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Special Counsel Weiss Demanding that Hunter Biden Show Up for Initial Appearance

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David Weiss and Abbe Lowell are already having fights that suggest Weiss wants to give the GOP a bread and circus proxy fight with Trump’s perceived enemies.

Weiss is demanding that Hunter Biden appear in person for his initial appearance; Hunter believes that’s unnecessary, in significant part because he already did the things — like getting a mug shot and getting processed through probation — in this docket, before Judge Marylin Noreika, that he would otherwise do at an initial appearance for the gun charge.

Republicans will complain that one reason he cited — the Secret Service expenses — weren’t a consideration for Trump’s two federal arraignments.

Mr. Biden also seeks this procedure to minimize an unnecessary burden on government resources and the disruption to the courthouse and downtown areas when a person protected by the Secret Service flies across the country and then must be transported to and from a downtown location. Without getting into specifics, numerous agents and vehicles are required for what would have to be a two-day event (for a proceeding that may be very short in duration). This includes agents and vehicles in California and in Delaware, as well as agents who must travel with him on the plane. In addition, as the Court is aware of from the last appearance, security also requires shutting down local roadways in downtown Wilmington, advance coordination with local law enforcement and the U.S. Marshals Service, and several other logistical challenges.

As Hunter’s filing notes, though, the DE Court has already waived personal appearances this year.

arraignments by video when it is more efficient to do so.2 In this regard, the request by Mr. Biden is not out of the ordinary arraignments by video when it is more efficient to do so.2 In this regard, the request by Mr. Biden is not out of the ordinary.

[snip]

The government’s opposition to this common-sense request is puzzling because Mr. Biden is not asking for special treatment with this request, as individuals without the additional considerations described herein regularly make such appearances by video.

Note, these appearances would have taken place before Hunter’s father ended the federal COVID emergency — but it is true that people are still permitted to make initial appearances remotely.

It sounds like Weiss (and Leo Wise, who has insisted on public humiliation as part of this procedure), wants to argue for a change in release conditions, and do so while Hunter is there in public.

Since that proceeding, Mr. Biden has scrupulously complied with his conditions since returning home to California (D.E. 15), and it is his expectation that those conditions will remain in place until the Court orders otherwise. Moreover, should there be any discussion of revising Mr. Biden’s existing conditions of release, there is no reason why these discussions cannot take place with the Court and the government present by video conference.

That will be an interesting discussion, given that these charges were charged 59 months after the alleged crime, for something that Weiss already agreed merited a diversion. Perhaps Weiss will use his larded on charges and the felony punishment to make an argument that Hunter would be more likely to flee — but again, Weiss already agreed this merited diversion.

This may also be a tactical fight, in advance of the challenge Lowell has already promised about whether Weiss can indict Hunter for charges he already agreed to divert. As Hunter noted, it got put in the same docket, with the prior initial appearance noted, affirming that it is the same proceeding.

Things are going to get testy. They’re going to get testy in a way that will provide yet more evidence that Republicans are demanding — and Weiss is acceding — to treat this as a proxy prosecution for Trump’s opponent, even though it is, instead, the prosecution of a private citizen. They’re going to get testy in a way that will justify a stunt that was premature when Hunter’s attorneys threatened it last year — to put the President on the stand to lay out how this is a proxy fight designed to get to him.

Judge Noreika ordered Weiss to respond by tomorrow.

David Weiss May Have More Bluster than Tactical Leverage

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There’s something missing from coverage of the claim, made in the second-to-last sentence of a Speedy Trial filing submitted Wednesday, that David Weiss will indict Hunter Biden before September 29, when — according to calculations laid out by prosecutor Leo Wise in the filing — the Speedy Trial Act mandates an indictment.

None of the coverage has considered why David Weiss hasn’t already charged the President’s son.

The filing was submitted in response to an August 31 order from Judge Maryellen Noreika; its very last sentence politely asked her to butt out: “[T]he Government does not believe any action by the Court is necessary at this time.” Given the unusual nature of this legal proceeding, there may at least be question about Wise’s Speedy Trial calculations. One way or another, though, the Speedy Trial clock and the statute of limitations (which Wise said in July would expire on October 12) are ticking.

It would take probably half an hour to present the evidence for the weapons charge — which would consist of the form Hunter signed to purchase a gun, passages from Hunter’s book, a presumed grand jury transcript from Hallie Biden, and testimony from an FBI agent — to a grand jury. It would take maybe another ten minutes if Weiss wanted to add a false statements charge on top of the weapons charge. There certainly would be no need for a special grand jury.

Any tax charges would be more complicated, sure, but they would be in one or another district (probably Los Angeles), ostensibly severed from the weapons charge to which the misdemeanors planned as part of an aborted plea deal were linked.

So why wait? Why not simply indict and avoid any possible challenge to Speedy Trial calculations?

The answer may lie in something included in a long NYT story citing liberally from an anonymous senior law enforcement official who knew at least one thing that only David Weiss could know. That story explains that Weiss sought Special Counsel status, in part, to get, “added leverage in a revamped deal with Mr. Biden.”

