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Nine Tax Chages Filed against Hunter Biden in Los Angeles

December 7, 2023/48 Comments/in Hunter Biden /by emptywheel

CNN first reported on the expected development.

The judge in the case is Mark Scarsi, a Trump appointee, but apparently one of the real judges the former President appointed.

Here’s the indictment.

Here’s the expenses they lay out.

The charges are:

Failure to pay 2016
Failure to pay 2017
Failure to file 2017
Failure to pay 2018
Failure to file 2018
Tax evasion 2018
False return 2018
False return 2018
Failure to pay 2019

The three bolded charges for 2018 are the ones with big penalties.

Effectively what they did is build a bunch of lesser charges around the 2018 charges, during the worst of his addiction, for which the accounting was dicey.

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Principal Senior Assistant Special Counsel Leo Wise Insinuates David Weiss Lied to Congress

I hope that I was duly cautious in my discussions about Abbe Lowell’s request to subpoena Donald Trump, Bill Barr, Jeffrey Rosen, and Richard Donoghue.

I stated that “That political argument” Lowell was making about Trump’s hypocrisy “won’t work.”

I described that several aspects of the proposed subpoenas asked for the impossible.

These are impossible subpoenas, insofar as they ask for compliance according to an impossible timeline and ask for compliance that may not legally be available (indeed, to the extent Trump has items in his possession, for various reason they may be covered by the Mar-a-Lago protective order). To the extent subpoenas ask for things covered by various privileges, they would pose impossible challenges to overcome. To the extent the subpoenas ask for the perfect phone call in which Trump demanded Zelenskyy’s help with an investigation of Hunter Biden, they are impossible subpoenas because the White House altered that record in real time.

I similarly noted that Lowell didn’t mention, at all, the precedent that would make this request impossible.

Lowell doesn’t mention Armstrong, the precedent that usually makes it impossible for defendants to get discovery in selective prosecution challenges.

I gave all those warnings, in part, to make as clear as I could that this request likely won’t work.

But I also gave these warnings for another reason: Abbe Lowell is no dummy. He knows these precedents. He knows the significance of Armstrong. His silence about it ought to have raised questions — it certainly did for me — about what he was trying to accomplish with this motion.

But that may be instructive. Before Lowell is making a request for discovery based on a selective and/or vindictive prosecution claim, he is first asking for subpoenas, without fully laying out whether this would be a selective or vindictive or political influence prosecution claim.

I lay that out because David Weiss’ response — signed by “Principal Senior Assistant Special Counsel” Leo Wise, the third title Wise has adopted over the course of his seven month involvement in this case — goes to great length (twice the length of Lowell’s 16-page motion) to cite those precedents over and over and over. 48 times, Principal Senior Assistant Special Counsel Leo Wise invokes Armstrong.

Principal Senior Assistant Special Counsel Leo Wise is absolutely right about all these precedents.

Where he struggles, unsurprisingly, is in characterizing Lowell’s intent. He claims to be so sure that this request is exclusively about a selective or vindictive prosecution claim that he spends 17 pages arguing that Lowell has not met a selective or vindictive prosecution standard in the subpoena request before he gets around to arguing what is before him: a request for subpoenas.

Along the way, Principal Senior Assistant Special Counsel Leo Wise lectures Abbe Lowell, twice, that selective and vindictive prosecution claims are pretrial motions, not trial defenses.

Defendant contends that the requested material “goes to the heart of his pre-trial and trial defense that this is, possibly, a vindictive or selective prosecution that arose out of an incessant pressure campaign that began in the last administration, in violation of Mr. Biden’s constitutional rights.” ECF 58, at 14. It is worth noting from the outset that defendant misunderstands the difference between pretrial arguments to dismiss an indictment and trial defenses. It is black-letter law that claims of vindictive and selective prosecution are not trial defenses and may only be brought and litigated pretrial. They are not defenses and, therefore, are never argued to trial juries.

[snip]

As a preliminary matter, the government notes that defendant’s description of this claim as a “trial defense” is erroneous. “A selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.”

In the process, Principal Senior Assistant Special Counsel Leo Wise makes an important false representation. He claims that selective and vindictive prosecution is the “sole” reason Lowell is asking for subpoenas.

Defendant’s motion gives, as the sole justification for these subpoenas, that they are in support of his “pre-trial and trial defense that this is, possibly, a vindictive or selective prosecution.” ECF 58, at 14. [my emphasis; note, because Wise uses italics a lot, I’ve taken the painful step of using underline to emphasize throughout this post]

Principal Senior Assistant Special Counsel Leo Wise ignores at least three other descriptions of why Lowell wants the subpoenas, all of which precede that language on page 14 that invokes a trial defense.

In this case, production of documents by each of the Subpoena Recipients prior to trial may be used either in pre-trial pleadings or in a pre-trial evidentiary hearing on Mr. Biden’s motions to dismiss the Indictment (or, potentially, another issue).

[snip]

The information Mr. Biden seeks from the Subpoena Recipients is relevant and material to a fundamental aspect of issues in his defense that will be addressed in pre-trial motions and possibly as impeachment of a trial witness, should the case get that far: whether this investigation or prosecution arose because of or in response to any Executive Branch official or other outside influences placing undue pressure on government officials to investigate, formally or informally, or prosecute Mr. Biden.

[snip]

All the information sought from the Subpoena Recipients would be admissible in pre-trial motions or an evidentiary hearing or, depending on the author and recipient, to impeach a trial witness. [my emphasis]

Impeaching a witness is the antecedent to that reference to a trial defense.

Principal Senior Assistant Special Counsel Leo Wise appears to know that.

When Principal Senior Assistant Special Counsel Leo Wise finally gets around to arguing about subpoenas, rather than selective and vindictive prosecution, he seems to admit that he has read those references to impeachment, because he cites the part of Nixon that distinguishes between evidentiary subpoenas (which you can get pretrial) and impeachment ones (which you can only get at trial).

Accordingly, courts have concluded that “[t]he weight of authority holds that in order to be procurable by means of a Rule 17(c) subpoena, materials must themselves be admissible evidence.” United States v. Cherry, 876 F. Supp. 547, 552-53 (S.D.N.Y. 1995) (citing cases). Indeed, in Nixon itself, the Supreme Court noted that even though, “[g]enerally, the need for evidence to impeach witnesses is insufficient to require its production in advance of trial,” the “other valid potential evidentiary uses for the same material” rendered it properly obtainable through Rule 17(c). 418 U.S. at 701. Applying Nixon’s standard, the Third Circuit held that potential impeachment material without an independent basis for admissibility could not be produced to the moving party before the witness testified inconsistently at trial, even if the material had some exculpatory value. See United States v. Cuthbertson (Cuthbertson II), 651 F.2d 189, 192, 195 (3d Cir. 1981) (citing Cuthbertson I, 630 F.2d at 144-46).

Reading Armstrong and Nixon together compels the conclusion that Rule 17(c) may not be used to discover material for pre-trial collateral attacks. Nixon unambiguously imposed limitations on Rule 17(c) subpoenas to “evidentiary” and admissible materials for use at trial, which closes off criminal discovery on collateral, pre-trial issues. See 418 U.S. at 699; see generally Fed. R. Evid. 104, 1101(d) (providing that courts are not bound by the Federal Rules of Evidence other than privilege in various non-trial stages of criminal cases). Then, in Armstrong, although it proceeded on the undecided assumption that some discovery might be available on an adequate showing, the Supreme Court nonetheless unequivocally held that the defendant’s “defense” does not encompass collateral selective-prosecution attacks on the indictment. 517 U.S. at 463 (“[I]n the context of Rule 16 ‘the defendant’s defense’ means the defendant’s response to the Government’s case in chief.”); cf. supra note Error! Bookmark not defined.. Put simply, because Rule 17 is not “a means of discovery in criminal cases” (Nixon, 418 U.S. at 699), defendants may not use it to investigate whether some material that might be useful to some pre-trial motion a defendant may make exists in the files of the government or a third party. Instead, Rule 17(c) is a limited, trial-focused mechanism for procuring known, identifiable evidence. [underlines my own; bolded reference to a note that Principal Senior Assistant Special Counsel Leo Wise thought better of, his]

Only in reading Armstrong and Nixon together — along with citing an SDNY District opinion in Donzinger that is not remotely precedential in this case — does Principal Senior Assistant Special Counsel Leo Wise address the request before him. But in doing so, he confesses that his earlier representation — that the “sole” reason Lowell asked for these subpoenas was for pretrial motions to dismiss — was false. Maybe that’s why he decided to lecture Lowell that selective and vindictive prosecution are not trial defenses: to cover up his later admission he knows there’s something more here, impeachment of some witness Lowell doesn’t identify (but which might be related to Principal Senior Assistant Special Counsel Leo Wise’s recent promotion).

Because Principal Senior Assistant Special Counsel Leo Wise misrepresents what Lowell is trying to do here, much of his 32-page response resembles a quixotic effort (in the literal, literary sense) to beat down an imaginary windmill he has not yet come before. Over and over, Principal Senior Assistant Special Counsel Leo Wise argues that Abbe Lowell, whom he has lectured about how one uses a pretial motion to dismiss, has not met the standard for selective and vindictive prosecution claims he won’t argue until next week.

In seeking discovery for a claim of selective prosecution, defendant fails to identify even one similarly situated individual who was not prosecuted for similar conduct. This omission alone precludes his request for discovery. See, e.g., United States v. Armstrong, 517 U.S. 456 (1996).

[snip]

Defendant’s motion does not even attempt to make a showing of similarly situated individuals who were not prosecuted. It discusses no comparators at all, much less articulates the basis on which a court could find that they are “similarly situated” to the defendant but for a protected characteristic. [my underline, Principal Senior Assistant Special Counsel Leo Wise’s italics]

Of course Lowell did not discuss comparators! He’s likely to do that next week. This is not (as Principal Senior Assistant Special Counsel Leo Wise describes it here) a request for discovery. It’s a request for subpoenas.

I suggested that one reason Lowell may have done this, file a motion for subpoenas before filing the motions to dismiss, is to invite Weiss’ team to lay out their argument. If that was part of the goal, whooboy did Lowell hit paydirt in several specific arguments Principal Senior Assistant Special Counsel Leo Wise made.

For example, Principal Senior Assistant Special Counsel Leo Wise’s argument against vindictive prosecution was comparatively thin. As I laid out here, if Hunter Biden makes such a claim, he would argue that David Weiss entered into a Diversion Agreement that Leo Wise, then a garden variety AUSA, told Judge Maryanne Noreika on July 26, was a “contract between the parties … in effect until it’s either breached or a determination, period,” a contract, period, which then-Assistant Special Counsel Leo Wise breached (Lowell will argue) when he indicted the President’s son in retaliation for Hunter’s not guilty plea to the tax charges. Merits aside, such a claim is pretty obvious to me. But Principal Senior Assistant Special Counsel Leo Wise complains that Hunter Biden never identifies what right — the right to plead not guilty — he is being punished for.

Defendant never squarely identifies what right he is purportedly being punished for asserting. But Goodwin makes clear he is not entitled to a presumption of vindictiveness here, and that, in the absence of one, the prosecutor remains entitled to a presumption of regularity, which can be rebutted only by clear evidence that his motivation was “solely” to punish the exercise of a legal right, rather than the usual prosecutorial interests. Goodwin, 457 U.S. at 380 nn.11–12, 384 n.19. Defendant here offers nothing more than speculation and cannot meet the heightened standard necessary to obtain discovery on such a claim.2

2 The government notes that none of the charges in the indictment carry a mandatory minimum, and the two false-statement charges carry equal or lower statutory penalties to the information’s unlawful-possession charge. See ECF 40; compare 18 U.S.C. § 924(a)(1)(A), (a)(2), with § 924(a)(8).

Again, Lowell’s filing was no more the vindictive prosecution claim than it was the selective prosecution one: Abbe Lowell will presumably describe that right — pleading not guilty — next week.

It’s telling that Principal Senior Assistant Special Counsel Leo Wise never mentions the Diversion Agreement. Nor does he consider whether a Diversion Agreement — that contract, period — situates the decision to indict Hunter anyway in a pretrial or post-resolution posture. I don’t know the answer to that but Principal Senior Assistant Special Counsel Leo Wise better be prepared to address it after Abbe Lowell does file his motion to dismiss next week.

Yet Principal Senior Assistant Special Counsel Leo Wise does that while he makes a premature argument that he didn’t punish Hunter Biden by adding two felony charges that turn his previous 10 year maximum exposure into 25 years. He’s only pretending he doesn’t know what’s coming, it seems.

With regards to the selective prosecution claim, in addition to the standard boilerplate arguments, Principal Senior Assistant Special Counsel Leo Wise anticipates that Hunter Biden might argue he’s in a class of one — that his theory of selective prosecution will be different than claims based on racial discrimination. In obligingly providing Lowell his thinking on the matter, Principal Senior Assistant Special Counsel Leo Wise revealed that the citations he will invoke if and when Lowell does make this argument next week really aren’t all that apt to this case.

Defendant has the burden to plead a theory of selective prosecution that would allow discovery, and he has not done so. The government briefly notes that other theories of selective prosecution fit his case even less. For example, in some cases, a defendant may not need to show these elements if the Executive Branch’s action was “based on an overtly discriminatory classification”; in those circumstances, the overtly discriminatory classification itself satisfies the showing of discriminatory intent. Wayte, 470 U.S. at 608 n.10 (citing Strauder v. West Virginia, 100 U.S. 303 (1880), which invalidated a state law that prohibited African-Americans from serving on juries). But defendant’s motion contains no argument or evidence in support of such a claim. Instead, the arguments he advances appear to fall within the ordinary formulation of selective prosecution, which requires proof of both disparate treatment and discriminatory intent.

Alternatively, a defendant could theoretically seek to advance a selective-prosecution claim based on post-Armstrong/Wayte cases addressing what has been termed a “class-of-one equal-protection claim.” See, e.g., Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam). But after the Supreme Court decided Olech, the Court rejected the class-of-one theory in a context where the government exercises broad discretion—namely, when the government acts as an employer and makes personnel decisions. See Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591 (2008). The Court observed that “some forms of state action … by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments,” and “in such cases the rule that people should be ‘treated alike, under like circumstances and conditions’ is not violated when one person is treated differently from others, because treating like individuals differently is an accepted consequence of the discretion granted.” Id. at 603. Notably, to illustrate this point, the Supreme Court used an example where only some drivers who are exceeding the speed limit are stopped. “[A]n allegation that speeding tickets are given out on the basis of race or sex would state an equal protection claim. But allowing an equal protection claim on the ground that a ticket was given to one person and not others, even if for no discernible or articulable reason, would be incompatible with the discretion inherent in the challenged action.” Id. at 604.

Courts of appeals have extended Engquist’s limitation on class-of-one theories in various contexts where the government exercises broad discretion. See, e.g., Planned Parenthood Ass’n of Utah v. Hebert, 828 F.3d 1245, 1255 (10th Cir. 2016) (collecting cases). And as Engquist’s example of stopping speeders illustrates, the Supreme Court has repeatedly emphasized that “in the criminal-law field, a selective prosecution claim is a rara avis” and is so “[b]ecause such claims invade a special province of the Executive—its prosecutorial discretion.” Reno v. Am.- Arab Anti-Discrimination Comm., 525 U.S. 471, 489 (1999) (citing Armstrong, 517 U.S. at 463– 65). Cf. United States v. Moore, 543 F.3d 891, 901 (7th Cir. 2008) (“[A] class-of-one equal protection challenge, at least where premised solely on arbitrariness/irrationality, is just as much a ‘poor fit’ in the prosecutorial discretion context as in the public employment context” considered in Engquist). In addition to Rivera, in the context of parole decisions for sex offenders, the Third Circuit has recognized the force of Engquist’s limitations on equal protection challenges where the “state action … involves ‘discretionary decisionmaking based on a vast array of subjective, individualized assessments’ [that] necessarily results in different treatment among those subject to the discretionary action.” Stradford v. Sec. Penn. Dept. of Corrections, 53 F.4th 67, 76 (3d Cir. 2022) (quoting Engquist, 553 U.S. at 603–04). Engquist, Rivera, and Stradford provide no home for a class-of-one theory in the context of this case.

A class-of-one selective prosecution claim made by the son of the President is in no way going to be based on a theory of arbitrariness.

In fact Principal Senior Assistant Special Counsel Leo Wise recognizes that, elsewhere. When he tries to argue that the subpoena recipients had no role in the charges in this case, he mentions that private citizen Hunter Biden happens to be the son of the President.

In any event, both vindictive- and selective-prosecution claims turn on the actual intent of the specific decisionmaker in a defendant’s case: here, the Special Counsel. But not only does defendant’s motion fail to identify any actual evidence of bias, vindictiveness, or discriminatory intent on the Special Counsel’s part, his arguments ignore an inconvenient truth: No charges were brought against defendant during the prior administration when the subpoena recipients actually held office in the Executive Branch. Instead, every charge in this matter was or will be brought during the current administration—one in which defendant’s father, Joseph R. Biden, is the President of the United States and Merrick B. Garland is the Attorney General that was appointed by President Biden and who personally appointed the Special Counsel. Defendant has not shown, nor can he, how external statements by political opponents of President Biden improperly pressured him, his Attorney General, or the Special Counsel to pursue charges against the President’s son.

