. Calamari & J. Perillo, Contracts § 11–5, at 440 (3d ed.1987)); Williston on Contracts §38.4. “In the former situations, the contract itself does not exist unless and until the condition occurs.” Id.; Willison on Contracts § 38.7.

There is a bigger difference between the two opinions, though: how they understand Probation’s decision not to sign the plea. As I’ve noted, Scarsi effectively rewrote one of the exhibits he relied on to claim that Probation was not part of revisions to the diversion agreement. As I’ll show, Noreika does not deny that Probation was a part of those revisions, but nevertheless, with no explanation, held that Probation didn’t approve the agreement.

And that’s important because Noreika doesn’t explain her own intervention in the approval of the diversion agreement, effectively intervening in a prosecutorial decision, a problem I pointed out in this post. Indeed, the opinion is consistent with Margaret Bray refusing to sign the diversion agreement because of some interaction Bray had with Judge Noreika before the hearing.

Before I explain why, let me emphasize, Hunter Biden is well and truly fucked. What I’m about to say is unlikely to matter, and if it does, it’s likely only to matter after two judges who seem predisposed against Hunter make evidentiary decisions that will increase the political cost of two trials, if and when juries convict Hunter, and after those same judges rule on whether Hunter can remain out on pretrial release pending the appeal of this mess, which Scarsi, especially, is unlikely to do. Worse still, after I laid out all the ways Judge Scarsi had made his own opinion vulnerable on appeal, he ruled against Abbe Lowell’s attempt to certify all the evidence Scarsi said had not come in properly. Scarsi is using procedural reasons to protect his own failures in his opinions. He’s entitled to do so; he’s the judge! So what I’m about to write does not change the fact that Joe Biden’s son is well and truly fucked.

Judge Noreika refashions her intervention in the plea hearing

In his omnibus ruling on Hunter’s motions to dismiss, Judge Scarsi only cited the plea hearing transcript six times, entirely focused on the end of the discussion (the Xs describe who is being quoted in the citation).

The parties submitted the Plea Agreement and the Diversion Agreement to United States District Judge Maryellen Noreika in advance of a scheduled July 26, 2023, Initial Appearance and Plea Hearing. (See Machala Decl. Ex. 1 (“Del. Hr’g Tr.”), ECF No. 25-2.) At the hearing, after questioning Defendant and the parties, the District Court Judge expressed concerns regarding both Defendant’s understanding of the scope of the immunity offered by the Diversion Agreement and the appropriateness of the District Court’s role in resolving disputes under the Diversion Agreement. (Del. Hr’g Tr. 103–08.) The District Court Judge asked the parties to rework the agreements and provide additional briefing regarding the appropriate role of the District Court in resolving disputes under the Diversion Agreement. (Id.) At the hearing, Defendant entered a plea of not guilty to the tax charges then pending in Delaware. (Id. at 109.)

[snip]

6 This observation begs a question regarding another provision, the parties’ agreement that the United States District Court for the District of Delaware would play an adjudicative role in any alleged material breach of the agreement by Defendant. (Diversion Agreement § II(14).) The judge overseeing the action in Delaware questioned whether it was appropriate for her to play this role. (Del. Hr’g Tr. 92–104.) The Court is uncertain as to whether the parties understood the Probation Officer also to have a role in approving the breach-adjudication plan in her capacity as an agent of the court. See 18 U.S.C. § 3602. But these issues need not be resolved to adjudicate the motion.

[snip]

On July 26, 2023, the district judge in Delaware deferred accepting Defendant’s plea so the parties could resolve concerns raised at the plea hearing. (See generally Del. Hr’g Tr. 108–09.)

By contrast, Judge Noreika cited her own hearing transcript 33 times: 24 times in her background section, four times in her sua sponte section deeming the extent of Hunter’s immunity uncertain, three times in a sua sponte section that intruded on the Executive’s prosecutorial function where she said it would be unconstitutional to intrude on the Executive’s prosecutorial function, and twice more in a section misrepresenting the focus of Hunter’s judicial estoppel argument. 21 of her citations were substantially to her own comments in the hearing.

The degree to which this opinion makes claims about what Noreika actually did at the plea hearing matters. Not only does Noreika fluff the nature of her own intervention, but her discussion left out critical discussion about the nature of approvals required for the diversion agreement (including but not limited to those marked in blue above). That includes five complaints about the fact that she was not asked to sign the diversion agreement and a key intervention in which she expressed an opinion on the scope of the authority for Margaret Bray to intervene in the diversion agreement.

Additionally, in one place, she misrepresented the transcript in a way that minimized her own intervention.

