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Judge Mark Scarsi’s Umbrage: Do Not Go Gentle into that Good Night

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I think that Hunter Biden’s two prosecutions are gone. After he submitted notice of a pardon and David Weiss’ prosecutors complained, Judge Maryellen Noreika issued an order terminating all proceedings.

ORAL ORDER: Having reviewed the parties’ submissions (D.I. 272, 274, 276 ) and in the absence of binding precedent and whereas pursuant to the Executive Grant of Clemency signed by President Joseph R. Biden, Jr. on December 1, 2024, Defendant Robert Hunter Biden has been pardoned for, inter alia, the offenses for which a jury rendered a verdict in this case (D.I. 275 ), IT IS HEREBY ORDERED that all proceedings in this case are hereby terminated. ORDERED by Judge Maryellen Noreika on 12/3/2024.

Judge Mark Scarsi … did something else. He issued a blistering opinion suggesting Hunter’s pardon was partly defective (because the President issued the pardon through the day he issued it, suggesting it attempted to grant four hours of prospective immunity), but that he would terminate the case once someone from the Executive Branch gave him a certified copy of the pardon. Mostly, though, Scarsi accused President Biden of impugning him personally and rewriting history by claiming that Hunter was prosecuted only because he was Joe’s son.

According to the President, “[n]o reasonable person who looks at the facts of [Mr. Biden’s] cases can reach any other conclusion than [Mr. Biden] was singled out only because he is [the President’s] son.” But two federal judges expressly rejected Mr. Biden’s arguments that the Government prosecuted Mr. Biden because of his familial relation to the President. (Order on Mots. to Dismiss 32–55); Mem. Opinion 6–19, United States v. Biden, No. 1:23-cr-00061-MN (D. Del. Apr. 12, 2024), ECF No. 99. And the President’s own Attorney General and Department of Justice personnel oversaw the investigation leading to the charges. In the President’s estimation, this legion of federal civil servants, the undersigned included, are unreasonable people.

In short, a press release is not a pardon. The Constitution provides the President with broad authority to grant reprieves and pardons for offenses against the United States, U.S. Const. art. II, § 2, cl. 1, but nowhere does the Constitution give the President the authority to rewrite history.

This is why I would have preferred Biden not have pardoned his son — because I wanted these verdicts, including Scarsi and Noreika’s rulings that Hunter wasn’t selectively or vindictively prosecuted, to be appealed to judges less intemperate than Scarsi.

Not least because there are several problems with Scarsi’s rant.

First, Scarsi, Weiss’ prosecutors, and Noreika (in her original opinion) are all engaged in navel-gazing. All argued, to one degree or another, that this prosecution could not be political because Biden and his selected Attorney General oversaw it. There were enormous problems with that argument: the degree to which Biden’s adversary was permitted to elicit threats against the prosecutorial team, the unwise retention of David Weiss for a second term, the role that Alexander Smirnov’s alleged attempt to criminally frame Joe Biden played in David Weiss’ decision to first obtain Special Counsel status and then ratchet up charges against Joe Biden’s son. But ultimately, prosecutors argued and judges adopted the claim that because Joe Biden was in charge, the prosecution could not have been political.

But since all that went down, John Roberts rewrote history and vested all the authority over prosecutions in the executive power of the President.

Investigative and prosecutorial decisionmaking is “the special province of the Executive Branch,” Heckler v. Chaney, 470 U. S. 821, 832 (1985), and the Constitution vests the entirety of the executive power in the President, Art. II, §1

[snip]

The indictment’s allegations that the requested investigations were “sham[s]” or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.

Under Roberts’ logic, if the President, exercising his executive authority at its zenith, deems this prosecution political, then it was.

Moreover, Scarsi wildly misrepresents the nature of Biden’s comment. The legal opinions that Scarsi cites address whether Hunter’s case met the very narrow legal definitions of selective or vindictive prosecution, as he himself laid out.

Proving selective prosecution “is particularly demanding.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 489 (1999). Because “[a] selectiveprosecution claim asks a court to exercise judicial power over a special province of the Executive,” “in the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties.” Armstrong, 517 U.S. at 464 (internal quotation marks omitted).

[snip]

“Particularly when a vindictiveness claim pertains to pretrial charging decisions, the Supreme Court urges deference to the prosecutor. Deference is appropriate for pretrial charging decisions because, ‘in the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution.’” United States v. Brown, 875 F.3d 1235, 1240 (9th Cir. 2017) (citation omitted) (quoting Goodwin, 457 U.S. at 381). “[J]ust as a prosecutor may forgo legitimate charges already brought in an effort to save the time and expense of trial, a prosecutor may file additional charges if an initial expectation that a defendant would plead guilty to lesser charges proves unfounded.” Goodwin, 457 U.S. at 380. Thus, “in the context of pretrial plea negotiations vindictiveness will not be presumed simply from the fact that a more severe charge followed on, or even resulted from, the defendant’s exercise of a right.” Gamez-Orduno, 235 F.3d at 462 (citation and internal quotation marks omitted).

Deference to the prosecutorial decision to bring charges, notwithstanding significant pretrial negotiations between the parties to avoid them, is warranted.

Of course, once you adopt Roberts’ logic, then if the President overrides the original prosecutorial judgment of prosecutors, then his view must hold sway. If President Biden says the decisions were unfair, then they were.

Sure. That’s wildly problematic. Welcome to Roberts’ Calvinball.

But as Barb McQuade laid out, whether a prosecutorial decision meets the very narrow definition of selective or vindictive prosecution and whether a prosecution was an unwise exercise of prosecutorial discretion are two different things.

I disagree with McQuade about whether there was evidence of selective or vindictive prosecution. After all, as I noted, Scarsi misrepresented what the record on the comparator of Roger Stone said. Again, that’s why I wanted these cases to be appealed.

But it is also the case that a whole series of events related to this prosecution — Trump’s demand for such an investigation from both Volodymyr Zelenskyy and publicly, DOJ’s laundering of dirt Trump’s personal lawyer obtained, including from a known Russian agent, into this case, efforts by Trump’s debate guest to introduce misleading evidence into this investigation, the way a key witness in the gun case leaked information to affect the 2020 election, and Bill Barr’s subsequent pressure for a prosecution — that were excluded from both judges’ rulings altogether. Both judges simply ignored that David Weiss reneged on his assurances to Hunter’s team that there was no ongoing investigation before he entered into the deal, a detail that was central to any vindictive prosecution analysis. Neither judge addressed how Alexander Smirnov’s alleged attempt to criminally frame Biden himself played into the prosecutorial decisions (I am not sure that was formally before Scarsi, though it was before Noreika).

So while it is a fact that two judges credited the arguments made by prosecutors whose claims Biden has now overridden on the selective and vindictive prosecution issue, it is also a fact that a great deal of evidence of politicization was excluded from all consideration. Biden’s judgment incorporated a great deal of things specifically and surgically excluded from the selective and vindictive prosecution analysis.

Finally, though, there are the ways that Scarsi himself rewrote history to get to his selective and vindictive prosecution decision.

As I laid out here, Scarsi made much of errors that Abbe Lowell made in his selective and vindictive prosecution argument. For example, after pointing out that Lowell misquoted coverage of David Weiss’ comments about threats elicited by political pressure on the case, Scarsi simply ignored the role of threats on prosecutorial decisions, because those “significant threats” were not publicly described as death threats. Importantly, as Noreika did in her opinion, after (correctly) catching Lowell misstating the timeline, Scarsi himself fiddled with the timeline so as to permit himself only to look at the prosecutorial decision in December 2023, not the decision to renege on the plea agreement in June and July 2023.

Scarsi’s treatment of this passage from Hunter’s motion deserves closer consideration:

Mr. Biden agreed to plead guilty to the tax misdemeanors, but when the plea deal was made public, the political backlash was forceful and immediate. Even before the Delaware court considered the plea deal on July 26, 2023, extremist Republicans were denouncing it as a “sweetheart deal,” accusing DOJ of misconduct, and using the excuse to interfere with the investigation.13 [2] Leaders of the House Judiciary, Oversight and Accountability, and Ways and Means Committees (“HJC,” “HOAC,” and “HWMC,” respectively) opened a joint investigation, and on June 23, HWMC Republicans publicly released closed-door testimony from the whistleblowers, who, in the words of Chairman Smith, “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.”14 Then, one day before Mr. Biden’s plea hearing, Mr. Smith tried to intervene [4] to file an amicus brief “in Aid of Plea Hearing,” in which he asked the court to “consider” the whistleblower testimony.15

13 Phillip Bailey, ‘Slap On The Wrist’: Donald Trump, Congressional Republicans Call Out Hunter Biden Plea Deal, USA Today (June 20, 2023), https://www.usatoday.com/.

14 Farnoush Amiri, GOP Releases Testimony Alleging DOJ Interference In Hunter Biden Tax Case, PBS (June 23, 2023), https://www.pbs.org/.

15 United States v. Biden, No. 23-mj-00274-MN (D. Del. 2023), DE 7. [brackets mine]

Here’s how Scarsi treats this passage laying out what happened between the publication of the plea and the failed plea hearing:

The putative [sic] plea deal became public in June 2023. Several members of the United States Congress publicly expressed their disapproval on social media. The Republican National Committee stated, “It is clear that Joe Biden’s Department of Justice is offering Hunter Biden a sweetheart deal.” Mr. Trump wrote on his social media platform, “The corrupt Biden DOJ just cleared up hundreds of years of criminal liability by giving Hunter Biden a mere ‘traffic ticket.’” Phillip M. Bailey, ‘Slap on the wrist’: Donald Trump, congressional Republicans call out Hunter Biden plea deal, USA Today (June 20, 2023, 11:17 a.m.), https://www.usatoday.com/story/news/politics/2023/06/20/donald-trump-republicans-react-hunter-biden-plea-deal/ 70337635007/ [https://perma.cc/TSN9-UHLH]. 28 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

28 This source does not stand for the proposition that “extremist Republicans were [1] . . . using the excuse to interfere with the investigation.” (Selective Prosecution Mot. 5–6.) Of Mr. Weiss, Mr. Trump also wrote: “He gave out a traffic ticket instead of a death sentence. . . . Maybe the judge presiding will have the courage and intellect to break up this cesspool of crime. The collusion and corruption is beyond description. TWO TIERS OF JUSTICE!” Ryan Bort, Trump Blasts Prosecutor He Appointed for Not Giving Hunter Biden ‘Death Sentence,’ Rolling Stone (July 11, 2023), https://www.rollingstone.com/politics/politics-news/trump-suggests-hunter-bidendeath penalty-1234786435/ [https://perma.cc/UH6N-838R].

29 This source does not stand for the proposition that several leaders of house committees “opened a joint investigation.” (Selective Prosecution Mot. 6.) [3]

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. [brackets mine]

First, Scarsi uses an ellipsis, marked at [1], to suggest the only reason Lowell cited the USA Today story was to support the claim that Republicans moved to intervene in the investigation, when the sentence in question includes three clauses, two of which the story does support. The sentence immediately following that three-clause sentence [2] makes a claim — OGR, HWAM, and HJC forming a joint committee, that substantiates that claim. Scarsi’s complaint at [3] is not that the cited article does not include Jason Smith’s quotation; rather, it’s that Lowell has not pointed to a source for the formation of a joint investigation (a later-cited source that Scarsi never mentions does include it). 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.

Meanwhile, Scarsi relegates Trump’s Social Media threats — which Scarsi later corrects Lowell by noting that they came during precisely this period — to a footnote.

Here’s one thing I find most interesting. Scarsi’s two most valid complaints about Lowell’s filing are that, in one part of his timeline but not another, he misrepresented Trump’s pressure as happening after the plea failed, and that Lowell claimed that Weiss testified he had gotten death threats when instead the cited source (and the Weiss transcript I assume Lowell does not have) instead say that Weiss feared for his family. He acknowledges both those things: Trump attacked Weiss, and Weiss got threats that led him to worry for the safety of his family.

But he never considers Weiss’ fear for his family’s safety in his consideration of what happened between June and July. He never considers whether those threats had a prejudicial [e]ffect on Hunter Biden.

And aside from that correction regarding the safety comment, nor does Scarsi consider the most direct aspect of Congress’ intervention in the case — that Congress demanded Weiss testify, and he did so just weeks before he filed the charges actually before Scarsi.