If Weiss indeed sought Special Counsel status to get leverage for a deal, then at least last month when he asked for it, he wasn’t really planning on indicting Hunter Biden. He was hoping to get more tactical leverage to convince Hunter Biden to enter into a plea agreement that would better satisfy GOP bloodlust than the plea that failed in July.

Now he has used the opportunity presented by Noreika’s order to claim he really really is going to indict Hunter, a claim that set off predictably titillated reporting about the prospect of a Hunter Biden trial during the presidential election.

Again, if you’re going to charge Hunter Biden with a simple weapons charge, possibly a false statements charge, why not do it already, rather than threatening to do it publicly? Why not charge him in the week after Noreika entered that order, mooting all Speedy Trial concerns?

Abbe Lowell appears unimpressed with Weiss’ promised indictment. He repeated in both a separate filing and a statement to the press that Weiss can’t charge Hunter because he already entered into a diversion agreement pertaining to the charge.

We believe the signed and filed diversion agreement remains valid and prevents any additional charges from being filed against Mr. Biden, who has been abiding by the conditions of release under that agreement for the last several weeks, including regular visits by the probation office. We expect a fair resolution of the sprawling, five-year investigation into Mr. Biden that was based on the evidence and the law, not outside political pressure, and we’ll do what is necessary on behalf of Mr. Biden to achieve that.

I think few stories on this have accounted for the possibility that that statement — “we’ll do what is necessary … to achieve” a fair resolution of the case — is as pregnant a threat as DOJ’s promise to indict in the next several weeks. That’s because everything leading up to David Weiss obtaining Special Counsel status actually squandered much of any leverage that Weiss had, and that’s before you consider the swap of Chris Clark as Hunter’s lead attorney for the more confrontational Lowell, making Clark available as a witness against Weiss.

As Politico (but not NYT, working off what are presumably the same materials) laid out, Hunter’s legal team has long been arguing that this investigation was plagued by improper political influence.

But even before the plea deal was first docketed on June 20, the GOP House started interfering in ways that will not only help Abbe Lowell prove there was improper influence, but may well give him unusual ability to go seek for more proof of it.

It appears to have started between the time the deal was struck on June 8 and when it was docketed on June 20. AUSA Lesley Wolf, who had negotiated the deal, was replaced by Leo Wise and others. When Weiss claimed, with the announcement of the deal, that the investigation was ongoing and he was even pursuing dodgy leads obtained from a likely Russian influence operation, it became clear that the two sides’ understanding of the deal had begun to rupture. This is the basis of Lowell’s claim that Weiss reneged on the deal: that Weiss approved an agreement negotiated by Wolf but then brought in Wise to abrogate that deal.

Whatever the merit of Lowell’s claim that the diversion agreement remains in place — the plea deal was such a stinker that both sides have some basis to defend their side of that argument — by charging Hunter, Weiss will give Lowell an opportunity to litigate the claim that Weiss reneged on the diversion agreement, and will do so on what may be the easier of the two parts of the plea agreements to make a claim that Weiss reneged on a deal, with Judge Noreika already issuing orders to find out why this stinker is still on her docket. I’m not sure how Lowell would litigate it — possibly a double jeopardy challenge — but his promise to do what’s necessary likely guarantees that he will litigate it. He’ll presumably do the same if and when Weiss files tax charges in California. It’s not necessarily that these arguments about reneging on a deal will, themselves, work, but litigating the issue will provide opportunity to introduce plenty more problems with the case.

That’s part of what was missed in coverage of this development this week. Weiss promised to indict. Lowell responded, effectively, by challenging the newly-minted Special Counsel to bring it on, because it will give Lowell opportunity to substantiate his claim that Weiss reneged on a deal because of political influence.

And those IRS agents claiming to be whistleblowers have only offered gift after gift to Lowell to destroy their own case. In their own testimony they revealed:

  • From the start, a supervisor documented concerns about improper influence and Sixth Amendment problems with this investigation
  • Joseph Ziegler, the IRS agent who improbably claims to be a Democrat, treated such concerns as liberal bias, evincing political bias on his own part
  • DOJ didn’t do the most basic due diligence on the laptop and may have used it in warrants, creating poisonous fruit problems
  • Ziegler treated key WhatsApp messages obtained with a later warrant with shocking sloppiness, and may even have misidentified the interlocutors involved
  • Ziegler didn’t shield himself from the taint of publicly released laptop materials (and Shapley was further tainted by viewing exhibits during his deposition)
  • Gary Shapley is hiding … something … in his emails

These two self-proclaimed whistleblowers have made evidence from this case public — all of which would never have seen the light of day if Weiss had honored the plea agreement — without the filter of a prosecutor to clean it up in advance.

All that’s before you consider the rampant leaking.