[snip]

Defendant focuses his narrative of selective prosecution largely on the actions and motivations of non-prosecuting officials in the previous administration prior to any charges being brought. However, after a change in administrations—to one headed by defendant’s father, who leads a competing political party—the President’s current Attorney General personally exercised his discretion to direct “a full and thorough investigation” of these matters and conferred on the Special Counsel statutory and regulatory authority to prosecute this case. See Order No. 5730-2023 (Aug. 11, 2023) (citing 28 U.S.C. §§ 509, 510, 515, 533 and 28 C.F.R. pt. 600). 1 Thus, defendant’s claim of selective prosecution must contend with the presumption of regularity not only for the Special Counsel’s decision to prosecute but also for both the Attorney General’s decision to direct a full and thorough investigation and the Attorney General’s determination that the prosecution warrants the greater authority and independence of the Special Counsel’s Office. On those points, in addition to offering no evidence that the now-Special Counsel had any animus or improper motivation against defendant, he offers no evidence that the current Attorney General acted out of any improper motive in empowering the Special Counsel to continue pursuing prosecution. [my emphasis]

The defendant is the son of the President?!?!?! Wow. You don’t say?!?!?!

I’m not certain, but I don’t think this has been stated explicitly in this case before. Hunter’s motion to do his arraignment by video described him as a Secret Service protectee, for example, but didn’t explicitly say why.

We have now taken judicial notice that Hunter Biden has some kind of familial tie to the Chief Executive.

And this is where Principal Senior Assistant Special Counsel Leo Wise’s efforts to disclaim any influence Donald Trump, Bill Barr, Jeffrey Rosen, and Richard Donoghue had on this case gets interesting.

Never mind that Principal Senior Assistant Special Counsel Leo Wise sort of ignores the issue that one of the intended subpoena recipients, Donald Trump, appointed Weiss; if Principal Senior Assistant Special Counsel Leo Wise wants to treat justice as a matter of competing parties, as he does here, then Weiss is a member of the other party.

The other things that Principal Senior Assistant Special Counsel Leo Wise does in these passages is to assert the presumption of regularity to Merrick Garland’s decision to honor a promise he made — to a Republican Senator — in his confirmation hearing, to appoint Weiss Special Counsel if Weiss ever asked to be so appointed.

That is, Principal Senior Assistant Special Counsel Leo Wise relies on Garland’s role — as an appointee of the defendant’s father, one who couldn’t fire Weiss without risking accusations of criminal obstruction and impeachment — to vouch for David Weiss’ presumption of regularity. But he does so in a filing where he argues that senior DOJ officials who, Lowell has already shown, were personally involved in the prosecution, along with the President who appointed David Weiss, had a non-prosecutorial role.

Principal Senior Assistant Special Counsel Leo Wise is trying to have it both ways: arguing that Merrick Garland is a part of this prosecution but Donald Trump, Bill Barr, Jeffrey Rosen, and Richard Donoghue are not.

Weiss has told Congress at least four different times that Merrick Garland exercised no supervisory role in this case.

Indeed, he has barely spoken to the man. Weiss told House Judiciary Committee, “I’ve never had any direct communications with the Attorney General, save my communication in requesting Special Counsel authority in August of 2023.” Nor has he had contact with the Deputy Attorney General, nominally his direct supervisor. “I have never spoken with [Lisa] Monaco. … Never.”

Rather than being overseen directly by any political appointee, Weiss’ “point of contact for the last year, year and a half ,” the Special Counsel explained, “has been Associate Deputy Attorney General Weinsheimer.” Brad Weinsheimer was first promoted to that position by Jeff Sessions in 2018.

Weiss’ appointment gets perilously close to violating Morrison v. Olson, because neither Biden nor Garland could fire Weiss, could ever have fired Weiss, without being accused of criminal obstruction. Yet now Principal Senior Assistant Special Counsel Leo Wise is claiming that Merrick Garland’s decision, made in response to a request Weiss made after Congress floated accusations of obstruction anyway, to give him even more independence is proof that Weiss wasn’t responding to political pressure.

Principal Senior Assistant Special Counsel Leo Wise is now suggesting that all Weiss’ claims that Garland had no role were false. He is basing much of his claim that Weiss was not influenced by politics on a reporting structure that has never existed under the Biden Administration, as Weiss has said over and over.

Contrast that with Principal Senior Assistant Special Counsel Leo Wise’s wildly misleading attempt to argue that Bill Barr’s DOJ had no improper influence on this case, the only treatment Principal Senior Assistant Special Counsel Leo Wise gives the specifically identified documents in Lowell’s motion.

Defendant’s attempts to manufacture discriminatory treatment or intent on behalf of the U.S. Attorney fall apart under the most minimal scrutiny. First, defendant obliquely references that “IRS files reveal that [Richard Donoghue] further coordinated with the Pittsburgh Office and with the prosecution team in Delaware, including issuing certain guidance steps regarding overt steps in the investigation.” ECF 58, at 2-3 & n.3. Looking behind the defendant’s ambiguously phrased allegation reveals the actual “overt steps” involved: (1) the U.S. Attorney making an independent assessment of the probable cause underlying a warrant and (2) a direction by Mr. Donoghue that the Delaware investigation receive the information from the Pittsburgh team, which was being closed out. See ECF 58, at 3 n.3 (citing memorandum of conference call). Assessing the validity of a warrant and merely receiving information from other investigating entities does nothing to show any disparate treatment or animus. Next, defendant alleges that “certain investigative decisions were made as a result of guidance provided by, among others, the Deputy Attorney General’s office.” ECF 58, at 3 n.4. In fact, the source cited revealed that the guidance was simply not to conduct any “proactive interviews” yet. Likewise, defendant’s last attempt to create a link involved guidance not to make any “external requests (outside of government),” which followed the long-standing Department of Justice policy to avoid overt investigative steps that might interfere with ongoing elections. See ECF 58, at 3 n.5; cf., e.g., Federal Prosecution of Election Offenses 40 (2d ed. 1980). In other words, the most defendant claims is that the Deputy Attorney General’s office was aware of and involved in some specific investigatory decisions in the most banal fashion possible—by waiting to take specific investigative steps at certain times out of caution.

I have no fucking clue what warrant Principal Senior Assistant Special Counsel Leo Wise is mentioning here; the word “warrant” doesn’t appear in Lowell’s filing (it may be a reference to other documents at the main Ways and Mean link for IRS documents). But what Principal Senior Assistant Special Counsel Leo Wise is doing is suggesting that the Pittsburgh effort to share dirt from Russian spies with David Weiss’ investigative team is the same action as Richard Donoghue’s order before the election not to take overt investigative steps. There’s not a shred of evidence they’re related.

As noted, that’s the only specific rebuttal Principal Senior Assistant Special Counsel Leo Wise attempts to Abbe Lowell’s description of several different kinds of influence on this case. Principal Senior Assistant Special Counsel Leo Wise only makes a general allusion to Donald Trump’s public comments: “how external statements by political opponents of President Biden improperly pressured him.” He certainly doesn’t deny that those threats contributed to the threats made against Weiss and the rest of the investigative team, threats that Weiss described to Congress.

And aside from describing that Lowell wants to subpoena Bill Barr, Principal Senior Assistant Special Counsel Leo Wise never mentions him. Indeed, I think Principal Senior Assistant Special Counsel Leo Wise trips up in not mentioning him.

Principal Senior Assistant Special Counsel Leo Wise claims that Lowell has referenced, “a direction by Mr. Donoghue that the Delaware investigation receive the information from the Pittsburgh team, which was being closed out.” The problem is, unless I’m missing something, there is nothing in the record that describes the investigation was being closed out. Here’s what Lowell referenced:

[I]t has been reported and revealed in the now-public IRS investigative files concerning this case (released by the House Ways and Means Committee1 ) that, separately, the Department of Justice (“DOJ”) under then Attorney General Barr opened a dedicated channel at the U.S. Attorney’s Office in Pittsburgh to receive information about Mr. Biden coming from then President Trump’s personal attorney, Rudolph Giuliani, and his associates. 2 That effort to review and vet any material was coordinated by then U.S. Attorneys Richard Donoghue (E.D.N.Y.) and Scott Brady in Pittsburgh (W.D.P.A.). When Mr. Donoghue was elevated to serve as Principal Associate Deputy Attorney General at the DOJ in July 2020 (and later, in December 2020, Deputy Attorney General under Mr. Rosen), IRS files reveal that he further coordinated with the Pittsburgh Office and with the prosecution team in Delaware, including issuing certain guidance regarding overt steps in the investigation. 3

2 See, e.g., Letter From Asst. Att’y Gen. Stephen E. Boyd to Hon. Jerrold Nadler (Feb. 18, 2020) (available via https://www.justice.gov/) (“[T]he Deputy Attorney General has also assigned Scott Brady, the U.S. Attorney for the Western District of Pennsylvania, to assist in the receipt, processing, and preliminary analysis of new information provided by the public that may be relevant to matters relating to Ukraine.”); Material From Giuliani Spurred a Separate Justice Dept. Pursuit of Hunter Biden, N.Y. TIMES (Dec. 11, 2020), https://www.nytimes.com/2020/12/11/us/politics/hunter-biden-justice-department-pittsburgh.html.

3 Gary Shapley Aff. 3, attach. 6 (IRS CI Memorandum of Conversation, Oct. 22, 2020), (“Pittsburgh read out on their investigation was ordered to be received by this prosecution team by the PDAG.”), available at https://gopwaysandmeans.house.gov/wp-content/uploads/2023/09/T87-Shapley-3_Attachment-6_WMRedacted.pdf.

Gary Shapley’s memo — the only description of how and why this was shared with the Hunter Biden team — only says that Donoghue ordered Weiss’ team to be briefed on it.

One of the most authoritative descriptions of how it got passed on came from … intended subpoena recipient Bill Barr, in an interview with Margot Cleveland.

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

While Lowell hasn’t (yet) included this in his filings, Barr’s communications with Cleveland would be among the key things Lowell might obtain with a subpoena. They are critically important, too, because they prove that the Attorney General himself was involved in this process — that the interference in the Hunter Biden investigation went beyond the DAG’s normal interest in supervising US Attorneys.

And as I’ve mentioned before, Barr’s public intervention came at a critical time. He butted in while Lesley Wolf was still involved with this prosecution, before Weiss reneged on the plea deal negotiated by Wolf, and before David Weiss told Lindsey Graham that the FD-1023 obtained via the process to launder information from Russia spies into the investigation of Donald Trump’s opponent’s son was part of a still-ongoing investigation.

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

In a filing that entirely ignores Lowell’s citation from Barr’s book, Principal Senior Assistant Special Counsel Leo Wise ignores the public evidence that Bill Barr not only remains involved in this case, but that David Weiss responded to pressure elicited by Barr’s public intervention, and did so by stating that that was part of the ongoing investigation into Joe Biden’s kid.

Principal Senior Assistant Special Counsel Leo Wise’s silence about Barr makes me wonder if the subpoena to him poses a particular risk for Weiss, as if before Weiss made that comment to Lindsey, he got a phone call that would be covered by the subpoena. In any case, whereas Weiss went years before his first contact with Merrick Garland about this case, he did tell HJC that, “I had conversations with Attorney General Barr, and I don’t want to get into the content of those conversations, because they’re with the AG.”

In any case, I’m genuinely shocked by the flopsweat that this subpoena request from Lowell produced. Indeed, that is one reason I’m so interested in Principal Senior Assistant Special Counsel Leo Wise’s fancy new title.

Though Lowell never said it, I suspect the likely witness Hunter Biden’s lawyer wants to impeach at trial is David Weiss himself.

Weiss is the single solitary witness who can attest to how and why the prosecution transitioned from Lesley Wolf to Principal Senior Assistant Special Counsel Leo Wise. He is the single solitary witness who can claim that that wasn’t a result of either political pressure directly or the pressure created by credible threats of violence targeted at him, his investigative team, and their families.

But Weiss has also now committed to the continued influence of Scott Brady’s task on the ongoing investigation into Hunter Biden. Brady told the House Judiciary Committee that he and Weiss spoke, personally, every four to six weeks between around January 10 and the final briefing in October. He described making “other recommendations about possible investigative avenues that we would recommend that they take.”

And by blabbing to Margot Cleveland, Bill Barr has made public that he was also in the thick of all that.

Weiss is in a position where he has no one to blame. He really can’t — and never could — borrow presumption of regularity from Merrick Garland, because his continued tenure always came on the threat of obstruction charges (and impeachment). He can’t — and never could — invoke Garland’s DOJ to claim his prosecution is not political, because Garland has made a point to be hands off, as Weiss has affirmed to Congress.

But he also is totally in the thick of the wildly inappropriate scheme that Bill Barr set up, one that catered to laundering claims Donald Trump’s personal lawyer had obtained from, among others, a Russian spy.

And that, I suspect, is why Principal Senior Assistant Special Counsel Leo Wise got another promotion: because Weiss himself now poses a threat to this prosecution.

Update: Added specifics about Weiss’ testimony as to contacts with Garland, Lisa Monaco, Brad Weinsheimer, and Bill Barr.

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Abbe Lowell Calls James Comer’s Bluff

November 28, 2023/83 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

When I read Abbe Lowell’s taunting letter to James Comer (to which Politico’s Jordain Carney posted a link), agreeing to have Hunter Biden testify before the Oversight Committee on December 13 or any other time in December, so long as it is public, I couldn’t decide whether it is:

A good faith effort to correct the record, including regarding multiple false claims Comer has made
An epic bluff-call by a former impeachment lawyer
An effort to let Jamey Comer fuck up David Weiss’ prosecution some more
A bid to show an effort to cooperate with a subpoena, thereby undercutting any possible contempt referral
An insanely bad idea

To be sure, the tactic — offering to testify, so long as it is public — is not new. For example, in a last minute bid to stave off his trial, Steve Bannon belatedly offered to testify, asking to appear publicly. In response, investigators have usually simply insisted on a deposition.

But this comes with a whole bunch of dick-wagging about how pathetic Comer’s investigation is — how pathetic Republicans say it is.

It is no wonder so many news articles report your own Republican colleagues criticizing your proceedings and commenting that your time would be better spent on critical issues facing the country.4

4 Annie Grayer & Melanie Zanona, Biden Impeachment Inquiry End Game Comes Into Focus, but Moderate Republicans Still Not Sold, CNN (Nov. 6, 2023), https://www.cnn.com/2023/11/06/politics/impeachment-inquiryhouse-republicans/index.html (Rep. Don Bacon stated: “I think it’s better to let the election solve this . . . I know a lot of people say they want revenge. I don’t think it’s right for the country”; Rep. Doug LaMalfa stated: “It probably isn’t quite in the nice package with the bowtie on top of it yet”; Rep. Steve Womack echoed a similar sentiment: “I’ve got so many other things to worry about. That ain’t one of them”; Rep. Mike Rogers stated about the inquiry, “I don’t think anything about it.”); Aaron Blake, 7 Skeptical Republicans to Watch on Impeaching Biden, WASH. POST (Sept. 13, 2023), https://www.washingtonpost.com/politics/2023/09/13/7-republicans-watch-impeaching-biden/ (Rep. Ken Buck stated: “The time for impeachment is the time when there’s evidence linking President Biden—if there’s evidence linking President Biden—to a high crime or misdemeanor. That doesn’t exist right now”; Rep. Mike Lawler stated: “For me, with respect to impeachment, we’re not there yet. . . . It is not about focusing on the impeachment; it is a question of, do the facts and evidence warrant any further action.”); Alexander Bolton, House Conservatives Face Deeply Skeptical Senate GOP on Biden Impeachment, THE HILL (Sept. 13, 2023), https://thehill.com/homenews/senate/4203181-house-investigators-skeptical-senate-republicans-impeachmentinquiry/ (according to one Republican senator who requested anonymity to comment frankly on the Oversight inquiry, “I don’t see what the evidence is, what the charge is . . . I hate to see an impeachment every other year.”). [emphasis original]

Lowell has found quotes from six Republican Congressmen, enough to sink any impeachment vote (something the White House has demanded before making any personnel available to subpoena).

He did so in a letter also substantiating two past attempts at cooperation.

In spite of our misgivings about your motives and purpose, we have offered, on more than one occasion, to meet or speak with your Committee to discuss whether there was something we could do to understand the basis of your inquiry, provide relevant information, or expedite its conclusion.3 You never responded, but now, in what appears to be a Hail Mary pass with your team behind in the score and time running out, you have subpoenaed or demanded interviews of Hunter Biden; his uncle James; James’s wife, Sara; Hunter’s brother’s widow, Hallie; Hallie’s sister, Elizabeth Secundy; Hunter’s spouse, Melissa Cohen; his lawyer Kevin Morris; the art gallerist who endeavors to help Hunter earn a living; an acquaintance who purchased a painting of Hunter’s; three of Hunter’s former business partners; two Biden-campaign donors; an inmate convicted for his involvement in a tribal bond scheme that never involved Hunter; and last, but certainly not least, a disgruntled and incredible “whistleblower” (Tony Bobulinski), from whom Hunter disassociated almost as fast as he met him. Your fishing expedition has become Captain Ahab chasing the great white whale. [emphasis original]

3 See Feb. 9, 202,3 Letter From Abbe Lowell to Chairman James Comer (transmitted via e-mail); Sept. 13, 2023, Letter From Abbe Lowell to Chairman James Comer (transmitted via e-mail).