In other words, Scarsi accuses Lowell of making a post hoc argument, claiming that he is simply pointing to prior events to explain Weiss’ subsequent actions. Except he ignores the impact of the two most direct allegations of influence.

And in Scarsi’s own fiddling with the timeline, he found a way to ignore how Donald Trump’s threats and direct intervention by Congress may have infected the decision to renege on the plea deal, and instead focused solely on the later decision to indict.

We’re in a post-truth world and Scarsi’s intemperate rant will certainly get the attention of those looking for Trump judges to promote.

But the fact of the matter is that Scarsi did precisely what he accuses the President of, rewriting the history of the Hunter Biden prosecution.

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America Just Failed the Test of Responding to Trump’s Politicized Prosecutions

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Let’s imagine that, two years from now, Pam Bondi rolls out charges against some onetime adversary of Donald Trump. To the extent that journalists will still be employed and reading court filings, to the extent that prosecutors under Emil Bove (who at SDNY oversaw a team sanctioned for discovery violations) comply with discovery requirements, the adversary in question learns the following about his prosecution:

  • The case started when an investigator started looking into a transnational trafficking network
  • The investigator discovered that the prominent adversary had paid one of the sex workers trafficked in the network
  • Rather than pursuing the traffickers, the investigator used the payment for sex as cause to open an investigation
  • Of course, no one is going to charge a John … so the investigator starts pulling divorce records and four year old tax returns to try to move from that payment for sex work to something that can be charged
  • Then the investigator started incorporating oppo research from Peter Schweizer into his investigation
  • Kash Patel’s FBI set up protected ways to accept tips from Trump supporters who’ve doctored documents to create a crime
  • Trump called up Bondi and told her to take more aggressive steps
  • Trump called up foreign leaders asking for help on this prosecution
  • Bondi then set up a way to launder that information from foreign sources, including known spies, into the investigation of the adversary
  • Patel’s FBI asked a partisan informant to fabricate claims against the adversary
  • Trump publicly called out prosecutors — resulting in them and their children being followed — because they had not yet charged his adversary
  • Ultimately, the adversary got charged on 5-year old dirt, and only then, after charging, did prosecutors quickly do the investigative work to win the case at trial

Now, as I’ve described it, you surely imagine you’d say, wow, that looks like a thoroughly corrupt prosecution, a clear case of Trump using DOJ to punish his adversaries.

Right?

It’s not so much that investigators didn’t, after the fact, find a crime to charge. They did. If you investigate most high profile people long enough, you’ll find something to charge, particularly if multiple people come to DOJ with doctored evidence to help create that crime.

It’s that someone found the name of an adversary in the digital records of crimes that were more important to investigate, and instead of pursuing that crime, used the electronic record as an excuse to keep looking until they found some evidence of a crime against Trump’s adversary.

Everyone would recognize that’s what happened, right?

Of course not. Of course no one would recognize that that was a political prosecution.

We need no further proof than the fact that none of those very same details showed up in any of the coverage of the Hunter Biden investigation. Not now that he has been pardoned. Not when all these details came out last year. Not in any of the retrospectives of the times Trump demanded investigations on his adversaries.

What will happen instead is that a bunch of self-important DC scribes will chase the most salacious allegations, provide endless headlines about sex workers and wild parties. The DC scribes will ignore every detail about the legal investigation — every one!! — and instead use the prosecution as an opportunity to sell political scandal. And also, they will point to their Tiger Beat coverage as proof, they say, they are not politically biased.

Rather than diligently rooting out the obviously politicized prosecution, the press will be complicit in it.

And rather than deciding that the adversary was the target of an obviously politicized prosecution, American public opinion would instead decide that the adversary was icky, and because he is icky, his statements about Trump cannot be credited.

That is what political prosecutions look like. That is, of course, precisely what the Hunter Biden prosecution was (ignoring the assurances from prosecutors who say no one with the fact set Hunter faced would be charged). Every single bullet has an analogue in the Hunter Biden case. That obviously political prosecution is what happened.

Once the GOP got the House majority, they did nothing else but platform these claims, which a different set of self-important scribes treated as an interesting process story, not an obvious case of a great abuse of government power.

And now that Biden has pardoned his son, the very same self important scribes who ignored all the signs this was a political prosecution, are giving non-stop coverage to a pardon that — unlike those of Trump’s Coffee Boy, National Security Adviser, campaign manager, personal lawyer, and rat-fucker — are not about self-protection, most with no mention of all the evidence Trump ordered up this prosecution to target Joe Biden.

The question is, what are we going to do about this, now that we have rock solid proof the press establishment is not only incapable, but wildly uninterested, in rooting out this kind of politicized prosecution — at least not when they can instead sell scandal?

In the face of seeing Pam Bondi and Kash Patel preparing to redouble efforts to find politicized prosecutions against Donald Trump’s adversaries, Joe Biden chose to end the process, with his son, at least.

I’m actually on the record opposing the pardon — but not for the reasons everyone else is. I don’t think pardoning Hunter in this circumstance is corrupt. I take Biden at his word that he changed his mind about pardoning Hunter. I’m far more interested in Trump admitting he was lying about his plans to implement Project 2025 than that Biden reneged on assurances no one much believed anyway.

I oppose the pardon because it eliminates Hunter’s standing to appeal and with those appeals to begin telling the story that the media chose to ignore. I oppose the pardon because if we don’t start laying out how Trump already politicized DOJ while there’s a good base of legitimate judges in place, it’ll be far too late.

And don’t get me wrong. I think Biden fucked this one up. Not just for saying he wouldn’t pardon Hunter, but for not taking action far earlier — like firing David Weiss the day he was inaugurated, citing Trump’s first impeachment, or pardoning Hunter and firing Weiss on November 6 — to do something about this. I think Merrick Garland shouldn’t have given Weiss himself SCO status (not least, because Weiss continues to investigate crimes — the alleged attempted framing of Joe Biden by Alexander Smirnov — to which he is a witness). I think Garland’s supervision of Special Counsels allowed the abuse of the system, repeatedly.

I’ve never, as far as I’m aware, spoken with Hunter Biden. I have, however, spoken to a good number of the people who were and who would be politically prosecuted in Trump’s second term (not including myself, of course). And the thing I’ve learned from them is because the press is complicit in their politicized prosecution, it guarantees they’ll be isolated, regardless of guilt or innocence. Because the press has unquenchable thirst for lazy dick pic sniffing, they don’t do the work of reading the court filings. Because the press thirsts for a false appearance of both sides neutrality, they’re always on the hunt for something to fit into their both sides scandal box.

And meanwhile, those very same self-important scribes were largely silent in 2020 when Trump pardoned his way out of Russian trouble, and even more silent in 2024 when they could have explained to voters that he had done so.

Whatever else you think about the Hunter Biden case and the way Joe Biden pardoned him, it is crystal clear proof that the thing defenders of democracy swear they’ll do in a second Trump term — rise to the defense of those targeted for political prosecution — they already failed to do. Whatever you think about the Hunter Biden case, the vast majority of people talking about it have absolutely no clue that it is precisely what people fear in Trump’s second term, not (just) because Hunter was charged in two indictments when others would not be, but because Trump and his people repeatedly ordered up this prosecution.

Update: Peter Baker, who wrote an otherwise thorough piece during the election about Trump’s corruption which ignored Hunter, claims to be unable to tell whether Biden’s claim that Hunter’s prosecution was politicized is true or not.

Update: Here’s a copy of a white paper Hunter’s attorneys released to describe the politicization of the case. It adds the Parnas and Scott Brady allegations to the stuff in the selective prosecution motions.

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David Weiss Dons His “Let’s Go Brandon” Frame

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In a bid to defeat a motion in limine from Alexander Smirnov prohibiting mention of his nine lawfully owned guns, David Weiss’ prosecutors revealed that they only want to use the guns, if necessary, to prove ownership of other things found in a search of Smirnov’s home, including an anti-Biden hat.

On February 21, 2024, after securing a search warrant signed by United States Magistrate Judge Brenda Weksler, FBI agents executed a search of the defendant’s residence in Las Vegas. During the search, agents found nine firearms. Agents also found other items, including electronic devices, and other evidence, such as a hat emblazoned with an anti-Public Official 1 euphemism. These items are directly relevant to the charges in this case. For example, the government plans to introduce communications found on the defendant’s electronic devices that similarly evidence bias again Public Official 1. And the hat seized from his residence demonstrate the same bias, which bears on the defendant’s motive in providing the FBI with false derogatory information about Public Official 1, who was a candidate for President of the United States, in the months leading up to the 2020 election.

On one level, by all means, show us Alexander Smirnov’s Let’s Go Brandon hat! It’ll work wonders in Los Angeles!

On another level, I can’t help but think that David Weiss’ team has just given Smirnov (who might well get a pardon anyway after Trump is inaugurated) a case for selective prosecution.

Smirnov, recall, is accused of lying to the FBI and in so doing causing the filing of a false report.

But these very same prosecutors — Derek Hines and Leo Wise — were in the last year faced with witnesses with an anti-Biden bias, the guy who sold Hunter Biden a gun in 2018 and the Delaware cop who first spoke to the gun shop owners, the former of whom (according to a filing from Abbe Lowell) similarly caused a false document to be filed, the gun purchase form to which his staffer belatedly added a claim that Hunter had provided a second form of ID when he purchased the gun. Hines and Wise have not charged those people, even though they reportedly sent WhatsApp texts during the 2020 election in an effort to publicize the gun purchase, the same kind of biased messages that Hines and Wise intend to submit to prove their case against Smirnov.

It also reveals a now-exposed attempt by the gun store to fabricate a false narrative about the gun sale. Palimere said the addition of the seller transaction serial number (“5,653”) may have been added on October 26, 2018. (TAB 4, Palimere FD-302 at 4). He said the vehicle registration reference was added in 2021. Yet, the government provided WhatsApp communications from October 2020 and February 2021 between Palimere, friends of his, and then-Delaware state trooper Vincent Clemons3 (see TABs 6 – 6C), all of which refer to the form, a plan to send it to others, needing to get their stories straight about what occurred in 2020, and wanting the gun sale issue and the form exposed during the Presidential campaign.

3 Not to be lost is the fact that Clemons was the Delaware State Police officer who first arrived at Janssens’ grocery store on October 23, 2018 when Hallie Biden threw a bag containing the handgun into a trash can in front of the store. It was Clemons who took statements about the handgun from both Hallie and Hunter Biden and was part of filling out an official police report on the issue. Two years later, he is in the communications with Palimere about the Form 4473, one of which states: “Yep your side is simple – Hunter bought a gun from you, he filled out the proper forms and the Feds approved him for a purchase.” (emphasis added). Palimere later responded, “I’ll keep it short and sweet as well: Hunter bought a gun. The police visited me asking for verification of the purchase and that’s all I can recall from that day. It was over 2 years ago.” (TAB 6B, 10/26/20 Palimere-Clemons Texts at 4, 6.) The reference to filling out the “proper forms” is not lost on defense counsel given what transpired thereafter. And, despite the importance of Clemons (e.g., the person who actually took the statements), the Special Counsel is foregoing him as a witness to call two other Delaware officers instead.

I’m at a loss to imagine how Hines and Wise would distinguish the doctored gun form from the FD-1023 from Smirnov they claim is false. Both were an effort to criminalize the Biden family during the 2020 election. If anything, the retroactively doctored gun purchase form was more dangerous. And yet Hines and Wise charged Smirnov but didn’t charge the gun shop owner. Indeed, they successfully buried precisely the kind of texts showing bias they want to use against Smirnov.

This apparent double standard regarding doctored forms comes even as prosecutors are trying to prevent Smirnov from invoking Hunter’s failed plea hearing to claim (falsely) that Hunter got a sweetheart plea deal. In a filing signed by Wise, prosecutors claim that Smirnov was not mentioned at Hunter’s failed plea hearing, and so he would have no evidentiary reason to rely on the transcript.

[C]ontrary to the defendant’s representation, in the 110 pages of transcript attached to his motion, there is not a single reference to (1) the defendant or this prosecution, (2) “the sitting President,” (3) any accusations against the defendant, (4) the defendant’s “loyal service” to the FBI, or (5) that the defendant was a “Russian Spy.”

I asked Weiss’ spox whether Leo Wise was really claiming that Smirnov went unmentioned. “We will decline to comment beyond our statements and filings in court,” he replied.

