Today, Donald Trump is attending the first day of the fraud trial that he already substantially lost.

Depending on who you believe, he is either attending because he’s using his attendance to delay a deposition in his own suit of Michael Cohen (who will also be a key witness in this fraud trial).

He cited this as his excuse for skipping out on 2 deposition days in his federal case against ex-lawyer Michael Cohen.

If he didn’t show up, he’d be in contempt of court.

Or, he’s using it as a way to affect the outcome — the outcome that was already substantially determined by Judge Engoron’s ruling last week, a ruling addressed in passing, without explaining how he can affect something that has already occurred.

For Mr. Trump, his attendance at trial is far more personal than political, according to a person familiar with his thinking. The former president is enraged by the fraud charges and furious with both the judge and the attorney general. And Mr. Trump, who is a control enthusiast, believes that trials have gone poorly for him when he hasn’t been present, and he hopes to affect the outcome this time, according to the person.

In his courthouse remarks, Mr. Trump lashed out at the judge’s earlier fraud ruling on his property valuations. “I didn’t even put in my best asset, which is the brand,” he said.

I think Trump is attending to spin a judgment that has already been issued as, instead, an outcome he predicted.

Today.

Days after the ruling.

Here’s how it works. On the way into the trial, Reality TV Star Donald Trump made a public statement in which he told his cult followers that the judge that the judge was rogue and the prosecutor was racist.

Few outlets reported that 77-year old Reality TV Star Donald Trump his slurred words.

No one asked why his spouse hadn’t accompanied him to this trial.

Few outlets reported Tish James’ comments about how no one is above the law.

Many outlets were so busy reporting on Reality Tv Star Donald Trump’s statements that they didn’t explain that Trump’s Parking Garage Lawyer, Alina Habba, didn’t even try to push for a jury trial, something Judge Engoron confirmed as the trial started.

At least some of the outlets that reported Chris Kise’s arguments about valuation did not explain that those issues were already decided, in a ruling last week.

Most outlets reported that Reality TV Star Donald Trump glared at The Black Woman Prosecutor on his way out for lunch. Some also reported that she laughed that off.

On the way back in the courthouse, Reality TV Star Donald Trump made even more incendiary comments about the judge who already did and will decide his fate. Reality TV Star Donald Trump told his followers that the judge presiding over a trial that might lead him to lose his iconic Trump Tower should be prosecuted and was guilty of election interference.

Many observers clucked that such a stunt would lead the judge — the one who already ruled against Trump — to rule against him.

Trump is going to lose this trial. Know how I know? Judge Engoron already ruled against him!

But most of Trump’s followers don’t know that. Most of Trump’s followers believe that Chris Kise’s comments about valuation were still at issue. Most cult members will see Trump’s comments today — it won’t be hard, because every outlet is carrying them — and remember that before the trial, Trump “predicted” that The Corrupt Judge and The Black Woman Prosecutor would gang up on him.

Reality TV Show Actor Donald Trump used his presence at the trial to create a reality in which he will have correctly predicted a loss that was baked in last week. Because he “predicted” such an outcome, his millions of cult followers will not only treat him as more trustworthy than the journalists playing some role in Trump’s Reality TV Show, cluck clucking about his attacks on justice without focusing on the fraud and the more fraud and the already adjudged fraud.

Not only will have Reality TV Show Actor Donald Trump have “predicted” the outcome, leading his followers to renew their faith in his reliability, but they will implicitly trust his explanation: that he lost the trial not because he is, and has always been a fraud, but instead that mean judges and Black Prosecutors continue to gang up on him.

And in the process, Reality TV Show Actor Donald Trump will have continued the big con, the very same fraud of which he has already been adjuged. He will have once again distracted from his own fantasy self-worth and instead led people to report on his golden brand.

The post Why Reality TV Star Donald Trump Is More Trusted than Most News Outlets appeared first on emptywheel.

[NB: check the byline, thanks. /~Rayne]

It’s going to be a rather busy Monday. Grab your poison of choice — second LARGE cup of joe underway here — and let’s get at it.

~ 3 ~

It’s rather sad this needed to be said yet again in reference to Donald Trump:

“No matter how much money you think you may have, no one is above the law,” James told reporters before entering the courtroom. “The law is both powerful and fragile. And today in court will prove our case.”

But the wretched former guy apparently needs it as the civil fraud trial opens today in New York.

The Trump campaign’s post-debate stunt leaving a bird cage outside fellow GOP candidate Nikki Haley’s hotel room likely encouraged the reminder, on top of Trump’s other egregious behavior including insults about New York AG Letitia James.

The stunt, which followed Trump’s insult on social media saying Haley had a bird brain, didn’t go over well abroad. India’s media took note of this trashy behavior unbecoming a former U.S. president and a current presidential candidate.

One can only wonder if Trump would be both stupid and arrogant enough to pull such a gag on AG James as a dig at the prosecutor.

~ 2 ~

California’s Gov. Gavin Newsom will appoint Laphonza Butler to fill the Senate seat in the wake of Dianne Feinstein’s death.

Butler’s appointment is a statement none of the other possible appointees could make. She’s been president of political action committee EMILY’s List since 2021; the organization’s mission has been to get more women elected to office.

Butler has also been a superdelegate for California during the 2016 election when she supported Hillary Clinton. Originally from Mississippi, Butler has worked as a union organizer, last with SEIU where she worked toward raising the minimum wage and taxing the wealthiest Californians.

In 2018 Butler left the SEIU to join a Democratic communications firm, SCRB (now Bearstar Strategies) where she worked on Kamala Harris’ campaign.

Butler is gay and married; she and her partner have a daughter.

So many boxes checked off by one appointment, so many marginalized and suppressed groups now represented. Worth reading Philip Bump’s graphic-laden piece in WaPo to understand what this means.

~ 1 ~

[11:15 a.m. ET — This third thing is WIP. Stay tuned.]

~ 0 ~

This is an open thread.

The post Three Things: Fraud Trial Begins, Newsom’s Pick, Contingent Aid appeared first on emptywheel.

DOJ’s reply on its bid for a gag on Donald Trump has a number of the things you’d expect.

It has a list of the seven people Trump has threatened since the last filing on this, including Trump’s vicious attack on Mark Milley.

With each filing, DOJ just keeps adding to the list of people Trump either incited or targeted.

The government also notes that Trump may have broken the law — or claimed he did, for political benefit — when he claimed to have purchased a Glock.

9 The defendant recently was caught potentially violating his conditions of release, and tried to walk that back in similar fashion. In particular, on September 25, the defendant’s campaign spokesman posted a video of the defendant in the Palmetto State Armory, a Federal Firearms Licensee in Summerville, South Carolina. The video posted by the spokesman showed the defendant holding a Glock pistol with the defendant’s likeness etched into it. The defendant stated, “I’ve got to buy one,” and posed for pictures with the FFL owners. The defendant’s spokesman captioned the video Tweet with the representation that the defendant had purchased the pistol, exclaiming, “President Trump purchases a @GLOCKInc in South Carolina!” The spokesman subsequently deleted the post and retracted his statement, saying that the defendant “did not purchase or take possession of the firearm” (a claim directly contradicted by the video showing the defendant possessing the pistol). See Fox News, Trump campaign walks back claim former president purchased Glock amid questions about legality (Sept. 25, 2023), https://www.foxnews.com/politics/trump-campaign-walks-back-claim-former-presidentpurchased-glock-amid-questions-about-legality (accessed Sept. 26, 2023). Despite his spokesperson’s retraction, the Defendant then re-posted a video of the incident posted by one of his followers with the caption, “MY PRESIDENT Trump just bought a Golden Glock before his rally in South Carolina after being arrested 4 TIMES in a year.”

The defendant either purchased a gun in violation of the law and his conditions of release, or seeks to benefit from his supporters’ mistaken belief that he did so. It would be a separate federal crime, and thus a violation of the defendant’s conditions of release, for him to purchase a gun while this felony indictment is pending. See 18 U.S.C. § 922(n).

Notably, the government points to 18 USC 922 as its basis to claim it would be illegal for Trump to purchase a gun. His release conditions don’t prohibit him from owning a gun.

Trump won’t be charged on this. Which means it’ll be another thing Hunter Biden will use to show selective prosecution.

But I’m most interested DOJ’s rebuttal to Trump’s claim that Jack Smith improperly connected Trump to January 6 in his press conference announcing the indictment when he said Trump had, “fueled . . . an unprecedented assault on the seat of American democracy.”

The defendant seeks to deflect responsibility for his own prejudicial statements by claiming that the indictment in this case was “false and derogatory” and that the Special Counsel’s brief statement upon its unsealing was prejudicial because it ascribed to the defendant responsibility for the events of January 6, 2021—which, according to the defendant’s opposition, the indictment does not allege. ECF No. 60 at 19-20. The defendant is wrong.

[snip]

[T]he indictment does in fact clearly link the defendant and his actions to the events of January 6. It alleges—and at trial, the Government will prove—the following:

• The defendant’s criminal conspiracies targeted, in part, the January 6 certification and capitalized “on the widespread mistrust the [d]efendant was creating through pervasive and destabilizing lies about election fraud,” ECF No. 1 at ¶4.
• In advance of January 6, the defendant “urged his supporters to travel to Washington on the day of the certification proceeding, tweeting, ‘Big protest in D.C. on January 6th. Be there, will be wild!,’” id. at ¶87. He then “set the false expectation that the Vice President had the authority to and might use his ceremonial role at the certification proceeding to reverse the election outcome in [his] favor, id. at ¶96.
• Then, despite his awareness “that the crowd [ ] on January 6 was going to be ‘angry,’” id. at ¶98, on the morning of January 6, the defendant “decided to single out the Vice President in public remarks,” id. at ¶102, and “repeated knowingly false claims of election fraud to gathered supporters, falsely told them that the Vice President had the authority to and might alter the election results, and directed them to the Capitol to obstruct the certification proceeding and exert pressure on the Vice President to take the fraudulent actions he had previously refused,” id. at ¶10d.
• Finally, on the afternoon of January 6, after “a large and angry crowd—including many individuals whom the [d]efendant had deceived into believing the Vice President could and might change the election results—violently attacked the Capitol and halted the proceeding,” the defendant exploited the disruption in furtherance of his efforts to obstruct the certification, id. at ¶10e.

In short, the indictment alleges that the defendant’s actions, including his campaign of knowingly false claims of election fraud, led to the events of January 6.

This is a very neat formula of the things Trump did to stoke the violence. The lies provided foundation for the rally which provided an opportunity to target Pence which provided the cause to send mobs to the Capitol. DOJ has been working on laying out this formula for 26 months. Here they lay it out in a few short paragraphs, one way to read a complex indictment.

More remarkably, it comes as part of a gag request that — while it mentioned Trump’s attacks on Pence after the fact — didn’t focus on Trump’s dangerous targeting of Pence to gin up the mob. The initial gag request looked at all the other lives Trump ruined by targeting them. But it didn’t focus on Pence.

Here, once again in the response to an invitation by Trump to do so, DOJ neatly lays out how Trump’s attacks on Pence were a key tool he used to direct the mob.

The post DOJ’s Theory of Trump’s Mob appeared first on emptywheel.

[NB: check the byline, thanks. /~Rayne]

I’m braced for the crabbing sure to come with this post: “But this is Trash Talk, it’s supposed to be about sports!”

Uh, it’s TRASH talk, which is talk about trash. Not all trash is exclusively about sports.

There are also more sports than those contained on a field or played with a ball, for that matter. Like the sport of celebrity watching — just ask Golf Magazine.

This week’s Trashiest Trash Talk covers the intersection between sports trash and celebrity trash — when popular performer in Entertainment Industry A meets popular performer in Entertainment Industry B and begins dating.

~ ~ ~

Travis Kelce, tight end for the Kansas City Chiefs, has something going on with mega pop star Taylor Swift.

In case you have not been on the planet the past few weeks, here’s what’s been happening: Kelce, who plays for the Kansas City Chiefs, confessed awhile back to his brother Jason Kelce, who plays for the Philadelphia Eagles, that he had unsuccessfully tried to slide his digits to Swift via a friendship bracelet at the Kansas City stop of her “Eras” concert tour.

People became invested. Travis Kelce later said he “threw the ball in her court” and told Swift, “I’ve seen you rock the stage in Arrowhead. You might have to come see me rock the stage in Arrowhead and see which one’s a little more lit.”

Plot twist: Swift showed up at his game last Sunday and sat in a suite next to his mom. Swift and Kelce – now known as “Tayvis,” “Traylor,” “Swelce” or “K. Swift,” depending upon who you ask – even left the game via Kelce’s convertible. Photos have since surfaced of the two of them together looking quite chummy.

It’s not an unbelievable pairing. Both Kelce and Swift are 33 years old, Kelce being only a couple months older than Swift. They’re from neighboring Rust Belt states; Kelce is from Westlake, OH and Swift was from West Reading, PA. They both have established careers and aren’t hurting for money or attention though Swift’s income is far greater by a dizzying magnitude.

Unsurprisingly, the internet has gone bonkers about this couple. Kelce already had a good size fanbase because of his achievements on the field (“one of the greatest tight ends in NFL history (top five, to be exact). He’s also won two Super Bowls, has 825 receptions for 10,000+ yards, and 71 career touchdowns“) and appearances off the field (star of E! Entertainment’s Catching Kelce reality TV dating show as well as advertising appearances).

And then there are Swift’s Swifties — a legendary massive fandom who’ve followed her work as far back as 2004.

Will any of the buzz around this pair do anything for NFL football? Many football fans may find all the hoopla a distraction from the sport. But it’s possible a new audience and a new generation of football fans may emerge from this pop culture convergence.

There are already multiple articles with explainers about football aimed at Swifties.

Imagine what Swifties could do to ticket and merch sales this season given the size of Swift’s audiences like the one in Kansas City which set the “Tayvis” buzz in motion. Kelce himself could earn another $5-$10 million this year; his merchandise sales exploded by 400% last weekend thanks to the “Taylor Swift effect.”

Given Taylor’s has already met and been hanging with Kelce’s mom at the game last weekend, this is going to be this season’s personality angle to watch.

There’s just one problem — a rather ugly downside. If this couple doesn’t last, you can expect a crash spread across entertainment media and yet another mega hit record complete with breakup song about a tight end.

Swift is expected at MetLife Stadium tomorrow night to watch Kelce and the Kansas City Chiefs against the New York Jets. Kickoff is at 8:20 p.m. ET.

The NFL has already been capitalizing on this in its promotions, of course. Can hardly wait for the breakup song swatting that kind of opportunism.

~ ~ ~

Speaking of Taylor Swift, the pop star deployed her own “Taylor Swift effect” for the benefit of democracy this week:

“…Just days after Swift urged Swifties to register to vote on National Voter Registration Day in an Instagram Story, shocker, they listened and signed up to do their civic duty in record numbers.

On Wednesday (Sept. 20), Vote.org’s communications director, Nick Morrow, wrote on X (fka Twitter) that Swift’s plea resulted in a tidal wave of new registrations. “Fun fact: after @taylorswift13 posted on Instagram today directing her followers to register to vote on @votedotorg, our site was averaging 13,000 users every 30 minutes. 13!” he revealed, noting the cosmic coincidence of the bump coalescing with the singer’s favorite number. …”

More of this kind of opportunism, please and thanks!

~ ~ ~

In other sports news —

• The 44th Ryder Cup’s Day 2 just wrapped. As a family member concisely put it after yesterday’s golf matches wrapped up, “Team USA got waxed!” Team Europe led the US as they teed off this morning at Marco Simone Golf and Country Club near Rome, Italy; they hung onto their lead through the end of play today. It’s not looking good for Team US this year.

• Green Bay Packers sent a message to their ticketholders encouraging them to resell their tickets to Packers’ fans after this Thursday night’s game when the Detroit Lions won 34–20, propelling a sea of blue jersey-wearing Lions fans onto Lambeau Field. Apparently the sight got Packers’ dander up more than the Lions’ holding the Pack to a mere total 27 yards rushing.

• As anticipated, MSU Spartan’s head coach Mel Tucker was fired this week for his “inappropriate and unprofessional conduct” relating to interaction with a sex abuse prevention activist. Tucker has indicated he’ll sue MSU for wrongful termination.

~ ~ ~

Bring your trash here; consider this an open thread.

The post Trash Talk: The Trashiest Talk Ever Trashed appeared first on emptywheel.

Self-imagined IRS whistleblowers, Gary Shapley and Joseph Ziegler, continue to engage in an information campaign that not only hasn’t provided real evidence for impeachment, but also must be creating real difficulties for David Weiss as he attempts to charge the tax case against Hunter Biden.

The House Ways and Means Committee released a slew of documents provided by the IRS Agents the other day in advance of Thursday’s Impeachment Clown Show. Below, I’ve laid out just the documents pertaining to the investigation (that is, the purported topic of their whistleblower complaint), along with explanations of what the documents show. There a bunch of other investigative documents (Shapley appears to have let Ziegler assume most of the risk of releasing the bulk of the new IRS and grand jury documents), some of which reflect a real sloppiness about parts of the investigation, which would pose still more problems charging this case.

I also plan to write a follow-up post laying out Gary Shapley’s actions in advance of the October 7, 2022 meeting. They show that the items he claimed presented a new “red line” for him in that meeting had instead been raised with him months earlier. He came into the meeting with an agenda — notably, that Gary Weiss should ask to be appointed Special Counsel (as opposed to Special Attorney) — and raised non-sequiturs given the posture of the case at the time.

As to some other key claims the IRS Agents have made, especially against Lesley Wolf, the record provides countervailing evidence on those too.

As noted, for example, the decision not to take overt steps in 2020 came directly from Donald Trump’s Deputy Attorney General’s office, from someone — Richard Donoghue — who knew first-hand about Russian efforts to tamper in the election by focusing on Hunter Biden. The IRS Agents and Republican Members of Congress have blamed Wolf for that.

One key complaint is that Gary Shapley wasn’t permitted to surprise Hunter Biden during the day of action on December 8, 2020. But as Wolf represented it in a call Ziegler memorialized on December 11, the norm would have been to work through Hunter’s lawyers for an interview. Her support of going with only a heads up to the Secret Service was a deviation from that norm, she claimed. There’s no support in these documents for Shapley’s claim (and Ziegler’s hearsay claim) that the Transition Team got a heads up from DOJ, so if Shapley had a credible source for it, it wasn’t documented notice.