The letter also lays out an argument that Comer’s purported legislative interest is debunked by his exclusive focus on Bidens, not Trump’s.

You state that one of your purposes is to review how a President’s family’s business activities raise ethics and disclosure concerns to inform the basis for a legislative solution. But all your focus has been on this President’s family while turning a blind eye toward former President Trump and his family’s businesses, some of which the family maintained while serving in office—an area ripe to inform your purported legislative pursuits. Unlike members of the Trump family, Hunter is a private person who has never worked in any family business nor ever served in the White House or in any public office. Notwithstanding this stark difference, you have manipulated Hunter’s legitimate business dealings and his times of terrible addiction into a politically motivated basis for hearings to accuse his father of some wrongdoing.

And while he doesn’t cite his several efforts to correct fabrications Comer has made, he repeats an allegation substantiated in repeated letters to others — Jason Smith and Mike Johnson — in Congress.

We have seen you use closed door sessions to manipulate, even distort the facts and misinform the public. We therefore propose opening the door. If, as you claim, your efforts are important and involve issues that Americans should know about, then let the light shine on these proceedings. Indeed, even you stated that “Hunter Biden is more than welcome to come in front of the committee. If he wants to clear his good name—if he wants to come and say, you know, these weren’t shell companies, they actually did something—he’s invited today. We will drop everything.”5

5 @Newsmax at 3:05, X (Sept. 13, 2023) (emphasis added), available at https://twitter.com/newsmax/status/1701928094003511311?s=46&t=a0UGYR3ho6S39dDafp8SGg. [emphasis original]

Which is to say that if Comer refused this offer but insisted on compelled testimony anyway, Lowell would have plenty of ammunition to argue that he had attempted to cooperate, only to be rebuffed. Lowell has covered his bases against a lawsuit or even a contempt referral.

And that’s before you consider that Comer can’t legally enforce that subpoena without either legislative purpose (debunked by his exclusive focus on the Bidens) or — per a Trump OLC memo — a full congressional vote.

My question is what happens if Comer, cornered by Lowell’s taunts, takes him up on the offer.

There is zero chance, for example, that such a hearing would occur without Marjorie Taylor Greene accusing Hunter of sex trafficking, as she has twice already. There’s a good chance that Hunter, perhaps after four hours or so, would slip up and say something useful for David Weiss (but not before further substantiating Lowell’s argument that Republicans have made his prosecution an electoral ploy, which may be why Lowell specified that this had to happen in December).

But there’s also a great chance that such a hearing would again highlight that Comer refuses to call Rudy Giuliani and Lev Parnas to understand the root of their concerns. It would provide Hunter the opportunity to call out what he claims to be false claims by people like Tony Bobulinski. It might even provide Hunter a public opportunity to disclose what his team has learned about the treatment of the laptop — on a copy of which this entire stunt relies.

Abbe Lowell has raised the stakes for Comer’s own political future on his decision. It’s unclear how that will serve Hunter and his father.

Update: Comer insists Hunter testify at a deposition.

Hunter Biden is trying to play by his own rules instead of following the rules required of everyone else. That won’t stand with House Republicans.

Our lawfully issued subpoena to Hunter Biden requires him to appear for a deposition on December 13.

We expect full cooperation with our subpoena for a deposition but also agree that Hunter Biden should have opportunity to testify in a public setting at a future date.

Update: Jamie Raskin mocks Comer.

Let me get this straight. After wailing and moaning for ten months about Hunter Biden and alluding to some vast unproven family conspiracy, after sending Hunter Biden a subpoena to appear and testify, Chairman Comer and the Oversight Republicans now reject his offer to appear before the full Committee and the eyes of the world and to answer any questions that they pose? What an epic humiliation for our colleagues and what a frank confession that they are simply not interested in the facts and have no confidence in their own case or the ability of their own Members to pursue it. After the miserable failure of their impeachment hearing in September, Chairman Comer has now apparently decided to avoid all Committee hearings where the public can actually see for itself the logical, rhetorical and factual contortions they have tied themselves up in. The evidence has shown time and again President Biden has committed no wrongdoing, much less an impeachable offense. Chairman Comer’s insistence that Hunter Biden’s interview should happen behind closed doors proves it once again. What the Republicans fear most is sunlight and the truth.

Meanwhile, Miranda Devine at first questioned what Comer is afraid of before deciding that Hunter’s “expensive lawyers” don’t get to dictate terms.

And Lauren Boebert didn’t get the memo.

Jordan:

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Hunter Biden: Which Came First, the Chick Selling Sex or the Extortion of Campaign Dirt?

November 27, 2023/31 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden, Impeachment /by emptywheel

Darren Samuelsohn had a hilarious passage in his version of a story contemplating the prospect of Trump using his second term to seek revenge.

To his credit, unlike the NYT and WaPo versions of this story, he acknowledges that Trump already did this. He even manages to address maybe a quarter of the times when Trump did so, though always missing key details. For example, he describes that Trump fired Jim Comey as revenge, which led to the Mueller investigation.

Consider the firing of James Comey, who the president ousted less than four months into his first term following the FBI director’s public testimony that confirmed an active bureau investigation on potential collusion between Russia and the 2016 Trump campaign. The president’s move there ignited a chain of events leading to Special Counsel Robert Mueller’s appointment, which kept Trump’s White House stuck playing defense for a giant chunk of their four-year term and resulted in a costly series of guilty pleas, legal trials and court convictions for Trump associates that gave way to a series of controversial presidential pardons.

Samuelsohn even mentions “controversial” pardons! — if only in passing. But he doesn’t mention Trump’s concerted demand to prosecute Comey as a result, or the IRS investigation of Comey and Andrew McCabe that the IRS claims was just a wild coincidence.

The funny part is where Samuelsohn describes Rudy Giuliani’s efforts to dig up dirt on Joe Biden as something that, like the Comey firing, led to backlash: impeachment.

Another Trump personal lawyer, Rudy Giuliani, sparked the first House impeachment of the president in the aftermath of his mission to conjure up an investigation of the Biden family in Ukraine.

But then two topics — the Durham investigation and Trump’s revenge against Tom Emmer for voting to certify the 2020 election — and two paragraphs later, Samuelsohn introduces Abbe Lowell’s attempt to subpoena Trump as “another front.”

Or on another front, Hunter Biden’s lawyers earlier this month asked for a federal court’s permission to subpoena Trump, Barr and other senior Trump-era DOJ officials as they argue against “a vindictive or selective prosecution arising from an unrelenting pressure campaign beginning in the last administration, in violation of Mr. Biden’s Fifth Amendment rights under the Constitution.”

This is not “another front”! This is confirmation that the effort attributed here to Rudy continues to this day, is a central factor in the 2024 election to return to the White House.

As I noted, the requested subpoenas specifically ask for communications with, “attorney for President Trump (personal or other),” and the request for communications, “discussing any formal or informal investigation or prosecution of Hunter Biden,” should cover any copy of the Perfect Phone Call to Volodymyr Zelensky that Trump might have in his personal possession.

The subpoena is a request for records showing the tie between Rudy’s efforts and the still ongoing investigation into Hunter Biden, which has since morphed into the rationale for Republicans’ own impeachment stunt.

The tie is not imagined. Among other things, Lowell points to records showing then-PADAG Richard Donoghue scheduling a briefing with David Weiss’s team on October 23, 2020. The briefing transferred the FD-1023 created as a result of Bill Barr’s effort to set up an intake process for the dirt Rudy obtained from Russian agents and others.

In fact, all the details of the investigation that Joseph Ziegler has shared raise questions whether there would ever have been a Hunter Biden grand jury investigation were it not for the dirt Ukrainians — possibly downstream of and ultimately directly tied to Rudy’s efforts to obtain dirt on Hunter Biden — shared with DOJ in 2019.

To be sure, Ziegler claims credit.

In his original testimony to House Ways and Means, Zeigler described that he decided to investigate the former Vice President’s son based off a Suspicious Activity Report tied to a social media site involving sex workers. From there, he read about Hunter’s contentious divorce. And from that he decided to launch a criminal investigation.

I started this investigation in November of 2018 after reviewing bank reports related to another case I was working on a social media company. Those bank reports identified Hunter Biden as paying prostitutes related to a potential prostitution ring.

Also included in those bank reports was evidence that Hunter Biden was living lavishly through his corporate bank account. This is a typical thing that we look for in tax cases — criminal tax cases, I should say.

In addition, there was media reporting related to Hunter Biden’s wife, ex-wife, divorce proceedings basically talking about his tax issues. And I wanted to quote some of the things that were said in her divorce filing which was public record.

“Throughout the parties’ separation, Mr. Biden” — referring to Hunter Biden — “has created financial concerns for the family by spending extravagantly on his own interests, including drugs, alcohol, prostitutes, strip clubs, gifts for women with whom he had sexual relationships with, while leaving the family with no funds to pay legitimate bills.

“The parties’ outstanding debts are shocking and overwhelming. The parties have maxed-out credit card debt, double mortgages on both real properties they own, and a tax debt of at least $300,000.”

This is all the information that I had in my hand in November when I wanted to open this investigation.

His supervisor, Matt Kutz, treated the investigation of the former Vice President’s son as a sensitive matter and demanded more evidence before letting Ziegler open the investigation.

After discussing the case with my previous supervisor at the time, Matt Kutz, he made a decision to look into the case further before sending it — sending the case up for referral.

[snip]

My manager at the time told me, “No, you cannot do that. That’s a tax disclosure issue.” I didn’t agree with him because there’s been multiple instances where we do that. That’s a normal part of our job. But he was my manager, and I wasn’t going to fight him on it, and he told me that I had to open this up the normal tax administrative way that we would do [for] these cases.

[snip]

[H]e said a political family like this, you have to have more than just an allegation and evidence related to that allegation. In order for this case to move forward, you basically have to show a significant amount of evidence and similar wrongdoing that would basically illustrate a prosecution report.

So he’s basically telling me that I have to show more than just non-[filed] tax returns and the information from the ex-wife in the divorce proceedings.

During Democrats’ questioning, Ziegler described how persistent were his efforts to find some basis to open an investigation into Hunter Biden.

Mr. [Ziegler]. My initiation packet, so sending the case forward to get — we call it subject case. It’s an SCI. It’s elevating the case to actually working the investigation.

My first one showed the unfiled returns and the taxes owed for 2015 and that was it on my first package. So that was the wrongdoing that we were alleging.

And my supervisor goes: You don’t have enough. You need to find more.

So I kept digging for more and more. And even after that point, he goes: You haven’t found enough.

So I ended up searching bank reports that [I] ran on the periphery of what we were looking at.

So I ran bank reports for Burisma, and in those bank reports I had found additional payments that Hunter had received. And then at that point I had found that Hunter did not report the income for 2014 related to Burisma.

So now I had a false return year. So that alone — it was basically so much evidence that I put in there — allowed us to elevate the case.

It took Ziegler three attempts before he was able to show enough evidence of wrong-doing that Kutz would agree to send the referral to DOJ Tax. That’s what led to the decision — at first, Ziegler attributed the decision to Bill Barr personally, though subsequently retracted that claim — to merge his IRS investigation with one Delaware had opened in January 2019.

So after three of these initiation packages, he finally allowed me to push this forward to DOJ Tax for their review.

So the way that our grand jury cases — or the way — I’m sorry. The way that our cases work is when the case is referred from IRS to DOJ Tax, the case has to go through our ASAC and SAC, and then it goes to DOJ Tax where they review and approve it and send it to the appropriate venue or jurisdiction.

So in [or] around March or April of 2019, the case went up to DOJ Tax.

And at that time we were told that William Barr made the decision to join two investigations together. So at that point in time I had found out that Delaware had opened up an investigation related to the bank reports and that that occurred in January of 2019, so 2 months after I started mine.

So when I found out about their case and was told that we had to merge the two, I did a venue analysis. I showed them that, “Hey, the venue’s in D.C. It’s not in Delaware. We need to work this in D.C.” But, ultimately, I was overruled, and it was determined to send the case, join the two case together, and work everything under Delaware. [my emphasis]

Here and elsewhere, Ziegler (working from memory) obscures details of this timeline: about when he came to learn of the Delaware investigation and when he submitted his finalized package for DOJ Tax.

In an email Ziegler sent in April 2019, though, he memorialized that, “Approx. February 2019 — My SSA advised me about the Delaware USAO looking into Robert Doe subsequent to the [Suspicious Activity Report]” on which Ziegler himself had predicated his investigation. That same email described submitting the package to DOJ Tax on April 12, 2019.

Two weeks later, his supervisor relayed the news that the case would end up in Delaware.

Jason Poole telephoned me and advised after inter‐department discussions well above his level, it is highly likely the Robert Doe case will go to the Delaware USAO for investigation.

So while Ziegler may have decided to pursue the former Vice President’s son based on payments to sex workers and divorce records before Delaware opened an investigation, DOJ Tax had not even considered whether this merited a criminal investigation until April 2019, at which point someone high up — possibly even the Attorney General himself — decided Delaware would oversee the case.

By that point, Delaware had been investigating for up to three months, and Ziegler had known that for two months.

That’s important because, if we can believe Johnathan Buma (I raised some cautions about his claims here), the FBI got a tip about Hunter Biden from two Ukrainians with ties to that country’s Prosecutor General’s Office in January 2019.

In January, 2019, DYNAMO, ROLLIE and THE ECONOMIST were taken to the US Attorney’s Office in downtown Los Angeles, where they presented severd of these schemes to an Assistant United States Attorney (AUSA), who was interested in pursuing money laundering cases in violation of the FCPA, which implicated US entities or persons. THE ECONOMIST’s presentation included detailed information concerning several multi-million and multi-billion dollar schemes. The information was based on an extrapolation of open-source information from Ukraine, as well as insight from THE ECONOMIST’s consulting work in the PGO and ROLLIE’s foundation. One of the described scenarios alleged Hunter Biden (Hunter) had been given a lucrative position on the board of directors of the energy company, Burisma Holdings Limited (Burisma), and was likely involved in unreported lobbying and/or tax evasion.

This approach from people affiliated with Ukraine’s Prosecutor General’s Office (my earlier post provides descriptions of those ties) came months after Rudy Giuliani first tasked Lev Parnas with finding this dirt in November 2018 and after Trump had gotten personally involved.

Later that month [on December 6], I attended a Hanukkah celebration at the White House where Giuliani and Trump were both present. Trump approached me briefly to say, “Rudy told me good things. Keep up the good work.” Then he gave me a thumbs-up in approval.

By January 2019, Parnas was in communications with both Viktor Shokin and Yuri Lutsenko, both of whom might have had ties to Rollie and the Economist. On January 26, Lutsenko shared a package of information on Burisma that, again, has similarities to what Rollie shared that same month.

According to Buma, sometime after the January 2019 presentation Rollie and The Economist made to the Los Angeles US Attorney’s Office, Buma submitted an FD-1023 about their package and spoke to two FBI case agents located in Baltimore on the already ongoing investigation into Hunter Biden about it.

After receiving the presentation from ROLLIE and THE ECONOMIST, THE ECONOMIST provided me a thumb drive with some supporting documentation, much of which was in the Ukrainian language, which I do not speak. After I submitted my FD-1023 reports on this information, I was put in touch with two agents working out of the Baltimore office on a case based in Delaware involving Hunter. I spoke on the phone with these agents, who were very interested in the information due to its relation to their ongoing investigation that was mostly involving allegations of Hunter’s involvement with drugs and prostitution. Information derived from ROLLIE and THE ECONOMIST had previously been found to be credible, so this was handled carefully and quickly transferred over to the agents in Baltimore and was serialized in their case file.

As Buma described it, by the time this information showed up in the press, it had become clear that Rollie and the Economist shared the information for influence purposes tied to Joe Biden’s run for the presidency, not law enforcement.

[T]he derogatory information concerning the Bidens and Burisma quickly emerged in domestic US. media, suggesting that it was being provided for political influence rather than law-enforcement purposes.

But that didn’t prevent the Ukrainians from being invited, some time after June 26, 2019, to attend an event associated with the White House at which Rollie gave Mike Pompeo the same package of derogatory information on Hunter Biden. And somewhere along the line, Buma’s primary source who introduced them to the Los Angeles US Attorney’s Office had direct contact with Rudy Giuliani.

The precise relationship between Rollie and The Economist and Rudy’s efforts, started month earlier, remains obscure. But both had begun well before Ziegler’s pitch to DOJ Tax to investigate Hunter Biden criminally, and it’s likely that Delaware had the FD-1023 from the Ukrainians before DOJ Tax approved the investigation.

And by that point, in April 2019, Ziegler’s supervisor — the same guy who insisted he needed more than payments to sex workers to open an investigation into a politically sensitive figure — started documenting the demands for just such an investigation.

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

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

[snip]

Q Okay. You’re talking about 2019. You were mentioning the fact that there was a George Murphy that was writing memos or emails and documenting some of his conclusions that were on the other side regarding this case.

Could you tell us more about him? What’s his title and who is he and how does he relate to you in terms of your chain of command?

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

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

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

MAJORITY COUNSEL 2. Off the record.

MAJORITY COUNSEL 1. Off the record. [Discussion off the record.]

MAJORITY COUNSEL 1. On the record.

Mr. [Ziegler]. So these articles were a lot about — were a lot of articles regarding Trump and getting a fair investigation and things related to that, Trump’s tweets and stuff like that. So, that’s what drew me to my conclusion.