But when Leo Wise responded to Judge Maryellen Noreika that, yes, even though Hunter Biden had been assured a month earlier there was no ongoing investigation, that there was in fact was an ongoing investigation,

THE COURT: All right. So you said there might be additional charges. Are you at liberty to tell us what you’re thinking those might be or is that just a hypothetical that there might be?

MR. WISE: It was a hypothetical response to your question.

THE COURT: Is there an ongoing investigation here?

MR. WISE: There is.

THE COURT: May I ask then why if there is we’re doing this piecemeal?

MR. WISE: Your Honor may ask, but I’m not in a position where I can say.

And then said he could still charge FARA violations,

MR. WISE: So I can tell you what I think we can’t charge. I can’t tell you what the ongoing investigation is. So, for instance, I think based on the terms of the agreement, we cannot bring tax evasion charges for the years described in the factual statement to the Plea Agreement. And I think we cannot bring for the firearms charges based on the firearm identified in the factual statement to the Diversion Agreement.

THE COURT: All right. So there are references to foreign companies, for example, in the facts section. Could the government bring a charge under the Foreign Agents Registration Act?

MR. WISE: Yes.

And then got Special Counsel status that would only be required if Weiss were pursuing something implicating Joe Biden — like Smirnov’s bribery claim — he almost certainly was invoking Alexander Smirnov.

Wise made that claim even while Smirnov was still fighting to obtain material on David Weiss’ decision to chase the Smirnov allegation (there was a hearing on this yesterday, but nothing is docketed on it yet).

The Defendant requested communication related to the request that U.S. Attorney David Weiss’s team “assist” with “an investigation of allegations” related to the FD-1023. The government refuses to produce this material and ignores that fact that the government chose to include the following language in the Indictment: “In July 2023, the FBI requested that the U.S. Attorney’s Office for the District of Delaware assist the FBI in an investigation of allegations related to the 2020 1023. At that time, the United States Attorney’s Office for the District of Delaware was handling an investigation and prosecution of Businessperson 1.” Accordingly, not only did the government, in its Indictment, place the communications at issue, it is clear that the communication are relevant and discoverable. This request has been outstanding since March 5, 2024.

And the apparent double standard comes as Smirnov is attempting to put the conduct of Smirnov’s FBI handler — the guy who didn’t take alarm when Smirnov sent him already debunked Fox News disinformation — at issue.

The dispute over the handler’s conduct is taking two forms. First, prosecutors are trying to exclude Smirnov’s expert witness Gregory Scott Rogers, a former FBI agent who would testify to errors that Smirnov’s handler made. They’re also trying to exclude the content of three reports on the handling of Smirnov.

It has, predictably, declined into a display of prosecutorial dickishness.

In their motion to exclude Rogers, for example, the same prosecutorial team who claimed sawdust was cocaine made much of the that Smirnov’s expert witness said “upmost” instead of “utmost.”

Next, the disclosure states, “A CHS providing the type and amount of information provided by Smirnov should be handled with the upmost [sic.] diligence.” Disclosure at 5. According to Merriam-Webster, “upmost is frequently used as a mistaken spelling of utmost in its adjective and noun forms.” https://www.merriamwebster.com/grammar/utmost-vs-upmostdifference#:~:text=In%20its%20dictionary%20sense%2C%20upmost,its%20adjective% 20and%20noun%20forms (last viewed by author on November 1, 2024). The government assumes that Rogers meant to say “utmost,” but the fact that he can’t even produce an error free disclosure speaks to the quality of his proposed testimony. In any event, like his opinion that the defendant was “poorly handled,” his opinion that the defendant should have been handled with the “upmost diligence” is also undefined. So what does “upmost diligence” mean? The disclosure doesn’t tell us.

Of course, these prosecutors aren’t above making their own typos, as when a filing signed by Leo Wise uses “again” instead of “against.”

For example, the government plans to introduce communications found on the defendant’s electronic devices that similarly evidence bias again Public Official 1.

Yet they want to treat far more significant errors made by Smirnov’s handler as “essentially ministerial errors.”

Among the errors documented in the Source Reports include getting Smirnov’s name and birth country wrong.

The reports are also critical to the defense, including based on the anticipated testimony of the Defendant’s noticed expert. For example, in the February 13,2013, Field Office Annual Source Report, FOASR, the following deficiencies were noted:

1. The Handler failed to give the CHS extraterritorial travel admonishments;

2. The Handler allowed the CHS to conduct otherwise illegal activity, OIA, outside of approved time periods;

3. The Handler documented the CHS’s true name in the wrong CHS subfile;

4. The Handler placed an unrelated CHS’s NCIC record in this CHS’s file;

5. The Handler identified the wrong country of birth for this CHS in his file;

6. The Handler failed to document appropriate receipts for payments to the CHS;

7. CHS was allowed to conduct personal international travel without appropriate approval and documentation in his file.

In a later Standard Validation Report covering 2013-2021 it was noted:

1. HA continued to fail to appropriately obtain approval and document CHS’s international travel;

2. Derogatory information reported about the CHS and more unreported/undocumented otherwise illegal activity, OIA.

In the Source Validation Report for the period March, 2021-November, 2023 FBIHQ recommended that FBI Seattle, the office where the HA had transferred to from FBI San Francisco in 2019 and brought Smirnov’s file with him, stop operating the CHS noting that they believed that the CHS was no longer fully under the HA’s control, may be committing unauthorized illegal activity, UIA, and concern that the media’s reporting of the CHS’s information concerning the Biden family’s influence peddling in Ukraine would vitiate his ability to continue to function as a CHS. In that same document, it was recommended that CHS be polygraphed. Based upon the records provided by the government, it does not appear that a polygraph of Mr. Smirnov was ever scheduled or conducted.

Smirnov claims he can prove that he said and did things with his handler that did not get documented. If he can prove that, then it’s going to be hard for prosecutors to prove that Smirnov’s claims are lies rather than that the FBI agent fucked up.

That said, there’s something more interesting about the validation reports on Smirnov: They go through November 2023 and still treat him as a viable informant. November is when, on November 7, David Weiss said the Brady side channel would only appear in his final report. November is when, on November 15, Abbe Lowell asked for discovery on the side channel. And November is when, on November 16, CNN reported that the FBI had dropped its pursuit of FARA and bribery allegations.

Smirnov’s lawyers are right there’s a tie between how Hunter Biden was treated and why he was charged. But they’ve got the emphasis wrong.

All the evidence suggests that prosecutors had to charge him or risk their Hunter Biden case too.

Filings

September 26: Smirnov motion to continue

September 27: Weiss response on motion to continue

October 14: Smirnov warns of motion to compel

October 15: Judge Otis Wright denies continuance

October 28: Government response to discovery

October 31: Smirnov reply on discovery

October 31: Smirnov motions in limine

November 1: Government motions in limine

November 4: Renewed bid to continue trial based on delayed discovery

November 5: Motion to dismiss for discovery violations

November 5: Opposition to renewed bid to continue

November 8: Judge Wright denies motion to compel

November 12: Response to motion to dismiss on discovery violations

November 15: Defense response to motions in limine

October 31: Government response to motions in limine

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In Bid to Withhold Laptop and Hard Drive Forensic Reports, Derek Hines Misstates Hunter Biden’s View on Authenticity of Data on Laptop

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As I noted in this post, I wrote a letter to Judge Maryellen Noreika asking her to release several documents, the more interesting of which are the forensic reports on the laptop attributed to Hunter Biden and the hard drive with John Paul Mac Isaac’s purported copy of the laptop.

Abbe Lowell had no problem with the release of the forensic reports.

Mr. Biden has no objection to the release of either item requested by the journalist—the motion for miscellaneous relief at DE 167 and/or the expert disclosure of Michael Waski at DE 120-2.

Derek Hines did. He said that because he never filed the forensic reports, they are not judicial records before Judge Noreika.

However, his disclosure was never filed with the Court because the defendant agreed that the information derived from his laptop was authentic. Therefore, the expert disclosure was not included as an exhibit for ECF 120 because the certification itself sufficiently supported the motion. Moreover, since there was no dispute about the authenticity of the information derived from the defendant’s laptop, the government did not call Mr. Waski as an expert witness at trial. Accordingly, the expert disclosure is not a judicial record and is not a record before this Court that the Court could unseal.

There are several problems with this response.

First, as I wrote in my letter, nothing in the certification mentioned the laptop or hard drive it certified.

Mr. Waski’s certification, as docketed, does not by itself certify that the laptop was among the devices extracted. While the MIL describes that Mr. Waski’s certification pertains to, “two backup files from laptop and hard drive” (DE 120 at 3), Mr. Waski’s certification itself mentions neither. Instead, it references a “Digital Forensics Report and [an] Extraction Report,” singular. Compare Robert Gearhart’s certification at DE 120-1, which lists the four iCloud backups described in the MIL, “Apple Backup 1, Apple Backup 2, Apple Backup 3, Apple Backup 4,” which in turn match the warrant. (20-mj-165 DE 3 at 2) To confirm that Mr. Waski’s certification pertains to the laptop and hard drive incorporated into the summary and described in the warrant (19-mj-309 DE 3) requires inspecting the Disclosure.

There is no way the public — or Judge Noreika herself — can be certain that the “Digital Forensics Report and Extraction Report,” singular, mentioned in the certification describes the forensics of both (or either!) the laptop and the hard drive. We need to see the description of that report in the Disclosure itself.

The certification relies on the Disclosure to even identify what it is certifying.

More importantly, Hines blatantly misstates Hunter Biden’s view on the authenticity of the data on the laptop. In Abbe Lowell’s response to Hines’ motion to bypass any expert witness, he specifically debunked that claim.

Defense counsel has numerous reasons to believe the data had been altered and compromised before investigators obtained the electronic material from Apple Inc. and The Mac Shop, such that the Special Counsel’s claim that the underlying data is “authentic” (id. at 4) and accurately reflects “defendant’s Apple Macbook Pro and [] hard drive” (id. at 2) is mistaken.

Mr. Biden’s counsel told the Special Counsel on May 10, 2024 it agrees not to challenge the authenticity of the electronic data the Special Counsel intends to use with respect to it being what law enforcement received on December 9, 2019 from John Paul Mac Isaac (owner of The Mac Shop), and from Apple on August 29, 2019 and in a follow-up search on July 10, 2020. (Mot. at n.3.) However, Mr. Biden cannot agree this electronic data is “authentic” as to being his data as he used and stored it prior to Mac Issac obtaining it.

He pointedly did not agree that the data derived from the laptop (and hard drive, which I suspect has more irregularities) was “authentic” as to being his own data.

One reason I’m interested in the hard drive is because Hines himself revealed that the “backup” of it is 62% bigger than the laptop of which it purports to be a copy. Understanding why that is so might go a long way to explain anything John Paul Mac Isaac did with Hunter Biden’s data.

As I noted in my letter to Judge Noreika, Congressman Dan Bishop suggested in a deposition on the laptop last year that if the FBI, “has conducted a forensic investigation and has suppressed the results,” people shouldn’t defer to the FBI. This was an opportunity for the FBI to show it’s work.

It — or at least, David Weiss — doesn’t want to.

Update: Corrected misspelling of Hines’ last name. My apologies to him.

Update: Judge Noreika has now docketed my reply. Among other things, I noted that the creation date for the PDF of Waski’s certification post-dates the day when it was sent to Hunter Biden’s team on April 24.

 

The other certification is dated April 23.

Update: Judge Noreika has, unsurprisingly, granted the request to docket the Hallie Biden related filing, but denied the Disclosure on the laptop and hard drive.

ORAL ORDER re: D.I. [247], IT IS HEREBY ORDERED that the Sealed Motion (DI [167]) is hereby unsealed. The expert disclosure of Michael Waski is not part of the record of this case or in the Courts possession. IT IS HEREBY FURTHER ORDERED that the Court will not address further informal requests made by letter rather than appropriate motion. Ordered by Judge Maryellen Noreika on 7/18/2024. (as)

 

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Spirit of Revenge: John Roberts Says Joe Biden Can Demand an Investigation of Ginni Thomas

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As I wrote in this post, John Roberts chose to cloak his radical opinion eliminating rule of law for Presidents by nodding to George Washington’s Farewell Address.