That is, Noreika used her own opinion to refashion the intervention she made in the plea hearing.

The last example — when she misrepresented the transcript — is instructive. As noted, though neither side made this argument, Noreika nevertheless spent 2.5 pages arguing that the scope of the immunity grant in the diversion agreement was not sufficiently clear to be contractually enforceable. In it, she claimed that the uncertainty over the scope of the immunity, and not her own intervention, was the only reason the plea collapsed, a claim she carries over to the selective and vindictive prosecution opinion.

Then, she declined to accept Chris Clark’s oral modification of the immunity provision to include just gun, tax, and drug crimes.

Pressing the parties on their respective understandings of what conduct was protected by the immunity from prosecution led to a collapse of the agreement in court. (D.I. 16 at 54:10-55:22).

Apparently acknowledging that the immunity provision as initially drafted was not sufficiently definite, the parties attempted to revise the scope of the immunity conferred by the Division Agreement orally at the July 2023 hearing. (See D.I. 16 at 57:19-24 (“I think there was some space between us and at this point, we are prepared to agree with the government that the scope of paragraph 15 relates to the specific areas of federal crimes that are discussed in the statement of facts which in general and broadly relate to gun possession, tax issues, and drug use.”)). The Court recognizes that Delaware law permits oral modifications to contracts even where the contract explicitly provides that modifications must be in signed writings, as the Diversion Agreement did here. (See D.I. 24, Ex. 1 ¶ 19 (“No future modifications of or additions to this Agreement, in whole or in part, shall be valid unless they are set forth in writing and signed by the United States, Biden and Biden’s counsel.”)). That being said, although the government asserted that that oral modification was binding (D.I. 16 at 89:9-14), the Court has never been presented with modified language to replace the immunity provision found in Paragraph 15. [my emphasis]

This is a nutty argument to begin with: Neither side is arguing that gun crimes were not included in the diversion immunity (to which elsewhere she limits her review); neither is even arguing there was uncertainty as to the application of immunity to tax and drug crimes. The only uncertainty pertained to FARA (and that only because — as Noreika herself described it, Leo Wise “revoked” a signed agreement).

This discussion is especially problematic because, elsewhere, she left out a crucial part of her own invitation to clarify the immunity language, which the opinion describes this way:

The Court also suggested that the parties clarify the scope of any immunity conferred by the immunity provision of the Diversion Agreement. (Id. at 105:16-22).

Noreika’s reference to the government’s assertion that Chris Clark orally modified the scope of immunity by agreeing to limit it to tax, guns, and drugs pertains to this comment from Leo Wise:

Obviously this paragraph has been orally modified by counsel for Mr. Biden and we would — I’m not going to attempt to paraphrase it. I don’t want to make the record muddy. The statement by counsel is obviously as Your Honor acknowledged a modification of this provision, and that we believe is binding.

Importantly, when Noreika invited the parties to clarify the diversion scope (claiming all the while she was not trying to tell the parties how to negotiate), she treated the Clark comment as having been orally modified.

you might, though I’m not trying to tell you how to negotiate the Diversion Agreement, you might fix that one paragraph that you have orally modified today.

At the hearing, Noreika treated the diversion scope as orally modified, but in this opinion she not only omits mention that she did so, but she suggests that because the parties didn’t modify the contract about prosecution declination to her liking, then it is not binding.

She’s claiming to have no role in the drafting process, and then she’s demanding changes in the contract that she already said had been adopted, a contract in which she repeatedly says would be unconstitutional for her to intervene.

The logistics of the asymmetric knowledge of Margaret Bray’s non signature

All this matters because of something else: Judge Noreika’s opinion exhibits knowledge of something to which she was not a witness. It arises from the logistics from that plea hearing.

As I noted, while claiming he was ruling on the diversion agreement as an unambiguous contract, Judge Scarsi nevertheless relied on extrinsic evidence — a declaration from AUSA Benjamin Wallace. Before Wallace submitted the declaration before Judge Scarsi, Wallace withdrew his appearance before Judge Noreika, in a letter signed as a Delaware AUSA reporting to US Attorney David Weiss, someone who is no longer before that docket.

Given that Wallace referred to final agreements four times as drafts in the declaration, it deserves close scrutiny.

In it, Wallace described that before Judge Noreika took the bench and while Chris Clark and Leo Wise were signing the plea agreement and diversion agreement on July 26, he told Margaret Bray that she could soon sign the diversion agreement. According to Wallace, she “expressly declined to sign the draft diversion agreement.”