BY MINORITY COUNSEL 1: Q What was the purpose behind him sending you the Trump tweets? What was he trying to get at, or was he trying to give you more information for your case? Why would he send those, or do you know?

A Yeah, I think he was bringing up concerns with potentially us prosecuting the case down the road, potential issues we’re going to incur. I don’t remember the exact email that he sent that caused me to be — that he had to stop sending me some of the news articles, because it wasn’t even the fact that he was sending me these news articles. It was the opinion he was providing in those emails that I did not agree or that I did not — not agree with but did not think was appropriate.

Gary Shapley replaced Kutz in 2020 — possibly because Kutz insisted on documenting the demands from the President for Ziegler’s thinly-predicated investigation — around the same time Bill Barr set up a means to ingest Rudy’s dirt.

But in 2019, Kutz was documenting in real time the problem with pursuing the son of Donald Trump’s opponent while Donald Trump demanded such investigations via Tweet.

It’s in the case file.

Trump’s demands for an investigation into Hunter Biden were deemed by the IRS SSA to be problematic influence on the case in 2019. Yet that investigation continues, now bolstered by Special Counsel status, and is the basis for the GOP impeachment pitch.

Samuelsohn’s rag has a reporter, Stephen Neukam, covering the GOP impeachment stunt almost half time (though Neukam apparently hasn’t bothered to cover the Scott Brady testimony that lays out even more details of how Barr set up a means to filter Rudy’s dirt into the Hunter Biden investigation, evidence that — contra Ziegler — Barr was “weigh[ing] in, or seek[ing] updates on the investigation after those cases were joined”). Barr has confirmed, on the record, knowledge of how information was shared from Brady to Weiss.

Yet Samuelsohn describes Rudy’s intervention as something past, something unrelated to the future prospect of Trump ordering up investigations into his rivals.

You cannot understand the GOP impeachment pitch — you cannot claim to be doing journalism on the Republican effort to impeach Hunter Biden’s father — unless you understand the ties between Rudy’s efforts and the Hunter Biden investigation.

You can write all you want about how institutional guardrails might stymie Trump’s efforts to politicize DOJ in the future. But if you gloss over evidence that those guardrails failed in Trump’s past Administration, if you ignore how Trump’s success at politicizing DOJ continues to have repercussions to this day — indeed, continues to be a central issue in the election — then you’re not really addressing the threat Trump poses, past and future.

Update: Fixed date of October 23 briefing.

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Perfect Phone Calls: Redefining Vindictive Prosecution in the Trump Era

November 21, 2023/41 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

On July 26, AUSA Leo Wise had this exchange with Maryellen Noreika, the judge presiding over the Hunter Biden case.

THE COURT: I have had one or two cases involving a person struggling with addiction who bought a gun, we usually see a felony charge for false statement.

The Defendant has admitted that his statement was false, but he wasn’t charged. Again, I’m not trying to get into the purview of the prosecutor, and I understand the separation of powers, it’s in your discretion, but I just want to ask, does the government have any concern about not bringing the false statement charge in light of our discussion of 922(g)(3) and the constitutionality of that charge.

MR. WISE: No, Your Honor.

Less than three hours later, after Wise revealed that prosecutors had a different understanding of the immunity provision in the plea deal than Hunter’s lawyers did, Hunter Biden pled not guilty to two misdemeanor tax charges.

Hunter Biden faces stiffer penalties after exercizing a constitutional right

Hunter Biden exercised his constitutional right to plead not guilty to a plea deal that wasn’t what he had understood it to be.

Exactly 50 days later, Leo Wise and Derek Hines obtained an indictment charging Hunter Biden with three crimes under 18 USC 922: the original charge for possessing a gun as an addict — 922(g)(3) — along with two false statement charges 922(a)(6) and 924(a)(1)(A) that Wise had said less than two months earlier prosecutors didn’t intend to charge. Then, the government dismissed the previous diversion agreement that charged Hunter solely with 922(g)(3).

Whereas on July 26, Hunter faced the possibility of avoiding any jail time for the gun crime and, even if he failed to fulfill the terms of his diversion, he faced a maximum of 10 years, as of September 14, on paper he faces 25 years. (In reality he would face a fraction of this and the total exposure is similar.) Hunter Biden faces those formally stiffer penalties even though AUSA Wise told Judge Noreika that the gun diversion was, “a contract between the parties so it’s in effect until it’s either breached or a determination, period.”

The sharply increased penalty that Hunter Biden faces after agreeing to a diversion agreement but then pleading not guilty to tax charges may be a key dynamic in motions we’ll see in weeks ahead.

What Abbe Lowell said we could expect

Between the arraignment and his bid for a Trump subpoena, Hunter Biden’s lawyer Abbe Lowell has set expectations about what will occur between now and submission of pretrial motions on December 11.

He has asked for “Brady and other discovery,” but as of last week, “the defense has not received such material [about the targets of his subpoena request] in discovery from the prosecution or elsewhere, notwithstanding specific discovery requests and that some of this information likely resides with the DOJ.”

He said he expected to request an evidentiary hearing, which will presumably be tied to one or more motions to dismiss the indictment.

He described that those motions to dismiss would argue:

The gun charges are unconstitutional
The diversion agreement prohibits these charges
A selective and/or
Vindictive prosecution claim

The motion to dismiss the gun charges on constitutional grounds will associate this case with other similar challenges already wending their way towards SCOTUS. Whatever Noreika decides to do about it, it will mostly delay resolution of this case as those appeals proceed.

Lowell, and before him Chris Clark, have repeatedly said that Weiss could not indict Hunter on the gun charges because the diversion agreement remains in effect. I’m not sure how Lowell will make the argument that DOJ has effectively breached a “bilateral contract,” though it may also play a part in a vindictive prosecution claim, as I describe below.

Selective prosecution arguments almost never work. It would have to lay out evidence that there were similarly situated people — who purchased a gun without disclosing their addiction but, absent some other crime tied to the gun, were not charged. It is not enough to point to abundant data showing that this charge is rarely charged (as a number of journalists have laid out), which, if he files such a motion, Lowell would surely have. You also have to argue that you were charged only because you’re a protected class, which historically has meant racial discrimination. While (as Carissa Byrne Hessick recently laid out when Trump tried a selective prosecution claim) people have tried to say they were selectively prosecuted because of their political views, that hasn’t worked yet. And you could as easily argue that Hunter was being charged because he is the son of the guy who championed these drug and gun laws in the first place as you could that he was being charged because he is the President’s son — goodness knows the 2A crowd would make that argument.

One of the only reasons such a motion might work here where it would otherwise not is because there are people — thus far speaking anonymously to the press — who have stated that Hunter was charged only because he is who he is. For example, Glenn Thrush described that,

When officials with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives reviewed Hunter Biden’s gun application several years ago, they believed the case most likely would have been dropped if the target were a lesser-known person.

And NYT described, in a story including Thrush, that,

Mr. Weiss told an associate that he preferred not to bring any charges, even misdemeanors, against Mr. Biden because the average American would not be prosecuted for similar offenses.

If Lowell can find these witnesses — experts on gun crimes who said Hunter was charged only because he was prominent and a Weiss associate whom Weiss purportedly told he knew that average Americans would not be prosecuted for such crimes –and get them to testify, then he would have what virtually no other defendant would: Proof that the prosecutor who brought the charge knew that similarly situated defendants would not be charged, but charged the defendant anyway.

Vindictive prosecution bids almost never work pre-trial

It’s Lowell’s mention of a possible vindictive prosecution claim that I revisited after reading his subpoena request and writing this post.

Normally, vindictive prosecution claims argue that a prosecutor retaliated against a defendant because they exercised a constitutional or statutory right. As mapped out above, Lowell might argue that David Weiss ratcheted up the gun charges against Hunter — 25 years of exposure instead of a diversion agreement — because he exercised his right to plead not guilty on the tax charges.

But that argument would be thwarted by several precedents that limit the ability of a defendant to plead vindictive prosecution, especially pre-trial. Bordenkirscher basically held that making dickish threats as part of plea negotiations is not vindictive prosecution. Goodwin made it much harder to argue that a prosecutor’s decision to ratchet up charges in response to a defendant’s decision to go to trial was presumptively vindictive, basically holding that the prosecutor may have, instead, added charges out of some societal interest in the prosecution.

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

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

As with the selective prosecution claim, some facts exist with the Hunter Biden prosecution that might distinguish this from all the other impossible claims of vindictive prosecution. Most important is the contested status of that diversion agreement, about which both sides made conflicting claims during the failed plea hearing. If Noreika credits it as a bilateral contract between the two sides, as both Wise and Clark claimed it was at points during the hearing, then she might treat a vindictive prosecution claim as an abrogation of a contract followed by the ratcheting up of charges. If Noreika links it to the tax plea, as both sides described it as at different points in that hearing, then the question of whether Weiss reneged on the larger plea becomes an issue, but which might make this just a case of dickish threats covered by Bordenkirscher.

There’s also the fact that Weiss will have to come up with an explanation of why he and Leo Wise thought pretrial diversion was in the societal interest on June 20, why Leo Wise thought false statement charges were unnecessary on July 26, but then decided felony prosecution, including on two false statements charges, was in the societal interest on September 14. This is why Abbe Lowell keeps repeating,

no new evidence related to these charges emerged between June 20 (when the plea deal was first presented to the Court) and July 26 (when the prosecution reneged on its deal), and in fact only more favorable case law on this issue has developed since then.

While there was more evidence in Speed’s case (newly discovered video from the Capitol), mostly prosecutors just argued the evidence looked different as other obstruction cases unfolded.

Lowell is arguing that the only thing that explains why the five year old evidence against Hunter Biden might look different in September than it did in June is because of the political pressure brought to bear on Weiss, and maybe the threats that both Weiss and Thomas Sobocinski have described to the House Judiciary Committee that was significantly responsible for the threats.

That would make this a political influence and violent threats case, not a vindictive prosecution case — possibly a different kind of motion to dismiss on Due Process grounds, but not a vindictive prosecution case. Normally, though, prosecutors have lots of tools to exclude that kind of thing.

Vindictiveness on a much grander scale

Which brings me to Lowell’s request to serve subpoenas on Donald Trump, Bill Barr, Jeffrey Rosen, and Richard Donoghue, which first sent me down this rabbit hole.

Consider the timing. The November 15 filing makes an impossible request; it asks for subpoena returns by December 1.

Defendant Robert Hunter Biden, through his counsel, respectfully moves this Court to enter an order directing that subpoenas duces tecum be issued to the following individuals—Donald John Trump (“Mr. Trump”); William P. Barr (“Mr. Barr”); Richard Donoghue (“Mr. Donoghue”); and Jeffrey A. Rosen (“Mr. Rosen”)—pursuant to Rule 17(c) of the Federal Rules of Criminal Procedure, and that each subpoena recipient be required to provide any responsive documents and materials by December 1, 2023, to allow Mr. Biden sufficient time to review the material in advance of any necessary pre-trial motion, evidentiary hearing, and/or trial.

Thus far, Judge Noreika has not ordered Weiss to respond, but if they do in normal order and Lowell replies, this thing wouldn’t be fully briefed until December 6. Lowell couldn’t possibly expect subpoena returns, even assuming any of those served would respond without legal challenge, until after the new year.

The motion reviews the standard for subpoenas and admissibility at length, but as Popehat noted in a piece that otherwise got many of the facts of this case (such as the role of Biden officials in it) wrong, it doesn’t brief how Lowell would be able to use these records. Lowell mentions vindictive or selective prosecution but doesn’t, yet, make a case for it. Lowell cites just one precedent for obtaining subpoenas for use in pretrial filings, as opposed to at trial.

Lowell doesn’t mention Armstrong, the precedent that usually makes it impossible for defendants to get discovery in selective prosecution challenges. But that may be instructive. Before Lowell is making a request for discovery based on a selective and/or vindictive prosecution claim, he is first asking for subpoenas, without fully laying out whether this would be a selective or vindictive or political influence prosecution claim.

Instead of arguing Armstrong, Lowell instead notes that he knows these records actually exist. “Before the government intones its stock phrase, this is no fishing expedition.”

On that point, he’s right. There are records responsive to these subpoenas. But it’s worth looking at what they are, what else would be included if he got full response to these subpoenas.

The subpoenas ask for any communications provided to the January 6 Committee mentioning Hunter Biden (request 4). The request cites Richard Donoghue’s notes of Trump referencing the Hunter Biden prosecution. I’m fairly certain those notes came from the Archives; they were the subject of a special waiver of Executive Privilege back in July 2021. For a variety of reasons, finding similar such notes at the Archives would be virtually impossible without another Executive Privilege waiver, a waiver that because of the conflict, would have to come from Trump, not Biden.

The subpoenas ask for any personal records, such as diaries, that, “reference to any formal or informal decision, discussion, or request to investigate or prosecute Hunter Biden” (request 3). If Donoghue’s notes were not treated as official documents, those would be included. Any drafts of Bill Barr’s book or notes that formed the basis for it, also cited in this motion, would also be included. In the subpoena request, Lowell cites to this WaPo story for Barr’s quote about Trump’s harassment, in which DOJ beat journalist Matt Zapotosky attributes Trump’s comments to Barr based on the fact that Hunter’s, “name was in the news because of the discovery of a laptop belonging to him.”

The full reference in the book describes Will Levi witnessing the call, which raises questions about whether he was on the call taking notes (as Richard Donoghue was during the December 27, 2020 call) rather than standing by, listening to just one side of the conversation as described in the book.

In mid-October I received a call from the President, which was the last time I spoke to him prior to the election. It was a very short conversation. The call came soon after Rudy Giuliani succeeded in making public information about Hunter Biden’s laptop. I had walked over to my desk to take the call. These calls had become rare, so Will Levi stood nearby waiting expectantly to see what it was about. After brief pleasantry about his being out on the campaign trail, the President said, “You know this stuff from Hunter Biden’s laptop?”

I cut the President off sharply. “Mr. President, I can’t talk about that, and I am not going to.”

President Trump hesitated, then continued in a plaintive tone, “You know, if that was one of my kids—”

I cut him off again, raising my voice, “Dammit, Mr. President, I am not going to talk to you about Hunter Biden. Period!”

He was silent for a moment, then quickly got off the line.

I looked up at Will, whose eyes were as big as saucers. “You yelled at the President?” he asked, confirming the obvious. I nodded. He shook his head in disbelief.

A month after the election, the Washington Post reported that there was already an investigation of Hunter Biden under way when I started as Attorney General and that this fact was never leaked. The President never confronted me about that report directly, but I had heard he was angry that I didn’t say anything after the presidential debate in which Biden falsely suggested the relevant e-mails on his son Hunter’s laptop may have been placed there by the Russians. Biden’s bogus statement relied on a letter published a few days before by a coterie of retired intelligence officials who had lost their professional bearings and lent their names to partisan hackery. Their claim was exposed a few days later when the FBI, together with John Ratcliffe, the director of national intelligence, made clear there were no grounds to think the laptop’s damning content reflected foreign disinformation. But, of course, the media, having heralded the letter’s fictitious claims, stayed mostly quiet about its debunking. The damage was done. Biden got away with deception. And Trump thought I was to blame.

This, as well as other Hunter Biden references in the book, are fundamentally incompatible with Barr being personally involved in the Scott Brady project, including having personal knowledge of the circumstances by which Donoghue ordered the FD-1023 to be shared with the Hunter Biden team within ten days of this conversation.

But the degree to which Barr conducted Ukraine-related issues — not to mention a reference to sending Barr a laptop the day after FBI received a laptop believed to have been owned by Hunter Biden — on his personal cell phone would suggest he may have far more, and far more forthright, records about his knowledge of the Hunter Biden investigation in his personal possession. Those would be covered by the subpoena request for communications with, “any Executive Branch official, political appointee, Department of Justice official, government agency, government official or staff person, cabinet member” (request 2).

Trump too would have, “communications…discussing any formal or informal investigation or prosecution of Hunter Biden, including, but not limited to, any decision, referral, or request to investigate or not investigate or charge or not charge Hunter Biden” (request 1). Lowell includes eight examples in his motion: social media posts, four from during Trump’s term and four during the period between the posting of the plea and the failed plea deal.

Those are easy. The records exist, including records over which Trump could invoke no conceivable privilege.

Abbe Lowell is not making up his claim that the top officials at DOJ and Donald Trump communicated about this investigation. He’s not even making up the insinuation that some were intimately involved in efforts to filter dirt, potentially including from Russian agents, into the investigation of Hunter Biden. Scott Brady has already confessed to that.

But one detail of the subpoenas hints at where this could go: In addition to requests for communications with government officials about prosecuting Hunter Biden, it also requests for communications with any, “attorney for President Trump (personal or other) discussing or concerning Hunter Biden” (request 2).

These subpoenas ask for communications with Rudy Giuliani about Hunter Biden.

While the DOJ people may have insulated themselves from direct contact with Rudy (for example, Barr spoke with Victoria Toensing about Dmitry Firtash and the Brady project was set up through Robert Costello), Trump would have a gold mine of contacts with Rudy, including about the “Hunter Biden” “laptop.” He might claim privilege over those.

You know what other communication Trump had, “discussing any formal or informal investigation or prosecution of Hunter Biden” (request 1)? The perfect phone call with Volodymyr Zelenskyy, including — to the extent it still exists — the version in which Zelenskyy named Burisma explicitly, the version in which Trump referenced recordings of Biden discussing corruption, the kind of thing, Lev Parnas claims, that had already been offered up by Mykola Zlochevsky, the guy who went on to make a new bribery claim about Joe Biden after that call.