Our first President had such a perspective. In his Farewell Address, George Washington reminded the Nation that “a Government of as much vigour as is consistent with the perfect security of Liberty is indispensable.” 35 Writings of George Washington 226 (J. Fitzpatrick ed. 1940). A government “too feeble to withstand the enterprises of faction,” he warned, could lead to the “frightful despotism” of “alternate domination of one faction over another, sharpened by the spirit of revenge.” Id., at 226–227. And the way to avoid that cycle, he explained, was to ensure that government powers remained “properly distributed and adjusted.” Id., at 226.

It is these enduring principles that guide our decision in this case.

As I showed, that was partly an attempt to spin the usurpation of Executive Branch prosecutorial authority between Administrations as, instead, protection of the separation of powers of co-equal branches.

But it was also an attempt to deploy Washington’s warnings against partisanship as if they counseled doing what Roberts was doing, rather than the opposite.

Roberts had the audacity, for example, to quote from a passage talking about how unbridled partisanship could lead to foreign influence, corruption, insurrection, and authoritarianism and suggest he was preventing that, rather than immunizing it.

I have already intimated to you the danger of parties in the state, with particular reference to the founding of them on geographical discriminations. Let me now take a more comprehensive view and warn you in the most solemn manner against the baneful effects of the spirit of party, generally.

This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, more or less stifled, controlled, or repressed; but in those of the popular form it is seen in its greatest rankness and is truly their worst enemy.

The alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation on the ruins of public liberty.

Without looking forward to an extremity of this kind (which nevertheless ought not to be entirely out of sight) the common and continual mischiefs of the spirit of party are sufficient to make it the interest and the duty of a wise people to discourage and restrain it.

It serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which find a facilitated access to the government itself through the channels of party passions. Thus the policy and the will of one country are subjected to the policy and will of another. [my emphasis]

As I described in the initial release of Ball of Thread, the podcast I’m doing with LOLGOP, the Republicans on SCOTUS really believe Trump’s garbage claims that his prosecution was about revenge and despotism, rather than an effort to stave it off.

Trump has gotten people who claim to care about the country to view up as down, fascism as freedom.

Never mind that a court riddled with corruption scandals invoked the passage of the Farewell Address warning against it.

Between the shock of the overall holding and the obsession with Joe Biden’s poor debate, though, there has been little focus on an equally troubling part of Roberts’ opinion: one sanctioning the wholesale politicization of DOJ.

In the passage throwing out the charges involving Jeffrey Clark altogether, Roberts prohibits review of not just DOJ’s prosecutorial decisions (except, of course, when they involve a President’s predecessor, in which case DOJ has very constrained authority), but also of the President’s involvement in those decisions.

The Government does not dispute that the indictment’s allegations regarding the Justice Department involve Trump’s “use of official power.” Brief for United States 46; see id., at 10–11; Tr. of Oral Arg. 125. The allegations in fact plainly implicate Trump’s “conclusive and preclusive” authority. “[I]nvestigation and prosecution of crimes is a quintessentially executive function.” Brief for United States 19 (quoting Morrison v. Olson, 487 U. S. 654, 706 (1988) (Scalia, J., dissenting)). And the Executive Branch has “exclusive authority and absolute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime. Nixon, 418 U. S., at 693; see United States v. Texas, 599 U. S. 670, 678–679 (2023) (“Under Article II, the Executive Branch possesses authority to decide ‘how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.’” (quoting TransUnion LLC v. Ramirez, 594 U. S. 413, 429 (2021))). The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to “take Care that the Laws be faithfully executed.” Art. II, §3. And the Attorney General, as head of the Justice Department, acts as the President’s “chief law enforcement officer” who “provides vital assistance to [him] in the performance of [his] constitutional duty to ‘preserve, protect, and defend the Constitution.’” Mitchell v. Forsyth, 472 U. S. 511, 520 (1985) (quoting Art. II, §1, cl. 8).

Investigative and prosecutorial decisionmaking is “the special province of the Executive Branch,” Heckler v. Chaney, 470 U. S. 821, 832 (1985), and the Constitution vests the entirety of the executive power in the President, Art. II, §1. For that reason, Trump’s threatened removal of the Acting Attorney General likewise implicates “conclusive and preclusive” Presidential authority. As we have explained, the President’s power to remove “executive officers of the United States whom he has appointed” may not be regulated by Congress or reviewed by the courts. Myers, 272 U. S., at 106, 176; see supra, at 8. The President’s “management of the Executive Branch” requires him to have “unrestricted power to remove the most important of his subordinates”—such as the Attorney General—“in their most important duties.” Fitzgerald, 457 U. S., at 750 (internal quotation marks and alteration omitted).

The indictment’s allegations that the requested investigations were “sham[s]” or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. App. 186–187, Indictment ¶10(c). And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials. [my emphasis]

Here, Roberts turns the Take Care Clause on its head. Whereas conservative judge Karen Henderson viewed the Take Care Clause to require that the President obey the law, Roberts instead sees that as a source of permission for the President to demand investigations, even if they are proposed for an improper purpose.

In doing so, Roberts gives Joe Biden permission to demand an investigation of Ginni Thomas for the purpose of revenge against her spouse.

To be sure, in spite of Roberts’ expansive permission for President’s to politicize DOJ, there appear to be limits. Joe Biden cannot order the IRS to review whether Clarence Thomas has written off all the undeclared boondoggles Harlan Crow has given him.

One of the only laws specifically mention the President, it turns out, is 26 USC 7217, which prohibits certain people, including the President himself, from asking the IRS to take investigative action against a taxpayer.

(a)Prohibition
It shall be unlawful for any applicable person to request, directly or indirectly, any officer or employee of the Internal Revenue Service to conduct or terminate an audit or other investigation of any particular taxpayer with respect to the tax liability of such taxpayer.

(b)Reporting requirement
Any officer or employee of the Internal Revenue Service receiving any request prohibited by subsection (a) shall report the receipt of such request to the Treasury Inspector General for Tax Administration.

[snip]

(e)Applicable person
For purposes of this section, the term “applicable person” means—
(1)the President, the Vice President, any employee of the executive office of the President, and any employee of the executive office of the Vice President; and

This law could one day, in the not-too-distant future, come before the Justices. It could even do so in the specific context at issue here, Donald Trump’s pressure on Jeffrey Rosen on December 27, 2020.

That’s because, as laid out in Hunter Biden’s selective and vindictive prosecution claim, in the very same conversation where Trump demanded that DOJ make false claims about election fraud, he also pressured Rosen to investigate Hunter Biden “for real.”

On December 27, 2020, then Acting Deputy Attorney General Richard Donoghue took handwritten notes of a call with President Trump and then Acting Attorney General Jeffrey Rosen, showing that Mr. Trump had instructed Mr. Rosen and Mr. Donoghue to “figure out what to do with H[unter] Biden” and indicating that Mr. Trump insisted “people will criticize the DOJ if he’s not investigated for real.”57

57 Dec. 27, 2020 Handwritten Notes of Richard Donoghue Released by H. Oversight Comm. at 4 (emphasis added), www.washingtonpost.com/context/read-richard-donoghue-s-handwrittennotes-on-trump-rosen-calls/cdc5a621-dfd1-440d-8dea-33a06ad753c8; see also Transcribed Interview of Richard Donoghue at 56 (Oct. 1, 2021), H. Oversight Comm., https://www.govinfo.gov/content/pkg/GPO-J6-TRANSCRIPT-CTRL0000034600/pdf/GPO-J6- TRANSCRIPT-CTRL0000034600.pdf.

Hunter Biden’s as-applied challenge to his gun charges are more likely to get to SCOTUS and do so more quickly.

But his prosecution, with the President privately and publicly intervening both as President and as candidate to replace his father raises fairly unprecedented questions about the due process rights of a person whom the President has demanded be investigated for the purpose of revenge.

Until such a case gets reviewed, however, John Roberts has invited Joe Biden to call up Merrick Garland and demand not just that DOJ open an investigation into Ginni Thomas, but to appoint a Special Counsel who could continue the investigation for the foreseeable future.

By refusing all review of improper pressure on the Attorney General, John Roberts has not eliminated the risk of revenge and despotism.

He has, rather, sanctioned it.

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“Double Jeopardy Protection … Is [Hunter Biden’s] Right”

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“Mr. Biden took the case to trial,” Abbe Lowell wrote in a reply brief arguing that an June 25, 2022 amendment to the statute that previously made 18 U.S.C. § 922(g)(3) a crime made the possession charge filed against Hunter non-viable retroactively, “so that either by conviction or acquittal from the jury or by this Court, he would have double jeopardy protection against future prosecutions. That is his right.”

The means by which Lowell hopes to make the third count of which Hunter was convicted go away are a bit tricker than that: basically, when Congress changed the gun law in 2022, they added another one, increasing the penalty on the charge. But there was no way (Lowell argues) to charge Hunter under a law enacted four years after he owned a gun if he hadn’t already been charged.

The Special Counsel’s invocation of the 1871 savings clause now found in 1 U.S.C. § 109 is off base, because that statute only saves prosecutions that already had been filed when the law was amended. It does not allow the Special Counsel to bring new prosecutions post-amendment based on conduct that violated a pre-amendment statute, which is exactly what the Special Counsel has done. Not only does the language of Section 109 itself make this clear, but the 153-year history since the statute was enacted confirms this reading. Congress regularly attaches savings clauses to legislation to allow new prosecutions to be brought for violations of prior law, when it chooses to do so, and it did not do so here.

As I said here, I was persuaded by Derek Hines’ argument that this complaint is untimely. I’m no longer so sure.

What I am humbly reconsidering, though, is whether when I scolded others for oversimplifying the reasons why Hunter would go to trial, I was not myself also oversimplifying.

Take the new motion Lowell filed today (though he accidentally posted, then withdrew it, last week), arguing that because the Third Circuit never issued a mandate after rejecting Hunter’s second bid for interlocutory appeal, Maryellen Noreika did not have jurisdiction over this case when she held a trial.

The Third Circuit entered an order dismissing Mr. Biden’s second appeal on May 28, 2024, and denied Mr. Biden’s rehearing petition on the first appeal on May 31, 2024. The Third Circuit, however, did not then and has not yet issued its mandate as to the orders dismissing either appeal. Thus, when this Court empaneled the jury on June 3, 2024 and proceeded to trial, it was without jurisdiction to do so.

This particular motion would not win an acquittal if it were to succeed. It would only get Hunter a new trial.

But if Lowell was really confident that this jurisdictional ploy would work, it might explain some of the things he appeared to let slide at trial. If Lowell expected he might get a second trial, potentially even one with the core gun charge eliminated, he might let some things slide he otherwise would not, thereby preserving those arguments for a potential second trial.

That leaves the substantive reply submitted today, Lowell’s post-Rahimi support for Hunter’s as-applied Second Amendment challenge, which like Derek Hines’ response, is longer than his initial Rule 29 motion (though the reply is still have the length of Hines’ response).

This fight — because of the nearly unique nature of the charges against a non-violent offender like Hunter, because of the circumstances of his charging, because of the timing — was always going to be interesting.

It does not disappoint.

This filing mocks SCOTUS as much as David Weiss’ folks.

The Special Counsel often relies on post-Founding Era purported precedents, but those come too late to inform what was intended by those who ratified the Second Amendment. As Rahimi explained: “A court must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit, ‘apply[ing] faithfully the balance struck by the founding generation to modern circumstances.’” Slip op. at 7 (quoting N.Y. State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 29 & n.7 (2022); see also Slip op. at 3 (Gorsuch, J. concurring) (noting the relevant timeframe is the time of founding for interpreting the Constitution); Slip op. at 2 (Barrett, J., concurring) (explaining post-ratification practice may not reflect Founding Era views); Slip op. at 28 (Thomas, J., dissenting).

But the key point does something similar to the other tactical moves Lowell took today: It uses Leo Wise and Derek Hines’ prosecutorial dickishness against them. It notes that, against Lowell’s wishes, Judge Noreika granted prosecutors’ bid to keep all Second Amendment claims out of trial.

It was only told to find whether the statutes as written were violated—without any further finding necessary to satisfy the Second Amendment. 6/10/24 Tr. at 1298. In fact, the Special Counsel sought, and this Court granted, a motion in limine to prevent reference to a Second Amendment defense. D.E.189 at 3 (Order granting government’s motion (D.E.124) to exclude argument, evidence and questioning relating to the constitutionality of the firearm statute). The Sixth Amendment prevents Mr. Biden’s conviction from resting upon any judge found facts, those facts must be found by a jury beyond a reasonable doubt, and—over Mr. Biden’s objection—the jury was not even asked to find the facts necessary for his conduct to be a crime consistent with the Second Amendment. Erlinger, Slip op. at 11 (“Judges may not assume the jury’s factfinding function for themselves, let alone purport to perform it using a mere preponderance-of-theevidence standard.”).

