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On Eve of Opening Arguments, WSJ Launders David Weiss’ Russian Disinformation Problem

WSJ has a weird story that purports to describe Merrick Garland’s oversight of Special Counsels.

It twice suggests only the left has complained about a perception that Garland slow-walked the January 6 investigation.

Garland has also become the subject of ridicule on late-night talk shows, including by comedian Bill Maher, who in May echoed the grievances of many on the left when he referred to Garland as “a purse dog” rather than a pit bull.

[snip]

But many on the left wanted more. Some wanted prosecutors to also pursue an aggressive case against Trump himself, specifically for inciting the mob.

That will come as a surprise to Liz Cheney, who was among those claiming that Garland was working too slowly.

It reveals that Robert Hur was considered for the job given to Jack Smith and confirms my suspicions that the decision to hire him came from Lisa Monaco’s office, not Garland’s.

An aide drafted a secret contingency plan, to assign the Jan. 6 investigation related to Trump to a special counsel. At the top of the list of candidates was Smith, a former U.S. prosecutor who was then the chief prosecutor at The Hague investigating war crimes in Kosovo. The deputy attorney general’s office also considered Hur, who at the time was a defense lawyer in private practice, for the post.

But it makes no mention of how DOJ came to consider Hur for the job after settling Andrew McCabe’s lawsuit because he had been denied due process rights in his firing. Hur was a key player in that process of denying McCabe his due process, and yet Garland hired him to investigate Joe Biden.

It even gets the timeline of Hur’s hiring incorrect, ignoring the months of investigative steps taken by John Lausch before Hur was hired.

It mentions Brad Weinsheimer’s role in allowing Rob Hur to emphasize Biden’s age in his report, rather than the fact that Hur couldn’t even prove the documents that might have been intentionally withheld took the path he imagined they might have.

Biden’s lawyers read it and were aghast, objecting to “certain aspects of his draft report that violate Department of Justice policy and practice by pejoratively characterizing uncharged conduct,” they wrote to Garland. They wanted him to take a firmer hand with the special counsel he appointed and whose report they and some former Justice Department officials saw as gratuitous.

Garland didn’t respond, taking the same approach he had with other special counsels. He wasn’t going to step in to protect his boss. Instead, adhering to the Watergate-era policy he helped enshrine, he left it to the agency’s senior career official, Bradley Weinsheimer, who said the language in the report “fell well within the Department’s standards for public release.” Garland, as promised, released it the following day, Feb. 8.

But it doesn’t talk about how having Weinsheimer serve as supervisor for Special Counsels effectively eliminates any DOJ review of ethical violations, which role Weinsheimer would otherwise play.

Most bizarrely, it makes absolute no mention of John Durham, whose investigation Garland oversaw for over two years. It doesn’t explain, for example, why Durham was permitted to fabricate a conspiracy theory against Hillary Clinton in his report. It doesn’t explain why Durham’s lead prosecutor, Andrew DeFilippis, left with little advance notice, between Durham’s twin failed trials, at a time when many witnesses were making claims of abuse.

In short, whatever else this story is, it is not a story that is remotely useful for understanding Merrick Garland’s oversight of Special Counsels.

And in this story that doesn’t do what it says, on the eve of opening arguments in the Hunter Biden gun case, it launders David Weiss’ Russian disinformation problem.

By 2022, prosecutors and agents had already believed that Hunter Biden committed tax crimes, but Weiss still seemed no closer to charging him or resolving the case. FBI officials asked Garland’s office if he could help move Weiss along.

Garland refused to prod Weiss, saying he had promised him broad independence to pursue the inquiry as he saw fit.

FBI agents drafted a list of final steps to push the probe forward—including to follow up on allegations from an FBI source that tied Hunter Biden’s financial misdeeds directly to his father.

Weiss’s office reached a tentative plea deal with Hunter Biden in June 2023, in an agreement that would likely include no jail time. Republicans in Congress alleged that Hunter Biden was getting a sweetheart deal, which fell apart a month later. In August, Weiss asked Garland to make him a special counsel, pointing to the FBI’s list and asking for independence. Garland agreed, recognizing that he had earlier promised Weiss autonomy and any resources he sought. [my emphasis]

To be sure, this might be one of the only truly interesting pieces of news in the piece.

What WSJ is describing (including a journalist, Sadie Gurman, who has had good access to Bill Barr in the past) is that the FBI, including people senior enough to be able to complain to Garland personally, was demanding that David Weiss follow up on Alexander Smirnov’s attempt to frame Joe Biden.

Indeed, this passage wildly conflicts with what David Weiss claimed in the Smirnov indictment — that the FBI just came along in July 2023 and requested that Weiss help investigate (but we knew that was false in any case).

And it does seem to confirm what has been clear for a while: the reason David Weiss asked to be made Special Counsel is so he could chase Smirnov’s allegations.

But somehow WSJ neglects to mention the issue — the several issues — that go to the core of Garland’s inadequate oversight of Special Counsels. First, how was this allowed to get this far? How were senior FBI people bugging Garland about this allegation when the most basic vetting of travel records debunked it? How was the FBI chasing an allegation from a guy who had recycled debunked Fox News propaganda? How was David Weiss permitted to demand Special Counsel status, and renege on the plea deal he made with Hunter Biden, based on a tip he had been given back in 2020?

How is that not election interference?

Just as importantly for the issue of Special Counsel oversight, how can Garland leave Weiss in charge of the Smirnov allegation, when he is a witness to the process — implicating Bill Barr and Scott Brady — that ended up mainstreaming it?

And more importantly, WSJ never mentions that the tip turned out to be a hoax from a guy with close ties to Russian intelligence.

How do you write a piece describing that the FBI was pushing Garland to chase what may be Russian disinformation (and in any case is a hoax from someone with Russian ties), and fail to mention that it was a fabrication?

How, on the eve of opening arguments in the Hunter Biden case, do you launder the fact that David Weiss reneged on Hunter Biden’s plea deal because he was chasing false claims from a guy with close ties to Russian intelligence?

The “Waiting for Mueller” Mistake and the Right Wing Bubble

Simon Rosenberg didn’t panic about a 2022 Red Wave. As analysts everywhere were wailing that the Sky Was Falling, he was quietly confident.

Keep that in mind as you listen to this conversation he had with Greg Sargent. I have about the same cautious optimism as Rosenberg (I was less confident than he was in 2022) on this year’s election, but he’s a pro who works from fundamentals, not just last week’s poll results.

Among other things, he talks about how any of six big negatives for Trump could blow the election for him:

  1. He raped E. Jean Carroll in a department store dressing room
  2. He oversaw one of the largest frauds in America history and that he and Rudy Giuliani through all their various misdeeds own over $700M dollars
  3. He stole American secrets, lied to the FBI about it, and shared these secrets with other people
  4. He led an insurrection against the United States
  5. He and his family have corruptly taken billions from foreign governments
  6. He is singularly responsible for ending Roe and stripping the rights and freedoms away from more than half the population

I would add two more: First, Trump routinely defrauds MAGAt supporters. Over the last week, he turned the RNC into a means to do so on a grander scale. Republicans need to hear that they’re being taken to the cleaner by Trump — and by Steve Bannon, whose trial for doing so will also serve as backdrop to this election season.

More tellingly, Rosenberg addressed this detail when he described how Biden’s two big negatives have resolved (my biggest complaint about this interview is it didn’t address Gaza, the unmentioned third), not when he addressed Trump’s scandals.

The Biden crime family story, we just learned in the last few weeks, was a Russian op that was being laundered by the Republican party that blew up in their face.

Rosenberg treated the manufactured “Biden crime family” that was actually a Russian op laundered by the GOP as a resolved Biden negative after he made this point, the most important in the interview, in my opinion.

We have to learn the lesson from waiting for Mueller. Waiting for Mueller was a mistake by the Democratic Party. It prevented us from prosecuting the case against Trump and his illicit relationship with the Russian government that was out there all for us to see. Right? The Russians played a major role in his election in 2016. This is not in dispute in any way. And so I think now what we need to do is not wait for Jack Smith or wait for Merrick Garland. We need to use what’s in front of us and prosecute this in ways that we know is going to do enormous harm.

No superhero will come tell any one of these stories for Democrats. Trump’s opponents have to tell the story of Trump’s corruption. They cannot wait for Mueller. Or Jack Smith.