What these subpoenas ask for pertains to political influence and threats. But they also ask for evidence of a different kind of vindictive prosecution: Trump’s explicit effort to exact his revenge for the Russian investigation on Democrats, on his Democratic opponent, by investigating Hunter Biden.

That’s a due process violation. But not of the kind covered by all the precedents that make it virtually impossible to prove vindictive prosecution.

Serving notice

These subpoenas seek evidence showing that Trump’s demand for an investigation of Hunter Biden for vindictive reasons reached the team investigating Hunter Biden. These are impossible subpoenas, insofar as they ask for compliance according to an impossible timeline and ask for compliance that may not legally be available (indeed, to the extent Trump has items in his possession, for various reason they may be covered by the Mar-a-Lago protective order). To the extent subpoenas ask for things covered by various privileges, they would pose impossible challenges to overcome. To the extent the subpoenas ask for the perfect phone call in which Trump demanded Zelenskyy’s help with an investigation of Hunter Biden, they are impossible subpoenas because the White House altered that record in real time.

But they are, also, subpoenas for records that undeniably exist, records that incorporate an effort Bill Barr set up to cater to Donald Trump’s personal lawyer that did result in at least one piece of evidence being introduced into the Hunter Biden investigation — Bill Barr’s communications with (!!!) Margot Cleveland would be responsive to his subpoena and would prove that point — records that further show that on at least two occasions, the President of the United States personally berated the Attorney General (or Acting Attorney General) making demands about this investigation.

The subpoena request does one more thing, as well. It notes that under 26 USC 7217, if any of Trump’s demands about this investigation covered a demand for tax prosecution — the kind of tax prosecution still being pursued in California — it would constitute a felony, one that explicitly names the President among those covered by the crime.

For his part, Mr. Trump has made a plethora of concerning public statements calling for an investigation or possible prosecution of Mr. Biden, both while in office and since leaving, that further suggest improper partisan, political demands were at play, either expressly or implicitly. See also 26 U.S.C. § 7217 (making it a felony for the President to request an IRS investigation of an individual).

These may be impossible subpoenas, but they do serve notice.

My guess is that, when and if Weiss responds, he simply says that those big efforts to politicize this investigation are totally separate from this little tiny isolated gun indictment. He may claim he doesn’t follow the Twitter feed of the guy who appointed him anyway — the same excuses Bill Barr made about other demands Trump served on DOJ via Twitter. Weiss may say, with reason, that some of Richard Donoghue’s involvement in this case actually served to ensure the investigation did not influence the 2020 election. But to even broach that subject, he’d have to admit that some of Richard Donoghue’s efforts, such as ordering Weiss’ attorneys to accept a bribery allegation from the head of Burisma made during impeachment, made after Rudy Giuliani solicited dirt from him, possibly in exchange for favors from DOJ that just happened to coincide with the closure of an investigation into him, can in no way be considered such a thing. Weiss may even say that to the extent that he sheep-dipped his prosecution team, swapping Lesley Wolf for Leo Wise, he has further isolated the team from such improper influences, influences that (Joseph Ziegler helpfully revealed) have been documented going back to 2019.

However Weiss responds, that response will precede whatever motions to dismiss — whether it’s selective or vindictive or really vindictive prosecution — that Abbe Lowell ultimately does file.

None of that will change the precedents — Armstrong and Bordenkirscher and Goodwin and others — that make it nearly impossible for defendants to make these arguments.

But there are aspects of this case, both the known evidence (much of it offered up by law enforcement officers whose actions led to threats against the prosecution team) and the legal posture leftover from that failed plea deal, that make the motions to dismiss genuinely different.

This case is, on one hand, a very simple prosecution involving claims Hunter Biden made in his book, the application of a law that his father championed. It is also, however, a test of whether defendants can fight a different kind of vindictive prosecution, the kind Trump demanded and continues to demand.

Thanks to Carissa Byrne Hessick, who generously served as a sounding board for my thoughts leading up to this post. The errors in the post are all mine.

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David Weiss’ FBI FARA Headfake to Create a Hunter Biden Tax Mulligan

November 20, 2023/42 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden /by emptywheel

Last week, CNN reported that the President’s brother, James Biden, is among some number of people who have received a grand jury subpoena for ongoing investigations into Hunter Biden. The investigative steps are unsurprising. As I noted, David Weiss spoke with Los Angeles US Attorney Martin Estrada on September 19 of this year about something that “goes to an ongoing investigation.”

According to materials released by Joseph Ziegler, the IRS interviewed James Biden on September 29, 2022, the last interview in the investigation before the failed plea deal. He was asked about a range of topics: a payment he received from Owasco before he was working with them, his and Hunter’s interactions with CEFC, Hunter’s relationship with Kevin Morris, and about several dodgy people whom Hunter paid in 2018 — payments he wrote off on his taxes. Prosecutors had discussed at least two of those people with Hunter’s legal team during the summer in 2022.

James Biden’s September 2022 interview was voluntary, suggesting investigators obtained any documents discussed in the interview — all but two of which appear to predate April 2019, and so might be among the non-Google materials that investigators first obtained from the laptop provided by John Paul Mac Isaac — via other means, including the laptop and warrants obtained downstream of the laptop. Again, any Google content is an exception to this; it appears the IRS obtained the first Google warrant for Hunter’s Rosemont Seneca account before getting the laptop, but it also appears that the government did not obtain things normally available in a Google warrant–such as attachments and calendar notices–with that warrant and so instead relied on the laptop.

As CNN describes, thus far the subpoenas seek documents; it’s unclear whether anyone (besides someone from the new IRS team put on the case after Weiss removed Gary Shapley and Joseph Ziegler) has or will testify in person. There are certainly documents that the IRS didn’t seem to have in last year’s interview with James Biden, such as details of his trips to California in 2018 to try to save his nephew from the throes of addiction.

But it’s also possible Weiss is using subpoenas to obtain records that otherwise would be tainted by the laptop.

When Estrada testified to the House Judiciary Committee about the recommendations about this case his senior prosecutors made in three different reports, recommendations he adopted and conveyed to Weiss in a call on October 19, 2022, he referenced Justice Manual rules. “We look at whether a Federal offense has been committed and whether we believe that there is admissible evidence sufficient to prove to an unbiased trier of fact that an individual has committed an offense beyond a reasonable doubt.” So the quality of evidence obtained in this investigation could be one reason Estrada’s career prosecutors advised him not to partner on this case.

The details about a renewed investigation into Hunter Biden are not surprising — Estrada’s testimony already suggested as much.

More interesting, however, is CNN’s report that the FBI has completed its part of the investigation, pertaining to FARA and money laundering, and expects no charges.

The FBI, which oversaw the money laundering and FARA portions of the investigation, concluded its findings and didn’t anticipate charges to emerge from those allegations, people briefed on the matter told CNN.

That’s important because potential FARA charges are the reason why this case didn’t end in a plea in July — or at least, the excuse David Weiss and his sheep-dipped prosecutor, Leo Wise, referenced to sustain a claim that the investigation was ongoing.

On July 10, in the wake of a Republican uproar about the Hunter Biden plea deal and public comments from Bill Barr about the FD-1023, Weiss told Lindsey Graham that the allegations of bribery Mykola Zlochevsky made, after outreach from Rudy Giuliani and sometime around when Bill Barr’s DOJ dropped their investigation of him, “relate to an ongoing investigation.” That was probably the second clue that Hunter’s legal team got that the investigation they believed had concluded remained (re)open — the first being Weiss’ press release on the charges on June 20. And in the failed July 26 plea hearing, a potential FARA charge is the specific criminal exposure Leo Wise raised which led Hunter to plead not guilty to a deal significantly negotiated by Delaware AUSA Lesley Wolf.

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.

THE COURT: I’m trying to figure out if there is a meeting of the minds here and I’m not sure that this provision isn’t part of the Plea Agreement and so that’s why I’m asking.

MR. CLARK: Your Honor, the Plea Agreement —

THE COURT: I need you to answer my question if you can. Is there a meeting of the minds on that one?

MR. CLARK: As stated by the government just now, I don’t agree with what the government said.

THE COURT: So I mean, these are contracts. To be enforceable, there has to be a meeting of the minds. So what do we do now?

MR. WISE: Then there is no deal.

Leo Wise refused to agree that FARA charges were off the table, even though — if you believe Abbe Lowell’s version of events — Lesley Wolf led Hunter’s team to understand, weeks earlier, that FARA charges were off the table. And based on that, Hunter refused to plead guilty.

That’s what gave David Weiss the opportunity to ask to be made Special Counsel: a claim, made after he had already filed tax and a gun charge on June 20, that he was still pursuing an investigation tied to the FD-1023, which would be bribery and money laundering. That’s what led to the three felony gun charges for owning a gun for 11 days in 2018. And that’s what led to a renewed investigation in Los Angeles. And now, David Weiss is using a Los Angeles grand jury to obtain evidence from James Biden that he didn’t think he needed a year ago.

That potential FARA charge is the excuse Weiss used to limit a deal his office had entered into a month earlier. And now, less than two months into any new investigative focus in Los Angeles, CNN says the evidence doesn’t support FARA charges. That’s not surprising. Joseph Ziegler and Gary Shapley released numerous documents showing Weiss’ team discarded various FARA theories months and years ago (though a CEFC theory was still active as of July 2022).

But it means, at least per CNN, the rationale Weiss and Wise used to sustain the investigation proved short-lived.

That’s important background to Hunter Biden’s request for subpoenas for Trump and others in advance of pretrial motions that Hunter Biden will likely file next month, which I will discuss in more length in a follow-up. Contrary to what some smart commentators, like Popehat, have repeatedly argued, there’s no reason to believe Biden is pursuing this “to develop more evidence that Trump people have it in for him that he can use in future prosecutions,” if Trump returns to the presidency.

Indeed, Abbe Lowell said these subpoenas are, “relevant and material to a fundamental aspect of issues in his defense that will be addressed in pre-trial motions.”

Lowell further explained he needs the subpoenas to figure out whether Weiss’ “change of heart” regarding charges was a “response to political pressure.”

From a Fifth Amendment perspective, it is essential for Mr. Biden to know whether anyone improperly discussed, encouraged, endorsed, or requested an investigation or prosecution of him, and to whom and under what circumstances. The information sought would demonstrate that fact. This is especially true in light of the fact that no new evidence related to these charges emerged between June 20 (when the plea deal was first presented to the Court) and July 26 (when the prosecution reneged on its deal), and in fact only more favorable case law on this issue has developed since then.18 Thus, the prosecution’s change of heart appears to be in response to political pressure, rather than anything newly discovered in the investigation of Mr. Biden. Because such evidence, only some of which has been disclosed already, would tend to undermine the prosecution’s allegation that this case was free from any political inference and was not of a selective or vindictive nature, Mr. Biden’s requests are relevant and material under the requirements of Rule 17(c). [my emphasis]

I imagine that if David Weiss is ever forced to explain what led to the head fake with the plea, he will claim that it had to do with the way he tried to sheep dip the investigation after he decided to charge the case even in spite of Shapley and Ziegler’s efforts to force the issue.

Last December, according to IRS Director of Field Operations Michael Batdorf’s September 12 testimony, Batdorf and Darrell Waldon made the decision to remove Shapley and Ziegler from the Hunter Biden investigation. They didn’t implement it, though, until May, after and because Weiss decided he would charge the case, at which point the IRS assigned a completely new team.

Having an objective set of eyes — complete objective set of eyes on the case where the new investigative team came in and the case is good, the evidence is good, that was something that we just said, let’s — we removed the cooperating revenue agent that was doing tax calculations. We just got an entire new investigative team in there.

[snip]

My concern was the opposite, that if they remained on the case, the case would not go forward

[snip]

It was my interpretation from the phone conversation that we had in December [with Weiss] that there were concerns with the investigation and investigative team, and adding up all those concerns, so having a harder time jumping over that, you know, moving forward with this prosecution.

He never specifically stated that we had to remove the investigative team. He stated that he does not control IRS resources, and he understands that. But part of the concern of moving forward was our investigative team.

[snip]

There was no more investigative activities to take. We can get this to prosecution with a new investigative team.

Partly, this may have just been an effort to avoid having to provide Jencks material, some of which Ziegler and Shapley have since already provided Congress. Even last year, Weiss recognized that Ziegler couldn’t present the revenue assessments at trial that he has spent months sharing with Congress. With a new IRS team, Weiss has secured witnesses who can take the stand without requiring that Weiss share documentation of an obsession with charging Hunter Biden and, frankly, of including his father in the investigation.

It may also be an attempt to insulate any charges from a claim that a law enforcement official found by his supervisor to be making, “unsubstantiated allegations [about Weiss] of motive, intent, and bias” had forced a prosecutor’s decision. After which Shapley and Ziegler have spent months trying to do just that!

But it may not have been just the IRS team. Batdorf described that there had also been a change in AUSA, which would include Lesley Wolf, around the same time.

A It’s my understanding that there had been a change in the AUSA, the prosecution team.

Q And when was the change made? Do you know?

A I believe that was made in roughly — I think it was May or June of this year when we decided to move forward with the investigation.

When staffers asked FBI Special Agent in Charge Thomas Sobocinski in his September 7 interview the same question, he wasn’t sure whether that was true or not. “I don’t know that your statement is factually correct,” Sobocinski responded to an investigator asking why she had been taken off pleadings.

What Sobocinski did know, however, was that Lesley Wolf had received threats. It’s “fair” to say that “she may have concerns for her own safety,” Sobocinski agreed.

Weiss might argue that once Leo Wise took over as AUSA — if that’s what happened — then Weiss left prosecutorial decisions to Wise as a way to insulate charges from claims (made by the IRS agents trying to force more serious charges) that Wolf was biased.

The problem with that is that, on June 7, Lesley Wolf sent out what appears to be the final language on the immunity agreement tied to the plea deal.

Over the course of a few more emails, lawyers on both sides kept line-editing the deal. And on June 7, Wolf sent Clark a version that included the final language shielding Biden from future charges. The language is technical, but it would have immense consequences. Here it is in full:

“The United States agrees not to criminally prosecute Biden, outside of the terms of this Agreement, for any federal crimes encompassed by the attached Statement of Facts (Attachment A) and the Statement of Facts attached as Exhibit 1 to the Memorandum of Plea Agreement filed this same day. This Agreement does not provide any protection against prosecution for any future conduct by Biden or by any of his affiliated businesses.”

The language refers to two different statements of facts; one would accompany the guilty plea and the other would accompany the pretrial diversion agreement. Together, the two statements included substantial detail about the first son’s business dealings and drug use. The statements highlighted his time on the boards of a scandal-dogged Ukrainian energy company and a Chinese private equity fund, as well as his business venture with the head of a Chinese energy conglomerate. Wolf included those statements in her June 7 email.

Wolf was still on the prosecutorial team — and negotiating a plea deal that would have ruled out FARA charges — on June 7.

That’s the same day Weiss sent the first response, to a May 25 letter Jim Jordan sent Merrick Garland about the IRS agents’ complaints of being removed from the investigation. In it, he cited Rod Rosenstein’s explanation to Chuck Grassley in 2018 how congressional interference might politicize an investigation (in that case, the Mueller investigation).

The information sought by the Committee concerns an open matter about which the Department is not at liberty to respond. As then-Deputy Attorney General Rod Rosenstein wrote in 2018 in response to a request for information from the Honorable Charles Grassley, Chairman of the Senate Committee on the Judiciary:

Congressional inquiries during the pendency of a matter pose an inherent threat to the integrity of the Department’s law enforcement and litigation functions. Such inquiries inescapably create the risk that the public and the courts will perceive undue political and Congressional influence over law enforcement and litigation decision.

Less than two months after telling Grassley to butt out, or the public would believe the Mueller investigation faced undue political influence, Rosenstein would grovel to keep his job, assuring President Trump he could “land the plane.” In practice, the reference was not exactly a guarantee of prosecutorial independence, but if Weiss hoped Jordan would understand that, the all-star wrestler didn’t take the hint that corn farmer Grassley took to heart.

Weiss might claim that he replaced Wolf with Wise and in the process had Wise reassess the prior prosecutorial decisions. But, given the date of that letter, there was never a moment he had done so before the political pressure started. David Weiss cannot claim he did so before being pressured by Jim Jordan.

And Jordan’s letter wasn’t the only political pressure. On the same day that Weiss said he couldn’t share information — the likes of which Shapley had already started sharing — because it might politicize an ongoing investigation, Bill Barr (one of the people Lowell wants to subpoena) publicly intervened in the case, insisting the FD-1023 recording Mykola Zlochevsky making a new allegation of bribery had been a live investigative lead when it was shared with Weiss in October 2020, the FD-1023 Weiss specifically said he could not address because it was part of an ongoing investigation.

On a day when Lesley Wolf remained on the case, both Jordan and Barr had already intervened. And because there was never a time that Weiss had replaced Wolf with Wise before the political pressure started, there was little time he had done so before the physical threats followed the political pressure.

In fact, when Congressional staffers asked Sobocinski whether he and David Weiss spoke about Shapley and Ziegler’s testimony after it went public on the day the plea deal was announced, Sobocinski described that both agreed that Shapley’s testimony would have an effect on the case. “We both acknowledged that it was there and that it would have had it had an impact on our case.” But that effect was, to a significant extent for Sobocinski, about the threats that not just investigators, but also their family members, were getting.

