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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Then Noreika dismissed the charges.

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

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

A senior law enforcement official speaks, illegally

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

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

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

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

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

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

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

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

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

But to some degree that may not matter.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

No wonder Hunter’s lawyers are furious.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

From: John Paul Mac Isaac

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Update: Corrected title of NY Magazine.

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In Hunter Biden Case, Abbe Lowell Enters His Appearance

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MARGARET BRENNAN: So it’s not inevitable?

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

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

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

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

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

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

[snip]

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

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

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

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

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

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David Weiss Is Wrecking the Right Wing Story (and Likely Sandbagging Hunter Biden)

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I confess I love William Shipley — AKA Shipwreckedcrew, or Wreck, for short — the prosecutor turned defense attorney for seeming zillions of Jan6ers.

Don’t get me wrong: in my opinion, he’s an utter whack and a douchebag.

But — and I mean this in good faith — because he’s batshit but also a real lawyer, it makes him the sweet spot among attorneys that Jan6ers will hire and (sometimes at least) retain, but who will give them decent and at times excellent legal representation. There are a lot of batshit grifters who are little more than parasites on Jan6 defendants. And while I want these mobsters to face justice, I also want them to have competent legal representation along the way. Many of them do not. So while I may find Wreck awful personally, I am grateful he is providing competent representation for the kind of Jan6ers who wouldn’t accept representation from superb public defenders that many Jan6ers believe are communists or pedophiles or whatever other conspiracy theory they vomit up.

I also love Wreck because it drives him insane that, even though my graduate degree is a mere PhD, my observations often are more accurate than his. My favorite is probably the time I correctly predicted that John Durham might successfully breach Fusion’s privilege but not be able to use any of those documents at trial (Durham used one to set an unsuccessful perjury trap anyway). When I do stuff like that Wreck waggles his legal experience around and sics his trolls on me and it’s funny every … single … time.

This may be another of those times. Because Wreck is about to make my case that David Weiss tried something noxious in the abandoned Hunter Biden plea the other day.

You see, I agree with what Popehat had to say about the failed Hunter Biden plea the other day. Judge Maryellen Noreika sussed out that there was a key structural problem with the deal and refused to approve it without some more consideration of whether her role in it is even constitutional.

Friends and neighbors, that is shitty drafting. And if you’re Hunter Biden’s lawyer and telling your client that he can’t be prosecuted for crimes related to those income sources because of that language, that’s reckless advice and bad lawyering. It’s a failure by both attorneys. If Judge Noreika spotted that issue, called it out, and asked for an explanation, then good for her — she’s doing her job, which is to make sure the defendant understands the deal they are accepting.

That said, I’m pretty sure it’s a Frankenstein of a deal, in part, for reasons neither side wants to address until it’s done (Politico posted a transcript of the hearing here). Hunter, probably because he was at real risk for felony tax crimes before the government bolloxed the case so badly. His lawyer, Chris Clark, possibly because Abbe Lowell is on the scene and may be pushing a much more confrontational approach to this investigation. And the government because — on top of the things in the emails that prosecutors thought might blow the entire case — other statutes of limitation are expiring, SCOTUS might soon rule the one felony against Hunter unconstitutional. It turns out, too, that for the contested year (the one Joseph Ziegler said was so damning), both sides agree that Hunter’s accountants overstated his income on his taxes, which makes it hard to argue that Hunter’s treatment of some personal expenses as business expenses was an intent to lie to the IRS.

When asked whether there was any precedent to support what Hunter’s lawyers and the government were trying to do, AUSA Leo Wise, who was brought in to replace the team that was too tainted to prosecute this case, admitted, “No, Your Honor. This was crafted to suit the facts and circumstances.”

In other words, because both sides had fucked up so badly, this agreement is a way to move forward. Or would have been if Judge Noreika hadn’t appropriately refused to be part of a plea that might not be constitutional.

But the Frankenstein plea was written on the back of a remarkable statement of facts, a statement of facts that could have been written by Peter Schweizer, which was completely untethered from the narrow crimes in the two deals. It was so untethered from the elements of the offense involved in the crimes in the plea that Judge Noreika had to direct Wise to explain how it actually met the essential elements of the offense.

I have grave concerns about the ploy that prosecutors may have been attempting — may have succeeded in doing — with that statement of facts.

And the statement of facts is where I get to have fun with Wreck again. He agrees with me it is totally unusual. But he’s sure that that’s because the defense attorneys — who he’s sure wrote it — are trying to get away with a fast one.

“There is a purpose behind it,” Wreck said, “and it’s written in a style that I have NEVER seen come from a prosecutor.”

Only, he’s wrong about who wrote it and so undoubtedly wrong about the purpose behind it.

Hunter Biden’s lawyers didn’t write it. At one point, Chris Clark said that explicitly: “Your Honor, we didn’t write this.” Several times, Hunter or Clark struggled to explain what they believed the government meant by something in the statement of facts, in one instance when they had to address that it was totally unclear what income Hunter earned.

Mr. Clark: My understanding, Your Honor, is that sentence picks up the work described in the last couple of sentences, not just the work for Boise Schiller.

The Court: Well, Mr. Biden actually knows.

The Defendant: Yeah, exactly, Your Honor. I believe what the government intended for that sentence was that it was the total income, not just as it relates to my capacity for Boise Schiller.

When asked why the statement of facts said his addiction problems were well-documented, Hunter responded,

Well, I believe the government is referring to a book that I wrote about my struggles with addiction in that period of my life. And quite possibly other news outlets and interviews and things that have been done.

That phrase — well-documented — had absolutely no place in a document like this, certainly without citations. Indeed, how well-documented his addiction is irrelevant to both the tax crimes and the gun diversion.

Yet no one cleaned it up before this attempted plea.

Perhaps the most remarkable exchange happened when Judge Noreika asked Hunter what the statement of facts meant when it said that his tax liability should not have come as a surprise. He seemed totally unfamiliar with the passage, and when asked, Hunter said that it was a surprise.

THE COURT: All right. On the next page, at the end of the second paragraph, starting four lines from the bottom in the middle of the line, the paragraph talks about your tax liability. And it says the end of year liability should not have come as a surprise. Do you see that?

THE DEFENDANT: I’m sorry, I’m just trying —

THE COURT: That’s okay. Take your time.

THE DEFENDANT: Yes, I see that here.

THE COURT: It says it should not have come as a surprise. It wasn’t a surprise, is that right?

THE DEFENDANT: Yes, Your Honor.

THE COURT: And you knew —

THE DEFENDANT: Well, I don’t — I didn’t write this, Your Honor, so the characterization —

MR. CLARK: Can we elaborate the time there, Your Honor?

THE COURT: Yes.

MR. CLARK: So essentially there was a tax treatment that was undertaken in that year, and it changed the tax treatment at the very end of the year for a particular asset. And so I think the point is, and I didn’t write this either, there was substantial influx of income during that year. There was an issue with this last minute tax treatment change, and so there were expressions at times of surprise at that. I think the government’s point is you knew you made a lot of money, it shouldn’t have come as a surprise.

THE COURT: My only concern is when I read this as a lawyer, it shouldn’t have come as a surprise, that doesn’t preclude Mr. Biden from saying yes, it did.

MR. CLARK: Your Honor’s characterization is exactly right.

THE COURT: You’re saying it actually was a surprise?

MR. CLARK: In that year.

THE COURT: You guys are okay with that?

MR. WISE: Yes, Your Honor.

Hunter Biden was under oath for this colloquy (as all plea colloquies are), trying to explain why a document he didn’t write was riddled with ambiguous language and unsubstantiated claims.

And here’s the concern: When Hunter’s lawyers agreed to this, they believed that FARA charges were off the table. But about half the way through this hearing, Wise made it clear they were not.

THE COURT: All right. So there are references 6 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.

I can’t speak to whether any FARA charges against Hunter are meritorious or not and if they are, without taint, by all means prosecute him. The admitted facts about Burisma and CEFC, while far smaller than laid out by Republicans (including, potentially, by Joseph Ziegler and Gary Shapley under oath), are interesting as much for the kind of information operation we saw being alleged in the Gal Luft prosecution as they are for the possibility they support a FARA prosecution (which is one of two things — the other being the loan that Hunter got from Kevin Morris to pay off his taxes in the first place — for which the statute of limitations would not have expired).

But that’s as much an information operation as it is a FARA violation.

It’s my opinion that this plea deal was crafted to give DOJ a way out of grave problems that exist in their existing case file — problems that Ziegler described in testimony — while kicking off a FARA investigation with sworn admissions made based on, at best, misunderstandings — and possibly outright misrepresentations — of the scope of the deal.

It’s my opinion that this statement of facts was intended to get Hunter to admit under oath to facts underlying FARA violations that DOJ otherwise couldn’t use because the way they got this evidence has been so tainted by Trump’s political influence and hacked computers and other poisonous tree they’d never get it admitted in court.

DOJ already admitted — to Joseph Ziegler at least — that they couldn’t prosecute any of this because of some kind of taint. And it sure looks like this “plea deal” is an attempt to sheepdip the entire prosecution to get Hunter Biden to clean the taint himself.

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WaPo Is Suppressing Information that Might Debunk Devlin Barrett’s Latest Spin

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Last week, I asked the WaPo if they would release the two reports — one from Johns Hopkins professor Matt Green and the other from InfoSec expert Jake Williams — that were the basis of this report on the “Hunter Biden” “laptop.”

I had asked once before, in May 2022.

But since I had originally asked, a bunch of things had happened to make those reports more newsworthy. Hunter Biden had countersued John Paul Mac Isaac (here’s the WaPo’s report). James Comer has stumbled over and over in his unabashed effort to manufacture a scandal (in which the WaPo has played along, still treating it as a credible investigation). Delaware US Attorney David Weiss’ office released a plea deal to which Hunter Biden is expected to plead guilty next week (here’s the WaPo report). IRS agents claiming to be whistleblowers, Gary Shapley and Whistleblower X, shared notes that raised questions about the FBI treatment of the device (but WaPo didn’t mention that in their report). Abbe Lowell claimed that Shapley misidentified Hunter Biden’s interlocutors in some key WhatsApp messages (something else WaPo didn’t mention even while repeating the substance of the contested WhatsApp texts). Denver Riggleman, who has been working as part of a Hunter Biden team to examine what has been released, has alleged some of the data has been manipulated (something WaPo hasn’t bothered to cover at all).