3. Before the District Judge took the bench, the parties signed the draft plea agreement in No. 23-mj-274 and the draft diversion agreement in No. 23-cr-61. Leo J. Wise, Special Assistant United States Attorney, signed on behalf of the government. Mr. Biden and his attorney, Christopher J. Clark, signed on behalf of Mr. Biden.

4. While Mr. Biden, Mr. Clark, and Mr. Wise were signing the two agreements, I approached the Chief United States Probation Officer for the District of Delaware, Margaret M. Bray, to tell her that the draft diversion agreement would be ready for her signature shortly. Ms. Bray expressly declined to sign the draft diversion agreement.

In the Los Angeles motions hearing, Abbe Lowell suggested there was something funny about this timing and asked a more important question: Why the head of Probation was not the one submitting the declaration.

MR. LOWELL: It probably — well, it matters in the following way. If what was happening was questions were being raised, and that’s why she didn’t do it, or for any other reason, after she manifested her agreement in what she sent to the court on July 20th or what the Government said, then it probably doesn’t matter.

I don’t think it really matters why at that moment and when it doesn’t — when it happened. I’m just saying that I think the sequence of what happened on July the 26th is murky, at best.

And I’d like to have Ms. Bray be the one to give a declaration, not somebody else that talks about what happened and when it happened and why it happened. I was there, so it would be good if the person who did it, did it. But that’s not what they submitted.

But Noreika’s opinion makes it clear why the timing and substance matters — and why Margaret Bray, the person that both Noreika and Scarsi have ruled effectively vetoed this agreement by not signing it, should have been the one submitting a declaration.

Assuming Wallace’s description of the timing is correct — that this happened while Clark and Wise were busy signing the documents themselves and before Judge Noreika entered the courtroom — then it would create an asymmetry of knowledge among the participants in the hearing. Bray, who never spoke at the hearing, would know she had refused to sign. Wallace would know and therefore did know when he made his single comment at the hearing: agreeing that if the immunity language had been included in the plea agreement rather than the diversion agreement, it would change the rule under which Judge Noreika was reviewing the plea agreement.

THE COURT: And if it were included in the Memorandum of Plea Agreement, would that make this plea agreement one pursuant to Rule 11(c)(1)(A)?

MR. WALLACE: It would.

Did Wallace make this comment because of something Bray told him before the hearing? Importantly, Noreika relies on this assent to use her own uncertainty about the proper clause under which to consider the plea to replace authority to alter the diversion. That is, Noreika effectively used Wallace’s assent to suggest she had the authority to draft the diversion agreement. If he learned that Noreika had a concern about that clause from Bray, it would amount to an ex parte communication between the prosecution and the judge.

Over the course of the hearing — most notably, between the time Leo Wise made a comment about the limits of Probation’s involvement and the time when Wise said the diversion agreement would only go into effect after Bray signed it — Wallace could have shared that knowledge with the other prosecutors. That is, it is possible but uncertain whether prosecutors used this asymmetric knowledge to get out of the plea deal.

But Hunter Biden’s team would never know this occurred, which is consistent with Chris Clark’s repeated statements that he believed Probation had already approved the diversion, which Weiss’ team did not dispute.

And, because all this happened before she took the bench, Judge Noreika should not have known that Ms. Bray refused to sign it. She should not have known it, that is, unless she and Margaret Bray had discussions before the hearing about Bray not signing the agreement.

If they did, then Bray’s failure to sign the diversion agreement would effectively serve as a proxy disapproval from Judge Noreika. It would amount to Judge Noreika, who is neither a party to this agreement nor someone authorized to approve or disapprove it, vetoing the agreement by instructing Bray not to sign it.

Noreika exhibited knowledge of Bray’s lack of signature

There are three times in Noreika’s opinion where she exhibits some knowledge that Bray had not signed that diversion agreement before the hearing.

First, in her treatment of Hunter’s half-hearted attempt to claim that judicial estoppel prevents the prosecution from had not started yet, she described believing at the time and still believing that the government did not believe the diversion period started until Bray signed the agreement.

As the Court understood that statement at the time, the government’s position was that the diversion period did not begin to run until Probation’s approval was given – approval to be indicated by a signature on the Diversion Agreement itself. That is, the Diversion Agreement would not become effective until approval through signature was given. That continues to be the Court’s understanding today.

Having such a belief at the time would only make sense if she knew the diversion had not yet been signed and, given the logistics, that would seemingly require having known before Bray told Wallace she would not sign it.

In her section rejecting Hunter’s argument that by recommending Hunter for diversion on July 19 and then, along with the parties, tweaking the diversion agreement, Noreika offered no reason why she was unpersuaded that Bray had indicated her assent by participating in those changes, something about which her courtroom deputy received emails.

