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Maryellen Noreika and Mark Scarsi’s Schrödinger’s Cat

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David Weiss invokes Maryellen Noreika in the very first sentence of his Los Angeles — but not his Delaware — response to Hunter Biden’s immunity bid (not to mention, extrinsic evidence that, per his position that the diversion agreement was unambiguous, should be irrelevant).

The defendant has moved to dismiss the indictment returned by the grand jury in this district on the ground that a proposed diversion agreement presented to the United States District Court for the District of Delaware on July 26, 2023, which the district court rightly referred to as a “proposed agreement,” which required the approval of the Chief United States Probation Officer to enter into effect, which she expressly declined to give, see Exhibit 1, and as to which the district court in Delaware “deferred” a decision on accepting, nonetheless is in effect and confers “sweeping” immunity on the defendant in this case. [my emphasis]

The filing uses the word “proposed” 43 more times, almost all discussing either the diversion agreement or the tax plea agreement and in one case, including it in brackets within a quote of Leo Wise’s own words, effectively putting what Weiss claims Noreika said into Wise’s mouth even though Wise didn’t say it himself.

Only, Weiss misquotes what Judge Noreika said.

The word “proposed” was uttered once in the failed plea hearing, referring to both the plea and the diversion. Judge Noreika didn’t call either document a “proposed agreement;” she instead described “what is being proposed.” And before she used that word, “proposed,” she twice called the documents “agreements,” with no modifier.

THE COURT: Now, we have two cases and two agreements and I understand that the Diversion Agreement is not something that is typically before the Court, but you all did send it to me so I do want to talk about that a little bit. There are some provisions in those agreements that are not standard and are different from what I normally see, so I think we need to walk through these documents and get some understanding of what is being proposed so that I can give due consideration to the determination that you all are asking me to make. So I want to start with Criminal Action 23-274 involving the tax charges. [my emphasis]

In Weiss’ Delaware response, he only places that word in Judge Noreika’s mouth on the second page, and in full context, and only uses the word proposed 33 times. He never misquotes Noreika to Noreika.

In context in the plea hearing, Noreika was probably referring not to either document as “proposed.” She was probably referring to the way the two documents worked together and the expectations the two documents, working together, would put on her and Delaware head of Probation, Margaret Bray.

This immunity bid, along with three other motions to dismiss and a discovery motion, have now been fully briefed before Judge Noreika for 66 days. During those 66 days, both sides briefed the same issues before Judge Scarsi, he held a motions hearing, and issued a decision — a decision that would mean representations on which she made decisions last year are no longer valid.

I described the other day that Noreika appears to be frozen in uncertainty about what to do about these motions. And since Judge Scarsi issued his weird ruling on this same motion on Monday, neither side has noticed Noreika of the decision. It’s as if everyone is hunkering down waiting for Noreika to rule to see how it affects all these other moving parts.

I want to propose something about this dispute, about what is making it so difficult — for Noreika, especially — to decide. As Noreika herself noted in that passage from which David Weiss misquoted her, Judges don’t usually get involved in diversion agreements. But she did here. And in an effort to get out of that diversion agreement, Weiss has made Noreika’s intervention into the diversion agreement the subject of the dispute.

Noreika did not approve the plea on July 26 of last year for two reasons.

First, she was uncomfortable with the role she played in the diversion agreement, which all sides agreed she had no role in approving.

The immunity provision, for all crimes — gun, drug, and tax — was in the diversion agreement, not the plea agreement, but was cross-referenced in the plea agreement.

Both sides told her that she was only approving the plea, but since they had given her the diversion agreement, she inquired about how her role would work.

THE COURT: All right. Now at this point I would normally ask Mr. Biden how he pleads, but as we’ve already discussed, the Diversion Agreement is out there in a felony case, it is cross-referenced in the Memorandum of Plea Agreement. The Plea Agreement is cross-referenced in the Diversion Agreement, so before I ask him how he pleads, I need to understand — well, ask him how he pleads or decide if I can accept the Plea Agreement, I need to understand the Diversion Agreement.

So the felony gun charge here is a bit unusual, and we don’t usually make diversion agreements public. I don’t usually see a diversion agreement as the parties up here have hinted, but in fact you all did send it to me and it is referenced in the agreement that is before me in the tax case.

She objected to the way the diversion agreement included her as a finder of fact in case of a breach of the agreement.

THE COURT: All right. Thank you.

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

One provision in particular stands out to me, and that is paragraph 14. That paragraph says if the United States believes that a knowing material breach of this agreement has occurred, it may seek a determination by the United States District Judge for the District of Delaware with responsibility for the supervision of this agreement.

It then goes on to say that if I do find a breach, then the government can either give the Defendant time to remedy the breach or prosecute him for the crime that is the subject of the information or any other that falls within the language of the agreement. Do I have that understanding correct?

[snip]

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

[snip]

THE COURT: I’m concerned that that provision makes me a gatekeeper to criminal charges and puts me in the middle of a decision as to whether to bring a charge. And we already talked about separation of powers and that choice as to whether to bring charges is not — that’s the executive branch, not the judicial branch, so is this even constitutional?

MR. CLARK: I believe it is, Your Honor, because what the structure makes clear is that Your Honor is just finding facts. [my emphasis]

Importantly, all three sides — Hunter Biden’s team, David Weiss’ team, and Judge Noreika — made comments at this plea hearing that were internally inconsistent.

In Judge Noreka’s case, some of those comments pertained to whether her role was presiding over just the plea, or also the diversion agreement, which both parties to it said she had no authority to approve.

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

So this is what I am going to do. These agreements are not straightforward and they contain some atypical provisions. I am not criticizing you for coming up with those, I think that you have worked hard to come up with creative ways to deal with this. But I am not in a position where I can decide to accept or reject the Plea.

[snip]

THE COURT: I certainly understand what — if it’s a plea under subsection (c)(1)(B), I am not going to just agree with you as to the limits of my role. My problem is I am not — I am not sure, and I need to understand the propriety, it may very well be that it is appropriate, but as I said, it did catch my attention, you throw me in there, Judge, you’re the gatekeeper and then you take me out of the other aspects of the — you throw me into the Diversion Agreement and then you take me out of the Memorandum of Plea Agreement.

So I cannot accept the Plea Agreement today.

Even though the government did repeatedly tell her that the diversion agreement was only between the parties, they have also pointed to her docket minutes in support of their argument that the diversion had not come into effect.

The Court deferred a decision on the plea and pretrial diversion agreement.

But here’s the thing: If Noreika believes it is a separation of powers violation for Article III to be involved in a diversion agreement, then the diversion agreement should not be in that docket minute. It should, instead, say something like she was deferring a decision on the plea because of concerns about the diversion agreement.

I have argued that Judge Mark Scarsi misapplied Schrödinger’s cat paradox to his own weird decision on the diversion agreement. But one thing that happened here is that someone outside to the diversion agreement observed it with the result that the status of it changed. We are still debating on the status of that contract to which she is not a party because of her interventions.

And now Judge Noreika has been asked to rule on whether that contract that became a not contract because of her observations on it is a binding contract.

But that brings us to the other reason Noreika refused to approve the plea. Noreika didn’t accept the plea because Leo Wise told her there was an ongoing investigation.

THE COURT: Is there an ongoing investigation here?

MR. WISE: There is.

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

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

This, right at that moment, was a separate breach of the agreement between the parties, and deserves more attention. As I have laid out, Weiss has had five different opportunities to contest Abbe Lowell’s representation that on June 19 of last year, David Weiss’ office told Chris Clark that there was no ongoing investigation. Weiss has waived the opportunity to contest that. Leo Wise’s claim, at the hearing, was a breach of those representations.

And then, specifically referencing Wise’s affirmation that there was an ongoing investigation, Noreika asked if FARA charges could be charged and Leo Wise said they could, while Hunter and his attorneys believed that was prohibited by the diversion agreement. Along the way, Wise misrepresented the nature of the agreement, suggesting that Noreika would sign the diversion agreement.

MR. WISE: Because by the terms of the Plea Agreement, the only function, the Diversion Agreement — well, it has no function but the parties negotiated that their view, and it’s their view, probation can take a different view, Your Honor can take a different view, their view is the firearms offense should not be considered relevant conduct for calculating the guidelines related to the tax offense, that is all that 5(b) says. It does not incorporate the paragraph 15 or any part of the Diversion Agreement, it simply says our view is the Diversion Agreement, the firearm offense should not be considered relevant conduct in calculating the guidelines. I think practically how this would work, Your Honor, is if Your Honor takes the plea and signs the Diversion Agreement which is what puts it into force as of today, and at some point in the future we were to bring charges that the Defendant thought were encompassed by the factual statement in the Diversion Agreement or the factual statement in the Plea Agreement, they could move to dismiss those charges on the grounds that we had contractually agreed not to bring charges encompassed within the factual statement of the Diversion Agreement or the factual statement of the tax charges.

MR. CLARK: That’s my understanding, Your Honor, we would be enforcing a contract with the Department of Justice.

THE COURT: I don’t understand how you have an agreement not to pursue other charges in the case, the misdemeanor case, and you say that is not part of his Plea Agreement.

MR. WISE: Because the Plea Agreement does not include that.

THE COURT: All right. So let’s talk a little bit more about this. To the extent that the agreement —
you can sit down. To the extent that the agreement not to prosecute is promised, do the parties have some understanding what the scope of that agreement is?

MR. WISE: Yes, Your Honor.

THE COURT: No, tell me, like specifically what does it include. You said that there is an investigation, I don’t know what that is, but you must know that if there are particular charges that could be brought based on the facts that are there.

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

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

MR. WISE: Yes.

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.

This was earlier in the hearing; it precedes Noreika’s concerns about the diversion agreement. But it is one reason she was so concerned about her inclusion in the diversion agreement: because the two parties disagreed on the scope of the immunity provided.

Or rather, because Leo Wise had already changed the terms of the agreement, to include an ongoing investigation that Chris Clark had been assured did not exist.

We can now be quite sure what that ongoing investigation is: David Weiss reneged on the terms of the agreement, claiming there was an ongoing investigation when his office had previously assured Clark there was not, after members of Congress made Alexander Smirnov’s FD-1023 public. Faced with renewed attention on it, David Weiss was chasing the lead he was ordered to investigate in 2020, chasing it only to find out it was a false claim of bribery against Joe Biden.

When this dispute started back in December, how these parts fit together was not clear. Since, it has become clear that having been ordered to investigate the FD-1023 days after Donald Trump pressured Bill Barr in October 2020, under pressure from Congress, Weiss reneged on the assurances his office had given Clark in June 2023, which was the understanding on which the diversion agreement was signed, in order to be able to chase the Smirnov lead.

And now Weiss is presiding over an investigation into how Smirnov’s false claims came to be mainstreamed into the investigation of Hunter Biden in which he is a witness, a wildly unethical position to be in.

But by all appearances that is what explains the two breaches here: first, to Leo Wise reneging on the terms agreed before he was party to this prosecution, and then, to Wise’s refusal to brief the diversion agreement that Judge Scarsi says is binding, but instead to strip it of all immunity altogether.

Judge Maryellen Noreika’s decision on the diversion agreement and on the circumstances that led Weiss to renege on assurances he had given Clark is quite different than Scarsi’s. That’s true, in part, because by intervening in a signed contract to which she was not party, she led to the abrogation of that contract.

And then, because she took steps to ensure the rights of Hunter Biden — to ensure that the misdemeanors he thought he was facing were really what he was facing — prosecutors used that opportunity to slap on a bunch of felonies that, evidence before her makes quite clear, they had never bothered to investigate in the years they had investigated Hunter Biden.

I have no idea how she’ll ultimately rule. If she hoped that Scarsi would come up with a solution she could adopt, the prior representations about the status of the agreement, on which she based some decisions last year, may preclude her from simply adopting his weird solution. But she also faces a different legal and ethical position vis a vis the contract than Scarsi, because prosecutors took advantage of her good faith efforts to protect Hunter’s rights as a way to renege on the agreement altogether.

The Import of Judge Mark Scarsi’s Truncated Klamath Quote

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I’m still working on a long post on some of the things that may make Judge Mark Scarsi’s order denying all eight of Hunter Biden’s motions to dismiss vulnerable on appeal.

But I wanted to elaborate on a point I made in comments in this post. In the section of his order ruling that Hunter Biden’s diversion agreement had been executed (because it was signed by the only parties to the agreement) but not required to put into effect (because it was not signed by probation), Judge Scarsi truncated a citation to a precedent he relies on.

To justify only doing a close reading of the meaning of “approve” and “execute,” Scarsi says the Diversion Agreement is unambiguous. He cites to this 9th Circuit precedent, Klamath v Patterson.

The Court need not consult extrinsic evidence because the Diversion Agreement is unambiguous with respect to the issues for interpretation outlined above.5 But both parties miss the mark with their proffered interpretations in some respects. See Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d 1206, 1210 (9th Cir. 1999) (“The fact that the parties dispute a contract’s meaning does not establish that the contract is ambiguous . . . .”).

