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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.

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 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.

David Weiss Is Smoking Roger Stone’s Witness-Tampering Gun

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On Friday, David Weiss submitted most of his responses to Hunter Biden’s Motions to Dismiss in the Los Angeles tax case (he should submit a response to Hunter’s claim that the disgruntled IRS agents’ media tour amounted to a gross violation of his due process today; see links for everything here).

Expect a few posts going through them in the next few days.

Start with another embarrassingly false claim Weiss made in response to Hunter Biden’s vindictive prosecution claim that is worse, in some ways, than claiming that Keith Ablow’s picture of sawdust was instead a picture Hunter Biden had taken of cocaine.

It has to do with Roger Stone.

In an effort to claim that Hunter Biden deserves to be criminally prosecuted for tax crimes when Roger Stone was permitted a civil settlement, David Weiss falsely claimed something distinguishes Hunter — that he wrote a memoir about his alleged crime and Stone did not — when in fact, the memoir Stone did reissue during the period he was defrauding the IRS was more closely connected to Stone’s other, more damaging crimes, than Hunter’s memoir was.

If a memoir justifies a tax indictment, then Stone, not Hunter, should be the one facing prison right now.

David Weiss waives response about the import of threats to his family

There are two ways the Los Angeles vindictive prosecution discussion in Weiss’ twin prosecutions of Hunter Biden differs from the one in Delaware, at least so far. Most obviously, it’s a tax case, not a gun case, so Hunter’s attorney Abbe Lowell is making a different argument about how unusual it is for DOJ to charge someone who, like Hunter, late filed his tax returns before he knew of a criminal investigation and then, later, paid those taxes, with penalties.

That’s one difference.

A more subtle one is that Lowell, in his motion to dismiss, made explicit something he had not before: at the time David Weiss reneged on a signed diversion and plea deal, the Special Counsel feared for the safety of his family.

As a result, Mr. Weiss reported he and others in his office faced death threats and feared for the “safety” of his team and family.22

In his response, Weiss didn’t acknowledge, at all, that his own fears for the safety of his family have been made a part of the official record.

Instead, he continued to claim there’s no logical explanation for how the pressure ginned up by Trump and Republicans in Congress led him to renege on a signed plea deal. Weiss continued to claim that any connection is fictional.

[T]o state an obvious fact that the defendant continues to ignore, former President Trump is not the President of the United States. The defendant fails to explain how President Biden or the Attorney General, to whom the Special Counsel reports, or the Special Counsel himself, or his team of prosecutors, are acting at the direction of former President Trump or Congressional Republicans, or how this current Executive Branch approved allegedly discriminatory charges against the President’s son at the direction of former President Trump and Congressional Republicans. The defendant’s fictious narrative cannot overcome these two inescapable facts.

[snip]

Second, to state the obvious, former President Trump is not the President. The defendant’s father is the President. The defendant fails to establish how President Biden or the Attorney General, to whom the Special Counsel reports, or the Special Counsel himself, or his team of prosecutors, are being improperly pressured by former President Trump or Congressional Republicans, such that the Executive Branch approved allegedly selective and vindictive charges to be brought against the President’s son in violation of the law. [my emphasis]

The centrality of Weiss’ claims that President Biden has a role in all this — leftover from the period when the Alexander Smirnov prong of the investigation remained secret — is all the more ridiculous now that it’s public that, after Weiss reneged on the plea deal, he chased Russian disinformation framing Joe Biden.

But is also utterly false that Lowell offered no explanation for how pressure from Trump led Weiss to renege on that plea deal. Once you include Weiss’ own stated fear for his family in the face of threats ginned up by Trump and Congress, what Weiss himself called intimidation, Lowell has established how pressure from Trump and Congress might have led Weiss to capitulate to that pressure. The fear of stochastic terrorism is all you need.

Which brings us to Roger Stone.

Abbe Lowell raises Roger Stone as a tax cheat who got a civil resolution

As noted, the Los Angeles indictment against Hunter is a tax case. And in a selective and vindictive prosecution claim, you need to explain the norm to be able to prove you’re being treated differently. To be sure, this filing is even less focused on selective prosecution, as opposed to vindictive prosecution, than the gun case, meaning such arguments are a small part of the argument. But Weiss has been unduly focused on selective prosecution from even before Hunter first made the claim, presumably because it’s easier to prove that the Hunter Biden case is different than anything DOJ has seen before than to rebut the evidence that Donald Trump and Bill Barr tried to frame Hunter and David Weiss is a witness to that effort.

So the selective prosecution argument, in which defendants have to argue that people just like them have not been charged before, was a minor part of this filing.

But it explains why Roger Stone ended up in a footnote of the filing — as Chris Clark promised they would do over a year ago.

56 The government does not generally bring criminal charges for failing to file or pay taxes, especially if the individual paid the taxes, interest, and penalty afterwards, as Mr. Biden did in October 2021. According to the IRS Data Book for 2021, 2,600,000 taxpayer returns were not timely filed. Many, if not the vast majority, of those cases were resolved with civil resolutions, even in the most high-profile cases. For example, in United States v. Shaughnessy, a DC law partner and his wife failed to file and pay their taxes for 11 years with nearly $7.2 million owed. DOJ ultimately resolved this civilly with tax, penalties and interest only. See Joint Motion for Entry of Consent Judgment, No. 22-cv-02811-CRC (D.D.C. 2023), DE 9. In United States v. Stone, where former Trump adviser Roger Stone and his wife owed nearly $2 million in unpaid taxes for 4 years, DOJ again resolved the matter civilly. No. 21-cv-60825-RAR (S.D. Fla. 2022), DE 64.

Here’s how Weiss, treating this as the guts of Lowell’s selective prosecution claim and therefore distracting from the rest of it, responded to that footnote:

The defendant compares himself to only two individuals: Robert Shaughnessy and Roger Stone, both of whom resolved their tax cases civilly for failing to pay taxes. Shaughnessy failed to file and pay his taxes, but he was not alleged to have committed tax evasion. By contrast, the defendant chose to file false returns years later, failed to pay when those returns were filed, and lied to his accountants repeatedly, claiming personal expenses as business expenses. Stone failed to pay his taxes but did timely file his returns, unlike the defendant. Neither Shaughnessy nor Stone illegally purchased a firearm and lied on background check paperwork. And neither of them wrote a memoir in which they made countless statements proving their crimes and drawing further attention to their criminal conduct. These two individuals are not suitable comparators, and since the defendant fails to identify anyone else, his claim fails. 5

Roger Stone’s tax fraud is different from Hunter Biden’s and that’s why Hunter’s selective and vindictive prosecution claim must fail, David Weiss says.

Weiss distinguishes Donald Trump’s rat-fucker from Joe Biden’s kid in three ways (note, Weiss doesn’t address that DOJ claimed Stone hid his business income, just as Hunter allegedly did):

  • Stone didn’t pay his taxes, but did file timely returns
  • Stone didn’t buy a gun while addicted (as far as we know — though there are pictures of Stone with guns and some of his associates have alleged that Stone had addiction problems in this period)
  • Stone didn’t — Weiss claims — write a memoir “proving [his] crimes and drawing further attention to [his] criminal conduct”

It’s that last bullet that is garbage bullshit, sawdust-as-cocaine levels of stupid.

But let’s take them in order.

David Weiss uses gimmicks to limit extent that addiction can undermine the tax case

Regarding the first bullet, using the failure to file taxes in the LA case to distinguish Hunter from Stone is problematic for several reasons. First, Lowell is arguing that what changed between the plea agreement, which charged only failure to pay, and the tax indictment, which charged a mix of failure to file and failure to pay, was political pressure (and, now, threats that made Weiss worry about his family’s safety).

Notably, Weiss avoids claiming that Stone didn’t evade taxes, probably because the complaint against him alleges that Stone hid his income from the IRS in an alter ego, Drake Ventures, a kind of tax evasion for which Weiss has charged Hunter Biden, but for which Stone was not criminally charged. “By depositing and transferring” over $1 million paid to Stone in 2018 and 2019, “into the Drake Ventures’ accounts instead of their personal accounts, the Stones evaded and frustrated the IRS’s collection efforts,” the complaint alleges (my emphasis). Right there, in the complaint, DOJ claimed that Stone evaded IRS collection efforts, but Stone was not criminally charged.

To get to claiming that Hunter willfully failed to file his taxes charges during the years of his addiction, Weiss relies on a bunch of gimmicks that are at the core of his indictment against Hunter Biden. In Weiss’ responses to Lowell’s technical complaints about the indictment — which I wrote up here — he explained each of those technical complaints away using a gimmick designed to allow him to ratchet up the charges on Hunter while also mitigating the risk that Hunter’s addiction will make it harder to prove the tax case to a jury.

For example, in addition to claiming he could charge Hunter for the 2016 tax year because the President’s son signed tolling agreements with two entities — the Delaware US Attorney’s Office and DOJ Tax Division — that are not involved in this prosecution, Special Counsel Weiss claims that Hunter’s failure to pay his 2016 taxes occurred in 2020, when Hunter was sober, rather than 2016, when he misplaced a finalized tax submission.

Similarly, it’s not so much that Weiss charged Hunter twice for failing to pay his 2017 and 2018 taxes, which Lowell argued made the charges duplicitous, Weiss claims; it’s that Weiss intends to give the jury a choice for which year they want to convict Hunter on those charges — whether he failed to pay when he missed filing deadlines in 2018 and 2019 or he failed to do so when he ultimately filed in 2020, when he was sober.

It doesn’t matter that Hunter didn’t live in California for some of the tax years for which Weiss charged him in California, Weiss says, because Hunter lived in CA when he ultimately did file his taxes in 2020, without paying them. Weiss has used gimmick after gimmick to eliminate problems posed by both Hunter’s addiction and the fact that he filed his taxes before he learned of the criminal investigation into him, on top of the gimmick that he claims Hunter could afford to pay his tax burden in 2020 because Kevin Morris paid for some of his other expenses.

Effectively, to get around the willfulness problem posed by Hunter’s addiction, Weiss has shifted the date of Hunter’s crimes to 2020. But once you’ve done that, Hunter and Stone did the same thing: fail to pay taxes and also hide their income from 2018 (and 2019, in Stone’s case).

The gimmicks are just the kind of normal prosecutorial dickishness we’ve come accustomed to from this Baltimore crowd. But once you understand the effect of the gimmicks — to displace Hunter’s alleged crimes to 2020, when he submitted tax returns for four years at once — then Hunter and Stone are similarly situated, albeit with Stone accused of “evading” taxes in two calendar years, not one.

Weiss says a gun that was never fired is a worse related crime than witness tampering that was

But Weiss has a bigger problem with his effort to dismiss Stone as a comparator. He pulls two things out of his arse to present as distinguishers between Hunter Biden and Stone without (apparently) first doing the least little due diligence to check whether those things he pulled out of his arse have any basis in reality, much less to make sure they don’t actually prove him wrong.

David Weiss says that Hunter Biden is different from Roger Stone because he unlawfully owned a gun for 11 days in 2018. But the gun charge has no tie to the tax charge. Not even Weiss makes that claim!