It emphasizes that Derek Hines instructed the jury from the start that they were not to consider the one thing SCOTUS says should be considered: whether an individual is dangerous.

Beyond advancing this erroneous legal theory (or “invented” theory, according to Justice Thomas, Slip op. at 28 (Thomas, J., dissenting)), the Special Counsel is simply wrong in claiming that Mr. Biden posed any risk of violence. We do not quarrel with the Special Counsel’s claims and statistics that many users of crack are violent and have misused guns, but—while the Special Counsel has extensively chronicled Mr. Biden’s conduct over several years of crack use—the Special Counsel has not identified a single time in which Mr. Biden became violent. Not one. And there is no evidence whatsoever that Mr. Biden ever loaded, fired, brandished, or threatened anyone with a gun, or that it was ever even in his actual physical possession at any time in which he was allegedly using any drug.

Mr. Hines conceded this point in his opening:

To be clear, Mr. Biden is not charged with a violent offense, the gun was taken from him just after 11 days before anything like that could occur. But it’s important to note that whether the defendant is dangerous is not an issue that’s relevant for your determinations in this case. He’s just charged with possession of a gun. 6/4/24 Tr. at 341 (emphasis added).

Not only is this an acknowledgment that no violent offense did “occur,” Mr. Hines told the jury it would not be making any finding as to “whether the defendant is dangerous.” Id. And he was right about that—nothing in the jury instructions asked the jury to find whether Mr. Biden was dangerous. Thus, even if this is an element of the offense that must be read into the statute to make it constitutional, the jury was not asked to find this element met as is required by the Sixth Amendment.

And it notes that Derek Hines cannot now argue that Hunter Biden was dangerous categorically.

The Special Counsel devotes much of its opposition to claiming that Mr. Biden’s drug use made him dangerous(D.E.234 at Sec. I.B.), but Rahimi clearly rejected the government’s argument that this is a basis for disarmament. A more particularized historical analogy is required. As the Supreme Court explained in Rahimi, while “holding that Section 922(g)(8) is constitutional as applied to Rahimi,” the Court “reject[ed] the Government’s contention that Rahimi may be disarmed simply because he is not ‘responsible.’” Slip op. at 17; see Slip op. at 6 (Gorsuch, J., concurring) (“Nor do we purport to approve in advance other laws denying firearms on a categorical basis to any group of persons a legislature happens to deem, as the government puts it, not ‘responsible.’”) (emphasis added). At oral argument, the government explained that “when it used the term ‘responsible’ in its briefs, it really meant ‘not dangerous.’” Slip op. at 28 (Thomas, J. dissenting) (emphasis in original). With respect to this argument “that the Second Amendment allows Congress to disarm anyone who is not ‘responsible’ and ‘law-abiding,’” Justice Thomas emphasized: “Not a single Member of the Court adopts the Government’s theory.” Id. at 27. To highlight thisfact, Justice Gorsuch requoted Justice Thomas’ point in his concurrence. Slip op. at 6 (Gorsuch, J., concurring) (“Not a single Member of the Court adopts the Government’s theory”).

The reason for that is self-evident. The Government’s proposed justification is also far too general. Nearly all firearm regulations can be cast as preventing ‘irresponsible’ or ‘unfit’ persons from accessing firearms. In addition, to argue that a law limiting access to firearms is justified by the fact that the regulated groups should not have access to firearms is a logical merry-goround. As the Court has made clear, such overly broad judgments cannot suffice.

Slip op. at 15 (Thomas, J., dissenting).

It’s the jury’s job to make findings of fact that might be required by SCOTUS’s fiddling with gun laws.

The Special Counsel devotes much of his brief to arguing the facts, but he is directing his repeated closing argument to the wrong forum. This Court properly told the jury that “you are the sole judges of the facts,” and this jury was not asked to find the constitutionally relevant facts.

This won’t persuade Judge Noreika. But it will bollox the posture of this case, particularly if Hunter wins a retrial based on the jurisdictional ploy. What kind of jury instructions would Noreika give, post-Rahimi?

Finally, Lowell notes that if SCOTUS eventually does change the rules on 18 USC 922(g)(3) prosecutions — perhaps by requiring that a jury find a defendant also posed a danger as an addict — Hunter would never have had notice of this standard before he violated it.

That begs the question:* where is this line that separates not only what is legal from what is illegal, but where the exercise of a constitutionally protected right becomes a felony? How does a person have fair notice of when he or she is allowed to possess a firearm if they used a prohibited substance a day, a week, a month or, as the Special Counsel argued, years before? This Court has not said, and the jury that would have to find a constitutionally permissible charge to convict was not told either. In other words, whatever more facts must be proven beyond Section 922(g)(3)’s statutory language for a conviction to be proven—such as active intoxication while physically armed and terrorizing people—remains an unknown and were never found by the jury.

Moreover, once the Court does announce where this line exists, that guidance is only of value to the people of Delaware prospectively. It comes too late for people like Mr. Biden to be able to conform their conduct within the constitutional bounds of the law previously. Thus, while courts may impose limiting constructions on a statute to resolve constitutional problems with them in some circumstances, principles of due process notice prevent those new standards from being applied retroactively. See, e.g., Marks v. United States, 430 U.S. 188, 194–95 (1977); Bouie v. City of Columbia, 378 U.S. 347, 362 (1964). Additionally, when courts add a judicial gloss on a statute, that gloss must be charged in an indictment like any other element. See, e.g., Simmons, 96 U.S. at 363. There is no point in saving a statute from being found unconstitutional through a limiting construction if the grand jury that makes a charging decision and the jury that is asked to convict are never told what is required by a court’s limiting construction. Consequently, if the Court finds that the Second Amendment places a gloss on Section 922(g)(3) that narrows the constitutionally permissible scope of the statute, Mr. Biden must be acquitted on that ground alone.

None of this is about contesting the circumstances of Hunter’s addiction when he possessed a gun. Rather, it’s about contesting whether his addiction would be enough to satisfy any new standard SCOTUS might adopt.

But these problems were always inherent in charging a non-violent offender on gun charges just days before the statutes of limitation expired even as multiple post-Bruen challenges threatened to change the landscape of the crimes charged.

This won’t win acquittal on all charges for Hunter. But it may well complicate things.

* Note: Having called out Judge Scarsi for his misuse of “begs the question,” I must call out Lowell’s usage here, too.

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Derek Hines Ensures that Two Likely Appeals Will Implicate His False Claims about Hunter Biden’s New Haven Crack Pipe

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Hunter Biden filed three Rule 29 motions after the government rested in its case in chief against him in Delaware: a motion claiming there was insufficient evidence against him that is a formality in advance of other appeals, a claim about a recent change in the gun law that David Weiss convincingly argued is untimely, and his promised Second Amendment as-applied challenge.

While I disagree with virtually every commentator that a Second Amendment challenge is Hunter’s best chance at overturning his conviction, the as-applied challenge, more than his more general Second Amendment challenge, may prove important in years ahead– and it will take years, not least because Judge Noreika is unlikely to grant this challenge.

After all, one thing that makes Hunter’s prosecution almost unique is that there was and is no other legal judgment to implicate a tie between his addiction and the purchase of the gun, such as a related crime. There was no legal fact-finding, as there had been in imposing the restraining order on Rahimi, that he posed a threat. No court had found Hunter’s addiction to pose a threat to others. When a Biden-hating cop interviewed him after Hallie filed a police report, that cop did not prosecute — or even test — Hunter for doing drugs in the recent days.

On Friday, hours after the Supreme Court ruled against Zackey Rahimi’s challenge to restrictions on domestic abusers’ gun ownership, Derek Hines filed Special Counsel’s opposition to Hunter’s as-applied challenge. Unsurprisingly (and uncontroversially), the opposition relies heavily on Rahimi decision.

At trial, the government proved that the defendant was a heavy crack cocaine user who frequently posed a danger to himself and others. Section 922(g)(3), as applied to the defendant, falls squarely within “this Nation’s historical tradition of firearm regulation” and comports with the Second Amendment. New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 17 (2022). The Supreme Court’s decision today in United States v. Rahimi, No. 22-915 (U.S. June 21, 2024) clarified that Bruen only requires the government to show “the challenged regulation is consistent with the principles that underpin our regulatory tradition,” not that it is “identical” to a regulation at the founding. Slip op at 7. This significantly undermines the defendant’s reliance on United States v. Daniels, 77 F.4th 337 (5th Cir. 2023), which cites repeatedly to the now-reversed Fifth Circuit decision in Rahimi. As to the Fifth Amendment challenge, because § 922(g)(3) provides fair notice of the conduct it prohibits, it is not unconstitutionally vague. The Court should therefore deny the defendant’s motion.

But aside from that tactical opportunism, Hines doesn’t argue why Hunter himself posed a danger as a gun owner in October 2018, beyond pointing to the specific gun paraphernalia that, Abbe Lowell argued fairly convincingly, Gordon Cleveland upsold Hunter Biden to purchase.

Indeed, having argued assertively at trial that Hunter was a very high functioning crack addict, Hines relies on general policy arguments about addicts’ impairment to explain the danger of him owning a gun.

It is beyond dispute that firearm possession while operating under significant cognitive impairment in critical areas like attention, speed of processing, emotional regulation, inhibition control, and the ability to prioritize negative long-term consequences—not to mention psychological and physiological effects like panic, paranoia, tremors, or muscle twitches—presents a significant public safety risk. Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 670-71, 674 (1989). The dangerousness of the defendant’s cocaine use is vividly shown by the evidence presented at trial, in which the loss of inhibition, emotional regulation, and self-control was demonstrated. See, e.g., Ex. 19 at 170-74 (discussing an episode in which the defendant drove a 500-mile road trip on which he wrecked a rental car when he hit the curb and spun into oncoming traffic, chain-smoked crack cocaine while driving, and chased a possibly hallucinatory barn owl at high speeds “through a series of tight, bounding switchbacks”).

As the Fried court noted, “unlawful drug use . . . causes significant mental and physical impairments that make it dangerous for a person to possess firearms.” 640 F. Supp. 3d at 1262-63. People who habitually use a substance like crack cocaine that impairs the ability to think, judge, and reason “are analogous to other groups the government has historically found too dangerous to have guns.” Id. at 1263; see also Wilson v. Lynch, 835 F.3d 1083, 1094 (9th Cir. 2016) (“It is beyond dispute that illegal drug users . . . are likely as a consequence of that use to experience altered or impaired mental states that affect their judgment and that can lead to irrational or unpredictable behavior.”); United States v. Carter, 750 F.3d 462, 469-70 (4th Cir. 2014) (finding “convincing” the government’s argument “that drugs ‘impair [users’] mental function . . . and thus subject others (and themselves) to irrational and unpredictable behavior’”); Yancey, 621 F.3d at 685 (“habitual drug abusers, like the mentally ill, are more likely to have difficulty exercising self-control, making it dangerous for them to possess deadly firearms”).

Perhaps the weirdest thing Hines does, as he did at trial, is to present evidence of Hunter’s later condition to substantiate his case, citing evidence of Hunter’s crack use in November and December 2018 and February and March 2019.

By March 2019, he claimed he had “no plan beyond the moment-to-moment demands of the crack pipe” and that this period followed “four years of active addiction.” Id. at 219-20.

[snip]

The defendant also discussed purchasing drugs in text messages with several individuals, showing a pattern of consistent drug use from spring 2018 to spring 2019. See, e.g., Ex. 18 at Row 1-22 (April 2018); id. at Row 23-65 (May 2018); id. at Row 66-72 (June 2018); id. at Row 73-85 (July 2018); id. at Row 86-87 (August 2018); id. at Row 169- 80 (November 2018); id. at Row 195-206 (December 2018); id. at Row 217-49 (February 2019). [my emphasis]

Admittedly, Hines would have had virtually all of this written before Rahimi. But the SCOTUS decision stresses temporary prohibitions, not permanent ones. And particularly absent a focus on Hunter’s drug use between the time of his August rehab and the gun purchase (Hines cites but does not quote Zoe Kestan’s testimony describing Hunter’s use in September 2018), Hines’ inclusion of so much evidence that post-dates Hunter’s ownership of a gun entirely makes the constitutional question more interesting.