5 Accordingly, the Court does not reach Defendant’s argument that the Government should be estopped from denying the validity of the agreement or the Probation Officer’s approval. (Immunity Mot. 18–19.) The Diversion Agreement is unambiguous, and the Government’s position on its interpretation cannot change its meaning.

Only, he truncated the quote. Here’s what the rest of the sentence he cites says:

The fact that the parties dispute a contract’s meaning does not establish that the contract is ambiguous; it is only ambiguous if reasonable people could find its terms susceptible to more than one interpretation. [my emphasis]

David Weiss also cited to (an earlier sentence in) this very same paragraph.

As the Ninth Circuit explained in Klamath:

A written contract must be read as a whole and every part interpreted with reference to the whole, with preference given to reasonable interpretations. Contract terms are to be given their ordinary meaning, and when the terms of a contract are clear, the intent of the parties must be ascertained from the contract itself. Whenever possible, the plain language of the contract should be considered first.

So both Weiss and Scarsi adopt Klamath as the standard. And Klamath says that if reasonable people could find its terms susceptible to more than one interpretation, then the contract is ambiguous.

As a side note: Neither Weiss and Scarsi adhere to their claim the contract is unambiguous. Weiss bitched mightily that Abbe Lowell submitted the discussions of the plea deal (Lowell relies on these for the selective and vindictive argument too, which is important for reasons I’ll return to), and told Judge Scarsi that these submissions are irrelevant.

Even though the defendant takes the position that the agreement is unambiguous, he nonetheless chose to submit 187 pages of extrinsic or parol evidence, including an affidavit from former counsel and multiple emails and other communications between defense counsel and the former prosecution team. Dkt. 25-5. “The reviewing court must not look towards extrinsic or parol evidence to create an ambiguity in a written agreement that is otherwise clear and unambiguous.” In re Zohar III, Corp., 2021 WL 3793895, at *6 (D. Del. Aug. 26, 2021). Because the parties agree the diversion agreement is unambiguous, these submissions are irrelevant.

But then Weiss submitted his own extrinsic submission: a declaration from AUSA Ben Wallace describing how he asked Margaret Bray to sign the diversion agreement after Hunter and Leo Wise did (and using the word “draft” four times, which is patently nonsense), but she did not.

Judge Scarsi depends on this declaration in the passage where he argues only a signature from Margaret Bray can represent approval — even while he misrepresents an email from the very same Ben Wallace.

Even if the Diversion Agreement required approval by the Probation Officer, Defendant argues in the alternative that the Probation Officer’s approval of the agreement might be inferred from her publication of a pretrial diversion report that recommends a 24-month term of pretrial diversion. (Immunity Mot. 16–18; see Machala Decl. Ex. 5, ECF No. 25-6.) Defendant’s theory of approval of the Diversion Agreement finds no purchase in the text of the agreement. The means by which the Probation Officer might approve the Diversion Agreement are not expressly stated, but the agreement provides but one reasonable, obvious method of approval: affixation of the Probation Officer’s signature on the “APPROVED BY” signature block set aside for her. (Diversion Agreement 9.) The agreement is not reasonably susceptible to an interpretation that the Probation Officer could manifest her approval by issuing a pretrial diversion recommendation consistent with the Diversion Agreement, let alone by any means other than signature on the line reserved for her.9

Defendant’s theory is also at odds with uncontroverted facts before the Court. In response to Defendant’s motion, the Government submitted a declaration from Assistant United States Attorney Benjamin J. Wallace, who testified that on the morning of July 26, 2023, the Probation Officer declined to sign the Diversion Agreement. (See Wallace Decl., ECF No. 35-1.) Defendant did not dispute this representation in his reply memorandum, and while Defendant’s counsel tried to minimize this testimony at the hearing, his arguments were unpersuasive.

9 Defendant’s argument would fail on its merits even if the Probation Officer could have manifested her approval by issuing a pretrial diversion report. Defendant submits that the Probation Officer provided a “letter to counsel . . . enclosing her recommendation in favor of the Diversion Agreement and copy of the Agreement.” (Immunity Mot. 18.) The report filed with this Court does not reference or attach a copy of the agreement at all. (See generally Machala Decl. Ex. 5.) That said, the report filed with the motion is incomplete and apparently redacted. Although some of the recommended conditions of pretrial diversion align with the conditions discussed in the Diversion Agreement, they do not mirror each other perfectly. (See, e.g., Machala Decl. Ex. 5 § 38(5) (requiring as a condition of pretrial diversion Defendant’s consent to entry into a criminal background check system, a condition not discussed in the Diversion Agreement).) Further, another document in the motion record indicates that the parties modified the Diversion Agreement after the Probation Officer issued her report in an effort to “more closely match” the report. (Clark Decl. Ex. T (providing July 20, 2023 revisions to Diversion Agreement); cf. Machala Decl. Ex. 5 (dated July 19, 2023).) The Court resists Defendant’s ouroboric theory that the Probation Officer manifested approval of an agreement the parties changed in response to the purported approval. Further, the Court doubts the Probation Officer manifested approval of the revised version of the Diversion Agreement passively by being party to an email circulating the updated draft. (See Clark Decl. Ex. T.)

As noted in my last post, the email in question doesn’t say the parties altered the diversion agreement. It says that the “parties and Probation have agreed to those revisions.” Scarsi simply miscites what the extrinsic evidence he relies on says.

Mark:
The parties and Probation have agreed to revisions to the diversion agreement to more closely match the conditions of pretrial release that Probation recommended in the pretrial services report issued yesterday. Attached, please find clean and redline versions of the diversion agreement.
Best,
Benjamin L. Wallace
Assistant U.S. Attorney

Ben Wallace’s declaration — particularly his repetition of the word “draft” — conflicts with the email he sent back in July. In July he said probation “agreed” to the diversion agreement and in March he said Margaret Bray did not approve it. That word “agreed” — the last thing that Hunter Biden would have seen before the plea hearing — is what would have informed his understanding of the status of the diversion agreement.

One way or another, both Judge Scarsi and David Weiss adhere to Klamath, which says, “if reasonable people could find its terms susceptible to more than one interpretation,” then it is ambiguous. And both Judge Scarsi and David Weiss — who themselves find the terms of the diversion agreement susceptible to more than one interpretation — include and rely on extrinsic evidence to try to make that signature line a condition precedent to either formation or performance of the contract.

You don’t need to get to Abbe Lowell’s differing interpretation of this. Even Scarsi and Weiss have found the diversion agreement susceptible to different interpretations and therefore, under Klamath, ambiguous.

And if the diversion agreement is ambiguous — which no one is arguing, but which under the terms of Klamath and by the repeated reliance by everyone on extrinsic evidence, it seems to be — then both the 9th and 3rd Circuits say that Hunter Biden’s beliefs about the diversion agreement hold.

Not only is it clear from the face of the Diversion Agreement signed by all parties that it is in effect—as all parties told the Delaware court at the July 26, 2023 hearing—any effort by the prosecution to search out some ambiguity in the contract in an effort to manufacture an excuse to renege on the deal it struck would fail. There is no explicit language in the Diversion Agreement that would allow the prosecution to nullify the Agreement, and nothing less will do.

If the prosecution must search out some ambiguity in the Diversion Agreement to exploit in support of its argument, the prosecution has already lost. Like the Third Circuit, the Ninth Circuit explains: “Courts construe ambiguities in the plea agreement against the government and will use the defendant’s reasonable beliefs at the time of pleading to construe the agreement.” United States v. Wingfield, 401 F. App’x 235, 236 (9th Cir. 2010); see United States v. Jackson, 21 F.4th 1205, 1213 (9th Cir. 2022) (“Our task is to determine what the defendant reasonably believed to be the terms of the plea agreement at the time of his plea.”); Franco-Lopez, 312 F.3d at 989 (explaining the court “construe[s] ambiguities in favor of the defendant” (citation omitted) and that, “[i]n construing the agreement we must determine what Franco-Lopez reasonably believed to be the terms of the plea agreement at the time of the plea.”). Indeed, the Ninth Circuit has “steadfastly applied the rule that any lack of clarity in a plea agreement should be construed against the government as drafter.” United States v. Spear, 753 F.3d 964, 968 (9th Cir. 2014) (citations omitted). “Construing ambiguities in favor of the defendant makes sense in light of the parties’ respective bargaining power and expertise.” United States v. De La Fuente, 8 F.3d 1333, 1338 (9th Cir. 1993). The prosecution does not dispute that this is the law; it claims the contract unambiguously gave Probation veto power over the Agreement between the parties despite being unable to point to any provision of the Agreement that says so. (DE 69 at 8-10.)

As noted, Hunter Biden was privy to the email where Ben Wallace said that Probation had agreed to the changes in the diversion agreement. He was not privy to Wallace’s actions at the beginning of the plea hearing. So his belief could only come from Wallace’s use of that word, “agreed.” If he believes Probation approved the diversion agreement, then if the diversion agreement is ambiguous, then that should hold sway.

Weiss pretty aggressively wants to avoid the conclusion that this diversion agreement is ambiguous (which may be why he, like Scarsi, did not include that part of the paragraph saying that conflicting interpretations is a good way to tell that a contract is ambiguous). He calls Lowell’s citation to this binding precedent on ambiguous agreements a strawman (even while submitting and relying on his own extrinsic evidence).

4 The defendant spends three pages on a strawman argument that if the Government were to take the position that the diversion agreement was ambiguous, any ambiguity should be construed against the government. Motion at 9. The government does not take the position that the diversion agreement is ambiguous and never has.

One thing this entire discussion excludes, but should not, is the scope of the immunity language in the diversion agreement. Because that’s where David Weiss clearly reneged on a signed contract, as proven by the undisputed assurances given to Hunter Biden on June 19 that there was no ongoing investigation that Weiss then reneged on to chase Russian disinformation offered by Alexander Smirnov (who is not mentioned in Scarsi’s opinion at all).

There’s another, very significant problem created by Scarsi’s weird opinion.

If the diversion agreement is binding (but not yet in effect) then the withdrawal of Judge Noreika’s briefing order from last July was improper.

When David Weiss moved to vacate her order, he stated that “there is no longer a … diversion agreement for the Court to consider.”

As a result, the Government respectfully requests that the Court vacate its briefing order since there is no longer a plea agreement or diversion agreement for the Court to consider.

And Weiss relied heavily on the claim that the diversion agreement it is not binding when responding to Hunter’s claim that the diversion agreement was in effect.

Fifth, as noted above, the proposed diversion agreement never took effect. And the Defendant misstates the record when he claims that the Government made statements to the contrary during the July 26 hearing. The Defendant claims, in a footnote, that 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,’” citing various parts of the transcript. But those cobbled together snippets do not add up to a statement that the proposed diversion agreement was in effect. The Government never said the proposed diversion agreement was in effect because it is not.

[snip]

To reiterate, the now-withdrawn diversion agreement, by its own terms, is not in effect. Paragraph one of the agreement expressly provides that, “The term of this Agreement shall be twenty-four (24) months, beginning on the date of approval of this Agreement, unless there is a breach as set forth in paragraphs 13 and 14.” ECF 29-1 at 1 (emphasis added). Paragraph two further provides that, “The twenty-four (24) month period following the execution and approval of this Agreement shall be known as the ‘Diversion Period.’” Id. (emphasis added). Ms. Bray, Chief United States Probation Officer for the District of Delaware, declined to approve the agreement at the hearing on July 26, 2023. Indeed, the version of the agreement that the Defendant docketed on August 2, 2023, has an empty signature line for Ms. Bray, immediately below the text “APPROVED BY.” Id. at 9. In sum, because Ms. Bray, acting in her capacity as the Chief United States Probation Officer, did not approve the now-withdrawn diversion agreement, it never went into effect and, therefore, none of its terms are binding on either party. [my emphasis]

Scarsi’s order also creates problems for claims Weiss made in a status report submitted to Judge Noreika in September

2 In its June 20, 2023 letter, the Government stated that “executed copies of the Memorandum of Plea Agreement related to the tax Information, and the Pretrial Diversion Agreement related to the firearm Information,” would be submitted at or in advance of the hearing. An executed copy of the plea agreement was provided to the Court at the July 26, 2023 hearing. U.S. Probation declined to approve the proposed diversion agreement and so an executed copy was never provided to the Court. [my emphasis]

Notably, Weiss did not contest that the diversion agreement was executed when Chris Clark submitted what he claimed was an executed copy on August 2. This is a claim he only made after the fact.

Though he reviewed all the motions to dismiss submitted in Delaware, Scarsi may not have reviewed the rest of the docket, so he may not understand that he has bolloxed Judge Noreika’s docket.

Judge Scarsi’s order is fundamentally inconsistent with the basis by which Weiss moved to dodge briefing on what has since been demonstrated to be an ambiguous agreement. If he’s right that the diversion agreement remains binding on the parties, then the withdrawal of the diversion agreement before Judge Noreika becomes uncertain. By rushing to rule before Judge Noreika did, Scarsi has effectively thrown a dead not-dead cat into Noreika’s lap and created problems with the order she signed vacating her briefing order back in August. By rushing to rule before Noreika did, Scarsi has made a mess of Noreika’s docket and created legal uncertainty about an order Noreika issued last year.