One of many reasons I’m so focused on the Hunter Biden story is that it is actually what proves the continuity of that story of Russian influence that Democrats failed to tell. Trump asks for Russian help in 2016 and gets it. As part of a campaign in which Rudy Giuliani solicited Russian spies for dirt on Hunter Biden, Trump withheld security support from Ukraine to get the same. Even after that, Trump’s DOJ created a way to launder the dirt Rudy collected from known Russian spies to use in the 2020 election. That campaign created the shiny object that has created the “Biden crime family” narrative. Like Russia’s role in the 2016 election, none of this is in dispute. It’s just not known.

You cannot wait for Robert Mueller or Jack Smith to tell this narrative. But for four months this entire story — this arc — has passed largely unnoticed, even as Trump took steps to deliver Ukraine’s bleeding corpse to his liege, Vladimir Putin.

Those who want to defeat Trump — and honestly, Republicans like Liz Cheney and Amanda Carpenter have been doing a better job of this than most Democrats — have to make sure this story gets told.

This is what I’ve been trying to say over and over and over. The reason why the moderate press hasn’t been telling the story of Trump’s role in the insurrection, of his ties to militia members and his direct inspiration for the most brutal assaults on cops on January 6 is because all their TV lawyers have been whinging instead about their own misunderstanding of the January 6 investigation. They haven’t been telling the story of what we know.

They have been complaining that Merrick Garland hasn’t compromised the investigation to tell them them more, turning Garland into their villain, not Trump.

In the few minutes after I posted these comments on Twitter, commenters have:

  • Complained that the full Mueller Report hasn’t been released, when really they’ve simply been too lazy to understand that the most damning bits have been released.
  • Bitched that Merrick Garland hired Rob Hur, rather than bitching about Rob Hur telling a narrative even after his own investigation had debunked it.
  • Complained about a delay in the January 6 investigation that didn’t happen.

Kaitlan Collins’ interview with Brian Butler, a former Trump employee whose testimony badly incriminated his one-time best friend, Carlos De Oliveira, has been drowned out by all the complaints.

The story barely made a blip. It’s not just the NYT that buries important Trump stories under complaints about Biden, it’s Democratic supporters.

Rosenberg went on to describe how Democrats need to improve this. He noted that the Right Wing noise machine provides them a great advantage on this front, one that Biden will have to spend to combat.

We have to recognize, Greg, that the information environment in the United States is really broken right now and that the power of the Right Wing noise machine to bully and intimidate mainstream media into being complicit in advancing some of their narratives is something that needs a campaign that has half a billion dollars in it to be able to draw even on. What we’ve learned is there is a structural imbalance in the information game between the two parties, that the Republicans have a significant advantage over us in a day-to-day information war.

This is true. But the insularity of the Right Wing noise machine can be made into a weakness for Republicans, even before spending the money. Because right wingers so rarely try to perform for a mainstream audience, as soon as they do — whether it is rising star Katie Britt or Kentucky redneck James Comer — they look like lying morons.

And in the face of that Right Wing noise, Democrats need to be disciplined.

The Biden campaign’s going to have to be wildly disciplined. They can’t chase the daily story. They’re going to have to pick the two or three things they know from research are the things that are a rubicon with the electorate.

[snip]

It’s going to be incumbent upon them to not allow the Trumpian mania and madness sort of push them around every day. They’re going to need to develop an offensive strategy both on what we’re selling and on what we’re indicting him with.

Rosenberg laid out the six bullets; I added two more. Trump will try to distract from that with daily outrages, with spectacle.

Trump — abetted by social media — will try to distract from that argument by demeaning all ability to make, or understand, coherent arguments.

I’m less sanguine than Rosenberg that even discipline is enough to overcome Trump’s circus. Therein lies the challenge.

But he’s right that those who want to defeat Trump have to make that case themselves. Neither Jack Smith, nor the NYT, will save you.

emptywheel Takes to MSNBC to Explain the January 6 Investigation

MSNBC was kind enough to invite me to make the case, again, that those blaming Merrick Garland for delays in the January 6 investigation simply aren’t familiar with the investigation. Readers will be familiar with much of this, but two details are new.

First, I describe what investigative steps prosecutors had to take to prepare the most obvious piece of evidence, Trump’s 2:24 tweet targeting Mike Pence.

Take the tweet Trump sent at 2:24 p.m. Jan. 6: “Mike Pence didn’t have the courage.” It was right there in public! But to present that in court first required the exploitation of at least two phones, nine months of fights over executive privilege, a 23-day stall from Twitter and two sets of interviews with at least eight different top aides.

And something that’s long overdue: Holding the January 6 Committee responsible for their unnecessary delays, which almost bolloxed the Proud Boys trial.

One delay that was unnecessary was caused by some of the people who most loudly blamed Garland: the Jan. 6 Committee. DOJ first asked the committee for witness transcripts in April 2022. That June, prosecutors in the trial of leaders of the Proud Boys agreed to reschedule their trial from August until December because the committee would not release transcripts until September. The prosecutors were vindicated when those transcripts finally came out in December, after three additional months of delay and jury selection had already started. Twice during the trial, prosecutors learned that witnesses had told the committee something they hadn’t told the FBI; in one instance, a committee transcript revealed an attorney conflict that threatened prosecutors’ reliance on testimony from their most important cooperating witness. Given that court filings suggest Smith will treat the Proud Boys akin to co-conspirators when this case finally goes to trial, those are the kinds of unnecessary screw-ups that could jeopardize Trump’s trial itself.

Navel-Gazing: The Ethics Problem Caused by Merrick Garland’s Brad Weinsheimer Solution

I want to talk about DOJ’s career Associate Deputy Attorney General position. I think the way Merrick Garland is using that position to supervise Special Counsel investigations has contributed to the ethical lapses we’re seeing from them.

The current occupant of that role, Bradley Weinsheimer, has garnered attention in recent weeks for his role in some letters exchanged between lawyers for President Biden and DOJ. Between Politico, WaPo, and NYT stories on the letters, they describe the following exchanges:

There’s no report that anyone responded to any of Biden’s 2023 letters. Hur published the letter from Ricard Sauber and Bob Bauer letter in the report, without addressing most of his inappropriate statements. But, after Garland apparently referred the February 7 letter from Ed Siskel and Bauer to Weinsheimer, the ADAG responded to that, while referencing the letter to Hur.

Brad Weinsheimer blows off half Biden’s complaints

After describing that he “serve[s] as [DOJ’s] senior career official,” Weinsheimer proceeded to mischaracterize both the February 5 and the February 7 letters by claiming the complaints were “substantially similar.”

The objections you raise in your letter to the Attorney General are substantially similar to the objections you raised in your February 5, 2024 letter to Special Counsel Hur. In both letters, you contend that the report contains statements that violate long-standing Department policy.

That’s incorrect. They’re not substantially similar. The February 5 letter included the following:

  • Bullets one and two (about two pages total) complaining about prejudicial comments
  • Three bullets (three through five) about misrepresentations Hur made to substantiate his Afghanistan narrative, none of which Hur addressed in the report
  • Bullet six discussing the awareness of Biden’s staffers of his diaries
  • Bullet seven that included six other complaints, the last three of which Hur fixed, the first three of which — including the make-believe comment about an attorney-client privileged conversation — he left in

One of those items in bullet seven had to do with Hur’s claim, in the first draft, to have reviewed all the classified information in Reagan’s diaries; he added the word “some” in the final to make it accurate.

The letter to Garland addressed two topics, the second of which was Hur’s use of prejudicial language. Before it addressed Hur’s old geezer comments, though, the letter complained that Hur misrepresented DOJ’s past treatment of presidential and vice presidential diaries, a combination of bullet two, bullet six, and the Reagan diary complaint from the February 5 letter.

Rather than deal with the treatment of diaries, Weinsheimer appears to have just lumped the first part (bullet two in the original) in with the old geezer comments, resulting in Weinsheimer’s mischaracterization of the diaries complaint: Here’s how he described the two complaints.

In particular, you first highlight brief language in the report discussing President Biden’s use of the term “totally irresponsible” to refer to former President Trump’s handling of classified information. Second, you object to the “multiple denigrating statements about President Biden’s memory.”

And based on that mischaracterization, even while claiming to have “carefully considered your arguments,” Weinsheimer issued DOJ’s conclusion that Hur acted within DOJ guidelines.

Having carefully considered your arguments, the Department concludes that the report as submitted to the Attorney General, and its release, are consistent with legal requirements and Department policy. The report will be provided to Congress and released publicly, consistent with Department practice and the Attorney General’s commitment to transparency.