That all led me to start looking at the publicly released (but unreliable) emails at BidenLaptopEmails dot com, where I’ve discovered that during a period when Hunter Biden was getting Ketamine treatment and bookended by two communications from him that indicated he was not getting outside comms, someone:

  • Split Hunter’s Uber account, on which his two iCloud accounts had previously been joined
  • Accessed Hunter’s rhb iCloud account from a browser
  • Changed the password and related phone numbers to his rhb iCloud account
  • Installed and gave full access to his droidhunter gmail account a real app, called Hunter, that can send email on someone else’s behalf
  • Signed into that droidhunter account using a new device
  • Again changed emails and phone numbers associated with his rhb account
  • Asked for a full copy of his rhbdc iCloud account
  • Reset the password of that rhbdc iCloud account
  • Made droidhunter account the notification email for the rhbdc account
  • Downloaded all Hunter’s Apple Store purchases
  • Made changes to the Uber (and Waze) account associated with an XS phone that would be included in the “laptop”
  • Restored rhb as an alternate address to the account
  • Restored contacts from an unidentified prior change
  • Obtained — including at the droidhunter email account — a download link of the entire rhbdc iCloud account
  • Backed up the XS phone to the laptop
  • Gotten a trial app of a photo editor
  • Backed up an iPad to the laptop
  • Changed the iTunes password
  • Added the Dr. Fone account, allowing you to adopt a chosen second phone number for a phone, to a second of Hunter’s accounts
  • Signed into the droidhunter account from a burner phone
  • Restored the prior trusted phone number
  • Added software that could record calls
  • Started erasing and then locked a laptop — probably the one that would eventually end up in Mac Isaac’s store
  • Got a new Mac phone for the droidhunter account

That series of changes are not the only emails in the MarcoPolo set that should raise questions about whether Hunter Biden’s digital identity may have been compromised.

Two that are important to the topic of this post are, first, that a great many devices logged into Hunter Biden’s iCloud accounts in 2018 and 2019, yet many of them don’t appear to be tied to him getting his own new iPhone or computer, and only rarely are the existing devices shut down or passwords changed afterwards. The sheer number should have raised alarms that people had broken into Hunter Biden’s iCloud accounts when the IRS asked Apple for Hunter Biden’s subscriber information in November 2019, in advance of writing a subpoena for the laptop in custody of John Paul Mac Isaac. Additionally, there were a bunch of attempts to get into Hunter Biden’s Venmo account, and the account added two new Remembered Devices within 12 minutes of each other in August 2018, one in the LA foothills and the other in Las Vegas. That and other details (including texts and emails) might have raised questions about whether sex workers from the very same escort service on which the IRS had predicated this entire investigation took steps to compromise Hunter Biden’s devices.

But the timeline above provides some reason to believe that at the time the “laptop” was packaged up for delivery to John Paul Mac Isaac, Hunter Biden did not have complete — if any — control of his own communications.

I wouldn’t be able to prove whether Hunter Biden was hacked during this key period in 2019. It would require subpoena power and access to reliable data. But as it happens, Whistleblower X had subpoena power — and was already watching Hunter Biden closely — in precisely the period this happened.

For those of us who don’t have subpoena power, though, we have to rely on publicly available evidence, filtered through partisan gatekeepers alleged to have tampered with the device.

The two reports done for the WaPo are the only known assessments of the drive containing the “laptop” primarily using forensic — as opposed to a correlative — methodology. The correlative methodology, which shows all the communications on the drive confirm the others, unsurprisingly concludes that the “laptop” came from one of Hunter Biden’s several iCloud accounts.

The forensic methodology looked for digital verification — not just of email signatures, but also of the drive itself. Both Green and Williams raised questions about the treatment of and missing digital signatures on the drive, questions that seem to match what Riggleman’s team is seeing.

Indeed, the concerns that Green and Williams raised may explain something the FBI itself found. Shapley’s notes recorded that on March 31, 2020, someone wrote an email “about quality and completeness of imaged/recovered information from the hard drive” — an email that was being intentionally withheld from the agents (especially Whistleblower X) who might one day testify at trial.

This sounds like it might reflect the same concerns raised by anyone external examining the drive forensically. If it does, it would suggest that some of the irregularities everyone can see in drives released via Rudy Giuliani and Steve Bannon always existed, including in the one shared with the FBI and in any separate drive shared with Republicans in Congress.

Because of all the new questions raised about the “laptop,” and because of the centrality that the Republicans want it to have on the upcoming election, I thought it reasonable to ask the WaPo to do what even the Washington Examiner was willing to do: show their work. While the Examiner’s report from Gus Dimitrelos tellingly excludes many of the details I’ve laid out above and hides both some key later device accesses and types of apps — especially spyware — loaded onto Hunter Biden’s iCloud accounts, while the way the Examiner released it exacerbated the privacy violations on Hunter Biden himself, it nevertheless was useful for explaining how two iCloud accounts were loaded up onto one laptop and how the government was able to obtain WhatsApp texts that don’t show up on the unencrypted parts of the laptop.

After I made several requests, WaPo PR manager Savannah Stephens declined to release the reports, calling the two reports, “foundational reporting documents.”

Marcy, thank you for reaching out. We do not release foundational reporting documents. Our coverage at the time was transparent about how the study was conducted, including this report.

Even though it has two reports that could significantly impact fairly pressing debates — debates the WaPo itself treats as important — the WaPo refuses to release more on these expert reports on the laptop.

Instead of doing that, the WaPo is instead paying Devlin Barrett to do what he does best — write down as true what right wingers tell him to write, not what the public evidence actually shows.

In a story with Matt Viser (the same guy who repeated the content of contested WhatsApp texts without revealing that Abbe Lowell had contested them), Barrett wrote that the testimony of the men he calls “whistleblowers” “show Hunter Biden’s laptop had little role in the investigation into Hunter Biden.”

Barrett and Viser utterly misrepresent the debate over the laptop — dodging the question, in the lede, at least, of whether the laptop can help get to the truth — something once considered the purview of journalism and something WaPo’s own report on this drive had previously done.

For more than two years, Democrats and Republicans have hotly debated the importance of the “Hunter Biden laptop” — insisting that it was either key evidence of corruption or fool’s gold meant to con 2020 voters into abandoning then-candidate Joe Biden.

Both theories were largely wrong, according to two of the agents closest to the investigation of tax crimes allegedly committed by President Biden’s son.

[snip]

But the agents’ accounts also indicate that the laptop played at best a small role in the criminal investigation into potential tax and gun-purchasing violations. Far from a smoking gun, the laptop appears to have been mostly an afterthought to the reams of text messages, emails and other evidence that agents gathered from Hunter Biden’s cloud data. A lawyer for one of those agents said he nevertheless was frustrated by the Justice Department’s refusal to let them review the laptop’s contents.

I’m very interested in the project of this column, because not only is this not what Shapley and Whistleblower X’s testimony said, but it misrepresented and misunderstands how evidence works.

This is a tax investigation. It came from, per Whistleblower X, his examination of what is probably a Russian escort service. But it’s a tax investigation: it relies on financial data that comes directly from banks and other financial institutions, institutions that are — to the extent they aren’t tainted by identity theft or hacking, like people seem to have tried to do to Hunter Biden’s Venmo — inherently reliable.

As for emails and texts, the IRS agents’ testimony (taken in conjunction with the report that the Washington Examiner was ethical enough to release), shows that the IRS didn’t obtain what is probably Hunter Biden’s rhb iCloud account — from which the cited, contested WhatsApp messages were probably obtained a second time — until August 2020, after it got some of the same material on the laptop. That potential taint may be why someone told Barrett to downplay the import of the laptop.

While the laptop may not have played a key role in substantiating a tax case against Hunter Biden, it may well have tainted the evidence in the case. It may well be part of the reason why Hunter Biden is getting to plead to misdemeanor rather than felony tax charges — because as even Whistleblower X explained that he had been told, there are emails that raised concerns about whether this could be charged at all, suggesting this case couldn’t withstand discovery.

Plus, WaPo is being coy here: The laptop may have played little part in a tax investigation reliant on bank records. But it did play a central part in allegations, including WaPo’s own reporting, of foreign influence peddling involving (among others), Burisma, the hack of which became public between the time the IRS started using this laptop as evidence and the time they learned Rudy Giuliani had a role in it.

That part is all pitch, though — yet another instance where Devlin Barrett writes down what right wingers tell him to say and WaPo reports it as if it were true. It’s what WaPo pays him to do.

It’s the claims about the laptop — from an outlet sitting on two reports that raise questions about its reliability — that I find especially curious. Start with this paragraph, which conflates the steps FBI took in November 2019 to authenticate that the laptop was Hunter Biden’s — subscriber information from Apple, a purchase record in Delaware, two but maybe only two phone calls with Mac Isaac, and “other intelligence” — with what the AUSA on the case said about it almost a year later.

After being handed the device by a Wilmington, Del., computer shop owner in 2019, the FBI quickly concluded by examining computer data as well as Hunter Biden’s phone records that the laptop was genuinely his and did not seem to have been tampered with or manipulated.

That last bit — “did not seem to have been tampered with or manipulated” — published by an outlet sitting on two reports that show the laptop was tampered with? It is a paraphrase from a meeting in October 2020, not a description of legal process served in November 2019. And therein lies a big part of the scandal.

In the actual quote, Wolf — painted as the bad guy here by the IRS agents — was saying that it “is not a priority” for the investigative team to see “if anything was added to the computer by a third party” even after learning that the lawyer for the President, whose demands for this investigation had raised influence problems from the start of the investigation, had some kind of tie to it.