Update: First, I fixed the date of the Ben Wallace email reporting that Probation had approved of changes to the diversion agreement; it was in July, not June. I also realized that while the declaration Chris Clark submitted in the Delaware docket is in evidence, the email itself is not. Nevertheless, Scarsi does miscite what it says.

Update: I take that back: All the exhibits are in the Chris Clark declaration.

Update: I note that Ben Wallace’s declaration was not submitted with any attestation. He has not filed a notice before Scarsi.

Update: I’m comparing what Weiss said in the Delaware response to Hunter’s immunity argument with this Los Angeles one. Interestingly, Weiss retained this paragraph from the Delaware response, though it was introduced in Delaware stating, “even if the defendant actually believed that the agreement he negotiated did not require U.S. Probation’s approval.”

Furthermore, defendant’s subjective belief that the agreement did not require U.S. Probation’s approval, is not controlling. “Delaware adheres to the ‘objective’ theory of contracts, i.e., a contract’s construction should be that which would be understood by an objective, reasonable third party.” Iron Branch, 559 F. Supp. 3d at 378; Osborn ex rel. Osborn, 991 A.2d 1153 at 1159; NBC Universal v. Paxson Commc’ns, 2005 WL 1038997 at *5 (Del. Ch. Apr. 29, 2005)). An  objective, reasonable third party would understand that U.S. Probation would have to approve the agreement for it to go into effect, given the language in paragraphs 1 and 2 and the construction of the signature page.

But elsewhere they adopt US v. Clark, a Ninth Circuit case that says,

courts “hold[] the Government to a greater degree of responsibility than the defendant . . . for imprecisions or ambiguities in plea agreements” than they would a drafting party to a commercial contract.

 

Judge Mark Scarsi’s Quantum Theory of Murdered Contract Law

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As expected, Judge Mark Scarsi has denied Hunter Biden’s motions to dismiss.

This post will explain his interpretation of the diversion agreement and his invitation for additional briefing on what even he calls a “Schrödinger’s cat-esque construction of Defendant’s immunity under the Diversion Agreement.”

A follow-up post will show how three errors Scarsi made undermine his otherwise totally defensible decisions on selective and vindictive prosecution and outrageous conduct, in one case in a way that bears on the diversion agreement. Scarsi fails to come close to meeting his own rigorous evidentiary standard on two points, and on a third, Scarsi fails to adopt the legal standard he claims to rely on.

As you read these posts, keep three things in mind.

First, Scarsi issued this order 16 days before he said he would, which would have been April 17 (as noted, he has invited further briefing on a central point that he has nevertheless already ruled on).

Before he docketed yesterday’s order — an order that pointedly refused further briefing — Abbe Lowell filed a motion that addressed two issues Scarsi raised in last week’s hearing which are pertinent to Scarsi’s ruling. Scarsi hasn’t and probably won’t accept Lowell’s bid to file that motion, but it nevertheless was directly on point and, in my opinion, corrected claims that Scarsi reportedly made in last week’s hearing (one of which recurs in this opinion). And it was filed before Scarsi formalized his order rejecting Hunter’s motions.

Even before Judge Scarsi filed yesterday’s order 16 days before he said he would, he was (and remains) on a relentless pace to get this to trial quickly. Meanwhile, Judge Maryellen Noreika appears to be frozen in uncertainty about what to do about motions filed by Hunter. Versions of three of these motions to dismiss have been fully briefed in Delaware since January 30. During that period, Lowell submitted a request in Los Angeles asking Scarsi to hold off until Noreika ruled, because the diversion motion would properly be decided by Noreika, a request Scarsi denied. Then, on February 12, Lowell informed Noreika that Scarsi was not waiting on her decisions on MTDs filed first in her district, what I took to be a soft nudge asking her to rule quickly so she would rule first. In a March 13 status hearing, Lowell made the nudge much more directly, asking her to rule on the diversion agreement first, and do so quickly, noting that it was proper for her to rule given that Delaware contract law probably applied. These issues are relevant, among other reasons, because I think they make Scarsi’s order more vulnerable on appeal, an appeal that Hunter Biden probably would not, however, be able to make until after he were convicted.

More troubling, I have been wondering whether Noreika’s seeming paralysis was an attempt to wait out Scarsi to see what he did with these rulings. So Scarsi’s approach may end up influencing her even though several facts are differently situated before her, including one Scarsi relied on heavily.

Finally, in one place, Scarsi adopted the colloquial, rather than the formal logic meaning, of “begs the question.”

This observation begs a question regarding another provision, the parties’ agreement that the United States District Court for the District of Delaware would play an adjudicative role in any alleged material breach of the agreement by Defendant. (my emphasis)

I’m normally pretty tolerant of this usage; I occasionally fail to avoid it myself. But given that I think Scarsi has adopted an incorrect meaning of the Schrödinger’s cat paradox in an order that adopted a crazy theory to deny Hunter’s immunity claim, I find it notable that he also used a term that, in formal logic, describes someone adopting premises that assume a conclusion to be true, to mean something else. Scarsi’s misuse of these two terms are badges of someone getting logic wrong.

Now to Scarsi’s interpretation that led him to analogize that Hunter Biden’s immunity from the prosecution Scarsi is rushing headlong towards trial is both dead and not-dead. In short, Scarsi ruled that the parties to the contract granting Hunter Biden immunity from this prosecution executed the agreement, but did not yet put it into effect (or performance). As he describes, “the Diversion Agreement is a binding contract but performance of its terms is not yet required.”

To get there, Scarsi first lays out that the legal standards to apply here are uncertain, both as to whether Delaware, US, or California contract law governs, and as to the standard to apply to diversion agreements.

Having rejected Lowell’s request to let Noreika rule first, he applies the Ninth Circuit standard for plea agreements, and only in the next paragraph lays out what should come first: an acknowledgment that the Ninth hasn’t yet applied the standards used for plea agreements to diversion agreements, but other circuits have and so he will here.

The parties have not identified, and the Court has not uncovered, binding circuit authority extending these interpretation principles to pretrial diversion agreements. But several other circuit courts have found diversion agreements analogous to plea agreements and construed them according to similar contract principles. E.g., United States v. Harris, 376 F.3d 1282, 1287 (11th Cir. 2004) (“[T]his court interprets a pretrial diversion agreement applying the same standards we would use to interpret a plea agreement.”); Aschan v. Auger, 861 F.2d 520, 522 (8th Cir. 1988) (applying contract principles, reasoning that “[t]he pre-trial diversion agreement is analogous to a plea agreement”); cf. Garcia, 519 F.2d at 1345 & n.2 (similarly analogizing a deferred prosecution agreement to a plea bargaining agreement). The Court perceives no meaningful distinction between plea and diversion agreements relevant to the application of these interpretation principles.

These contract law standards may actually matter; they may matter a lot, not least because Scarsi misrepresents the uncontested record about the plea deal that failed (which I’ll get to in my follow-up).

In any case, however, Scarsi claims to be adopting a standard that holds the government responsible for any imprecisions in a plea agreement.

Given concerns about the defendant’s constitutional rights at play, “the honor of the government, public confidence in the fair administration of justice, and the effective administration of justice in a federal scheme of government,” courts “hold[] the Government to a greater degree of responsibility than the defendant . . . for imprecisions or ambiguities in plea agreements” than they would a drafting party to a commercial contract. Clark, 218 F.3d at 1095 (internal quotation marks omitted). “As a defendant’s liberty is at stake, the government is ordinarily held to the literal terms of the plea agreement it made, so that the government gets what it bargains for but nothing more.”

Having adopted that standard but then having claimed that the diversion agreement is unambiguous, Scarsi then comes up with an interpretation that neither the government nor Hunter Biden have adopted, telling the parties to a contract that he knows better than them what they entered into.

[T]he Court does not reach Defendant’s argument that the Government should be estopped from denying the validity of the agreement or the Probation Officer’s approval. (Immunity Mot. 18–19.) The Diversion Agreement is unambiguous, and the Government’s position on its interpretation cannot change its meaning.

We now have three different interpretations of a diversion agreement that everyone claims is unambiguous. Schrödinger’s cat had just two states of being: dead and not-dead. Scarsi has given this diversion agreement three.

Scarsi’s version says the words “approval” and “execute” are doing different things in the diversion agreement, and while the agreement was executed by the only parties to it, because someone not a party to it did not approve it, the government is not yet required to fulfill the contract.

Approval and approved together appear in three places in the agreement: the provision defining the agreement’s term, (Diversion Agreement § II(1)); the provision defining the diversion period, (id. § II(2)); and the signature block designated for the Probation Officer, (id. at 9). Outside of definition provisions, the only place the agreement uses the approve word stem is in the signature block inviting a formal sanction by the Probation Officer. And obtaining the approval of the Probation Officer makes sense in the context of the agreement, as the parties contemplated as a term of Defendant’s performance his subjection to her supervision. (Id. § II(10)(a).) In other words, the supervision provision would be nugatory if the Probation Officer refused to supervise Defendant.6 The definition provisions require an approval, and the only place in the agreement to which the Court can look to divine the meaning of approval is the signature block for the Probation Officer, compelling an interpretation that ties approval to an act by the Probation Officer.

In contrast, the term execution appears twice in the Diversion Agreement: in the provision defining the diversion period, (id. § II(2)), and in a provision authorizing execution of the agreement in counterparts, (id. § II(18)). Consistent with the definition of execute, the counterparts provision circumscribes the acts of signing the agreement that might validate it; in other words, the parties agreed that signing the same copy of the agreement would have the same effect as signing different copies. Notably, the provision defining the diversion period uses both execution and approval together, indicating each has its own meaning: “The twenty-four (24) month period following the execution and approval of this Agreement shall be known as the ‘Diversion Period.’” (Id. § II(2) (emphases added).) As Defendant’s counsel admitted at the hearing, Defendant’s proffered interpretation would render the phrase “execution and approval” redundant in part. The contrast between sections II(1) and II(2) supports an interpretation that gives each word its own meaning; while “approval” triggers the agreement’s term, the diversion period begins only “following the execution and approval” of the agreement.

Having ruled that the government is wrong that Probation’s approval was precedent to approval to the contract, Scarsi then argued that her approval was precedent to performance, something that had to happen before the agreement went into effect. Prosecutors are wrong that the contract isn’t binding, Scarsi argues, but because probation didn’t also sign the diversion agreement, prosecutors are not yet required to grant Hunter the immunity the agreement grants him.

For this interpretation to end up with Hunter being fucked, Scarsi also has to reject Hunter’s argument that probation already did agree to supervise the diversion agreement before, unbeknownst to Hunter and Judge Noreika, after he and Leo Wise signed the diversion agreement, Delaware head of probation Margaret Bray refused to sign the diversion agreement itself.

The agreement is not reasonably susceptible to an interpretation that the Probation Officer could manifest her approval by issuing a pretrial diversion recommendation consistent with the Diversion Agreement, let alone by any means other than signature on the line reserved for her.9

9 Defendant’s argument would fail on its merits even if the Probation Officer could have manifested her approval by issuing a pretrial diversion report. Defendant submits that the Probation Officer provided a “letter to counsel . . . enclosing her recommendation in favor of the Diversion Agreement and copy of the Agreement.” (Immunity Mot. 18.) The report filed with this Court does not reference or attach a copy of the agreement at all. (See generally Machala Decl. Ex. 5.) That said, the report filed with the motion is incomplete and apparently redacted. Although some of the recommended conditions of pretrial diversion align with the conditions discussed in the Diversion Agreement, they do not mirror each other perfectly. (See, e.g., Machala Decl. Ex. 5 § 38(5) (requiring as a condition of pretrial diversion Defendant’s consent to entry into a criminal background check system, a condition not discussed in the Diversion Agreement).) Further, another document in the motion record indicates that the parties modified the Diversion Agreement after the Probation Officer issued her report in an effort to “more closely match” the report. (Clark Decl. Ex. T (providing July 20, 2023 revisions to Diversion Agreement); cf. Machala Decl. Ex. 5 (dated July 19, 2023).) The Court resists Defendant’s ouroboric theory that the Probation Officer manifested approval of an agreement the parties changed in response to the purported approval. Further, the Court doubts the Probation Officer manifested approval of the revised version of the Diversion Agreement passively by being party to an email circulating the updated draft. (See Clark Decl. Ex. T.) [my emphasis]

In doing so, Scarsi misrepresents the exhibit he relies on.

The parties and Probation have agreed to revisions to the diversion agreement to more closely match the conditions of pretrial release that Probation recommended in the pretrial services report issued yesterday. Attached, please find clean and redline versions of the diversion agreement.

The parties didn’t modify the diversion agreement after probation issued its report; the parties and probation did. And that agreement didn’t happen on that email thread. Scarsi simply invents probation’s passive participation in an email.

That is, to dismiss Hunter’s argument that probation gave approval for the agreement, Scarsi misstates the evidence before him. That’s pretty telling, because if probation did approve the deal (and Hunter had no indication until the same AUSA who wrote an email saying probation had approved it that Bray refused to sign it after Hunter and Wise had), then the immunity deal is in place. Scarsi doesn’t address something he did in the hearing, which is that it made sense for tax crimes to be immunized given the expectation that Hunter would soon plead guilty to misdemeanors (which is one of the two things Lowell addressed in his filing and which was obviously wrong when Scarsi said it), so he seems to cede that if the agreement did go into effect, he can’t be charged with tax felonies.