Defendant nevertheless suggests that Probation’s approval may be implied from the fact that Probation recommended pretrial diversion and suggested revisions to the proposed agreement before the July 2023 hearing. (D.I. 60 at 18-19). The Court disagrees. That Defendant was recommended as a candidate for a pretrial diversion program does not evidence Probation’s approval of the particular Diversion Agreement the parties ultimately proposed. Probation recommended that Defendant was of the type of criminal defendant who may be offered pretrial diversion and also recommended several conditions that Probation thought appropriate. (D.I. 60, Ex. S at Pages 8-9 of 9). That is fundamentally different than Probation approving the Diversion Agreement currently in dispute before the Court. And as to Probation’s purported assent to revisions to the Diversion Agreement (D.I. 60, Ex. T at Page 2 of 28), Defendant has failed to convince the Court that the actions described can or should take the place of a signature required by the final version of an agreement, particularly when the parties execute the signature page. Ultimately, the Court finds that Probation did not approve the Diversion Agreement. [my emphasis]

Importantly, Noreika does not address the scope via which Probation, having already approved the parts they would oversee, could reject this deal.

But the most important evidence that Judge Noreika knew of something during the hearing to which she was not a direct witness was a question she posed — invoking the first person plural — suggesting that Probation should not approve the deal.

THE COURT: All right. Now, I want to talk a little bit about this agreement not to prosecute. The agreement not to prosecute includes — is in the gun case, but it also includes crimes related to the tax case. So we looked through a bunch of diversion agreements that we have access to and we couldn’t find anything that had anything similar to that.

So let me first ask, do you have any precedent for agreeing not to prosecute crimes that have nothing to do with the case or the charges being diverted?

MR. WISE: I’m not aware of any, Your Honor.

THE COURT: Do you have any authority that says that that’s appropriate and that the probation officer should agree to that as terms, or the chief of probation should agree to that as terms of a Diversion Agreement?

MR. WISE: Your Honor, I believe that this is a bilateral agreement between the parties that the parties view in their best interest. I don’t believe that the role of probation would include weighing whether the benefit of the bargain is valid or not from the perspective of the United States or the Defendant. (46)

Not only did Noreika suggest that some collective “we” had been reviewing diversion agreements together, but she suggested Bray could still reject the deal based on the scope of David Weiss’ prosecutorial decision. She suggested Bray could dictate to Weiss how much he could include in a declination statement.

This is precisely the kind of usurpation of the Executive’s authority that Noreika said would be unconstitutional. Which was precisely Leo Wise’s response: he responded that Bray did not have the authority to opine that the parties had entered into a contract that did not sufficiently protect the interests of the United States.

Shortly after that exchange, Judge Noreika started complaining that she was not asked to sign the diversion agreement.

I think what I’m concerned about here is that you seem to be asking for the inclusion of the Court in this agreement, yet you’re telling me that I don’t have any role in it, and you’re leaving provisions of the plea agreement out and putting them into an agreement that you are not asking me to sign off on. (50)

[snip]

But then it would be a plea under Rule (c)(1)(A) if the provision that you have put in the Diversion Agreement which you do not have anyplace for me to sign and it is not in my purview under the statute to sign, you put that provision over there. So I am concerned that you’re taking provisions out of the agreement, of a plea agreement that would normally be in there. So can you — I don’t really understand why that is. (51)

[snip]

All right. Now I have reviewed the case law and I have reviewed the statute and I had understood that the decision to offer the defendant, any defendant a pretrial diversion rest squarely with the prosecutor and consistent with that, you all have told me repeatedly that’s a separate agreement, there is no place for me to sign off on it, and as I think I mentioned earlier, usually I don’t see those agreements. But you all did send it to me and as we’ve discussed, some of it seems like it could be relevant to the plea. (92)

[snip]

THE COURT: First it got my attention because you keep telling me that I have no role, I shouldn’t be reading this thing, I shouldn’t be concerned about what’s in these provisions, but you have agreed that I will do that, but you didn’t ask me for sign off, so do you have any precedent for that? (94)

[snip]

What’s funny to me is you put me right smack in the middle of the Diversion Agreement that I should have no role in, you plop meet [sic] right in there and then on the thing that I would normally have the ability to sign off on or look at in the context of a Plea Agreement, you just take it out and you say Your Honor, don’t pay any attention to that provision not to prosecute because we put it in an agreement that’s beyond your ability. (104)

The first two of these citations — the ones that precede Leo Wise’s “revocation” of the plea deal — are not mentioned in Noreika’s opinion. The other three are invoked several times in references to the transcript (including three of the references made by Judge Scarsi), but in none of those references does Noreika admit she was demanding the authority to sign off on the diversion agreement. 