This is as if Peter Strzok, rather than just failing to make sure people writing FISA applications had adverse information about the Steele dossier (which is what frothers think the IG Report showed), had instead said, “fuck it, I don’t care if it is tainted.” These notes show the Hunter Biden investigative team did what right wingers accuse the Crossfire Hurricane team of doing, blowing off the import of the involvement of a campaign in a key piece of evidence.

When the WaPo conflates those two items again later in the piece, they date the quote to May 2020.

Democrats suggested the data might have been doctored or possibly a Russian-backed disinformation campaign. The information provided by IRS agents to Congress seems to put both the accusations and counter-accusations to rest.

FBI agents were able to determine in early November 2019 that the device they had was registered to Hunter Biden, and phone records showed he had been in contact with the computer shop owner.

“We have no reason to believe there is anything fabricated nefariously on the computer and or hard drive. There are emails and other items that corroborate the items on the laptop,” Shapley wrote in notes that dated that determination to around May 2020.

Dating Lesley Wolf’s comment saying they had no reason to believe anything on the laptop was fabricated to May 2020 is either a deliberate error or a confession that two journalists proclaiming the laptop to lack any taint have no fucking clue what they’re reading.

Wolf said this, at a meeting the investigative team had on October 22, 2020, in the wake of the discovery that Rudy Giuliani had some tie to the laptop, as the team scrambled to memorialize how they had treated a key piece of evidence about which a bunch of questions would now be raised.

A Yes. So there are a couple significant parts of this. One was that, at this time, the laptop was a very big story, so we were just making sure that everything was being handled appropriately.

So we wanted to go through the timeline of what happened with the laptop and devices.

Because the laptop had become a huge story, “we were just making sure that everything was being handled appropriately,” Devlin Barrett’s star “whistleblower” explained.

And Shapley shows Wolf saying that they had no knowledge, in October 2020, of any fabrications on the laptop. But he records her saying that after “computer guy” said “they could do a csv list that shows when everything was created.”

That is, Wolf said this after “computer guy” described something they had not yet done ten months after obtaining the laptop, had not yet done two months after getting warrants relying on the laptop, that they would need to do to make sure the laptop had not been altered by third parties. Wolf said this after “computer guy” described that the FBI had not done very basic things to verify the integrity of the laptop they should have done ten months earlier, before relying on it.

Again, I’m not sure whether WaPo’s journalists are dishonest or just stupid. But this exchange is critical for another reason. Lesley Wolf’s assertion about the integrity of the laptop relied on correlation: by matching emails on the laptop with emails that could be obtained directly from the provider.

There are emails and other items hat corroborate the items on the laptop and hard dive.

This is the method that Washington Examiner’s expert used to proclaim the laptop authentic. It’s the method that a bunch of other right wing journalists have gotten experts to use to validate the laptop.

If you steal someone’s iCloud account, the way to prove that it is authentic is by proving that it is their iCloud account, which is what correlation does.

But “computer guy” was suggesting using a forensic method, ten months after the fact, to test the integrity of the laptop itself. DDOSecrets has done this test on the publicly released emails — and half of them have a last modified date of February 11, 2019, right towards the end of the timeline I show above.

Lesley Wolf made her comment on October 22, 2020. No one in Gary Shapley’s interview asked him what happened after that. Nor does Devlin Barrett seem curious to ask.

If “computer guy” subsequently did this test, there’s good reason to believe he would have found what DDOSecrets did: that while these emails match the ones in Hunter Biden’s accounts, they were all packaged up on February 11, 2019, at a time it’s not clear Hunter Biden had control of his own digital accounts.

If you use a forensic method to validate these files, you’re not going to get the same results as a correlative method. That’s why it would be very useful for the debate about the laptop for WaPo to share the two known expert reports done using forensic methods on the drive itself, rather than correlation.

There’s one more hilarious thing about this Devlin Barrett creation. He, predictably, repeats his “whistleblower’s” complaints about not getting stuff pertaining to the laptop.

Shapley said a federal prosecutor on the case, Lesley Wolf, told him that the IRS agents couldn’t see the laptop. “At some point, they were going to give a redacted version, but we don’t even think we got a full — even a redacted version. We only got piecemeal items,” Shapley told the committee, voicing his frustration that he would have liked to see all the data.

Devlin Barrett — dishonest or stupid? — quotes Shapley’s testimony out of context. The full quotation makes it clear Shapley is referring, again, to a discussion that took place on October 22, 2020. More importantly, Shapley is not referring to the laptop!!

And when it came down to item number 33 on page 2, Special Agent [Whistleblower X] is saying like, well, I haven’t seen this information. And AUSA Lesley Wolf says, well, you haven’t seen it because, for a variety of reasons, they kept it from the agents. And she said that at some point they were going to give a redacted version, but we don’t even think we got a full — even a redacted version. We only got piecemeal items [my emphasis]

That particular quotation, identified clearly as item number 33, is the report about the laptop — which I’ll copy again here to make it so easy even Devlin Barrett might understand it:

To help a right winger allege corruption, Devlin Barrett quotes his complaint that his team was not given the actual forensic report about the laptop. Corruption, in this story, is withholding a forensic report that might tell people what they need to know about the laptop.

And yet that is precisely what WaPo itself refuses to do: release two reports that raise questions about the quality and completeness of the drive.

According to Devlin Barrett’s own standard — at least the standard he applies when he’s parroting right wingers — withholding such a report is a sign of corruption.

Even the plain language of Gary Shapley’s contemporaneous notes show that Devlin’s claim that, “information provided by IRS agents to Congress” “put[s] … the accusations” that “the data might have been doctored or possibly a Russian-backed disinformation campaign” … “to rest” is wildly false (dishonest or stupid?). It does the opposite: It shows that ten months after beginning to rely on the laptop, the FBI still had not done basic forensic checks of the data on it and the AUSA leading the investigation didn’t think doing so was a priority.

That should be the story. That’s the scandal.

And true to form, Devlin Barrett spins the exactly opposite tale.

The WaPo has in its possession some of the only available information that can help to explain what the FBI saw by March 2020, two independent equivalent reports to the one that Shapley implies it is corrupt to withhold.

And unlike the Washington Examiner, they won’t release it.

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Hunter Biden’s Matryoshka Cell Phone: How the IRS and Frothers Got Hunter’s Encrypted iPhone Content

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Believe it or not, what sent me down the rabbit hole of Hunter Biden’s “laptop” was not the laptop itself.

It was a cell phone.

Or, more specifically, it was two details in purported IRS whistleblower Gary Shapley’s testimony. First, after introducing summaries from some Hunter Biden WhatsApp chats — summaries that, Abbe Lowell claimed, got the most basic details wrong — Shapley explained that the chats didn’t come from the laptop itself, they came from a warrant served on Apple for the iCloud backup to which they were saved.

Q Could you tell us about this document, what is it, and how was it obtained —

A Sure. So there was an electronic search warrant for iCloud backup, and these messages were in that backup and provided —

Q Okay.

A — from a third party, from iCloud.

This appears to be the search warrant return obtained — again, per Shapley’s testimony — in August 2020.

For example, in August 2020, we got the results back from an iCloud search warrant. Unlike the laptop, these came to the investigative team from a third-party record keeper and included a set of messages. The messages included material we clearly needed to follow up on.

Shapley’s disclosure that there were WhatsApp texts saved to iCloud stunned me. That’s because, for all the material produced from the laptop itself — which even frothers have treated as all the content in Hunter Biden’s iCloud account — I had never seen WhatsApp texts.

Plus, there’s a technical issue. WhatsApp texts, like Signal texts, don’t automatically back up to iCloud. If one really wants to use their end-to-end encryption to best advantage, one doesn’t store them in the cloud, because then the only easy way to get the texts would be directly from someone’s phone. These texts purported to involve a Chinese national (though, as noted, Lowell says that’s false) whose phone would presumably be inaccessible overseas. And at the time the IRS obtained these texts, Hunter Biden didn’t know about the investigation into himself. They hadn’t seized his phone.

For Shapley’s description to be true, then, Hunter Biden would have had to back up the texts to his iCloud. But if he had, they should have shown up on the laptop itself, right along with every other scrap of the President’s son’s private life.

There were crumbs of an explanation for this in Shapley’s notes from the October 22, 2020 meeting on the government’s treatment of the laptop attributed to Hunter Biden.

In the meeting, Whistleblower X — who by his own description saw things online that he hadn’t obtained via the laptop directly, even though DOJ warned the agents not to do that — kept prodding about whether the investigative team had been provided all the messages on the laptop.

29. SA [Whistblower X] asked if all information on the hard drive had been reviewed…the answer is that they did not look at all of that SA [Whistleblower X] questions if Dillon reviewed all iMessage’s that wore relevant and not privileged. They would find the answer.

As Shapley recorded, on February 27, 2020, the forensics people provided all messages from the hard drive of material John Paul Mac Isaac restored from the laptop.

30. 2/27/2020 DE3 with all messages from the hard drive were provided by computer forensics— via USB Drive

That production included iPad and MacBook messages, but no iPhone messages.

32. 227 Productions

DE3 USB containing exported messages (ipad and macbook messages) No iphone messages

They didn’t get messages off any iPhone until they found a password, conveniently written on a business card, and with that password, were able to get into encrypted iPhone content on the laptop.

Laptop — iphone messages were on the hard drive but encrypted they didn’t get those messages until they looked at laptop and found a business card with the password on it so they were able to get into the iphone messages [my emphasis]

This still didn’t answer my question — how was the IRS able to get WhatsApp texts from iCloud when they weren’t on the iCloud content that appears on the Hunter Biden laptop.

But a detail on the fourth of Guy Dimitrelos’ reports on Hunter Biden’s laptop may explain it.

In his first report, Dimitrelos explained that the 5 million artifacts found on the hard drive were connected to Hunter Biden’s iCloud account, which he says was tied to the email [email protected].