Another complaint — one Republicans in Congress can’t let go — was that Wolf used a subpoena to get the contents of a storage facility Hunter had rather than a search warrant. But a month earlier than that, the plan wasn’t to get a warrant, it was to do a consent search. When Ziegler pitched her on a search warrant after the Rob Walker interview, he wanted to do the search immediately, within a week, in spite of what she represented would be the onerous approval process to get a warrant. According to what Ziegler records Wolf saying, all the lawyers involved in this decision agreed with her (not surprisingly, given that a taint review after going overt would involve the same level of defense attorney involvement as a subpoena would). When the IRS escalated this issue on December 14, they still didn’t know how a taint review would work in the Fourth Circuit, meaning they had not yet tested Wolf’s claims.

Importantly, the reason Ziegler thought it so important to do a search of the storage facility rather than serve a subpoena is that he wanted to find proof of foreign bank accounts, something for which Wolf claims there was no evidence.

Ziegler brought up the potential for foreign accounts and the records that he had seen thus far that indicate there are foreign accounts involved in this case. Wolf said that there is no indication what‐so‐ever that the Subject has foreign accounts and that any records related to that would be turned over [pursuant to subpoena].

Even in the most recent Republican documents, reflecting what Ziegler and Shapley turned over, I’m aware of no such evidence. The foreign payments Republicans claim are so suspect went right through corporations established in Delaware. Many of the payments appear to have gone through the same Wells Fargo accounts on which Ziegler predicated this investigation five years ago. And the IRS appears to have checked with the most likely havens — Cyprus and the Cayman Islands — about whether there were foreign accounts. I haven’t read all the investigative documents or the tax returns and investigators may find something else, but if this is correct, then it’s one hell of a money laundering claim these guys are chasing, consisting of payments through corporations headquartered right in Delaware and payments through Hunter’s main bank account.

It was already clear from Ziegler’s testimony that his complaints about delays in interviews in 2021 didn’t account for Wolf’s efforts to prioritize more important investigative steps, such as getting approval for a subpoena for Hunter’s attorney, George Mesires, rather than focusing on interviews with sex workers. The interview with Mesires took another year to schedule. But one set of emails from the time show it was Ziegler’s IRS supervisor, and not Lesley Wolf, that pushed back on his plans for interviews; the supervisor suggested he bring in “collaterals” to do some of the investigative work rather than do it all himself.

The IRS Agents and Republican Members of Congress similarly keep complaining that David Weiss let the statute of limitations expire on the 2014 and 2015 charges most closely focused on Burisma. There was already evidence (most especially in the hand-written notes that Shapley only belatedly shared) that it wasn’t so much that Weiss “let” SOLs expire, but that he made a prosecutorial decision — one Shapley refused to abide by — not to charge those years. Lesley Wolf first started raising questions about the sufficiency of the evidence in May 2021. This new trove of documents show that Shapley had been informed that DE USAO was disinclined to charge those years more than two months before October 2022, and again in August 2022. There is a good deal of evidence that Shapley’s manufactured panic about “letting” SOLs expire instead is an expression of disagreement with a prosecutorial decision.

Perhaps worst of all, the depiction the IRS Agents have made of Lesley Wolf does not reflect what appears in these documents, which show her to be more supportive of them than they claimed. On September 21, 2020, Wolf followed up immediately when the FBI showed reluctance to pursue parts of the investigation. In October 2020, she was supportive of the IRS’ wishes to do the Day of Action interviews sooner rather than later. In December 2021, she made a point of commending all the work Ziegler had done on the case. In June 2022, David Weiss recognized Ziegler’s work. In August 2022, Wolf noted that Ziegler was  busy dealing with a family issue and empathized, “know I am thinking of you and sending good thoughts.”

The one thing Wolf absolutely did push back on was the IRS Agents’ efforts to conduct a campaign finance investigation of the funds Kevin Morris provided to Hunter to pay off his taxes. At one point, her request that they prioritize the 2014 tax case first (which she said hadn’t been proven yet) was depicted as obstruction. At another — in Shapley notes that again appear to conflict with what he was writing in the official record — she provided several good legal reasons not to pursue the case, including that any “donation” from Morris to Joe Biden via Hunter was even more attenuated than the John Edwards case that failed. By recording and publicly releasing Wolf noting that the law was not clear on this issue, Shapley will make it almost impossible to charge, because anyone charged would simply point out that even DOJ agreed it wasn’t a clear campaign finance donation. And what the IRS Agents otherwise portray as Wolf’s disinterest in involving Public Integrity (PIN) because they would take authority away from her was (here and elsewhere) instead described as PIN requiring another layer of approvals, precisely the thing that IRS Agents were complaining about elsewhere.

The IRS Agents’ recriminations of Lesley Wolf have gotten her targeted with serious threats. And yet, their own record doesn’t substantiate the claims they have made against her.

Timeline

September 21, 2018: Suspicious Activity Report from Wells Fargo.

October 31, 2018: Primary investigation initiated into other entity.

November 1-2, 2018: Request of support for SAR, only other agency investigating was DA office.

December 10, 2018: Primary investigation initiated into Hunter Biden.

January 18, 2019: Update from Wells Fargo on SAR.

Around February 2019: SSA informs Ziegler that DE USAO looking into SAR.

March 28-29, 2019 Exhibit 400: April 26, 2019, FBI FD 302, re: March 28, 2019, Interview with Gal Luft. It appears likely there were two 302s of these interviews (possibly three) because Luft’s alleged lies don’t appear in unredacted form in this one.

April 12, 2019: Package submitted to DOJ-Tax

April 15, 2019 Exhibit 206: April 15, 2019, Email from Joseph Ziegler to Jessica Moran, Subject: Approx. Timeline. This shows the above timeline, about which Ziegler was not clear in his testimony.

April 29, 2019 Exhibit 207: April 29, 2019, Email from Matthew Kutz to Kelly Jackson, cc’ing Joseph Ziegler and Christopher Wajda, Subject: Robert Doe – FYI Venue issue. Kutz is the person to whom Ziegler attributed his understanding that Barr had assigned this to DE USAO himself, before backing off that claim. Kutz is also the person who was documenting 6A and inappropriate influence on the investigation. Ziegler provides none of that.

August 5-7, 2020 Exhibit 202: August 5-7, 2020, Emails Between Joshua Wilson, Lesley Wolf, Carly Hudson, cc’ing Susan Roepcke, Michelle Hoffman, Joseph Ziegler, and Joseph Gordon, Subject: BS SW Draft. This was a warrant for BlueStar emails. AUSA Wolf objected not just to the mention of Joe Biden in the warrant (which is the only thing Ziegler leaves unredacted), but also to a great deal of stuff that was outside scope of the warrant. The SDNY FARA investigation was active in this period, which may be why other stuff was included, but in short order, even the IRS seemed to concede the SDNY FARA investigation into CEFC (the one that would rely on Gal Luft’s interview) was not viable.

Exhibit 203: Draft of B[lue]S[star email] Warrant.

September 3-4, 2020 Attachment 2: September 3-4, 2023, Emails Between Joseph Ziegler, Lesley Wolf, cc’ing Carly Hudson, Jack Morgan, Mark Daly, Joshua Wilson, Susan Roepcke, Alyssa Ruisard, Antonino Lo Piccolo, Christine Puglisi, Stefania Roca, Michael Dzielak, Gary Shapley, and Joseph Gordon, Subject: Today’s Agenda. This is an incredibly helpful list of where key legal process stood:

• 4 iCloud backups (Ziegler asked whether location data was necessary, which he and Shapley suggested was mandatory before)
• Relevancy review of iPhone Backup (which tells you they were still scoping the phone when they got the iCloud warrants)
• Search warrant for BlueStar (about which investigators disagreed in August)
• Supplemental email search warrant (unclear on which account)
• DropBox search warrant (which wouldn’t be served for some time, but which seems to have been an attempt to get emails they knew of but didn’t have)
• Discussion of 2703-D orders (metadata) for two accounts belonging to Vadym Pozharskyi and one to Devon Archer; elsewhere Ziegler relies on the “laptop” for emails involving the two

The agenda also notes investigative developments involving SDNY (the FARA investigation), Pittsburgh (the FD-1023), and Comerica.

September 3-4, 2020: Memo of Meeting. At this meeting, there was a discussion of keeping Hunter Biden’s name off overt requests, to which Ziegler objected (as if he wanted it to be discovered). There’s a discussion of whether the investigation would continue or not after the election, which Wolf said it would. Wolf attributed sensitivities to Richard Donoghue. Note: Shapley doesn’t say who was involved in the follow-up call on September 4.

September 21, 2020 Attachment 3: September 21, 2020, IRS CI Memorandum of Conversation Between Gary Shapley and Mark Daly, Authored by Gary Shapley. This memorializes a meeting earlier that day in which Joe Gordon expressed uncertainty among FBI management about how many interviews they would participate in after the election. Lesley Wolf pushed back hard on this. This memo reflects double hearsay (Wolf to Mark Daly to Shapley) blaming Special Agent Josh Wilson for the reluctance on investigating Hunter, because he had just moved back to Wilmington with his family. Shapley also memorializes a call to his ASAC about the details. This is another instance where Wolf was pushing the investigation hard.

October 19, 2020 Attachment 5: October 19, 2020, Email from Gary Shapley to Lesley Wolf, Subject: Computer. This is an email Shapley read, in part, in his testimony, regarding IRS’ need to know what was going on with the laptop. Ironically, he notes that there may be specific disclosure limitations tied to the IRS warrant, a concern with which he has since dispensed.

October 21, 2020 Attachment 4: October 2, 2020, Emails Between Lesley Wolf, Joseph Ziegler, Gary Shapley, and George Murphy, Subject: Dates. This reflects ongoing discussion about when to do the day of action, in an attempt to avoid interviewing Hunter in Delaware, as opposed to LA. Lesley Wolf was again supportive of Shapley’s goals to do the interviews sooner rather than later.

October 21, 2020 Exhibit 210: October 21, 2020, Emails Between Jack Morgan, Lesley Wolf, cc’ing Mark Daly and Carly Hudson, Subject: Mann Act. Jack Morgan emails Lesley Wolf regarding nine communications, two with traffickers, that he says may support Mann Act exposure. In only two cases was the travel confirmed. There are no dates in this list. Three instances include travel to Massachusetts (and so might coincide with the apparent hijacking of Hunter’s digital identity while he was in Ketamine treatment).

October 22, 2020: Notes on laptop. As noted, Shapley wildly misrepresented what the notes on the laptop actually say. They show that 10 months after accessing the laptop, the FBI still hadn’t done basic things to validate the content on the laptop had not been tampered.

October 22, 2020 Attachment 6: October 22, 2020, IRS CI Memorandum of Conversation between Prosecution Team, Authored by Gary Shapley. Shapley records Wolf as saying that there would not be a warrant on the DE residence. He does not record why. He also records the briefing on the Pittsburgh lead, ordered up by PDAG (Donoghue). This meeting happened an hour after the laptop meeting, but Shapley treats it as a separate meeting (and doesn’t say who attended).

October 23, 2020 Exhibit 400A: Tony Bobulinksi FBI FD-302 Interview Memorandum. This interview happened on October 23, 2020; Bobulinski went straight from the White House to self-report at the FBI. He repeatedly refused to let the FBI image his phones. It certainly doesn’t help Bobulinski’s credibility as a witness.

October 23, 2020 Exhibit 400B: Attachment Tony Bobulinksi FBI FD-302 Interview Memorandum.

November 2-9, 2020 Attachment 7: November 8-9, 2020, Emails Between James Robnett and Kelly Jackson, cc’ing Michael DePalma, George Murphy, and Gary Shapley, Subject: 1 page brief needed. The day after networks called the election for Joe Biden, the Deputy Chief of IRS-CI ordered the team to put together a one-page summary of the Hunter Biden investigation, to be delivered to him by Tuesday, November 10.

November 9, 2020 Attachment 8: November 9, 2020, Email from Kelly Jackson to Gary Shapley, cc’ing George Murphy, Subject: Recipient of the 1 pager. Effectively, the IRS team checked how far this would circulate before drafting.

~November 9, 2020 Attachment 9: Sportsman Investigation, IRS CI One-Pager. This appears to be a draft, not the final, as there are inline questions and answers. This provides a good summary of where the investigation was, notes that the FARA investigation pertained to CEFC (and that investigators planned no overt steps). It also says that the plan was to do a consent search of the storage facility (and a residence, though it’s not clear which one), which puts the later dispute in context.

December 8, 2020 Exhibit 401: December 8, 2020, Transcribed Interview of John Robinson Walker.

December 8-9, 2020 Exhibit 204: December 8-9, 2020, Emails Between Joseph Ziegler, Lesley Wolf, Mark Daly, Carly Hudson, Jack Morgan, cc’ing Christine Puglisi and Gary Shapley, Subject: Storage Location Warrant. The discussion returns to a warrant for the storage facility outside of DC (in VA). Ziegler says he wants to execute it the following week. Wolf tries to explain that there will be too many approvals required and heavy filter requirements because the facility is in the Fourth Circuit.

December 10, 2020 Attachment 10: IRS CI Monthly Significant Case Report, Subject Name: Robert Hunter Biden, December 2020. This periodic report (Shapley only provided two, raising questions about whether there were others) includes the most substantive description of how the investigation was predicated off sex workers. Shapley bitches about Wolf forgoing the approvals and instead applying the subpoena to the storage facility (without noting that the initial plan was to do a consent search). He says that the only viable charges at that point were tax charges (meaning the SDNY FARA charges didn’t flesh out). This report also notes the election meddling allegations. Shapley also bitches that prosecutors aren’t responding to Congressional inquiries, a totally inappropriate stance, one he would repeat in a later report. He blames the December 2020 leak on DOJ, with no explanation. Unclear whether this really is dated December 10, before the December 11 call with Wolf.

December 11, 2020 Exhibit 205: Joseph Ziegler’s Notes re: Phone Call with Lesley Wolf About the Storage Unit Warrant. The notes of this call actually debunks several things Ziegler has claimed. Wolf notes that the normal way to interview Hunter would be to call his lawyers, but she worked hard to go through just Secret Service. She also notes that all lawyers involved agreed subpoenaing for the documents was the appropriate thing to do.

December 14, 2020 Attachment 11: December 14, 2020, Emails Between Kelly Jackson, George Murphy, and Gary Shapley, Subject: SM – call with DFO today. This escalated matters on the facility to Deputy Commissioner. At that point, one of the IRS people even knew how a taint would work after a search.

December 15, 2020 Attachment 12: December 15, 2020, FBI Electronic Communication, Title: Attempted Interview: Hunter Biden 12/08/2020. The 302 reflecting the non-interview of Hunter. Slightly over two hours later, Hunter’s lawyers contacted the FBI.

January 26, 2021 Exhibit 315A: January 26, 2021, Emails Between Joseph Ziegler, Stefania [redacted], and Carly Hudson, Subject: Can you send me the filter terms that have been used for Relativity? For some reason, Ziegler included these filter terms, which will be very helpful to Hunter’s lawyers. Notably, there were two sets of filters: tax and FARA, which may explain the source of Ziegler’s frustration that they didn’t get all results. At that point FARA was exclusively focused on Ukraine.

Exhibit 315B: Appendix A, Filter Keywords for Google Email.

Exhibit 315C: Appendix A – Laptop, Filter Keywords for Laptop Filter.

Exhibit 315D: Appendix A, Filter Keywords for Laptop FARA Filter.

February 5, 2021 Attachment 13: February 5, 2021, Emails Between Joseph Ziegler, Lesley Wolf, Carly Hudson, Joshua Wilson, Susan Roepcke, Michelle Hoffman, Antonino Lo Piccolo, Christine Puglisi, Stefania Roca, Michael Dzielak, Matthew McKenzie, cc’ing Joseph Gordon and Gary Shapley, Subject: Agenda 2/5 Meeting @ 12:30PM. This reflects Wolf and other lawyers briefing seemingly more than one AAG (unclear whether this is Acting, or Assistant, since no one was confirmed yet). Shapley was put out that NSD asked to be briefed on the tax side of the case.

April 27, 2021 Exhibit 1E: Transcript of Recorded IRS CI Interview with Jeffrey Gelfound, re: Hunter Biden Representation Letter and Discussion of Hunter Biden 2014 Tax Return. A fragment of an interview with Hunter’s accountant regarding a representation letter signed 3 months after the initial representation. Gelfound really didn’t seem as worked up about it as the IRS.

April 27, 2021 Exhibit 1F: Transcript of Recorded IRS CI Interview with Jeffrey Gelfound, re: Alleged Gulnora Deduction. The part of the Gelfound interview regarding how the sex worker came to be deducted.

April 27, 2021 Exhibit 1J: Transcript of Recorded IRS CI Interview with Jeffrey Gelfound, re: Hunter Biden’s Tax Payments. Gelfound suggested that the payments with a lien would be paid by Kevin Morris first, possibly because of publicity.

May 2021 Attachment 14: IRS CI Monthly Significant Case Report, Subject Name: Robert Hunter Biden, Month/Year of Report: May 2021. This notes the 2021 expiration of the 2014 tax year. It states that FBI is not sold on charging decision. It says FBI is actively involving FARA. And it claims there are campaign finance violations (pertaining to Kevin Morris paying off Hunter’s taxes), which Wolf wanted nothing to dø with, in part to avoid PIN involvement. She stated that 2014 could not yet be proved beyond a reasonable doubt, which is what she wanted them to focus on.

June 14, 2021 Exhibit 1G: Interview excerpt of Gulnora. This is the interview with the sex worker payments to whom Hunter deducted. She appears to have ties to the overseas escort service, so these payments could be the ones that triggered the entire investigation. Marjorie Taylor Greene misrepresented this interview in her campaign to turn Hunter into a sex trafficker.

September 9, 2021 Exhibit 208: September 9, 2021, Email Between Joseph Ziegler, Lesley Wolf, Stefania Roca, cc’ing Carly Hudson, Jack Morgan, Mark Daly, Christine Puglisi, Michelle Ann Hoffman, Susan Roepcke, and Joshua J. Wilson, re: Frustrations with Interview Delays. Ziegler complains that some interviews with sex workers have to be put off because DOJ Tax is still approving, among other things, a subpoena for Hunter’s lawyer George Mesires.

September 10-24, 2021 Attachment 15: September 10-24, 2021, Emails Between Gary Shapley and Jason Poole, Subject: Quick Call. Shapley’s own supervisor was blowing him off too, but he did follow-up twice to complain about approvals.