Indeed, it’s the reverse: investigators decided not to charge gun crimes in 2018, before the tax investigation started. Prosecutors only reconsidered that because of the tax investigation — and (Lowell has alleged with no response from Weiss) because Republican politicians made Weiss afraid for the safety of his family. The only tie between the gun charges and the tax charges would be exculpatory in the tax case — Hunter’s addiction. Weiss’ prosecutors admitted the inverse relationship in Hunter’s initial appearance in Los Angeles. ‘[A]rguably,” Leo Wise said to Judge Mark Scarsi on January 11, “information in that case that is inculpatory in this case, may be arguably, exculpatory in that case.” The things prosecutors will use to prove Hunter was an addict in 2018 undermine prosecutors’ case that Hunter’s failure to file tax returns for 2017 and 2018 was willful.

By contrast, the government did claim that Roger Stone’s tax avoidance tied directly to his other crimes, crimes for which a jury had already found him guilty when DOJ filed the tax complaint in 2021.

The complaint against Stone described how he engaged in fraud to shelter his money because he was indicted.

40. In May 2017, the Stones entered into an installment agreement with the IRS that required them to pay $19,485 each month toward their unpaid taxes. They made these payments each month from a Drake Ventures’ Wells Fargo account.

41. Roger Stone was indicted on January 24, 2019, and the indictment was unsealed on January 25, 2019.

42. After Roger Stone’s indictment, the Stones created the Bertran Trust and used funds that they owned via their alter ego, Drake Ventures, to purchase the Stone Residence in the name of the Bertran Trust.

[snip]

52. The Stones intended to defraud the United States by maintaining their assets in Drake Ventures’ accounts, which they completely controlled, and using these assets to purchase the Stone Residence in the name of the Bertran Trust.

53. The Stones’ purchase of the Stone Residence using funds they held in the Drake Ventures’ Wells Fargo account is marked by numerous badges of fraud. They include:

a. The Stones were in substantial debt to the United States at the time of the transfer, rendering them insolvent at the time of the transfer and unable to pay their debt to the United States;

b. The Stones faced the threat of litigation. Roger Stone had just been indicted;

c. The Stones anticipated that the United States would resort to enforced collection of their unpaid tax liabilities once they defaulted on their monthly installment payments to the IRS; [my emphasis]

It seems DOJ believed that Stone sought to shelter his wealth in a Florida residence that would be beyond the reach of any criminal forfeiture, just like his buddy Paul Manafort did.

And this is why it matters that David Weiss continues to bury his confession to Congress that, when he reneged on the plea deal, he was afraid for the safety of his family.

The crimes for which Stone was indicted — the prosecution which DOJ explicitly tied to Roger Stone’s efforts to defraud the government — involved real threats, not the hypothetical threat of an addict owning a gun.

Roger Stone was convicted for trying to intimidate Randy Credico against testifying to Congress and Robert Mueller. Credico has described that his first contact with the FBI in 2018 was actually a Duty to Warn meeting associated with the plotting of Stone’s militia buddies, not a witness interview.

And Judge Amy Berman Jackson applied a sentencing enhancement for the threat Stone — again, with his militia buddies — made against her personally.

The defendant engaged in threatening and intimidating conduct towards the Court, and later, participants in the National Security and Office of Special Counsel investigations that could and did impede the administration of justice.

Before the Proud Boys launched an attack on the Capitol to prevent the peaceful transfer of power, before Stone allegedly threatened to assassinate one or another Democratic Congressman as well as Leo Wise and Derek Hines’ colleague and Stone prosecutor, Aaron Zelinsky, Enrique Tarrio helped Stone threaten his judge.

That’s the weapon Roger Stone was found guilty of wielding: stochastic terrorism that posed a risk to justice. Just like Donald Trump attacked David Weiss before Weiss got threats that led him to worry about the safety of his family.

And yet, having systematically ignored the threats that Donald Trump and other Republicans ginned up against his family, David Weiss is arguing that Hunter Biden owning a gun unrelated to failing to pay taxes is more incriminating than DOJ’s claims in the tax complaint that Stone’s adjudged witness intimidation tied directly to Stone’s efforts to defraud the IRS.

One is connected to the charged crime. One is not. One led to threats against a key witness and a judge. One did not.

But David Weiss, still refusing to acknowledge his testimony that he feared for the safety of his family, claims the one unconnected to the alleged tax crimes explains his decision to charge the tax crimes. Weiss’ claims about Stone don’t help his case, they show that a criminal case against Stone had more merit than this one.

David Weiss claims Hunter’s memoir is great evidence and then proves it is not

Crazier still, David Weiss is claiming that Hunter Biden wrote a memoir “proving [his] crimes and drawing further attention to [his] criminal conduct” of being an addict (neither the gun for which he is charged nor his failure to pay his taxes appear in the memoir) but Roger Stone did not.

To raise the stakes of this (embarrassingly false) claim, Weiss dedicates three paragraphs laying out how Hunter’s memoir helps to prove the gun case that, prosecutors have admitted, is inversely related to the tax case.

Then, after announcing his awareness of a federal investigation in late 2020, the following year (2021) he chose to author, sell, and promote his memoir, Beautiful Things, and to release an audiobook in a lucrative deal that heightened his prominence and drew further attention to his crimes. 1

1 As outlined in the Indictment, the defendant made statements and admissions in the book relevant to the charges against him.

B. The Defendant Also Chose to Commit Serious Gun Crimes

The defendant’s crimes were not limited to tax violations. In 2018, he chose to purchase a gun, he chose to lie on background check paperwork by stating he was not addicted to drugs, and he certified that his answers on the paperwork were true, when in fact, he had lied about his addiction. See generally United States v. Robert Hunter Biden, Indictment, Dkt. 40 (D. Del). When he later chose to publish his memoir, he included countless admissions about his drug use in 2018 when he possessed the gun.

Again, prosecutors have described that these cases are inversely related. If you prove that Hunter was an addict, as Weiss says the memoir helps him do, you also make it harder to prove that the failure to file for 2017 and 2018 was willful.

Here’s how Weiss treats Hunter’s memoir in the equivalent filing in the gun crimes case.

After the defendant publicly announced his awareness of a federal investigation of him in late 2020, see ECF 63 at 5, the following year (2021) he chose to author, sell and promote his memoir, Beautiful Things, and to release an audiobook in a lucrative book deal. Relevant to the charges in this matter, the defendant made expansive admissions about his extensive and persistent drug use, including throughout the year 2018 when he purchased the gun. For example, the defendant admitted that he was experiencing “full blown addiction” to crack cocaine and by the fall of 2018 he had gotten to the point that:

It was me and a crack pipe in a Super 8, not knowing which the fuck way was up. All my energy revolved around smoking drugs and making arrangements to buy drugs—feeding the beast. To facilitate it, I resurrected the same sleep schedule I’d kept in L.A.: never. There was hardly any mistaking me now for a so-called respectable citizen. Crack is a great leveler.

Hunter Biden, Beautiful Things (2021) at 203, 208

In the Delaware case, Weiss is arguing something different than he is in the LA case, that is about how much evidence (Weiss claims) there is to prove the gun case. As I noted, that’s actually counterproductive in the selective prosecution response, because it proves that the evidence Weiss claims to think is so damning was available in 2021, before he decided to divert the gun crime in 2023, before he came to fear for the safety of his family and then reneged on that diversion agreement.

Oh. And also? Weiss again botches the evidence. The passage cited above about a crack pipe in a Super 8 on page 208 describes the aftermath, in February 2019, of the Ketamine treatment Hunter got from Roger Stone buddy Keith Ablow that — Hunter’s memoir describes — made things worse.

The therapy’s results were disastrous. I was in no way ready to process the feelings it unloosed or prompted by reliving past physical and emotional traumas. So I backslid. I did exactly what I’d come to Massachusetts to stop doing. I’d stay clean for a week, break away from the center to meet a connection I found in Rhode Island, smoke up, then return.

[snip]

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

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

I headed back toward Delaware, in no shape to face anyone or anything. To ensure that I wouldn’t have to do either, I took an exit at New Haven. For the next three or four weeks, I lived in a series of low-budget, low-expectations motels up and down Interstate 95, between New Haven and Bridgeport.

I exchanged L.A.’s $400-a-night bungalows and their endless parade of blingy degenerates for the underbelly of Connecticut’s $59-a-night motel rooms and the dealers, hookers, and hard-core addicts—like me—who favored them. I no longer had one foot in polite society and one foot out. I avoided polite society altogether. I hardly went anywhere now, except to buy. It was me and a crack pipe in a Super 8, not knowing which the fuck way was up. [my emphasis]

This is in no way a description of the state of Hunter’s addiction in “fall of 2018,” when he bought a gun. It’s a description of the state of Hunter’s addiction in February 2019, after treatment from Ablow exacerbated the addiction. To make things worse, Hunter gets the timing of the 2019 follow-up treatment wrong in the book, saying it happened in February when it started in January. This passage is utterly worthless to prove the gun crime, and instead helps to prove that memoirs, especially those written by recovering addicts, are prone to narrative embellishment and error.

To sum up how dumb it is to use the memoir to rebut a selective prosecution claim at all: First, the existence of a 2021 memoir doesn’t help Weiss’ selective prosecution rebuttal in either case, because that evidence was available before Weiss decided to resolve both cases without jail time in June 2023 and so only raises more questions about why he reneged on that deal. The memoir actually isn’t all that helpful to prove the status of Hunter’s addiction in October 2018, because Hunter doesn’t provide as much detail of that as he did of his exploits in Los Angeles, from earlier in the year. Worse still, relying on a passage describing events in February 2019, after Ketamine treatment led Hunter to backslide, and claiming it describes the status of Hunter’s addiction in fall 2018 is only going to prove you never bothered to check your evidence before you indicted on gun crimes. And, finally, Weiss’ prosecutors have admitted there’s an inverse relationship between these two cases! Proving that Hunter was addicted in this period will only make it harder to prove that his non-payment in 2017 and 2018 was willful and may even provide basis to argue that Hunter didn’t willfully lie to his accountant in 2020, but rather couldn’t remember what happened in 2018. The fact that Hunter gets dates wrong in the memoir will actually help that case.

It’s all such a nutty argument, using this memoir as a distinguisher in the tax case.

Roger Stone’s memoir was far more closely connected to his crimes and tax evasion than Hunter’s was

Nuttier still, given the fact — fact! — that Roger Stone did too write a memoir about his crimes!

The claim that Stone didn’t write a memoir about his crimes is as transparently, embarrassingly false as David Weiss’ claim that a photo of a photo of sawdust was instead a picture of Hunter Biden’s cocaine.