  1. The hard drive contained approximately 5,791,819 files and system artifacts and was connected to and authenticated on an Apple iCloud account of [email protected] which is owned by Robert Hunter Biden (RHB).

[snip]

  1. Since this Apple MacBook Pro model was not released until 2017, all data prior to 2017 was stored (backed-up) to the [email protected] account and then downloaded to the MacBook Pro hard drive Downloads folder as illustrated in paragraph 30.

In his fourth report — basically 133 pages into his sequential reporting — Dimitrelos noted that Hunter Biden had another iCloud account, one tied to one of the emails he identified on page 4 of his report: [email protected].

In fact, at least according to the unreliable emails released at BidenLaptopEmails dot com (AKA MarcoPolo), that’s the account to which the laptop believed to be the one that ended up at Mac Isaac’s shop was registered to, not the [email protected] account.

At the Marco Polo site, there are 453 pages of emails from the [email protected] account (so around 22650). They include some of the most interesting in the collection, the ones directly with the Biden family and others indicating sensitive travel. There are 269 from the [email protected] account (so around 13,450) — but it’s the latter that seems to have been taken over in early 2019. I’ve described that the droidhunter88 gmail account effectively took over control of the iCloud account in that period (though I need to go back to the timeline and distinguish which events happened on one iCloud account and which on the other), and I think that’s right. But importantly, at times, the RosemontSeneca email is linked into it. That is, a RosemontSeneca email was used on both iCloud accounts.

As to the phone, Dimitrelos describes that he found a phone registered to the [email protected] account in an encrypted container in an iTunes backup.

I identified an encrypted container located within Apple’s MobileSync iTunes default backup folder.

[snip]

I identified the iOS backup to be an iPhone with the phone number below and Apple id of

[email protected] which is one of Robert Hunter Biden’s iCloud accounts.

Part two of Dimitrelos’ report described finding passwords for the iTunes account in two places. First, a picture of a partly rumpled lined piece of paper stored in a Hidden Album. This picture included Amazon, WiFi, iTunes, GMail, and Apple ID passwords, all registered to a different Gmail account. And then, associated with an iPad registered to still a third iCloud account, registered to a Gmail account.

The latter shows that Hunter Biden’s iTunes password was changed on January 30, 2019, solidly in the middle of the period I’ve argued that his account was taken over by the DroidHunter gmail account.

And screencaps in parts two and four of Dimitrelos’ report show that both the iPad and the iPhone were backed up during this same period, on February 6, 2019. Someone changed the iTunes password, and backed up these two devices, where they were found on the laptop. All in this same period where Hunter Biden seems to have lost control over his laptop.

In part four of Dimitrelos’ report, he describes that there were, indeed, WhatsApp messages on the iPhone, registered to that entirely different iCloud account, seemingly backed up to iTunes on the [email protected] account.

I can’t be sure about this, because I’m not a forensics expert, both Shapley and Dimitrelos are deliberately unreliable narrators, and even they don’t have all the data to understand what went on here. But it appears that the reason why there were no WhatsApp texts on the laptop itself, which had all the content in the [email protected] iCloud account, is that they weren’t used by a device registered to the [email protected] iCloud account. They were used by a device registered to the [email protected] account, which was (as Shapley’s notes reflect) stored in encrypted fashion on the laptop.

There’s one more very important point about this.

The government had a warrant. If they really did find a business card (one not described anywhere I’ve seen in Dimitrelos’ report) with a password, they were able to get the encrypted content (though oftentimes prosecutors will recommend you go back and get a second warrant for that). From there, it seems, the IRS got another warrant for the other iCloud account, the [email protected] one. That’s how they got a legally sound copy of the WhatsApp texts in August 2020.

But for people like Rudy Giuliani or Garrett Ziegler or John Paul Mac Isaac, taking a laptop they purport to have been abandoned, and then using a password found on that laptop to access an encrypted container — especially one of a different iCloud account — is legally another level of conduct.

Update: I screwed up the number of emails; I’ve corrected that now.

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Gary Shapley and Hunter Biden’s Colleague Named “Z”

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There was a detail in Abbe Lowell’s letter to House Ways and Means Chair Jason Smith complaining about the way Smith platformed purported whistleblowers to launch an attack on Joe Biden that deserves more attention: Lowell claimed that Gary Shapley misrepresented the identity of the person with whom Hunter Biden had a WhatsApp exchange in 2017.

This is the WhatsApp exchange that Smith mocked up to look like texts themselves. The mocked up texts went wildly viral based on Smith’s unsubstantiated claim that Joe Biden was in the room with Hunter during his deal-making.

Lowell described that fake mock-up this way.

The agent only described one message, but you took that purported text and disseminated images of it on June 22 and June 24 in two Twitter postings.

The screen-grab images you posted are not real and contain myriad of issues: both include a photo of Mr. Biden not from 2017 but from the White House Easter Eggroll in April 2022 (long after the purported message was sent); both images portray the message in a blue bubble, when WhatsApp messages are in green; one image super-imposed the Chinese flag for the contact ID, when surely that was not how a text or contact was kept; and one purports to be a screenshot with the “. . .” of someone composing a text (as in Apple’s iMessage) when that does not happen on WhatsApp.

I explained why Smith had to attempt to recreate WhatsApp messages in this post: Shapley himself shared summaries of the purported WhatsApp messages, rather than the WhatsApp messages themselves or the forensic report from Apple whence (Shapley claimed) the IRS obtained them.

Not only did Shapley admit to the Committee they were summaries, but Shapley isn’t even sure who did the summary.

Q Could you tell us about this document, what is it, and how was it obtained —

A Sure. So there was an electronic search warrant for iCloud backup, and these messages were in that backup and provided —

Q Okay.

A — from a third party, from iCloud.

Q Okay. Who was it provided to?

A The — the investigative team from —

Q Okay. A It would go through all the same processes of — since it’s electronic, it would go to one of the computer analysis folks, and then they would put it in a readable format, and then it would go through filter review.

Q Okay. And these aren’t WhatsApp messages, these are summaries of WhatsApp messages, correct?

A Yeah, that’s correct. Because it was something about the readability of the actual piece, right? It was easier to summarize in a spreadsheet.

Q Okay. And who did the summary? Who prepared this document?

A It was either the computer analysis guy or [redacted, probably Whistleblower X], one or the other [my emphasis]

Even on their face, they’re not reliable summaries. In this text, for example, someone interjects their opinion, “believed to be Zhao” right into the middle of a purported quotation, without marking that opinion as such.

Given that the summary presents at least this direct quote with additional information, we can’t be sure whether other quotes — particularly references to Zhao — are accurate.

Compare Shapley’s summaries with what reliable law enforcement summaries of WhatsApp chats saved to iCloud and obtained from Apple look like (this was an exhibit in the Vladimir Klyushin trial and would have been obtained in the same timeframe).

Not only does this directly quote all the messages, but it includes exact time and the accounts used, details that should drive any law enforcement investigation.

The summary matters, a lot. That’s because Lowell claims that Shapley — or whoever did these summaries — misidentified the Hunter Biden interlocutor whose last name begins with Z.

In one excerpt that has now gotten a great deal of media attention, Mr. Biden is alleged to have been sitting next to his father on July 30, 2017, when he allegedly sent a WhatsApp message, urging the completion of some business transaction. See Shapley Tr. at 14. The inference is that the referenced message was being sent to an official of CEFC (China Energy) to forward a false narrative about the Bidens’ involvement in that company. The facts, which some media has now reported, are that President Biden and our client were not together that day, the company being referenced was not CEFC but Harvest Financial Group (with a person who also had the initial “Z”), and that no transaction actually occurred. More important, your own actions call into question the authenticity of that communication and your subsequent use of it. In short, the images you circulated online are complete fakes. Many media articles confirm that data purported to have come from Mr. Biden’s devices has been altered or manipulated. You, or someone else, did that again. All of the misstatements about this communication and your use of a false text are good examples of how providing one-sided, untested, and slanted information leads to improper conclusions. [my emphasis]

This is a remarkable claim, because — if true — it suggests the IRS was investigating Hunter Biden based on wildly incorrect assumptions about the identity of his interlocutors.

Abbe Lowell claims that the IRS agents who investigated his client for five years — the son of the President!!! — didn’t know to whom he was talking! I’ve heard a lot of outlandish claims from defense attorneys (though Lowell is far more credible than the grifters who defend a lot of January 6 defendants), But this is an utterly inflammatory claim.

Had Shapley used responsible summaries, rather than the unprofessional script he did use, it might be possible to figure out who is right, here, because then we could compare the actual number or email account used.

Or maybe not.

There’s another possible way to explain why IRS agents wouldn’t even know the identity of the person with whom Hunter Biden was discussing business deals.

One of the things that happened during January 2019 when Hunter Biden’s droidhunter88 account had taken over his iCloud account is that his contacts list was “restored.”

In the publicly released emails, there’s no indication of when the request was made, or restored from what. But it happened around the same time as “Hunter Biden” requested a full iCloud download, including his contacts list.

That iCloud download is almost certainly what became much of the content on what is now known as the “Hunter Biden” “laptop” — a laptop the IRS was using (after booting it up in a new laptop, if you can believe Shapley’s notes) for evidence in this investigation.

There are at least three possibilities here:

  • Shapley is right and Abbe Lowell is wrong
  • Whoever wrote these unprofessional summaries just guessed — wrongly — who Hunter’s interlocutor was
  • The iCloud contacts list that the IRS was using when these summaries were made had been altered

We don’t have enough data to know. But given what even Hunter Biden’s persecutors have released, we can’t rule out the last one — that the IRS was using a doctored contacts list to investigate Joe Biden’s son.

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On Bill Barr and Sex Workers: Whistleblower X Raised Hunter Biden’s Baby Momma in Response to a Prostitute Question

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As a number of people have noted, the second so-called IRS whistleblower on the Hunter Biden case pointed to the official release of the documents Trump stole as an example of another high profile case where (he claimed, incorrectly), like the Hunter Biden one, there were leaks.