The Court pressed the government on the propriety of requiring the Court to first determine whether Defendant had breached the Diversion Agreement before the government could bring charges – effectively making the Court a gatekeeper of prosecutorial discretion. (D.I. 16 at 92:22-95:17).

[snip]

The parties attempted to analogize the breach procedure to a violation of supervised release, but the Court was left with unanswered questions about the constitutionality of the breach provision, leaving open the possibility that the parties could modify the provision to address the Court’s concerns. (Id. at 102:5-106:2).

She presented these demands to sign off on the diversion agreement as the exact opposite of what they were: a concern that she would be usurping the role of prosecutors if the diversion went into effect, when in fact she was concerned that she wasn’t being given opportunity to veto prosecutors’ non-prosecution decision.

Notably, Judge Noreika mentions Chris Clark’s failure to object after Leo Wise (after such time as Wallace could have told him that Bray did not sign the diversion agreement) said the agreement would go into effect when Probation signed it.

4 Although not part of the Court’s decision, the Court finds it noteworthy that the government clearly stated at the hearing that “approval” meant “when the probation officer . . . signs it” and Defendant offered no objection or correction to this. (D.I. 16 at 83:13-17 & 90:13-15).

She doesn’t mention her own failure to correct Wise when he said she could sign the diversion agreement.

I think practically how this would work, Your Honor, is if Your Honor takes the plea and signs the Diversion Agreement which is what puts it into force as of today, and at some point in the future we were to bring charges that the Defendant thought were encompassed by the factual statement in the Diversion Agreement or the factual statement in the Plea Agreement, they could move to dismiss those charges on the grounds that we had contractually agreed not to bring charges encompassed within the factual statement of the Diversion Agreement or the factual statement of the tax charges.

This doesn’t prove that Judge Noreika asked Margaret Bray not to sign the diversion before Bray told Wallace she would not sign it. But it does show that Noreika thought one of the two of them, either she or Bray, should have the power to veto a prosecutorial decision.

And Judge Noreika refashions her intervention in the plea hearing to obscure that point.

Noreika shifts her demands for sign-off power

As noted, even in spite of her minute order that reflects she deferred agreement on both the plea agreement and the diversion agreement in which it would be unconstitutional for her to intervene, Noreika suggests that the plea fell apart only because of the dispute about immunity that started after she had already intervened in signing authority.

She does ultimately deal with her demands — in a section reserving veto authority over the diversion agreement based on her authority to dictate public policy to prosecutors!

In a truly astonishing section, Noreika applies contract law about a diversion she claims, with no basis, has been made part of the plea deal and uses it to claim she could veto a prosecutorial decision.

Contractual provisions that are against public policy are void. See Lincoln Nat. Life Ins. Co. v. Joseph Schlanger 2006 Ins. Tr., 28 A.3d 436, 441 (Del. 2011) (“[C]ontracts that offend public policy or harm the public are deemed void, as opposed to voidable.”). “[P]ublic policy may be determined from consideration of the federal and state constitutions, the laws, the decisions of the courts, and the course of administration.” Sann v. Renal Care Centers Corp., No. 94A-10-001, 1995 WL 161458, at *5 (Del. Super. Ct. Mar. 28, 1995). Embedded in the Diversion Agreement’s breach procedure is a judicial restriction of prosecutorial discretion that may run afoul of the separation of powers ensured by the Constitution. See, e.g., United States v. Nixon, 418 U.S. 683, 693 (1974) (“[T]he Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case . . . .”); United States v. Wright, 913 F.3d 364, 374 (3d Cir. 2019) (“[A] court’s power to preclude a prosecution is limited by the separation of powers and, specifically, the Executive’s law-enforcement and prosecutorial prerogative.”).

At the hearing in July 2023, the Court expressed concern over the breach provision of the Diversion Agreement and the role the parties were attempting to force onto the Court.8 (See D.I. 16 at 92:12-98:19). In the Court’s view, the parties were attempting to contractually place upon the Judicial Branch a threshold question that would constrain the prosecutorial discretion of the Executive Branch as to the current Defendant. As the government admitted, even if there were a breach, no charges could be pursued against Defendant without the Court first holding a hearing and making a determination that a breach had occurred. (Id. at 94:10-15). If the Court did not agree to follow the procedure, no charges could be pursued against Defendant. (Id. at 94:16-20). Mindful of the clear directive that prosecutorial discretion is exclusively the province of the Executive Branch, the Court was (and still is) troubled by this provision and its restraint of prosecutorial decisions. Although the parties suggested that they could modify this provision to address the Court’s concerns (id. at 103:18-22), no language was offered at the hearing or at any time later. And no legal defense of the Diversion Agreement’s breach provision has been provided to the Court – the deals fell apart before any supplemental briefing was received.