Not only did Stone write a memoir about his claimed actions in the 2016 election, he reissued it in paperback, with a lengthy introduction in which he codified the cover story that would prove to be false at trial later that year. As noted in this post, that introduction made a number of claims that were part of Stone’s cover story, including:

  • Describes learning he was under investigation on January 20, 2017
  • Discounts his May 2016 interactions with “Henry Greenberg” — a Russian offering dirt on Hillary Clinton — by claiming Greenberg was acting as an FBI informant
  • Attributes any foreknowledge of WikiLeaks’ release to Randy Credico and not Jerome Corsi or their yet unidentified far more damning source while disclaiming any real foreknowledge
  • Gives Manafort pollster, Tony Fabrizio, credit for the decision to focus on Michigan, Wisconsin, and Pennsylvania in the last days of the election
  • Blames Jeff Sessions for recusing from the Russian investigation
  • Harps on the Steele dossier
  • Dubiously claims that in January 2017, he didn’t know how central Mueller’s focus would be on him
  • Suggests any charges would be illegitimate
  • Complains about his financial plight
  • Falsely claims the many stories about his associates’ testimony comes from Mueller and not he himself
  • Repeats his Randy Credico cover story and discounts his lies to HPSCI by claiming his lawyers only found his texts to Credico after the fact
  • Suggests Hillary had ties to Russia
  • Notes that Trump became a subject of the investigation after he fired Jim Comey [my emphasis]

Those two bolded bits are the core of the case that would be charged in January 2019 and convicted in November 2019. This introduction is part of the same cover-up, one that attempts to profit off his cover-up and protection of Donald Trump.

He reissued it, in part, for financial reasons, including an effort to pay collaborators in the 2016 story that were likely also trial witnesses. That paperback came out in precisely the period in 2019 during which, the tax claim against Stone alleged, he was shifting money to defraud the government because he had been indicted. Stone planned a media blitz that clashed with the gag imposed on him — imposed on him, again, because he and his militia buddies were posting pictures of Judge ABJ with a crosshairs on it.

We know all this because Roger Stone almost went to jail for it. This post describes that conflict.

On February 21, 2019, Amy Berman Jackson gagged Stone in response to the Instagram post targeting her, describing that his incitement might lead “others with extreme views and violent inclinations” to take action.

Let me be clear, at the time of his post he was permitted to criticize the special counsel, the designation of the cases related, and the previous decisions of the judge to whom the case had been assigned. But I am not reassured by the defense suggestion that Mr. Stone is just all talk and no action and this was just a big mistake.

What concerns me is the fact that he chose to use his public platform, and chose to express himself in a manner that can incite others who may feel less constrained. The approach he chose posed a very real risk that others with extreme views and violent inclinations would be inflamed. You don’t have to read the paper beyond today to know that that’s a possibility.

And these were, let there be no mistake, deliberate choices. I do not find any of the evolving and contradictory explanations credible. Mr. Stone could not even keep his story straight on the stand, much less from one day to another. There is some inconsistency in his telling me on the one hand that these public communications are an existential endeavor, essential not only to his income but his very identity, and then, on the other hand, telling us, It wasn’t me.

On March 1, Stone’s attorneys filed a “notice” arguing that the book should not be covered by her gag. On March 4, they submitted a filing saying, oops! it is too late. On March 5, ABJ denied Stone’s request that the book be excluded from the gag and ordered more briefing. On March 11, Stone submitted a bunch of documentation showing (among other things) that at least one of his attorneys was centrally involved in the book publication.

The Bertran Trust was not only an effort to keep money away from the IRS.

It was an attempt to keep the proceeds of a book that violated the gag order imposed to avoid more incitement. It was an attempt to profit off continuing to protect Donald Trump.

And David Weiss, after relying on a Hunter Biden memoir that might help prove the gun case but actually hurts his tax case, claims that memoir doesn’t exist.

And that’s before you consider the book introduction that Stone wrote for Keith Ablow, the guy whose therapy — Hunter’s memoir describes — made his addiction worse, the guy in whose cottage Hunter was staying when his life was packaged up to be sent to David Weiss to use in prosecution.

After looking at Keith Ablow’s sawdust picture and claiming it was Hunter’s cocaine, Weiss has now looked at Ablow buddy Roger Stone and claimed that a memoir that is more closely connected with his tax dodging and dangerous crimes and instead claimed that memoir simply doesn’t exist.

And that is the basis Weiss gives for charging Hunter Biden with tax crimes.

Timeline

October 30, 2018: ABC reports that Stone hired Bruce Rogow in September, a First Amendment specialist who has done extensive work with Trump Organization.

October 31, 2018: Date Corsi stops making any pretense of cooperating with Mueller inquiry.

November 6, 2018: Democrats win the House in mid-term elections.

November 7, 2018: Trump fires Jeff Sessions, appoints Big Dick Toilet Salesman Matt Whitaker Acting Attorney General.

November 8, 2018: Prosecutors first tell Manafort they’ll find he breached plea deal.

November 12, 2018: Date Corsi starts blowing up his “cooperation” publicly.

November 14, 2018: Date of plea deal offered by Mueller to Corsi.

November 15, 2018: Mike Campbell pitches Stone on a paperback — in part to ‘retake the narrative — including a draft of the new introduction.

November 18, 2018: Jerome Corsi writes up his cover story for how he figured out John Podesta’s emails would be released.

November 20, 2018: After much equivocation, Trump finally turns in his written responses to Mueller.

November 21, 2018: Dean Notte reaches out to Grant Smith suggesting a resolution to all the back and forth on their joint venture, settling the past relationship in conjunction with a new paperback.

November 22, 2018: Corsi writes up collapse of his claim to cooperate.

November 23, 2018: Date Mueller offers Corsi a plea deal.

November 26, 2018: Jerome Corsi publicly rejects plea deal from Mueller and leaks the draft statement of offense providing new details on his communications with Stone.

November 26, 2018: Mueller deems Paul Manafort to be in breach of his plea agreement because he lied to the FBI and prosecutors while ostensibly cooperating.

November 27, 2018: Initial reports on contents of Jerome Corsi’s book, including allegations that Stone delayed release of John Podesta emails to blunt the impact of the Access Hollywood video.

November 29, 2018: Michael Cohen pleads guilty in Mueller related cooperation deal.

December 2, 2018: Roger Stone claims in ABC appearance he’d never testify against Trump and that he has not asked for a pardon.

December 3, 2018: Trump hails Stone’s promise not to cooperate against him.

December 9, 2018: Stone replies to Campbell saying that because he never made money on Making of the President, he has no interest.

December 13, 2018: Tony Lyons and Grant Smith negotiate a deal under which Sky Horse would buy Stone out of his hardcover deal with short turnaround, then expect to finalize a paperbook by mid January. This is how Stone gets removed from the joint venture — in an effort to minimize his risk.

December 14, 2018: Mueller formally requests Roger Stone’s transcript from House Intelligence Committee.

December 17, 2018: Smith, saying he and Stone have discussed the deal at length, sends back a proposal for how it could work. This is where he asks for payment the next day, to pay someone off for work on the original book.

For some reason, in the ensuing back-and-forth, Smith presses to delay decision on the title until January.

December 19, 2018: It takes two days to get an agreement signed and Stone’s payment wired.

December 20, 2018: HPSCI votes to release Stone’s transcript to Mueller.

January 1, 2019: Stone includes Keith Ablow on his annual best dressed list.

January 8, 2019: Paul Manafort’s redaction fail alerts co-conspirators that Mueller knows he shared polling data with Konstantin Kilimnik.

January 13, 2019: Stone drafts new introduction, which he notes is “substantially longer and better than the draft sent to me by your folks.” He asks about the title again.

January 14, 2019: Stone sends the draft to Smith and Lyons. It is 3386 words long. Lyons responds, suggesting as title, “The Myth of Collusion; The Inside Story of How I REALLY Helped Trump Win.” Lyons also notes Stone can share the book with Senators.

Stone responds suggesting that he could live with, “The Myth of Collusion; The Inside Story of How Donald Trump really won,” noting, “I really can’t be seen taking credit for HIS victory.”

By end of day, Skyhorse’s Mike Campbell responds with his edits.

January 15, 2019: The next morning, Smith responds with his edits, reminding that Stone has to give final approval. Stone does so before lunch. Skyhorse moves to working on the cover. Late that day Campbell sends book jacket copy emphasizing Mueller’s “witch hunt.”

January 16, 2019: Tony Lyons starts planning for the promotional tour, asking Stone whether he can be in NYC for a March 5 release. They email back and forth about which cover to use.

January 18, 2019: By end of day Friday, Skyhorse is wiring Stone payment for the new introduction.

January 24, 2019: Mike Campbell tells Stone the paperback “is printing soon,” and asks what address he should send Stone’s copies to. WaPo reports that Mueller is investigating whether Jerome Corsi’s “severance payments” from InfoWars were an effort to have him sustain Stone’s story. It also reports that Corsi’s stepson, Andrew Stettner, appeared before the grand jury. That same day, the grand jury indicts Stone, but not Corsi.

January 25, 2019, 6:00 AM: Arrest of Roger Stone.

January 25, 2019, 2:10 PM: Starting the afternoon after Stone got arrested, Tony Lyons starts working with Smith on some limited post-arrest publicity. He says Hannity is interested in having Stone Monday, January 28 “Will he do it?” Smith replies hours later on the same day his client was arrested warning, “I need to talk to them before.”

January 26, 2019: Lyons asks Smith if Stone is willing to do a CNN appearance Monday morning, teasing, “I guess he could put them on the spot about how they really go to this house with the FBI.”

January 27, 2019: Smith responds to the CNN invitation, “Roger is fully booked.” When Lyons asks for a list of those “fully booked” bookings, Smith only refers to the Hannity appearance on the 28th, and notes that Kristin Davis is handling the schedule. Davis notes he’s also doing Laura Ingraham.

January 28, 2019: The Stones pay $19,485 to IRS.

January 28, 2019: The plans for Hannity continue on Monday, with Smith again asking for the Hannity folks to speak to him “to confirm the details.” In that thread, Davis and Lyons talk about how amazing it would be to support “another New York Times Bestseller” for Stone.

February 15, 2019: After two weeks — during which Stone was indicted, made several appearances before judges, and had his attorneys submit their first argument against a gag — Stone responded to Campbell’s January 24 email providing his address, and then asking “what is the plan for launch?” (a topic which had already been broached with Lyons on January 16). Campbell describes the 300-400 media outlets who got a review copy, then describes the 8 journalists who expressed an interest in it. Stone warns Campbell, “recognize that the judge may issue a gag order any day now” and admits “I also have to be wary of media outlets I want to interview me but don’t really want to talk about the book.”

February 18, 2019: Release of ebook version of Stone’s reissued book.

February 21, 2019: After Stone released an Instagram post implicitly threatening her, Amy Berman Jackson imposes a gag on Stone based on public safety considerations.

February 25, 2019: The Stones transfer $70,000 from Drake to Attorney account.

February 28, 2019: The Stones transfer $70,000 from Drake to Attorney account. The Stones pay $19,485 to IRS.

March 1, 2019: Ostensible official release date of paperback of Stone’s book. Stone submits “clarification” claiming that the book publication does not violate the gag.

March 4, 2019: Stone submits filing saying it is too late to hold the book.

March 5, 2019: The Stones establish Bertran Trust.

March 5, 2019: ABJ denies Stone’s request to exclude the book from the gag and orders further briefing.