I am solely focused on two things, and they’re not mutually exclusive. The first thing is, like every investigation, I want to get to a resolution in a fair, apolitical way. The second thing, and it’s becoming more important and more relevant, is keeping my folks safe. And the part that I never expected is keeping their families safe. So that, for me, is becoming more and more of a job that I have to do and take away from what I was what I signed up to do, which was investigate and do those things. So when you talk about potential frustrations with communication, I am personally frustrated with anything that places my employees and their families in enhanced danger. Our children, their children didn’t sign up for this.

In Weiss’ testimony to HJC, he described threats too. But unlike Sobocinski, he may not have pointed to the effect Shapley’s now debunked claims had in eliciting them.

Weiss said people working on the case have faced significant threats and harassment, and that family members of people in his office have been doxed.

“I have safety concerns for everybody who has worked on the case,” he said.

He added that he doesn’t know what motivates the people who have threatened his team.

“I’ve certainly received messages, calls, emails from folks who have not been completely enamored of my — with my role in this case,” he added, noting that he is also concerned for his family’s safety.

Weiss’ testimony that he wasn’t sure what motivated the people who threatened his team may not help him insulate his case, because Shapley’s testimony likely wasn’t the only likely source of threats.

Among the things Lowell cited in his request for subpoenas were the four Truth Social posts Trump made between the plea deal first was posted and the day the plea failed, one of which criticized Weiss by name and called for Hunter Biden’s death.

Trump Truth Social posts on June 20, 2023:

“Wow! The corrupt Biden DOJ just cleared up hundreds of years of criminal liability by giving Hunter Biden a mere ‘traffic ticket.’ Our system is BROKEN!”

“A ‘SWEETHEART’ DEAL FOR HUNTER (AND JOE), AS THEY CONTINUE THEIR QUEST TO ‘GET’ TRUMP, JOE’S POLITICAL OPPONENT. WE ARE NOW A THIRD WORLD COUNTRY!”

“The Hunter/Joe Biden settlement is a massive COVERUP & FULL SCALE ELECTION INTERFERENCE ‘SCAM’ THE LIKES OF WHICH HAS NEVER BEEN SEEN IN OUR COUNTRY BEFORE. A ‘TRAFFIC TICKET,’ & JOE IS ALL CLEANED UP & READY TO GO INTO THE 2024 PRESIDENTIAL ELECTION. . . .”

Trump Truth Social post on July 11, 2023:

“Weiss is a COWARD, a smaller version of Bill Barr, who never had the courage to do what everyone knows should have been done. He gave out a traffic ticket instead of a death sentence. Because of the two Democrat Senators in Delaware, they got to choose and/or approve him. 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!”9 [my emphasis]

There is, thanks in significant part to Jim Jordan, abundant documentation that between the time Lesley Wolf first sent out language seemingly promising Hunter Biden he would not be charged with FARA and the time Leo Wise told Judge Maryanne Noreika that he still could be, Republicans started pressuring David Weiss about his decisions. Thanks to Jordan, there are also multiple witnesses who have described that between the time Lesley Wolf shared immunity language and the time when — Abbe Lowell claims — David Weiss reneged on that language, the investigative team started having to fend off credible threats, not just to themselves, but also their family members.

To be sure, between the time Hunter’s lawyers made clear they planned to argue Weiss reneged on a deal and the time Lowell asked for subpoenas, in part, “possibly as impeachment of a trial witness,” Weiss testified that he always planned on continuing the investigation.

At the time, Biden’s lawyers signaled that the deal meant the Justice Department’s probe of the president’s son was over. But, according to Weiss, the investigation hadn’t ended at that point.

“I can say that at no time was it coming to a close,” he said. “I think, as I stated in the one statement I made at the time, the investigation was continuing. So it wasn’t ending there in any event.”

Yet according to CNN, two months after Weiss spoke to Estrada, seemingly to renew investigative activity in Los Angeles, any FARA investigation has ended. Instead, Weiss appears to be conducting new investigative steps in the tax case, investigative steps that started a week after IRS’ head of Field Operations testified that he understood “there was no more investigative activities to take.”

Both David Weiss and Leo Wise have publicly suggested that the ongoing investigation which Weiss insisted to Congress had always been planned was FARA or bribery related. That claim seems to have served no other purpose than to have given themselves a chance to reconsider tax charges both once claimed could be settled with misdemeanor charges.

Update: Batdorf link corrected.

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In Bid for a Trump Subpoena, Abbe Lowell Cites Trump’s Complaints about Politicization

November 15, 2023/47 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

Abbe Lowell just asked for subpoenas to serve on Donald Trump, Bill Barr, Jeffrey Rosen, and Richard Donoghue so he can see if they have personal records of improper politicization of the case against Hunter Biden.

Lowell describes that he has specifically asked for such records in discovery, yet received nothing, even though some of it likely is (in fact — I would say — abundant records show it is) at DOJ.

To date, the defense has not received such material in discovery from the prosecution or elsewhere, notwithstanding specific discovery requests and that some of this information likely resides with the DOJ.

To support a claim that would be immediately rejected in almost any other situation and likely will still be rejected here, Lowell made two arguments.

First, an argument for the political press: Donald Trump has recently argued that his own case should be dismissed if he can prove political retaliation.

Subpoena recipient President Trump knows full well that improper pressure on prosecutors to bring criminal charges against an individual for political reasons is grounds for seeking to dismiss an indictment because President Trump recently filed a motion to dismiss on this very basis in one of his criminal cases. See United States v. Trump, No. 1:23-cr00257-TSC, D.E. 116 (D.D.C. Oct. 23, 2023).16 Similarly, subpoena recipient Attorney General Barr has explained precisely why the concern Mr. Biden raises here is problematic for this Indictment:

The essence of the rule of law is that whatever rule you apply in one case must be the same rule you would apply to similar cases. Treating each person equally before the law includes how the Department enforces the law. We should not prosecute someone for wire fraud in Manhattan using a legal theory we would not equally pursue in Madison or in Montgomery, or allow prosecutors in one division to bring charges using a theory that a group of prosecutors in the division down the hall would not deploy against someone who engaged in indistinguishable conduct.17

[snip]

16 Demonstrating hypocrisy and a lack of principles, just last week, Mr. Trump insisted that the weaponization of the judicial process is wrong (and it is), but Mr. Trump claims that he would be justified in weaponizing the judicial process against his political enemies because he believes that he has been a victim of such weaponization. See Kathryn Watson, Trump Suggests He Or Another Republican President Could Use Justice Department To Indict Opponents, CBS News (Nov. 10, 2023), https://www.cbsnews.com/news/donald-trump-weaponization-justice-departmentpolitical-opponents/. This claim certainly undercuts any notion that Mr. Trump is above such misconduct.

17 Remarks by Att’y Gen. William P. Barr at Hillsdale College Constitution Day Event (Sept. 16, 2020) (emphasis added), https://www.justice.gov/opa/speech/remarks-attorney-general-william-p-barr-hillsdale-college-constitutionday-event.

Lowell doesn’t note what I did: Trump invoked his own attacks on Hunter Biden by name in that filing, arguing that he is only being prosecuted because he has demanded that Hunter be prosecuted. Indeed, Trump went so far as claiming a document released after he was indicted in DC on August 1 was the reason why he was indicted in DC.

Without question, this is a “high-profile prosecution with international ramifications no less,” which has a “far greater potential to give rise to a vindictive motive.” United States v. Slatten, 865 F.3d 767, 799-800 (D.C. Cir. 2017). That motive is manifest. President Trump criticized the process and results of the 2020 election. He criticized Biden and his family before, during, and after that election, including with respect to misconduct and malfeasance in connection with the Ukrainian oil and gas company known as Burisma,4 China’s State Energy HK Limited, 5 and Russian oligarchs such as Yelena Baturina.6

4 See Hunter Biden, Burisma, and Corruption: The Impact on U.S. Government Policy and Related Concerns, U.S. Senate Comm. on Homeland Security and Government Affairs and U.S. Senate Comm. on Finance (Sept. 22, 2020), https://www.hsgac.senate.gov/wpcontent/uploads/imo/media/doc/HSGAC_Finance_Report_FINAL.pdf, at 3.

5 See Second Bank Records Memorandum from the Oversight Committee’s Investigation into the Biden Family’s Influence Peddling and Business Schemes, House of Rep. Comm. on Oversight and Accountability (May 10, 2023), https://oversight.house.gov/wpcontent/uploads/2023/05/Bank-Memorandum-5.10.23.pdf, at 5, 9.

6 See Third Bank Records Memorandum from the Oversight Committee’s Investigation into the Biden Family’s Influence Peddling and Business Schemes, House of Rep. Comm. on Oversight and Accountability (Aug. 9, 2023), https://oversight.house.gov/wpcontent/uploads/2023/08/Third-Bank-Records-Memorandum_Redacted.pdf, at 2. [my emphasis]

That political argument won’t work.

His argument that he’s asking for known documents probably won’t either — but Lowell is right that the public record that such documents exist distinguishes the claim from most other similar requests.

For example, on December 27, 2020, then Deputy Attorney General Donoghue took handwritten notes of a call with President Trump and Acting Attorney General Rosen, showing that Mr. Trump instructed Mr. Rosen and Mr. Donoghue to “figure out what to do with H[unter] Biden” and indicating Mr. Trump insisted that “people will criticize the DOJ if he’s not investigated for real.”6 (These notes were released by the House Oversight Committee as part of the January 6 investigation.)

[snip]

Before the government intones its stock phrase, this is no fishing expedition. The statements described in this Motion actually occurred, and the events that transpired both before and after June 20, 2023 are well known to the Court. Mr. Biden seeks specific information from three former DOJ officials and the former President that goes to the heart of his defense that this is, possibly, a vindictive or selective prosecution arising from an unrelenting pressure campaign beginning in the last administration, in violation of Mr. Biden’s Fifth Amendment rights under the Constitution. Moreover, each of the former DOJ officials had known contacts with then President Trump concerning Mr. Biden, and according to recently released IRS investigative case files, each had a hand in one way or another in the still ongoing investigation of Mr. Biden, either in Delaware or elsewhere. Lastly, as reflected by both the handwritten notes taken contemporaneously by Mr. Donoghue (involving Mr. Rosen and Mr. Trump) and Mr. Barr’s vignette in his recent book, these individuals are in fact likely to have relevant materials in their possession that are responsive to Mr. Biden’s document requests. [my emphasis]

There is abundant proof that Trump was intervening with DOJ in this case. Lowell claims he hasn’t gotten that proof from DOJ. So he’s asking for it from DOJ officials directly.

To be fair, only Barr (and Trump) are likely to have documents in their personal possession, because only Barr and Trump have continued to engage in this case since leaving government.

One I’m most interested in is, after Joseph Ziegler testified that Barr, personally, made the decision to put Delaware in charge of the investigation in 2020 (at a time when Rudy Giuliani was already seeking dirt on Hunter Biden and Burisma), whether Barr reached out to someone to get Ziegler to correct his testimony and claim he wasn’t certain that Barr was personally involved.

Again, these requests almost never work. But not even Peter Strzok was able to point to known documentation tying Trump directly to efforts to retaliate against him. Probably, David Weiss will argue and Judge Maryanne Noreika will agree that Trump’s intervention didn’t pertain to the gun investigation, but instead related to the tax and influence peddling investigation which is probably being pursued in Los Angeles right now. Probably, this is an issue Lowell would have to revisit if and when Hunter is charged in such a case. I have suspected that Weiss has delayed any action on related cases to force Lowell to try this selective prosecution claim in Delaware, where it is less relevant, leaving Hunter on the hook for three felony charges, before Lowell tries such a claim where it might work in some other venue.

But it is, nevertheless, the almost unheard of case where a defendant can point to Trump’s personal involvement.

Update: Lowell referenced something I didn’t realize. This passage from Richard Donoghue’s notes shows Trump intejecting a complaint about Hunter Biden (and tying it directly with the Mueller investigation) into his demands that DOJ get involved in overturning the vote on December 27, 2020.

Here’s how Donoghue described that passage to the January 6 Committee.

A Then he went back to Detroit. He said in Detroit they “threw the poll watchers out.” He was complaining, saying they’re not allowed to do that, it’s a violation of the law, they had violated the law all over the county.

He said, you “don’t even need to look at the illegal aliens voting – don’t need to.

It’s so obvious.”

Then he was talking about the FBI. He said, the “FBI will always say there’s nothing there. The leaders there oppose me; As,” which means special agents, “support me.” He didn’t use the term “special agents,” but he said, “the agents” or “the line guys,” something like that, “support me.” I just wrote that down as “SAs.”

Q Yeah. He’s claiming that the FBI leadership somehow is against him or isn’t taking these claims seriously because they dislike himor they oppose him?

A Correct.

Q Was that consistent with your impression of Director Wray and the FBI leadership?

A No a okay.

Then the next page, this is him continuing about the FBI. He says, “I made some bad decisions on leadership there, but I was laboring under an illegal investigation.

The special prosecutor should never have been commenced.”

Then he says he was complaining about the appointment of the special prosecutor, and he says, “You,” meaning DAG Rosen and I, “figure out what to do with Hunter Biden.” That’s up to you guys. But “people will criticize the DOJ if Hunter’s not investigated for real.”

That was sort of an aside. That’s all he said about it. It was a very brief comment. But it was off-topic, and I wrote it down.

Of course, the topic wasn’t off topic. It came in the same conversation where Trump first raised replacing Rosen with Jeffrey Clark and around the time he was talking about replacing Chris Wray with Kash Patel. That is, the Hunter Biden investigation was, along with stealing the vote, one of the things that Trump would install Clark to do for him.

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James Comer Finally Finds Evidence Supporting Impeachment — of Donald Trump

November 4, 2023/43 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden /by emptywheel

Back on October 7 (after Hunter Biden sued Garrett Ziegler on September 13, after Hunter Biden sued the IRS on September 18, after Hunter Biden sued Rudy Giuliani on September 26, and after Matthew Graves testified to the House Judiciary Committee on October 3) — Abbe Lowell sent Graves a letter asking him to investigate whether Tony Bobulinski lied to the FBI on October 23, 2020.

The letter was first reported by NBC.

Jamie Comer has now seized on the letter in his latest demand for more information — and testimony of Hunter Biden. But this time, the evidence implicates Donald Trump, not Joe Biden.

The substance of Lowell’s allegation boils down to a claim that Bobulinski lied in his FBI interview when he claimed to have attended a key meeting with CEFC on February 19, 2017. If Bobulinski didn’t attend the meeting, he therefore lied in his interview when he made claims about personally witnessing the involvement of Joe Biden in all this.

The most significant set of false statements is central to Mr. Bobulinski’s entire interview and self-aggrandizement. The memorandum states that “BOBULINSKI first met in person with members of the BIDEN family at a 2017 meeting in Miami, Florida. BOBULINSKI, GILLIAR, WALKER, HUNTER BIDEN, and YE all attended the meeting.”11 This is deliberately false; Mr. Bobulinski did not attend a meeting with Mr. Biden and his associates in Miami in 2017, nor did he meet members of the Biden family then. Around February 13, 2017, Messrs. Biden, Walker, and Gilliar traveled to Miami to meet with CEFC Chairman Ye, Director Zhang, and other CEFC members to discuss a possible business venture. It is here that Mr. Biden met Chairman Ye for the first time, and at that meeting, a tentative business agreement was reached in principle to set up a joint venture with CEFC, and a business structure was discussed.

Despite what Mr. Bobulinski told investigators to pretend he had firsthand knowledge, he was never in and did not attend this meeting in Miami on February 14, 2017. [bold emphasis Lowell’s]

That’s not the only allegation in the letter; Lowell accuses Bobulinski of a bunch of other lies.

The most important — aside from his provable presence (or not) at that February 2017 meeting — has to do with the origin of the “10 held by H for big guy” letter that Fox News has made a focus of their propaganda for three years.

Lowell provided background to a series of communications in May 2017, during a period when the proposed Joint Venture involving Hunter, Bobulinski, James Gilliar, and Rob Walker, was losing ground in the competition for CEFC’s support in the face of a group involving James Woolsey. That’s what led Gilliar — not Hunter — to propose getting Joe Biden involved.

It is in this context that, on May 11, 2017, Mr. Bobulinski and Mr. Gilliar discussed their concerns that Chairman Ye had skipped meetings with Mr. Biden in New York, while separately attending a party held by Mr. Witkoff. (Ex. G attached hereto.) Mr. Gilliar acknowledges this growing concern about competition for CEFC in a May 11 message to Mr. Bobulinski: “Man U are right let’s get the company set up, then tell H and family the high stakes and get Joe involved.” (Id.) Importantly, this notion of “get[ting] Joe involved” was referenced as an idea by Mr. Gilliar to Mr. Bobulinski in private, and never sent to Mr. Biden, as potential leverage to counter the competition for CEFC’s U.S. investment.

This is consistent with what Gilliar told the WSJ in October 2020, in the wake of Bobulinski going public with these claims (as Lowell notes in his letter). But as Lowell also noted, Bobulinski’s claims that a split involving Joe Biden was real and happened earlier rests on his claim — which Lowell asserts to be false — to have been at the CEFC meeting in Miami.