With that characterization, Weinsheimer blew off a number of requested corrections in the letter to Hur — such as the one that Hur invented a hypothetical attorney-client conversation to make the discovery of a box with classified documents in the Wilmington garage more suspicious — and also blew off most of the first half of the letter to Garland, addressing the past treatment of diaries.

The problematic function of the senior Associate Deputy Attorney General

I’m not so much interested in litigating Weinsheimer’s answer: that it was cool for Hur to use prejudicial language, including things like his invented attorney-client conversation. I’m interested in the fact that he claimed to address both the letter to Hur and the letter to Garland and, based on that claim, issued a definitive policy judgment. I’m interested in the function Weinsheimer is playing, because I think it is one thing contributing to the tolerance for ethical lapses among Special Counsels under Merrick Garland.

Politico describes Weinsheimer’s role in making that decision this way:

The next day, Feb. 8, Weinsheimer, the associate deputy attorney general, responded to the letter on behalf of the department. Weinsheimer, a civil servant who has worked at the department for decades, oversees the department’s most politically sensitive matters, including questions on ethics. He has fielded complaints from Hunter Biden’s lawyers about special counsel David Weiss and from Trump’s lawyers about special counsel Jack Smith.

That is, Politico treats Weinsheimer’s role as the traditional role of the career Associate Deputy Attorney General, the guy (if I’m not mistaken, it has always been a guy) one appeals to for ethical review.

That understanding of the role goes back to a guy named David Margolis, who is treated as a saint among DOJers. For 23 years, Margolis served as the guy who’d make the hard decisions — such as what to do with the prosecutors who botched the Ted Stevens prosecution or, worse yet, John Yoo’s permission to torture.

In 1993, he was named associate deputy attorney general. He worked for the deputy attorney general, essentially the chief operating officer of the department. “We would give all the hairballs to [Margolis], all the hardest, most difficult problems, the most politically controversial,” recalled FBI Director James B. Comey, a former deputy attorney general.

Vince Foster’s suicide. Ted Stevens’s botched prosecution for public corruption. The leak of Valerie Plame’s identity. The firings of U.S. attorneys. Margolis was involved — in some way — in them all.

Undoubtedly the most controversial issue he has dealt with came in the early years of the Obama administration. The department’s internal watchdog, the Office of Professional Responsibility, had determined that former Office of Legal Counsel lawyers John Yoo and Jay Bybee had engaged in professional misconduct in writing two memos that gave legal sanction to the use of torture tactics such as waterboarding, as well as wall slamming, extended sleep deprivation and other extreme techniques used by the CIA to interrogate terrorist detainees. Margolis had to decide whether to endorse the OPR’s recommendation that the two lawyers from the Bush administration, who by then had left government, be disciplined.

That was the decision “I agonized over most,” he said. “I knew it would be controversial whichever way it came down.”

In a memo written in January 2010, he conceded that “Yoo’s loyalty to his own ideology and convictions clouded his view” of his professional obligation. But, he concluded, Yoo did not “knowingly” provide inaccurate legal advice and he overturned the OPR recommendation.

That set off a firestorm of criticism from Democratic lawmakers, civil liberties advocates and human rights activists.

“I don’t want to accuse him of bad faith,” said David Luban, a Georgetown University Law Center professor of law and philosophy. “But I will accuse him of bad reasoning.”

But as bmaz wrote on Margolis’ passing, often as not decisions advertised as an ethical decision seemed instead to protect the institution of DOJ.

Sally Yates is spot on when she says Margolis’ “dedication to our [DOJ] mission knew no bounds”. That is not necessarily in a good way though, and Margolis was far from the the “personification of all that is good about the Department of Justice”. Mr. Margolis may have been such internally at the Department, but it is far less than clear he is really all that to the public and citizenry the Department is designed to serve. Indeed there is a pretty long record Mr. Margolis consistently not only frustrated accountability for DOJ malfeasance, but was the hand which guided and ingrained the craven protection of any and all DOJ attorneys for accountability, no matter how deeply they defiled the arc of justice.

After Margolis passed, a guy named Scott Schools played that role for a short period spanning the Obama and Trump years. In such role, in my opinion, he protected the Deputy Attorney General’s office more than DOJ. As one example, Schools was the guy who helped push Andrew McCabe out the door to serve Donald Trump’s whims.

Which is when, in 2018, Jeff Sessions put Weinsheimer, who had played a NatSec role prior to that, in the post.

For the purposes of this post, I’m not really interested in whether Weinsheimer is a good guy or not. There are journalists who are better placed than I am to go chase that down.

I want to talk about how his role on Special Counsels likely ensures an ethical conflict — and all that’s before you consider the extremely likely possibility that he signed off on the McCabe settlement and then was involved in Hur’s selection and supervision, which would be a separate conflict of his own.

Weinsheimer is the supervisor of David Weiss

I don’t dispute Politico’s characterization of how the ADAG position normally works. As laid out in the Margolis bio, the position is supposed to make the difficult decisions and then give such decisions, arguably meant to protect DOJ, the appearance of ethical gravitas. One is supposed to be able to appeal to the ADAG position, in case of ethical problems.

But that depends on the ADAG being outside of potentially unethical decisions in the first place. You can’t review decisions if you were part of them.

At least in the case of David Weiss, Weinsheimer can’t play that role because he is, for all intents and purposes, Weiss’ supervisor — apparently on all matters, not just the Hunter Biden investigation.

In his November testimony to Congress, Weiss described that he has never spoken to his nominal boss, Lisa Monaco, or the person via whom he would normally communicate to his boss, the current Principal Associate Deputy Attorney General, Marshall Miller (as noted below, he described communicating via Miller’s predecessor until 2022, John Carlin).

Q When you have interactions with Justice Department Headquarters or Main Justice, how does that ordinarily happen? Who is your primary point of contact?

A I don’t know that there is an ordinary. I don’t know that I would designate anyone in particular.

Q Under the reporting structure, though, you report up through the Deputy Attorney General. Is that correct?

A That’s correct.

Q And how often do you talk with Ms. Monaco?

A I have never spoken with Ms. Monaco.

Q You’ve never spoken to her?

A Never.

Q Okay. And do you have communications with someone else in the office? Maybe the PADAG?

A I have — my point of contact for the last year, year and a half has been Associate Deputy Attorney General Weinsheimer.

Q Okay. So you’re not in contact on a regular basis with the PADAG, Mr. Miller?

A I am not.

Q Have you ever had communications with him?

A I have not.

Q Okay. So you’ve never had any communications with Marshall Miller or Lisa Monaco?

A I have not.

By his description, he speaks to Weinsheimer regularly, about once a month, and those communications primarily pertain to the President’s son.

Q Okay. And how often do you have communications with Mr. Weinsheimer?

A It varies depending upon what’s going on. But I would say we’ve spoken, before August of 2023, approximately once a month, sometimes more frequently.

Q And was it related to the Hunter Biden case, or was it related to your ordinary duties?

A Generally, it was related to the Hunter Biden case investigation.

That same pace has continued during the period since he had been named Special Counsel.

Chairman Jordan. Have you kept up the rhythm? You said earlier today that you had monthly contacts with the key people at the Justice Department. Have you kept up that same protocol? Has it increased or decreased as Special Counsel?

Mr. Weiss. I guess it’s been, I guess, 3 months. I don’t know that there is much of a practice or that I could say, you know, circumstances. You know, I’ve had several conversations in the last 3 months with Mr. Weinsheimer. I can say that.

Chairman Jordan. So it’s picked up?

Mr. Weiss. It’s — I’ve had probably — yes, several conversations. Whether that will continue or it was unique to the initial stages of the project, I really can’t speak to.

When Weinsheimer reached out to the then-PADAG, Carlin — again, the normal person he would report to — Carlin involved Weinsheimer in all discussions about how to get Special Attorney (not Special Counsel) status to charge the case in a different District with Weiss.

Q Okay. And when did Mr. Weinsheimer first start having communications with you about the Hunter Biden case?

A I think we first spoke about the case in the spring of 2022.

Q And, to the extent you can tell us, what were the nature of those discussions?

A In 2022?

Q Yeah.

A Actually, more accurately, February of 2022, I think, was the first time we spoke. And I would have reached out because we were looking to bring certain portions of our investigation to either D.C. or L.A. At that time, D.C.

Q Okay. Did you call him, or did he call you?

A I reached out by email to the Principal Deputy Attorney General at that time, John Carlin.