September 20, 2021 Exhibit 209: September 20, 2021, Emails Between Mark Daly and Joseph Ziegler, Subject: Re: email sent to mgmt with list of 10 [redacted]. Mark Daly gets involved and seems to move these forward.

September 20, 2021 Attachment 2: September 20, 2021, Emails Between Joseph Ziegler, David Denning, Christine Puglisi, Darrell Waldon, and Gary Shapley, Subject: Travel. Here Ziegler lashes out at his own supervisor, who suggests he send a “collateral” to do interviews in LA, rather than doing them himself. Contrary to wanting to go overt in the past, he claims he is trying to keep things quiet. Ziegler writes that this is “a case I’ve worked with very little problems and only support from my management, you’re making it hard for me to do my job” (though he may have only been referencing the IRS side).

September 20, 2021 Attachment 3: September 20, 2021, Emails Between Joseph Ziegler, David Denning, Christine Puglisi, Michael Batdorf, and Gary Shapley, Subject: Travel. Ziegler escalates to Mike Batdorf. He notes, “I don’t want to put some details in this email” and also says he’s only cc’ing Shapley “because I’ve briefed him on what has happened and because he’s been my management since day 1,” which is of course false.

September 22, 2021 Exhibit 506: September 22, 2021, Emails Between Justin Cole, James Lee, James Robnett, Michael Batdorf, Darrell Waldon, and Joseph Ziegler, Subject: Sensitive Case Heads Up. CNN reached out to IRS and said they had a recent witness saying the case was almost wrapped up, claiming to having a Hunter email saying that all this would go away when his dad became President, claiming there was a plea deal. Batdorf gets the question, sends it to Ziegler, he asks if he can share with the lawyers. Batdorf asks not to share the CNN side, even though they regularly share media reports. Ziegler reports back that Wolf said no plea had been offered.

September 20-23, 2021 Exhibit 507: September 20-23, 2021, Emails Between Joseph Ziegler, David Denning, Christine Puglisi, Michael Batdorf, and Gary Shapley, Subject: Travel. Batdorf follows up again and Ziegler says “It seems to have been a miscommunication from my senior management. … I had a significant amount of trust in my prior management, and for some reason, that has gone away.”

November 16, 2021 Exhibit 1H: IRS CI Memorandum of Interview with Jeffrey Gelfound on November 16, 2021.J

November 23, 2021 Exhibit 402: John Robinson Walker FBI FD-302.

December 20, 2021 Exhibit 200: December 20, 2021, Email from Lesley Wolf to Mark Daly, Jack Morgan, Carly Hudson, Matthew McKenzie, Joseph Ziegler, Christine Puglisi, Antonino Lo Piccolo, Susan Roepcke, Michelle Ann Hoffman, Michael Dzielak, Stefania Roca, Joseph Gordon, and Joshua Wilson, Subject: Thank you! Wolf gives extra credit to Ziegler for all his work.

January 12, 2022 Attachment 16: Notes from January 12, 2022, Sportsman Call. Wolf gives good legal reasons not to pursue the campaign finance investigation, notably that the law is uncertain and the facts are even more attenuated here than they were for John Edwards. She doesn’t want to involve PIN because it would add another level of approval.

Janaury 27, 2022: Prosecution Memo. As described in Shapley’s testimony, this document is what goes through a series of approval processes.

February 15, 2022 Attachment 17: February 15, 2022, Email from Gary Shapley to Darrell Waldon, cc’ing Lola Watson, Subject: For Review/Approval: Sensitive T26 Prosecution Recommendation – SPORTSMAN – SA Ziegler. This was Shapley’s rebuttal to CT’s non-concur on prosecution, based on Hunter’s addictions. Though Shapley (and especially Ziegler) has elsewhere stated clearly that Hunter was totally incapacitated in this period, Shapley now claims, “the universe of his conduct clearly indicated he was lucid during his periods of insobriety and therefore a blanket lack of willfulness defense to the pattern of conduct is not reasonable nor logical.”

May 13, 2022 Attachment 18: May 13, 2022, Email from Gary Shapley to Michael Batdorf and Darrell Waldon, which Gary Shapley Forwarded to Joseph Ziegler and Christine Puglisi, Subject: Sportsman – 3rd DOJ Tax – Taxpayer Conference Delayed. Because of a delay in the tax conference at which the prosecution recommendation would be presented, Shapely pitches briefing Jason Poole and David Weiss on it in advance.

June 14-15, 2022 Exhibit 314: IRS CI Presentation re: Sportsman Investigation “Robert Doe,” Tax Summit, June 14-15, 2022. This is the slide deck presenting the case. Most of it — three pages — describe spin-off investigations. It shows the main remaining steps were to establish venue somewhere besides Delaware and get discovery production; at this moment, Shapley was refusing to turn over discovery production to DOJ.

June 30, 2022 Exhibit 1K: June 30, 2022, Email from Matthew Salerno to Mark Daly, Lesley Wolf, Carly Hudson, Jack Morgan, cc’ing Chris Clark, Brian McManus, and Timothy McCarten, re: 2018 Tax Defenses Proffered, wh ich Mark Daly Forwarded to Joseph Ziegler, Michelle Ann Hoffman, Christine Puglisi, and Michael Dzielak. This is Mark Daly forwarding Hunter’s lawyers’ rebuttal on some of the 2018 deductions, explaining while none of Hunter’s efforts to develop businesses worked, he was attempting. Ziegler has claimed there’s contrary evidence (from James Biden) in the record, but none of that is definitive and James Biden testified his memory wasn’t great on the matter.

June 21-28, 2022 Exhibit 201: June 21-28, 2022, Emails Between David Weiss, Joseph Ziegler, and Gary Shapley, cc’ing Lesley Wolf, Carly Hudson, Jack Morgan, and Mark Daly, Subject: Sportsman Request. After thanking Ziegler for all his work, Weiss asks IRS to have a revenue agent rerun all the loss numbers for 2014 and 2015. He asks for that, first, because that’s what is normally done, and second, because, “at trial we are going to need a testifier on this issue and that testifier can’t be Joe.” While Ziegler ultimately complied with Weiss’ request, Ziegler first appears to have redone the analysis himself. This email will give Hunter’s attorney cause to question the revenue analyst about Ziegler’s role in these numbers, if this ever gets charged.

July 29, 2022 Attachment 19: Notes from July 29, 2022, Sportsman Call. This includes details of the state of the investigation, including mentions of approval for a new prong of FARA investigation, with references to SDNY (CEFC) and Romania. The outstanding witnesses include George Mesires and family members, including James Biden (and possibly Hallie Biden, though that’s redacted), though an August 18 email lists Mervyn Yan among those left to be interviewed. Wolf clearly tells the team that if they don’t indict by September, it’ll be after November. She clearly says that prosecution decision will be collaborative with DOJ Tax. She clearly says she’s not inclined to toll the 2014 and 2015 tax years ago. In short, she clearly communicates, in July, all the things that the IRS agents claim were surprises in October.

August 5-8, 2022 Exhibit 503: August 5-8, 2022, Emails Between Joseph Ziegler and Lesley Wolf, Subject: Meeting with David. Wolf sets up an August 16 meeting that it appears Ziegler requested, at which only Weiss will be present from DOJ. She requests he run numbers on an early undetermined issue. Ziegler says he’s working with revenue agent — the one Weiss asked to involve in June — on that. Wolf is again warm with Ziegler.

August 11, 2022 Exhibit 501: August 11, 2022, Emails Between Mark Daly, Joseph Ziegler, Christine Puglisi, Michael Dzielak, Michelle Ann Hoffman, Susan Roepcke, cc’ing Jack Morgan, Carly Hudson, and Lesley Wolf, Subject: Meeting. An internal IRS meeting about charging decisions that would precede the meeting with Weiss.

August 12, 2022 Exhibit 502: Calendar Invitation, Subject: Sportsman – Call re Charging, Organized by Mark Daly, Required Attendees: Michael Dzielak, Michelle Ann Hoffman, Susan Roepcke, Jack Morgan, Carly Hudson, Joseph Ziegler, and Christine Puglisi, Scheduled for August 12, 2022. The tax meeting on charging decisions.

August 15-18, 2022 Attachment 4: August 15-18, 2022, Email Between Gary Shapley, Michael Batdorf, and Darrell Waldon, Subject: Sportsman Update. Shapley telling his supervisors that Weiss was still not inclined to charge 2014 and 2015. One of his complaints is that if 2104 and 2015 weren’t charged, it would take the Burisma stuff off the table, which doesn’t sound like a tax decision. He’s still worried about not collecting that revenue, though the revenue is not that much (even if you believe him about what was owed). He claimed that Weiss mocked CT’s non-concurrence, but DOJ Tax does seem to side with not charging some of this. Shapley also claimed that the reason he was only learning venue on CA was through lack of transparency, except that’s totally consistent with what Wolf had said earlier: You decide charges first, then venue.

August 15-18, 2022 Attachment 20: August 15-18, 2022, Emails Between Gary Shapley, Michael Batdorf, and Darrell Waldon, Subject: Sportsman Update. This appears to be a dupe.

August 18, 2022 Exhibit 211: August 18, 2022, Email from Mark Daly to Joseph Ziegler, Michael Dzielak, Michelle Ann Hoffman, Christine Puglisi, Lesley Wolf, and Carly Hudson, cc’ing: Jack Morgan, Jason Poole, and John Kane, Subject: Going forward. At this point, the three remaining interviews were Mesires, Merv[y]n Yan, and James Biden.

August 25, 2022 Attachment 21: August 25, 2022, Emails Between Garret Kerley and Lesley Wolf, cc’ing Joseph Ziegler and Mark Daly, Subject: Case Coordination. The FBI SSA (who may have replaced Joe Gordon) complains they’re not communicating enough between meetings and asks to start an email chain. Wolf asks him to stand down until they can meet — clearly an effort to avoid creating discoverable information. Shapley turns it into a Memo for his files.

September 20 – November 8, 2022 Attachment 29: September 20, 2022, Emails Between Gary Shapley, David Weiss, and Darrell Waldon, Subject: SM Meeting – Management. On September 20, Shapley asks for a quick call. Weiss responds that he would set up a meeting/call for updates in near term (what would end up being the October 7 meeting). Then on November 8, after the prosecution meeting is canceled, Shapley attempts to set up a meeting in December. Shapley then writes back on November 8 saying the FBI can’t make it on December 2, so asks Weiss to confirm that December 5 would work.

September 22, 2022 Attachment 22: Notes from September 22, 2022, 2:30PM, Conversation, at which Lesley Wolf and Mark Daly are Present. Shapley notes that Wolf and Daly both joined late but doesn’t say how late. He describes that the US Attorney (whom he refers to as “her” but has to be a reference to Martin Estrada, who was just confirmed on September 19) has only been sworn in and will need time to get up to speed. DOJ Tax also wanted to defer the charges until after the election. And DE’s finance guy had a number of remaining questions.

September 22, 2022 Attachment 23: September 22, 2022; 3:33PM ff, Email from Gary Shapley to Michael Batdorf, Subject: Conversation with Batdorf Michael T. Shapley texts Batdorf, then emails the texts, complaining about the decision to wait until after the election.

September 22, 2022 Attachment 5: September 22, 2022, 5:28 PM Email from Gary Shapley to Darrell Waldon, Lola Watson, and Michael Batdorf, Subject: SM Update. Shapley tells his supervisors that Wolf said they wouldn’t charge until after the election. Shapley complains that, “the statement is inappropriate let alone the actual action of delaying as a result of the election.” He claims ther are other items (which he doesn’t lay out) “that are equally inappropriate,” probably that they weren’t going to charge the gun charge in October. Shapley was told months ago about this, but is wailing now.

September 22, 2022 Attachment 24: September 22, 2022, Email from Gary Shapley to Michael Batdorf, Darrell Waldon, and Lola Watson, Subject: SM Update. This appears to be a dupe, with the news he had a doctor’s appointment redacted.

September 21-October 6, 2022 Attachment 25: September 21-October 6, 2022, Emails Between Shawn Weede, Ryeshia Holley, and Gary Shapley, cc’ing Garret Kerley and Lesley Wolf, Subject: Call on Charging Timeline. This is a thread between Shawn Weede, Ryeshia Holley (whose name the FBI tried hard to keep obscure), Gary Shapley, about setting up the meeting he wanted. Because he was in the Netherlands the last week of September they instead waited until he returned. Shapley sent out his list of agenda items, showing clearly that he came into the October 7 meeting with an agenda — listing “1. Special counsel 2. election deferral comment – continued delays 3. venue issue”. — and a wildly mistaken understanding of how Special Attorney status works. At 4:34PM, two hours after the WaPo story posted, she says the meeting will include, “Anything further that develops by tomorrow.”

September 21 – October 6, 2022 Attachment 1: September 21-October 6, 2021, Emails Between Shawn Weede, Ryeshia Holley, Gary Shapley, cc’ing Garret Kerley and Lesley Wolf, Subject: Call on 2 Timeline. This shows the last two emails to the earlier thread.

September 28-29, 2022 Exhibit 504: September 29, 2022, Emails Between Joseph Ziegler, Darrell Waldon, and Gary Shapley, cc’ing Lola Watson and Michael Batdorf, Subject: Sportsman. Darrel Waldon writes to note he requested a meeting with the US Attorney’s office. Ziegler notes he’s awaiting information about CDCA’s decision on charging 2017-2019. Hours later, Waldon asks him to call his cell. Seemingly after that call, Ziegler responds that, “we also need to request the presentation of 2014 and 2015 to the criminal chief / US attorney in DC.” This seems to be inconsistent with past claims about when and how closely DC USAO reviewed this case.

September 29, 2022 Exhibit 401: IRS CI Memorandum of Interview with James Biden on September 29, 2022. Ziegler has pointed to this interview — “James B was not sending RHB any deals while he was out in California.  … conversations were about getting RHB well at this point and not about business” — as proof that Hunter’s lawyers were lying about his attempts to do business in 2018; yet Hunter’s uncle made clear that he kept trying to engage him and also noted that his memory was not all that clear. The interview also raises questions about Tony Bobulinski’s motives and credibility (as Rob Walker already had). The interview timing is as important as anything else — Shapley went on a tear about the timing of charging before this key interview was even done.

October 6, 2022 Attachment 26: October 6, 2022, Emails Between Gary Shapley, Michael Batdorf, and Darrell Waldon, Subject: Sportsman. After responding to Holley, Shapley alerts his supervisors of the Devlin Barrett story that he would later claim he didn’t know where it was published, noting that it is likely to come up at the meeting the next day. He identifies that the leak was “purportedly from the ‘agent’ level, reveals he spoke with the IRS press person about it, and stated, “I have no additional insight that is anything but a rumor.” This marks the third or fourth inconsistent representation of Shapley’s knowledge of the leak.

October 6, 2022 Exhibit 505: October 6, 2022, Emails Between Joseph Ziegler and Carly Hudson, Subject: Sportsman Uncle question. One of the AUSAs tells Ziegler that Weiss asked about something Ziegler raised, and he states that DOJ-Tax didn’t expect the case to be indicted until 2023, as they were still working on approvals. Hudson sends the email at 10:07AM; Ziegler responds at 6:51PM. I find it exceedingly unlikely Shapley did not also know that the case would not be indicted until 2023.

October 7, 2022: Handwritten notes. As noted these notes show that Shapley misrepresented what David Weiss said and introduced the DC USAO review that would be mooted by the decision not to charge 2014 and 2015, something Shapley had been alerted to months earlier.

October 7-11, 2022: Shapley to Darrell Waldon. The original email Shapley shared, which makes it clear the meeting was dominated by the leak.

October 7-11, 2022 Attachment 6: October 7-11, 2022, Email Between Gary Shapley, Michael Batdorf, and Darrell Waldon, Subject: Sportsman Meeting Update. This adds Mike Batdorf’s response to both Shapley and Waldon, 3 hours after Waldon said he’d handle the referral to TIGTA.

November 7, 2022 Attachment 27: November 7, 2022, Notes, Subject: Telephone Call from FBI Special Agent Mike Dzielak and IRS-CI Case Agent Joe Ziegler. A 10-minute call in which an FBI Special Agent discusses with Shapley and Ziegler that DE USAO was asking for management level emails. Dzielak suggests that the FBI was balking, in the same way that Shapley still was. Shapley offered up that this was proof that DE USAO had no intention of charging, which is utterly debunked by the fact that they had made this request once before (he says in April-May here, but in his House Ways and Means testimony he said it was in March). There’s no mention of the leak.

November 8-10, 2022 Attachment 28: November 8-10, 2022, Emails Between Gary Shapley and Ryeshia Holley, Subject: Next Meeting in Delaware. This reflects Shapley’s immediate effort to schedule a December meeting after the November prosecution meeting was canceled. One reason he did so was because of the request for his own emails.

December 13, 2022: Shapley email to Michael Batdorf. This is the email where Shapley asked Batdorf to ask him if he had any questions about the emails that got turned over.

December 13-16, 2022 Attachment 30: December 13-16, 2022, Emails Between Gary Shapley, Michael Batdorf, and Darrell Waldon, Subject: Meeting at Del USAO Today. Shapley emails Batdorf and Waldon to tell them that prosecutors and the FBI had an all-day meeting in Wilmington. Waldon asks if anyone from Tax participated.

January 6, 2023 Attachment 7: January 6, 2023, Notes, re: Call between Gary Shapley and Michael Batdorf on Whistleblowing. Shapley memorializes an either 8- or 13-minute call with Mike Batdorf, alerting him that on January 4, he lawyered up with “whistleblower” counsel. He gave a weird pitch (including that he would criticize the IRS, but that the IRS could boast that it was an IRS agent who “came forward.” Shapley claimed he would attend to 6103 and 6e matters he has not — including getting approval before sharing. He specifically left out the Senate Finance Committee. And he admitted that he expected DOJ to make “nefarious” allegations against him but hoped the IRS would support him. Batdorf said he hadn’t heard of any allegations.

January 20, 2023 Attachment 8: January 20, 2023, Emails Between Gary Shapley, Michael Batdorf, Darrell Waldon, and Lola Watson, Subject: Discussion – Sportsman. In the guise of finding out what was expected of him, Shapley claimed that FBI investigators had been brought back on the Hunter Biden case (which he learned via Ziegler).  He also noted that a third FBI Agent on the team retired before mandatory retirement. Waldon corrects Shapley that the FBI agents met with DE USAO on other issues, but only inquired about Hunter Biden.