Mr. Bobulinski took this lie even further when he willfully told investigators that the reference, “10 held by H for the big guy,” originated from deal discussions that he witnessed as between Mr. Biden and Chairman Ye in Miami in February 2017. As explained above, Mr. Bobulinski was never at that meeting in Miami and this fantasy was his and Mr. Gilliar’s.

Lowell pointed to additional texts seemingly supporting the claim that the idea of involving Joe only ever came from Gillier and Bobublinski. Weeks earlier, Hunter laid out a 50-50 split with CEFC, in turn split four ways (not including his uncle), and days after, Bobulinski bitched that bringing Jim Biden in — as a fifth recipient — would only serve to up the proportions of the Biden family. Gilliar responded that bringing Jim Biden in as a 20% stakeholder was his own idea, to buy loyalty, not Hunter’s.

As laid out, this means that Bobulinski or Gilliar, not Hunter Biden, may have been contemplating monetizing access to Joe Biden with the Chinese in 2017.

This allegation will get litigated in days ahead, I’m sure. As noted, Comer pointed to this letter about Bobulinski to justify doing what they were already planning on demanding: calling Hunter to testify.

For now, I’m interested in some logistical aspects of the allegation.

First, while Bobulinski’s claims have long been out there, Lowell only has a hook to package it up in a letter to Matthew Graves because the IRS agent who spent five years investigating his client, Joseph Ziegler, released the Bobulinski and Rob Walker interview materials on September 27 in support of his insinuation that the Delaware US Attorney’s office dropped the ball by not doing follow-up interviews with Bobulinski.

While providing this information in front of agents with the FBI, Bobulinski makes multiple references to Former Vice President Joseph Biden’s potential involvement with Sinohawk and the CEFC joint venture. 5.

In investigative team meetings that occurred after this, I can recall that agents on the investigative team brought up on multiple occasions to the assigned prosecutors that they wanted to do an interview of Bobulinski with the assigned case agents. I can recall being told that they would think about it and then ultimately being told there was no need for the team to interview Bobulinski and that Bobulinski was not viewed as a credible witness.

Note that the Bobulinski 302, unlike the Rob Walker or the Gal Luft 302s, is not the official 302.

The others, along with the IRS memorialization of James Biden’s interview, all appear in the official form and the FBI 302s have the “Official Record” stamp in the right hand corner.

The Bobulinski interview report Ziegler released, however, has not been entered in the official 302 form and by title is just a revision of his interview, with the author marked as one of the agents in the original interview; it appears to have been saved from Microsoft Word.

Ziegler doesn’t even call this a 302 and his description of how it came into his possession is tortured (though it’s similar to his description of how he got the Luft 302, which was saved from Notes).

This was a memo and attachment that was provided to the RHB investigative team by agents with the FBI regarding information that was provided to agents with the FBI Washington Field Office from Anthony Bobulinski.

That is, the form of the interview report raises real questions about whether Ziegler was ever supposed to have access to it or even whether the report was ever officially filed (a question Chuck Grassley also has raised). Though in Tim Thibault’s interview, he referred to the interview report as a 302 and described asking those involved, “how are you sending this information to Baltimore,” and being, “advised it was like an [sic] e-Guardian system. So there’s receipts for that.”

It took just ten days — September 27 to October 7 — after reading that interview report for Abbe Lowell to write a letter about the problems with it. That would suggest writing this letter, calling out the problems with Bobulinski’s testimony, was not a close call.

The possibility that the story Bobulinski told the FBI was subsequently discredited would explain a lot. Gary Shapley-adjacent reporting from last summer complained that Bobulinski had not been asked to testify before a grand jury. Long after Democratic Ranking Members Jamie Raskin, Jerry Nadler, and Richard Neal would have gotten a copy of the Lowell letter, Chuck Grassley demanded details about how Bobulinski’s interview was treated. And Joseph Ziegler, who seems to have little appreciation for how badly his conspiracy theories have damaged the case he tried to bring against Hunter Biden, revealed that, “ultimately,” prosecutors described, “Bobulinski was not viewed as a credible witness.”

If Lowell’s letter is right, there’s a good reason why Bobulinski was not viewed as credible: Because prosecutors would have quickly identified holes in Bobulinski’s story, making his tie to the White House — made explicit in his FBI interview when he described getting a COVID test at the White House the previous day even if they didn’t see reports that he had been Trump’s guest at the debate the day before — absolutely toxic.

And after (per Ziegler’s claims) prosecutors decided they didn’t want Bobulinski anywhere near their prosecution and definitely didn’t want him in front of the grand jury, Ziegler decided to share the details of Bobulinski’s interview with the FBI for all the world to see, a world that includes Hunter Biden’s lawyers, who now know that prosecutors were repeatedly asked about Bobulinski but, presumably for reasons that had to do with preserving plausible deniability about Bobulinski’s actions, didn’t do anything that would have required providing details about Bobulinski in discovery.

The reason you don’t put someone whose location data and other comms show he wasn’t where he claimed to be in front of an investigative team, much less the grand jury, is to preserve a fragile claim that the entire investigation wasn’t a political witch hunt directed from the President, to hide from defense attorneys that the President of the United States had ties with someone who would pitch (per Lowell) false claims to the FBI. But Joseph Ziegler, goaded on by a trio of dumbass Republican Committee Chairman, decided to make that available to Hunter’s legal team anyway.

Lowell’s letter doesn’t describe where he obtained the exhibits attached, but they include texts involving Hunter Biden (and so presumably in his possession), texts not involving Hunter Biden, and a scan of a stapled printed email involving Bobulinski. Even for the texts involving Hunter Biden, Lowell appears to lack reliable metadata.

And these are definitely cherry picked communications, enough so to counsel caution about this being the full story. Then again, Bobulinski tried to cherry-pick the communications he provided to the FBI himself, offering up three devices but asking to delete most of the content first. I would imagine that after Rob Walker told the FBI of Bobulinski’s rumored tie to Viktor Vekselberg just 16 days later, they would have taken steps to obtain a set of his communications that he hadn’t cherry picked.

The point being, whatever Abbe Lowell has, we can assume the FBI has a far better set of data, including location and travel data to track where Bobulinski really was at what time on February 19, 2017. The FBI doesn’t need Abbe Lowell to tell them that Bobulinski lied in this interview, if in fact he did; this letter to Graves (as opposed to sharing copies of it with the three Ranking Democratic members of committees involved in the impeachment charade) serves only to advertise that the FBI could have, but has not yet, responded differently to Bobulinski’s involvement.

It serves to flip the script that Republicans have been inventing.

I mean, let’s be clear what Abbe Lowell alleges, with some backup: He’s accusing Tony Bobulinski of doing the same thing for which Trump’s hand-picked Special Counsel John Durham prosecuted Michael Sussmann. But unlike that case, in which multiple witnesses testified that the Hillary campaign would never have wanted to share information with the FBI, in this case, Bobulinski showed up at the White House the day before and waltzed into the FBI with a former Trump White House Counsel.

And, frankly, Lowell pulls his punches on this — a bunch of them.

He briefly mentions and footnotes the passages from Cassidy Hutchinson’s book that describe contacts with Bobulinski, both the night before and some weeks after his FBI interview on October 23. Lowell doesn’t mention Hutchinson claims that, in advance of the second meeting — the one where Bobulinski showed up in a ski mask, someone told her that “the boss” asked Mark Meadows to meet with Bobulinski.

When staff began to deplane, we climbed back down and made our way to the offstage announcement area. A senior campaign official jabbed his finger into my shoulder. Alarmed, I spun around. “Chief’s still on the plane talking to the boss,” he said. “He’s going to meet up with Tony Bobulinski. Can you go get him?”

I took a step back and crossed my arms. “What do you mean?” I asked. He said gruffly, “The boss asked him to meet up with Tony Bobulinski. He’s here. It has to be low-key, though, so just find somewhere away from any cameras.” I looked at Tony Ornato, expecting him to say something. Instead, he pointed at Mark leaving Air Force One. “He’s coming,” he said. The aide walked away.

I didn’t know much about Tony Bobulinski, just that he was a former business associate of Hunter Biden’s and had something to do with the laptop controversy. Trump had brought him as a guest to the presidential debate in Nashville on October 22. I wasn’t tracking the story closely enough to know more. But as Mark approached, I had a weird feeling that we were in danger. I couldn’t explain it, but the feeling was real. “Mark shouldn’t do this,” I said to Tony. “He’s being set up.” Tony shrugged. “Don’t overthink things. It’s not a big deal. Chief knows what he’s doing. Bobulinski came with us to Nashville, remember? Don’t worry, kid.” He patted my shoulder and walked away as Mark approached me.

“You’re not meeting Tony Bobulinski here, Mark. We can send someone from the campaign.” I heard my voice whine with childlike desperation. “Please, Mark. This isn’t a good idea. Just trust me.” Mark looked at his Secret Service agent, then back at me. “Just go find him, and work with Secret Service to find a hidden spot. Come get me once you have him there.”

[snip]

As Brian thanked him, I recognized a few of the men sitting in idling Secret Service vehicles and rushed over to them. I asked if they could park four of the vehicles in the shape of a square, and explained that the chief needed to have a quick meeting with someone out of sight. They were reluctant at first and questioned why Mark couldn’t just meet the person where staff were congregated. “The chief of staff needs to have a private meeting,” I said, lying with convincing confidence. “If you want me to ask Tony Ornato to explain more, I’m happy to call him over.” They began lining up the vehicles, and Brian and I made our way into the crowd, searching for the fenced-in house.

[snip]

“There,” Brian said, and pointed to the house. “I don’t want to talk to him,” I told him, as three men came out of the house. I tried to pick out Tony Bobulinski, but they were all wearing hats and ski masks. Brian introduced himself and explained that we would bring them to the chief. I spun around and started pushing through the crowd to make a path for the group a good distance behind me.

[snip]

“This is really stupid of you, Mark. I don’t know what’s going on, but it’s really stupid,” I said. He didn’t have time to respond as I ushered him into the makeshift area, away from cameras, as requested, but not from watchful Secret Service eyes.

In the shadows of the bleachers, I observed Mark and Tony Bobulinski’s interaction through a gap in the vehicles. When they said their goodbyes, I saw Mark hand Tony what appeared to be a folded sheet of paper or a small envelope. Mark walked toward me, staring at the ground. He was silent for several moments as we made our way back to the staff holding area. [my emphasis]

Lowell also notes that Hutchinson raised concerns about the lawyering of Stefan Passantino, who represented Bobulinski at the interview. But he doesn’t mention that by the time of Bobulinski’s October 23, 2020 interview, Passantino had pitched Bobulinski as a source to the WSJ — with the involvement of then-White House lawyer, Eric Herschmann, as well as Don Jr’s best buddy Arthur Schwartz.

The three had pinned their hopes for re-electing the president on a fourth guest, a straight-shooting Wall Street Journal White House reporter named Michael Bender. They delivered the goods to him there: a cache of emails detailing Hunter Biden’s business activities, and, on speaker phone, a former business partner of Hunter Biden’s named Tony Bobulinski. Mr. Bobulinski was willing to go on the record in The Journal with an explosive claim: that Joe Biden, the former vice president, had been aware of, and profited from, his son’s activities. The Trump team left believing that The Journal would blow the thing open and their excitement was conveyed to the president.

That’s the story that ended in a flop, partly because records very similar to the ones Lowell included with his letter didn’t back Bobulinski’s story, and partly because Gillier refuted it in an interview with the WSJ.

Abbe Lowell doesn’t mention that, per the NYT story on this pitch to WSJ, Donald Trump knew the story was coming.

Mr. Trump and his allies expected the Journal story to appear Monday, Oct. 19, according to Mr. Bannon. That would be late in the campaign, but not too late — and could shape that week’s news cycle heading into the crucial final debate last Thursday. An “important piece” in The Journal would be coming soon, Mr. Trump told aides on a conference call that day.

Which means that when Lowell refers in his letter to,

The materials reveal the extraordinary lengths Mr. Bobulinski and other individuals were willing to go to implicate Mr. Biden or members of his family in some false and meritless allegations of wrongdoing. [my emphasis]

He never explicitly says that multiple sources say those “other individuals” include Donald Trump, personally.

Plus, Lowell goes easy on Bobulinski’s motives. Hunter Biden’s lawyer only assumes that Bobulinski allegedly lied, “to boost his own sense of self- worth,” not for any of a long list of more nefarious reasons that might involve being handed an envelope by the President’s Chief of Staff.

He relegates the allegations about Chinese cultivation of James Woolsey for his access to Trump in the Gal Luft indictment to a footnote. And while he raises Bobulinski’s possible ties with a range of hostile countries — including his alleged ties to Viktor Vekselberg — he doesn’t pursue the implications any of that would have for claims of foreign influence operations targeting Hunter Biden.

And Lowell plays coy about the reasons why Bobulinski would keep insisting on speaking with agents “read in[to]” any investigation into Hunter Biden.

In what can only be described as a strange exchange at the start of his interview, Mr. Bobulinski asked the interviewing agents whether they were “read in” on the information he was about to tell them. The interviewing agent responded that that was not how the process works and advised they did not have any specific knowledge of the information. Mr. Bobulinski and his attorney, Stefan Passantino, reiterated their request that Mr. Bobulinski only speak with agents who were “read in” to his testimony. The FBI agent then reminded Mr. Bobulinski that his testimony was voluntary. The expectation by Mr. Bobulinski and his attorney that FBI agents taking his voluntary testimony would be “read in,” whatever that means, is particularly troubling given that Mr. Bobulinski had met with President Trump and his campaign team the day before in Nashville.

Remarkably (or maybe not, as I’ll return to), the FBI seems to have anticipated that Bobulinski may have been sent by Trump to fish for information. Thibault explained that the reason Bobulinski was sent to the DC office rather than Baltimore was to keep the investigation secret. “[T]he whole idea that he came to WFO is they were trying not to disclose that there was an investigation in Baltimore is my belief,” described, later attributing that decision to the supervisor who set up the interview.

Again, none of these details are exactly new. But the specific circumstances created by Jamie Comer and Joseph Ziegler provided an opportunity to point out that Comer has more evidence worthy of impeaching Donald Trump than he does Joe Biden.

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Five Years Ago Today, Hunter Biden Bought a Gun

October 12, 2023/30 Comments/in 2024 Presidential Election, Hunter Biden /by emptywheel

Yesterday, Judge Maryanne Noreika dismissed the gun-related Information against Hunter Biden, signed by Baltimore AUSA Leo Wise, that was filed on June 20, an Information tied to a diversion agreement that Leo Wise also signed.

At the arraignment on Hunter’s new charges — three charges replaced one — Magistrate Judge Christopher Burke reminded the Special Counsel’s team (Derek Hines had the speaking role at the arraignment, not Leo Wise) about the Information still on the docket.

Mr. Hines, one question on my end. The Indictment now obviously has been filed on the docket and that still has the prior felony information that was filed with regard to the prior gun charge back at the point where it was thought that there might be a plea. Did the Government intend to dismiss that charge?

MR. HINES: Yes, consistent with local practice, we intend to file a written motion within the next day.

THE COURT: Okay. And that will go to Judge Noreika and she will review that.

It took Leo Wise two tries — he forgot to sign the first motion to dismiss — but Weiss’ team did indeed move to dismiss the Information, and the docket identified the motion to dismiss that Noreika granted as the amended one, the one Leo Wise actually signed.

And so it was that on the last day off the fifth year after Hunter Biden purchased a gun, Judge Noreika dismissed one charge against him for doing so. Weiss’ team moved to dismiss the Information without prejudice to refiling it. But as of today, the statutes of limitation begin to expire on both that Information — charged under 18 USC 922(g)(3) and 18 USC 924(a)(2) — and the charges in the Indictment — which added charges under 18 USC 924(a)(1)(A) and 18 USC 922(a)(6) and 18 USC 924(a)(2), something Leo Wise noted at the failed plea hearing in July. Any charge tied to unlawful possession of that gun, as opposed to unlawful statements made during the purchase of the gun, will expire on October 23.

So, 9 days into the 30-day period during which Judge Burke gave Hunter’s team to file motions, things may begin to get interesting,

Since the failed plea, the two sides have been involved in a dance regarding whether the diversion agreement — which, as noted, Leo Wise signed on July 26 — remains binding on the government. Over and over, the government, with its evolving titles, has claimed it does not remain binding. Over and over, Hunter’s team preserves the record, insisting it does.

For example, when the government moved to vacate Judge Noreika’s briefing order with an August 11 filing — a motion signed by Leo Wise — claiming that, “there is no longer a plea agreement or diversion agreement,” Hunter’s lawyers responded two days later countering, “the parties have a valid and binding bilateral Diversion Agreement.” On August 15, DOJ filed a reply — signed by newly promoted Assistant Special Counsel Leo Wise — disputing Hunter’s claims, focusing not on whether Wise signed the diversion, but whether Judge Noreika approved the plea or Probation signed the diversion.

On September 6, in response to an order from Judge Noreika, DOJ filed a status update — once again signed by Leo Wise — stating (among other things) that the diversion had not been executed because, while it had been signed by Leo Wise, it had not been signed by Probation. Lowell responded — again, protecting the record — that the court had been provided an executed copy of the diversion agreement, the one signed by Leo Wise.

I don’t know who will win this dispute. I know that DOJ — in filings signed by Leo Wise — keeps saying that where the diversion agreement says “approval” in ¶¶ 1 and 2, it means approval by Probation, not the parties mentioned in ¶¶1 and 2. But from the moment DOJ first opened this docket — with a letter signed by Leo Wise — they referred to executed agreements that were signed that day.