Q Okay. So he was the PADAG before Mr. Barr [sic]?

A Correct.

Q And how often had you spoken with Mr. Carlin?

A Before this? Never.

Q Okay. So you initiated email contact with Mr. Carlin, and he referred you to Mr. Weinsheimer?

A I initiated email contact with Mr. Carlin, and I subsequently had a conversation with John Carlin, and I believe Brad Weinsheimer was on the call.

Q Okay. And what did they tell you about bringing the case in D.C. or different jurisdictions from yours?

A We discussed the fact that I would — they wanted me to proceed in the way it would typically be done, and that would involve ultimately reaching out to the U.S. Attorney in the District of Columbia. I raised the idea of 515 authority at that time because I had been handling the investigation for some period of time. And, as I said, they suggested let’s go through the typical process and reach out to D.C. and see if D.C. would be interested in joining or otherwise participating in the investigation.

So Weinsheimer was the primary supervisor of David Weiss on the Hunter Biden case.

That makes the meeting with Hunter Biden’s previous attorneys with Weinsheimer — which is fairly routine but was billed as a huge scandal by right wing nutjobs — something else entirely. As Politico described, after months of asking the people who should have had some supervisory role in the investigation, Clark finally emailed Weinsheimer asking whether he could appeal to him.

From the fall of 2022 through the spring of 2023, Clark sought meetings with people at the highest levels of the Justice Department — almost entirely without success. In multiple emails, he asked to meet with the head of the Criminal Division, the head of the Tax Division, the Office of Legal Counsel, the Office of the Solicitor General, Deputy Attorney General Lisa Monaco and the attorney general himself. On Feb. 21, 2023, Clark’s team reached out to multiple officials at Main Justice, who passed his request from one person to the next.

The search ended when Clark sent Associate Deputy Attorney General Bradley Weinsheimer an exasperated email, saying he had asked the government over and over to tell him who at headquarters they could appeal to if Weiss decided to charge their client.

“To date we have heard nothing in this regard,” he added.

“Please advise whether you would be the appropriate person to hear our client’s appeal, in the event that the U.S. Attorney’s Office decides to charge Mr. Biden,” he wrote.

Weinsheimer was indeed the right guy, and he met with Clark and Weiss on April 26.

As Weiss confirmed in his testimony, he attended that meeting with Weinsheimer.

Q Did Mr. Weinsheimer ever tell you that he met with Chris Clark?

A He — if — no. If he met with Chris Clark, I would have been at that meeting.

Q Okay. So there were no one-on-one meetings or telephone calls between Mr. Clark and Brad Weinsheimer?

A I am unaware of any such meeting, and I don’t think any such meeting would have occurred.

Of course Weinsheimer wasn’t going to accede to any of Clark’s requests, or even grant an independent review of some of the shitty things that had already gone on in the case. Presumably unbeknownst to Clark, Weinsheimer was signing off on Weiss’ actions all along.

And he didn’t. Two weeks after they met with Clark, Weinsheimer sent Clark a letter, “referring you back to” Weiss, saying that Weiss had full authority to charge the case wherever he wanted. It’s not clear that Weinsheimer ever revealed that he had assumed a supervisory role on the case a year earlier.

If Weinsheimer played a similar role with Robert Hur, the same would be true. Of course Weinsheimer wouldn’t, in that case, take action after Hur violated DOJ policy by smearing the President. That’s because Weinsheimer would have been in on it, part of the smear.

Except for the Special Counsel appointment

As David Weiss told it, there was an important exception that may have, may still, exacerbate all this.

He did not go through Weinsheimer when requesting Special Counsel authority.

Q And, when you submitted the request, was that through Mr. Weinsheimer?

A No. No, it wasn’t.

Q Did you have communications with Mr. Weinsheimer before you submitted the request?

A I did not have communications with Mr. Weinsheimer about the request before I submitted it.

Q Okay. You just went right to the Attorney General?

A I submitted the request on my own initiative, and, otherwise, I really can’t get into the particulars at all.

Q Right. Have you had subsequent conversations with Mr. Weinsheimer? Is he the individual that you reported to, or —

A After I was appointed?

Q Correct.

A Yes. I continue to discuss the matter with Mr. Weinsheimer.

Q So he’s your primary point of contact still?

A He continues to be my primary point of contact, yes.

And that communication with Merrick Garland was, at least at the time of Weiss’ testimony on November 7 (and so just over a week before Abbe Lowell started asking for discovery and subpoenas on the side channel and the Smirnov FD-1023), the only time he had ever communicated, in any form, with the Attorney General.

Q So the Attorney General has had a couple of silent appearances where this topic has come up, and I guess the question is, did you have direct communications with the Attorney General?

A I’ve never had any direct communications with the Attorney General, save my communication in requesting Special Counsel authority in August of 2023.

Q When you did request Special Counsel authority in August of 2023, how did you request it? Was it in writing or on the telephone?

A It was in writing, and that’s about all I’m going to say about that process.

Q Okay. Did you reach out directly to the Attorney General, or did you go through Mr. Weinsheimer?

A I’m not going to get into anything further. I requested it, and it was granted.

Q Okay.

I started writing this post before the arrest of Alexander Smirnov. At the time, I thought that Weiss might have gone directly to Garland only because Garland had promised the Senate he’d give Weiss Special Counsel authority if ever he asked it. That is, before the Smirnov arrest, it looked only like Weiss collecting on Garland’s promises.

No longer.

The significance of this has been missed. The FD-1023 assessment number, 58A-PG-3250958, cited Executive Branch public corruption. The only way the FD-1023 could be basis for ongoing criminal investigation is if Joe Biden were a subject of the investigation as well. That would make the Special Counsel request not a request for authority to charge in other Districts.

It would arise from the conflict of investigating the President.

Before even interviewing the informant’s handler — to say nothing of Smirnov himself — David Weiss got himself Special Counsel authority.

Few agree with me. But I think Weiss has walked himself into a shitshow. Even assuming that none of Abbe Lowell’s bids to throw out the indictments in Delaware and Los Angeles succeed — and the Smirnov indictment would seem to raise still more questions about why Weiss reneged on the plea deal — there’s good reason to believe the motion to suppress evidence from the laptop will surprise a good number of people, including the prosecutors. Consider what it means that attorneys for John Paul Mac Isaac abandoned their argument that the blind computer repairman had legal authority to snoop through and disseminate data he claims to believe belonged to Hunter Biden, focusing seemingly exclusively on a claim that Delaware’s two year statute of limitations for complaint from Hunter has expired: Judge Robert Robinson may not rule on that question, but that legal challenge may have confirmed that JPMI did not own the data he shared with the FBI after the FBI told his father he might not own it. The implications of that are fairly staggering, though I’ll wait before I lay them out explicitly.

And that’s before Smirnov — a 14-year source for the FBI, whose charged report was championed by Attorney General Bill Barr after Scott Brady claimed to have vetted it — starts challenging his own indictment. That’s before either Smirnov or Abbe Lowell raises Weiss’ conflict in charging it. I don’t think David Weiss has the team to pull that prosecution off without major blowback.

If there were a figure like Weinsheimer outside of this investigation to step in, to call a halt to this shitshow, now would be the time to do it. But as I understand it, Weinsheimer can’t do that, because — apparently aside from the Special Counsel request — he has been part of the process every step of the way.

I get why Merrick Garland would have chosen to do it this way: having a career ADAG oversee Special Counsels rather than the PADAG (in which role Hur supervised Mueller). But in SCO investigation after SCO investigation, it has turned the supervisory role into navel-gazing. And the attempt to ensure a higher level of independence has led to grave ethical problems.

How Merrick Garland Mistook a Trump Hitman for a Career Prosecutor

When Merrick Garland appointed Robert Hur to spend a year reading through Joe Biden’s diaries, he emphasized that Hur was a career prosecutor, even while describing the role his appointee had played as Rod Rosenstein’s Principal Associate Deputy Attorney General (PADAG) and then as a Trump-nominated, Senate-confirmed, US Attorney.