January 25-February 10, 2023 Attachment 9: January 25-February 10, 2023, Email Between Gary Shapley and Michael Batdorf, Subject: For Review/Approval: Administrative Leave Request for Protected Whistleblower Activities – Shapley. Shapley asks Batdorf for paid leave for meetings, including with Congress, months before any overt meetings with Congress happened (suggesting he may have met with Grassley). Batdorf not only gives him leave but offers to pick up his work to enable it. Shapley offers to document with whom he was meeting (which given that this request preceded most overt outreach by months, would have been really helpful), but Batdorf says that’s not necessary.

April 13, 2023 Exhibit 212: April 13, 2023, Email from Joseph Ziegler to Lola Watson, cc’ing Gary Shapley, Subject: Sportsman. Ziegler updates Lola Watson (but not Kareem Carter), about meetings Hunter’s lawyers are having, including with Brad Weinsheimer (which leaked). He claims, without evidence, that Weiss was responding to the Merrick Garland testimony. And he addresses two investigations (which involves someone whose taxes would have implications for Hunter Biden — possibly Kevin Morris, would be consistent with Ziegler’s testimony) from which his team has been excluded.

Attachment 31: May 15, 2023, Notes from Conference Call with Kareem Carter, Lola Watson, Gary Shapley, and Joe Ziegler, Re: Sportsman. Memorialization of 17-minute call on which Kareem Carter took the International Tax team off the Hunter Biden case. Some of Shapley’s claims (such as that he documented complaints going back ot June 2020) are not substantiated in the emails released. And he was downright insubordinate on the call. Importantly, his memorialization does not reveal that Ziegler was not invited on the call, and in fact falsely suggests that Ziegler received an invitation to the call.

May 18, 2023 Exhibit 213: May 18, 2023, Email from Joseph Ziegler to Douglas O’Donnell, Daniel Werfel, James Lee, Guy Ficco, Michael Batdorf, Kareem Carter, and Lola Watson, Subject: Sportsman Investigation-Removal of Case Agent. Joseph Ziegler’s email in which he acknowledges breaking chain of command to complain about his removal.

The post The Timeline of the Hunter Biden Investigation Doesn’t Support Attacks on Lesley Wolf appeared first on emptywheel.

Over forty years ago, I voted to make Dianne Feinstein a Senator. Multiple news outlets report that she has passed away, a Senator to the end.

I was only her constituent for a matter of months before I left the state. But her influence on US policy — good and bad — has been national in scope.

Amid what are sure to be many tributes, one part of her legacy deserves close focus: the SSCI Torture Report.

The US has still not fully atoned for the crimes it committed as part of an effort to gin up war on terror scares. It was just over a month ago, after all, that a judge threw out the post-torture confession of Abd al-Rahim al-Nashiri. It was just days ago that a different judge ruled Ramzi bin al-Shibh incompetent to stand trial. We’re still discovering that even after the torture, Khalid Sheikh Mohammed was deprived of legal counsel.

America’s crimes of torture remain very much unresolved, much less punished.

Dianne Feinstein wasn’t always right. But she used her tenure as SSCI Chair to ensure there was a document of the torture done in our name. That legacy deserves respect.

The post One of Dianne Feinstein’s Greatest Legacies: Documenting CIA’s Torture appeared first on emptywheel.

I’m reading my way through the documents from Gary Shapley and Joseph Ziegler that the House Ways and Means Committee released the other day.

While I have yet to read the tax-related documents closely, the others don’t help the evidence-free impeachment much, undoubtedly complicate David Weiss’ hopes of charging Hunter Biden on tax crimes, and probably give Abbe Lowell a stash of documents he would otherwise not have gotten, some of which show investigative sloppiness and potential evidentiary problems for any case Weiss does charge (again, some of which Lowell would otherwise never have gotten).

Plus, some of the documents undermine the Agents’ claims to be whistleblowers. The documents show they had advance notice of both Delaware’s decision to decline prosecution of the 2104 and 2015 tax years and of the timing of any prosecution. They show Shapley walked into a key October 7, 2022 meeting with a chip on his shoulder and an agenda entirely at odds with his knowledge of declination and timing. From that point forward, phantoms of Shapley’s paranoia, not facts, appear to have driven his actions.

For now, though, I want to point to two details that utterly destroy Shapley’s complaints about delays in 2020. It has always been the case that most of Shapley’s complaints about politicization (besides his own) pertained to events that happened under the Trump Administration. Indeed, that’s something that Jason Smith struggled to address at his own presser the other day: how events from 2020 could support the impeachment of Joe Biden.

But details in two documents Shapley sent in late 2020 reveal that during his entire media tour, Shapley has been withholding a key detail that make these complaints all the more ridiculous.

The first is what must be a draft (since it is not dated and includes editorial questions) one page summary of the investigation written for the IRS Deputy Commissioner around November 9, 2020. It explained (as other documents the IRS agents did too) that after the IRS got a Suspicious Activity Report regarding a UK porn site that wasn’t reporting income to US-based contractors, one of whom Hunter Biden had also paid as an escort, the IRS used that to start pulling Hunter’s tax returns, an initial predication that is going to be comedy gold in any opening arguments Abbe Lowell ever gives at a Hunter Biden trial. It also revealed (again, this gets mentioned in other documents) that there was a FARA investigation out of New York regarding Hunter’s ties to CEFC. Finally, the document attributed any pre-election guidance not just to David Weiss’ office, but also to DOJ Tax and the Deputy Attorney General’s office.

To date no proactive interviews have occurred as a result of guidance provided to the investigative team by the USAO in Delaware, DOJ Tax PDAG and the Deputy Attorney General’s office.

We’ve known of the Deputy Attorney General’s involvement since Shapley’s transcript was first released, which described that the guidance involved Richard Donoghue. Shapley has nevertheless blamed Weiss’ office for these delays ordered by Bill Barr’s top deputies, and Smith even blamed Lesley Wolf personally.

But the centrality of the DAG’s office in such delays is important background to a report filed on December 10, 2020 — which shows that its author (it’s not entirely clear who wrote this, but Shapley provided it) was upset that investigators weren’t improperly sharing information with Congress even then — attributes any delays in the investigation to concerns about election interference.

This investigation has been hampered and artificially slowed by various claims of potential election meddling. Even after the election, our day of action to go overt was delayed more than two weeks.

The memo clearly dismisses those claims, which suggests whoever wrote it thinks they know better than FBI counterintelligence investigators. But it also ignores someone else who knows better about known efforts by Russia to use Hunter Biden as a campaign prop: Donoghue. In February 2020, when he was US Attorney for EDNY, Bill Barr ordered him to serve as a gatekeeper for any investigation implicating Ukraine. This was a specific effort to prevent the SDNY investigation into Rudy Giuliani to pursue Rudy’s efforts to fetch dirt, including a laptop!!, from Andrii Derkach in December 2019.

But starting in July, Donoghue swapped places with Seth DuCharme, becoming the Principal Assistant Deputy Attorney General, where he proceeded to issue guidance to delay any overt investigative steps in the Hunter Biden investigation. In other words, the orders to delay overt steps until after the election would have involved someone who knew as well as anyone in government that the effort to exploit Hunter Biden’s relationship with Burisma involved a plot coordinated with known Russian agents.

But over the course of a four month media blitz, Gary Shapley — represented by people close to Chuck Grassley, who of late has been pushing this Russian information operation himself — suppressed the fact that DOJ had concerns, concerns that manifested in multiple Treasury sanctions afterwards, that the effort to focus attention on Burisma was orchestrated by Russia, Ukranian agents of Russia, and Donald Trump’s own efforts to solicit dirt whereever he could.

The post Gary Shapley Didn’t Tell Congress about Election Meddling Concerns appeared first on emptywheel.

Yesterday, Judge Tanya Chutkan denied Trump’s motion for her recusal.

Chutkan’s order was judicious, clinical, and never once responded to the ridiculous claims John Lauro made in his bid to remove a Black woman judge. In other words, it is a model of judicial temperament, and so will hold up under any appeal.

For example, rather than laying out how much video she had seen implicating Trump in the violence and lawlessness of January 6, Chutkan simply corrected the error Trump’s lawyers had made when they falsely claimed she had seen no video on which to base her comments in Chrstine Priola’s sentencing, and so (they insinuated) had formed opinions based on what she had seen on the news.

The statements at issue here were based on intrajudicial sources. They arose not, as the defense speculates, from watching the news, Reply in Supp. of Mot. for Recusal, ECF No. 58 at 4 (“Reply”), but from the sentencing proceedings in United States v. Palmer and United States v Priola. The statements directly reflected facts proffered and arguments made by those defendants. And the court specifically identified the intrajudicial sources that informed its statements.

[snip]

The court also expressly based its statements in Priola’s sentencing on the video evidence presented earlier in the hearing. Priola Sentencing Tr. at 11– 14, 29. Priola. The statements directly reflected facts proffered and arguments made by those defendants. And the court specifically identified the intrajudicial sources that informed its statements.

Here’s the proof, from the sentencing transcript Trump’s attorneys cited themselves, that prosecutors entered the video that Trump’s lawyers claimed they couldn’t find into evidence.

As we’ve discussed, I would like to play seven video clips which the government feels are the best evidence of the defendant’s conduct that day. The clips total about ten minutes. Each was an exhibit to the government’s sentencing memorandum. Before I play each clip, I’ll just preview a little bit about what each clip shows.

[Introduction of each of 6 videos, including notation that the videos were played.]

THE COURT: There’s no Exhibit 6. Is that right?

MS. ZIMMERMAN: No. That was a mistake, Your Honor.

THE COURT: Okay.

(Video played.)

[snip]

Does the Court have any questions about any of the videos?

THE COURT: No. Thank you.

Having established that the comments about which Trump complained arose in the course of her role as a judge, Chutkan described that she was obligated to directly address the bids that Robert Palmer and Christine Priola made for a downward departure because they were not as culpable as Trump.

To begin, the court’s statements reflect its obligation to acknowledge Palmer and Priola’s mitigation arguments on the record. As already noted, both defendants sought a lower sentence on the grounds that their culpability for the January 6 attack was lesser than that of others whom they considered to be the attack’s instigators, and so it would be unfair for them to receive a full sentence while those other people were not prosecuted. See supra Section III.A. The court was legally bound to not only privately consider those arguments, but also to publicly assess them. By statute, every judge must “state in open court the reasons for its imposition of the particular sentence.” 28 U.S.C. § 3553(c). For every sentence, the court must demonstrate that it “has considered the parties’ arguments,” Rita v. United States, 551 U.S. 338, 356 (2007), including a defendant’s arguments that their case involves mitigating factors that should result in a lower sentence, United States v. Pyles, 862 F.3d 82, 88 (D.C. Cir. 2017). That is what the court did in those two cases. A reasonable person—aware of the statutory requirement that the court address the defendant’s arguments and state its reasons for its sentence—would understand that in making the statements contested here, the court was not issuing vague declarations about third parties’ potential guilt in a hypothetical future case; instead, it was fulfilling its duty to expressly evaluate the defendants’ arguments that their sentences should be reduced because other individuals whom they believed were associated with the events of January 6 had not been prosecuted.

While Chutkan’s comment about what a “reasonable person” should know given sentencing obligations might be a dig at Trump’s lawyers’ claimed ignorance of this basic fact, it nevertheless adopts the standard for recusal: not what a defense attorney feigning ignorance might argue, but instead what a reasonable person might understand.

Chutkan similarly noted that Trump’s team had to adopt a “hypersensitive, cynical, and suspicious” in order to interpret her factual statements as if they necessarily addressed Trump himself.

But the court expressly declined to state who, if anyone, it thought should still face charges. It is the defense, not the court, who has assumed that the Defendant belongs in that undefined group. Likewise, for the sentencing hearing in Priola, the defense purports to detect an “inescapable” message in what the court did not say: that “President Trump is free, but should not be.” Id. at 2 (emphasis added). The court did state that the former President was free at the time of Priola’s sentence—an undisputed fact upon which Priola had relied for her mitigation argument—but it went no further. To extrapolate an announcement of Defendant’s guilt from the court’s silence is to adopt a “hypersensitive, cynical, and suspicious” perspective rather than a reasonable one. Nixon, 267 F. Supp. 3d at 148.

Again, this opinion should be rock solid in the face of appeal, even if it won’t impress those of “hypersensitive, cynical, and suspicious” disposition.

This opinion addresses what reasonable people should understand and believe. It certainly won’t persuade Trump’s groupies, because they are not reasonable people. But it soundly addresses the standard for recusal and the actual evidence before Chutkan.

The post “Reasonable Persons:” Trump’s Recusal Stunt Flops appeared first on emptywheel.

The Republicans have decided that the perfect time to kick off an impeachment is just before their own incompetence leads to a government shutdown, which will lead to millions of government workers and service members either getting laid off, or working without pay, will strain food support for poor families and limit food inspections, and will result in holdups for people traveling by air.

The GOP really does plan to launch a no-evidence impeachment while Rome burns.

Yesterday, House Ways and Means released another document dump from purported whistleblowers Gary Shapley and Joseph Ziegler. I’m wading through those now, but even a cursory review shows that Shapley makes claims that go beyond what his colleagues backed, at times delving into bad faith.

In advance of a hearing featuring Fox News pundit Jonathan Turley, Republicans released their justification for an impeachment inquiry.

It is nothing short of batshit insane.

That’s true, first of all, because they plan to impeach Joe Biden for actions his son took while Joe wasn’t even in government. One of their latest new fetishes is that in 2019, Hunter Biden used his father’s address as a permanent address and got legal financial transfers at it.

Again, much of this impeachment is about Joe Biden being a Dad.

Crazier still, the premise of this impeachment is that Hunter Biden traded on the family brand and he and his associates (including James Biden, but also a bunch of people who made far more money) made a paltry $24 million by doing so.

In other words, just days after a judge ruled that Trump and two of his sons had wildly inflated his own value — including by adding a brand premium to his properties!!! — continuing into the years he was President, Republicans want to impeach Joe Biden because business interests Joe Biden wasn’t part of tried to do that on a far, far smaller scale.

Republicans are impeaching Joe Biden because his son had business interests with a Chinese company, the most salacious interactions of which occurred the year after the Obama Administration, even though Trump’s own daughter benefited from her own family’s brand and her nepotistic job in the White House to obtain trademarks from the government of China during some of the same years.

The Chinese government granted 18 trademarks to companies linked to President Donald Trump and his daughter Ivanka Trump over the last two months, Chinese public records show, raising concerns about conflicts of interest in the White House.

In October, China’s Trademark Office granted provisional approval for 16 trademarks to Ivanka Trump Marks LLC, bringing to 34 the total number of marks China has greenlighted this year, according to the office’s online database. The new approvals cover Ivanka-branded fashion gear including sunglasses, handbags, shoes and jewelry, as well as beauty services and voting machines.

The approvals came three months after Ivanka Trump announced she was dissolving her namesake brand to focus on government work.

China also granted provisional approval for two “Trump” trademarks to DTTM Operations LLC, headquartered at Trump Tower on Fifth Avenue in New York. They cover branded restaurant, bar and hotel services, as well as clothing and shoes.

And Trump’s own tax returns — released after a years-long fight — revealed that in the same year Republicans are obsessing about Hunter over, 2017, Trump’s company made $17.5 in China, far more than Hunter made personally during this entire period.

Mr. Trump’s plans in China have been largely driven by a different company, Trump International Hotels Management — the one with a Chinese bank account.

The company has direct ownership of THC China Development, but is also involved in management of other Trump-branded properties around the world, and it is not possible to discern from its tax records how much of its financial activity is China-related. It normally reports a few million dollars in annual income and deductible expenses.

In 2017, the company reported an unusually large spike in revenue — some $17.5 million, more than the previous five years’ combined. It was accompanied by a $15.1 million withdrawal by Mr. Trump from the company’s capital account.

Republicans want to make the bread and butter of Trump’s corporate existence a High Crime and Misdemeanor.

Democrats should use this opportunity to show that Trump is the one who should have been under a five year tax investigation, Trump is the one who should be impeached for using his position in the White House to enrich himself, his daughter, and her spouse.

In an interview after yesterday’s House Ways and Means roll out, Richard Neal raised several problems with the impeachment inquiry. Notably, Ways and Means Chair Jason Smith — who was humiliated at his own press conference yesterday — has never made a 6013 request to the IRS, as Neal himself did in the protracted effort to get Trump’s tax returns. It’s not clear any of this — especially Shapley and Ziegler going back to get files from IRS servers after they have been removed from the investigation — is legal.

As families face severe financial crisis because of Republican incompetence, Kevin McCarthy, Jim Jordan, James Comer, and the humiliated Jason Smith are going to pursue an impeachment premised on the notion that Trump’s entire business model is a High Crime and Misdemeanor.

The post Republicans Plan to Declare Trump’s Entire Business Model a High Crime and Misdemeanor appeared first on emptywheel.

Yesterday, Judge Arthur Engoron ruled that Trump and his two sons have engaged in fraud since July 13, 2014, overstating the value of Trump properties by at least $812 million dollars and possibly as much as $2.2 billion.

The core of the scathing ruling — which imposed sanctions on his attorneys and ordered the dissolution of some of the properties — describes the fantasy world of Trump’s business valuations.

Exacerbating defendants’ obstreperous conduct is their continued reliance on bogus arguments, in papers and oral arguments. In defendants’ world: rent regulated apartments are worth the same as unregulated apartments; restricted land is worth the same as unrestricted land; restrictions can evaporate into thin air; a disclaimer by one party casting responsibility on another party exonerates the other party’s lies; the Attorney General of the State of New York does not have capacity to sue (never mind all those cases where the Attorney General has sued successfully) under a statute expressly designed to provide that right; all illegal acts are untimely if they stem from one untimely act; and square foot subjective.

That is a fantasy world, not the real world.

Engoran went one by one, describing the properties that Tish James had demonstrated Trump Organization had overvalued:

• Trump Tower Triplex: 200% inflation of the square footage of Trump’s own residence
• Seven Springs Estate: value inflated by 400%
• Trump Park Avenue: 64 to 700% inflation
• 40 Wall Street: $200 million overvaluation
• Mar-a-Lago: at least 2,3oo% overvaluation on Palm Beach’s assessment
• Aberdeen: overvaluation by £164,196
• TNGC Briarcliff: 300% inflation
• TTNGLA: 200% inflation

He described how Trump (and a purported expert Trump brought in to pitch Mar-a-Lago’s value) repeatedly defied objective value. There is no such thing as “objective” value; square footage is a subjective process (though Chris Kise did admit at oral arguments that it is actually an objective number); the value of MAL is based on a realtor’s “dream” of “anyone from Elon Musk to Bill Gates” to “Kings, emperors, heads of state” who might overpay to own Trump’s beach resort.