March 11, 2019: Stone response to ABJ order, including exhibits showing that at least one of his attorneys knew of the imminent book release at the gag hearing.

March 22, 2019: The Stones purchase condo using $140,000 transfered from Drake Ventures account.

March 27, 2019: The Certificate of Trust recorded in Broward.

March 28, 2019: The Stones fail to make IRS payment, leading to default.

May 24, 2019: The Stones open three bank accounts in name of Bertran Trust.

June 2, 2020: Roger Stone writes forward to Keith Ablow book celebrating Trump.

How Derek Hines Fooled Ken Dilanian into Making False Claims about the Hunter Biden Laptop

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When I first read this passage in mid-January, it led me to suspect prosecutors in the Hunter Biden case were hiding real problems with the provenance of their digital data.

In August 2019, IRS and FBI investigators obtained a search warrant for tax violations for the defendant’s Apple iCloud account. 2 In response to that warrant, in September 2019, Apple produced backups of data from various of the defendant’s electronic devices that he had backed up to his iCloud account. 3 Investigators also later came into possession of the defendant’s Apple MacBook Pro, which he had left at a computer store. A search warrant was also obtained for his laptop and the results of the search were largely duplicative of information investigators had already obtained from Apple. 4 Law enforcement also later obtained a search warrant to search the defendant’s electronic evidence for evidence of federal firearms violations and to seize such data. 5

2 District of Delaware Case No. 19-234M and a follow up search warrant, District of Delaware Case Number 20-165M.

3 The electronic evidence referenced in this section was produced to the defendant in discovery in advance of the deadline to file motions.

4 District of Delaware Case No. 19-309M.

5 District of Delaware Case No. 23-507M.

Not so Ken Dilanian.

He read the same passage over five weeks and abundant new disclosures later, and claimed that rather than raise questions, it instead amounted to confirmation that prosecutors had authenticated material from the laptop.

Material from the laptop became evidence in the criminal investigation of Hunter Biden, which ultimately resulted in a pair of indictments accusing him of tax and gun crimes. He has pleaded not guilty. A recent court filing by the lead prosecutor in the case, special counsel David Weiss, says investigators authenticated the laptop material — and the fact that a computer had been left in a store.

He also claimed that this laptop evidence could have resulted in a gun indictment, when — as I confirmed as I was trying to chase down my suspicions — prosecutors didn’t get a warrant to search the laptop for gun crimes until after the gun indictment. If they used the laptop to get that gun crime indictment, they probably conducted an unlawful search.

Because people are quoting Dilanian’s claims as if they accurately report what we know about the laptop, I’d like to trace all the reasons why Dilanian should never have made either claim.

Let’s start with the reasons that passage raised suspicions in the first place.

I was suspicious partly because of the way Derek Hines used a showy claim about cocaine residue to distract from the issue he was litigating — whether prosecutors only decided to charge gun crimes in response to GOP pressure. Worse still, Hines hid the most important detail about that cocaine residue discovery, the date a lab tested for it, which would reveal whether that showy claim instead hurt his argument. In NBC’s case, three reporters suggested the late discovery of cocaine residue showed that prosecutors had obtained new evidence that led to indictment (though to NBC’s credit, they at least didn’t make the coke-in-gun their headline). Subsequent filings have revealed that the lab test was October 2023, after the indictment, and so proof instead that prosecutors didn’t seek evidence until after they charged. The showy residue claim actually supports Hunter’s side of this argument, not Weiss’: it suggests prosecutors never took basic investigative steps to support gun charges until Jim Jordan demanded it.

I was also suspicious because Hines had engaged in so much obvious prevarication in the same filing. He played with the timeline to suggest that evidence available two years before the indictment — Hunter’s book — was newly obtained. He selectively cited documentation about what led up to the plea deal: ignoring proof that David Weiss was personally involved, on June 6, in crafting language that protected against further charges; offering no contest to Chris Clark’s claim that on June 19, Weiss’ First AUSA assured Clark there was no ongoing investigation. Hines lumped Hunter’s lie on a gun form in with far more serious straw purchases in order to claim there were aggravating circumstances that merited charging (a detail that still doesn’t address why Weiss reneged on the plea deal). Hines outright lied about how much David Weiss had ratcheted up the potential sentence with the new charges.

No one should have uncritically accepted the language in this passage, because so much of the filing was obviously deceptive.

I was suspicious, too, because Hines’ claim that evidence obtained from the laptop was “largely duplicative” admits that it was not entirely duplicative. His choice of language made it clear there were things on the laptop that were not in the iCloud.

And he did so in a paragraph that tried to obscure how the provenance of the laptop affects the provenance of his other evidence. Notably, the structure of the passage misrepresented the temporal progression — a temporal progression that anyone who had covered Gary Shapley’s testimony should know. The body of the paragraph suggested that investigators got a warrant for Apple and only then accessed the laptop. The body of the paragraph provided no hint about when prosecutors obtained a warrant to search already obtained materials for gun crimes. The footnotes tell a different story. Hines hid in footnote 2 a follow-up warrant for backups of individual devices with a docket number, dating to 2020, showing that that follow-up warrant post-dated FBI’s receipt of the laptop (again, which was already clear from Gary Shapley’s testimony), and therefore may be poisoned fruit of the laptop. More shockingly, Hines hid the 2023 date of the gun crimes warrant in footnote 5. Those footnotes are what led me to ask more questions and ultimately to liberate the warrants in question.

When Dilanian quoted that passage as if it were reliable, he omitted the existence of those footnotes, as well as the reference to the belated warrant for gun crimes that explained why the laptop couldn’t have “resulted” in the gun indictment without a likely Fourth Amendment violation.

“In August 2019, IRS and FBI investigators obtained a search warrant for tax violations for the defendant [Hunter Biden]’s Apple iCloud account,” [omitted footnote 2] the filing said. “In response to that warrant, in September 2019, Apple produced backups of data from various of the defendant’s electronic devices that he had backed up to his iCloud account. [omitted footnote 3] Investigators also later came into possession of the defendant’s Apple MacBook Pro, which he had left at a computer store. A search warrant was also obtained for his laptop and the results of the search were largely duplicative of information investigators had already obtained from Apple.” [omitted footnote 4 and admission they did not originally get a warrant for gun crimes]

Even in January, that response filing should have led reporters to note that David Weiss didn’t even seek basic evidence needed to prove the gun case until after he charged it.

But much has happened since to raise further questions about the laptop, including:

  • January 17: I write Weiss’ spox asking, “Can you correct me on the date of that warrant, please?” because I thought there was no way it was really December 2023. He declined to further comment, which made me suspect maybe it was really December 2023.
  • January 22: I asked Judge Noreika to unseal the dockets. She did!
  • January 30: Those dockets confirmed Weiss did not seek a warrant to search Hunter’s Apple data for evidence of gun crimes until 81 days after the indictment; the warrant return also discloses that the FBI was still searching Hunter’s Apple data on January 16 when Hines first publicly disclosed it and claimed that the laptop was largely duplicative of what was in the iCloud.
  • January 30: Abbe Lowell announced he plans to file a motion to suppress.
  • January 30: Prosecutors had not provided material from the laptop with Bates stamp or in e-discovery format; they also had not provided expert reports on the laptop known (from Shapley’s testimony, among other places) to exist.
  • February 13: Almost 40 months after acknowledging that the FBI had never validated the laptop to check when files were added to it, they admitted that they still have no index of the laptop. They also claim they were seizing information relating to gun crimes under the plain view doctrine for four years.
  • February 13: The FBI understands the laptop so poorly that they presented a picture of sawdust from Keith Ablow that probably should have been treated as privileged and claimed it was a picture Hunter took of his own cocaine. (There’s likely another picture that Hines misattributed, too.)
  • February 20: The same day Hunter rejected Weiss’ demand for quick guilty pleas to felony charges, August 29, prosecutors told Abbe Lowell — still three months before they obtained a gun crime warrant for either Hunter’s iCloud or the laptop — they had “independent sources” for anything on the laptop.
  • February 20: By describing that key texts sent between Hallie and Hunter Biden in October 2018 were not found in the iCloud content, prosecutors were actually describing that they did not have “independent sources” for their most probative evidence (or of the picture of a picture of a table saw and sawdust they want to claim is cocaine).

Let me make this easy for NBC, because they seem to misunderstand this.

Over 1,500 days after receiving the laptop, the FBI has not done the things it would need to do to validate the laptop. They don’t have an index of what they have and they don’t know how all the embedded back-ups relate to one another. Without that, they cannot make representations that the laptop was not tampered with. Indeed, they’re making laughably false claims about what they have found uniquely on the laptop, a testament that they don’t have the most basic understanding about the laptop.

Additionally, Hines’ description of the source for the texts between Hallie and Hunter Biden makes it highly likely they came from a device backup that was protected by a password when the FBI got the laptop. Accessing that content without a follow-up warrant — which they did before they got the 2020 warrants that may rely on it — may be a Fourth Amendment violation under Riley. And particularly given that Hunter had just lost two phones in the days before such texts would have been sent, it raises real questions about both their provenance and the compilation of the laptop itself.

Since Derek Hines made dubious claims on January 16 that the laptop was “largely duplicative” of material found in Hunter Biden’s iCloud, we’ve since learned one reason he was so squirrelly when he made that claim: his most important evidence for the gun crime doesn’t appear to be duplicated in Hunter’s iCloud. And unless the FBI conducted an unlawful search of Hunter’s digital evidence — or unless they indicted based on what they had seen in Murdoch publications — they did not learn that until months after they charged the President’s son. And they didn’t learn that because four years after obtaining the laptop, the FBI has still never taken basic steps to understand what is on it.

After I reviewed the passage Dilanian quoted, I realized that it is even more misleading than I had previously understood. The full passage is below, with annotations. 

In August 2019, IRS and FBI investigators obtained a search warrant for tax violations for the defendant’s Apple iCloud account. 2 In response to that warrant, in September 2019, Apple produced backups of data from various of the defendant’s electronic devices that he had backed up to his iCloud account. [this obscures what happened: Apple sent the full content of Hunter’s iCloud account, including the backups, but DOJ obtained new warrants — possibly relying on the laptop — to obtain those backups in 2020] 3 Investigators also later came into possession [this “came into possession” will look comical after we see a motion to suppress, not least because by the time FBI obtained it, they had already told John Paul Mac Isaac’s father he may have had it illegally] of the defendant’s Apple MacBook Pro, which he had left at a computer store. [as I’ve shown, the only proof that Hunter left the laptop would be easily faked by anyone in possession of the laptop — and when they checked Hunter’s iCloud data, they should have realized there were too many devices associated with it for all to be legitimately his] A search warrant was also obtained for his laptop and the results of the search were largely [as subsequent filings made clear, Weiss’ most important evidence was not duplicated in Hunter’s iCloud] duplicative of information investigators had already obtained from Apple. 4 Law enforcement also later [by “later,” Hines means, they didn’t get a warrant until 81 days after indicting and were still searching the digital data] obtained a search warrant to search the defendant’s electronic evidence for evidence of federal firearms violations and to seize such data. 5

2 District of Delaware Case No. 19-234M [August 29, 2019: Original iCloud warrant; warrant return] and a follow up search warrant, District of Delaware Case Number 20-165M. [July 10, 2020 iCloud warrant; warrant return]

3 The electronic evidence referenced in this section was produced to the defendant in discovery in advance of the deadline to file motions.