In both their depositions and their giddy public testimony before the House both Shapely and Ziegler did plenty of things that will provide basis to impeach them, not just as witnesses, but even as investigators, as did their anonymous FBI agent colleague’s laughable claim in his deposition that this was not an investigation riddled with leaks. James Comer seems intent on inviting all the other investigators who have complained they weren’t able to bulldoze rules designed to protect sensitive investigations to be deposed in an adversarial setting, which will provide still more surface area that Lowell can attack.

The gun charge is simple. But what investigative witnesses would present any tax case against Hunter Biden and would their testimony be impressive enough to sustain a case after Lowell serially destroyed Ziegler as the key investigator? And because Weiss has left Lowell with a viable claim that the diversion remains valid, he may be able to introduce the taint of the tax case into any gun prosecution.

Some of this shit goes on in any case, though not usually this much with politically exposed people like the President’s son. But prosecutors have a great number of tools to prevent defendants from learning about it or at least keeping it off the stand. Many of the IRS agents’ complaints were really complaints about Lesley Wolf’s efforts to preserve the integrity of the case. By bitching non-stop about her efforts, the IRS agents have ensured that Hunter Biden will get access to everything that Wolf tried hard to stave off from the investigation.

And there’s something more. Ziegler provided the name of his initial supervisor, who documented concerns that this case was politicized from the start. Both IRS agents identified for Lowell a slew of irregularities he can use to undermine any case. Republicans in Congress have bent over backwards to expose witnesses against Hunter to adversarial questioning (and both IRS agents got downright reckless in their public testimony). The way in which this plea collapsed provides Lowell reason to challenge any indictment from the start.

But the collapse also provided something else, as described in the NYT story: a David Weiss associate told the NYT that Weiss told them that any other American would not be prosecuted on the evidence against Hunter.

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

If this witness makes themselves available to Lowell, it provides him something that is virtually unheard of in any prosecution: Evidence to substantiate a claim of selective prosecution, the argument that Weiss believes that similarly situated people would not have been prosecuted and the only reason Hunter was being prosecuted was because of non-stop GOP bloodlust that originated with Donald Trump. It is darn near impossible for a defense attorney to get discovery to support a selective prosecution claim. Weiss may have given Lowell, one of the most formidable lawyers in the country, a way to get that discovery.

And all that’s before Lowell unveils whatever evidence he has that Joseph Ziegler watched and did nothing as Hunter Biden’s digital life was hijacked, possibly by people associated with the same Republicans driving the political bloodlust, possibly by the very same sex workers on which the case was initially predicated. That’s before Lowell unveils evidence that Ziegler witnessed what should have been clear alarms that Hunter Biden was a crime victim but Ziegler chose instead to trump up a weak criminal case against the crime victim. I suspect that Weiss doesn’t know what Lowell knows about this, either, adding still more uncertainty to any case he charges.

Over four weeks ago, Leo Wise asked Noreika to dismiss the misdemeanor tax charges against Hunter so they could charge them in another venue.

In light of that requirement, and the important constitutional rights it embodies, the Government moves the Court to dismiss the information without prejudice so that it may bring tax charges in a district where venue lies.

Now he and Weiss have made promises of another upcoming indictment, without yet charging it. At the very least, that suggests that there are a number of challenges to overcome before they can charge Hunter.

They likely still have time on any 2019 tax charges — the ones where, reportedly, both sides agree that Hunter overstated his income, which will make a tax case hard to prove. I’m not saying that Weiss won’t charge Hunter. Indeed, he has backed himself into a corner where he likely has to. But with each step forward, Lowell has obtained leverage to make Weiss’ own conduct a central issue in this prosecution (and even Wise may have made himself a witness given the centrality of his statements during the plea colloquy to Lowell’s claim that the diversion remains valid).

The Speedy Trial filings seem to have hinted at an intense game of chicken between Weiss and Lowell. And thus far at least, Weiss seems more afraid of a Hunter Biden indictment than Lowell is.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Then Noreika dismissed the charges.

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

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

A senior law enforcement official speaks, illegally

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

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

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

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

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

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

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

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

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

But to some degree that may not matter.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

No wonder Hunter’s lawyers are furious.

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

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

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

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

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

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

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

In Hunter Biden Case, Abbe Lowell Enters His Appearance

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MARGARET BRENNAN: So it’s not inevitable?

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Court: Well, Mr. Biden actually knows.

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

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

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

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

Yet no one cleaned it up before this attempted plea.

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

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

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

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

THE DEFENDANT: Yes, I see that here.

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

THE DEFENDANT: Yes, Your Honor.

THE COURT: And you knew —

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

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

THE COURT: Yes.

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

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

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

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

MR. CLARK: In that year.

THE COURT: You guys are okay with that?

MR. WISE: Yes, Your Honor.

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

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

THE COURT: All right. So there are references 6 to foreign companies, for example, in the facts section. Could the government bring a charge under the Foreign Agents Registration Act?

MR. WISE: Yes.

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

MR. CLARK: Your Honor, the Plea Agreement —

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

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

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

MR. WISE: Then there is no deal.

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

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

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

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

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