More importantly, there are several aspects of Scarsi’s interpretation he doesn’t address, having nevertheless denied the motion while inviting further briefing and misusing the term, “begs the question.”

Having severed the execution of the contract from its performance, Scarsi doesn’t consider what those two terms apply to, even though prosecutors can only perform one part of the agreement — the immunity — and probation can only perform another — the diversion supervision. Margaret Bray cannot perform the part that matters here, conferring immunity, but Scarsi has given her veto power over the government fulfilling a contract they entered.

It would seem that if Scarsi were applying the standard he claims to be using — “the government is ordinarily held to the literal terms of the plea agreement [in this case, diversion agreement] it made” — then those who executed the diversion agreement, the prosecutors, should be required to recognize the immunity they agreed to and which they are uniquely situated to deliver.

More importantly, the main reason why probation never revisited approving the diversion agreement is because prosecutors failed to go get her signature. They failed to do so because Hunter did not agree to the terms of the separate plea agreement after Leo Wise changed the terms of the immunity it offered in the hearing itself. As we’ll see, that’s a part of the factual record that Scarsi simply disappears, ignoring it even though prosecutors waived contest to it.

Mark Scarsi rushed to interpret this contract in a way neither party to it agrees with, but did so in such a way that frees prosecutors from the obligation Scarsi himself says they agreed to give. He did so while misusing the term “begs the question” and invoking a metaphor, Schrödinger’s cat, designed to describe an absurd state, while calling Hunter’s correct description of events he misrepresented an ouroboric theory.

Mark Scarsi may be right that the diversion agreement uses two terms to depict two different things, but in doing so, he has upended the authority over prosecutions and arguably misapplied the standard he claims to adhere to.

David Weiss Is Withholding the Proof Leo Wise Claims Doesn’t Exist

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Leo Wise continues to engage in a kind of arbitrage to win his argument that politics didn’t lead David Weiss to renege on Hunter Biden’s plea agreement, making claims that may be true for him and Derek Hines, but are patently false for David Weiss, the only prosecutor still on the team who was involved in the plea deal itself.

According to the Daily Mail, Wise insisted in the hearing the Hunter Biden prosecution last week that there’s no proof the claims of disgruntled IRS agents Joseph Ziegler and Gary Shapley affected the case.

‘These two agents started the dominos,’ Lowell said. ‘When was the last time a chair of a congressional committee sought intervention to stop a plea deal?’

Wise hit back that the claim he was influenced by former IRS agents was ‘patently absurd’, adding ‘I couldn’t pick them out of a lineup’.

‘The defense’s problem is… they offer no proof,’ Wise said. ‘Other than insulting us, where is the proof?’

The proof exists in official testimony that DOJ witnessed and surely has in its possession.

On September 7 of last year — just days before the first indictment — Special Agent in Charge Thomas Sobocinski (who also remained on the case before and after the reneged plea deal) described that after Gary Shapley went public in late May, he and David Weiss spoke about how Shapley’s comments would affect the case.

The way it affected the case, Sobocinski explained, was that family members of investigative team members were getting stalked.

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

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

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

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

Mr. [Steve] Castor. Okay.

[Discussion held off the record.]

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

BY MR. CASTOR:

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

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

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

A I don’t remember that level of it.

Q If it was

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

Obviously, both Sobocinski and David Weiss (who attended the hearing) know about the discussions they themselves had about how Shapley’s media tour led family members of the investigative team to be stalked. FBI’s Assistant General Counsel Megan Greer and DOJ’s Deputy Assistant Attorney General for Legal Affairs Sara Zdeb attended the deposition as well and so know of this testimony. It is my understanding that DOJ has reviewed these transcripts for accuracy, and so must have copies of them.

The proof is there, almost certainly in DOJ custody. It’s just that David Weiss is withholding it from Hunter Biden.

I will cycle back to this issue once a transcript becomes available. I’ve seen no mention of the uncontested assertion by Abbe Lowell that David Weiss came to fear for the safety of his family. Judge Mark Scarsi reportedly asserted that the only evidence Lowell presesnted is stuff on the Internet — but of course, there’s a DC Circuit opinion that found that Trump’s threats “have real-world consequences.”

It’s not enough for Leo Wise to claim that Shapley’s actions had no impact on his own behavior. He needs to address whether it had an impact on Weiss’ actions.

And according to the FBI supervisor overseeing this case, Shapley’s actions “had an impact on our case,” because they led everyone to start worrying about the safety of their families.

Leo Wise may claim that because it wasn’t his family being stalked, the media tour didn’t have an impact on his decisions. But he would never have been added to the team if not for the campaign by the disgruntled IRS agents.

The US Attorney for Delaware Treats Contract Law as a Hypertechnicality

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Before I lay out how David Weiss responded to Judge Mark Scarsi’s invitation to address two legal issues with four of the charges against Hunter Biden, let me emphasize: these two arguments are a sideshow. Even if Abbe Lowell’s argument that the statute of limitations expired for Count 1 and his argument that venue is improper for Counts 1-4 of the indictment succeeded, the guts of the indictment, three felony counts for the way in which Hunter paid his 2018 taxes, would remain, along with one misdemeanor each for 2018 and 2019. Lowell also challenged how Weiss charged one of the felonies and the 2019 misdemeanor, but still, the core felony conduct remains unchallenged with these technical challenges (as distinct from the more substantive motions to dismiss).

I’m interested in them, though, for what they might say about Weiss’ conception of his transition from US Attorney to Special Counsel. I’m interested in them for what they might say about a potentially more serious problem with the way Weiss is approaching discovery. I’m interested in them because of the way that Leo Wise and Derek Hines have persistently dodged the unrebutted evidence that David Weiss really did renege on assurances given to Hunter’s attorneys last June that there was no ongoing investigation into the President’s son when he signed the plea deal.

I laid out all the “technical” motions to dismiss here. I wrote about Judge Scarsi’s order for sur-reply briefing here. Links to all these filings are on this page.

I expected Weiss’ sur-reply to address the new legal questions Lowell raised: Did the tolling agreement Hunter signed with Delaware US Attorney David Weiss carry over after Weiss became Special Counsel? Does judicial estoppel prevent Weiss from claiming Hunter was a resident of California in 2018 when he asserted that Hunter was a resident of DC in 2018 in the tax information filed in Delaware?

Sadly, Weiss engaged with neither of those interesting legal questions. Instead, to both questions, he responded with an evidentiary claim, a legal dodge, and an attack (Leo Wise and Derek Hines seem to love such manufactured attacks).

Here’s how it looked in the tolling sur-reply:

  • Charging 2016 as a crime that occurred in 2020 was not a way to get around statutes of limitation; it was, instead, an allegation that willfulness pertaining to Hunter’s 2016 taxes only happened in 2020.
  • Weiss only raised the tolling agreement to demonstrate he wasn’t operating in bad faith by charging the 2016 year.
  • How dare Hunter Biden neglect to mention the tolling agreements that Hunter Biden believes are legally irrelevant for this indictment!

Here’s how it looked in the judicial estoppel sur-reply.

  • Hunter presented no evidence that the prosecution knew he only moved to California in 2019 and the grand jury found that Hunter was a resident of California in 2018, so there.
  • There’s no legal authority for dismissing an indictment based on a judicial estoppel claim.
  • How dare Hunter Biden neglect to mention that “the government” told Judge Noreika that “venue for these offenses and any other related tax offenses lies either in the Central District of California or in the District of Columbia,” which is irrelevant anyway because that statement would have incorporated the felony counts for which venue is California! [my emphasis]

In both retorts, though, Weiss evinced precisely the kind of legal slovenliness I suspect is behind any discovery problems and the refusal to deal with the unrebutted evidence about what Weiss said last June.

Start with the argument that Weiss is estopped from arguing that Hunter was a resident of California in 2018. Weiss relegates that claim — the entire purpose for this sur-reply — to a footnote. The footnote doesn’t address whether Weiss is estopped from making this claim. Rather, he says it’s not a basis to dismiss an indictment.

1 The defendant also argues that the doctrine of judicial estoppel bars the prosecution “from taking inconsistent positions before different courts,” although he cites no authority for the proposition that an indictment returned by a grand jury can be dismissed on that basis. Dkt. 53 at 5.

Is Weiss now arguing that a grand jury presentation is not a court proceeding? Because if he is estopped from making the argument, then how can he make it to a grand jury? Will this give Hunter opportunity to demand grand jury presentation records? And if he is estopped, how does he plan on making the argument at trial?

Plus, by focusing on his evidentiary claims rather than the legal question, Weiss has created a new problem for himself. He asserts that Hunter never moved back to the East Coast in 2018, even though Weiss has charged him for owning a gun starting on October 12, 2018, meaning Weiss is well aware Hunter had left California before his October 15, 2018 extension date for tax filing.

The defendant moved to California in the first week of April 2018 and expressed his intention to stay in California in a text message that he sent from California to his sister-in-law on April 12, 2018, writing, “I’m staying here indefinitely.” While he may have visited the east coast for brief periods later in 2018, he returned back to California, where he continues to live today. It is worth noting that defendant does not proffer any facts to support his claim that he lived in the District of Columbia through the summer of 2019.

This citation to something Hunter wrote to his “sister-in-law” is new; it’s not in the response. Hunter would be within his right to ask to file a sur-sur-reply on this point. And it might be worth doing.

That’s because, in his Delaware response to Hunter’s selective prosecution claim, Weiss relies heavily on this passage of Hunter’s memoir, almost the only thing Hunter said in his book about events from October 2018:

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

Neither happened. [my emphasis]

Only, Weiss replaced the bolded bit — which explains why Hunter returned, to attempt to salvage a romantic relationship with his sister-in-law — with an ellipsis.

Over and over again, Weiss has made the memoir the centerpiece of his reason for charging. Over and over again, Weiss has treated the memoir as transparent truth. Yet the memoir makes it clear that when Hunter moved back in fall 2018, he had the intent of staying, staying with Hallie (as reflected by Weiss’ obnoxious description of Hallie as Hunter’s “girlfriend” in this period), apparently the same person on whose communications with Hunter he relies to claim that Hunter moved permanently to California in 2018.

Weiss may well be able to establish that Hunter was in California for enough days to amount to residency. But he hasn’t addressed the legal question of whether he’ll be legally permitted to argue that.

His response to the tolling question is even nuttier.

Weiss argues that because the US Attorney for Delaware and DOJ’s Tax Division could have charged Hunter for an April 2017 violation, it’s proof that “the government” could have charged him.

The United States’ Attorney’s Office for the District of Delaware and the Tax Division are parties to the tolling agreement. Dkt. 29 at 1. Assuming for the sake of argument that the defendant is correct that the Office of Special Counsel would be time barred from bringing failure to pay charges for the 2016 tax year in April 2017 because it was not a party to the agreement, those two entities would not be. The Tax Division can file criminal tax charges in any judicial district in the United States with or without the participation of a United States Attorney’s Office. See 28 C.F.R. §§ 0.70. Further, even before he was made Special Counsel, David C. Weiss, as United States Attorney for the District of Delaware, had full authority to bring criminal tax charges in this case. While Mr. Weiss was appointed Special Counsel on August 11, 2023, he is still the United States Attorney for the District of Delaware and either that office or the Tax Division could have brought the charge in Count 1 and any of the other tax charges contained in the indictment. Nothing about Mr. Weiss’s appointment as Special Counsel precludes that. Thus, the argument that the government had to charge failure to pay for tax year 2016 in June 2020 because it couldn’t charge it in April 2017 is clearly incorrect.

Weiss uses “the government” ten times in the body of this filing, all but one in the section on the tolling agreements.

This is a version of an argument Weiss made aggressively in his Delaware response to Hunter’s Special Counsel challenge (and less aggressively in his Los Angeles response). Insisting that US Attorneys do what they’re permitted to do and Special Counsels do what they’re permitted to do is a “hypertechnicality,” Weiss argued in January.

[E]ven assuming the Attorney General’s delegation of authority under §§ 509, 510, 515, and 533 is unavailable, defendant’s argument boils down to a quibble that the indictment reads “Special Counsel” beneath David Weiss’s name and not “U.S. Attorney.” ECF No. 40, at 4. Such hypertechnicalities have no impact on the indictment’s validity or to the prosecutor’s statutory authority to conduct this litigation on behalf of the United States. Dismissal is thus wholly inappropriate.

Remember: That was a response to an argument that Weiss can’t be Special Counsel because DOJ regulations envision someone who can’t just flip back and forth between one title and another.

The argument is even worse here. The point is, though, that DOJ Tax didn’t charge Hunter with failure to pay his taxes in 2017.