Even if the Court were to find the Diversion Agreement was approved by Probation as required and the scope of immunity granted sufficiently definite, the Court would still have questions as to the validity of this contract in light of the breach provision in Paragraph 14. To be clear, the Court is not deciding that the proposed breach provision of Paragraph 14 is (or is not) constitutional. Doing so is unnecessary given that the Diversion Agreement never went into effect. The Court simply notes that, if the Diversion Agreement had become effective, the concerns about the constitutionality of making this trial court a gatekeeper of prosecutorial discretion remain unanswered. And because there is no severability provision recited in the contract, more would be needed for the Court to be able to determine whether this provision could properly remain in the Diversion Agreement and whether the contract could survive should the Court find it unconstitutional or refuse to agree to serve as gatekeeper.

This entire opinion is rife with examples where Judge Noreika placed herself in a contract to which she was never a party, effectively dictating what David Weiss could include in a prosecutorial declination. But she claims she’s doing the opposite, not snooping into a contract that should only be before her for its immunity agreement, but instead protecting prosecutors’ ability to renege on a declination decision.

I will leave it to the lawyers to make sense of the legal claims here.

But there’s a procedural one that Noreika overlooks.

As noted here, Scarsi’s ruling that the diversion agreement remains binding on the parties conflicts with Noreika’s claim that the problem here is that no one briefed her to placate her complaints.

There are other places where Scarsi’s ruling and Noreika’s conflict — specifically about Probation’s involvement in revisions to the terms that Probation actually governs. But if Scarsi is right, than Noreika’s order withdrawing the briefing order was withdrawn improperly.

Alexander Smirnov Goes Missing — from Judge Noreika’s Opinions

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The name Alexander Smirnov appears in neither Judge Maryellen Noreika’s opinion rejecting Hunter Biden’s immunity nor her opinion rejecting his selective and vindictive prosecution claim. Whereas it appears that Judge Mark Scarsi believes that Smirnov is not before him at all, Lowell did raise Smirnov — whose arrest postdated the reply brief deadline before Noreika and so couldn’t have been included in motions filings in Delaware — as an additional authority for his selective and vindictive claim.

The detail matters because of the way Noreika handled the two motions, which she treated as related by relying on the facts laid out in her immunity opinion in her selective prosecution opinion, even though her position in those two opinions is slightly different.

For the selective prosecution opinion, Noreika used Abbe Lowell’s request, in his reply brief, that she focus on David Weiss’ decision to abandon the plea and diversion agreement, an approach she adopted.

Defendant’s motion sets forth a winding story of years of IRS investigations, Congressional inquiries and accusations of improper influence from Legislative Branch and Executive Branch officials within the prior administration, including former President Trump himself. (See D.I. 63 at 4-20). Yet, as Defendant explains in reply, his selective  and vindictive prosecution claims are focused on “the prosecution’s decision to abandon the Plea and Diversion Agreement framework it had signed in response to ever mounting criticism and to instead bring this felony indictment.” (D.I. 81 at 2 n.1). That decision occurred in the summer of 2023. Any allegation of selective or vindictive prosecution stemming from the IRS investigations or prior administration officials or any conduct that preceded this past summer appears largely irrelevant to the present motions. Moreover, the only charges at issue in this case are firearm charges  — Defendant’s financial affairs or tax-related charges (or investigations thereof) also appear irrelevant. Thus, the only charging decision the Court must view through the selective and vindictive prosecution lens is Special Counsel David Weiss’s decision to no longer pursue pretrial diversion and instead indict Defendant on three felony firearm charges.

But Noreika’s treatment of when the decision occurred is fuzzy. In one place she describes that it happened in summer 2023, which could include everything from June 21, 2023 on (the day after the diversion and plea were published).

Defendant claims that the Special Counsel’s decision to abandon pretrial diversion and indict Defendant on the three felony firearm charges in this case is presumptively vindictive. (See D.I. 81 at 2 n.1). Because that decision occurred in the summer of 2023, his complaints about original charging decisions (or lack thereof) in this case are irrelevant, as are charging decisions for the unrelated tax offenses being pursued in another venue. Yet even as to the Special Counsel’s decision to indict after failing to reach agreement on pretrial diversion, Defendant fails to identify any right that he was lawfully exercising that prompted the government to retaliate. [my emphasis]

Her temporal argument doesn’t seem to support the point she uses it for: That Weiss’ decision to change his mind means that what he changed it from, “are irrelevant” (this is particularly important given how she treats the dispute over immunity).