Can an addict really lose his Second Amendment rights for future addiction?

And in the middle of one of those passages about Hunter’s future drug use months after he owned the gun, Hines includes the false claim he won’t stop making: that Hunter’s description of “me and a crack pipe in a Super 8” pertained to the state of his addiction in fall 2018, shortly after he owned a gun, rather than four months later, after Fox News pundit Keith Ablow’s treatment had made Hunter’s addiction worse.

The defendant characterized his daily experience in November 2018 as “me and a crack pipe in a Super 8 [motel], not knowing which the fuck way was up,” explaining that “[a]ll my energy revolved around smoking drugs and making arrangements to buy drugs.” Id. at 208. According to the defendant, by March 2019, he had “no plan beyond the moment-to-moment demands of the crack pipe.” Id. at 219-20.

Now, Hines’ obtuse misrepresentation of this passage presents more problems for a defense against a vindictive prosecution appeal. After all, by repeating this false claim six times (he repeated it in his response to the sufficiency challenge, as well, because apparently Hines doesn’t know “which the fuck way [is] up”), Hines is either confessing that he grossly misread the memoir which he successfully argued before Judge Noreika distinguished Hunter from other non-violent addicts who never get charged…

…Or he simply framed Hunter Biden before the grand jury, just like a corrupt Baltimore cop would frame someone by planting a crack pipe, claiming that conduct that took place long after the charged crime instead took place just weeks later.

Derek Hines had little of the evidence he used to prove his case at trial when he indicted Hunter Biden in September of last year. He didn’t have the cocaine residue in the leather pouch, he didn’t have a warrant to search Hunter’s text messages for evidence of gun purchases, he had some, but not all, of Kestan’s testimony.

Did he falsely tell the grand jury, as he told Maryellen Noreika and insinuated to the jury, that this passage pertains to “fall 2018”?

Did he make an easily disproven false claim to the grand jury to get that indictment? (The materials below show how easy this should be for a literate prosecutor to understand.)

But it is in Kestan’s testimony where his continued recitation of this line poses problems.

To win this constitutional challenge, Hines needs Kestan’s testimony that Hunter was doing drugs between his August rehab and his October gun purchase to be credible, because otherwise there are questions about the status of his addiction when he purchased the gun.

Q. And this was September the 18th of 2018, right?

A. I believe I was in the room by myself when I took that photo, so I think the day that we woke up there and he left later was the 17th.

Q. Okay. The day or — and the night he was there with you, did you see him smoking crack at The Freehand?

A. Yes.

[snip]

Q. All right. Now, when you get there on September the 20th of 2018, you’ve already testified he was smoking crack at The Freehand. Was he smoking crack at the Malibu house, when you were there in that week starting on September the 20th?

A. Yes.

But — on top of the full excerpt and spending records I place below, showing that Hines is wrong about his claims about the Super 8 passage — Kestan’s testimony debunks Hines’ unhealthy obsession with that line about the Super 8.

Q. And when you got there, where was he staying?

A. He was staying on an island called Plum Island, next to, or part of a place called Newburyport, Massachusetts, he said he was doing a ketamine infusion treatment.

Q. What did you understand that to mean?

A. It sounded like it was an outpatient type thing, where he would go to a clinic during daytime hours and get the treatment. And he was staying in a, like a rental house on his own otherwise.

Q. And when you went to visit him, did he in fact leave for whatever these treatments were?

A. Yes.

Hunter Biden wasn’t in New Haven in November 2018, when Derek Hines claims he was smoking the crack pipe Hunter described himself smoking in a Super 8 in New Haven (though in reality, only a few of the hotels at which he stayed in New Haven were as sketchy as a Super 8, and the only obvious one was a Quality Inn, not a Super 8).

He was, per Hines’ most important witness for this as-applied challenge, in a house out on Plum Island, outside Newburyport, still getting the Ketamine treatments that preceded the scene that Hines won’t stop falsely claiming happened in 2018.

Again, Hines’ persistent false claims about New Haven matter more in a hypothetical selective prosecution challenge, because Hines’ false claim was central to his assertions that there was reason to charge Hunter when he did.

But this as-applied constitutional challenge will implicate the timeline, what came before and what came after. And Derek Hines has persistently and obtusely made false claims about the timeline so he could rely on his favorite passage from Hunter’s book, including in his response to this as-applied challenge.

Memoir excerpt

The following excerpt shows the full context of Derek Hines’ favorite passage from Hunter Biden’s memoir. The italicized text was not included in the exhibit and audio-recording presented to the jury, which clearly places this description after his treatment from Ablow.

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.

The reality is, the trip to Massachusetts was merely another bullshit attempt to get well on my part. I knew that telling my family I was in rehab meant I could claim they wouldn’t be able to contact me while I was undergoing treatment. I’d made my share of insincere rehab attempts before. It’s impossible to get well, no matter what the therapy, unless you commit to it absolutely. The Alcoholics Anonymous “Big Book”—the substance abuse bible, written by group founder Bill Wilson—makes that clear: “Half measures availed us nothing.”

By this point in my life, I’d written the book on half measures.

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

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

I headed back toward Delaware, in no shape to face anyone or anything. To ensure that I wouldn’t have to do either, I took an exit at New Haven.

To ensure that I wouldn’t have to do either, I took an exit at New Haven. For the next three or four weeks, I lived in a series of low-budget, low-expectations motels up and down Interstate 95, between New Haven and Bridgeport. I exchanged L.A.’s $400-a-night bungalows and their endless parade of blingy degenerates for the underbelly of Connecticut’s $59-a-night motel rooms and the dealers, hookers, and hard-core addicts—like me—who favored them. I no longer had one foot in polite society and one foot out. I avoided polite society altogether. I hardly went anywhere now, except to buy. It was me and a crack pipe in a Super 8, not knowing which the fuck way was up. 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.

New Haven area spending, February to March 2019

The following collects a non-exhaustive summary of money Hunter Biden spent in and around New Haven between February 11 and March 9, 2019. There is no other similar presence in New Haven that is easily identifiable.

This timeline happens to coincide with some of Hines’ favorite proof of drug purchases, as well.

February 11, 2019: Courtyard, New Haven

February 13, 2019: Courtyard, New Haven

February 13, 2019: Purchase at Reruns Bar and Grill, West Haven

February 13, 2019: Non-WF ATM withdrawal Broadway, New Haven

February 14, 2019: Purchase at Zachary’s Package Store, New Haven

February 14, 2019: Purchase at Citgo, New Haven

February 14, 2019: Non-WF ATM withdrawal Broadway, New Haven

February 14, 2019: New Haven Parking

February 15, 20199: ExxonMobil, West Haven

February 15, 2019: Non-WF ATM withdrawal Whitney Ave, Hamden

February 15, 2019: Non-WF ATM withdrawal Elm Street, West Haven (4X)

February 15, 2019: Non-WF ATM withdrawal Sawmill, West Haven (2X)

February 15, 2019: Purchase at New Haven Pizza, New Haven

February 15, 2019: Non-WF ATM withdrawal Highland, West Haven (4X)

February 15, 2019: Purchase at Sawmill Package Store, West Haven

February 15, 2019: ExxonMobil payment, West Haven

February 16, 2019: Carriage House, New Haven

February 16, 2019: Purchase at Around the Clock, New Haven

February 16, 2019: Purchase at Walgreens, New Haven

February 17, 2019: Carriage House, New Haven

February 17, 2019: Purchase at CVS, Hamden

February 17, 2019: Purchase at Tommys Tanning, Hamden

February 17, 2019: Non-WF ATM withdrawal Whitney Ave, Hamden

February 18, 2019: Carriage House, New Haven

February 18, 2019: Uber used on new device in Hamden

February 18, 2019: Non-WF ATM withdrawal Hamden Plaza, Hamden

February 18, 2019: Non-WF ATM withdrawal Dixwell Ave, Hamden

February 18, 2019: Non-WF ATM withdrawal Whitney Ave, Hamden

February 18, 2019: Purchase at McDonalds, Hamden

February 19, 2019: Non-WF ATM withdrawal Whitney Ave, Hamden

February 19, 2019: Uber ride from West Haven to Hamden

February 19, 2019: Booking.com The Blake Hotel, New Haven

February 19, 2019: Purchase at Drizly, New Haven

February 20, 2019: Uber ride from Milford to New Haven

February 21, 2019: Uber ride from New Haven to Milford

February 21, 2019: ATM withdrawal Hemingway Ave, New Haven

February 21, 2019: Purchase at Zachary’s Package Store, New Haven

February 21, 2019: Purchase at Fatface Corporation, New Haven

February 21, 2019: Purchase at Patagonia New Haven

February 21, 2019: Parking paid in New Haven

February 21, 2019: Parking paid in New Haven

February 23, 2019: Booking.com Marriott Worcester

February 24, 2019: Purchase at Whiskey on Water, Worcester

February 26, 2019: Uber ride from New Haven to New Haven

February 26, 2019: Purchase at Energy, Berlin

February 26, 2019: Purchase at Walgreens, New Haven

February 26, 2019: Purchase at Pizza Plus, New Haven

February 26, 2019: Non-WF ATM withdrawal College Street, New Haven

February 27, 2019: Non-WF ATM withdrawal College Street, New Haven

February 27, 2019: Non-WF ATM withdrawal George Street, New Haven

February 27, 2019: Uber ride from New Haven to New Haven

February 28, 2019: New sign-in to Twitter on Safari in New Haven

February 28, 2019: Non-WF ATM withdrawal Chapel Street, New Haven (2X)

February 28, 2019: Non-WF ATM withdrawal Church Street, New Haven

February 28, 2019: Non-WF ATM withdrawal George Street, New Haven

February 28, 2019: Non-WF ATM withdrawal Broadway, New Haven

February 28, 2019: Purchase at Meat&Co, New Haven

February 28, 2019: Purchase at Rite Aid, New Haven

February 28, 2019: Pick-up iPhone XR at Apple New Haven

February 28, 2019: Uber ride from Naugatuck to New Haven

February 28, 2019: Uber ride from New Haven to Naugatuck

March 3, 2019: ATM withdrawal Campbell Ave, New Haven

March 4, 2019: ATM withdrawal Foxon Blvd, New Haven

March 4, 2019: ATM withdrawal Hemingway Ave, New Haven

March 6, 2019: Purchase at Sunoco, Naugatuck

March 6, 2019: Purchase at Family Dollar, Naugatuck

March 6, 2019: ATM withdrawal Whalley Ave, New Haven

March 6, 2019: New sign-in to Twitter on Safari in New Haven

March 6, 2019: ATM withdrawal Church Street, New Haven (X4)

March 6, 2019: Purchase at Temple Wine and Liquor Store, New Haven

March 6, 2019: Uber ride from New Haven to New Haven

March 6, 2019: Booking.Com Omni Hotel New Haven

March 7, 2019: Uber ride from West Haven to New Haven

March 8, 2019: Uber ride from point to point in New Haven

March 8, 2019: ATM withdrawal Hemingway, East Haven

March 9, 2019: Quality Inn, New Haven (2X)

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Hunter Biden’s Prosecutors Complained about the Laptop, Once, Too

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Just over a month ago, Judge Maryellen Noreika denied Hunter Biden’s request to compel prosecutors to provide better guidelines about where it had obtained evidence they would use against him. Because Derek Hines had identified the individual messages he used in a filing — including the Keith Ablow picture of sawdust Hines claimed was cocaine — she deemed the request moot.

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.

Noreika’s refusal to require a searchable format came up at least twice at trial (probably three times). I’ve already described how prosecutors sprung the 7-Eleven texts on Hunter the morning of closing arguments. Hunter’s team surely looked for communications between Hunter and Naomi Biden before they put the daughter on the stand, but they seem to have been surprised by some texts changed that week (note, those texts were only used to refresh her memory, so did not come in as exhibits).

But even prosecutors complained that they couldn’t find things that had been on the laptop.

Before dropping four pages of new texts on Hunter Biden the last morning of trial, days earlier, Leo Wise complained that Hunter’s team had only identified the location of eight pages of texts they wanted to use to cross-examine Hallie the night before Hallie testified.