4 District of Delaware Case No. 19-309M. [December 13, 2019: Original laptop warrant; warrant return]

5 District of Delaware Case No. 23-507M. [December 4, 2023: post-indictment warrant; warrant. return (less attachments) attachments AB]

The searches revealed incriminating evidence, including evidence of the defendant’s addiction to controlled substances and his possession of the firearm, such as:

– Prior to October 12, 2018 (the date of the gun purchase), the defendant took photos of crack cocaine and drug paraphernalia on his phone. [as proof of this, Hines presented a single photo of someone weighing cocaine without proof Hunter took it (though he probably did)]

– Also prior to his gun purchase, the defendant routinely sent messages about purchasing drugs. [as shown in the table below, Hines provides three examples, one of which was conducted on an “unknown” phone, the most recent of which was in July 2018]

– On October 13, 2018, and October 14, 2018 (the day after and two days after he purchased the firearm), the defendant messaged his girlfriend about meeting a drug dealer and smoking crack. For example, on October 13, 2018, the defendant messaged her and stated, “. . . I’m now off MD Av behind blue rocks stadium waiting for a dealer named Mookie.” The next day, the defendant messaged her and stated, “I was sleeping on a car smoking crack on 4th street and Rodney.” [this is from content that Hines seems to concede only exists on the laptop and was sent during a period when Hunter was still replacing lost phones]

– On October 23, 2018 (the day his then-girlfriend discarded his firearm), the defendant messaged his girlfriend and asked, “Did you take that from me [girlfriend]?” Later that evening, after his interactions with law enforcement, he messaged her about the “[t]he fucking FBI” and asked her, “so what’s my fault here [girlfriend] that you speak of. Owning a gun that’s in a locked car hidden on another property? You say I invade your privacy. What more can I do than come back to you to try again. And you do this???? Who in their right mind would trust you would help me get sober.” In response, the girlfriend stated “I’m sorry, I just want you safe. That was not safe. And it was open unlocked and windows down and the kids search your car. You have lost your mind hunter. I’m sorry I handled it poorly today but you are in huge denial about yourself and about that reality that I just want you safe. You run away like a child and blame me for your shit . . .” [this is still content that may only be available on the laptop and therefore unreliable or inadmissible]

– After the firearm was taken from him and recovered by police, the defendant continued to send messages to various people about his use of drugs, including telling his girlfriend that he is an “addict” on November 8, 2018, and on November 21, 2018, telling Person 1, “. . . I’m a fucking better man than any man you know whether I’m smoking crack or not.” He also continued to send messages about purchasing drugs. He sent a message to his girlfriend on November 29, 2018, stating, in relevant part, “I DONT BLAME MY ADDICTION ON YOU . . .” and another message to Person 2 on December 18, 2018, acknowledging that he is “an addict.” On December 28, 2018, hemessaged Person 2 stating, “I’ll fuxking [sic] get sober when I want to get fucking sober.” [this content does exist in Hunter’s iCloud, but several things make it suspect: he was texting on at least one other device at the time — though that’s a device that appears to only be available on the laptop — and (as I describe here) this particular device may be one that has suspect provenance going back to 2016]

– During November and December 2018, the defendant took multiple photographs of videos apparent cocaine, crack cocaine, and drug paraphernalia. [Hines presented three photos to back this claim: a timer in a picture of a presumed sex worker, a picture Keith Ablow took of a picture of sawdust, and a picture that may have come from Hallie — to the extent that it represented drug use — could not be tied to Hunter as opposed to Hallie and was very dated in any case] These episodes of persistent drug usage, documented by the defendant, in the immediate time frame before, during, and after his possession of the gun were evidence that he lied during the background check and unlawfully possessed the gun in October 2018.

 

 

David Weiss Was Planning on Using Alexander Smirnov’s Claims against the Bidens Until He Wasn’t Anymore

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On November 16, CNN reported on David Weiss’ ongoing use of a California grand jury. It reported that by that point, the FBI had concluded its renewed look at money laundering and FARA violations and was not going to file charges.

Prosecutors working under Weiss told a judge earlier this year that in addition to tax charges, they could also bring charges related to possible violations of the Foreign Agent Registration Act. Internal Revenue Service investigators who were part of the Hunter Biden investigation have alleged that the prosecutors slow-walked and blocked efforts to look into possible money laundering and foreign lobbying allegations.

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

That was over a month after the September 27 interview at which Smirnov renewed and expanded his lies. No charges were going to be filed on November 16, CNN reported.

But on November 15, Abbe Lowell asked for discovery on the Scott Brady side channel and subpoenas to serve on people like Trump and Bill Barr.

  1. All documents and records reflecting communications from January 20, 2017 to the present (the “Relevant Time Period”) to, from, between, or among Donald J. Trump, William P. Barr, Geoffrey Berman, Scott W. Brady, Richard Donoghue, or Jeffrey A. Rosen relating to or discussing any formal or informal investigation or prosecution of Hunter Biden, or a request thereof.
  2. All documents and records reflecting communications from the Relevant Time Period to, from, between, or among Donald J. Trump, William P. Barr, Geoffrey Berman, Scott W. Brady, Richard Donoghue, or Jeffrey A. Rosen and any Executive Branch official, political appointee, Department of Justice official, government agency, government official or staff person, cabinet member, or attorney for President Trump (personal or other) discussing or concerning Hunter Biden.

Lowell raised the Brady side channel in his selective prosecution filing, too. David Weiss’ responses to such requests always misrepresented the ask, pretending it pertained to no more than directions from Jeffrey Rosen’s office to avoid overt pre-election investigative steps.

And all the while, according to the Alexander Smirnov detention memo, he kept getting on planes to meet Russian spooks.

In October 2023, SMIRNOV had in-person conversations with RUSSIAN OFFICIAL 1 overseas. During these conversations, RUSSIAN OFFICIAL 1 discussed his knowledge and seeming control of two groups of Russian operatives who were previously tasked with the assassination of a high-ranking official of COUNTRY C. RUSSIAN OFFICIAL 1 offered to stop the assassination efforts in exchange for certain things, including an agreement by COUNTRY C to stop targeting civilian-family members of certain Russian officials living in Moscow

[snip]

SMIRNOV attended a meeting in COUNTRY A [probably UAE] in December 2023 that was attended by RUSSIAN OFFICIAL 2, a high-ranking member of a Russian Foreign Intelligence Service. The primary purpose of the meeting was to discuss a potential resolution to the Russia-Ukraine war.

Against that background, there’s a detail in the Smirnov indictment that hasn’t attracted the attention it deserves.

David Weiss bases his authority for charging Smirnov — in California, not Delaware — on his Special Counsel authority.

41. In July 2023, the FBI requested that the U.S. Attorney’s Office for the District of Delaware assist the FBI in an investigation of allegations related to the 2020 1023. At that time, the United States Attorney’s Office for the District of Delaware was handling an investigation and prosecution of Businessperson 1.

42. On August 11, 2023, the Attorney General appointed David C. Weiss, the United States Attorney for the District of Delaware, as Special Counsel. The Special Counsel was authorized to conduct the investigation and prosecution of Businessperson 1, as well as “any matters that arose from that investigation, may arise from the Special Counsel’s investigation, or that are within the scope of 28 C.F.R. § 600.4(a).”

The only way Smirnov could be covered under that Special Counsel grant of authority is if, when investigators interviewed Smirnov on September 27, they were investigating Hunter Biden. David Weiss was made Special Counsel to investigate Hunter Biden, not those who framed him and his father.

There’s a lot that Weiss left out of the indictment, like Scott Brady’s claim to have vetted Smirnov’s travel records and Bill Barr’s claim that Weiss was ordered in 2020 to further investigate the claim and Richard Donoghue’s order to Weiss, just days after Trump yelled at Bill Barr for not doing enough to investigate Hunter Biden, to accept a briefing on Smirnov’s claims.

But that detail makes it clear that the point of the interview was to investigate Hunter Biden, not — not at first, anyway — to investigate Smirnov. This is why, if Abbe Lowell gets discovery on this issue, I think this footnote will be vindicated (an argument I made back in November).

4 The discussion about the scope of the immunity agreement appears shaped by the prosecution’s investigation of the Smirnov allegations, which it began looking into just days before the July 26, 2023 hearing. (Smirnov Indict. ¶ 41 (noting the prosecution team began investigating Smirnov’s claims in July 2023).) While a host of possible crimes had been investigated, the defense understood that the FARA/bribery investigation had been closed and that the only pending issues concerned gun and tax charges. The Diversion Agreement resolved the gun and tax charges, which is why defense counsel believed the immunity agreement covered everything and would conclude the investigation. The push back from the prosecution and its discussion of an “ongoing” investigation—apparently tied to the Smirnov allegations—came as a surprise to defense counsel. (7/26/23 Tr. at 50, 54.) Having taken Mr. Smirnov’s bait of grand, sensational charges, the Diversion Agreement that had just been entered into and Plea Agreement that was on the verge of being finalized suddenly became inconvenient for the prosecution, and it reversed course and repudiated those Agreements.

The reason why David Weiss reneged on a plea deal was to chase this bribery claim. The reason why David Weiss charged Hunter Biden with a bunch of felonies rather than resolving this in a diversion and misdemeanors was because he wanted to chase the false claims floated by someone dallying with Russian spies.

And I’d be willing to bet that if Lowell hadn’t asked for discovery that may expose that fact, David Weiss would never have indicted Alexander Smirnov.

Smirnov and [a]Blow

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There should be a slew of Hunter Biden filings coming in today, most in CA.

I’ll post them here until I do a longer read.

But they’ve filed their first one — a reply on their motion to compel — that we can have fun with in the meantime.

Hunter’s lawyers mock David Weiss, first, for mistaking sawdust for cocaine (they cite me), and then raise the arrest of Alexander Smirnov.

The Smirnov bit is the more important argument, because it makes the same (in my very humble opinion) compelling argument I did: That the renewed focus on the Smirmov allegations are probably what led David Weiss to renege on a plea deal.