Elsewhere, she treats the entirety of the decision to be after the failed plea hearing.

Defendant has made clear, however, that his selective prosecution claim is focused on the decision to abandon pretrial diversion and pursue indictment on the three felony firearm charges – a decision that occurred after the Court’s hearing in July 2023. (See D.I. 81 at 2 n.1). [my emphasis]

It’s not remotely clear how she adopted this timeframe. But by doing so, she excluded from her consideration things that clearly were part of abandoning the existing plea deal, most notably reneging on the full extent of the immunity. (She also excluded from her consideration her own role in the process, which as I’ll show, she makes a good case was unconstitutional.)

She did so even while describing that “the government appeared to revoke the deal” when Hunter Biden insisted on the terms of immunity that had been negotiated in June.

Having received contradictory sworn statements about Defendant’s reliance on immunity, the Court proceeded to inquire about the scope of any immunity. At this point, it became apparent that the parties had different views as to the scope of the immunity provision in the Diversion Agreement. In the government’s view, it could not bring tax evasion charges based on the conduct set forth in the Plea Agreement, nor could it bring firearm charges based on the particular firearm identified in the Diversion Agreement, but unrelated charges – e.g., under the Foreign Agents Registration Act – were permissible. (D.I. 16 at 54:13-55:9). Defendant disagreed. (Id. at 55:17-18). At that point, the government appeared to revoke the deal (id. at 55:22) and proceedings were again recessed to allow the parties to confer in light of their fundamental misunderstanding as to the scope of immunity conferred by the Diversion Agreement (id. at 57:1-7). The hearing resumed, with Defendant’s attorney again reversing position and explaining to the Court that the immunity provision covered only federal crimes related to “gun possession, tax issues, and drug use.” (Id. at 57:23-24).

For reasons I’ll explain in a follow-up, Noreika sua sponte conducted a lengthy discussion of the scope of immunity. But just that observation that the government “appeared to revoke” the terms of the deal, paired with the uncontested claims that Hunter had been assured there was no ongoing investigation on June 19, should make Weiss’ decision to chase the Smirnov claims central.

Noreika also claimed that by adopting Lowell’s framework about how the deal was abandoned, it put the actions of all Trump’s officials out of play.

Yet, as was the case with selective prosecution, the relevant point in time is when the prosecutor decided to no longer pursue pretrial diversion and instead indict Defendant. Whether former administration officials harbored actual animus towards Defendant at some point in the past is therefore irrelevant. This is especially true where, as here, the Court has been given no evidence or indication that any of these individuals (whether filled with animus or not) have successfully influenced Special Counsel Weiss or his team in the decision to indict Defendant in this case. At best, Defendant has generically alleged that individuals from the prior administration were or are targeting him (or his father) and therefore his prosecution here must be vindictive. The problem with this argument is that the charging decision at issue was made during this administration – by Special Counsel Weiss – at a time when the head of the Executive Branch prosecuting Defendant is Defendant’s father. Defendant has offered nothing credible to support a finding that anyone who played a role in the decision to abandon pretrial diversion and move forward with indictment here harbored any animus towards Defendant. Any claim of vindictive prosecution based on actual vindictiveness must fail.

Except it shouldn’t. Lowell cited Barr’s intervention in the FD-1023 discussion in his original motion to dismiss, intervention that happened between the time Weiss agreed to a deal and the time he started reneging on the immunity he had offered. The Brady side channel was a central part of Lowell’s argument about the selective prosecution role of Trump’s officials.

Plus, Noreika’s silence about Smirnov matters because Noreika invests a whole lot of energy in prosecutors’ claims that they couldn’t be retaliating against Hunter Biden because Hunter’s father runs the Executive Branch.

To the extent that Defendant’s claim that he is being selectively prosecuted rests solely on him being the son of the sitting President, that claim is belied by the facts. The Executive Branch that charged Defendant is headed by that sitting President – Defendant’s father. The Attorney General heading the DOJ was appointed by and reports to Defendant’s father. And that Attorney General appointed the Special Counsel who made the challenged charging decision in this case – while Defendant’s father was still the sitting President. Defendant’s claim is effectively that his own father targeted him for being his son, a claim that is nonsensical under the facts here. Regardless of whether Congressional Republicans attempted to influence the Executive Branch, there is no evidence that they were successful in doing so and, in any event, the Executive Branch prosecuting Defendant was at all relevant times (and still is) headed by Defendant’s father.