Mr. Hur has a long and distinguished career as a prosecutor. In 2003, he joined the Department’s Criminal Division, where he worked on counterterrorism, corporate fraud, and appellate matters. From 2007 until 2014, Mr. Hur served as an Assistant U.S. Attorney for the District of Maryland, where he prosecuted matters ranging from violent crime to financial fraud. In 2017, Mr. Hur rejoined the Department as the Principal Associate Deputy Attorney General. In 2018, he was nominated and confirmed to serve as the U.S. Attorney for the District of Maryland. As U.S. Attorney, he supervised some of the Department’s more important national security, public corruption, and other high-profile matters. [my emphasis]

In my opinion, the vast majority of Merrick Garland’s critics mistake this — Garland’s naive belief in the good faith of people who have been DOJ employees — for a kind of caution or partisanship. Garland simply believes, I think, that something about working for DOJ rubs off on people and stays there, even the people who did scandalous things during Trump’s term. This is not the only time that faith has or could result in really grave consequences for DOJ’s ability to hold people accountable.

The problem is, with Hur, Garland should have known better, and not just because Hur was obviously a senior member of Trump’s DOJ.

At the end of last week’s Jack podcast (YouTube; Simplecast), Allison Gill and Andrew McCabe discussed the role Hur played in Trump’s DOJ. Gill replayed McCabe’s warnings, a year ago when Hur was appointed, about the former PADAG’s willingness to engage in politics. McCabe pointed to Hur’s role in imposing limits on the Mueller investigation (to which, I’ve noted, Hur didn’t adhere in this review) and participation in a gang arrest press conference staged at the White House, breaching the separation between the White House and DOJ.

But Hur had a more specific role in carrying out a partisan hit job for Trump.

Just after 1:02 on the podcast, in the stuff recorded last week, McCabe described that Hur played a key role in, “overriding the process that I was entitled to and basically accelerating the decision to fire me in an effort to get it done before I could retire.” McCabe claimed that Hur violated his due process to fulfill Trump’s demands to fire the former FBI Deputy Director rather than let him retire on schedule.

As laid out in McCabe’s 2019 lawsuit against DOJ, for months leading up to McCabe’s firing, Trump had been complaining that DOJ hadn’t fired him yet. Against that background, on March 5, 2018, FBI and DOJ started the process of using DOJ IG’s problematic report finding that McCabe lacked candor about serving as a source for one of Devlin Barrett’s biennial right wing hit jobs as an excuse to fire him. Time was short. They had less than two weeks to do that before McCabe’s designated retirement date (depending on how you calculate it, any of the days from March 16 and 19, inclusive).

The process started with Candice Will, the head of FBI’s Office of Professional Responsibility, preparing a recommendation to fire him.

After some discussion on March 5 about whether, in response to McCabe attorney Michael Bromwich’s request, McCabe’s team should get a copy of the IG Report in advance so as to have more time to respond, Will laid out, in a handwritten note sent March 7, that she would send just the letter reporting DOJ IG’s referral, but not the report, to Bromwich. Without saying it directly, Will was signaling she was not going to give Bromwich any extra time to respond.

That same note made it clear that without intervention from DAG — Rod Rosenstein’s office — “it seems unlikely that this will reach final resolution before Mr. McCabe’s March 18 retirement date.” Those rushing to fire McCabe before his retirement recognized on March 7 that the only way they could fire McCabe before he retired was via Rosenstein’s involvement.

The same morning Will explained that they couldn’t manage to fire McCabe before he retired without intervention from Rosenstein’s office, she sent Hur an email asking to speak to him on the phone, “about a matter being forwarded to the DAG?” Remember: at this point, Hur was Rosenstein’s top deputy.

Hur and Will spoke that evening.

Will’s notes from that conversation were, when released via FOIA, almost entirely redacted under a deliberative privilege. They appear to memorialize what happened at a meeting between Hur, Rosenstein, and Scott Schools that day. Schools, the senior career Associate Deputy Attorney General at the time, played a role in DOJ that was always supposed to ensure ethics; in that role, he oversaw the review process leading up to McCabe’s termination.

An email thread documenting how OLC head Steven Engel interpreted the SES guidelines on firing, which Hur then forwarded to Schools, who forwarded it to Will, likewise remains heavily redacted under b5 deliberative exemptions.

Those documents — what Robert Hur told Will on March 7, 2018 and how Steven Engel spun guidelines mapping out what kind of due process senior employees get before you can fire them — are among the records that McCabe would have gotten in discovery if DOJ hadn’t settled the lawsuit.

DOJ redacted less of the emails showing that Will kept Schools and, at times, Hur, informed of how Michael Bromwich frantically tried to review the entire case file in time to mount a legal challenge, but even there, there are deliberative discussions withheld from release.

One thing is clear: with each request Bromwich made, DOJ took days to respond.

In the lawsuit, McCabe’s lawyers noted that Bromwich wasn’t given emails and statements involving FBI’s press person, Michael Korten, that the DOJ IG had ignored — emails that were exculpatory — until the day before Bromwich had to present McCabe’s case to Schools.

Certainly, Andrew McCabe has reason to be biased against Robert Hur, because Hur was part of a team that forced McCabe to fight for years just to get a pension earned over decades.

But you don’t have to take McCabe’s word that Hur played a part in, “overriding the process that I was entitled to and basically accelerating the decision to fire me in an effort to get it done before I could retire.”

Take Merrick Garland’s word on what happened. In response to a question from Chuck Grassley shortly after the settlement, Garland explained why career lawyers at DOJ said they should settle: because they were going to lose the case.

The case … involved a claim that he was not given amount of time necessary to respond to allegations and the litigators concluded that they needed to settle the case because of the likelihood of loss on the merits of that claim.

Garland delivered this heavily rehearsed (and inaccurate — that’s not the only thing included in the suit) statement, explaining that the team that rushed to fire McCabe so they could take his pension had not given McCabe the amount of time required to respond to the allegations against him, on October 27, 2021, over a year before he named one member of that team that deprived McCabe of his due process to lead an investigation into Joe Biden.

Garland was clearly just repeating a well-rehearsed answer in this response to Grassley. It’s unlikely he reviewed the matter closely enough to know that Hur was one of the people, according to the career attorneys who said DOJ would lose the suit, who deprived Andrew McCabe of due process. Though Garland knows how DOJ works. He should have known the universe of people who might be involved.

Given how politically contentious the decision to settle was, however, it is also virtually certain that people in Lisa Monaco’s office did review the details closely. In fact, traditionally, the person who would review matters that — like this one — involve weighing ethical considerations and the potential of a big black eye for DOJ is the career Associate Deputy Attorney General, the successor to Scott Schools, who was involved in the firing.

In July 2018, Jeff Sessions appointed Bradley Weinsheimer as Schools’ successor.

It would be shocking if Weinsheimer didn’t review the decision to settle the McCabe lawsuit.

But if he did, that would be cause for further concern. That’s because Weinsheimer is the guy who rejected complaints from Biden’s attorneys about Hur’s politicized attacks on Biden.

By settling Andrew McCabe’s lawsuit, DOJ conceded that Robert Hur and others had deprived the former FBI Deputy Director of due process. They violated DOJ’s rules to do Trump’s bidding. Then, DOJ put Hur in charge of an investigation of Joe Biden.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

After Hounding Hunter Biden about Taxes for Months, Mike Johnson Coddles Rich Tax Cheats

Since January, it has been the unrelenting focus of the GOP House — including Mike Johnson — to demand higher penalties on Hunter Biden for not paying all his taxes. Just last month, for example, Johnson claimed that people were seeing “the DOJ, of course, aggressively prosecuting President Biden’s chief political rival, Mr. Trump, while at the same time, they see slow-walking and special treatment given to the President’s son. That’s just a fact that everybody can see with their own two eyes.”

But as one of the first acts under Speaker Johnson, he will respond to a terrorist attack by trying to help rich tax cheats. His plan pays for funding for Israel by cutting funding to the IRS by $14.3 billion, funding that more than pays for itself.

Johnson’s move to cut IRS funding comes weeks after the IRS made headlines for the amounts it is collecting from tax cheats who are far richer than Hunter Biden.

A month after announcing it would crack down on 1,600 millionaires who were far behind on their taxes, the Internal Revenue Service said Friday it has collected $122 million in 100 of these cases.

That’s on top of $38 million in back taxes the IRS has already collected from 175 other millionaires. It brings the recent rake-in of back taxes from wealthy households to $160 million, IRS Commissioner Danny Werfel said.

“The funds that we’ve collected should give you a fairly good idea of how much money is on the table for us,” Werfel told reporters, highlighting how the IRS is using money from the Inflation Reduction Act.

The IRS is using Inflation Reduction Act to ensure that the super rich no longer get treated better than Hunter Biden.

And in one of his first moves as Speaker, Mike Johnson is moving to make sure that only Hunter Biden must pay his taxes.