Another development, just last week, further informs Mr. Biden’s request for an now motion to compel discover. On February 15, 2024, Special Counsel David Weiss unsealed the remarkable indictment of former FBI informant Alexander Smirnov. United States v. Smirnov, 2:24-cr-00091-ODW (C.D. Cal.). The Special Counsel’s indictment notes that Mr. Smirnov expressed his “bias” against President Biaden and was telling a farcical tale that Burisma, a Ukrainian company, enlisted Mr. Biden as an unregistered foreign agent and paid bribes to him and then-Vice President Biden that proved to be so outlandish and unsubstantiated that the FBI field team recommended its investigation be closed and the then-FBI Deputy Director and thenPrincipal Associate Deputy Attorney General (Richard Donoghue) agreed in August 2020. 3 (Id. DE1 at ¶ 40 (“Smirnov Indict.”).) Nevertheless, with prodding from extremist Republican Members of Congress (who initiated an impeachment inquiry of President Biden based on the same baseless allegations) and the right-wing media, the prosecution team that was already pursuing Mr. Biden resuscitated the baseless investigation of Mr. Smirnov’s ridiculous claims against Mr. Biden thirty-four months later. (Id. ¶ 41.) It now seems clear that the Smirnov allegations infected this case, and why, on July 26, 2023, the Special Counsel answered as it did the Court’s question about whether the Diversion Agreement’s immunity provision would bar charges under the Foreign Agents Registration Act (7/26/23 Tr. at 55). 4

Lo and behold, some seven months later, the Special Counsel finally figured out that Mr. Smirnov was lying—which should have been obvious to everyone, certainly by August 2020 when DOJ closed the investigation. The Special Counsel charged Mr. Smirnov with lying and obstruction, but the more interesting part of this story is not that Mr. Smirnov lied. It is more remarkable that beginning in July 2023, the Special Counsel’s team would follow Mr. Smirnov down his rabbit hole of lies as long as it did. (Smirnov Indict. ¶¶ 41–46.) Disclosure about why the Special Counsel abandoned its June/July 2023 agreements with Mr. Biden and the role played by the Smirnov allegations may reveal flaws worse than mistaking sawdust for cocaine.5 Despite the prosecution’s strong words in its opposition to this motion, its actions demonstrate that the prosecution has gotten much wrong and provides good cause for Mr. Biden to question whether it has gotten its discovery obligations right.

3 Mr. Biden’s DOJ requests (see infra at 18–19), as well as his Rule 17 subpoena requests (DE 58) seeking communications and records from, among others, Principal Associate Deputy Attorney General Richard Donoghue and former U.S. Attorney for the Western District of Pennsylvania Scott Brady, bear directly on and are probative of the allegations in the Smirnov Indictment. The fact that Special Counsel Weiss handled the Smirnov investigation and is prosecuting the case makes Mr. Biden’s requests all the more important.

4 The discussion about the scope of the immunity agreement appears shaped by the prosecution’s investigation of the Smirnov allegations, which it began looking into just days before the July 26, 2023 hearing. (Smirnov Indict. ¶ 41 (noting the prosecution team began investigating Smirnov’s claims in July 2023).) While a host of possible crimes had been investigated, the defense understood that the FARA/bribery investigation had been closed and that the only pending issues concerned gun and tax charges. The Diversion Agreement resolved the gun and tax charges, which is why defense counsel believed the immunity agreement covered everything and would conclude the investigation. The push back from the prosecution and its discussion of an “ongoing” investigation—apparently tied to the Smirnov allegations—came as a surprise to defense counsel. (7/26/23 Tr. at 50, 54.) Having taken Mr. Smirnov’s bait of grand, sensational charges, the Diversion Agreement that had just been entered into and Plea Agreement that was on the verge of being finalized suddenly became inconvenient for the prosecution, and it reversed course and repudiated those Agreements.

5 The prosecution’s outrage over criminal activity by those associated with its investigation remains rather selective. Last month, a former government contractor working at the IRS, who unlawfully leaked private taxpayer information concerning former President Trump , was sentenced to five years in prison—a significant sentence for a serious crime. United States v. Charles E. Littlejohn, No. 23-cr-00343-ACR (D.D.C. 2023). Nevertheless, two IRS agents on the prosecution’s team investigating Mr. Biden blatantly and publicly did the same thing, on television no less, and yet they have not been prosecuted or even fired by the IRS. Mr. Biden raised the agents’ misconduct several times with the Inspector General and Mr. Weiss. Neither have yet acknowledged the complaint. Thus, Mr. Biden brought a civil action based on these agents’ misconduct and their agency’s failure to act. Biden v. IRS, No. 23-cv-02711-TJK (D.D.C. 2023). Still, however, neither the IRS nor the prosecution has taken action against them. Ironically, the same extremist Republican voices who now angrily complain that Mr. Trump’s leaker got off too easy simultaneously claim the two IRS agents who leaked confidential tax information concerning Mr. Biden should be hailed as courageous “whistleblowers.” Chairman Jordan Opens Inquiry into DOJ’s Sweetheart Deal for Trump Tax Return Leaker, H. Judiciary Comm. (Feb. 8, 2024), https://judiciary.house.gov/media/press-releases/chairman-jordan-opens-inquiry-dojs-sweetheartdeal-trump-tax-return-leaker; Arjun Singh, Top GOP Rep Calls On More Whistleblowers To Come Forward, Pledges ‘Zero Tolerance’ For Retaliation, Daily Caller (July 19, 2023), https://dailycaller.com/2023/07/19/jason-smith-irs-whistleblower-retaliation/. The prosecution’s various actions and inactions send the very message that Mr. Biden’s motions to dismiss allege— misbehave when dealing with former President Trump and there will be consequences; do the same in the unprecedented charges against Mr. Biden and you will be praised.

This will be the last briefing Judge Maryellen Noreika gets before deciding on the motions to dismiss, so the timing of the Smirnov indictment becomes important.

Anyway, I’ll update when those other filings get posted.

David Weiss Is a Direct Witness to the Crimes on Which He Indicted Alexander Smirnov

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On the day that Bill Barr aggressively intervened in the parallel impeachment inquiry and Hunter Biden prosecutions last summer, David Weiss’ office sent out a final deal that would resolve Hunter’s case with no jail time and no further investigation. Within weeks, amid an uproar about claims in an FD-1023 that David Weiss now says were false, Weiss reneged on that deal. With the indictment yesterday of Alexander Smirnov, the source of those false claims, Weiss confesses he is a direct witness in an attempt to frame Joe Biden, even as he attempts to bury it.

On June 7, 2023, Bill Barr went on the record to refute several things that Jamie Raskin described learning about Smirnov’s FD-1023. Specifically, the former Attorney General insisted that the investigation into the allegations Smirnov made continued under David Weiss.

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

“It wasn’t closed down,” Bill Barr claimed. As I’ll show below, according to the indictment obtained under David Weiss’ authority yesterday, that’s a lie. “It was sent to [David Weiss] for further investigation,” Bill Barr claimed, not confessing that it was sent to Delaware on October 23, 2020, days after Trump had yelled at him personally about the investigation into Hunter Biden. According to Barr, Weiss was tasked with doing more investigation into the Smirnov claims than Scott Brady had already done.

In the Smirnov indictment, Weiss now says that he only did that investigation last year, and almost immediately discovered the allegations were false.

The same day the Federalist published those Barr claims, June 7, and one day after Hunter Biden attorney Chris Clark spoke personally with David Weiss, Lesley Wolf sent revised language for the diversion agreement that strengthened Hunter Biden’s protection against any further prosecution.

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.

That language remains in the diversion agreement Leo Wise signed on July 26, 2023.

According to an unrebutted claim from Clark, on June 19, 2023, Weiss’ First AUSA Shannon Hanson assured him there was no ongoing investigation into his client.

36. 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.

That day, June 19, was the first day Wise made an appearance on the case.

On July 10, a month after the former Attorney General had publicly claimed that his office sent the Smirnov FD-1023 to Weiss’ office for further investigation in 2020, Weiss responded to pressure from Lindsey Graham explaining why he couldn’t talk about the FD-1023: “Your questions about allegations contained in an FBI FD-1023 Form relate to an ongoing investigation.” The next day, Hanson fielded a request from Clark, noting she was doing so because “the team” was in a secure location unable to do so themselves. “The team” should have had no purpose being in a secure location; they should have been preparing for the unclassified plea deal.

By July 26, the same day Leo Wise signed a diversion agreement that said Hunter wouldn’t be further charged, he made representations that conflicted with the document he had signed, claiming Hunter could still be charged with FARA. That was how, with David Weiss watching, Wise reneged on a signed plea deal and reopened the investigation into Hunter Biden, leading to two indictments charging six felonies and six misdemeanors.

According to the Smirnov indictment, sometime in July (tellingly, Weiss does not reveal whether this preceded his letter to Lindsey Graham, whether it preceded the plea colloquy where Leo Wise reneged on a signed deal), the FBI asked Weiss’ office to help in an investigation regarding the FD-1023.

In July 2023, the FBI requested that the U.S. Attorney’s Office for the District of Delaware assist the FBI in an investigation of allegations related to the 2020 1023. At that time, the United States Attorney’s Office for the District of Delaware was handling an investigation and prosecution of Businessperson 1.

It is virtually certain that the FBI asked Weiss to pursue whether any leads had been missed in 2020, not whether Joe and Hunter Biden had been unfairly framed. That’s because Weiss cannot — should never have — led an investigation into how the Bidens were framed. He’s a witness in that investigation. 

So it is almost certain that the FBI decided to reopen the investigation into the FD-1023, perhaps based in part on Bill Barr’s false claims. It is almost certain that this investigation, at that point, targeted Joe and Hunter Biden. It is almost certain that this is one thing Weiss used to rationalize asking for Special Counsel authority.

And that’s probably why, when Weiss’ team interviewed Smirnov on September 27, Smirnov felt comfortable adding new false allegations.

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.

Smirnov seemingly felt safe telling new, even bigger lies. In his mind, Hunter and Joe were still the target! Again, that is consistent with the investigation into Hunter Biden being reopened based off Bill Barr’s public pressure.

According to the Smirnov indictment, David Weiss’ team found evidence that proves Bill Barr lied and Scott Brady created a false misimpression — the former, to pressure him — Weiss — and the latter, in testimony to Congress that was also part of the pressure campaign against the Bidens.

Compare Bill Barr’s claim made on the day when Weiss agreed that Hunter would face no further charges with what the Smirnov indictment states as fact. The Smirnov indictment says that Scott Brady’s office closed the assessment, with the concurrence of David Bowdich and Richard Donoghue, which is what Jamie Raskin said (though Raskin said Barr himself concurred).

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.

But Barr told the Federalist that it was not closed down, it was forwarded — by Richard Donoghue, days after the President yelled at Barr about this investigation (though he didn’t say that) — to David Weiss for more investigation.

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

Had it been forwarded to David Weiss for more investigation, had he taken those additional investigative steps Barr claims he was ordered to do, Weiss would have discovered right away the key things that proved Smirnov was lying, the claims that Scott Brady had claimed to investigate, the things that the Smirnov indictment suggest he newly discovered months ago.

According to Scott Brady’s testimony to Congress, his team asked Smirnov’s handler about things like travel records and claimed that it was consistent.

Mr. Brady. So we attempted to use opensource material to check against what was stated in the 1023. We also interfaced with the CHS’ handler about certain statements relating to travel and meetings to see if they were consistent with his or her understanding.

Q And did you determine if the information was consistent with the handler’s understanding?

A What we were able to identify, we found that it was consistent. And so we felt that there were sufficient indicia of credibility in this 1023 to pass it on to an office that had a predicated grand jury investigation. [my emphasis]

According to the Smirnov indictment, Weiss’ team asked the handler the same question — about travel records. Only, they discovered that Smirnov’s travel records were inconsistent with the claims the handler himself recorded in the FD-1023.