And after that, David Weiss made some non-public argument to Merrick Garland that he legally required the independence granted by Special Counsel status, yet he keeps arguing that (perhaps now that he has discovered Alexander Smirnov was lying when he attempted to frame Joe Biden) he could flip back to US Attorney status with no legal bar. He’s making that argument even though public records indicate that DOJ Tax had real problems with even the charges Weiss was considering in 2022, much less the jerry-rigged charges as presented in Los Angeles. He’s making that argument even though, as Special Counsel, David Weiss appears to have withheld from discovery fairly damning details of the investigation conducted under US Attorney David Weiss. He’s making that argument even though he has never addressed the legal assurances the US Attorney’s Office in Delaware gave to Hunter’s lawyers.

In the diversion motions to dismiss, Hunter is arguing that Weiss breached a contract. Here, the US Attorney for Delaware, where so much of US contract law goes through, is arguing that even someone who is not party to a tolling agreement — which Hunter argues is a contract — can invoke it to deprive someone of his freedom.

Again, I don’t expect Judge Scarsi to be all that sympathetic to Hunter’s arguments and Scarsi could well just adopt Weiss’ argument that both are evidentiary issues for the jury to decide. But I also don’t imagine he’ll appreciate the way this sur-reply dodges both legal questions that Lowell raised.

Alexander Smirnov Shared an Already-Debunked Fox News Hoax with His FBI Handler

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There’s a mistake that many people covering the Alexander Smirnov case make. This is one example, but similar examples appear everywhere (including in claims made by Democrats in Congress yesterday).

Parnas noted the recent indictment of former FBI informant Alexander Smirnov, who is accused of providing false intelligence about the president and his son during the 2020 presidential campaign. Prosecutors said the information Smirnov shared about the Bidens came from “officials associated with Russian intelligence” and that he was peddling “new lies that impact U.S. elections after meeting with Russian intelligence officials in November.”

The error is in claiming that prosecutors have said that the false claims Smirnov made in 2020 came from Russian intelligence.

Prosecutors have said that Smirnov attributed claims made last September in his FBI interview to Russian spies. That’s the claim that the Russians recorded calls that Hunter Biden made from a hotel in Kyiv.

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

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

The reference in the detention memo to Russian spooks, relied on by NBC to substantiate the claim, appears to be a reference to this story, one Smirnov told in 2023. David Weiss appears to be sure that Russian spooks really did tell Smirnov this; he used it to justify detention.

Thus, Smirnov’s efforts to spread misinformation about a candidate of one of the two
major parties in the United States continues. The Court should consider this conduct as well
when evaluating his personal history and characteristics. What this shows is that the
misinformation he is spreading is not confined to 2020. He is actively peddling new lies that
could impact U.S. elections after meeting with Russian intelligence officials in November.

I’m not entirely convinced Smirnov’s Russian spook buddies did tell him this.

After all, prosecutors laid out why it cannot be true that Russia really got recordings of Hunter in the hotel. Hunter has never been to Kyiv, much less this hotel.

If Russian spies actually told Smirnov this, it would either be false, intended to deceive Smirnov, or based on a deep fake.

But I also think it’s possible that, during the September interview, Smirnov started to realize that the FBI had caught him lying, and so invented the story — based on what I understand to be a widely-understood assumption about the Premier Palace — to appear to be useful to the FBI. When you’re a snitch, you’re generally safe doing whatever so long as you remain useful. So Smirnov may have just tried to protect himself by inventing something useful.

As I tried to show here, there’s actually some reason to believe he subsequently created a reporting trail retroactively on this, as if he hadn’t ever made this claim to his handler before his FBI interview and so had to report it prospectively to the handler to cover the claim he made to the FBI. The timeline shows that Smirnov attributed something to four Russian spies in September 2023, but then told his handler he learned it as if it were new in December 2023.

I don’t believe any court filings have yet attributed Smirnov’s false claim in 2020 to Russian spooks.

Indeed, he didn’t have the ties to Russian spies in 2020 he claims to have now. While Smirnov appears to have had ties to Russian Official 5 in 2020 — the guy he flipped for a different, probably Israeli, intelligence service in 2002 but didn’t tell his handler about until 2019 — and through him, Russian Official 6, many of his more senior ties to Russian spooks appear to post-date 2020.

A far more relevant tie in 2020 is his professed tie to Viktor Shokin, going back to 2016.

50. The Defendant told investigators that he had asked the then-Ukrainian President to arrange a meeting between himself and the then-Ukrainian Prosecutor General to talk about Burisma. The Defendant told investigators that this meeting occurred before the then-Ukrainian Prosecutor General resigned, which was early 2016. The Defendant also told investigators this meeting occurred before his meeting with Burisma Official 1 in the coffee shop in a German speaking country. The Defendant told investigators that after he met with the thenUkrainian Prosecutor General, he met with the then-Ukrainian President. The Defendant did not provide any of this information to the Handler in 2020.

Still, one way or another, I don’t believe any court filing tells us who got Smirnov to lie in 2020. It’s one reason I keep insisting that learning how Scott Brady came to look for him may be the most important investigative question, not least because David Weiss has an enormous disincentive to chase that down.

All the more so given the backstory to this photo, which appears in the indictment. After Smirnov promised his handler that he would prove Joe Biden had received a bribe, Smirnov told his handler this picture showed Joe and Hunter Biden with Mykola Zlochevsky.

 

Nancy Mace used the same photo in yesterday’s hearing in an attempt to corroborate serial fraudster Jason Galanis‘ story.

It’s actually not, at all, clear where the picture came from — I’m not even aware that it came from “the laptop.”

But it was first published by Tucker Carlson, then adopted by Fox News, as part of Rudy’s propaganda campaign in 2019, as impeachment began to roll out.

Don Jr posted it.

Then Trump referenced it on Xitter.

The claim was debunked repeatedly: by PolitiFact on October 8, by CNN, and then by USAT after it went even more viral after the release of “the laptop” in 2020 (and therefore after Smirnov’s claims).

And yet, even though this photo had gone viral in 2019, in conjunction with Trump’s impeachment rebuttal, Smirnov made the same claim again in May 2020.

And his handler either didn’t realize or didn’t care that Smirnov was recycling a widely debunked lie, nor is there any evidence the handler pointed out to Scott Brady that it discredited Smirnov’s other claims.

Sedition Hunters will tell you that the FBI is nowhere near as good at using facial recognition as they are (which may not be a bad thing). But the notion that an informant would share such a widely disseminated photo and no one at the FBI would figure out it had been used by Trump and his backers as part of a false propaganda campaign the year before?!?!

Really???

I’ll repeat again: the investigation into this attempt to frame Joe Biden needs to be removed from David Weiss’ purview and put in the hands of someone who’ll review how the FBI let itself get fooled by a widely disseminated piece of propaganda, and why the Attorney General ensured that such embarrassing propaganda got funneled to an ongoing investigation into Joe Biden’s kid.

Because this is just embarrassing.

Alexander Smirnov may have gotten the false claim he made in 2020 from Russian spies. He may have gotten it from Viktor Shokin.

Or maybe he just got it by watching Fox News.

Update: Noted that the USAT rebuttal came after Smirnov’s claims; the others came before.

Judge Mark Scarsi Orders Briefing on Whether David Weiss Is David Weiss

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I don’t think Judge Mark Scarsi is going to be very sympathetic to Hunter Biden’s arguments.

But I will give him this: The judge works quickly and attentively.

Just days after Hunter Biden submitted his reply briefs, Judge Scarsi noticed that Hunter’s attorney Abbe Lowell raised two issues in his replies to two technical motions to dismiss that Lowell had not raised in his original motions. Scarsi issued an order offering David Weiss the opportunity to file 5-page sur-replies to each and also ordered Lowell to submit three exhibits he mentioned if he wanted those to be considered as part of the record.

One new issue pertains to whether Weiss is estopped (pages 4-6) from arguing that Hunter was a resident in California in 2017 and 2018 after asserting he was a resident of DC in the DE tax information (I’m not convinced the record on that point backs Lowell).

A more interesting — but related one, one I have raised — has to do with whether two tolling agreements that Hunter signed with the US Attorney for Delaware and DOJ Tax Division apply in the case of an indictment obtained by Special Counsel David Weiss.

I. THE TOLLING AGREEMENTS DO NOT TOLL THE SOL BECAUSE THE SC IS NOT A PARTY TO THOSE AGREEMENTS

The SC’s reliance upon two tolling agreements with Biden is misplaced because the SC is not a party to those agreements. Those agreements are between Biden and the U.S. Attorney’s Office for the District of Delaware and the Tax Division at Main Justice (which acts through specific U.S. Attorney’s Offices). At the time Biden entered into these tolling agreements, he knew he was being investigated for tax violations by the U.S. Attorney’s Office for the District of Delaware, District of Columbia, and the Central District of California, but he entered tolling agreements only with Delaware. Venue and statute of limitations considerations would be unique as to each District.

Similarly, Biden did not enter into any tolling agreements with the SC, as no SC had even been appointed to investigate him when these tolling agreements were signed. The fact that the U.S. Attorney for Delaware David Weiss was subsequently appointed as SC—as opposed to someone else—does not mean the SC’s Office suddenly became a party to those prior agreements. The agreement is with the office, not the man (who did not sign these agreements in any event; AUSA Leslie Wolf signed on behalf of the Office and she is not a member of the Special Counsel’s Office). Weiss’s U.S. Attorney team is separate from his SC team, complete with distinct websites, email addresses (which they insist be used in place of their USAO addresses), stationary, and, more importantly, different responsibilities. Surely, the Delaware Office would not claim that such agreements become void whenever the U.S. Attorney leaves the office. Nor could anyone claim the State of Delaware would be a party to such an agreement if Weiss had become Attorney General of the state instead. Similarly, if John Doe had been named SC, instead of Weiss, there would be no basis for Doe to claim he inherited the tolling agreements entered into by Weiss or any other U.S. Attorney.

Tolling agreements are contracts, and the entry into those agreements by one U.S. Attorney’s Office does not typically bind other government entities absent language saying so. See, e.g., United States v. Viola, 562 Fed. App’x 559 (9th Cir. 2014) (Probation not bound by U.S. Attorney’s plea agreement); see also SOS Co. v. E-Collar Techs., 2017 WL 5714716, at *5 (C.D. Cal. Oct. 17, 2017) (tolling agreement did not apply to non-party that was not the alter ego of a party); Osman v. Young Healthcare, 2023 WL 2021703, at *7 (E.D. Va. Feb. 15, 2023) (tolling agreement with Department of Labor with respect to certain named plaintiffs’ claims did not extent to unnamed plaintiffs); United States v. FedEx Corp., 2016 WL 1070653, at *1 (N.D. Cal. Mar. 8, 2016) (finding tolling agreement with one company did not apply to a related company, even where government believed the agreement covered all related entities); Morning Star Packing v. Crown Cork and Seal, 2004 WL 7339592, at *7 (E.D. Cal. Aug. 3, 2004) (tolling agreements cannot be extended to new parties). The general rule is that agreements entered into by one U.S. Attorney’s Office binds only that office, unless stated otherwise. United States v. Annabi, 771 F.2d 670, 672 (2d Cir. 1985) (“A plea agreement binds only the office of the United States Attorney for the district in which the plea is entered unless it affirmatively appears that the agreement contemplates a broader restriction.”).2 Federal prosecutors in one office, for example, may prosecute a defendant who is immunized by an agreement with another office. See, e.g., Sertich, 649 F.3d 545, at *1 (ND Ind. Prosecution not barred by CDCA plea agreement); United States v. Laskow, 688 F. Supp. 851, 853 (E.D.N.Y. 1988) (finding EDNY prosecution not barred by CDCA plea agreement).3 What is good for the goose is good for the gander. The same rules that hold one U.S. Attorney’s Office not bound by plea agreements reached with other Offices mean that one Office cannot seek the benefits of tolling agreements reached by other Offices. Prosecutors should not be allowed to elect whether they are or are not bound by agreements between other Offices and defendants, depending on what suits them. Moreover, as with plea agreements and diversion agreements, any ambiguities in tolling agreements are construed in the defendant’s favor. See, e.g., United States v. Spector, 55 F.3d 22, 26 (1st Cir. 1995); United States v. Goyal, 2007 WL 1031102, *3 (N.D. Cal. Apr. 3, 2007).

2 The Diversion Agreement made with respect to Biden illustrates the difference. It provides: “This Diversion Agreement (the ‘Agreement’) is entered into between the United States of America, by and through the United States Attorney’s Office for the District of Delaware, and Robert Hunter Biden (“Biden”), collectively referred to herein as ‘Parties,’ by and through their authorized representatives.” (DA ¶1.) Thus, in the Diversion Agreement, the U.S. Attorney’s Office is executing the agreement on behalf of the United States. By contrast, the tolling agreements indicate that the party is the U.S. Attorney’s Office, but not the United States as a whole. Compare United States v. Sertich, 649 F.3d 545, at *1 (9th Cir. Oct. 24, 1995) (unpublished) (explaining an agreement that is confined to a particular U.S. Attorney’s Office binds only that office, as opposed to a more general agreement that binds the United States as a whole), with Thomas v. INS, 35 F.3d 1332, 1335 n.1 (9th Cir. 1994) (explaining an agreement made on behalf of the United States government, as opposed to a sub-part, applies to the government as a whole); United States v. Harvey, 791 F.2d 294, 301−03 (4th Cir. 1986) (explaining that an agreement entered into on behalf of the United States, as opposed to just a particular U.S. Attorney’s Office, binds the United States as a whole); see also Morgan v. Gonzales, 495 F.3d 1084, 1091 (9th Cir. 2007) (“As a general matter of fundamental fairness, promises made by the government to induce either a plea bargain or a cooperation agreement must be fulfilled. . . . A United States Attorney is authorized to enter into cooperation agreements and, in so doing, to make promises that are binding on other Federal agencies.”) (citations omitted).