In response to the ruling, both failsons rushed to Twitter to complain that Judge Engoran used the Palm Beach assessment for Mar-a-Lago, which of course incorporates the promises not to turn the property into a residence, rather than the dream-casting of their expert.

In doing so, Eric may have confessed to tax fraud, given that Palm Beach has been taxing Mar-a-Lago as a as a social club rather than a private residence.

That’s sort of the point: When the Trump men’s fantasies butt up against objective reality, they simply claim they’ll break their contracts, maybe even the law, to find a way to fluff up their own value to match their delusions.

Which brings us to one of the most telling passages in Engoron’s ruling. He quotes Trump as saying that market value of all this doesn’t matter because the Saudis will happily pay whatever he demands.

The defenses Donald Trump attempts to articulate in his sworn deposition are wholly without basis in law or fact. He claims that if the values of the property have gone up in the years since the SFCs were submitted, then the numbers were not inflated at that time (i.e.; “but you take the 2014 statement, if something is much more valuable now — or, I guess, we’ll have to pick a date which was a little short of now. But if something is much more valuable now, then the number that I have down here is a. low number”) [citation omitted] He also seems to imply that the numbers cannot be inflated because he could find a “buyer from Saudi Arabia” to pay any price he suggests.10 [citation omitted]

10 This statement may suggest influence buying more than savvy investing.

This is their out. This is the out that Jared Kushner already pursued. This may be the underlying basis for Trump’s LIV golf tournament deal.

Trump confessed, in a sworn deposition, that if he can’t make objective reality match his own delusions, he’s sure the Saudis will bail him out.

An interesting service the Saudis are offering.

The post Donald Trump’s Fantasy Self Worth appeared first on emptywheel.

Among the most interesting stories I’ve read on Robert Menendez since his indictment is this story, from the day before the indictment.

I find it interesting for how much of the story NBC already had — but more importantly, details from NBC that don’t show up in the indictment. The story reports on two of three prongs that appear in the indictment: It provides passing coverage of the IS EG Halal financing (though offers few specifics of the Egyptian favors) and extensive coverage of the Fred Daibes relationship.

The NBC story actually attributes the Mercedes, which the indictment directly ties to Menendez’ intervention in the state prosecution of a Jose Uribe associate, to IS EG Halal (Uribe does have ties to Wael Hana’s company). NBC doesn’t mention Menendez’s alleged intervention in the state prosecution of Uribe’s associate. Of more interest, it also describes a “a luxury D.C. apartment” that may have come from Hana’s company which is not mentioned at all in the indictment.

The story notes IRS-CI’s involvement in the case (as did Damian Williams at his presser announcing the charges); there’s no sign of tax charges, yet, in the indictment, or for that matter, of campaign disclosure violations (something the NYT reporter who has followed this closely is focused on).

As noted, however, the NBC story focuses much more closely on the Daibes prong of the investigation. It describes witnesses being asked if Menendez offered Daibes to interfere in the federal prosecution against him.

Sources say witnesses are now testifying before that federal grand jury. Part of the investigation centers on the senator’s ties to Fred Daibes, a New Jersey developer and one-time bank chairman. Officials with the FBI and IRS Criminal Investigation want to know if Daibes or his associates gave gold bars to the senator’s wife, Nadine Arslanian — gold bars worth as much as $400,000.

At the time of the gift handoff, Daibes was facing federal bank fraud charges that could have landed him up to a decade in federal prison.

Sources familiar with the matter say federal prosecutors have been asking if Menendez offered to help support Daibes with his criminal case by contacting Justice Department officials about the case. If the senator did offer to act in exchange for expensive gifts, legal experts say that could be a crime.

“For purposes of the Federal Extortion Act, it makes no difference if the senator took an official act so long as he accepted the money and there was knowledge the money was in exchange for that official influence, even if he never carried out what he had promised he would do,” NBC Legal Analyst Danny Cevallos said.

The indictment does not describe such an offer. The closest thing it describes is this exchange, after the prosecution of Fred Daibes was continued, when Nadine told Daibes that Menendez was “fixated” on Daibes’ fate:

On or about December 23, 2021, the trial of DAIBES, which had previously been scheduled for January 2022, was adjourned for reasons related to the COVID-19 pandemic. Later that day, DAIBES texted NADINE MENENDEZ, a/k/a “Nadine Arslanian,” the defendant, and asked how ROBERT MENENDEZ, the defendant, who had recently sustained a shoulder injury, was doing. NADINE MENENDEZ responded that MENENDEZ was doing better having heard that the trial date was adjourned, and that MENENDEZ was “FIXATED on it.” DAIBES responded, “Good I don’t want him to be upset over it. This is not his fault he was amazing in all he did he’s an amazing friend and as loyal as they come. How is the shoulder is he sleeping. Let me know if I can get him a recliner it helped me sleep.” DAIBES thereafter provided a recliner to MENENDEZ.

There’s also an incident where Daibes and Menendez, together, yell at Daibes’ attorney for not being aggressive enough; that’s not a crime, and in fact Menendez will use it to claim he intervened because he cared, not because he was paid.

NBC’s description of Menendez’ contact with US Attorney Phil Sellinger’s office differs in fairly significant ways from the indictment. It cites sources claiming that Menendez never contacted Sellinger or his office.

Sources told News 4 there is no indication U.S. Attorney Philip Sellinger or his office were ever contacted by the senator — but the two men had been close, with Sellinger appointed to the position with the senator’s support, and Sellinger previously serving as a campaign fundraiser for Menendez.

According to the indictment, Menendez did. The indictment alleges that Menendez raised Daibes before supporting Sellinger for the nomination.

In that meeting, MENENDEZ criticized the U.S. Attorney’s Office for the District of New Jersey’s prosecution of FRED DAIBES, the defendant, and said that he hoped that the Candidate would look into DAIBES’s case if the Candidate became the U.S. Attorney. MENENDEZ did not mention any other case in the meeting. After the meeting, the Candidate informed MENENDEZ that he might have to recuse himself from the DAIBES prosecution as a result of a matter he had handled in private practice involving DAIBES. MENENDEZ subsequently informed the Candidate that MENENDEZ would not put forward the Candidate’s name to the White House for a recommendation to be nominated by the President for the position of U.S. Attorney.

And Menendez allegedly called Sellinger’s First AUSA, Vikas Khanna.

b. On or about January 21, 2022, MENENDEZ called Official-3 and asked the identity of Official-3’s First Assistant U.S. Attorney (“Official-4”). As a result of Official3’s recusal, Official-4 had supervisory responsibility over the prosecution of DAIBES.

[snip]

d. On or about January 24, 2022, DAIBES’s Driver exchanged two brief calls with NADINE MENENDEZ. NADINE MENENDEZ then texted DAIBES, writing, “Thank you. Christmas in January.” DAIBES’s Driver’s fingerprints were later found on an envelope containing thousands of dollars of cash recovered from the residence of MENENDEZ and NADINE MENENDEZ in New Jersey. This envelope also bore DAIBES’s DNA and was marked with DAIBES’s return address. In or about the early afternoon of January 24, 2022— i.e., approximately two hours after NADINE MENENDEZ had texted DAIBES thanking him and writing “Christmas in January”—MENENDEZ called Official-4, in a call lasting for approximately 15 seconds. This was MENENDEZ’s first phone call to Official-4. On or about January 29, 2022—i.e., several days after NADINE MENENDEZ had texted DAIBES, thanking him and writing “Christmas in January”—MENENDEZ performed a Google search for “kilo of gold price.”

[snip]

45. Official-3 and Official-4 did not pass on to the prosecution team the fact that ROBERT MENENDEZ, the defendant, had contacted them as described in the above paragraphs, and they did not treat the case differently as a result of the above-described contacts. In or about April 2022, FRED DAIBES, the defendant, pled guilty pursuant to a plea agreement that provided for a probationary sentence.

Frankly, I find this part of the indictment unpersuasive, not just because the evidence presented only ever ties Daibes’ payments to proximate acts, not to a specific quid pro quo, but also because it is not explained how this case went from imminent trial to a sweet plea deal in four months.

A cooperation agreement in this investigation might explain it, but there’s no hint of that, though NBC seems to agree with me that that would explain what we’re looking at.

So one reason I find the NBC piece interesting is it portrays that prosecutors were still trying to obtain proof that this interference was a quid pro quo on the eve of the indictment. And SDNY didn’t provide that evidence in the indictment.

Couple that with two other details.

First, there’s the widely mocked line in the Menendez presser, attempting to explain the large amounts of cash found at his home:

For thirty years, I have withdrawn thousands of dollars of cash from my personal savings account, which I have kept for emergencies, and because of the history of my family facing confiscation in Cuba. Now this may seem old-fashioned. But these were monies drawn from my personal savings account based on the income that I have lawfully derived over those thirty years.

This story is at best a partial explanation for the cash shown in the indictment, much less the checks from Daibes and the gold bars (though Menendez has treated some, if not all, of the gold bars as Nadine’s property).

But consider the utility of it. Most reporters didn’t note Menendez’ silence about the gold bars (Menendez said he’d address other issues at trial). And for less credulous supporters of Menendez, such an explanation is all you need to offer to win their continued support. As with Trump, for the kind of political support you need to try to fight this out, the explanation doesn’t have to be plausible, it just needs to exist.

More interestingly, there’s probably enough truth in the statement — some of the cash the FBI seized in the search last year likely did come from Menendez’ bank account, regardless of why he withdrew it — that if prosecutors attempt to use this video at trial, it could backfire. Prosecutors have called to seize all this cash in forfeiture.

Over $480,000 in cash—much of it stuffed into envelopes and hidden in clothing, closets, and a safe—was discovered in the home, along with over $70,000 in NADINE MENENDEZ’s safe deposit box. Some of the envelopes contained the fingerprints and/or DNA of DAIBES or his driver. Other of the envelopes were found inside jackets bearing MENENDEZ’s name and hanging in his closet, as depicted below.

[snip]

A sum of $486,461 in U.S. currency seized from the Englewood Cliffs Premises on or about June 16, 2022.

But there’s not a shred of evidence that they have the ability to tie all of it — or even most of it — to the specific quid pro quos alleged in the indictment, for which it has better evidence of gold bars as payment. It may come from crime, but if it does, it may not come from this crime.

Prosecutors alleged that all of this $486,000 ties to the crimes alleged in the indictment. If Menendez can prove that some of it doesn’t, then he can use that overreach to discredit the prosecution.

As such, the statement — as ridiculous as it has justifiably been treated — seems partly a taunt. Menendez seems quite confident that prosecutors can’t trace a good deal of this cash, certainly not to these specific crimes, even if they can trace it to Daibes.

Note that Menendez’ claims to care about Egyptian human rights includes a similar taunt, referencing a meeting he had directly with Abdel Fattah El-Sisi. Whether and how and which Egyptians, including Sisi, have evidence to support Menendez’s defense will be a topic of extended litigation. Imagine trying to litigate testimony from the Egyptian President? Similarly, Menendez may demand testimony from his (still) fellow Senators, who witnessed another interaction he had with Sisi.

Which brings me to Damian Williams’ presser.

One reason I’m struck by the NBC story is it suggested there was still some work before prosecutors would be ready to indict, and yet they obtained an indictment — an indictment that doesn’t map the Daibes corruption as closely as I assume they would like — the very next day. Since then, we’ve learned that SDNY unsealed the indictment without first waiting to arrest Wael Hana at the airport, as they did yesterday. It’s highly unusual to indict someone in a way that maximizes their opportunity to flee the country, unless you have good reason to believe they won’t do that.

Hana didn’t take that opportunity to flee.

The whole thing seems either rushed, perhaps in response to disclosures like NBC’s, or tactical, an effort to advance a larger investigation.

As Williams said in his presser,

This investigation is very much ongoing. We are not done. And I want to encourage anyone with information to come forward and to come forward quickly.

That’s a version of the statement Williams made (though nowhere near as forceful) in his first presser on the Sam Bankman-Fried arrest — “come see us before we come see you” — which preceded the announcement of cooperation pleas from two key SBF associaties the following week, at which Williams again invited cooperators to come foward: “we are moving quickly and our patience is not eternal.”

I may be alone in this judgement, but I don’t think SDNY has the Daibes side of these alleged corruption — by far the bulk of the money — at all locked down. The Daibes corruption was the topic of Menendez’ taunt about cash; he may be confident that prosecutors won’t succeed in doing so.

But Damian Williams, at least, seems to believe more is coming.

Update: I didn’t see this NBC report on an ongoing counterintelligence investigation until after I posted. Note that statutes of limitation on some of the allegations in the indictment (which started more than five years ago) would have expired.

The post The Still Ongoing Investigation into Where that Robert Menendez Cash Came From appeared first on emptywheel.

If you can believe John Paul Mac Isaac, the FBI did some incredibly bone-headed things after they obtained Hunter Biden’s laptop in December 2019. As he describes it in his book (which I read recently while stuck in a hospital awaiting foot surgery), on the very same day the FBI collected the laptop purported to belong to Hunter Biden, on December 9, 2019, someone named “Matt” told Mac Isaac they had tried to boot it up.

“Hi, my name is Matt,” said a voice I didn’t recognize. “I work with Agent DeMeo and Agent Wilson. Do you have a second? I have some questions about accessing the laptop.”

Confused, I responded, “Sure, what’s going on?”

“Did the laptop come with any cables or a charger? How can I connect the drive to a PC? When I plug it in, it wants to format the drive,” Matt said.

“PCs can’t natively read Mac-formatted disks. You will only be able to access the drive from another Mac.”

This is fairly common knowledge among most computer users, and I was surprised that any kind of tech person wouldn’t know it.

“Sadly, Hunter never left the charger or any other cables,” I went on. “I have a charger and everything you need back at the shop. You guys are welcome to it.”

I was feeling really uncomfortable. This Matt guy definitely didn’t seem to have the training or resources to be performing a forensic evaluation of the laptop. Hadn’t the whole reason for taking the laptop been to get it to a lab for proper evaluation and dissemination?

“Tell him we’re OK and we won’t need to go back to his shop,” Agent DeMeo said in the background. “We’ll call you back if we need to,” Matt said before hanging up.

[snip]

“Hi, it’s Matt again. So, we have a power supply and a USB-C cable, but when we boot up, I can’t get the mouse or keyboard to work.”

I couldn’t believe it—they were trying to boot the machine!

“The keyboard and trackpad were disconnected due to liquid damage. If you have a USB-C–to–USB-A adaptor, you should be able to use any USB keyboard or mouse,” I said. He related this to Agent DeMeo and quickly hung up.

Matt called yet again about an hour later.

“So this thing won’t stay on when it’s unplugged. Does the battery work?”

I explained that he needed to plug in the laptop and that once it turned on, the battery would start charging. I could sense his stress and his embarrassment at having to call repeatedly for help. [my emphasis]

To be sure, you can’t believe Mac Isaac.

His own story is riddled with questionable details and important discrepancies.

The most important discrepancy is his description of the laptop he turned over to the FBI, which he describes as a 2016 Mac, not the 2018 Mac identified by serial number.

I moved on to the last Mac, a thirteen-inch 2016 MacBook Pro. The drive was soldered onto the logic board. This one powered on but then would shut down. I suspected that there was a short in the keyboard or trackpad, and if I took it apart, I could at least get it to boot and possibly recover the data.

As I understand it, Mac Isaac’s claims that the hard drive was soldered onto the logic board is also inconsistent with the known details of the laptop shared with the FBI.

But there are important other discrepancies between the story Mac Isaac tells and the one the government tells. In his timeline of his interactions with the FBI, Mac Isaac gets the date for the actual handoff, December 9, correct, but other dates he uses differ from those that show up in Gary Shapley’s timeline. For example:

• Mac Isaac says that Agent Josh Wilson (who is mentioned in Shapley’s notes) reached out to his father on November 1; Shapley’s notes say that happened on November 3
• Mac Isaac says that Wilson called him on November 4; Shapley’s notes say that happened on November 6
• Mac Isaac says that Wilson came to his home on November 19; Shapley’s notes say that happened on November 7

These discrepancies aren’t all that important, legally. But Mac Isaac’s dates seem tailored to the impeachment proceedings going on in the same period, and so to laying a foundation for sharing the laptop with Rudy Giuliani.

A far more important set of discrepancies pertain to Mac Isaac’s description of what happened on December 9, 2019.

The blind computer repairman first describes that the second agent, Agent Mike DeMeo, called him to ask for the device identifiers that morning, before coming to the shop to pick up the device.

Agent DeMeo called around 9:30 a.m. It caught me a little off guard. The only other time we had communicated was shortly after our meeting almost three weeks earlier. He had asked me then to text him the timeline of my interaction with Hunter. I figured that he wanted something in writing showing the chain of custody—or it was an effort to trap me into writing something that could be twisted into a charge of lying to the FBI.

This time, he asked me to text him the model and serial number of the external drive and laptop. I explained that I hadn’t made it to the shop yet. “I need this information before we head over,” he insisted. “It’s important.”

“Give me thirty-five minutes,” I responded, then hung up. I finished getting ready and headed to the shop. After texting the numbers to Agent DeMeo, I waited in the shop with the blinds closed and the lights out, so as not to announce that the store was open. [my emphasis]

Shapley described that the FBI obtained and confirmed the device identifier before they ever met Mac Isaac, on November 6 (though perhaps Mac Isaac only referred to other identifiers needed for the subpoena).

Nevertheless, this discrepancy is important for a number of reasons, not least that if the FBI looked at all closely at the returns on a subscriber subpoena to Apple, it should have raised significant alarm that someone was trying to hack Hunter Biden. But if they didn’t obtain this information until the day they obtained the laptop, then they couldn’t have reviewed the subscriber data very closely in advance. That negligence might, in turn, amount to negligence in missing clear signs that the then former VP’s son was being hacked.

As Mac Isaac describes it, it was not until Agents arrived at his shop that they told him they were going to seize the laptop with a subpoena rather than imaging the laptop there at the shop.

Both agents arrived at my door about a half hour late. “Where’s the tech?” I asked, holding the door open.