Q What’s an example of another high-profile case that we’re comparing that to?

A So some of the information that was released — or some of the information that was leaked related to the Trump classified documents. So that case. So there were actual pictures that were leaked from inside the search warrant. And this is what my memory of seeing things in the media. So that’s something that I remember. But, I mean — yeah.

It’s a testament to the way he has internalized Trump propaganda. It is one indicator of his unreliability.

There are more.

Far more.

The man should not be treated as credible.

All Whistleblower X’s International Tax Experience Has Been Milking Hunter Biden

Start with his own description of his work experience.

While he has been with the IRS for 13 years, it’s actually not clear how experienced he is in this kind of investigation. As he described, until just before he personally predicated the Hunter Biden investigation in 2018, he was a Public Information Officer, seemingly in both a public-facing role and working investigations.

Literally his first investigation on IRS’ International Tax and Financial Crimes group was into Hunter Biden.

And that’s important because he seems to struggle with due process. Throughout his presentation, for example, he seems to have little understanding of FBI guidelines, including least intrusive means and required approvals for Sensitive Investigative Matters. Many of his complaints amount to a complaint that he wasn’t permitted to violate rules that FBI has re-emphasized in the wake of the Carter Page IG Report.

So in a sense, Republicans are wailing because FBI wouldn’t violate rules the FBI didn’t even violate with Carter Page, such as doing physical surveillance of a candidate’s son 14 days before the election.

Q Why did you have to get approval for that?

A Because we were in a posture at that point that we couldn’t do anything that appeared — any investigative activities pretty much whatsoever.

Q But you weren’t wearing an IRS windbreaker, and you weren’t driving a car marked with IRS letters on it. So how would anyone possibly know? It’s a free country. You’re allowed to drive by any house you want.

A Yeah, I didn’t want it — because I think at that time we were trying to do surveillance of pretty much everyone we were going to potentially interview. So he was just another one of the people that we wanted to do that for. I guess I don’t know —

[snip]

Q What is that email in reference to?

A This is in reference — this is October 20th, 2020, walk-by of possible residence. And Mark Daly says: Tax does not approve. This will be on hold until further notice.

He also seems to have assumed that decisions were made to protect Hunter when many of his complaints seem to pertain to efforts to protect the investigation (for example, in addition to the above complaint that he wasn’t able to physically surveil Hunter Biden solely to make sure he was living where they believed him to live; another objected to making a data request without using his name, something that would prevent leaks).

But particularly given his own description of his career track, it’s not clear how many successful investigations he has had.

Over the course of his testimony, he described two other cases he worked about which there were substantive disagreements. The first was one he apparently worked while also an Public Information Officer. There, after the AUSA cycled off of the case, a new one declined to prosecute.

Prior to joining the case, DOJ Tax had approved tax charges for the case and the case was in the process of progressing towards indictment. Our assigned Assistant United States Attorney was promoted to judge, and DOJ Tax had made the decision to reinvestigate the case.

After working thousands of hours on that captive case, poring over evidence, interviewing witnesses all over the U.S., the decision was made by DOJ Tax to change the approval to a declination and not charge the case.

I was devastated when I found that out, but at the end of the day I understood.

We did everything we could to try to work through the issues and get the captive case ready for indictment. I fought hard, having meetings with the leaders of my agency and DOJ Tax to try and get it charged. But at the end of the day it was a difference in opinion, and DOJ Tax didn’t want to set precedence.

I’m bringing this up to show you an example of difference in opinion between the investigators and prosecutors when it came to charging. The captive case and the steps taken were significantly different than what happened with the Hunter Biden investigation, and hopefully I can show you that with my testimony here today.

Without distinguishing the difference, Whistleblower X claimed he wasn’t much bothered by the declination in that case.

Much later in his interview, he was asked why he didn’t approach IRS Director of Field Operations Michael Batdorf after he was removed from the Hunter Biden case, when in 2021 Batdorf had invited him to do.

Whistleblower X described that in mid-October 2022, shortly after the big pre-election leak about the case to Devlin Barrett, Batdorf put a hold on another of his cases.

Q So you mentioned Michael Batdorf and that he had told you previously that you could go directly to him. Is that right?

A Yes.

Q Did you do that at the stage where you learned that you were removed?

A I did not.

Q Okay. Did you feel like you could talk to him about this issue?

A No, because I’ve been having other issues with him on another case I’m working that is — I felt like that chain of — that that relationship was broken.

Q When did that relationship start to break down?

A Probably since mid-October, maybe, would be my guess. I mean, it’s — yeah. It’s definitely —

Q Mid-October 2022?

A Yes.

Q And you mentioned issues you were having with him on another case. It’s totally fine if you don’t want to get into the specifics of that particular case, but can you generally describe the issues that you’re referring to?

A Yeah. I need to stay very, very high level on this. I had received approval with a strategy related to this case. And they backtracked that approval a couple weeks later and said to me that we need to put this on pause and that we’ll get back to you on what strategy we’re going to do moving forward. And we’re still on a pause right now.

[snip]

Q We were talking about the approval on the strategy for this other case. And just to clarify, this is a totally unrelated matter?

A Unrelated matter, yes.

Q Okay. And can you describe more about what happened to that strategy?

A It felt like it was — all along, we had been — for the past probably year, we had been communicating a strategy on this case that is tackling a big problem and trying to tackle it efficiently, okay? And it’s a compliance issue in this area. So we were briefing our [IRS] leaders and constantly having meetings about what we’re planning on doing, and they were on all [of] these phone calls, and we were sending emails of our strategy. And very recently, one of those strategies was moving forward on this compliance issue, and we were a go on it. And a few weeks later, I receive[d] a phone call that basically says, you’re being paused, and we’re having to relook at what you were doing, and we will make a determination moving forward.

So now, to all my peers and the different people, I was the one pushing the strategy, and it got halted in place, and now I have to go back to [these] people and explain to them why — it was just a mess. It was an absolute mess.

Q When did you get that phone call saying that you were being paused?

A It was in February of 2023. It was either a phone call or an email. [Inline brackets original]

Perhaps this was a response to the investigation into the leak, but Whistleblower X suggested that on a second case, he had had serious disagreements with management.

And yet, per a later answer, Hunter Biden and its offshoots were his only case.

Q Okay. I want to get some sense generally of your caseload and what you work. How many cases do you currently have? How many cases did you have back in 2018 when this case was assigned to you?

A I was new to the group. So this was one of two cases that I was working at the time. And then moving forward to right now, I have one large case. But it includes probably 80 tangential cases — or 80 sort of spinoff cases that I’m trying to manage and work, as well.

That’s abnormal. Normally for an IRS special agent, normally it’s one or two cases that they’re working a year because of how much work goes into them.

Q You mentioned that one of your other cases is paused. How many cases do you have that are paused? I don’t know how you count the one large one with the 80 tangentials. But how many of those are paused?

A Probably 20-ish. Let me rephrase that. I would say 10 to 15.

Mr. Zerbe. Why are they paused? You might expand on that.

BY MINORITY COUNSEL 1: Q I was going ask that question. So, yeah, go ahead.

A They are second-guessing the strategy that we’re putting forward on those.

[snip]

Q In your cases that you’ve had, first starting back since November of 2018, coming forward, have you had disagreements in other cases that you’ve been working?

A Yeah, yes.

Q How did that play out? How do your disagreements play out generally?

A I can give you an example of in another situation I was working, we also had a person who had failed to file returns and they earned a significant amount of money and they went out into — I need to be — so they had that situation at hand. I went to the prosecutors on the case. And I said, hey, this person has these unfiled returns. I’m thinking that specifically with what has happened — and specifically with what has happened in news reporting related to them, I think we need to go talk to them

Not only don’t these answers make sense, but even if they’re true, Whistleblower X has had problems with every major case he has worked for the last five years.

That wasn’t the only way Whistleblower X damaged his credibility.

On the Third Try He Admits He Listened into a Meeting Uninvited

Take his belated admission to listening in on a phone conversation involving his chain of command covertly.

Whistleblower X provided three different accounts of how he learned he had been removed from the Hunter Biden investigation.

His first description of how he learned he had been removed came as he was reading from an email he sent to much of the IRS chain of command. Either in that email or an aside he made as he read (note the quotation marks; this transcript was reviewed and revised by Whistleblower X and his attorney, who has very close ties to Chuck Grassley), he claimed he never got a phone call informing he had been removed.

It says, “My respective IRS leadership, first off, I apologize for breaking the managerial chain of command, but the reason I am doing this is because I don’t think my concerns and/or words are being relayed to your respective offices. I am requesting that you consider some of the issues at hand. I’m sure you are aware I was removed this week from a highly sensitive case out of the Delaware U.S. Attorney’s Office after nearly 5 years of work. I was not afforded the opportunity of a phone call directly from my special agent in charge or assistant special agent in charge, even though this had been my investigation since the start.”

And outside, I still have not received a phone call from my assistant special agent in charge or anyone in my IRS CI leadership other than my supervisor.

Later Chairman Jason Smith asked him how he found out. Whistleblower X implied that Gary Shapley told him.

Chairman Smith. Who informed you that you were being removed from the investigation?

Mr. X. I learned through my supervisor, Gary Shapley.

Chairman Smith. How were you informed that you were being removed from this investigation?

Mr. X. He told me — Gary Shapley told me that he was removed and I was removed.

Chairman Smith. So it was by phone call?

Mr. X. Yes.

The implication from this exchange was that after he learned of it, Gary Shapley picked up the phone and called Whistleblower X to tell them the entire team had been removed from the case.

Shortly after that exchange, Whistleblower X and his attorney went off the record, after which he offered a third version: He sat in, uninvited, on a call that Shapley was asked to attend.

Mr. X. So I want to be clear with this. Can I explain what happened?

The assistant special agent in charge, Lola Watson, sent Gary an email — not me, Gary Shapley — my supervisor an email saying that they want to have a call regarding Sportsman. So a Sportsman update call. Gary, not feeling comfortable with our leadership, asked me to be on that call as a witness. I was not invited on that call, but I participated via phone on that phone call.