MR. WISE: The first issue is globally, we got this at 11:07 last night that actually provided the sources for these messages. We have been asking for it since Monday when they sent it to us. We of course provided our summary chart months ago. The whole point of the rule, 1006 to allow each side to check the accuracy of the statements that are in the summary chart. So we think the whole thing should be kept out because we haven’t had the time and they haven’t followed the rules to give us the time. And it’s eight-pages long.

Lowell responded that they had given the texts earlier; they had just provided the location the night before.

MR. LOWELL: Yes, of course. So as to the first one, Mr. Wise would indicate that the first time he saw these texts was whenever he just said. Actually, over the last few days we have back and forth, they keep asking us for source material and we keep trying to provide it.

THE COURT: What are these sources that they all have exactly the same number?

MR. LOWELL: I would like my colleague to address the source if I could have that happen.

MR. WISE: I didn’t say we saw the text for the first time last night, I said we saw the source.

Judge Noreika suggested that one thing prosecutors were trying to do was challenge the authenticity of the texts. Lowell reminded that he got Agent Jensen to vouch for authenticity on the stand.

THE COURT: I understand, you were trying to check the accuracy and authenticity.

MR. LOWELL: Again, one of the things I asked Agent Jensen was whether or not that material, the Cloud material, and the laptop was in the condition that they got it and whether they provided it to us in discovery and whether it was the same material and she said it was. That is the source, they have it and they sent it to us, we sent it back to them, but I’ll have Mr. Kolansky address the source for it.

MR. WISE: I don’t think they sent it back to us. But again, if you look at our chart, we literally have page 1001, I’m looking at a message 86, page 1412, so that they could go back exactly to where this message comes from and it was provided months ago.

That’s when Hunter attorney David Kolonsky revealed he was working from the hard drive of the laptop prosecutors provided and Hunter’s team used a different extraction tool to work from there.

MR. KOLANSKY: Your Honor, these messages that start on October the 11th, they’re extracted from the hard drive that we received in discovery from the government. It was a single hard drive with essentially, if you think about it —

THE COURT: So was there a way for you to say it’s on page whatever of the hard drive?

MR. KOLANSKY: There is not, Your Honor.

THE COURT: How did they do it?

MR. KOLANSKY: I don’t know how they do it, I don’t know what software they used.

THE COURT: How did you give them a specific place to go and he’s saying you can’t.

MR. WISE: We gave it to them both ways, they asked for the raw data and then we also gave them these extraction reports that reflect all of the messages that we are using with page numbers and all of the messages they’re using, they’re just somewhere in these 18,000 pages and they won’t tell us where.

THE COURT: You’re assuming they’re somewhere in these 18,000 pages, you don’t know?

MR. HINES: They keep saying they’re from the same data, so that means they should be on the extraction reports and the extraction reports are pages that are–

THE COURT: Can you get them that information?

MR. KOLANSKY: We can get them the information based on an extraction report that we created using an extraction software we have. It’s not going to match —

THE COURT: Did they give you an extraction —

MR. WISE: We gave them an extraction report, they did not give us whatever he’s referring to that has page numbers that we can look at.

THE COURT: So you gave them an extraction report, the same extraction report you used to come up with page numbers?

MR. WISE: Exactly.

THE COURT: Can you use that extraction report and give them page numbers?

When Judge Noreika asked why Kolansky didn’t just use the extraction report prosecutors provided, he said he couldn’t find all of them.

MR. KOLANSKY: When I searched these messages last night, Your Honor, for each of the 42 rows, I did not find these messages in the extraction report that they’re referring to.

MR. WISE: So they have discovery, an extraction report that they’re relying on that they haven’t give us which is the underlying material that supports under 1006 the summary report and they should have given it to us.

MR. KOLANSKY: Your Honor, we’re happy to provide the extraction report that we generated.

THE COURT: Why are you doing that today when you expect to use the exhibit today?

MR. KOLANSKY: It’s an extraction report that we used in order to thread the messages so that they’re readable.

THE COURT: Yes, but — what I’m confused about is you’re not giving them the information in the same way that they gave it to you. You’re saying — he’s saying look, tell us where it is, we gave you an extraction report and you’re telling me but it’s not in, it’s something new that wasn’t in the government’s extraction report and you can’t tell us where it is?

MR. KOLANSKY: Let me try to rephrase it, maybe I’m mischaracterizing it. When we —

THE COURT: Was it in the — so the government gave you an extraction report, you’re telling me these messages you want to use were not in there.

MR. KOLANSKY: Correct. They were in something else.

MR. LOWELL: They were in a separate sub-data, the extraction reports were from the iCloud, these messages were derived not from the source file, but from Macintosh HD, Macintosh hard drive, so there is two worlds of discovery, iCloud, and those were the extraction reports, and then material from the hard drive, which we extracted ourselves based on the forensic images they provided.

THE COURT: Did you give them an extraction from the hard drive?

MR. WISE: Yes, from the laptop. There is an extraction– that’s why if you remember when Agent Jensen was testifying, the format changed —

THE COURT: So these are messages that you’re using from the laptop, not from the — not from the iCloud.

MR. KOLANSKY: They’re from the hard drive that we received from the government.

THE COURT: The hard drive image is from the laptop. You guys are talking, I got laptops and hard drives, and I don’t even know what else I got, iClouds, oh my.

MR. KOLANSKY: Yes, that’s right.

THE COURT: So the hard drive, though, is the hard drive that correlates with the laptop.

MR. KOLANSKY: Yes, Your Honor.

THE COURT: So these are messages you want to rely on from the laptop that are not in the iCloud?

MR. KOLANSKY: That’s correct, Your Honor.

THE COURT: Okay. And you’re saying, Mr. Wise, that you gave them extraction files from the hard drive/laptop.

MR. WISE: Exactly.

THE COURT: And why didn’t you give them from that extraction file, the page numbers?

MR. KOLANSKY: I have not seen that extraction report, Your Honor.

MR. WISE: We provided it in discovery. It was — that’s how we made the chart, I mean, which they’ve had for months. So if they looked at that chart and said wait a minute this says laptop, we don’t have an extraction report from the laptop, where are you getting this from, we would have expected to hear that months ago. There is clearly an extraction report, that’s what the 1006 reflects and we reattached it when we provided our expert discovery.

MR. LOWELL: One point on that, by the way, if we’re talking about authenticity, which I think is half the issue, we talked to the government and have the stipulation about it being authentic.

Finally, Wise and Hines started claiming that the reason they can’t find these texts are because maybe they were filtered as privileged.

MR. WISE: There is sort of two things with that. We didn’t get everything that’s on that laptop. It went through a filter review. So we may or may not have. They have the whole set. So first thing —

THE COURT: Filter review from whom?

MR. WISE: A separate team that we have no access, we’re walled off for, it’s in the search warrant, that is the protocol that would be followed. The first thing is whatever they would want to show her, they should give us, we should see it so we know, and we’re not going to be able to sitting here sort of find it on the fly. If the question is authenticity, sure a witness can testify that, you know, this is a text I sent or an e-mail I sent and that gets them through the authenticity gate, but it doesn’t necessarily get them through the admissibility gate and the admissibility gate is often things like is it a business record, that’s how it comes in, is it some other exception —

[snip]

MR. LOWELL: Yes. So we will try to get that done quickly and figure that out. Again, not that I feel like I need to apologize, but we have been going back and forth. The data is incredibly dense and we have gotten it from the government in various ways. And now I’m hearing that they’re saying in their extraction report or what they did, there may be things missing, well we have them from them, so I don’t know how things we put here could be missing because we didn’t invent this, we got it from them.

THE COURT: So anything — maybe I should address this to your colleague. So anything that you have gotten or put on this chart is something you got from the government, not from any other source?

MR. KOLANSKY: That’s correct, Your Honor, and I proffer that and it comes directly from the government and that is why I endeavored to be as precise as possible to the original source file path they can stick it on the hard drive and get exactly to the folder where that message is derived from on the hard drive we received.

MR. LOWELL: Like last night I think, or yesterday afternoon, whenever we were able to go back, we provided them with the media that they can go and do exactly what Mr. Kolansky just said and check it. Now if they chose not to, I’m sorry but we gave it to them because that’s the best you can do with the data they gave us.

THE COURT: All right.

MR. WISE: No, no, we didn’t get any media, I got, 11:07, I saw something on my phone that has this path name that I don’t know what it is.

MR. LOWELL: I’m sorry, we gave them the file path one by one of something they gave us.

MR. WISE: Yeah.

THE COURT: The file path one by one, but the file path is identical.

MR. HINES: It’s filtered, we can’t see that but we can’t — and they know that from the search warrant, it’s in the search warrant.

THE COURT: So you’re limited in what you can do because you’re trying to protect rights using only the information allowed from the search warrant.

MR. WISE: Exactly.

MR. LOWELL: What I’m learning for the first time, understand this, they have provided us in discovery things that they’re saying that the investigative team does not have. So I didn’t realize that, I thought it was a one to one match, you would have assumed that otherwise I don’t know why they would have sent it to me, it’s not attorney/client materials we’re talking about, it’s conversations between Mr. and Ms. Biden, so I don’t understand that.

MR. WISE: It’s Rule 16, it’s his statement, we have to turn it over, if it’s privileged, we don’t get to see it if it goes through a filter, this is not anything new, the search warrant says it went through a filter.

Even Judge Noreika scoffed that the government would have filtered communications between Hunter and Hallie as privileged, which led Wise to channel Donald Rumsfeld invoking known unknowns.

THE COURT: He’s saying this is conversation between Mr. Biden and Ms. Biden, there is no arguable privilege here.

MR. WISE: Again, we don’t know what we don’t know, when they say we got it, we don’t have it

Again, Hunter’s team blew the deadline for exhibits, so part of this was their fault (though these were exhibits for cross-examination).

But ultimately, Hines and Wise’s silly claims that they couldn’t find individual comms either stems from the failure to do an index of the laptop in the first place.

Even prosecutors had a problem with the complexity of the laptop, and in that moment, tried to claim (in part) that they could exclude material from the laptop they had testified was authentic because they couldn’t find it.

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The Threats that Hunter Biden’s Prosecutors Pretended Didn’t Exist Continue Unabated

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Twice in the lead-up to Hunter Biden’s first trial, Leo Wise and Derek Hines pretended that threats elicited by the political firestorm surrounding the case didn’t exist.

When Abbe Lowell raised the threats David Weiss faced and cited a story describing Weiss’ testimony about the safety of his family, Derek Hines continued to insist that there was no way Trump — who attacked Weiss personally after the plea deal was docketed — could have influenced the case (before Judge Noreika, prosecutors had claimed to be incompetent to find the offending Trump posts on Truth Social).

If the statements by politicians prior to the hearing truly influenced the prosecution in the way the defendant claims they did, why did the government sign the agreements and present them at the hearing? Second, to state an obvious fact that the defendant continues to ignore, former President Trump is not the President of the United States. The defendant fails to explain how President Biden or the Attorney General, to whom the Special Counsel reports, or the Special Counsel himself, or his team of prosecutors, are acting at the direction of former President Trump or Congressional Republicans, or how this current Executive Branch approved allegedly discriminatory charges against the President’s son at the direction of former President Trump and Congressional Republicans. The defendant’s fictious [sic] narrative cannot overcome these two inescapable facts.

Then, in a March hearing on that motion as well as one arguing that the publicity campaign from the disgruntled IRS agents had unlawfully influenced the prosecution, Leo Wise claimed there’s no proof that the IRS agent campaign started the dominoes that led Weiss to renege on the plea deal.

MR. WISE: So I think the Defense’s problem is the same problem you identified in the last motion, which is they offer no proof. None. None whatsoever that there’s causation.

I wrote down what Mr. Lowell said. He said the agents “did the causation.” What does that mean?

Where’s the proof that these two guys going on TV had anything to do with what we did?

Well, they said, “Oh, they started the dominoes.”

What dominoes? Where is the proof of any of that?

Other than insulting us, where is the proof that anything these two agents — who I couldn’t have picked out of a lineup — had anything to do with our decision-making?

Wise said that as David Weiss looked on. While neither Jim Jordan nor DOJ have released the transcript proving it, according to Special Agent in Charge Thomas Sobocinski, both Sobocinski and Weiss acknowledged, after Gary Shapley first started his media tour, that the publicity campaign, “would have had it had an impact on our case,” and that impact had been doxing and pressure on members of the investigative team.