“We have a change of plans,” Agent Wilson responded. “Can we go in the back?”

I led the agents to the back, and Agent Wilson placed his bag on the workbench. “

I have a subpoena here to collect the laptop, the drive, and all paperwork associated with the equipment,” he said, pulling out a collection of very formal and important-looking paperwork. “I’ll need you to sign it.”

When Mac Issac asked why they had changed their plan, he claims, lead Agent Josh Wilson deferred to Agent Mike DeMeo, who told him that they were taking the laptop back to a lab to image.

“You guys scared the shit out of me!” I exclaimed. “So why the change of plans? Don’t get me wrong; I’m grateful that you’re taking this stuff out of my shop.”

Agent Wilson looked over at Agent DeMeo, who was buried in his clipboard. “Ah, Mike?” he said. Agent DeMeo paused his writing and said, “We have a lab that takes these things and is better equipped than our field tech.”

Mac Isaac also claims that at that same meeting, DeMeo told him only to contact him, not Wilson.

“Tell them you keep abandoned equipment offsite, like a warehouse location,” Agent DeMeo answered, taking over. “Tell them it will take a day for you to check and they should call back the next day. Then immediately text me at my cell number. From now on, only communicate through my cell number. Not Agent Wilson, just me. We need to avoid communicating through, ah, normal channels. I’m sure you can understand. Text me and we will get the equipment back to you and deal with the situation.”

This communication works the opposite of the way you’d expect. Often, second agents are asked to take the stand, so you’d want them to have a clean digital trail. Here, the lead agent, Agent Wilson, was protecting his communications, whereas the second agent was not.

And then, as Mac Isaac tells it, that very same day, someone else, “Matt,” called using DeMeo’s phone, asking really embarrassing questions about how to access the laptop.

The claim that someone at the FBI was trying to boot up the laptop is alarming enough — though as I noted in July, there is some corroboration for the claim in Gary Shapley’s notes.

FBI determined in order to do a full forensic review a replacement laptop had to be purchased so the hard drive could be installed, booted and imaged.

[snip]

Josh Wilson stated that (while laughing) so whoever [people wanting to review the laptop] are they are going to have to buy a laptop to put the hard drive so they can read it.

Where Mac Isaac’s claims are totally inconsistent with the FBI claims, in a way that would cause grave legal problems for the FBI, is the date: Mac Isaac claims that the FBI was trying to boot up the laptop that same day, on December 9.

According to Gary Shapley’s notes, the FBI didn’t have approval to even get a warrant on December 9, much less have a signed warrant itself.

The FBI didn’t have a warrant to access the “Hunter Biden” “laptop” until December 13.

And yet, if you can believe Mac Isaac, the FBI was already trying to boot it up, perhaps irreparably altering its contents, three days before they got a warrant.

Featured image showing known dissemination of the “Hunter Biden” “laptop” by Thomas Fine.

The post “They Were Trying to Boot the Machine:” John Paul Mac Isaac Claims the FBI Really WERE That Incompetent appeared first on emptywheel.

Last week, Robert Costello’s law firm sued Rudy Giuliani — as they earlier successfully sued Steve Bannon for a far smaller amount earlier this year — for stiffing them on payments amounting to almost $1.4 million.

In a statement provided by a spokesman, Mr. Giuliani lashed out at Mr. Costello and the lawsuit, portraying it as an overly aggressive attempt to collect.

“I can’t express how personally hurt I am by what Bob Costello has done,” Mr. Giuliani said. “It’s a real shame when lawyers do things like this, and all I will say is that their bill is way in excess to anything approaching legitimate fees.”

Reached by phone, Mr. Costello initially declined to comment but fired back after hearing Mr. Giuliani’s statement, asking, “How can he take a personal affront when he owes my firm nearly $1.4 million?”

Mr. Costello also disputed the claim that the bills were excessive, saying that he billed his regular hourly rate and that Mr. Giuliani never complained about the cost until Davidoff Hutcher & Citron warned that it had planned to sue.

“He’s a little late to that party,” Mr. Costello said, adding, “it’s too late for that frivolous claim as he will find out in court.”

Mr. Giuliani, he said, “took the low road here because he is feeling desperate.”

In all, Mr. Costello’s firm has billed Mr. Giuliani $1,574,196, according to the lawsuit. Of that, Mr. Giuliani has paid only $214,000, the lawsuit said, most recently handing over $10,000 last week.

Rudy doesn’t have the money to pay Costello. This lawsuit can only serve to pressure Rudy to get Trump to pay up, something he has thus far refused to do.

In any case, Costello’s costs for enabling Rudy’s shenanigans may well grow, now that Hunter Biden has sued both of them for hacking his personal data.

The lawsuit largely parallels the lawsuit filed earlier against Garrett Ziegler — though the evidence that first Costello and then Rudy hacked the data is based on a different access claim. Hunter alleges (with merit) that Ziegler unlawfully accessed encrypted data that had been saved to Hunter’s iTunes account.

In this suit, the hacking claim appears to be two-fold: first, Costello’s demonstration to Olivia Nuzzi of how he accessed Hunter’s email account using Hunter’s own credentials.

24. Plaintiff has discovered (and is continuing to discover) facts concerning Defendants’ hacking activities and the damages being caused by those activities through Defendants’ public statements in 2022 and 2023. During one interview, which was published on or about September 12, 2022, Defendant Costello demonstrated for a reporter precisely how Defendants had gone about illegally accessing, tampering with, manipulating and altering Plaintiff’s data:

“Sitting at a desk in the living room of his home in Manhasset, [Defendant Costello], who was dressed for golf, booted up his computer. ‘How do I do this again?’ he asked himself, as a login window popped up with [Plaintiff’s] username . . .”3

By booting up and logging into an “external drive” containing Plaintiff’s data and using Plaintiff’s username to gain access Plaintiff’s data, Defendant Costello unlawfully accessed, tampered with and manipulated Plaintiff’s data in violation of federal and state law. Plaintiff is informed and believes and thereon alleges that Defendants used similar means to unlawfully access Plaintiff’s data many times over many months and that their illegal hacking activities are continuing to this day.

3 Andrew Rice & Olivia Nuzzi, The Sordid Saga of Hunter Biden’s Laptop, N.Y. MAG. (Sept. 12, 2022), https://nymag.com/intelligencer/article/hunter-biden-laptop- investigation.html.

I’ve been told that because of the way the data was stored, booting the hard drive up would update emails onto the hard drive, including any emails altered during the November 2019 Burisma hack. But using Hunter’s credentials — if that’s what Costello did — would be a CFAA violation unto itself.

Additionally, the complaint notes that both Costello and Rudy boasted about accessing Hunter’s camera roll.

26. For example, Defendant Costello has stated publicly that, after initially accessing the data, he “scrolled through the laptop’s [i.e., hard drive’s] email inbox” containing Plaintiff’s data reflecting thousands of emails, bank statements and other financial documents. Defendant Costello also has admitted publicly that he accessed and reviewed Plaintiff’s data reflecting what he claimed to be “the laptop’s photo roll,” including personal photos that, according to Defendant Costello himself, “made [him] feel like a voyeur” when he accessed and reviewed them.

[snip]

31. By way of further example, in an episode of the podcast “Louder with Crowder” in late 2022, Defendant Giuliani held up a laptop computer on air and announced: “This is the hard drive they’re on,” referring to data (e.g., photographs) he apparently carries around with him on a daily basis, presumably so that he can continuously access, tamper with and manipulate the data whenever and wherever he desires.

Hunter’s team may know that these photos would not have been available without a password.

Note, the complaint makes some interesting allegations about John Paul Mac Isaac’s own actions; I would be unsurprised if Hunter sues him next.

23. Following these communications, Mac Isaac apparently sent via FedEx a copy of the data he claimed to have obtained from Plaintiff to Defendant Costello’s personal residence in New York on an “external drive.” Once the data was received by Defendants, Defendants repeatedly “booted up” the drive; they repeatedly accessed Plaintiff’s account to gain access to the drive; and they proceeded to tamper with, manipulate, alter, damage and create “bootable copies” of Plaintiff’s data over a period of many months, if not years.

2. Plaintiff’s investigation indicates that the data Defendant Costello initially received from Mac Isaac was incomplete, was not forensically preserved, and that it had been altered and tampered with before Mac Issac delivered it to Defendant Costello; Defendant Costello then engaged in forensically unsound hacking activities of his own that caused further alterations and additional damage to the data he had received. Discovery is needed to determine exactly what data of Plaintiff Defendants received, when they received it, and the extent to which it was altered, manipulated and damaged both before and after receipt.

Mac Isaac admits in his book that the copy he made of the laptop he received was not a forensic copy.

As with Costello’s suit, the lawsuit against Rudy is drilling a dry hole. Rudy is broke, and even if Hunter prevailed, he’d be at the back of a long line of creditors at some time Rudy declares bankruptcy.

But the discovery is something else.

So, too, is Costello’s role in all that, which he may or may not be claiming is part of attorney-client privileged activities, a claim that would he impossible to sustain in light of the Nuzzi profile.

And, in the shorter term, these lawsuits provide basis to claim that DE USAO is pursuing Hunter for misdemeanor tax charges, while ignoring the way the President’s son was and continues to be serially hacked by his father’s opponents.

The post Hunter Biden Threatens to Make Robert Costello’s Dalliance with Rudy Giuliani Even More Costly appeared first on emptywheel.

As I predicted, John Lauro misrepresented the timing of prosecutors’ request for a limited gag on Trump’s violent speech. Lauro presents his response as if DOJ first asked to limit Trump’s violent speech on September 15 in docket entry 57, and not (in sealed form, to which Trump objected, on September 5) at docket 47.

President Trump respectfully submits this response in opposition to the prosecution’s motion to impose unconstitutional prior restraints on President Trump’s political speech. (the “Motion,” Doc. 57, seeking the “Proposed Gag Order,” Doc. 57-2).

Here’s the handy dandy annotated docket I did so NYT journalists could understand the true timing (even if they didn’t note their corrections once they did belatedly understand it).

One reason Lauro’s deceit about the timing of the motion — September 5 versus September 15 — matters is because he’s now falsely suggesting that DOJ only issued this request after Biden got a bunch of bad polling data.

At bottom, the Proposed Gag Order is nothing more than an obvious attempt by the Biden Administration to unlawfully silence its most prominent political opponent, who has now taken a commanding lead in the polls. Indeed, this very Motion came on the heels of adverse polling for President Biden.

To be sure, Lauro must recognize what rank bullshit this claim is, given that he doesn’t cite the polling in question (which probably is meant to invoke the outlier WaPo poll of this week). This is designed to work for the Federalist and Fox set, not for Judge Chutkan.

But the timing matters for another reason.

Probably because Lauro wants to set up a future argument balancing election-related speech against defendant-related restrictions, he suggests DOJ is doing this primarily to silence criticism of Jack Smith, and not to protect witnesses, prosecutors, and Judge Chutkan herself.

[T]he prosecution complains that President Trump’s political statements “undermine confidence in the criminal justice system,” which it asserts somehow justifies the Proposed Gag Order. Motion at 2, 6, 8, 15. The prosecution cites no authority in support of this bizarre claim. Nor can it. As the Supreme Court has repeatedly emphasized, “speech critical of the exercise of the State’s power lies at the very center of the First Amendment.” Gentile, 501 U.S. at 1034; New York Times Co. v. Sullivan, 376 U.S. 254, 273 (1964) (“Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations.”). This includes criticism of the Court and the Special Counsel.

When Lauro finally gets around to dealing with the violent threats Trump has issued, he ignores the bulk of the examples DOJ provided, instead focusing exclusively on the one Trump’s team had already addressed.

[N]o witness has suggested that he or she will not testify because of anything President Trump has said. To the contrary, witnesses appear eager to share their expected testimony with the media and will undoubtedly testify at a potential trial, if called to do so.7 Nor has any witness suggested that President Trump’s protected statements have “influenc[ed] [his or her] testimony,” as the prosecution baselessly suggests. Motion at 15.

This is entirely unsurprising, as President Trump has never called for any improper or unlawful action. Quite the opposite, the prosecution’s cited posts show that President Trump intends to redress the unfairness of this proceeding through legitimate means. This includes, for example, filing motions with the Court—a form of relief that President Trump has every right to pursue and talk about. This is a far cry from the type of “true threat” the prosecution would need to show to justify a prior restraint. Virginia v. Black, 538 U.S. 343, 360 (2003) (“Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”).8

Unable to identify any instance where President Trump uttered any threat, the prosecution points to others, claiming President Trump “knows that when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets.” Motion at 3. Again, the prosecution offers no evidence of any causal connection between his speech and the alleged unlawful acts of others to support this meritless claim.

7 Two “potential witnesses” the prosecution does not want President Trump speaking about, for example, are former Attorney General Bill Barr and former Vice President Mike Pence. Both have written books about their tenure with President Trump and the latter is currently running for president. See, e.g., Geoff Bennett, Bill Barr: Trump Committed a “Grave Wrongdoing” in Jan. 6 Case, PBS NEWSHOUR, Aug. 3, 2023. Neither shies away from a hearty public debate with President Trump. Both were at the very top of government and it is absurd to think that they would be intimidated by social media posts. Others the prosecution identifies as “harassed,” are likewise current and former government officials who have made politics, for all its discord and discourse, a large part of their lives.

8 The prosecution once again cites President Trump’s August 4, 2023, Truth Social post; however, as previously explained, Doc. 14 at 7–8 n.8, that post did not concern this case. See Nick Robertson, Trump campaign defends threatening social media posts as free speech, The Hill (August 5, 2023) (quoting a Trump campaign statement that “[t]he Truth post cited is the definition of political speech, and was in response to the RINO, China-loving, dishonest special interest groups and Super PACs, like the ones funded by the Koch brothers and the Club for No Growth.”).

In today’s environment, this Court could easily take judicial notice that “[t]he language of the political arena . . . is often vituperative, abusive, and inexact,” Watts, 394 U.S. at 708 (citations omitted), and even “very crude [or] offensive method[s] of stating a political opposition” are not true threats. Id.

Finally, the prosecution raised (and President Trump addressed), this same post in connection with its motion for a protective order. Doc. 14 at 7–8 n.8. Despite having ample opportunity to dispute President Trump’s explanation, including in a reply brief, Doc. 15, and at oral argument, Doc. 29, the prosecution chose not to do so. Now, the prosecution once again tries to revive this debunked position in support of its Motion. The Court should accord such unpersuasive arguments no weight. [my emphasis]

Lauro ignores the multiple cases, cited in prosecutors’ filing, where people told Trump directly that his incitement had ratcheted up threats against people like Jeff Duncan, Chris Krebs, and Ruby Freeman. He ignores prosecutors’ citation of Trump bragging about the way his followers respond to Trump.

As he acknowledged in a televised town hall on May 10, 2023, his supporters listen to him “like no one else.”

Perhaps more importantly, Lauro ignores something he has already ignored, in his reply to his own motion to recuse Tanya Chutkan.

As I noted, by filing a motion to recuse based off things Judge Chutkan said when January 6 defendants blamed Trump for their actions, Trump invited prosecutors to lay out the many more times defendants had done just that. Not only did they provide eight other examples where defendants already sentenced by Chutkan blamed Trump for their actions, DOJ laid out something that Robert Palmer said of his own actions on January 6: That he went to the Capitol “at the behest” of Trump and took action to prevent the certification because of the false claims Trump had made.

On December 17, 2021, the Court sentenced Robert Scott Palmer, an individual who, on January 6, 2021, after attending the former president’s remarks at the Ellipse and while wearing a “Florida for Trump” hat, “threw a wooden plank at” police officers; “sprayed the contents of a fire extinguisher at the officers until it was empty, and then threw the fire extinguisher” at them; and “assaulted another group of law enforcement officers with a 4-5 foot pole,” which he threw “like a spear at the officers.” United States v. Palmer, 21-cr-328, ECF 30, at 10, 2 (Govt. Sentencing Mem.); id., ECF No. 23, at 3 (D.D.C. Oct. 4, 2021) (Statement of Offense). Palmer was charged with, and pled guilty to, assaulting, resisting, or impeding certain officers using a dangerous weapon, in violation of 18 U.S.C. §§ 111(a) and (b). Id., ECF No. 24 at 1 (D.D.C. Oct. 4, 2021) (Plea Agreement).

In a sentencing memorandum filed before his hearing, Palmer’s attorney asserted that he had gone to the Capitol “at the behest of” the defendant and had been convinced by individuals, including the defendant, that the election was fraudulent and that Palmer needed to take action to stop the presidential transition. Id., ECF No. 31 at 8 (D.D.C. Dec. 13, 2021) (Def. Sentencing Mem.). [my emphasis]

John Lauro is lying when he claims that there is “no evidence of any causal connection between his speech and the alleged unlawful acts of others.” Lauro himself elicited that evidence. And the evidence is that, according to Robert Palmer, because of the false claims Trump and others told about the election, Palmer went to the Capitol on January 6 “at the behest of” Donald Trump, and serially assaulted several cops.

Trump’s reply ignored the substance of Palmer’s claims; it even dropped all mention of the Palmer case. Trump thereby left uncontested Palmer’s claim that he did what he did “at the behest” of Trump.

Thus far, in the case against Trump, DOJ has been rather reserved about the dockets and dockets full of evidence that rioters believed they had been ordered by Trump to do what they did. The indictment itself shows that Trump’s several days of pressure — including his 2:24PM tweet — resulted in direct threats from rioters to Pence.

111. At 2:24 p.m., after advisors had left the Defendant alone in his dining room, the Defendant issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

112. One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.

113. At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike Pence!”; “Where is Pence? Bring him out!”; and “Traitor Pence!”

Yet, DOJ has not made it anywhere explicit that evidence in the case of dozens, if not hundreds, of Jnauary 6 defendants make it clear that these threats to Pence arose directly from Trump’s statements.

But because John Lauro made it an issue in his recusal motion, DOJ has provided crystal clear evidence of one case where someone believed he was taking action — violent assaults against cops — “at the behest of Trump.”

John Lauro wanted it this way — he wanted to create the false illusion that whatever gag Chutkan might impose came only after he accused her of being a biasted Black Woman. But in the process, he himself elicited proof that Trump’s statements to lead directly to violence.

The post John Lauro’s False Claims about Assaults “at the Behest” of Donald Trump appeared first on emptywheel.

The former President went on one of his classic rants of projection last night, demanding that every Democratic Senator resign because of the alleged corruption of Robert Menendez.