And it was during that call that — I overheard it, and they said that essentially the ITFC — so our group was removed from the investigation, and they were going to replace us with some other agents within the D.C. Field Office that they didn’t know the names of yet. There was no mention of, we need you to tell X. No mention of me whatsoever. It was just that we were removed from the case.

So, after telling two entirely different stories, Whistleblower X admitted he had basically listened in, uninvited, to an official government call.

And Republicans on the committee were not much bothered by that.

When Prostitutes Turn Girlfriends Turn Baby Mommas

Whistleblower X described starting the investigation into Hunter Biden off a sex worker site.

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.

I genuinely wonder whether this entire investigation is Elliott Spitzer 2.0, a highly politicized case out of someone arranging for sex work, especially given later references to the Mann Act.

And then there were — and I know that my counsel brought this up earlier. There were some flying people across State lines, paying for their travel, paying for their hotels. They were what we call Mann Act violations.

Even by Whistleblower X’s description, this investigation started off almost nothing.

Mr. X. 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.

All the more so given Whistleblower X’s problems with sex workers.

He talked about women he claimed to be prostitutes a lot.

At one point he bragged about how, in spite colleagues’ dismissals of the import of sex workers, he hunted down every sex worker with a tie to Hunter Biden and wowed his colleagues about them.

There was a lot of different investigative steps that we took, that even going and talking to the prostitutes, we found multiple people that he called his employees that were also prostitutes, and that he would have them clean his hotel room or — there were a lot of these interviews that we ended up going and doing and talking to people that were so worth it, even though someone might — we were always being told by the prosecutors, you guys are wasting your time going and doing that. It’s not worth it. And literally, I would surprise them every time and find everyone.

Later, Whistleblower X turned to the woman whose child support payments Hunter Biden just settled, Lunden Roberts, and claimed she didn’t work for Hunter Biden (Abbe Lowell complained when Shapley made this same claim).

So in addition to some of this stuff that we’ve been talking about, he also had members of his family, including Lunden Roberts, on his payroll. We know that during the time period she was paid, she did not work for him. So he was deducting things for salary for employees that were his family members. A lot of those witnesses are people we would go and talk to.

Still later, one of the majority counsels tried to get Whistleblower X to confirm he caught Hunter Biden paying health insurance for his sex workers, only to have him raise Roberts, the mother of the child he fathered.

Q During our discussion of the 2018 tax year, you mentioned that Hunter Biden was making business expenses for prostitutes?

A Yes, in some circumstances.

Q Could you give us a little bit more information on that? What was the nature of the — was he paying for — were they on the payroll? Was he paying for travel?

A In some situations, they were on payroll, and that was to get them health insurance in certain situations. There was —

Q So he’s paying for health insurance for his prostitutes?

A Not necessarily for — so let me go back and — so one of his girlfriends was on the payroll and — Mr. . Off the record, please, for a second. [Discussion off the record.]

MAJORITY COUNSEL 2. Back on the record.

Mr. X. So Lunden Roberts, she was on his payroll. She was not working. She was actually living in Arkansas pregnant with his child, and she was on his payroll.

There were expenditures for one of — he called it his West Coast assistant, but we knew her to also be in the prostitution world or believed to be in the prostitution world. And he deducted expenses related to her. She relates to the sex club issue.

Particularly given how much of this case relied on leads obtained from and tax returns updated in response to the paternity suit here, it is fairly remarkable that Whistleblower X raises Roberts in response to a question about prostitutes (though he quickly promoted her to being a girlfriend), particularly given corroboration for the claim that she was a personal assistant.

To be clear: I’m not saying she was anything but a personal assistant. Whistleblower X, however, raised her as an example in response to a question about prostitutes, and only later called her a girlfriend.

According to the NYT, Roberts’ father hunts with Don Jr, and Whistleblower X raised her in response to a question about sex workers.

But maybe Whistleblower X’s treatment of all these women as sex workers is not an accident.

Steve Bannon has been involved in this operation for years. I’ve heard a propagandist close to Bannon has been a source of leads for the investigation.

What if any ties to sex work among his personal assistants was not Hunter’s doing?

Whistleblower X Retreats from Hearsay … But Only His Bill Barr Hearsay

Whistleblower X’s presentation was riddled with hearsay (so much so, it raises real questions about his integrity as an investigator — in congressional testimony he proved unable to distinguish between rumor and fact). He repeatedly made claims about things that transpired with the investigation about which he has no firsthand knowledge.

That includes a claim he made about Bill Barr: Throughout Whistleblower X’s presentation, he claimed Bill Barr made the decision to send this tax investigation to Delaware.

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.

He didn’t change his story on follow-up from Minority Counsel.

Q Shortly after that, you talked about in March and April of 2018 that Attorney General Barr had made a decision to join the cases. And then you said that Delaware had opened the case. You said January of — is that 2019 or 2018 or 2020? I didn’t get the year.

A It was January of 2019 —

Q Okay.

A — that Delaware, U.S. Attorney’s Office, and FBI had opened up the investigation. They wouldn’t have been able to see in our IRS system that we had a case open.

Or another follow-up from Minority Counsel.

Q Okay. I wanted to go back to something that you mentioned earlier. You said that in March/April — and I think you meant 2018, but I’m not sure — that Bill Barr made the decision to join these cases together.

A So that would have been 2019.

Q 2019. And then you said that the case in Delaware was opened January of 2019? Is that correct?

A Yep.

Q Okay. And then this case was opened May of 2019?

A So the cases were joined May of 2019.

Q How was it communicated to you that Bill Barr joined these cases together?

A I believe it was my manager that told me. My manager would have been Matt Kutz.

Q How would he have known? Would that have come from Justice somewhere or where does that come from —

A From his leadership, most likely, when we were told — we were essentially told that we had go up to Delaware to meet them. And the decision was made at his direction, from what I recall.

Q “His” being Bill Barr?

A Yes.

Q Okay. Was there any other discussion of Bill Barr taking interest in this case that you heard of beyond it being joined?

A Not at all.

Q Was there any reporting up the chain that you know of to Bill Barr?

A No, not that I know of.

As noted, Whistleblower X attributed this claim to his then-supervisor Matt Kutz.

Curiously, Republican Chairs chose not to demand testimony from Kutz — who might explain why he understood the decision to consolidate the cases in Delaware came from the Attorney General — among the 12 from whom they’re demanding impossible testimony.

  • Lesley Wolf, DOJ
  • Jack Morgan, DOJ
  • Mark Daly, DOJ
  • Matthew Graves, DOJ
  • Martin Estrada, DOJ
  • David Weiss, DOJ
  • Stuart Goldberg, DOJ
  • Shawn Weede, DOJ
  • Shannon Hudson, DOJ
  • Tom Sobocinski, FBI
  • Ryeshia Holley, FBI
  • Michael T. Batdorf, IRS
  • Darrell J. Waldon, IRS
  • Secret Service employees who received the December 7, 2020, tip-off from FBI and all Secret Service employees who may have passed this information along to the Biden family or presidential transition team.

Anyway, Whistleblower X’s attorney, Dean Zerbe, began to cop on to how problematic it was that Barr had intervened the third time the Minority Counsel followed up about this.

MINORITY COUNSEL 2. How unusual, or in your experience, how frequently have you seen cases merged from the DOJ and IRS?

Mr. Zerbe. Let’s go off the record.

MAJORITY COUNSEL 3. Off the record. [Discussion off the record.]

BY MINORITY COUNSEL 2: Q That’s what I’m asking. How common is that circumstance? Sorry. Back on the record.

A I have never had that happen in my career.

Q Would you say it was something of an unusual occurrence for the Attorney General himself to order that?

A Looking back at it, I think he was trying to utilize the resources that he had. And I recall doing venue analyses for them to determine where proper venue was, to see if — but everything that I did said that we were — there’s no residence of Hunter other than his dad’s residence, his dad, President Biden, in Delaware. So his return preparers are in, I think it’s Maryland, his — at the time were in Maryland. So everything was pointing to outside of Delaware.

Q Well, when you say utilize his resources, is it usual for the Attorney General to take a specific interest in a case that maybe conservatively would be of, you know, $1 million in value to the U.S. Government, which, although obviously is a lot of money to the folks sitting here, is pretty small, small dollars relative to the entirety of the fiscal —

A Can ask you your question again? I apologize.

Q Does the Attorney General usually weigh in on cases where you’re talking about $1 million?

A I’ve never had that happen before.

Q To your knowledge, did Attorney General Barr weigh in, or seek updates on the investigation after those cases were joined?

A Not to my knowledge.

By this point, the Majority Counsel seems to have sussed out the problem with Billy Barr’s personal involvement in this. Because then that lawyer weighed in to cue up a response that maybe Barr was just approving high level prosecutions.

Q Okay. The discussion last round about the Attorney General Barr’s involvement, are you aware of the Justice Department policies and procedures that relate to sensitive investigative matters and political matters?

A I am not.

Q And do you know if the Attorney General, under the DOJ rules and procedures, has to make some of these decisions?

A I did not.

Q Would it surprise you if, in fact, the Attorney General does have to sign off on certain things when it relates to the son of a Presidential candidate or an incoming President-elect?

A It wouldn’t surprise me at all.

Now, it is totally plausible that Bill Barr was personally involved in sending a tax investigation to Delaware on which to hang foreign influence allegations that — thus far at least — have amounted to nothing. After all, Barr’s DOJ ordered up an investigation into John Kerry in SDNY. He ordered DC USAO to take a second stab at the Greg Craig prosecution, which flopped. He made John Durham Special Counsel so he could take two flimsy conspiracy theories to trial.

And he personally set up a parallel channel via which information channeled through Rudy Giuliani from known Russian spies could be ingested through the Pittsburgh US Attorney Office and sent on to the Delaware office.

That’s why Whistleblower X’s “supplement” is so interesting.