Update: Fixed billion/million.

Update: The IRS Commissioner claims that the IRS “offset” would cost $90 billion.

Update: CBO says Johnson’s bill would add $12.5B to the deficit by cutting $26.8B in revenues.

What If Journalists Actually Read Gary Shapley Rather Than Parroting His Testimony?

There was a really depressing House Judiciary Committee Hearing with Merrick Garland yesterday. Here’s my live thread.

There was a reprieve several hours in when Ken Buck noted that Republicans were going to be dissatisfied no matter what Garland did with the Hunter Biden investigation.

Buck: Do you know what people would have said if you had asked for US Attorney Weiss’ resignation when you became Attorney General, I’m sorry, US Attorney, yes, US Attorney Weiss’ resignation? They would have said you were obstructing the Hunter Biden investigation. That you were firing a Republican appointee, so that you could appoint a Democrat to slow-walk this investigation, and lose the leadership of that investigation. If you had made the same decision a year later because you were frustrated that the prosecution wasn’t moving fast enough, they would have again said you were interfering with the prosecution. If you, when US Attorney Weiss asked to become Special Counsel, if you had made the decision then to appoint someone else as Special Counsel, people would have criticized you because you would have been taking someone out of the investigation that knew the facts, that could lead the investigation, and put someone in who would have had to come up to speed on the investigation and wouldn’t have allowed major decisions to be made until they came up to speed. So in three different opportunities where you could have acted, you would have been criticized either way, whether you had acted or did not act in that situation. Far from slow-walking, really once the Trump Administration decided that that was the person leading the investigation, your hands were tied. You didn’t have the opportunity to make a decision on the leadership of that investigation.

But before and after that, Republicans relentlessly claimed that Hunter Biden was getting special treatment because the US Attorney investigating him, who wanted more leverage to force a plea deal, had been granted Special Counsel status — which should prove, instead, that DOJ was deploying extraordinary prosecutorial resources against a private citizen. Republicans relentlessly complained that Garland hadn’t interfered in Weiss’ investigation — at all! — to make him charge Hunter Biden more quickly or more aggressively when the entire point was he had agreed in his confirmation hearing not to interfere.

Republicans also repeated, over and over, two claims that Gary Shapley — the so-called whistleblower all these Republicans claim to trust implicitly — had already addressed in his notes. Those two claims are that David Weiss “let” statutes of limitation on the two Burisma years Republicans believe include the most corruption expire, and that he couldn’t get authority to charge Hunter in the venue — Los Angeles — where more recent tax years had venue.

Gary Shapley’s materials had always debunked the first claim: that Weiss “let” statutes of limitation expire. The email he sent his supervisors on October 7, 2022 clearly describes having been told that Weiss had decided not to charge 2014 and 2015.

The hand-written notes Shapley belatedly released provide even more details on this decision. They also make it clear that this discussion was a more extensive part of the October 7 meeting than Shapley reflected in his email and it occurred before any discussion of venue in DC, which would largely be mooted by a prosecutorial decision on 2014 and 2015.

Sure, Shapley stonewalled the committee on these notes for months, but he has now provided Jim Jordan’s committee even more proof that, before David Weiss “let” the statutes of limitation expire on these years, he made at least a preliminary prosecutorial decision not to charge them.

While other witnesses suggest this discussion remained ongoing — it wasn’t final — Weiss had laid out reason by that meeting why he wouldn’t charge.

That decision may well have been influenced by what DC US Attorney Matthew Graves told David Weiss about why he wouldn’t partner on the charges. As Garland explained in the hearing, the reason DOJ requires this consultation before granting Special Attorney status is so prosecutors understand how charges would hold up under local precedent and in front of local judges.

But that clearly wasn’t Weiss’ only reason. For one year, Weiss credited Hunter’s neglect to the grief of his brother’s death. For the others, he found that Devon Archer’s actions mitigated the charges (after Archer testified to Congress, he suggested they had missed the bulk of the things he had been asked in the grand jury). Two reasons remain entirely redacted — from us, but not committee members.

Once you establish that Weiss had made at least a preliminary prosecutorial decision and conveyed it to Shapley, you’ve got a disagreement, not neglect. You’ve got the kind of disagreement investigators have with prosecutors all the time. But you have none of the things that Republicans spent hours yesterday wailing about. Rather, you have an experienced prosecutor’s decision about why such charges weren’t sustainable or merited, just like charges against Don Jr weren’t viable for accepting Russian campaign help, even though he had probably committed a crime, or that it didn’t make sense to charge Don Jr for the crime DOJ could prove, the misdemeanor hacking.

And in Shapley’s latest notes, members of Congress even have the kind of details that will presumably show up in Weiss’ eventual report, some explanation why he didn’t charge those years. There was a reason Weiss didn’t charge those two years, but rather than accepting that the charges weren’t as cut-and-dry as Fox News has led members of Congress to believe, they’ve instead simply pretended no decision was made.

Using Shapley’s notes to establish that Shapley simply misunderstood or deliberately misrepresented Weiss’ comments about his authority take more work: though thus far, every witness — Weiss himself, Merrick Garland, two FBI witnesses, and even Shapley’s supervisor — has refuted Shapley’s claims about what he understood from that meeting (if he wasn’t simply establishing a false paper trail for himself on account of the leak investigation).

Importantly, Shapley’s supervisor said he kept Shapley out of discussions for the deliberative period that followed.

Waldon told the panel that he recommended to Batdorf that Shapley be removed from the case. Waldon said that Weiss told him after the October 2022 meeting that he would “not be talking with Mr. Shapley henceforth, as they were going through their deliberative process.”

“Before I left the special agent in charge position, in February, I recommended to Mr. Batdorf that Gary Shapley be removed as the [supervisory special agent] from the Hunter Biden investigation, primarily due to what I perceived to be unsubstantiated allegations about motive, intent, bias” Waldon said.

So in the same way that Joseph Ziegler’s comments about the October 7 meeting at which he was not present are all hearsay, any other impressions Shapley would have about what followed would also be hearsay.

But the way in which Shapley rewrote what David Weiss said even on October 7 shows that he transformed Weiss’ statement about intent — he “will” charge in CA if the US Attorney there declined to partner on it — into he “would have to ask for permission” — shows that he misunderstood and misrepresented what Weiss said.

In that meeting, Weiss clearly indicated that if CA declined to partner, he still would charge. There’s no way he would say that unless he had the understanding that he would be able to. And Shapley simply rewrote that statement, reflecting confidence he would be able to do that, into one matching Shapley’s misunderstanding of how the Special Attorney process worked, into one where it might be in question. Therein lies evidence, at least, that Shapley misunderstood the Special Attorney process and out of that misunderstanding created the opposite: paranoid claims that Weiss would not be able to charge.

Both of these details suggest that the prosecutorial decision simply wasn’t as cut-and-dry as the two IRS agents have claimed. Both of these details should have — had Garland been free to comment, had Democrats chosen a different strategy (rather than pursuing their own oversight questions) to rebut these claims — simply debunked much of the Republican squalling itself.

But it shouldn’t fall just to Garland (who, reporters know, cannot respond) or to Democrats to debunk these claims. It is the job of journalists to call out Republicans for making claims that have been debunked, debunked by their own cherished witness. And while some outlets have acknowledged that, deep into stories, those journalists who’ve championed Gary Shapley — see this report on which Devlin Barrett has the top byline, for example — are simply silent about the way that Shapley’s own notes undermine these GOP complaints.

Garland did not answer many of the specific questions about the Biden case, including issues raised by two IRS agent whistleblowers who have claimed Justice Department officials stymied and dragged the investigation. Repeatedly, the attorney general said lawmakers would have to ask Weiss — while also suggesting those answers may have to wait until the investigation is complete and Weiss issues a final report on it.

You know who already answered the questions Shapley raised? Shapley’s own notes!! Garland shouldn’t need to explain why Weiss “let” statutes of limitation expire when Shapley’s own notes record him having come to at least a preliminary decision not to charge those years before the statutes lapsed. A competent journalist should be able to do that.

Of course, Devlin Barrett has already provided abundant proof that Devlin Barrett prefers to parrot what Shapley and his handers say than to read what his notes actually record and report on the many ways those notes (and his decision to withhold more accurate hand-written notes for months) discredit Shapley as a source.