3 By analogy, Andrea Gacki recently transitioned from her role as Director of the Office of Foreign Assets Control to being Director of the Financial Crimes Enforcement Network. It is difficult to imagine that anyone would think the agreements reached by OFAC under her watch no longer bind OFAC or that FinCEN is now bound by those OFAC agreements.

As I may follow-up, David Weiss is engaged in a number of such shell games, picking and choosing where his legal persons carry over and do not, and where his biological person can avoid accountability.

A far more urgent one than these tolling agreement pertains to discovery: Weiss seems to imagine that by becoming Special Counsel, he avoids discovery into materials held by or known to US Attorney David Weiss, including his conversations with (most pertinently) Los Angeles US Attorney Martin Estrada (who, after reviewing the merits of the case, decided not to join it), DC US Attorney Matthew Graves, and DOJ Tax Division (the last of which is a party to the tolling agreement). This is actually the opposite of how Jack Smith has operated and how the Crossfire Hurricane to Robert Mueller to Jeffrey Jensen inquiry operated with discovery, which carried over as one legal entity became another. I asked Weiss’ office some time ago whether they were adhering to the standard used by other Special Counsels but got no response.

It’s an interesting legal question, so I do look forward to Weiss’ legal commitment to a shell game.

Lowell did submit the three exhibits, which show Weiss withdrawing the plea offer, Chris Clark asking for time to consider it, and Derek Hines emailing the docket entry showing the request to withdraw the plea offer.

Update: I changed my mind, above. Lowell is absolutely right on the estoppel claim. The tax information filed in Delaware describes that Hunter’s residency was in DC in 2017 and 2018. It was signed by Leo Wise, so he can’t very well claim that he, personally, has not made that assertion before.

David Weiss Does Not Contest He Reneged on Hunter Biden’s Plea Agreement to Chase Russian Lies

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David Weiss has now had five opportunities to contest former Hunter Biden attorney Chris Clark’s declaration that on June 6, Weiss personally discussed language to provide Hunter immunity from further prosecution, and after that language was incorporated into the plea deal, on June 19, Weiss’ First AUSA told Clark that there was no ongoing investigation into the President’s son.

I requested to speak directly with U.S. Attorney Weiss, whom I was told was the person deciding the issues of the Agreement. Later that afternoon, on June 6, 2023, I spoke directly with U.S. Attorney Weiss. During that call, I conveyed to U.S. Attorney Weiss that the Agreement’s immunity provision must ensure Mr. Biden that there would be finality and closure of this investigation, as I had conveyed repeatedly to AUSA Wolf during our negotiations. I further conveyed to U.S. Attorney Weiss that this provision was a deal-breaker. I noted that U.S. Attorney Weiss had changed the deal several times heretofore, and that I simply could not have this issue be yet another one which Mr. Biden had to compromise. The U.S. Attorney asked me what the problem was with the proposed language, and I explained that the immunity provision must protect Mr. Biden from any future prosecution by a new U.S. Attorney in a different administration. The U.S. Attorney considered the proposal and stated that he would get back to me promptly.

Later that same evening on June 6, 2023, at or around 5:47 PM EST, AUSA Wolf emailed me proposed language for the immunity provision that read: “How about this- 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.” (Emphasis in original.)

[snip]

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

David Weiss is silent about proof that he reneged on immunity agreement made in June

Weiss has filed five responses to Hunter Biden claims that address how Weiss reneged on this agreement to immunize the President’s son from any further prosecution:

None of them contest those two claims from Chris Clark: That David Weiss was personally involved on June 6 before Lesley Wolf sent language immunizing Hunter for everything “encompassed” by the plea and diversion, and that Shannon Hanson assured Clark on June 19 there were no ongoing investigations.

Instead, these filings simply shift focus temporally. The responses to the selective and vindictive claim focus on earlier negotiations to falsely suggest that David Weiss did not personally buy off on language sent out on June 6.

For example, in an email to defense counsel dated May 18, 2023, about “a potential nontrial resolution,” Document 60-6 at p. 2, the AUSA stated, “As I said during our call, the below list is preliminary in nature and subject to change. We have not discussed or obtained approval for these terms, but are presenting them in an attempt to advance our discussions about a potential non-trial resolution . . .” The following week, in an email to defense counsel dated May 23, 2023, Document 60-9 at p. 3, the AUSA stated, “As we indicated in our emails and discussions we did not have approval for a pre-trial diversion agreement. As you know, that authority rests with the US Attorney who ultimately did not approve continued discussions for diversion related to the tax charges.” In response to this email, defense counsel wrote, “Ok. My client has asked that I speak to you further. Are you able to speak? I may have some slight flexibility.” Far from an agreement or an agency determination that these charges should not be brought, as the defense suggests in their briefing, these discussions merely indicate the parties were engaged in plea discussions at the line prosecutor level and the AUSA repeatedly disclosed that such discussions were subject to review and approval by the U.S. Attorney. [emphasis original]

The response to the IRS agent claim argues that because Gary Shapley and Joseph Ziegler had “ceased to have any role in the investigation” when the actual charging decisions were made in September and December, their media campaign could not have caused the earlier decision to renege on the plea deal and endorse precisely their charging decisions.

Here, the defendant does not argue that Shapley and Ziegler used any law enforcement technique that resulted in the charges currently before the court. In fact, the conduct he complains of occurred after Shapley and Ziegler ceased to have any role in the investigation.

Never mind that the claim conflicts with a Joseph Ziegler affidavit, which claims that, “As seen in these emails, we have continued to assist and turnover the Hunter Biden casefile to the new team,” and the related emails showing him still handing off documents on September 1 (though given document metadata, Ziegler continued to access and release to Congress records after that). What matters are not the charging decisions made in September and December but the earlier decision to renege on the plea deal.

What matters is that when Leo Wise stated, on July 26, that prosecutors could bring FARA charges against Hunter Biden, he was reneging on the terms of the signed plea deal.

What matters is that when David Weiss told Lindsey Graham on July 11 that Alexander Smirnov’s FD-1023 was part of an ongoing investigation, he signaled that he had decided to renege on the plea deal even before the plea hearing to chase the claim that the President of the United States had received a bribe, and that decision had nothing to do with Maryellen Noreika’s concerns about the structure of the diversion agreement.

Indeed, Abbe Lowell submitted proof that that was the intent all along, to renege on the plea deal. Weiss had submitted a heavily redacted copy of a letter Chris Clark wrote in response to Weiss’ proposed way to address Judge Noreika’s concerns, claiming that it showed that prosecutors did not, as Lowell had claimed, immediately demand a felony plea. Weiss was right, to a point. At that point Weiss was not demanding felony pleas. In his selective and vindictive reply, a declaration, and a timeline submitted yesterday, Lowell explained that Weiss started demanding felony pleas later than that, on August 29.

After the exchange cited by DOJ where Biden rejected its counterproposals, DOJ informed Biden the deal was off and made clear it would accept or charge felonies during a meeting with Biden’s counsel on August 29, 2023.

But those same papers and the unredacted copy of Clark’s response letter in question showed what happened instead: David Weiss’ first response to the concerns Judge Noreika expressed at the plea colloquy — partly how the diversion agreement worked with the plea, but also Wise’s claim that he could charge Hunter with FARA even though Hanson had said that would not happen a month earlier — was to eliminate any judicial protection and remove the immunity language entirely.

Second, the Government has proposed, without explanation, completely deleting the immunity provision in Paragraph 15 of the Diversion Agreement. We decline to amend the parties’ existing agreement on immunity. We will rely on this provision, as contained in the bilateral agreement that was signed and entered into between the parties.

The same letter showed that Hunter’s team believed the diversion remained in effect.

[W]e are fully prepared to continue proceeding with the terms of the Diversion Agreement, as executed. If the Court should determine that the breach provision in Paragraph 14 of the Diversion Agreement should be amended, then we would be fine with that, and at such time we would entertain making formal, written modifications pursuant to Paragraph 19. Otherwise the parties remain bound to the terms of the agreement that was signed and entered into.

This “offer” Weiss made, then, amounted to torching the signed plea deal and diversion agreement entirely.

This is the background to — as Lowell described — Weiss’ demand that Hunter either accept that useless deal immediately, before — minutes later — Weiss rolled out his Special Counsel authority.

8/9/23: DOJ responds to Biden’s counsel’s August 7 letter, and argues that neither the PA nor DA are in effect, and neither side is bound. In that letter, DOJ withdraws the PA and the DA it offered Biden on July 31, 2023, and withdraws the PA and the DA presented to the Court on July 26, 2023.

DOJ notifies Biden’s counsel that it intends to move to dismiss the tax information without prejudice and pursue charges in another district where venue lies, and requests Biden’s counsel’s position by no later than August 11, 2023.

8/10/23: Biden’s counsel emails AUSA Wise to inform him they are discussing DOJ’s August 9 letter and the options with Mr. Biden. Biden’s counsel asks if they may respond to DOJ’s requested position by Monday (August 14) instead of by Friday (August 11). Alternatively, Biden’s counsel proposes having a conference with the Court.

8/11/23: At Noon (12:00 pm), AUSA Wise replies to Mr. Clark’s email that the United States declines to extend the time in which it asked for Biden’s position on the motions identified in its August 9 letter, and further declines to have a conference with the Court.

Approximately five minutes later, at 12:05 pm EST, before Biden’s counsel could even respond to DOJ or discuss it with Mr. Biden, DOJ moves to dismiss the criminal tax Information without prejudice against Biden, so that tax charges can be brought in another district.

David Weiss replaced Lesley Wolf, and by doing so, has tried to get away with letting Leo Wise and Derek Hines to renege on the terms of a plea deal he himself signed, as if his signature wasn’t on the deal.

And he did so, it is now clear, to chase a Russian information operation. David Weiss got his ass handed to him by Russian spies and to hide his embarrassment, he’s trying to claim that he didn’t renege on a signed plea.

Neither Weiss nor Lowell has yet addressed Smirnov directly

For reasons I don’t understand, Lowell has not filed any motion specifically addressing the role of Alexander Smirnov in all this, in either Delaware or Los Angeles. As a result, the sum total of discussion about the role of the Smirnov claim in Hunter’s prosecution consists of the following:

First, in Lowell’s Reply Motion to Compel in Delaware, he noted that he had asked for things pertinent to the Scott Brady side channel, and the treatment of the Smirnov allegations made that discovery all the more important.

The fact that Special Counsel Weiss, beginning in July 2023, then elected to chase the goose making these unsubstantiated claims— after several DOJ and FBI officials agreed the matter should be closed—is all the more justification for granting Mr. Biden’s request for these DOJ materials.

In response, Weiss tried to anticipate mention of Smirnov in Lowell’s Reply. imagining that because Weiss is prosecuting Smirnov, it debunks the claim Hunter made in his deposition that Congressional Republicans were duped by a Russian disinformation campaign.

He claimed, “Smirnov, who has made you dupes in carrying out a Russian disinformation campaign waged against my father, has been indicted for his lies.”12 While the defendant testified to Congress that the Special Counsel had undermined the impeachment inquiry conducted by House Republicans, to this Court he argues instead that the Special Counsel is working at the behest of House Republicans. Motion at 13. Which is it? Indeed, the defendant has no evidence to support his shapeshifting claims because the Special Counsel continues to pursue the fair, evenhanded administration of the federal criminal laws.

That same day, in Delaware, Lowell cited the newly-released Scott Brady transcript to argue that Weiss, by continuing to prosecute Hunter, is doing just what Russia wanted with the Smirnov operation: to gin up a prosecution of Hunter.

From the filings in Smirnov and other disclosures, it turns out that a Russian intelligence operation has the same goal of spreading disinformation to influence the U.S. presidential election in Russia’s favor.

[snip]

Mr. Wise explained that Smirnov’s “disinformation story” is part of a Russian intelligence operation “aimed at denigrating President Biden” and “supporting former President Trump.”

[snip]

This case illustrates the very continuing harm identified by the Special Counsel. The Special Counsel tells us Russian intelligence sought to influence the U.S. presidential election by using allegations against Hunter Biden to hurt President Biden’s reelection. 3 And what did the now-Special Counsel do? The Office abandoned the Agreement it signed and filed felony gun and tax charges against Mr. Biden in two jurisdictions, which public records and DOJ policy indicate are not brought against people with similar facts as Mr. Biden. In these actions, the Special Counsel has done exactly what the Russian intelligence operation desired by initiating prosecutions against Mr. Biden.

In yesterday’s filing in Los Angeles, however, Lowell was still pretty circumspect about Smirnov.