Both Shapley and Whistleblower X sent supplements complaining that they didn’t get to see the FD-1023 that Barr weighed in publicly to claim was totally reliable even though it came via Russian spy channels. That is, both used Barr’s public comments to intervene in the investigation from which they’ve already been removed.

In addition to doing that, though, Whistleblower X admitted — alone among all the unsubstantiated rumors he shared in his testimony — that after standing by his claim that it was Bill Barr who consolidated the cases in Delaware in four different exchanges, he was no longer sure that was the case.

After having been given an opportunity to review the transcript of his interview, Mr. X thought it would be helpful for the work of the Committee to clarify and update the transcript through this letter.

The clarification: Mr. X recalls in his testimony that he was told (roughly five years ago) by a supervisor that it was then-Attorney General William Barr who directed that the proposed case be merged with an ongoing case in Delaware. Mr. X is confident he was told by his supervisor that the merging of the cases was at the direction of an official at the Department of Justice. However, on further reflection, Mr. X cannot definitively state that his then-supervisor said that that the Department of Justice official directing the merger of the cases was AG Barr. Separate from that conversation with his supervisor, Mr. X has no independent knowledge of who at the Department of Justice directed that the cases be merged.

Someone decided that it is not helpful to the Republican cause — or to Whistleblower X’s role as nascent hero of the far right — for Bill Barr to have intervened so directly in this case.

And, as noted, Republican Chairs are making sure they don’t learn anymore details about Barr’s role either.

Republicans think they’ve got a great scandal going here. But Whistleblower X’s testimony inadvertently makes the whole thing sound like a rebirth of the manufactured Eliot Spitzer scandal, only this time with the direct involvement of the Attorney General.

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Republican House Chairmen Are Resorting to Immunizing Crimes to Gin Up Their Fake Scandals

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Even before Abbe Lowell wrote a long letter trying to make this plain for obtuse journalists, it was clear to me that Republican House Chairmen are resorting to immunizing crimes in an attempt to gin up scandals to use against Joe Biden.

It’s right there at the start of Gary Shapley’s testimony.

IRS agents are prohibited from leaking details from private tax returns.

To permit Shapley to do so, the (unnamed) House Ways and Means Majority Counsel first laid out that Shapley was sharing information as a whistleblower, effectively waving a magic wand to let Shapley ignore this prohibition.

MAJORITY COUNSEL 1. Finally, I’d like to note the information discussed here today is confidential. As an IRS agent, I know you understand the significance of our tax privacy laws. Chairman Smith takes our tax privacy laws extremely seriously, and we have worked diligently to make sure that you can provide your disclosures to Congress in a legal manner and with the assistance of counsel.

As I’m sure you know, 26 U.S.C. Section 6103 makes tax returns and return information confidential, subject to specific authorizations or exceptions in the statute.

The statute anticipates and provides for whistleblowers like yourself to come forward and share information with Congress under Section 6103(f)(5).

Specifically, that statute permits a person with access to returns or return information to disclose it to a committee referred to in subsection (f)(1) or any individual authorized to receive or inspect information under paragraph (4)(A) if the whistleblower believes such return or return information may relate to possible misconduct, maladministration, or taxpayer abuse In your position at the IRS, do you or did you have access to return or return information covered by Section 6103 of the Internal Revenue Code?

Mr. Shapley. Yes.

MAJORITY COUNSEL 1. Have you had access to return information that you believe may relate to possible misconduct, maladministration, or taxpayer abuse?

Mr. Shapley. Yes.

MAJORITY COUNSEL 1. Do you wish to disclose such information to the committee today?

Mr. Shapley. Yes, I do.

And, as Lowell noted, Shapley then answered a bunch of questions, some of which were unrelated to his core allegations. Then, days after the Hunter Biden settlement was out, House Ways and Means Chair Jason Smith released Shapley’s transcript, after which Shapley has run to the right wing media to repeat his allegations.

Shapley’s media appearances might constitute a crime. But how is Merrick Garland’s DOJ going to prosecute it, now that the right wing has made Shapley a hero for floating the latest manufactured scandal about Hunter Biden? Hell, Shapley is going to be the cornerstone of an attempt to impeach Garland, not for prosecuting Shapley for breaking the law, but because Garland let a Trump appointee prosecute the President’s son unimpeded.

That’s Garland’s sin: Letting a US Attorney appointed by Donald Trump prosecute the son of the most powerful man in the world, something that should be a remarkable, however sober, feat of due process, but which Republicans want to undermine because a Republican US Attorney didn’t find enough crime for their needs, because they need this story to go on and on and on.

In his letter, which was addressed to Chairman Smith, Lowell also pointed out what was clear to both me and Andrew Prokop: One or both of these IRS so-called whistleblowers may be source(s) for the biennial right wing leak to Devlin Barrett, leaks that always appear just before and are intended to influence an election, leaks that in this case got the IRS team removed from the investigation.

Right wingers seem to like Devlin because he can be trusted to write down what they tell him to write, rather than write what the evidence they describe would indicate. In 2020, for example, Devlin read an interview report, which was improperly redacted, and which made it clear that a right winger on the Mike Flynn case bullied a woman at work and was willing to make claims about which he had no first hand knowledge, and instead of reporting that, Devlin claimed that it indicated misconduct in the Mueller investigation. Last fall, Devlin took evidence that some investigators who were either ignorant of or ignoring known details about the documents seized at Mar-a-Lago and instead tried to preempt investigative conclusions by proclaiming that Trump didn’t exploit the documents he stole for personal gain. In 2016, Devlin wrote the story that would eventually get Andy McCabe fired — yet another scandal that fed itself for years — because he deigned to correct the false claims of people trying to impugn Hillary before the election.

In the case of investigators on the Hunter Biden team, the pre-election leak at issue here, Devlin took a report making clear that investigators had not substantiated any of the foreign influence peddling claims about Hunter Biden and instead let agents use him to pressure David Weiss to charge Hunter in a certain way and do so before the election.

Regurgitating right wing law enforcement claims of scandal credulously is what Devlin seems to do best. “If it’s what you say, I love it, especially later in the campaign season,” seems to be Devlin’s journalistic ethos.

And it’s not just tax law that Devlin’s sources violated by leaking details about the Hunter Biden investigation. As Lowell notes, it may well be grand jury information — something Lowell alleges was also included in Shapley’s disclosures (though about this I’m less convinced).

As I said, if one or both of these men do turn out to be Devlin’s source, then the scandal created here will make it far harder to prosecute them, just as Jim Jordan has been trying to reward several other people — FBI agents — suspected of leaks politicizing the FBI by retroactively claiming they’re whistleblowers after a disciplinary process began.

Then, Republicans are using the confidentiality guaranteed as part of due process to create more scandal. In the wake of the transcript release, Republicans released a letter demanding more testimony from people who would not normally, and won’t now, be able to comply, especially given that this is an active prosecution. The WaPo, which played a central role in this false scandal in the first place, reported that as “news,” without explaining to readers that of course the recipients won’t comply and won’t be able to and shouldn’t be able to, in the same way people investigating Donald Trump should not be and are not running to Congress to describe what they discovered in Melania’s underwear drawer.

This is a stunt. It should be reported as a stunt. Until it is reported as a stunt, Republicans will continue to corrode democracy, using their majority to do nothing but manufacture political dirt.

WaPo offered no context in their report on this manufactured story (including noting that Trump was accorded the same treatment as some of the things being spun as distinct). It’s just pure pavlovian reaction, taking dogshit from Republicans who have made it crystal clear for six months they plan to do nothing — nothing!! — else with their majority than simply manufacture scandals, and packaging up obvious dogshit as if it were news. Notably, there’s also no update (why update a story manufactured for a pre-holiday Friday release?) to note that US Attorney David Weiss (originally identified as an AUSA, which betrays ignorance about a key detail of the way DOJ guards independence and took special measures to do so here) did respond to the letter, predictably saying that he can’t violate the confidentiality that Shapley did, but also reiterating his past claims that he was in charge of the decisions on this case.

Why ruin the clickbait scandal with actual facts?

Then, finally, this manufactured scandal moves onto the next step, in which WaPo claims to be helpless to assess these contested claims — in which several US Attorneys have repeatedly debunked claims about topics that Shapley was not in a position to know — so instead suggests that Lowell’s letter will instead just create a difference of opinion.

Here’s how the WaPo — again, which is one key reason there is a scandal here in the first place — described the manufactured scandal that Republicans have not hid was a manufactured scandal, at all.

Lowell’s letter battling with Congress illustrated that while the president’s son appears close to resolving the federal misdemeanor charges — and this week also settled a separate child support case — he still faces a number of challenges that could yield further headlines. The action is set to move from the courthouse to Capitol Hill, as Republicans delve into Biden’s business dealings and scrutinize the Justice Department’s handling of the criminal investigation.

[snip]

Lowell’s salvo signaled the beginning of what could be a newly intense phase of the battle for public opinion between the president’s son and congressional Republicans.

It’s all about the headlines to the WaPo that wittingly made it headlines in the first place.

Lowell’s letter is not “battling with Congress.” Lowell’s letter is not “battl[ing] for public opinion.

He’s laying out some basic facts, not only answering some questions that have floated for months about Hunter Biden’s conduct, but also pointing out the crime that WaPo of course is not going to report on, because of course they cannot.

Rather than assess the facts, WaPo instead resorts to both-sides glee — this scandal, the one they kicked off, will continue forever!!!

I don’t know what kind of person goes into journalism only to profess utter helplessness to weigh the credibility of various sources, or even whether someone was in a place to know what he is claiming he knows. I don’t know why someone would go into journalism only to willingly treat people like James Comer and Jim Jordan as credible, when even Steve Doocy keeps mocking them for their flimsy claims, when they don’t even try to hide what they’re up to! I don’t know what kind of credulity you would need to immediately treat a request for testimony designed to be impossible as big breaking news.