If Gary Shapley’s transcriptionists had reported this story rather than simply writing down what Shapley said, it would be far harder for Republicans to stage the kind of cynical attack on democracy they did yesterday. Instead they choose to be complicit in an effort to make the extraordinary targeting of a private citizen into its opposite, a sweetheart deal.

Democracy dies in that kind of complicity.

On January 19, 2022, SCOTUS Upheld Judge Tanya Chutkan’s Decision Rejecting Trump’s Executive Privilege Claims

On November 9, 2021, Judge Tanya Chutkan — the judge who randomly got assigned to Trump’s January 6 prosecution — rejected Trump’s request to enjoin the Archives from turning over documents to the January 6 Committee.

Chutkan held that because the incumbent President had waived Executive Privilege and the January 6 Committee had a legislative interest in preventing another attack on the peaceful transfer of power, she had no reason to second guess the political branches of government about the import of the investigation.

The legislative and executive branches believe the balance of equities and public interest are well served by the Select Committee’s inquiry. The court will not second guess the two branches of government that have historically negotiated their own solutions to congressional requests for presidential documents. See Mazars, 140 S. Ct. 2029-31.

Defendants contend that discovering and coming to terms with the causes underlying the January 6 attack is a matter of unsurpassed public importance because such information relates to our core democratic institutions and the public’s confidence in them. NARA Br. at 41. The court agrees. As the Supreme Court has explained, “the American people’s ability to reconstruct and come to terms” with their history must not be “truncated by an analysis of Presidential privilege that focuses only on the needs of the present.” Nixon v. GSA, 433 U.S. at 452-53. The desire to restore public confidence in our political process, through information, education, and remedial legislation, is of substantial public interest. See id.

Plaintiff argues that the public interest favors enjoining production of the records because the executive branch’s interests are best served by confidentiality and Defendants are not harmed by delaying or enjoining the production. Neither argument holds water. First, the incumbent President has already spoken to the compelling public interest in ensuring that the Select Committee has access to the information necessary to complete its investigation. And second, the court will not give such short shrift to the consequences of “halt[ing] the functions of a coordinate branch.” Eastland, 421 U.S. at 511 n.17. Binding precedent counsels that judicially imposed delays on the conduct of legislative business are often contrary to the public interest. See id.; see also Exxon Corp. v. F.T.C., 589 F.2d 582, 589 (D.C. Cir. 1978) (describing Eastland as emphasizing “the necessity for courts to refrain from interfering with or delaying the investigatory functions of Congress”).

Accordingly, the court holds that the public interest lies in permitting—not enjoining— the combined will of the legislative and executive branches to study the events that led to and occurred on January 6, and to consider legislation to prevent such events from ever occurring again.

On December 9, 2021, the DC Circuit upheld Chutkan’s ruling. Patricia Millett repeated Chutkan’s argument that the agreement of Congress and the Executive provided no basis for the courts to intervene. But she also described that even by a heightened standard — even if Trump were withholding these documents while still President — the need for the documents would overcome his privilege claim.

While former President Trump can press an executive privilege claim, the privilege is a qualified one, as he agrees. See Nixon v. GSA, 433 U.S. at 446; United States v. Nixon, 418 U.S. at 707; Appellant Opening Br. 35. Even a claim of executive privilege by a sitting President can be overcome by a sufficient showing of need. See United States v. Nixon, 418 U.S. at 713; In re Sealed Case, 121 F.3d at 292. The right of a former President certainly enjoys no greater weight than that of the incumbent.

In cases concerning a claim of executive privilege, the bottom-line question has been whether a sufficient showing of need for disclosure has been made so that the claim of presidential privilege “must yield[.]” Nixon v. GSA, 433 U.S. at 454; see United States v. Nixon, 418 U.S. at 706, 713. 12

In this case, President Biden, as the head of the Executive Branch, has specifically found that Congress has demonstrated a compelling need for these very documents and that disclosure is in the best interests of the Nation. Congress, which has engaged in a course of negotiation and accommodation with the President over these documents, agrees. So the tests that courts have historically used to police document disputes between the Political Branches seem a poor fit when the Executive and Congress together have already determined that the “demonstrated and specific” need for disclosure that former President Trump would require, Appellant Opening Br. 35, has been met. A court would be hard-pressed under these circumstances to tell the President that he has miscalculated the interests of the United States, and to start an interbranch conflict that the President and Congress have averted.

But we need not conclusively resolve whether and to what extent a court could second guess the sitting President’s judgment that it is not in the interests of the United States to invoke privilege. Under any of the tests advocated by former President Trump, the profound interests in disclosure advanced by President Biden and the January 6th Committee far exceed his generalized concerns for Executive Branch confidentiality.

[snip]

Keep in mind that the “presumptive privilege” for presidential communications “must be considered in light of our historic commitment to the rule of law.” United States v. Nixon, 418 U.S. at 708. In United States v. Nixon, the particular component of the rule of law that overcame a sitting President’s assertion of executive privilege was the “right to every [person]’s evidence” in a criminal proceeding. Id. at 709 (quoting Branzburg v. Hayes, 408 U.S. 665, 688 (1972)). Allowing executive privilege to prevail over that principle would have “gravely impair[ed] the basic function of the courts.” Id. at 712.

An equally essential aspect of the rule of law is the peaceful transition of power, and the constitutional role prescribed for Congress by the Twelfth Amendment in verifying the electoral college vote. To allow the privilege of a no-longer-sitting President to prevail over Congress’s need to investigate a violent attack on its home and its constitutional operations would “gravely impair the basic function of the” legislature. United States v. Nixon, 418 U.S. at 712.

On January 19, 2022, the Supreme Court upheld Chutkan’s ruling. With only Clarence Thomas dissenting, Justice Kavanaugh noted that the DC Circuit’s ruling that Trump’s appeal would have failed even under more stringent standards made any review of this decision unnecessary.

The Court of Appeals concluded that the privilege claim at issue here would not succeed even under the Nixon and Senate Select Committee tests. Therefore, as this Court’s order today makes clear, the Court of Appeals’ broader statements questioning whether a former President may successfully invoke the Presidential communications privilege if the current President does not support the claim were dicta and should not be considered binding precedent going forward.

I have written repeatedly about how Merrick Garland set up a framework in July 2021 by which Congress’ investigative requests would provide an opportunity for President Biden to waive Executive Privilege without violating DOJ’s contacts policy. That is, in July 2021, Garland solved a tricky problem with investigating the former President: how to obtain privilege waivers while keeping the existing President entirely walled off from the criminal investigation.

But this legal background, in which, with just one dissent, SCOTUS upheld a Tanya Chutkan opinion pertaining to an investigation into Donald Trump, will prove critically important in the days ahead, for two reasons that go to the screeds the former President is engaging in on his failed social media platform.

Along with making a venue complaint that has failed the dozens of times other January 6 defendants have made it (here’s a Roger Parloff post from before the Riley Williams and Oath Keepers trials showed that juries will rule against the government on precisely the same charges), Trump is preparing to claim that Judge Chutkan is biased and must be recused.

And Trump has been claiming that DOJ could have brought this case years ago, before the election season.

As to the first point, on a topic directly pertinent to this investigation, eight Justices have already upheld Judge Chutkan. Three Trump appointees, with Justice Kavanaugh writing the decision, have already ruled with Judge Chutkan.

That will make it harder to claim her prior central involvement in the January 6 investigation presents a conflict.

More importantly, that Judge Chutkan decision in November 2021 led to a SCOTUS decision, on January 19, 2022, upholding the DC Circuit’s opinion that the peaceful transfer of power is a sufficiently important basis to overcome an Executive Privilege claim, even if only for a congressional investigation, which litigation in the stolen documents case noted was a significantly lower standard than a criminal investigation.

Yet, even in spite of that decision on January 19, 2022, Donald Trump continued to make Executive Privilege claims that delayed DOJ’s investigation. He did so to stall DOJ’s interviews with Mike Pence’s advisors in summer 2022. He did so to stall DOJ’s interviews of Trump’s White House Counsel later that summer. He did so to stall DOJ’s interviews with other top aides in January 2023. And he did so to stall Mike Pence’s testimony.

Donald Trump continued to stall DOJ’s investigation using Executive Privilege claims for 463 days after a Justice that he himself had appointed had already rejected such claims. At the very least, these frivolous Executive Privilege invocations were critically responsible for any delay from July 2022, when Greg Jacob and Marc Short first refused to answer some questions because of Trump’s privilege claims, until April 2023, when Mike Pence testified — nine months.

Nine months, Trump kept making Executive Privilege claims that it was clear SCOTUS wouldn’t uphold.