This entire argument fails if, as the available evidence suggests, David Weiss asked for Special Counsel status to pursue a bribery investigation into Hunter and his father. Once you include the Smirnov claims, Joe Biden is the subject of the investigation, an investigation that was only made possible by reneging on the immunity agreement.

Judge Noreika clearly stated that the government appeared to revoke the deal based on Hunter’s statement about immunity. If that’s right, then Smirnov has to be central to her considerations. Instead, she ignored him.

Judge Maryellen Noreika Confuses Hunter Biden’s Memoir for the NYPost

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Judge Maryellen Noreika has finally ruled on (three of) Hunter Biden’s motions to dismiss; like Judge Mark Scarsi, she rejected them.

In a follow-up, I’ll show how Noreika conceives of what went down in the failed plea hearing last summer. Her conception of it has some problem of its own, but it does shore up some problems created by Judge Scarsi’s opinion.

Before I get there, though, I want to look at a key passage of her selective and vindictive prosecution opinion, in which she lays out what she suggests is sound reason for this prosecution.

Although Defendant asks this Court to find that the prosecution’s decision to abandon pretrial diversion and proceed with indictment on the three firearm charges only occurred because of Defendant’s political affiliations (or his father’s political affiliations), Defendant has failed to offer “clear evidence” that that is what happened here. Moreover, in this case, there appear to be legitimate considerations that support the decision to prosecute. See Armstrong, 517 U.S. at 465 (recognizing “the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan” as legitimate factors that may motivate a particular prosecution). Defendant has published a book about his life, where he admitted that his firearm was taken from him at some point after purchase and it was discarded (along with ammunition) in a public trash can, only to be discovered by a member of the public. (D.I. 68 at 2, 7). The government has an interest in deterring criminal conduct that poses a danger to public safety, and prosecutors are not frozen in their initial charging decisions. See Goodwin, 457 U.S. at 382 (“A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct.”) [my emphasis]

This paragraph is a formulaic paragraph in virtually all selective and vindictive prosecution opinions. You cite Armstrong for reasons prosecutors might charge besides animus, you cite Goodwin to lay out that they can change their minds, and then you cite some thing that justifies the prosecution.

Because the standards laid out in Armstrong and Goodwin are so high, you don’t have to include much to justify meeting that standard.

But what you cite generally has to be true.

And it is not true that Hunter Biden wrote in his memoir about the gun. He wrote about someone else pulling a gun on him, which is cited on a different page of the government response Noreika cites for the claim.

One night, while looking for crack and stepping around people curled up on cardboard, the defendant pulled back the flap on a tent and, from the pitch black, saw a gun pointed at his face. Id. at 190.

Only a few months after this happened, on October 12, 2018, the defendant chose to buy his own gun, and during this period he continued to be addicted to crack. Guns and drugs, of course, are a dangerous combination.

He wrote texts — cited in other parts of the selective prosecution motion — to Hallie about the gun.

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

I believe somewhere texts, which I believe to be between Hunter and Keith Ablow, in which Hunter discusses the incident, got cited in this case.

But prosecutors should not have accessed any of the texts before charging. They didn’t have a warrant to do so until 81 days after they indicted.

While Hunter Biden has not yet made a claim, texts between Hunter and Ablow might fall under a doctor-client privilege.

And Abbe Lowell was at least claiming he’d file a motion to suppress the laptop.

Effectively, then, Judge Noreika’s rationale for why it was sound for prosecutors to charge Hunter Biden either amounts to charging Hunter because someone pulled a gun on him (a ridiculous detail to include in the response motion anyway, since it doesn’t pertain to the crime), or because NY Post has been publishing data that Hunter alleges was stolen from him.

Update: The fact that Noreika relies on evidence obtained from Hunter’s laptop is important given the way she dismisses the import of Rudy Giuliani in the selective prosecution motion.

In attempting to show discriminatory purpose, Defendant points to past and recent statements made by former President Trump, alleged conduct of one of the former president’s personal attorneys (Rudy Giuliani) and a purported criticism and pressure campaign by Congressional Republicans. (See id. at 27-37).
None of this evidence, however, is relevant to any alleged discriminatory purpose in this case. The charging decision at issue here – from 2023 – did not occur when the former president was in office. Nor did it occur when Mr. Giuliani was purportedly trying to uncover “dirt” about Defendant and presenting that information to U.S. Attorneys across the country. (See id. at 30). And the pressure campaign from Congressional Republicans may have occurred around the time that the Special Counsel decided to move forward with indictment instead of pretrial diversion, but the Court has been given nothing credible to suggest that the conduct of those lawmakers (or anyone else) had any impact whatsoever on the Special Counsel. It is all speculation.