I do know this: in 2014, some corrupt oligarchs decided to put Joe Biden’s son in a place where, no matter what he did, they could use it to their future advantage. It was stupid for him to take that offer, but let’s all acknowledge it was a set-up from the start. I know that no later than 2018, other corrupt oligarchs, some with clear ties to Russian spooks, started pitching Hunter Biden as a scandal, all wrapped up for Donald Trump’s personal consumption. I know that ever since, Republicans have been milking the addiction recovery of a private citizen relentlessly. I’m not sure a private figure has ever been scrutinized so closely and relentlessly by Congress, including past mob or union corruption investigations that actually served the public interest. I know that Trump’s own tax scandals, Ivanka and Jared’s influence peddling, Trump’s corrupt oligarch ties, Trump’s pardons — including of far bigger tax cheats than Hunter Biden — have gotten nowhere near this level of scrutiny, and almost no one is making the GOP’s base hypocrisy here the story.

I know that Hunter Biden has made a ton of mistakes in his life, and I admire that he is doing the hard work to turn his life around. I can’t imagine trying to do it at a time when millions of people have made him their personal plaything for scandal.

What I don’t understand is how self-respecting people can so willingly play a part of the effort to rip Hunter Biden to shreds solely because Republicans choose to run on wildly hypocritical scandal-mongering rather than policy. You’re letting half-wit bozos manipulate you like children, and you’re positively gleeful about it! Do you not understand — or care — what a grotesque project you’re playing useful idiots for?

Back in 2020, Zeynep Tukfeci wrote what remains one of the most insightful pieces on the way that Republicans have milked Hunter Biden’s legal challenges and addiction for their political ends.

[T]raditional media is, still, terrible at recognizing how these hack-and-leaks are, in fact, as much about blackmailing political candidates as they are about politically relevant allegations.

That’s right, there’s a blatant blackmail attempt right in front of our eyes, and we’re not recognizing it for what it is.

[snip]

Is the Hunter story newsworthy, in the sense that it should be reported on? Yes, of course. Should Joe Biden be asked about some of the allegations? Yes, of course. (Note the some).

But the real questions we need to ask of ourselves are these: what should be asked of Biden? How much media attention should be given, to what parts of the story? What parts of the story are very important,, and not being covered?

This has been an ongoing theme in my work: In the 21st century, it is attention, not speech, that is restricted and of limited quantity that the gatekeepers can control and allocate. In the digital age, especially in countries like ours, there is no effective way of stopping people from publishing or talking about this story through traditional censorship—but there are many ways to regulate how much attention it gets.

[snip]

In 2016, the media got hacked—not in the sense of a computer breach, but that their unreflective habits allowed them to be played. They spent their time giving disproportionate attention to gossip and privacy violations that were illegitimate—ironic, in my view, since they barely covered the newsworthy aspects of that hack.

Before the 2016, election, in a New York Times op-ed, I called this whistle-drowning. Whistle-blowing is designed to focus our attention on something that is being kept from the public, something that is in the public’s interest to know and evaluate. Whistle-drowning is designed to flood the public a flurry of allegations that make it very difficult to concentrate on the important questions facing us.

[snip]

If a story about Hunter Biden deserves attention and not getting it yet, it is this: the Hunter Biden story, as it has happened, is a blatant attempt to blackmail and rattle his father, who is, of course, concerned over his son’s struggles with drug addiction. In that context, and with appropriate diligence, allegations of influence-peddling should be investigated, with proper reporting, not innuendo.

[snip]

The media is still under some illusion that fairness and balance means devoting equal attention to allegations about, and stories potentially damaging to, both candidates–rather than devoting proportional attention to allegations and stories according to their credibility, scale, scope and importance.

She calls this a hack-and-leak (this was before it became clear that the “laptop” was instead an alleged theft and leak), but a better description is just trolling. Indeed, what Comer and Jordan — and now Smith — are using their gavels for is no different than what Microchip, one of the trolls who played an instrumental role in getting people to care about John Podesta’s risotto recipe rather than Donald Trump’s racism and emotional instability in the 2016 election, testified he succeeded in doing in 2016.

Q What was it about Podesta’s emails that you were sharing?

A That’s a good question.

So Podesta ‘s emails didn’t, in my opinion, have anything in particularly weird or strange about them, but my talent is to make things weird and strange so that there is a controversy. So I would take those emails and spin off other stories about the emails for the sole purpose of disparaging Hillary Clinton.

T[y]ing John Podesta to those emails, coming up with stories that had nothing to do with the emails but, you know, maybe had something to do with conspiracies of the day, and then his reputation would bleed over to Hillary Clinton, and then, because he was working for a campaign, Hillary Clinton would be disparaged.

Q So you’re essentially creating the appearance of some controversy or conspiracy associated with his emails and sharing that far and wide.

A That’s right.

Q Did you believe that what you were tweeting was true?

A No, and I didn’t care.

Q Did you fact- check any of it?

A No.

Q And so what was the ultimate purpose of that? What was your goal?

A To cause as much chaos as possible so that that would bleed over to Hillary Clinton and diminish her chance of winning.

It’s about chaos, not facts. Manufactured conspiracy can and is designed to distract from the fact that there’s no there there. It is designed to make voters irrational. It is designed to make democracy fail.

Over time, Shapley’s claims, as well as any misconduct allegations about Devlin’s sources, will be reviewed — but anyone with the most basic understanding of how due process works in the country knows that that’s not going to happen immediately, also knows that Jim Jordan and James Comer are the last people you’d ask to conduct a competent review of anything.

And so the willingness to bow to Comer and Jordan and Smith’s demands that it be immediate and relentless is just willingness to be used, manipulated, to perpetuate the kind of manufactured conspiracy that is designed to kill democracy.

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The Evolving Robert Costello – Steve Bannon Timeline

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Robert Costello’s law firm, Davidoff Hutcher & Citron, is suing Steve Bannon.

Can you blame them? According to the complaint, Bannon has stiffed the firm on $480,487.87 out of $855,487.87 they’ve billed him.

I’m interested in the complaint, though, for something other than the details of what a cheapskate Bannon is.

Here’s how the complaint describes the firm’s work for Bannon.

From on or about November 2020 through on or about November 2022, DHC provided legal services on behalf of the Defendant regarding several matters that included, but not limited to, a federal action captioned, United States v. Stephen Bannon, 20 Cr. 412 (AT) (S.D.N.Y.) which was dismissed against Defendant subsequent to a presidential pardon of him that was secured through the aid of DHC, represented Defendant with regards to a subpoena issued by the U.S. House Select Committee to Investigate the January 6th Attack on the United States Capitol (“Subpoena”), subsequently represented Defendant in response to a criminal contempt proceeding captioned, United States v. Stephen K. Bannon, 21Cr. 670 (CJN) (D.D.C.) regarding that Subpoena, and represented Defendant in a case brought by the former Manhattan District Attorney Cyrus Vance, captioned In the Matter of the Application of Cyrus R. Vance, Jr. (collectively the “Legal Services”)

That mostly tracks what we know about Costello’s representation of Bannon. He publicly took over representing Bannon in the Build the Wall case on December 11, 2020 after Bannon’s prior criminal defense attorney, Bill Burck, fired him for threatening to execute Anthony Fauci and Chris Wray.

Costello represented Bannon in his contemptuous refusal to show up before the January 6 Committee and invoke Executive Privielge, and participated in two discussions with the government that the government treated as material to the contempt case against Bannon. There was a brief moment after Bannon was indicted on November 12, 2021, where it looked like David Schoen and Evan Corcoran would represent Bannon, alone. But on December 2, Costello filed to join the case, setting off a long discussion about whether Costello would be a witness or a lawyer on the case. That charade continued until July 2022, when Costello decided he might need to be a witness after all. See this post for some of that timeline.

It is true that Costello represented Bannon in the early period of NY State’s investigation into Bannon for the same fraud for which he was pardoned in the federal Build the Wall case. Though the November 2022 date roughly coincides with Bannon’s sentencing in October 2022.

Again, it mostly checks out.

The reason I’m interested, however, is that back in July 2022, when Costello was withdrawing from the Bannon contempt case, he gave a different timeline for his representation of Bannon, indicating that it went back two years earlier than the timeline DHC has laid out.

I am an attorney and Partner in the firm of Davidoff, Hutcher & Citron, LLP located at 605 Third Avenue, New York, New York. For the past 49 years I have been admitted to the bar of the State of New York, the Southern and Eastern Districts of New York, the Second and Third Circuit Courts of Appeals and the United States Supreme Court. I have been counsel to the above listed Defendant, Stephen K. Bannon on a number of different matters for the past three years. I am admitted to the bar of this District by way of pro hac vice motion. I have been co-counsel to Mr. Bannon throughout these proceedings as well as in connection with all interactions with the Select Committee which preceded the filing of Contempt of Congress misdemeanor charges in this Court. [my emphasis]

I noted at that time that it was a different timeline than was publicly known, the timeline that DHC lays out in its complaint.

Still, there may be a ready explanation for this discrepancy too: That Costello is including the period when he played a key role in the “Hunter Biden” “laptop” operation in the time period he represented Bannon, but DHC is not.

Even so, that timeline is a bit hazy, given some variation regarding whether he reached out in 2019 or 2020 in Mac Isaac’s story.

In any case, the discrepancy between DHC’s story and Costello’s about the length of time he represented Bannon may be of interest to Abbe Lowell, as he asks the Feds to investigate — among others — Bannon, Rudy Giuliani, and Costello.

These disputes are interesting for another reason. As the Daily Beast laid out, Bannon has also been stiffing Evan Corcoran. And his third lawyer from the contempt case, Schoen, said last month he can no longer work with him in the NYS Build the Wall charges.

Even after the irreparable split in NYS, Schoen remained on Bannon’s appeal, where he has been stalling and where briefing won’t be done until May. Any appeal would be premised on Bannon’s understanding of the expectations surrounding Executive Privilege, which would seem to rely on Costello’s testimony.

I have no idea where this is going. Perhaps Hunter Biden’s lawyer, Lowell, can sort it out.

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