Indeed, Trump’s frivolous Executive Privilege claims are responsible for even more of any delay than his own Special Master demand in the stolen documents investigation caused — in that case, three months.

Donald Trump is complaining that he wasn’t charged for his attempt to overthrow the peaceful transfer of power in 2020 until during his campaign to regain the presidency.

But he is personally responsible for much of that delay.

Republicans Demanded Independence for John Durham and Got Robert Hur and Jack Smith in the Bargain

Even before Trump’s Espionage Act indictment was made public, Trump was attempting to politicize his stolen documents prosecution by demanding — via a Truth Social post— a meeting with Merrick Garland, who is not overseeing the case. Virtually every journalist fell for Trump’s bait, reporting the demand without noting that Jack Smith is the prosecutor overseeing the investigation into Trump, not Merrick Garland.

Garland rightly refused the meeting.

Since then, paid propagandists have been chanting out “Joe Biden Merrick Garland Joe Biden Merrick Garland” talking points like wind-up toys, because repetition is how you get low-information Trump supporters and members of Congress to believe false claims.

This strand of propaganda has worked. The other day, WSJ’s Sadie Gurman, after reviewing how assiduously Merrick Garland remained out of the process, stated as fact that this is a political prosecution.

When a grand jury returned the first-ever federal indictment of a former president last week, Attorney General Merrick Garland made a point of suggesting he was nowhere near the team handling the case.

He strolled into Justice Department headquarters in downtown Washington with his deputy late Thursday afternoon amid intense speculation about charges against Donald Trump and told a Wall Street Journal reporter he had been out getting a Covid vaccine.

[snip]

In keeping with that philosophy, Garland kept details of the indictment and its timing secret from Biden, who said Friday, “I have not spoken to him at all, and I am not going to speak with him.”

The attorney general also declined to meet with Trump’s lawyers, who requested a sit-down in the days leading up to the indictment, leaving the gathering instead to Smith and other Justice Department officials.

[snip]

Yet Garland now presides over what may be the highest-profile political prosecution ever, which is certain to be a prominent factor in the 2024 election. [my emphasis]

Gurman also suggested that Garland somehow engaged in politics by letting Jack Smith unseal the indictment that was sealed to protect security, not to let Trump sow violence in a vacuum.

But Garland didn’t object to prosecutors asking a court to unseal the indictment on Friday, well before Trump’s Tuesday arraignment when it would normally be made public, a person familiar with the matter said.

Finally, Gurman immediately — and, possibly, falsely — suggested that Garland “faces a call” on whether DOJ should charge Hunter Biden.

Adding to the political overtones, Garland also faces a call on whether the Justice Department should file charges against Biden’s son, Hunter, who is under investigation related to his taxes and whether he made a false statement in connection with a gun purchase. Hunter Biden has said he acted legally and appropriately.

Garland only faces a call if he has to approve an indictment. If David Weiss chooses not to prosecute, Garland is not going to override the Trump-appointed US Attorney who has been retained to make this decision himself.

Since yesterday’s arraignment, the false claim that Joe Biden and Merrick Garland have pursued the prosecution of Biden’s rival has gotten crazier still, especially on Murdoch properties other than the one where Gurman invented a political prosecution where there is none. As Trump wailed about his plight at his club yesterday, for example, Fox’s chyron accused Biden of being a “wannabe dictator” because a process entirely insulated from Biden resulted in Trump’s arrest. (Natasha Korecki posted this screen cap.)

There’s something especially noxious about the degree to which actual journalists like Gurman are parroting this line (Jamison Fraser notes a similar example in polling coverage).

Donald Trump is being treated no differently than Biden himself, to say nothing of the targets of John Durham’s abusive four year investigation.

Consider how absurd it is that Trump, lashing out, promised to appoint “a real special ‘prosecutor'” to go after Biden and “the entire Biden crime family.”

The Biden Administration already did that, Bucko!!! It currently has two Trump appointed prosecutors, David Weiss and Robert Hur, conducting investigations into Biden’s son and Biden himself. You’re so inadequate you can’t even out-prosecute Biden than Biden himself is already doing!

Yet, in response to this tweet, almost no journalists noted that Joe Biden’s Administration already did that — retain or appoint two separate Trump-appointed prosecutors to investigate Biden himself.

And that’s a hint of what is affirmatively missing from the coverage of real journalists like Gurman.

It’s that Republicans, and Trump himself, have demanded what they’ve gotten with Merrick Garland’s distance from Jack Smith’s prosecution. Republicans, and Trump himself, have repeatedly demanded that Garland stay out of Weiss’ investigation. They even wailed that Biden was being treated specially after the discovery of classified documents at the Penn Biden Center, until it became clear a preliminary Special Counsel had been appointed within days, in Biden’s case, not months.

Most importantly, none of these Republicans wailing about Garland’s distance from the Jack Smith investigations (wailing because it demonstrates their claims that this is a political prosecution to be obvious bullshit) complained at all after John Durham used the independence Garland afforded him to engage in one after another instance of shocking prosecutorial abuse.

Republicans, and Trump himself, did not complain that Durham investigated for four years even though no crime predicated his investigation (a far worse abuse than Durham’s complaint that Crossfire Hurricane was opened as a Full rather than Preliminary investigation).

Republicans, and Trump himself, did not complain that Durham threatened witnesses and lawyers (and lawyers complained to Merrick Garland in real time; they didn’t wait until a target letter went out to try to excuse their own counterproductive legal advice).

Republicans, and Trump himself, did not complain that in both trials, first his lead prosecutor and then Durham himself, were caught scripting improbable or affirmatively misleading testimony from witnesses.

Republicans, and Trump himself, did not complain that Durham charged Michael Sussmann for coordinating with Hillary’s top staffers months before interviewing any of those staffers and discovering it wasn’t true.

Republicans, and Trump himself, did not complain that Durham charged Igor Danchenko relying, in significant part, on the rants Sergei Millian made on his Twitter feed, only to discover, months later, that Millian was unwilling to repeat the same claims at trial under oath.

Republicans, and Trump himself, did not complain that Durham prosecuted a man for making a literally true statement to the FBI.

Republicans, and Trump himself, did not complain when John Durham accused Sussmann and Danchenko anew of lying to the FBI after two juries told him he couldn’t prove that claim.

Republicans, and Trump himself, did not complain that John Durham fabricated a claim that even the Russians didn’t make against Hillary and used it as his excuse to continue his investigation for three more years.

Republicans, and Trump himself, did not complain when John Durham affirmatively misrepresented the YotaPhone white paper; instead, Trump used Durham’s misrepresentation to justify making death threats against Michael Sussmann.

Republicans, and Trump himself, knew how much independence Merrick Garland was giving Jack Smith, because Durham told them that he committed all that abuse and yet Garland let him continue unimpeded.

Finally, we want to thank you and your Office for permitting our inquiry to proceed independently and without interference as you assured the members of the Senate Judiciary Committee would be the case during your confirmation hearings to become Attorney General of the United States.

And long after it was clear that Garland had given Durham precisely the independence that Republicans, and Trump himself, had demanded, Trump is the one who forced the appointment of a Special Counsel by announcing his run six months ahead of his competitors. Trump took steps that led to someone completely independent investigating his suspected crimes, not Joe Biden, not Merrick Garland. And now he’s trying to pretend that he himself didn’t ensure someone independent would investigate his suspected crimes.

Jack Smith has been living by the rules Republicans demanded, and got, for John Durham.

I don’t expect Trump to care that Jack Smith has been operating under the same rules of independence that Garland gave Durham. Trump needs to claim this is political, to provide his boosters — and probably his own fragile ego — some explanation for this indictment other than that a grand jury of South Floridians determined there was probable cause he committed an unprecedented crime that made this country less safe. I expect Mike Davis to continue reeling out his knowingly false claims, Joe Biden Merrick Garland Joe Biden Merrick Garland. It’s what he is paid to do.

But journalists like Sadie Gurman should know better. Journalists like Sadie Gurman, after presenting proof that Jack Smith is operating with the same independence that John Durham did, owe their readers a description of what it means that this investigation has operated with independence. Journalists like Sadie Gurman should not be drawn in by attempts to delegitimize a prosecution only because Trump belatedly wants to change the rules he himself demanded.

Update: I’ve updated my stolen documents investigation resource page, with key documents, a bit of a timeline, all our posts on the case, plus other useful links (including to dockets of other 18 USC 793 cases).