“They all knew what was going on,” Trump said, “and the way [Menendez] lived.”

All Trump’s rants are, at their core, at least partly an attempt to use projection to cast attention away from his own similar or worse corruption.

This one is a doozy, though.

Start with the fact that Trump was suspected of getting $10 million from Egypt in September 2016, money he used to stay in the Presidential race. That suspected bribe was investigated for several years, with the Egyptian state-owned bank suspected of making the payment fighting a subpoena all the way to the Supreme Court. The investigation was then closed in summer 2020, without ever subpoenaing Trump Organization, during a period when Bill Barr was shutting down all Mueller-related investigations of Trump. The allegation that, like Menendez, Trump was on the take from Egypt — a key prong of the Mueller investigation — has been ignored by most outlets, so I may return to describe what we know of it.

Then consider that Trump told a comedian posing as Menendez, John Melenedez, that he believed Menendez had gotten a raw deal in his corruption prosecution. “Congratulations on everything,” Trump told the guy he thought was Menendez not long after DOJ dropped the first bribery prosecution. “We’re proud of you. Congratulations! Great job! You went through a tough, tough situation, and I don’t think a very fair situation. But congratulations!”

“They all knew what was going on, and the way [Menendez] lived,” Trump wailed. But so did Trump when he congratulated someone he thought was Menendez for getting away with accepting alleged bribes.

In fact, Trump even commuted the separate Medicare fraud sentence of Menendez’ first co-defendant, Salomon Melgen (like Menendez, the jury hung on bribery charges against Melgen, too). When Trump claims that Senate Democrats knew what was going on? Unlike Senate Democrats, Trump reviewed Melgen’s conduct closely enough to save him from most of a 204-month prison sentence. Trump specifically said that “the ends of justice do not require [Melgen] to remain confined until his currently projected release date of August 2, 2031.” There’s no question Trump doesn’t care about Menendez’ corruption because he used his presidential authority to eliminate most punishment against Menendez’ co-defendant.

Finally, the craziest part of Trump’s attempt to project his own corruption on Democrats: a key allegation in the Menendez indictment alleges that Menendez did exactly what Jared Kushner did, only for a tiny fraction of the payoff that Jared got.

As I noted in this post, most of Menendez’ Egypt-related corruption came before he and Nadine were married, and most of the payment was laundered through Wael Hana’s halal company, at which Nadine had a no-work job. That may make it hard to prove was a quid pro quo.

There’s one glaring exception to that: The 22 one-ounce bars of gold that, the indictment suggests, Menendez and Nadine received days after Menendez helped shield Egypt from repercussions tied to their role in the Jamal Khashoggi execution.

As the indictment explains, after Nadine’s relationship with Egyptian Official-4 had blossomed over time, the two of them set up a meeting between Menendez and a senior Egyptian intelligence official on June 21, 2021, before the same official would meet with other Senators.

On or about June 21, 2021, NADINE MENENDEZ and Egyptian Official-4 organized a private meeting between MENENDEZ and a senior Egyptian intelligence official (“Egyptian Official-5”) in a hotel in Washington, D.C. prior to a meeting between Egyptian Official-5 and other U.S. Senators the next day. On the day of the private meeting, MENENDEZ provided NADINE MENENDEZ with a copy of a news article reporting on questions that other U.S. Senators intended to ask Egyptian Official-5 regarding a human rights issue. NADINE MENENDEZ then sent that article to Egyptian Official-4, who responded, “Thanks you so much, chairman [i.e., MENENDEZ, the Chairman of the SFRC] also raised it today, we appreciate it.” The next day, NADINE MENENDEZ texted Egyptian Official-4 that she hoped the article she had sent was helpful, and stated, “I just thought it would be better to know ahead of time what is being talked about and this way you can prepare your rebuttals.”

A Michael Isiskoff story posted the same day explained what Egypt would need to “rebut:” Egypt’s Intelligence head, Abbas Kamel, was set to be grilled about Egypt’s role — providing training and drugs — in the execution of Jamal Khashoggi.

A just-released Yahoo News “Conspiracyland” podcast series about Khashoggi’s murder [] revealed that the Gulfstream jet carrying a so-called Tiger Team of Saudi assassins to Istanbul made a middle-of-the-night stopover in Cairo for the purpose of picking up a lethal dose of undetermined “illegal” narcotics.

The drugs were injected hours later by a Saudi Ministry of Interior doctor into Khashoggi’s left arm inside the Saudi Consulate in Istanbul — an operation that the CIA has concluded was authorized by Saudi Crown Prince Mohammed bin Salman, often known as MBS.

Abbas Kamel, the chief of Egyptian intelligence, is visiting Washington this week to meet with U.S. intelligence officials as well as members of the Senate Foreign Relations Committee. Staffers told Yahoo News that a number of senators are preparing to ask Kamel about the Cairo stopover — the subject of a Washington Post editorial on Sunday — and whether Egyptian intelligence officials delivered or helped facilitate the delivery of the drugs.

[snip]

There is also evidence that Egyptian intelligence may have provided training for the Tiger Team as well as previous support for Saudi abductions ordered by MBS. A Saudi source familiar with the matter told Yahoo News that the Egyptians assisted the Tiger Team with the 2015 abduction from Italy of Saudi Prince Saud bin Saif al-Nasr. An outspoken foe of MBS, the prince was tricked into boarding a plane he thought was flying to Rome but ended up in Riyadh. He has not been heard from since.

The indictment implies that whatever Menendez did to blunt the accusations of his fellow Senators, it had some tie to the 22 ounces of gold that Hana purchased two days later, at least some bars of which were found at the Menendez residence when it was searched a year later.

On or about June 23, 2021—i.e., two days after the private meeting between MENENDEZ and Egyptian Official-5—HANA purchased 22 one-ounce gold bars, each with a unique serial number. Two of these one-ounce gold bars were subsequently found during the court-authorized search in June 2022 of the residence of MENENDEZ and NADINE MENENDEZ. During the relevant time periods, the spot market price of gold was approximately $1,800 per ounce.

In his rant, Trump accused Menendez of being “piker” compared to others, but he got the comparison wrong.

After all, Menendez sold out cheap. If he received all 22 of those gold bars in 2021 in recognition of having laundered the reputation of Egypt, it would have been worth roughly $40,000.

That’s a miniscule amount compared to what Jared got — $2 billion — for whitewashing Saudi’s role in the Khashoggi execution.

Trump, who knows better than Senate Democrats what was going on, is right: Menendez was a piker. But he was a piker when you measure him against the corruption of Trump’s own son-in-law.

The post “Piker:” Donald Trump Rants as if Robert Menendez’s 22 Ounces of Gold Were as Big as Jared’s $2 Billion appeared first on emptywheel.

There’s a really sordid aspect regarding the timing of the indictment of Robert Menendez unveiled yesterday. Its timeline starts in February 2018, when Nadine Arslanian first starts dating the senior Senator from New Jersey. That was just weeks — possibly days! — after the last bribery case against Menendez ended.

So weeks after DOJ decided not to retry Menendez on his first bribery case, a then-unemployed woman, Nadine Arslanian, started dating the disgraced Senator and, within weeks of that, she alerted an Egyptian friend, Wael Hana, that she was dating him. That set off the most alarming — but probably not the stongest — part of the case: that Menendez was feeding Egypt information and ultimately set up a back channel with an Egyptian intelligence official, meeting at his home in Egypt in October 2021. Those are alarming allegations, but not allegations as clearly tied to financial payoffs to Menendez as some other things.

It’s like some TV producer decided to renew a series for a second season based off an entirely new story line slapped on the older story. “I know! We’ll throw a woman in the mix!”

Aside from that 2021 trip, much of the Egyptian influence operation happened before Nadine and Menendez were married in October 2020. For much of the period, Nadine complained she wasn’t being paid (in a no-work job at Hana’s Halal company). And some of the meetings between Menendez and the Egyptians would not be that far outside the norm for a Senate Foreign Relations Member, much less the Chair. The trip to Egypt, probably accidentally, was made official, giving Menendez legal cover for it. And the seeming bribery immediately upon his return — like a lot of the other payments in this period — came from a long-time Menendez fundraiser, Fred Daibes, or from a Hana associate, Jose Uribe, not directly from Hana.

In other words, this story appears to start with Nadine’s friends exploiting the access she got through her relationship with Menendez. That, as alleged, is largely her corruption. And to prove the corruption, DOJ will need to prove that the payments she only belatedly got were not part of a legitimate job. It’s sketchy as hell. It raises questions about Foreign Agent laws (especially for Hana). But at least as presented in the indictment, that’s not the strongest evidence, certainly not against Menendez.

The stuff that more directly implicates Menendez is his intervention in several criminal investigations, first in the case of an Uribe associate, then in the case of Daibes, Menendez’ longtime fundraiser. Menendez allegedly tried to intervene with prosecutors to help an Uribe associate beat a state charge, and Daibes beat a federal charge, but as described, both cases resolved in probation plea deals without his interference having any effect.

The items DOJ claims must be forfeited as fruits of the crime provide a sense of how much more Daibes allegedly paid Menendez than Hana:

• The Menendez’ residence in Englewood Cliffs (this may have originally belonged to Nadine, in which case the forfeiture stems from mortgage payments of $23,000 IS EG Halal made in July 2019)
• The $75,000 2019 Mercedes C300 José Uribe paid for starting in 2019, which the Menendez’ tried to make look like a loan retroactively in July 2022; it’s not clear — and DOJ doens’t say — whether the Mercedes was payoff for the Egyptian influence or for Menendez’ attempt to influence the prosecution of Uribe’s associate
• $486,461 in case, some of which bore Daibes’ DNA or fingerprints, one envelope of which had Menendez’ DNA, some of which was stashed in a Menendez jacket
• $79,760 in cash seized in Nadine’s safe deposit box
• 2 1-KG bars of gold seized on June 16, 2022; these — and at least two others that Nadine sold for around $120,000 in March 2022 — likely came from Daibes
• 11 1-ounce bars of gold seized on June 16, 2022; these were likely what remained of 22 ounces total, originally valued at around $39,600, purchased by Hana after some meetings with Egyptian officials on June 23, 2021
• An account tied to Strategic International Business Consultants, which Nadine formed in June 2019 after IS EG Halal got its monopoly and to which IS EG Halal paid three $10,000 payments in August, September, and November 2019

So the Mercedes (worth $75,000) at least appears to be payoff for Menendez’ efforts to help an Uribe associate beat a state case. As noted, the indictment says prosecutors shielded the investigative team from Menendez’ interference, but Uribe and the associate nevertheless had a celebratory dinner with Menendez attributing his legal good fortune to Menendez.

Because the roughly $100,000 in payments from Hana — with the exception of the one-ounce gold bars — came through IS EG Halal, DOJ will need to prove that Nadine’s no-work job really wasn’t a job or at least not a legal one.

The bulk of the payments, around $720,000 in cash and gold (the indictment also references checks not itemized here), came from Daibes. While he had financial ties to Hana, he also had a long-lasting relationship as a fundraiser for Menendez, and DOJ doesn’t lay out when the money came in. Given the extent of that relationship, Menendez’ intervention with the US Attorney’s office (and his equivocations about supporting Phil Sellinger’s appointment) are corrupt as hell but not unusual for Washington.

After all, Attorney General Garland only got confirmed after assuring Lindsey Graham and other Senators that he would continue the politically influenced criminal investigations into Hunter Biden and (by John Durham) of Hillary Clinton and her associates. And the entire House GOP is continuing such demands to this day, in part because their Sugar Daddy, Donald Trump, demands it.

There has to be something more to the Daibes’ money, something not laid out in this indictment. Particularly given that there are no campaign finance allegations, DOJ has not ruled out that Menendez was just on a regular take from Daibes. It simply doesn’t account for the amount of money Daibes allegedly gave Menendez, nor does it tie that money to specific quid pro quos.

(Daily Beast reports that Daibes has or had ties with the Italian mafia.)

Similarly, there must be more explanation to the Daibes’ plea deal. This indictment suggests that Sellinger’s First AUSA, Vikas Khanna, rebuffed Menendez’ efforts to intervene in the Daibes case, just like NJ state prosecutors rebuffed his efforts to intervene in the case of the Uribe associate who nevertheless attributed his plea to Menendez. The NJ USAO only belatedly clarified that Sellinger was recused and the plea had been approved by Khanna on the day of the indictment. And it’s hard to explain the repeated continuances of Daibes’ sentencing, first in September 2022, then in December 2022, then in March 2023, then in July 2023; sentencing for Daibes and his co-defendant is currently set for October 23, 2023. The sentencing submissions submitted in August 2022 remain sealed. If Daibes started cooperating in this case after the June 2022 searches of the other co-defendants, it might make sense, but there’s no hint of that.

Likewise, there’s no ready explanation for why SDNY is prosecuting this instead of NJ USAO. Rather than any mention that this got referred from one of those NJ offices, which is what you would hope happened if a politician attempted to influence a prosecution, the indictment establishes venue in fairly tangential acts (marked in blue in the timeline below): Two dinners Menendez and Nadine had in Manhattan, the loan payments Uribe arranged through a bank in the Bronx, and a text Nadine sent on September 5, 2019.

Finally, it’s not clear whether this investigation arose out of an investigation — perhaps for being a foreign agent, which inexplicably is not included in this indictment — into Hana, which led up to the search of his phone in November 2019 but which doesn’t appear to have alarmed anyone, or out of further scrutiny of Daibes.

Or maybe, after the prosecution failed the last time, DOJ Public Integrity (which was heavily involved in the first prosecution of Menendez) just kept watching, knowing he’d stumble again.

Some of the overt acts in this indictment — most notably when Menendez provided sensitive information about embassy staffing to the Egyptians — happened more than five years ago, so they’re only included as part of a conspiracy that continued for years after that. But I wouldn’t rule out that we get more clarity about all this money in a superseding indictment.

Timeline

Below, I’ve bolded key payments (there are other payments that DOJ does not date in the indictment). I’ve marked in pink the engagement and marriage of Nadine and Menendez, which may change the legal import of Nadine’s actions with Menendez. I’ve marked the acts that SDNY uses to establish venue in blue.

April 1, 2015: DOJ indicts Menendez and longterm associate, Salomen Melgen.

June 27, 2016: US v McDonnell decision.

July 17, 2017: Menendez moves to dismiss in light of US v McDonnell decision.

August 2017: State Department withholds $195 million in military support for Egypt and cancels $65.7 million in other financing.

November 16, 2017: Jury hangs in Salomon Melgen trial.

January 19, 2018: DOJ notices intent to retry case.

January 24, 2018: Judge William Walls grants Menendez’ Rule 29 motion on 7 of 18 counts.

January 31, 2018: DOJ moves to dismiss first bribery case.

February 2018: Nadine Arslanian, at the time unemployed, starts dating Menendez.

Early 2018: Nadine tells Hana she is dating Menendez.

March 2018: Menendez meets with Egyptian Official-1, Nadine, and Hana, without his professional staffers, in his DC Senate office and discusses foreign military funding.

April 2018: Uribe tells Hana that “the deal is to kill and stop all investigation”‘ of associate investigated for insurance fraud.

May 6, 2018: After meeting with Nadine and Hana (location uncertain), Menendez seeks out number and nationality of peoeple working at US Embassy in Cairo.

May 7, 2018: Menendez texts details of Embassy staffing to Nadine, who forwarded it to Hana, who forwarded it to Egyptian Official-2.

May 2018: Menendez has fancy dinner with Hana after which Hana texts Egyptian Official-1 that “the ban on small arms and ammunition to Egypt has been lifted.”

May 2018: Nadine gets Menendez to ghost write letter asking other Senators to release $300 million hold. He sends ghost-written letter to her via personal email; she sends it to Hana. Both delete the email.

Several months after March 2018: Nadine expresses hope that Egypt “replace him,” meaning Hana. 

June 30, 2018: Menendez, Nadine, and Hana meeting in Manhattan restaurant. 

July 2018: After meeting with Egyptian Official-1 set up by Nadine and Hana, Menendez tells Nadine he will sign off on $99 million sale to Egypt, stating that they have had such arms for many years and use them for counterterrorism in the Sinai.

October 30, 2018: Fred Daibes charged by US Attorney for obtaining loans under false pretenses.

December 2018: Nadine has car accident and starts complaining to Hana that she does not have a car.

January 27, 2019: Menendez, Nadine, and Hana meet at dinner (Uribe was invited but did not attend), after which Hana starts sending Nadine texts about Uribe associate’s criminal case. Nadine deleted those messages.

January 29, 2019: After reviewing texts with Nadine (which both deleted), Menendez attempts to pressure Official-2 to resolve the prosecution of Uribe’s associate. Official-2 does not intervene.

February 3, 2019: Nadine texts Hana, “I’m so excited to get a car next week !!”

2018 to 2019: Hana’s halal firm, which had no revenue, did not deliver on payments promised to Nadine.

March 12, 2019: Nadine and Uribe speak for 21 minutes, after which Uribe texts, “I am real. I will stand by my word.”

March 27, 2019: Uribe directs Nadine to a Mercedes dealer, after which she sends Menendez pictures to help pick a color.

April 2019: Uribe associate resolves case with guilty plea that was more favorable than prosecutors’ initial plea offer.

April 3, 2019: Nadine texts dealer saying Uribe told her to pick up car on April 5.

April 3, 2019: Uribe tells associate, “I need 15k cash this afternoon.”

April 4, 2019: Nadine texts Menendez that she’s going “to meet Jose for five minutes;” in the parking lot of a restaurant, he hands her $15,000 in cash.

April 5, 2019: Nadine uses the $15,0000 as a down payment to get the Mercedes, paying the rest with a loan based on false financing claims.

April 7, 2019: Egyptian government official informs Hana he’ll become sole certifier for halal imports.

April 8, 2019: Nadine texts Menendez, “seems like halal went through. It might be a fantastic 2019 all the way around.”

Spring 2019: Egypt grants Hana’s halal company, IS EG Halal, exclusive monopoly on certifiying meat exported from the US to Egypt as halal.

April and May 2019: USDA complains to Egypt about monopoly grant to IS EG Halal.

May 2019: Uribe starts paying off Nadine’s loan, via an associate’s Bronx business account, keeping his name out of it.

May 3, 2019: Uribe causes associate to pay off Nadine’s loan through bank in the Bronx.