Q After it became public that Gary Shapley was going to come to Congress and he gave, I think, an interview on CBS in the at the end of May before his congressional testimony, who did you discuss that with?

A My team within Baltimore, probably folks within the Criminal Investigative Division. Definitely David Weiss.

Q And what was the nature of your conversation with David Weiss?

A I need to go off the record for a minute.

Mr. [Steve] Castor. Okay.

[Discussion held off the record.]

Mr. Sobocinski. Yeah. In general, it was concerns about how this was going to affect the ongoing case and were there issues we needed to take into at least from the FBI side to move forward.

BY MR. CASTOR:

Q After Shapley’s testimony became public in June, did you have any conversations with David Weiss about that?

A We acknowledged it, but it wasn’t I mean, we didn’t sit there with the transcript going back and forth. We both acknowledged that it was there and that it would have had it had an impact on our case.

Q Okay. Did any of your conversations with David Weiss, you know, have anything to do with like, can you believe what Shapley’s saying, this is totally 100 percent untrue?

A I don’t remember that level of it.

Q If it was

A I was more concerned about how this is affecting my employees. I now have FBI employees that names are out there. I have FBI employees and former FBI retired agents who’ve served for 20plus years whose parents are getting phone calls, whose photos with their girlfriends, who their children who are being followed. That is not something that we were prepared for, and I was concerned about having that continue or expand to other one of my employees. [my emphasis]

The transcripts in which David Weiss, Lesley Wolf, and Martin Estrada described the threats they and their families faced as a result of the pressure campaign from the IRS agents, House Republicans, and Trump have not been released. The outcome of any investigations into those threats likewise remains secret. Similarly, the efforts US Marshals made in response, especially, to the threats against Wolf and Estrada remains secret, though even Ken Dilanian described a special unit to investigate threats against FBI agents on these high profile investigations.

While Abbe Lowell did not focus on the threats elicited by the pressure campaign as much as he might have, to the extent he did, prosecutors simply pretended those threats didn’t exist.

And then, hours and days after the Hunter Biden verdict, the vicious conspiratorial threats went public with the arrest affidavit for Timothy Muller, a Trump supporter in Texas who, six hours after the verdict, called the FBI agent who picked up the laptop from John Paul Mac Isaac (and who may not have been involved in the case since 2021) and threatened him and his family.

Hey [j], you little cock-sucking pussy! You can run, but you can’t fucking hide. You covered up child pornography. You covered up [Hunter Biden] raping his own fucking neice, you fucking piece of fucking degenerate shit! So here’s how it’s gonna go: [Trump’s] gonna win the re-election. and then we’re gonna fucking go through the FBI and just start throwing you cock-suckers in jail. OR, you can steal another election, and then the guns will come out, and we’ll hunt you cock-suckers down and slaughter you like the traitorous dogs you are in your own fucking homes. In your won fucking beds. The last thing you’ll ever hear are the horrified shrieks of your widow and orphans. And then you know what we’re going to do? Then we’re going to string those fucking cock-suckers up. We’re going to slaughter your whole fucking family, you fucking pedophile! It’s like THAT now. So choose. Jail? Or getting strung up and lynched like the fucking traitor you are. That’s what happens when you cover up for fucking pedophiles, you piece of fucking shit!

Trump supporters are calling investigators and threatening to lynch them because they’re not prosecuting conspiracy theories ginned up by fellow Trump supporters.

When staffers asked David Weiss last November about these threats, he offered up the word, “intimidation” (then disclaimed understanding the motive for such threats).

Q Has this outsized attention led to increased attention on your office specifically?

A It’s led to increased attention for everyone who has touched the case. I think that’s correct.

Q Has the outsized attention given to this case resulted in threats and harassment against members of your office?

A Yes. Members of my office, agents assigned to the case, both from the IRS and from the FBI, doxing family members of members of my office. So, yeah, it’s part and parcel of this case.

Q Do you have concerns for the safety of individuals working in your office?

A Sure. I have safety concerns for everybody who has worked on the case, and we want to make sure that folks — yeah, folks are encouraged to do what they need to do with respect to the pursuit of justice generally and they not be intimidated in any way from performing their responsibilities.

[snip]

Q Do you have concerns for your safety or that of your family because of these threats?

A You know, I’m not — for myself, I’m not particularly concerned. Certainly I am concerned, as any parent or spouse would be for — yeah, for family, yep.

And at least as expressed by Muller, these threats are intimately tied (as exploitation of Rudy Giuliani’s copy of the laptop and Trump’s threats to replace DOJ officials with Jeffrey Clark were in the first place) to Trump’s false claims about the 2020 election, to Trump’s bid to become a dictator from day one.

And even as prosecutors serve up one after another humiliating trial during campaign season, they’re pretending the campaign against Hunter Biden isn’t all part of Trump’s bid for unaccountable power.

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The Pee Tape: The Media’s Obsession with Jill Biden May Undermine the Jury

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Let say at the outset, I absolutely support the decision of the jury to convict Hunter Biden, based on the evidence submitted to them.

This description, from Juror 10, describes that Abbe Lowell’s attempt to explain away the 7-Eleven texts sprung on the defense the morning of closing arguments convinced the jury that Hunter had been trying to buy crack shortly before he denied being an addict on the gun form.

The 68-year-old juror from Sussex County, Delaware described the case to Fox News but said he didn’t buy the defense’s narrative that Hunter may have gone to a 7-Eleven to buy coffee — and said he thought he was probably buying crack-cocaine.

“Nobody is above the law, doesn’t matter who you are,” the juror said.

Prosecutors had suggested that Biden was trying to reach out and find drug dealers when he was arranging to meet someone at a Wilmington convenience store at 5 a.m. 7-Eleven was referenced in Biden’s Oct. 15-16, 2018, text messages. Biden also wrote about the convenience store in his memoir, “Beautiful Things,” explaining it was the type of place he would go to buy drugs.

That would suggest any question about the verdict would focus more on the way the prosecution submitted these texts, without identifying them as exhibits first, as a rebuttal case.

As zscoreUSA and I were discussing when I described the background of the texts, by submitting them in this way, Abbe Lowell had no opportunity to conduct a technical review of how those SMS texts, probably sent from a phone that Hunter lost the day he sent them, came to be found on a laptop that didn’t first associate to Hunter Biden’s iCloud account for another ten days. (He may later have found the phone, but this particular instance is a case that prosecutors would need to explain.)

So admitting them in this way did two things: Admitted case-in-chief evidence as rebuttal evidence, even though it had no plausible tie to rebutting Naomi Biden’s testimony, the pretext prosecutors used for doing so, and in so doing, depriving Lowell of making a technical challenge to their admission.

As I said before those texts came in, the case that Hunter used drugs during the period he owned the gun was strong. That made the decision on Count Three, possession, fairly clear cut. Short of nullification, the biggest question was whether jurors would find the sketchiness surrounding the form raised enough questions about it to give pause on the two form-related charges. Apparently it did: according to one report the last thing the jury decided was whether the form could be deemed material in a case where the gun shop admitted they sold the gun even though the paperwork was improper.

But once those 7-Eleven texts came in, it made any attempt to explain mindset at the gun shop far less convincing. As Lowell said, the texts were “case changing.”

So any question about the verdict will focus not on the jury, but on five decisions Noreika made:

  • To permit the prosecution to rely on laptop evidence without indexing and Bates stamping it first
  • To admit laptop evidence via summary, evading any technical validation
  • To prohibit virtually all discussion of the gun shop’s own alleged misconduct with respect to the form
  • To allow prosecutors to admit these texts as rebuttal, when they should have come in — as identified exhibits — in their case in chief
  • To keep “knowingly” off the verdict form

Again, with regards to the substance of the evidence, all of the many juror interviews demonstrate that the verdict was proper. I’m grateful for their service and happy that they’re not terrified of being doxxed, as all the Trump jurors (wisely) appear to be.

That said, the media’s obsession on whether Jill Biden’s presence in the courtroom played a factor — a question they seemed to ask every time a juror gave an interview — could undermine the jury in another way, because it introduces questions of juror credibility and raises further questions about their discussions before deliberating.

That’s because this tweet from Glenn Thrush suggests that jurors and the media were, at a minimum, aware of, if not interacting with, each other as they all stayed at the Doubletree Hotel next to the courthouse.

Juror 10, who lives an hour away from the courthouse, is among those who might have stayed at the hotel.

The jurors all promised they would keep an open mind. But there wasn’t a single journalist at the trial who exhibited an open mind — and almost none of them exhibited an understanding of the elements of offense for each of the three charges. Almost none of them understood that the four years of evidence of addiction was not dispositive about Hunter’s mindset on October 12, 2018.

The jurors were much smarter about the case than the tabloid journalists covering it. So even if jurors just heard reporters discussing the case at breakfast or the hotel bar, it might taint their understanding of the case (though Judge Noreika asked jurors Tuesday morning and they said they had not “[heard] anything” outside of the courtroom).

All the more so given that jurors went from a 6-6 split on the verdict on Monday to coming to unanimity after a few hours on Tuesday.

Because of the import of the 7-Eleven texts, any such taint likely wouldn’t matter.

But there is something that jurors have said that might raise questions.

Because the press asked and asked and asked about Jill Biden’s presence, there are many descriptions of how the jury viewed her presence,  such as this claim from the ubiquitous Juror 10.

Some jurors confessed that they didn’t initially recognize the first lady, who was a constant figure sitting behind Hunter Biden in the courtroom gallery.

“People were saying, ‘I didn’t even know what President Biden’s wife looked like,’” juror No. 10 said, adding that he felt badly that Hunter Biden’s daughter, Naomi Biden, was called to testify.

Juror 10 balked at that same question here.

CNN, however, said that all the jurors it spoke with “acknowledged the weight of having her in the courtroom,” (with yet another quote from Juror 10).

The reason this matters is that one juror and two alternates ran into Jill Biden and Melissa Cohen Biden last Wednesday when they decided to use the public bathroom rather than the dedicated jurors’ bathrooms.

THE COURT: So during the break, three jurors decided that they didn’t want to wait in line in the jury room because there are 16 of them and one bathroom or two, and so they went out in the hall and they went to the bathroom. It was juror number nine, and it was two of the alternates, I believe it was the remaining — the first two remaining alternates, not the older woman on the —

MR. KOLANSKY: Younger woman.

THE COURT: Yes, the two younger women. And so they went to the bathroom and the Marshal saw them in there and came back. Mr. Biden’s wife was in there at the time. And she was in the stall, and she was coming out of the stall when they were — when they were — I guess washing their hands or something.

So I instructed my deputy that he needs to be much sterner that they — with all the jury, that they cannot leave unaccompanied. I then called in each of the jurors one at a time into my chambers to reinforce that, but also to ask them what happened.

They each gave very similar stories. They said you know, didn’t want to wait in line, they opened the door from my chambers, there is a hallway back here, my chambers is on the other side, so they walked down this hallway, got to the door, and they saw security. I assume it was Secret Service, because I think Mrs. Biden stands out there. They said they waited and someone gave them a thumbs up and they walked to the bathroom, went to the bathroom, were coming out and as they were coming out, they saw Mrs. Biden, the younger Mrs. Biden, coming out of the stall. That there were no — there was no discussion, no interaction, but they saw her, and then one of the jurors said when it was — one of the alternates, she said when she was walking back, she looked sideways, and saw the first lady, that one didn’t bother me because you can see the first lady sitting in the courtroom. That’s what happened, if you guys want to do anything, if you want to ask them any questions you can, but I just want to put on the record that happened.

MR. LOWELL: Appreciate you telling us that, there was no verbal interaction?

THE COURT: There was no verbal interaction, were you guys discussing anything you’re not supposed to be discussing about the case, were you discussing anything in the bathroom?

MR. LOWELL: There is nothing I need to say.

THE COURT: No, she didn’t do anything wrong.

MR. LOWELL: She just went to the bathroom?

MR. HINES: Today?

MR. LOWELL: Right. I understand.

Getting questioned — without warning to the lawyers in advance — about this interchange changed the focus on Jill Biden.

We know, from the sidebar on Hallie Biden’s interactions with her spouse, that jurors were discussing interactions with family members when they shouldn’t have been. Indeed, one of the alternate jurors was the one who first raised the exchanges Hallie Biden was having from the witness stand.

And Juror 10’s chummy interviews with the press raises questions about discussion of Jill Biden’s presence, possibly in response to this exchange.

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