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.

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.

Tellingly, when Brady was asked more specific questions about Smirnov’s travel records, his attorney, former Trump-appointed Massachusetts US Attorney Andrew Lelling, advised him, twice, not to answer.

Q And did you determine that the CHS had traveled to the different countries listed in the 1023?

Mr. Lelling. I would decline to answer that.

[snip]

Q The pages aren’t numbered, but if you count from the first page, the fourth page, the first full paragraph states, following the late June 2020 interview with the CHS, the Pittsburgh FBI Office obtained travel records for the CHS, and those records confirmed the CHS had traveled to the locales detailed in the FD1023 during the relevant time period. The trips included a late 2015 or early 2016 visit to Kiev, Ukraine, a trip a couple months later to Vienna, Austria, and travel to London in 2019. Does this kind of match your recollection of what actions the Pittsburgh FBI Office was taking in regards to this.

Mr. Lelling. Don’t answer that. Too specific a level of detail

Q You had mentioned last hour about travel records.

Did your office obtain travel records, or did you have knowledge that the Pittsburgh FBI Office obtained travel records?

Mr. Lelling. That you can answer yes or no.

Mr. Brady. Yes.

If Brady obtained those travel records, he would have discovered what Weiss did: Neither Smirnov’s travel records nor those of his subsource, Alexander Ostapenko, are consistent with the story Smirnov told.

o. Associate 2’s trip to Kiev in September 2017 was the first time he had left North America since 2011. Thus, he could not have attended a meeting in Kiev, as the Defendant claimed, in late 2015 or 2016, during the Obama-Biden Administration. His trip to Ukraine in September 2017 was more than seven months after Public Official 1 had left office and more than a year after the then-Ukrainian Prosecutor General had been fired.

[snip]

34. Further, the Defendant did not travel to Vienna “around the time [Public Official 1] made a public statement about [the thenUkrainian Prosecutor General] being corrupt, and that he should be fired/removed from office,” which occurred in December 2015.

Paragraph after paragraph of the Smirnov indictment describe how the travel records — the very travel records that the handler and Scott Brady claimed corroborated the allegation — proved Smirnov was lying.

The record is quite clear that Bill Barr and Scott Brady made false representations about activities that directly involved David Weiss in 2020.

And yet Weiss has been playing dumb.

Abbe Lowell made a subpoena request and a discovery request relating to these matters on November 15. Lowell not only laid out this scheme in his selective and vindictive prosecution claim, but he cited the Federalist story in which Barr lied. He cited these matters in his discovery request.

Rather than acknowledging that Weiss’ team had discovered evidence that proved the claims of Barr and Brady were misrepresentations, Weiss’ team lied about the extent of Richard Donoghue’s role — documented in a memo shared by Gary Shapley — in forcing Weiss to accept the FD-1023 on October 23, 2022.

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.

And now, on the eve of Abbe Lowell submitting a reply on his motion to compel and a selective prosecution and discovery request in California, David Weiss has unveiled a belated indictment proving that Lowell’s allegations were entirely correct. The indictment may well provide excuse to withhold precisely the discovery materials Lowell has been demanding for months, and it may create the illusion that Barr’s pressure led Weiss to renege on a plea deal. But it is a confession that there was an attempt to frame Joe Biden and his son in 2020.

What David Weiss discovered — if he didn’t already know about it — is that he was part of an effort to frame Joe Biden in 2020, an effort that involved the Attorney General of the United States. If Merrick Garland is going to appoint Special Counsels for these kinds of things, one should be appointed here, especially given that Donoghue required the briefing on the FD-1023 days after Trump personally intervened with Bill Barr.

But David Weiss can’t lead that investigation. He’s a witness to that investigation.

Update: Fixed how long it took Weiss to renege on the deal after Bill Barr’s false claim.

See Hunter Biden’s Eight Legal Chessboards for links to all the filings.

Where Derek Hines Claims to Have Gotten the Hunter Biden Dick Pics He Sniffed

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Even if Judge Maryellen Noreika threw out the gun charges against Hunter Biden today, I’d be grateful for the recent squabble over Hunter Biden’s motion to compel, and not just for the endless amusement of seeing an experienced drug prosecutor like Derek Hines claim sawdust on a table saw is cocaine.

That’s because by providing what he thinks is solid proof that Hunter was an addict in 2018, Hines has revealed a bit about where such evidence exists among the digital evidence he has in hand and where it doesn’t.

Most significantly, for this case, it appears Derek Hines relied exclusively on the laptop to get the texts surrounding the period immediately after Hunter Biden bought a gun. Particularly given the turmoil in Hunter’s access to his devices in those precise days, without validation of the texts in an Apple database, that would make the texts far harder to use at trial.

As a reminder, the Apple data at issue comes from three places:

In December, Hines got a warrant to search the existing data for gun crime evidence, but did not go back to obtain a warrant to access any backed up devices — if they exist — that would be more appropriate to the gun charges.

Hines claimed, in his response to Hunter’s selective prosecution bid that, “the results of the search” of the laptop “were largely duplicative of information investigators had already obtained from Apple.” In his response to Hunter’s motion to compel, he claimed that, “Many of the same messages, photographs, and information that were obtained from the iCloud warrants were also located on the defendant’s laptop,” but made no representations about the reverse — whether all the messages present on the laptop were in the iCloud production.

It appears they were not.

This table shows my rough transcription the 28 items included in Hines’ exhibit of gun-related evidence. Let me know of errors, particularly with my time conversations between UTC and “Hunter time,” which I’ve assumed was PT for the earlier texts and ET for the later ones. I’ve bolded those instances where “Hunter time” is the day before UTC time. My transcription of the hex identifiers, where Hines included them, are especially likely to have errors (and only include the first identified hex for each item).

These items include:

Items 1, 26-28: Four pictures, all of which he has presented without hex identifiers or EXIF metadata. Two come from iPhone backups obtained from Hunter’s iCloud (one being the iPad on which items 28-25 were found); two (including the sawdust picture) come from what is described as an iPhone 11 backed up to iTunes, apparently found on the laptop; I’m aware of no public record of Hunter owning an iPhone 11. Note: for the reason zscoreUSA notes below, Hines’ label of the sawdust picture as an iPhone 11 must be an error, as those were first released on September 20, 2019, too late to be on the laptop, and only possible to be included in the iCloud returns if Hunter got one the day they were released and backed up everything to an iPhone 11. So it may be a typo for iCloud backup 11, which would be an iPhone XR. 

Items 2-10: Nine texts, dated between May and July 2018, obtained from iCloud Backup 1, which the warrant return describes as an iPhone X. Six of those, items 5 through 10, appear to record a drug transaction arranged over the course of a half hour overnight on July 25-26. While this backup is associated with an iPhone X of uncertain vintage (Hunter went through at least three iPhone Xes in 2018), seven items were obtained from a device called XRNASHUA, an iPhone XR; Apple did not introduce the iPhone XR until October 2018 and Hunter is not known to have obtained his first one until spring 2019, in New Haven, not Nashua. The only two communications obtained from an iPhone X, Items 3 and 4, used an unknown phone number. Item 2 is a WhatsApp text.

Items 11-17: These texts, showing exchanges between Hunter and Hallie Biden on October 13, 14, and 23, derive from what Hines describes as an iTunes Backup. Hines doesn’t identify of which phone — not even the device type — nor does the metadata included identify which phone Hunter used. Just one of the texts Hunter sent, item 13, is described as “delivered” after it was “sent.” I’ll return to these below.

Items 18-25: These texts came from an iPad Pro called “Robert’s iPad” which, based on the serial number included in Gus Dimitrelos’ report, was purchased in November 2015.

iPad Pro 12.9-inch (1st generation) Wi-Fi
Purchase Date: November 2015

Serial Number: DLXQL4EUGMLD

Emails released on BidenLaptopEmails dot com show someone logging into Hunter’s iCloud, Facetime, and iMessage with an iPad Pro on November 11, 2015, the same day Gus Dimitrelos shows it — named as Roberts, no apostrophe, iPad — logging into Hunter’s iCloud account. The next day, a pricy iPad pencil was ordered from Apple, though it was on backorder until January 2016. On May 20, 2016, Find my iPad was used to play a sound on an iPad called “iPad 206” twice. The process of signing into iCloud, then Facetime and iMessage with an iPad Pro, was repeated on September 11, 2016, what Dimitrelos describes as the first access by iPad 206, the one already associated with Hunter’s account earlier that year. On October 26, 2016, Find my iPad was disabled on iPad Pro 206 and on November 13, 2016 the cards were removed and the device was deleted — presumably, given that Find my iPad had been disabled, in person. Those same publicly released emails show no other iPad Pros logging for the first time into Hunter’s account, though in August 2018, an iPad (not identified as a Pro) was deleted, with that process completing in September 2018. But Dimitrelos shows four other iPads named either “Robert’s” or “Roberts” iPad logging into Hunter’s account (February 19, 2013, August 24, 2017, October 21, 2017, January 21, 2018). Of the texts included in Hines’ exhibit, which were sent between November 8 and December 27, 2018, just one, item 20, was marked as delivered and read, and it wasn’t one of the ones sent to probable family members.

I’ll leave the technical discussion there, in case anyone understands how Apple tracks iMessage texts or the difference between texts saved in ChatStorage and SMS.

But several general conclusions stick out. First, it’s likely that two of the devices for which Hines got a new warrant for drug crimes in December 2018, iCloud Backup 2, a 6S, and iCloud Backup 3, seemingly a different XR, had no communications pertinent to the year in question, 2018 [update: unless the explanation for Hines’ error in labeling photos as iPhone 11 is a typo for iCloud backup 11]. That will be of interest if Abbe Lowell ever gets to file a suppression motion, since there could be no probable cause to obtain content from an unrelated period. Second, it’s not clear that any of these devices were the devices on which the communications in question were sent. Hines’ best evidence of a drug purchase — those texts from July 25-26, 2018 — would probably have been sent in an iPhone X and then synched onto an iPhone XR purchased quite a bit later. As with all the other digital evidence Hines seems not to have thought through, given how often Hunter lost devices with access to his iCloud account and how rarely he reset it, it’s not enough to show that texts saved through Hunter’s iCloud showed evidence of a drug purchase. You would have to show that the phone on which those texts were originally sent was in Hunter’s hand at the time the texts were sent.

And this problem is especially fraught for those October 13-14 texts sent between Hallie and Hunter in October 2018, by far the most important evidence for his case. Here’s how they fit in with the timeline I laid out here, showing how Hunter responded after realizing he had misplaced both his main phones on October 11. The two main texts (in bold below) appear to have been sent before Hunter first logged into his new replacement iPhone and before he changed his password, even while people were clearly trying to break into some of his accounts. So prosecutors would have to prove that those texts weren’t sent by whoever inherited the phones Hunter had just lost.

Timeline

October 12, 12:56PM: As you requested, your temporary [AT&T] password is: ****** Use your user ID and temporary password to sign in to your account.

October 12, 12:56PM: Looks like you recently updated the AT&T password.