May 21, 2019: Menendez, Hana, and Egyptian Official-3 meet twice, the second time at steakhouse in DC. They discuss human rights issue. Hana requests Menendez’ intervention on USDA objections to IS EG Halal monopoly.

May 22 and 23, 2019: Hana provides Nadine information on USDA objections. She texts them to Menendez, and later deletes them.

May 23, 2019: Menendez intervenes with USDA Official-1, asking him to stop interfering with IS EG Halal’s monopoly. Official-1 did not accede to demand, but IS EG Halal kept monopoly.

June 2019: Nadine forms Strategic International Business Consultants, LLC, explaining to a relative she would use it to get paid. “Every time I’m in a middle person for a deal I am asking to get paid and this is my consulting company.”

July 2019: After mortgage company moves to foreclose on Nadine, IS EG Halal pays $23,000 to bring Nadine’s mortgage current. As part of those discussions, Nadine said, “When I feel comfortable and plan the trip to Egypt [Hana] will be more powerful than the president of Egypt.” [DOJ does not allege Menendez was part of this discussion.]

July 2019: A New Jersey detective asks to interview Uribe’s associate, leading Menendez to attempt to intervene again.

July 31, 2019: Uribe contacts Nadine saying “We need to move fast” … “We can stop this.” Nadine responds that she will “address itfirst thing tomorrow morning or tonight depending on when he is home.” Menendez does Google search on State agency employing insurance fraud investigator.

August 30, 2019: IS EG Halal pays Nadine $10,000.

September 3, 2019: Uribe texts Nadine saying, “Please don’t forget about me. I will never forget about you” … “I need peace.”

September 4, 2019: Menendez sets up meeting with NJ prosecutor for September 6.

September 5, 2019: Menendez, Nadine, and Uribe meet at Nadine’s house.

September 5, 2019: Nadine sends Uribe a text sent through cell tower in Manhattan.

September 6, 2019: Prosecutor meets with Menendez, Menendez informs Uribe the meeting was “very positive.”

September 9, 2019: Egyptian Official-3 texts Hana relaying that a State Department official told an Egyptian diplomatic official that “Senator Menendize put a hold on a billion $ of usaid to Egypt before the recess !!!!” Hana attempted to contact Nadine, then forwarded the Egyptian text to Daibes, who called Menendez and then responded that it wasn’t true.

September 2019: Menendez offered to provide assistance to Hana and Egypt during official trip to India, then later meets with Daibes, Hana, and Egyptian Official-3.

September 2019: Nadine complains to Daibes that Hana had not paid her. Daibes responds, “Nadine I personally gave Bob a check for September.”

September 2019: Nadine texts Menendez complaining that Hana has not left her an envelope, referencing a meeting Menendez had with senior Egyptian officials “last Saturday.” Nadine called Daibes.

September 21, 2019: Menendez, Hana, Daibes, and Egyptian Official-4 meet at restaurant in Manahattan.

September 28, 2019: IS EG Halal pays Nadine $10,000.

October 2019: Menendez and Nadine get engaged.

October 29, 2019: Uribe texts Nadine for an update. Menendez calls Uribe, after which he tells Nadine he is “a very happy person.”

After October 29, 2019: Menendez, Nadine, Uribe, and associate have celebratory dinner.

November 5, 2019: Uribe texts Nadine about automatic payments for Mercedes Benz.

November 5, 2019: IS EG Halal pays Nadine $10,000.

November 9, 2019: Uribe sets up automatic payments through another trucking company, ultimately paying $30,000 in addition to the cash down payment.

November 2019: Search of Hana’s cell phone reveals thousands of text messages with Hana, many of which she had deleted.

March 2020: Nadine texts Egyptian Official-3 and offers to help, then setting up meeting with “the general,” after which Menendez intervenes to pressure State to increase its engagement on Grand Ethiopian Renaissance Dam.

October 2020: Menendez, Nadine, Egyptian Official-3 ,and Egyptian Official-4 meet for dinner in Edgewater, NJ.

October 2020: Menendez and Nadine get married.

December 2020: Menendez and Nadine have dinner meeting with Egyptian Official-3.

December 2020: Menendez meets with US Attorney candidate and complains about prosecution of Fred Daibes. US Attorney candidate tells Menedez he might have to recuse. Menendez told US Attorney candidate he would not recommend him.

Early 2021: IS EG Halal delivers two exercise machines and air purifier to Menendez home.

May 2, 2021: Advisor intervenes with US Attorney candidate about recusing, tells Menendez “you’ll be comfortable with what he says.” Menendez recommends candidate. After confirmation, he recuses.

June 21, 2021: Nadine and Egyptian Official-4 organized meeting between Menendez and Egyptian Intelligence Official-5, in advance of meeting with other Senators that day. Both Nadine and Menendez alert Egyptian Official-4 that other Senators were going to raise a human rights issue.

June 23, 2021: Hana purchases 22 one ounce gold bars, each worth $1,800. Two were found at Menendez residence in June 2022 search.

October 2021: Nadine arranges trip for her and Menendez to Egypt, originally planned as unofficial visit. When a SFRC took steps that made it an official visit, Egyptian Official-4 said he might lose his job. During the trip, Menendez had meeting at home of Egyptian Official-5 (the intelligence official).

October 17, 2021: Driver for Fred Daibes picks up the Menendezes from trip to Egypt; the next day Menendez searches, “how much is one kilo of gold worth.”

December 23, 2021: Daibes’ trial adjourned. Daibes asks about Menendez’ shoulder injury. Nadine responds that Menendez is fixated on trial date. Daibes sent recliner to Menendez.

December 2021 through February 2022: Menendez asks Advisor to ask why US Attorney recused himself.

January 2022: Menendez sends Nadine a link about military sales to Egypt totally $2.5 billion; Nadine forwards ot Hana, saying that Menendez had to sign off on it.

January 21, 2022: Menendez called NJ US Attorney and asked for First AUSA name.

January 22, 2022: Menendez complains to Daibes that his attorney has not been aggressive enough.

January 24, 2022: Nadine has two calls with Daibes’ driver. “Christmas in January.” Thousands in cash with Daibes’ DNA later found at residence. 

January 29, 2022: Menendez searches for “kilo of gold price.”

January 31, 2022; Menendez calls First AUSA, then calls Daibes.

March 2022: Menendez asks Advisor to bring up Daibes at lunch with US Attorney, Advisor declines to do so.

March 30, 2022: Nadine thanks Daibes, then sells 2 1-KG gold bars to jeweler, each worth $60,000.

March 31, 2022: Two 1-KG gold bars Nadine provided to jeweler sold in Manhattan.

April 2022: Daibes pleads guilty to plea agreement providing probationary sentence. Sentencing has been continued repeatedly since plea.

June 2022: Federal agents approach Menendez, Nadine, and Uribe, after which Menendez pays Nadine $23,000 and Nadine pays Uribe $21,000.

June 16, 2022: Search discovers:

• 2 1-KG gold bars
• 9 1-ounce gold bars
• 10 envelopes of cash, each with 10s of 1000s of dollars, bearing Daibes’ fingerprints, one which included fingerprints of Menendez

July 14, 2023: Sentencing for Daibes and co-defendant reset, for fourth time, for October 23, 2023.

September 21, 2023: DOJ amends sentencing agreement to note that Phil Sellinger was recused and Vikas Khanna oversaw the Daibes prosecution.

September 21, 2023: Indictment

The post The Sordid Second Season of the Robert Menendez Bribery Series appeared first on emptywheel.

Index to posts in this series

This series was motivated by recent scholarship arguing that the Reconstruction Amendments, the 13th, 14th, and 15th Amendments, gave our nation a new beginning, one centered on equality of citizens. I discussed The Nation That Never Was by Kermit Roosevelt; The Second Founding by Eric Foner, and Beloved by Toni Morrison, I also discussed several Supreme Court cases from that era, The Slaughterhouse Cases, US v. Cruikshank, and The Civil Rights Cases; and several recent SCOTUS cases continuing their foul legacy. Enough. Here are some final thoughts.

1. Once again I’m reminded of the astonishing amount I don’t know. I think my education as a young person was reasonably solid. But I have no memory of any of the history I’ve discussed in this series. As I recall, I was taught that we passed the Reconstruction Amendments after the Civil War, that Johnson was impeached, and that Grant was corrupt. Then we learned about a the civil service laws, a little early labor history, the financial collapses caused by speculators and frauds, and the reforms of the Progressive Era. I didn’t learn about Plessy v. Ferguson until my first mandatory history course in college. It’s worse today, of course.

Much of what I’ve written about here is posted under Left Theory, because I’ve tried to focus on abstract ideas that might provide a framework for thinking about a left version of the future. It’s hard to get worked up about ideas, which suited me as I didn’t want to write rage posts. But there’s nothing abstract about this series.

I was enraged from the beginning by the insistence of the Founding Fathers on enabling a brutal slave system while yammering about Enlightenment Ideals. Thomas Jefferson enslaved his own children with Sally Hemings even as he claimed that all men are created equal. Maybe Roosevelt is right to say Jefferson was talking about the state of nature but the contrast between ideas and practice is grotesque and disgusting. How are we supposed to accommodate it in our veneration of the Founding Fathers?

The Reconstruction Amendments were drafted by men who had waged and survived the Civil War, knew that the slavers started it, and wanted to stamp out slavery as part of the crushing victory they achieved. Voters elected Senators and Representatives who knew that the slavers had never accepted defeat; that they intended to enforce White Supremacy by force and by legalized resistance, the KKK or state legislatures. Between 1865 and 1875 Congress enacted numerous laws to enforce equal rights for all citizens, regardless of race.

The Supreme Court refused to recognize the Reconstruction Amendments or laws passed pursuant to those amendments. They read the Privileges and Immunities Clause out of the 14th Amendment. They narrowed all three amendments, and ignored the part giving Congress the power to legislate to enforce ir known purpose. Congress passed more laws, and the Supreme Court swatted them away. The Court intentionally substituted its policy preferences for those of the elected branches of government.

I’ve never claimed to be an expert in any of the areas I’ve written about here at Emptywheel. I only claim to be willing to engage with the text and to try to give it a fair reading. But this was simply too emotionally charged. Maybe someone else could read this material as if it were an essay by John Locke, but not me. And to think that a vast majority of moraly and intellectually deficient Red State politicians want to walk away from it — no. Just no.

2. Much of the material in the last part of the series revolves around the role of the Supreme Court and its centuries of rejection of majority rule. But that’s not the whole story. If a majority of White voters thought the Freedmen and their own Black neighbors were their equals they could have forced change one way or another. But while many, perhaps most, white people were sympathetic, that didn’t mean they were ready to accept Black people as equals.

This point is illustrated by a scene in Beloved. Long after the end of the Civil War Denver, a Black woman, desperately needs a job. She goes to the home of the Bodwin’s, the people who helped her grandmother and mother afterthey escaped from slavery. She knocks on the front door, and Janey Wagon, the Bodwin’s maid, opens it.

“Yes?”
“May I come in?”
“What you want?”
….
“I’m looking for work. I was thinking they might know of some.”
“You Baby Suggs’ kin, ain’t you?”
“Yes, ma’am.”
“Come on in. You letting in flies.” She led Denver toward the kitchen, saying, “First thing you have to know is what door to knock on.” P. 297-8.

Even the Bodwin’s, who were aggressively anti-slavery, didn’t let Black people enter at the front door. I’d guess this was the dominant attitude in that era. Citizenship was one thing. But there was little, if any, support for social equality.

One piece of evidence supporting the view that the national consensus was that social equality was impossible can be found in a 1910 editorial in the New York Times, supporting a Jim Crow law requiring separation of Black and White people on railroad cars in interstate commerce. The Times says the case, Chiles v. Chesapeake & Ohio RR, reverses an earlier decision barring such discrimination.

The present decision reveals the influence of the change in public opinion since the reconstruction era: it justifies both the law and compliance with it by the carrier, and permits the rest of the Southern States to amend their “Jim Crow” laws after the example of Kentucky.

The Southern Legislatures, thwarted during the first years following the civil war in their efforts to separate negroes from whites in public conveyances, have gradually passed laws to this effect in every State save Missouri, and the courts have sustained them.

Without public opinion on their side, Black people were left to their own devices, treated as second-class citizens by state and federal governments. Over time the national mood turned into indifference to violent White Supremacist attacks on Black People. This mood was reflected in Supreme Court decisions in cases like Plessy v. Ferguson. That indifference didn’t even begin to change until the 1950s. White Supremacists, closet racists, and pandering politicians continue to fight a rear-guard action with plenty of wins.

That thought takes the edge off the fury and exposes a deeper layer of emotions: sadness that just like the Founding Fathers we do not live up to our professed ideals.

The post Conclusion To Series on The Reconstruction Era appeared first on emptywheel.

The latest indictment of Robert Menendez almost seems like a personal challenge to Clarence Thomas, to see if there are bribes of a public official that Thomas and his cronies on the Supreme Court won’t find a way to deem constitutional.

After all, what if Thomas is getting gold bars on the side from his “friends,” as Menendez is alleged to have been?

The short version, though, is that after Menendez’ last corruption prosecution, Nadine Arslanian started dating then married Menendez. And he started doing favors for some of her friends, Wael Hanna and Fred Daibes, who had ties to Egypt, including sharing non-public information with Egyptian officials and helping Hanna secure the monopoly on halal certification for meat imported into Egypt.

The indictment alleges a lot of breath-taking stupidity on Menedez’ part, including twice searching for the price of gold after doing something incriminating.

On or about October 17, 2021, ROBERT MENENDEZ and NADINE MENENDEZ, a/k/a “Nadine Arslanian,” the defendants, returned from Egypt as described in paragraph 29.f, landing at John F. Kennedy International Airport. Upon their arrival, a driver for FRED DAIBES, the defendant (“DAIBES’s Driver”), picked up MENENDEZ and NADINE MENENDEZ from the airport and drove them to their home in New Jersey. The next day, MENENDEZ performed a web search for “how much is one kilo of gold worth.” As discussed herein, multiple gold bars provided by DAIBES were found during the court-authorized June 2022 search of MENENDEZ and NADINE MENENDEZ’s residence.

[snip]

d. On or about January 24, 2022, DAIBES’s Driver exchanged two brief calls with NADINE MENENDEZ. NADINE MENENDEZ then texted DAIBES, writing, “Thank you. Christmas in January.” DAIBES’s Driver’s fingerprints were later found on an envelope containing thousands of dollars of cash recovered from the residence of MENENDEZ and NADINE MENENDEZ in New Jersey. This envelope also bore DAIBES’s DNA and was marked with DAIBES’s return address. In or about the early afternoon of January 24, 2022— i.e., approximately two hours after NADINE MENENDEZ had texted DAIBES thanking him and writing “Christmas in January”—MENENDEZ called Official-4, in a call lasting for approximately 15 seconds. This was MENENDEZ’s first phone call to Official-4. On or about January 29, 2022—i.e., several days after NADINE MENENDEZ had texted DAIBES, thanking him and writing “Christmas in January”—MENENDEZ performed a Google search for “kilo of gold price.”

When the FBI searched Menendez’ home last year, they found over $100,000 in gold bars, as well as $480,000 in cash.

The gold bars and some of the envelopes had the fingerprints of their alleged co-defendants.

Some of these allegations will be harder to prove. Some will be easier to pin on Nadine, unless and until one of the spouses flips on the other.

But Menendez, who escaped justice the last time DOJ tried to prosecute him for his corruption in 2015, certainly seems to have pressed his luck.

The post The Menendez Indictment: “how much is one kilo of gold worth” … “kilo of gold price” appeared first on emptywheel.

As AP first reported, in response to several questions in a hearing on her nomination to the Connecticut Supreme Court, Nora Dannehy provided details about why she resigned from the Durham investigation. In response to the first, she described that Bill Barr seemed intent on issuing an interim report before the 2020 election, the conclusion with which she “strongly” disagreed.

In the spring and summer of 2020, I had growing concerns that this Russia investigation was not being conducted in that way [independent of political influence]. Attorney General Barr began to speak more publicly, and specifically, about the ongoing criminal investigation. I thought these public comments violated DOJ guidelines. In late summer 2020, just months before the 2020 Presidential election, he wanted a report written about our ongoing investigation. Publicly, he would not rule out releasing that report before the Presidential election. I had never been asked to write a report about an investigation that was not yet complete. I then saw a version of a draft report, the conclusions of which I strongly disagreed with. Writing a report — and particularly the draft I saw — violated long-standing principles of the Department of Justice. Furthermore, the Department of Justice has a long-standing policy of not taking any public actions in the time leading up to an election that might influence that election. I simply couldn’t be part of it, so I resigned.

It was the most difficult personal and professional decision I’ve had to make.

This tracks reporting from the NYT that describes Dannehy erupting on September 10, the day before she resigned, when she read the draft report that had been written (Charlie Savage linked this video testimony).

So does something Dannehy said later in the hearing.

What I was involved in involved classified — highly classified — information and I really can’t get into what happened when I was there because I likely would, or potentially could, get into an area that I can’t speak about.

NYT reported that the report came after Durham bypassed Beryl Howell to obtained records he used to attempt to corroborate potential disinformation associated with Guccifer 2.0.

By summer 2020, with Election Day approaching, Mr. Barr pressed Mr. Durham to draft a potential interim report centered on the Clinton campaign and F.B.I. gullibility or willful blindness.

On Sept. 10, 2020, Ms. Dannehy discovered that other members of the team had written a draft report that Mr. Durham had not told her about, according to people briefed on their ensuing argument.

The reference to the Clinton campaign appears to reference Durham’s conspiracy theories about a plan that Clinton planned to frame Donald Trump. But that Durham theory was based on his own fabrication about what the intelligence said, even assuming the intelligence was true and not itself disinformation.

This confirms that Durham twice doubled down on this conspiracy theory about Hillary Clinton, first when he contested Michael Horowitz’s conclusion on the Carter Page investigation, and then when he endorsed this draft report. In the end, his report never substantiated his own conspiracy theory.

Dannehy assiduously avoids blaming her old friend John Durham for this corruption. But long after Barr left office, Durham pursued this conspiracy theory relentlessly, going so far as misrepresenting his own investigation to avoid admitting he proved himself wrong.

The post Nora Dannehy Confirms that Bill Barr Attempted to Sway 2020 Election with Dubious Interim Report appeared first on emptywheel.

There was a really depressing House Judiciary 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 proof, 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.

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 (including 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.

The post What If Journalists Actually Read Gary Shapley Rather Than Parroting His Testimony? appeared first on emptywheel.