I also know that DOJ keeps speaking of a plea agreement as it existed on July 26, not the agreement that DOJ entered into on some unspecified date in June before that, between which time and July 26, Leo Wise took over from Lesley Wolf and the scope of the immunity agreement started shrinking, one of two things that led the plea to fail on July 26.

At the arraignment last week, Lowell warned that several things were going to happen by or before November 3, when motions are due.

MR. LOWELL: Yes, a couple of things, Judge. First, I understand that Judge Noreika did advise the Government of their Brady obligations. I would want to talk to the Government about the overall discovery issues, especially with the thirty-day motions schedule. We would like to get discovery in the case obviously before we file the motions. We will talk to them. I don’t know that we’ll have any problems that we will need to bring for the Court’s attention, but we will see.

And second of all on those motions, I appreciate the date, I think we can conform to that based on the discovery perhaps, but I think there will be a number of motions which won’t be a surprise to Your Honor or to Judge Noreika, including motions to dismiss which we discussed during the last proceeding which would focus on our view that there was an agreement in effect which would prevent this charge from being filed as well as questioning the constitutionality of the statutes that have been cited and others depending on what happens. So that thirty days seems right, but we’ll talk to the Government.

[snip]

MR. LOWELL: The only other thing that would maybe not change the schedule but would add to the schedule, is that at least one of those motions, I think given what we all know about this case, we will be making a request for an evidentiary hearing. [my emphasis]

Lowell said he:

Wanted Brady and other discovery before he filed motions
Would make a request for an evidentiary hearing
Would file motions (plural) to dismiss, arguing:
- The diversion agreement prohibits these charges
- The gun charges are unconstitutional
- “others depending on what happens”

As a threshold mattter, Lowell seems to believe he had not, by last Tuesday, received all the Brady discovery, even though Chris Clark agreed he had received it back in July. That is, Lowell believes the government has evidence that either exculpates Hunter (which is unlikely) or impeaches the investigation or prosecution that DOJ has not yet turned over.

It’s not a mystery what some of this is. In an August 13 appearance on CBS, Lowell described that if Weiss decided to file charges other than what got filed in June, something must have “infected” the process.

LOWELL: But you asked me whether or not that has been part of the investigation and after five years and what we know happened in the grand jury, of course that had to be part of what the prosecutor has already looked at, as well as every other false allegation made by the right wing media and others, whether it’s corruption or FARA, or money laundering. That was part of what this prosecutor’s office had to have been looking over for five years. I can assure you that five years concluded that the only two charges that made sense were two misdemeanors for failing to file like millions of Americans do, and a diverted gun charge for the 11 days that Hunter possessed a gun. Everything else had been thoroughly looked at. So is that possible that they’re going to revisit it? Let me answer it one way. If the now Special Counsel decides not to go by the deal, then it will mean that he or they decided that something other than the facts and the law are coming into play.

[snip]

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

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

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

More spectacularly, in a September 14 appearance on CNN, after the gun charges were filed, Lowell casually mentioned that prosecutors, “don’t share their emails with me, at least as of yet.”

LOWELL: And that the only thing that changed, Erin, was not the facts and not the law, which has only gotten worse for law enforcement but the application of politics. If it turns out that they continue to escalate the charges, then that is an issue that should be explored.

BURNETT: Okay. So but you are saying that they would be doing that because they are under political pressure from Republicans, MAGA Republicans as you referred to them, in Congress.

LOWELL: Well, they don’t talk to me about their motives.

BURNETT: Yeah.

LOWELL: They don’t share their emails with me, at least as of yet. All can I do, as you as a good reporter does, is make connections. So, if they thought after five years this was appropriate and then the political pressure came and now they think this is appropriate and if it’s no change in the facts and no change in the law, then let me ask you as a journalist would ask, what changed? And I’m telling you, the only thing that’s changed is the politics.

That is, Lowell insinuated that he would demand emails from the prosecution team to understand what led them to (to use the phrase used in the first Hunter filing signed by Lowell) renege on a plea deal.

I have said repeatedly when covering this case and I’ll repeat again, defense attorneys make the kinds of claims that Lowell is making — raising selective prosecution claims and insisting they haven’t gotten Brady discovery, for example — all the time. Such claims usually don’t work. Mind you, you would always need to take those claims more seriously when dealing with someone like Lowell; he’s a formidable lawyer. But even still, selective prosecution claims almost never reach the bar required to get an evidentiary hearing and DOJ has a great deal of flexibility in how they fulfill their discovery obligations. Lowell is making incredibly aggressive claims here, especially the casual suggestion he might get prosecutors’ emails.

The Hunter Biden case is different though. It’s different because Gary Shapley and Joseph Ziegler have spent months making easily debunked claims about politicization in favor of Hunter Biden, even while disclosing the existence of evidence showing the opposite, improper political influence to investigate Hunter. And it’s different because James Comer and Jim Jordan and Jason Smith and the chief investigative counsel they all keep swapping between committees like a cheap date, Steve Castor, keep forcing one after another investigative witness to go on the record about this investigation.

Take just one example: the emails that Gary Shapley belatedly claimed he was a whistleblower to try to explain away because David Weiss’ team demanded them in discovery. Michael Batdorf — the Director of IRS-CI Field Operations who described that Shapley uniquely escalated things to him because he has, “a tendency to go to level like grade 7 five-alarm fire on everything,” also described that Shapley wasn’t a mere supervisor on this team, he was playing an investigative role.

He was taking investigative steps with the special agents. I mean, he was one of the team.

So it wasn’t just an agent involvement. It was the supervisor involvement. He was, again, taking those actions as if he was a working case agent. (97)

Batdorf provided this description to explain why it was reasonable to remove the entire IRS investigative team (which Batdorf also repeatedly said was not retaliation, undercutting yet more of Shapley’s claims). But it would also serve to explain why it was totally reasonable for Weiss to demand Shapley’s emails in discovery, first in March 2022 and then, after Shapley refused to turn them over, again in October 2022. Batdorf also revealed that Weiss had to and did go over his head to get Shapley’s emails. If it was reasonable to obtain Shapley’s emails for discovery — and Batdorf has explained why it was — then it would be reasonable for Hunter Biden to expect to get them.

Republicans’ frenzied dick pic sniffing has also provided clear evidence, both in the form of testimony about whether Shapley’s notes accurately reflect what happened on October 7, which multiple witnesses say they do not, and in notes that clearly conflict with what he typed up and sent in emails, to demand Shapley’s hand-written notes, in addition to his more formal memorializations.

Normally, evidence that Shapley has been biased or dishonest would only matter for any tax case Weiss attempts to charge down the road. Weiss has time yet under the statute of limitations for tax charges, allowing him to see how this gun charge will go down, and possibly allowing him to delay responding to precisely this kind of discovery request until after the gun charges are resolved.

Except that thanks to frothy Republicans, there is already evidence showing that Shapley’s media tour “infected” Weiss’ prosecutorial team before they made the decision to “renege” on a plea agreement and add additional felony gun charges against Hunter.

When asked by Steve Castor in an interview on September 7 how Shapley’s media tour was affecting the ongoing investigation (which Thomas Sobocinski continues to oversee), the FBI Special Agent in Charge of the Baltimore office described that the media tour, “is affecting my employees,” so much so that the children of retired FBI agents “are being followed.”

Castor later asked a question I’m sure Abbe Lowell would love to know the answer to: Why Lesley Wolf was taken off court filings. Sobocinski balked at answering, even questioning whether Castor’s premise was “factually correct.” But Democratic staffers followed up to ask whether Wolf has faced threats. Sobocinski responded that “my office and the FBI have done things and initiated things to ensure that she remains safe.”

In other words, Shapley made himself relevant to not just the tax charges but also to all charges from David Weiss’ office by setting off a media frenzy that led to credible threats that — Hunter’s attorneys can and undoubtedly will argue — may have led prosecutors to ratchet up the charges against Hunter.

It turns out, though, that it wasn’t just the threats Shapley elicited that affected Lesley Wolf’s involvement in the case. Just five days after Sobocinski’s interview, Batdorf was willing to answer that question.

Q And looking at the individuals who were working on the case outside of IRS, so looking at the AUSA, for instance, to your knowledge, was there any change in the personnel of the AUSA from when it started in 2018 to now? Has there been a change, or has it been generally the same career people working the case the entire time?

A It’s my understanding that there had been a change in the AUSA, the prosecution team.

Q And when was the change made? Do you know?

A I believe that it was made in roughly — I think it was May or June of this year when we decided to move forward with the investigation. (99)

According to Politico, Wolf remained involved in the plea negotiations at least as late as June 7. According to Batdorf, Weiss did ultimately remove her.

The process by which Weiss removed his own AUSAs from the prosecution team appears to have taken two steps. First, between June 7 and June 20, Leo Wise started signing things, including things that Lesley Wolf negotiated. While Wolf was never on the Hunter Biden docket, Delaware AUSA Benjamin Wallace was on early filings (and has not withdrawn from it). According to reports from the day, a number of Weiss’ prosecutors attended the scotched plea deal as well.

But since Weiss was named Special Counsel, just Wise and Hines have appeared on filings, using their new title, Assistant Special Counsel. In other words, it seems that Weiss may have belatedly — very, very belatedly — tried to create a prosecutorial clean team that might sustain charges against the President’s son.

Along the way, Wise made preposterous claims — such as that he was not aware of any leaked grand jury information — that suggest that on top of removing Wolf from the process, Weiss is serially attempting to sheep-dip the prosecution, to create a team unaffected by the bullshit that has gone on for five years, so as to create the illusion of apolitical, neutral prosecutorial decisions.

On a July 31, 2023, call, Assistant United States Atiomey Wise stated he was “not aware” of any leak of grand jury information by the Government during the courseof the Government’s investigation of our client. Such a statement was surprising given that Mr. Biden’s counsel have discussed such leaks with the Government on multiple occasions over the past two years and addressed these leaks in at least four prior letters and countless telephone calls with your Office.1 We incorporate by reference counsels’ prior correspondence on these issues, enclosed herewith as Exhibits A – D.

Not only does that ignore the press blitz Republicans have created, to which both Wise and jurors would have been exposed.

But at least in June, Leo Wise signed things negotiated by Lesley Wolf. You can’t claim that Wise represents a team isolated from the original investigative team if he was signing documents negotiated by Wolf.

That transition, from Wolf to Wise, is a central factual issue that would determine whether DOJ reneged on the terms of the plea agreement, as Hunter’s team insists DOJ did. That transition, from Wolf to Wise, will significantly determine whether that diversion agreement really does remain binding — meaning the indictment already charged would need to be dismissed, with statutes of limitation expired even for an Information to backstop any diversion agreement that remained in place.

Again, normally defendants would never get access to such details. Normally defendants would never contemplate, as Lowell did publicly, getting prosecutors’ emails.

But Jim Jordan and James Comer and Steve Castor have been jumping through hoops providing Lowell cause to do just that.

And so, on the fifth anniversary of the day when Hunter Biden purchased a gun, things may start to get interesting.

Update: Hunter’s attorneys have filed a consent motion to extend deadlines, with Hunter’s initial motions deadline extended to December 11 (provided Judge Noreika approves).

The parties in the above-captioned case have conferred, and respectfully submit the following proposed modified briefing schedule for all pretrial motions: (a) the defendant’s pretrial motions to be filed by December 11, 2023; (b) the government’s oppositions/responses to be filed by January 16, 2024; and (c) the defendant’s replies to be filed by January 30, 2024. The parties will be prepared to argue the motions, if the Court so directs, following completion of all briefing. This proposed schedule excludes deadlines for motions regarding jury selection, discovery, and motions in limine (which can be scheduled at a later time once a trial date is determined).

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Gary Shapley Didn’t Tell Congress about Election Meddling Concerns

September 29, 2023/41 Comments/in 2020 Presidential Election, 2024 Presidential Election /by emptywheel

I’m reading my way through the documents from Gary Shapley and Joseph Ziegler that the House Ways and Means Committee released the other day.

While I have yet to read the tax-related documents closely, the others don’t help the evidence-free impeachment much, undoubtedly complicate David Weiss’ hopes of charging Hunter Biden on tax crimes, and probably give Abbe Lowell a stash of documents he would otherwise not have gotten, some of which show investigative sloppiness and potential evidentiary problems for any case Weiss does charge (again, some of which Lowell would otherwise never have gotten).

Plus, some of the documents undermine the Agents’ claims to be whistleblowers. The documents show they had advance notice of both Delaware’s decision to decline prosecution of the 2104 and 2015 tax years and of the timing of any prosecution. They show Shapley walked into a key October 7, 2022 meeting with a chip on his shoulder and an agenda entirely at odds with his knowledge of declination and timing. From that point forward, phantoms of Shapley’s paranoia, not facts, appear to have driven his actions.

For now, though, I want to point to two details that utterly destroy Shapley’s complaints about delays in 2020. It has always been the case that most of Shapley’s complaints about politicization (besides his own) pertained to events that happened under the Trump Administration. Indeed, that’s something that Jason Smith struggled to address at his own presser the other day: how events from 2020 could support the impeachment of Joe Biden.

But details in two documents Shapley sent in late 2020 reveal that during his entire media tour, Shapley has been withholding a key detail that make these complaints all the more ridiculous.

The first is what must be a draft (since it is not dated and includes editorial questions) one page summary of the investigation written for the IRS Deputy Commissioner around November 9, 2020. It explained (as other documents the IRS agents did too) that after the IRS got a Suspicious Activity Report regarding a UK porn site that wasn’t reporting income to US-based contractors, one of whom Hunter Biden had also paid as an escort, the IRS used that to start pulling Hunter’s tax returns, an initial predication that is going to be comedy gold in any opening arguments Abbe Lowell ever gives at a Hunter Biden trial. It also revealed (again, this gets mentioned in other documents) that there was a FARA investigation out of New York regarding Hunter’s ties to CEFC. Finally, the document attributed any pre-election guidance not just to David Weiss’ office, but also to DOJ Tax and the Deputy Attorney General’s office.

To date no proactive interviews have occurred as a result of guidance provided to the investigative team by the USAO in Delaware, DOJ Tax PDAG and the Deputy Attorney General’s office.

We’ve known of the Deputy Attorney General’s involvement since Shapley’s transcript was first released, which described that the guidance involved Richard Donoghue. Shapley has nevertheless blamed Weiss’ office for these delays ordered by Bill Barr’s top deputies, and Smith even blamed Lesley Wolf personally.

But the centrality of the DAG’s office in such delays is important background to a report filed on December 10, 2020 — which shows that its author (it’s not entirely clear who wrote this, but Shapley provided it) was upset that investigators weren’t improperly sharing information with Congress even then — attributes any delays in the investigation to concerns about election interference.

This investigation has been hampered and artificially slowed by various claims of potential election meddling. Even after the election, our day of action to go overt was delayed more than two weeks.

The memo clearly dismisses those claims, which suggests whoever wrote it thinks they know better than FBI counterintelligence investigators. But it also ignores someone else who knows better about known efforts by Russia to use Hunter Biden as a campaign prop: Donoghue. In February 2020, when he was US Attorney for EDNY, Bill Barr ordered him to serve as a gatekeeper for any investigation implicating Ukraine. This was a specific effort to prevent the SDNY investigation into Rudy Giuliani to pursue Rudy’s efforts to fetch dirt, including a laptop!!, from Andrii Derkach in December 2019.

But starting in July, Donoghue swapped places with Seth DuCharme, becoming the Principal Assistant Deputy Attorney General, where he proceeded to issue guidance to delay any overt investigative steps in the Hunter Biden investigation. In other words, the orders to delay overt steps until after the election would have involved someone who knew as well as anyone in government that the effort to exploit Hunter Biden’s relationship with Burisma involved a plot coordinated with known Russian agents.

But over the course of a four month media blitz, Gary Shapley — represented by people close to Chuck Grassley, who of late has been pushing this Russian information operation himself — suppressed the fact that DOJ had concerns, concerns that manifested in multiple Treasury sanctions afterwards, that the effort to focus attention on Burisma was orchestrated by Russia, Ukranian agents of Russia, and Donald Trump’s own efforts to solicit dirt whereever he could.

Twice yesterday, Republicans refused to vote on Democratic requests that James Comer subpoena Rudy (the first request included a request to subpoena Lev Parnas as well). Yet this detail from Shapley — and his suppression of it for four months — makes a Rudy subpoena all the more important.

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Nine Tax Chages Filed against Hunter Biden in Los Angeles

Principal Senior Assistant Special Counsel Leo Wise Insinuates David Weiss Lied to Congress

Abbe Lowell Calls James Comer’s Bluff

Hunter Biden: Which Came First, the Chick Selling Sex or the Extortion of Campaign Dirt?

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What Abbe Lowell said we could expect

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Vindictiveness on a much grander scale

Serving notice

David Weiss’ FBI FARA Headfake to Create a Hunter Biden Tax Mulligan

In Bid for a Trump Subpoena, Abbe Lowell Cites Trump’s Complaints about Politicization

James Comer Finally Finds Evidence Supporting Impeachment — of Donald Trump

Five Years Ago Today, Hunter Biden Bought a Gun

Gary Shapley Didn’t Tell Congress about Election Meddling Concerns

Interesting links

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