October 12, 12:57PM: Critical security alert for your linked Google Account, Sign-in attempt was blocked for your linked [RosemontSeneca] Google Account [device not specified]

October 12, 3:25PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 431] has been started

October 12, 3:32PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 431] has been started

October 12, 3:38PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 579] has been started

October 12, 3:40PM: Your [AT&T] insurance claim [phone ending in 96]

October 12, 3:44PM: Your [AT&T] insurance claim [phone ending in 13]

October 12, 3:49PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 701] has been started

October 12, 3:55PM: Please complete and return your claim documents Wireless Number: **94

October 12, 3:57PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 799] has been started

October 12, 4:03PM: Please complete and return your claim documents Wireless Number: **29

October 12, 5:35PM: Hello. Review your AT&T order

October 12, 6:22PM: Good news. Your replacement device [grey Apple iPhoneX] has shipped. [phone ending in 13]

October 12, 6:24PM: Phone [email from Joey]

Hey, You left your phone and other things. Tried to reach you at 202 and 302 all day but no luck. Let me know where to overnight.

October 12, 7:20PM: Good news. Your replacement device [iPhone 8] has shipped. [phone ending in 96]

October 12, 8:00PM: Verify your Samsung account [accessing Hunter’s iCloud]

October 12, 11:31PM: Someone Just Checked Your Background Report

October 13, 7:10AM: (Email) You left your phone. How do I get it to you?

joey

October 13, 7:26AM: (Email) You left your phone. How do I get it to you?

joey

October 13, 11:13AM: Let’s setup your AT&T replacement device [phone ending in 13]

October 13, 12:35AM: Someone Just Checked Your Background Report

October 13, 2:00PM: Hello, Review your AT&T order [changes to wireless]

October 13, 9:17PM: Your [RosemontSeneca] Google Account was just signed in to from a new Samsung Galaxy Note 9 device

October 13 10:30PM: I’m now off MD Ave behind blue rocks

October 13, 11:36PM: Wells Fargo Has Registered Your Mobile Device

October 14, 5:37AM: I was sleeping in a car

October 14, 2:24PM: Your Apple ID password has been reset

October 14, 2:24PM: Your Apple ID was used to sign in to iCloud on an iPhone X

October 14, 3:28PM: Wells Fargo card added to Apple Pay

October 14, 3:36PM: Verify your Samsung account [on iCloud]

October 14, 7:48PM: (Email from Joey) “Overcoming myself”

When you have a minute, read ….

Open my shared note:

Exp[o]rt Reports: When David Weiss Claimed Keith Ablow’s Sawdust Was Hunter Biden’s Cocaine

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As Garrett Ziegler was confessing, again, to have accessed a password-protected phone backup (for which Hunter Biden is suing him), he described that this is a photo of a photo in the office of then-still licensed psychiatrist Keith Ablow, which Ablow sent Hunter Biden, explaining that the photo came from an expert carpenter who was trying to kick a coke habit.

Ziegler was even kind enough to include the June 2, 2022 extract date of the iPhone XS iTunes backup where he found the picture, even while bitching of the dishonor and incompetence of David Weiss and his team.

David Weiss says the picture isn’t one of sawdust passed on by Keith Ablow. He says it’s a picture that Hunter Biden took himself of “apparent cocaine” sometime in late 2018.

During November and December 2018, the defendant took multiple photographs of videos apparent cocaine, crack cocaine, and drug paraphernalia.

Weiss doesn’t provide a date for the photo. But he says it came from an iPhone 11 backup stored to iTunes, though he’s not telling whether he found it in an iTunes backup in Hunter’s iCloud account obtained in September 2019, or an iTunes backup found on a laptop attributed to Hunter Biden obtained in December 2019.

iTunes Backup (iPhone 11) – Production 1

Now, perhaps it’s a good thing that David Weiss didn’t know he was (at least per Ziegler, who — bizarrely — has more credibility than the people who have a stack of warrants and lots more metadata) falsely claiming that this picture depicted cocaine. Perhaps that means he didn’t breach Hunter’s privileged communications with Ablow and read what the then still-licensed psychiatrist had to say to his client.

But he has just made the competence of his team’s forensic analysis an issue, and done so in a filing in which Derek Hines appears to be claiming they don’t need any expert forensic reports.

In the motion to compel to which Hines was responding, Abbe Lowell had claimed that Weiss had not turned over any expert reports.

Mr. Biden requested the ongoing production of all materials subject to disclosure under FRCP 16(a)(1)(A), (B), and (D). (See DE 65.) Mr. Biden notes that his October 2023 Rule 16 requests also cover any expert reports that the prosecution intends to rely upon at trial; to date, however, no expert reports or materials have been identified or produced to defense counsel.

The prosecution produced a Delaware state police case file, which includes a summary of an interview Mr. Biden gave police in October 2018 and other information about the purchase, discard, and recovery of the firearm, as well as evidence photos from its case file. The prosecution also produced an ATF case file that has additional information about the firearm and statements about its purchase. Mr. Biden asks the Court to order the prosecution to either (1) confirm no further responsive documents or communications exists in its possession (which includes material in the possession of all relevant government agencies and officials), or (2) produce the requested documents (including any expert reports) and, if the prosecution believes any responsive documents are protected from disclosure, identify those documents and the reasons why the prosecution believes they need not be disclosed.

Not true!, responded Hines in the filing where he appears to have claimed a photo of sawdust taken by a Keith Ablow client was instead a photo of cocaine taken by Hunter Biden.

Hines described that the prosecution has provided two expert reports: that of the FBI chemist who — five years after the gun was seized — found cocaine residue in the pouch in which the gun was found, but didn’t look for fingerprints or try to date the cocaine.

The defendant does not allege any Rule 16 materials are missing from the productions other than one assertion that, “to date, however, no expert reports or materials have been identified or produced to defense counsel.” ECF 83 at p 6. He is incorrect. On November 7, 2023, the government produced to the defendant an expert report prepared by an FBI chemist who analyzed the cocaine discovered on the defendant’s brown leather pouch that had contained his gun.1 In this same production, the government also produced an expert report prepared by an agent related to the interstate nexus of the gun charged in the indictment.2 In addition to these reports, the government produced other materials for these two experts, including CVs, as well as a CV for an additional expert.3 By contrast, the defendant has failed to provide any discovery, including any expert discovery.

In addition, prosecutors provided the CV for the witness who’ll attest the gun had a nexus to interstate commerce and the CV for … Hines isn’t describing what kind of witness that is.

But there are at least four reports I expected to see that are missing:

  • The FBI agent John Paul Mac Isaac calls “Matt” who (at least per JPMI, who like Ziegler might be as reliable as Weiss at this point) described trying to boot up the laptop on December 9, 2019, four days before the known warrant to access the laptop
  • The FBI Computer Analysis and Response Team analyst named Mike Waski, from whom Josh Wilson claims to have obtained the laptop after he had already obtained the laptop four days earlier from JPMI
  • The FBI CART analyst, Eric Overly, who actually imaged the hard drive, which Gary Shapley notes happened after December 13; there may be a different CART analyst who imaged the laptop itself who would be on the hook for another expert report
  • A March 31, 2020 email about the completeness of the disk image that JPMI had done, which prosecutors were withholding from any agents who might testify at trial but which Shapley has kindly informed us exists
  • Any analysis “computer guy” did after October 22, 2020, which is when the FBI realized they had never bothered to check when files had been added to the laptop they had been using for ten months

Those kinds of expert reports are precisely what might have spared poor Senior Assistant Special Counsel Derek Hines from apparently claiming that a photo of a photo of sawdust taken by Keith Ablow is instead a photo of cocaine taken by Hunter Biden.

For example, here’s how Gus Dimitrelos used EXIF data — EXIF data he says he found on most or all of the photos Hunter took — to validate photos to Hunter on the laptop attributed to him.

In this case, Dimitrelos matched the photo to a known iPhone Hunter used and a known location he was at on a particular date and time.

To use photographs to attribute to Hunter Biden cocaine use, those photos are not only going to need to depict cocaine rather than sawdust, but they’re going to need to be accompanied by the kind of forensic data that could prove that a particular phone taking a picture was in Hunter’s hand at the time a picture was taken.

That’s particularly true in this case. Ziegler shows that Ablow texted this photo to Hunter on November 20, 2018.

That happens to be the day when someone first accessed Hunter’s droidhunter account — the one via which his digital life would be packaged up two months later — from a Mac device for the first time after the laptop ultimately shared with the FBI was first logged into Hunter Biden’s iCloud account.

But based on what is available on the public emails, after someone logged into Hunter’s iCloud account with a new laptop on October 21, 2018, it was weeks before a new Mac device logged into his Gmail accounts, starting with a November 16 attempt to log into Rosemont Seneca that was rejected by Google, followed by a reset of the droidhunter account and a login into that on November 20, followed by a login into Rosemont Seneca on November 24. Not only did those attempts come in the midst of a bunch of attempts to get into Hunter Biden’s Twitter account from a Mac. But on November 27, someone appears to have gotten into his iCloud account from Troutdale, OR.

That is, because this text was sent during a period when some crucially important anomalies were happening on Hunter Biden’s digital accounts, you’d need to ensure that whatever device with which Hunter seemingly engaged in this exchange with Ablow was actually in his hand in Newburyport, MA, and not in someone else’s hand in Troutdale, OR. That’s especially important with any conversation with Ablow, because in at least two known conversations — one in which he created the illusion for Hunter that he was speaking to some orthopedic surgeons, and another in which he entirely rewrote a Hunter comment subsequently published in Vanity Fair — Ablow presented as Hunter.

And by claiming a photo of sawdust taken by an Ablow client is instead a photo of cocaine taken by Hunter Biden, Derek Hines may have spoiled his effort to sand-bag Abbe Lowell and avoid a suppression challenge to all this digital evidence. Sure, Hines is claiming that Lowell missed his window to file a motion to suppress by December 11, 2023. But he apparently just claimed that he hasn’t validated the data he’s submitting, as an officer of the court, in filings before Judge Maryellen Noreika. And with this apparent flub, Hines has definitely made the importance of expert forensic reports an issue.

It appears increasingly likely that before Jim Jordan demanded a prosecution of Hunter Biden and before David Weiss started to worry about threats to his family, Weiss or someone who knew better realized that any prosecution that would rely on this digital evidence would be rife with these kinds of embarrassments. But then Weiss decided he’d go forward anyway, he’d bring in experts in prosecutorial dickishness to try to sandbag their way through the difficulties posed by the laptop.

Don’t get me wrong: Hines and Leo Wise have well earned their reputation for prosecutorial dickishness. This effort to avoid any suppression challenge relating to the laptop might yet succeed!

But without the least little understanding of digital forensics, that may not be enough to sustain this case.

Update: According to someone familiar with Ablow’s office in this period, the photo does appear to match one that was in the office. That’s important because the FBI and DEA would have photos of Ablow’s office from the 2020 raid.

Update: We’ve literally come full circle. Fox News is in a tizzy because of these photos, though they appear more careful than DOJ to claim the sawdust is Hunter’s.