In the section describing how Weiss had reneged on a signed deal, he attributed Weiss’ decision to renege on the deal to his pursuit of the Smirnov allegations. Then, in the section on Congress’ usurpation of prosecutorial function, Lowell laid out how stupid it is for Weiss to claim the charges against Smirnov, over three years after Weiss first got this referral, is proof that Weiss didn’t bow to pressure from Congress.

DOJ also chooses this part of its brief to argue its indictment of Alexander Smirnov suggests it is not a puppet of the GOP (perhaps DOJ’s whole inspiration for bringing that indictment). (Id.) Biden never suggested DOJ is a puppet of the GOP, but that DOJ has caved to political pressure several times in ways that specifically violate Biden’s rights. And DOJ indicting someone who falsely accused Biden of serious crimes does not prove it is treating him fairly. Instead, it calls into question why DOJ reopened long debunked allegations by Smirnov in July 2023 (as it was reneging on its agreements with Biden) when, having gone down that rabbit hole, DOJ was then forced to defend its actions by charging Smirnov with offenses it could have bought years earlier.

Lowell doesn’t make several details of the timeline explicit.

First, on the same day that Weiss sent Lindsey Graham that letter stating that the FD-1023 was part of an ongoing investigation, July 11, Shannon Hanson described that “the team,” on which she did not include herself at that point, was in a secure location. As I’ve noted, there was no reason for “the team” to be in a SCIF in preparation for the plea deal. There’s nothing classified about it. It’s evidence that, before Wise reneged on the scope of the plea deal on July 26, “the team” had already decided to chase the Smirnov allegation.

My hunch is that we’ll learn that whatever Weiss told Merrick Garland about needing Special Counsel status (note, he bypassed Brad Weinsheimer to get it), he did not represent the plea negotiations as the current record suggests they happened. My hunch is that Weiss may have claimed Hunter was being a good deal more intransigent then simply demanding that a plea be worth the toilet paper it was written on in the first place.

But to get Special Counsel status, Weiss likely claimed he was going to investigate Joe Biden.

While it’s true that Garland assured Weiss he could get Special Counsel status whenever he asked, investigating the President is the only thing that presents the kind of conflict that would require full Special Counsel status. And, as I’ve noted, Weiss grounds his authority to prosecute Smirnov in the language in the Special Counsel appointment permitting him to investigate anything that comes out of the investigation authorized with the appointment itself, which must, then, have included Joe Biden as well as his son.

Lowell made this point in his Notice of Authority submitted in Delaware.

The connection between the reopening of the Smirnov allegations and the then-U.S. Attorney’s Office’s total rejection of the Agreement it made has, at the least, the appearance of catering to the shouts of extremist Republicans to scuttle the deal and keep an investigation into Mr. Biden alive.

But he has not done so in Los Angeles.

On August 29, prosecutors expressed overconfidence about their investigation

Lowell has declined to do so even though the timeline he lays out — how, on August 29, prosecutors demanded felony pleas — intersects closely with the Smirnov one. Lowell’s declaration describes that at 11AM on August 29 — in what appears the first meeting after Weiss got Special Counsel status and after Judge Noreika dismissed the tax indictment — Leo Wise fully retracted all offers that had been discussed to that point.

3. On August 29, 2023 at approximately 11:00 AM, I (along with my law partner, Christopher Man) met with Assistant United States Attorneys Leo Wise and Derek Hines at the U.S. Attorney’s Office in Wilmington, Delaware. The meeting lasted approximately one hour. Our position was that the Diversion Agreement was in effect, and we sought to work with the government to effectuate the substance of the proposed Plea Agreement by addressing the procedural concerns the Delaware court raised on July 26, 2023.

4. During that meeting, Mr. Wise stated, in sum and substance, that DOJ was no longer willing at this point in time to (i) carry out the misdemeanor tax agreement it had made; (ii) commit to a “no jail” recommendation for Mr. Biden that it also had made; and (iii) maintain the parties’ agreed-to immunity provision. While Mr. Wise said he was only in a “listening mode,” the only type of charge even mentioned at the meeting were felonies, which are exactly what the Office filed about two weeks later in the District of Delaware.

At that same meeting, Lowell requested that he get an exact copy of the laptop.

The defendant’s counsel met with government counsel in Wilmington on August 29, 2023, and made a specific request for an exact forensic copy of the laptop and external hard drive. His defense counsel reiterated this request in an email dated September 25, 2023, in which defense counsel stated “we want to ensure the data we receive is an identical copy as you have it and that the data will retain its native forensic properties (e.g., time and date stamps, file paths, operative system characteristics, user profile information, etc.)” and that the “data loaded on the hard drive is complete and identical in every shape and manner to that obtained by the FBI when it acquired possession” of the laptop and hard drive. The government accommodated this request.

And prosecutors also claimed (erroneously, it now appears) that they had clean sources for everything otherwise found on the laptop.

As to the meeting between Mr. Biden’s counsel and prosecutors in Wilmington on August 29, 2023 (Opp. at 19), Mr. Biden notes that prosecutors indicated, during that meeting, that they possess “independent sources” for any material on the laptop device that would be helpful to the prosecution’s case, presumably referring to material subpoenaed from third parties, such as Apple, Inc. or various cellphone carriers. For this reason, it was curious to Mr. Biden’s counsel when reviewing the prosecution’s response that it elected to cite to and quote from messages and photos contained on the device it possessed (lacking any Bates stamps) rather than from those “independent sources” included in the discovery produced to the defense.

That same day prosecutors mistakenly claimed they wouldn’t have to rely on the laptop to prosecute Hunter Biden, also on August 29, Smirnov’s handler described that he and Smirnov reviewed the allegations against President Biden after the FD-1023 leaked and Smirnov stood by his claims.

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

Did representations from Smirnov’s handler contribute to prosecutors’ hubris in imagining they had all the evidence they needed against the President’s son? Did they initially pursue particularly draconian charges against Hunter in hopes they could get him to flip against his father?

At some point — the indictment doesn’t reveal whether the handler only came clean about Smirnov’s lies in the following weeks — Smirnov’s handler provided the messages and travel records that made it clear Smirnov was lying.

44. The Handler provided investigators with messages he had with the Defendant, including the ones described above. Additionally, the Handler identified and reviewed with the Defendant travel records associated with both Associate 2 and the Defendant. The travel records were inconsistent with what the Defendant had previously told the Handler that was memorialized in the 2020 1023. The Defendant also provided email communications with both Associate 2 and Burisma personnel beginning in 2017 to the Handler, which the Handler reviewed with the Defendant and shared with FBI investigators.

On the day Weiss discovered Smirnov was lying, he should have called up Merrick Garland, told him he had to recuse from both the Smirnov investigation and — because of the apparent role of the Smirnov 1023 in his decision to renege on the plea agreement — even the Hunter Biden one. On that day, Weiss became a witness to a potential criminal conspiracy.

Weiss’ false claims about discovery into the side channel

Weiss did not do that.

Instead, at least in the months before the Smirnov indictment, he prevaricated over discovery.

On November 7, over a month after the FBI interviewed Smirnov and confirmed his lies, David Weiss told the House Judiciary Committee Chief Counsel Steve Castor that the side channel would only show up in his eventual report.

Q Brady told us that he had such trouble getting ahold of you and your office, that he had to go through the PADAG, and basically the PADAG had to intervene and instruct your office to take a meeting with him.

A Is that a question?

Q Yes. Why wouldn’t you meet with Mr. Brady?

A I’m not at liberty to discuss that at this time. I look forward to the opportunity to addressing this in the special counsel’s report at the appropriate time.

Weiss committed that Brady’s role in this would only appear in the final report after a number of details of Brady’s claims to have vetted the Smirnov claim — which Jerry Nadler referred to both Michael Horowitz and Merrick Garland for potentially criminal investigation — had been publicly aired.

Then, on November 15, Lowell asked for discovery that would cover the side channel and also permission to subpoena those, like Bill Barr, who continued to engage in discussions of the side channel as private citizens, without protection of prosecutorial immunity.

The response to the latter, written in December by then newly promoted “Principal Senior Assistant Special Counsel” Leo Wise, repeats Weiss’ silence about his decision to renege on the plea deal. Given the accumulating evidence that Weiss reneged on the plea deal in order to chase the Smirnov allegation, such silence is deafening.

It blows off the request for a subpoena to Bill Barr — who made public representations about the side channel the day after Weiss agreed to immunize Hunter against further investigation, the agreement on which Weiss reneged — by emphasizing that as former Attorney General, Barr could have no influence on Weiss’ actions.

Defendant asks the Court to enter an order directing subpoenas, which seek broadly worded categories of documents across seven years, to former President Donald J. Trump, former Attorney General William P. Barr, and two other former officials in the U.S. Department of Justice. Defendant contends that the requested material “goes to the heart of his pre-trial and trial defense that this is, possibly, a vindictive or selective prosecution that arose out of an incessant pressure campaign that began in the last administration, in violation of Mr. Biden’s constitutional rights.” ECF 58, at 14. It is worth noting from the outset that defendant misunderstands the difference between pretrial arguments to dismiss an indictment and trial defenses. It is black-letter law that claims of vindictive and selective prosecution are not trial defenses and may only be brought and litigated pretrial. They are not defenses and, therefore, are never argued to trial juries.

In any event, both vindictive- and selective-prosecution claims turn on the actual intent of the specific decisionmaker in a defendant’s case: here, the Special Counsel. But not only does defendant’s motion fail to identify any actual evidence of bias, vindictiveness, or discriminatory intent on the Special Counsel’s part, his arguments ignore an inconvenient truth: No charges were brought against defendant during the prior administration when the subpoena recipients actually held office in the Executive Branch.

And in response to the request for a subpoena to Richard Donoghue, the response noted that Donoghue ordered that, “the Delaware investigation receive the information from the Pittsburgh team, which was being closed out.”

Against this backdrop, the gaps in defendant’s motion become glaring: absent is any credible argument that (a) one of the subpoena recipients, rather than the Special Counsel, made the decision to prosecute the defendant and that the Special Counsel merely followed an order, or (b) that the Special Counsel himself has treated similarly situated individuals differently or decided to prosecute for discriminatory purposes. In fact, throughout the defendant’s entire constructed narrative, he barely refers to the actions or motives of the then-U.S. Attorney, nowSpecial Counsel, much less makes Armstrong’s “credible showing” of disparate treatment, discriminatory intent, or retaliatory motive on his part. Nor has defendant addressed the impact of the sitting Attorney General’s subsequent determination that, “to ensure a full and thorough investigation” of these matters, it was necessary to confer the additional jurisdiction and independence outlined in 28 C.F.R. § 600.04–600.10. See Order No. 5730-2023.

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

None of these contacts or events provides any evidence involving either the disparate treatment of similarly situated individuals or a discriminatory intent behind the U.S. Attorney’s prosecutorial decision. [my emphasis]

The existence of the side channel alone is testament to disparate treatment of Hunter Biden. Importantly, Donoghue is a fact witness about what Weiss did in 2020.

The response to Lowell’s request for discovery on the side channel, a request that explicitly applied to the diversion agreement as well, was even more non-responsive. It simply ignores Bill Barr’s role entirely.

It’s the response to the subpoena that looks particularly damning, though.

As I’ve noted, there are some key gaps in the Smirnov indictment. First, in describing who set up the side channel in the first place, Weiss claimed Deputy Attorney General Jeffrey Rosen set it up, when Brady testified that Barr was personally involved (as Barr’s public comments make clear).

22. In June 2020, the Handler reached out to the Defendant concerning the 2017 1023. This was done at the request of the FBI’s Pittsburgh Field Office (hereafter “FBI Pittsburgh”). In the first half of 2020, the United States Attorney’s Office for the Western District of Pennsylvania (hereafter “USAO WDPA”) had been tasked by the Deputy Attorney General of the United States to assist in the “receipt, processing, and preliminary analysis of new information provided by the public that may be relevant to matters relating to Ukraine.” As part of that process, FBI Pittsburgh opened an assessment, 58A-PG-3250958, and in the course of that assessment identified the 2017 1023 in FBI holdings and shared it with USAO WDPA. USAO WDPA then asked FBI Pittsburgh to reach out to the Handler to ask for any further information about the reference in his 2017 1023 that stated, “During this call, there was a brief, non-relevant discussion about former [Public Official 1]’s son, [Businessperson 1], who is currently on the Board of Directors for Burisma Holdings [No Further Information]”

The silence about Barr’s role is particularly telling given persistent misrepresentations of Hunter Biden’s discovery asks about Barr.

More tellingly, the indictment doesn’t confess that Donoghue ordered Weiss to look at the FD-1023 in 2020, days after Trump called up Bill Barr and screamed at him for not investigating Hunter Biden more aggressively.

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

Leo Wise’s description of this process at Smirnov’s first detention hearing was even more dishonest.

[T]he FBI in Pittsburgh took some limited investigative steps, but their steps were limited by the fact that they were only conducting an assessment, which under FBI policies is not an investigation. And it prevents, for instance, the use of compulsory process like grand jury subpoenas or the compulsion of testimony. So based on that limited review, the FBI closed its assessment in August.

Weiss has a problem.

He was ordered to investigate this in 2020, and did nothing, possibly because Lesley Wolf knew the entire side channel project was corrupt. But if that’s why Weiss did nothing in 2020, it makes his decision to renege on a plea deal to go chase this lead inexcusable.

He ignores his earlier receipt of this tip in the indictment to create the illusion that he investigated the FD-1023 for the first time starting in July.

But in the opposition for subpoenas in December, Leo Wise acknowledged that Donoghue issued that order in 2020.

Weiss is saying one thing in the Smirnov prosecution and saying something else in an effort to hide Smirnov discovery from Hunter Biden.

And he’s saying those conflicting things after telling Congress that Brady’s role in this would show up only in his closing report, and not in follow-up indictments for false claims to Congress.

Realistically, the investigation into how Smirnov allegedly framed Joe Biden should go in at least three directions: First, into Russia and Ukraine (and possiblyIsrael)’s specific role in his alleged lies, such as whether Andrii Derkach had ties to Smirnov in 2020. As part of that, the FBI will need to investigate why Smirnov didn’t disclose his earlier ties to Russian Official 5 to his handler, whom he flipped for a third country in 2002, until 2019.

The investigation needs to figure out how Scott Brady came to look for Smirnov’s earlier FD-1023 in the first place, because his claimed explanation makes no sense. It’s possible that arose from some mutual tie between Smirnov and Rudy Giuliani and could implicate Rudy personally. At the first Smirnov detention hearing, Wise at least mentioned Rudy Giuliani’s role in all this, suggesting Weiss’ team might fancy they’re pursuing that angle, at least. But they have no business doing so, because that implicates Weiss’ contacts with Brady. Again, he is a direct witness.

But just as importantly, the investigation needs to examine why Brady claimed the tip had been vetted in 2020, and why Brady created the impression with Congress that Smirnov’s travel records matched his claims, rather than debunked them. The investigation needs to examine whether Barr, or the indictment, is telling the truth about what Weiss was supposed to do with the lead in 2020. Neither Brady nor Barr are immunized as prosecutors anymore. And there’s no reason their attempts to influence the criminal investigation into Joe Biden’s son in advance of an election should evade scrutiny.

That goes right to the heart of why Weiss reneged on the plea deal. It goes to all the discovery and subpoenas that Weiss has already refused, claiming that it had no bearing on diversion or a vindictive prosecution claim. It goes to Weiss’ wildly unsound decision to remain on the case after he became a witness in it.

As it turns out, it has everything to do with Hunter’s diversion and vindictive prosecution claims.

Hunter Biden’s Replies to His Motion to Dismiss

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I was laughing that David Weiss’ prosecutors would get sloppy with Roger Stone references in a case I was covering closely. It got me two citations in Hunter’s reply on selective prosecution.

8 Stone, No. 21-cv-60825, DE 1 ¶¶ 40-53 (accusing Stone of seeking to shelter his wealth from criminal forfeiture); Bill Barr Repeatedly Lied, Under Oath, About Judge Amy Berman Jackson, https://www.emptywheel.net/; United States v. Stone, Case 1:19-cr- 00018-ABJ DE 260 (Verdict Form). It is particularly ironic that DOJ would try to use Biden’s gun charge under a statute expressly reserved to protect public safety—to justify criminal tax charges when only Stone was charged with endangering anyone.

9 DOJ acts like, rather than honestly describe his struggles, Biden published his memoir to brag about his crimes, which is particularly absurd considering the memoir mentions neither the gun he is accused of purchasing nor his failure to pay his taxes.

10 See Marcy Wheeler, David Weiss is Smoking Roger Stone’s Witness-Tampering Gun, Emptywheel (Mar. 11, 2024), https://www.emptywheel.net/2024/03/11/david-weiss-is- smoking-roger-stones-witness-tampering-gun/. This included an introduction repeating the false claims at the core of his 2019 convictions for threats and intimidation, and Stone even litigated whether his memoir was covered by the gag order the judge issued in response to his threats. See Stone, No. 1:19-cr-00018, DE61 (S.D. Fl.).

As I’ll lay out later, it’s now crystal clear that David Weiss reneged on the plea deal in order to chase Alexander Smirnov’s lies.

Here are the reply motions:

A Third Tie between Trump World and Alexander Smirnov

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Before I point to a report on third known link between Alexander Smirnov — the FBI informant whose allegedly false claims about Joe Biden were laundered through a process Bill Barr set up for Rudy Giuliani in 2020 — and Donald Trump, let me lay out several details that are important to assessing the import of such ties.

  • Smirnov was admonished on the limits of permission to engage in Otherwise Illegal Activities on at least five occasions, including on August 7, 2020. That’s what the FBI does before they pre-approve you committing a crime because they want to learn about the other people committing crimes involved. For any given sketchy business someone reports Smirnov to have engaged in, there’s a distinct possibility he was engaging in it because the FBI was interested in the other people engaged in the business.
  • Smirnov’s ties to Russian spies go through at least one other intelligence service — probably Israel. But, at least for the last six months, he has been hanging out on the megayachts of Russian Oligarchs, almost certainly in Dubai, where, according to him, he was part of a plan to end the Ukraine war and elect Donald Trump.
  • One unanswered question that will be key to understanding how Smirnov attempted to frame Joe Biden is to identify how MAGAt US Attorney for Pittsburgh Scott Brady came to chase an otherwise unremarkable earlier Smirnov informant report mentioning Hunter Biden in passing. Given that Brady’s project catered to Rudy, any link involving Rudy as well would be significant.
  • But we may not discover that unless something dramatic happens, because David Weiss has no business overseeing this investigation, as he’s a direct witness to the involvement of Brady and Bill Barr. Indeed, as Hunter Biden attorney Abbe Lowell recently pointed out, Weiss has misrepresented his involvement in the Smirnov lead, going back to 2020, and by chasing this lead and extending the prosecution of Hunter Biden, he is effectively doing Russia’s bidding.

We already know of two ties between Trump world and Smirnov. His cousin, Linor Shefer, has ties to Trump through a Miami Real Estate developer.

Shefer, a 38-year-old Israeli-American, was a former contestant on the Israeli version of reality show Big Brother, and in 2014 won the Moscow beauty pageant ‘Miss Jewish Star’.

According to her LinkedIn page, she has been an ‘Inhouse Consultant’ for Dezer Development in Miami, Florida since 2022.

Dezer partnered with Trump’s organization to develop the $600 million Trump Grande Ocean Resort and Residences and $900 million Trump Towers. The company is run by Gil Dezer, and founded by his Israeli-American billionaire father Michael, who is a Trump donor.

And Smirnov has ties to Sam Kislin, who not only has long-standing ties to Rudy and Trump, but who came under some scrutiny during the 2019 impeachment.

Around 2021, on the beach at a private club in Boca Raton, Smirnov pitched Kislin on founding a company together that would market electric-car batteries and capture federal subsidies, Kislin said.

Smirnov told him he also could use his FBI ties to help him unfreeze more than $21 million in infrastructure bonds that belonged to Kislin but which Ukrainian authorities deemed had been issued illegally, embroiling Kislin in a corruption probe, Kislin said.

Kislin had for years been seeking to unfreeze the funds, traveling to Ukraine and meeting with officials there. His travel there coincided with efforts by Giuliani and his associates to push the Ukrainian government to investigate Biden, and in 2019, Kislin was subpoenaed by House impeachment investigators who were looking into those efforts. Kislin’s lawyer said he didn’t have relevant information, and he didn’t ultimately testify.

Smirnov set his fee for recovering Kislin’s $21 million at $1 million, according to Kislin, who said he paid Smirnov $224,000—partially as an advance and partially as an investment in the car-battery company, incorporated in Nevada in May 2021 as Quantum Force.

After a little over a year, Quantum Force dissolved and registered by the same name in a different state—this time without Smirnov listed in the corporate records.

When a solution to Kislin’s problem in Ukraine failed to materialize, Kislin said he deduced that Smirnov had taken him for a ride.

The Guardian points to a third — one through another of the sketchy businesses with which Smirnov worked, which includes a Middle East real estate tie:

Back in 2020, Smirnov was paid $600,000 by a company called Economic Transformation Technologies (ETT), prosecutors said. That same year, Smirnov began lying to the FBI about the Bidens, according to the indictment.

ETT’s CEO is the American Christopher Condon, who is also one of three shareholders in ETT Investment Holding Limited in London. Other shareholders in the UK include Pakistani American investor Shahal Khan and Farooq Arjomand, a former chairman and current board member of Damac Properties in Dubai who is also listed as an adviser on ETT’s American website.

[snip]

The exact business model of Texas-based ETT is murky. Its mission statement reads in part: “ETT set up the chess board to bring in top notch executives from those sectors to help implement its vision of love and social impact to improve the quality of human existence through the application of ‘new age’ technologies.”

The current CEO, Condon, is a California man who has been involved in several civil lawsuits, including a civil Rico case in 2010 that he won on appeal. Condon’s official biography says he is “a former professional tennis player, financial advisor, and currently is an entrepreneur focused on social-impact projects, public-private partnerships, and creating smart communities that benefit both individuals and governments”.

Condon, Arjomand and Khan registered ETT Investment Holding Limited in the UK on 6 March 2020. Khan, an investor who purchased the Plaza Hotel in 2018, and Arjomand have ties to Donald Trump through Trump associates and Damac, a major Middle East developer that has partnered with Trump for a decade. Arjomand, Khan and Condon owned 34%, 33% and 33% of ETT Investment Holding Limited respectively, according to UK business filings. No other information on the UK company is readily available.

The WSJ story — the same one that focused on Kislin — already laid out some sketchy aspects of Smirnov’s ties to ETT, and states that the relationship began in 2019.

Smirnov helped another company—Texas-based Economic Transformation Technologies, a software platform focused on “sovereign economic performance”—solicit investors starting around 2019, former associates said.

Smirnov was aware of concerns among investors and employees about some of the company’s practices, one of the associates said. The company was failing to pay some of its bills and several of its employees despite spending lavishly on travel and maintaining its exorbitant rent in the Dallas Cowboys headquarters, former associates and investors said.

Still, Smirnov brought in investors to meet with the company’s chairman, Christopher Condon, and other company executives—among them Kislin, who didn’t ultimately invest. Condon described Smirnov to associates as a “Russian friend of ours” who was skilled at fundraising, a former associate said.

It described that Condon knew of Smirnov’s FBI ties.

Smirnov’s FBI connections often came up in conversation as he hawked his services. Condon, the ETT chairman, also told people that Smirnov had “friends” in the FBI and described him as his protector who could help shield him from investigations, former associates said. Condon’s lawyer said Condon didn’t know the extent of Smirnov’s FBI involvement, and Condon denied describing Smirnov as a protector.

There are a lot more details of the Trump ties of Khan and Arjomand in the Guardian piece. What’s not included in there is the date in 2020 that ETT paid Smirnov. Particularly given Condon’s other sketchy ties, if that payment was anywhere close to August 2020, when we know Smirnov was given permission to engage in otherwise illegal activity, it may be his business ties were done with the knowledge and permission of the FBI.

Of course, the people with whom he engaged in OIA could well have a link to Scott Brady’s discovery of Smirnov. That’s why it is so problematic that Weiss, a witness, is leading this investigation.

In a status hearing for Hunter Biden yesterday (at which his gun trial was tentatively scheduled for the first two weeks of June), prosecutor Derek Hines suggested the Smirnov trial is still set to go starting on April 23, in spite of a recent CIPA filing. Also yesterday, Judge Otis Wright denied Smirnov’s bid to be released to San Francisco to receive glaucoma care.

Update: Fixed spelling of Shefer’s first name.

Update: CBS has a story describing a past complaint that Smirnov is a fraudster and a liar. Again, it’s hard to distinguish, without knowing more, whether for the FBI, that was the point.

Smirnov surfaced as a key secret witness in a sweeping racketeering case in California in 2015. In that case, the Justice Department brought charges against 33 defendants with ties to Armenian organized crime groups. Among the charges were money laundering, health care fraud and even a murder-for-hire.

Smirnov’s information contributed to the case against a married couple, Tigran Sarkisyan and his wife Hripsime Khachatryan, charged with conspiring with others to use fake identities to collect tax reimbursements from the federal government. The couple eventually pleaded guilty to a single count of racketeering in May 2017. In a 2018 sentencing memorandum, the couple’s lawyers flatly accused Smirnov of deceit.

“The [Confidential Human Source] was known to the United States as a liar and fraudster,” the sentencing brief states.

A footnote in the document states that the government was provided with the notes of their private investigator’s interview with a close associate of Smirnov who repeatedly called him a “liar.”

[snip]

Benincasa believes federal prosecutors realized they had a problem. According to Benincasa, the prosecutors had originally indicated they would be seeking a 10-year sentence as part of any plea deal. But after the lawsuit was filed, the government softened its position. Benincasa said he believes prosecutors wanted to avoid seeing Smirnov deposed in the civil case and possibly have his identity as an informant exposed. In the end prosecutors asked for 21 months, an unusually sharp reduction from the original 10 years that Benincasa says they were seeking. The judge ultimately sentenced the couple to 15 months.