Last Call For Hunting The Hunter, Con't

A lot of ink has been spilled over Hunter Biden's laptop over the last several years, but as Marcy Wheeler notes, the person who may have to answer for the Hunter Biden plea deal may not be Hunter Biden at all, but Justice Department Special Counsel David Weiss.

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Then Noreika dismissed the charges.

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

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

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

 

Remember, the entire Hunter Biden "bribery scandal" has been a railroad job from the start. Merrick Garland giving David Weiss Special Counsel status is the proverbial rope for Weiss to hang himself with. 

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

But to some degree that may not matter.

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

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

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

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

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

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

 

The Hunter Biden case is a massive example of prosecutorial misconduct, and we're going to find out how deep this particular rabbit hole goes.

Trump Cards, Con't

A new poll from CBS News and pollster YouGov shows pretty convincingly that the most recent spate of Trump indictments ahead of what passes as a GOP presidential candidate debate this week has only served to lock in loyalty from his cultists months before a single primary or caucus vote is cast.

Well, there's no debate about this: Right now, the Republican Party would easily re-nominate Donald Trump for 2024. And it's not close.

The former president now holds his largest lead over his rivals in our polling amid his recent legal troubles. In fact, most of his voters cite those troubles as yet one more reason to show him support.

His nearest — but not too near — rival Ron DeSantis has fallen even further back. Everyone else is in single digits.

Trump voters' affinity for him seems to insulate the former president from attacks whether or not he debates this week, because voters basically say they aren't receptive to such criticism.

Instead, a whopping nine in 10 GOP primary voters want the other candidates to focus on making the case for themselves, but not against Trump.

(In interviews conducted before there were reports that Trump has decided to skip the debate, his voters were likelier than others to both say he should participate in the event and that they intend to watch.)

First, as was the case with Trump's previous indictments, Republican primary voters' overwhelming concern about the Georgia charges is that they're politically motivated.

They dismiss the premise of the charges: the bulk of them do think Trump tried to stay in office, but to them, it was legal and constitutional because these Republican primary voters overwhelmingly think Joe Biden didn't win legitimately.

There may be a rally effect: a sizable three-quarters of Trump's voters include those who "show support for his legal troubles" as one rationale, among others, for considering him in the first place.

Second, information in the indictments doesn't have an impact, in part, because they generally believe it's Trump who tells them the truth.

Trump far and away leads the GOP field among voters who place top importance on a candidate being "honest and trustworthy."

The context here is that Republican primary voters believe the political system is corrupt at an even higher rate than Americans overall do. That could mean perceiving Trump as railing against — or prosecuted by — that system might well make him seem, from their perspective, like the one telling a larger truth.

More generally, Trump's voters hold him as a source of true information, even more so than other sources, including conservative media figures, religious leaders, and even their own friends and family.

Fourth, Trump "checks the boxes" across all the ways voters generally make choices.

His track record shows that those considering him almost all think things were better in the country under his presidency. And the vast majority say they've "always been a supporter." Together, these appear to contribute to a powerful "incumbency advantage" for Trump.

It could be strategic: Republican voters think Trump has the best shot to beat Biden — remember, many think he already did. And that's really important to them, outweighing even some disagreements on policy. (Of note: Ron DeSantis has fallen on this electability measure since earlier in the summer, along with his support.)

There's also Trump's personal connection: Almost all his voters say he "fights for people like me."

And then, in particular, a large majority of primary voters would want a candidate similar to Trump, if it were not him. So, they're picking the original, as it were.

Trump has a nearly 50 point lead over second-place DeSantis, 62-16, among likely primary voters. More than three-quarters believe the Trump indictments are political, 73% say showing support for Trump's legal fights is a reason to consider supporting him, and a whopping 99% of Trump supporters believe everything was better when Trump was in the Oval Office, with 95% believing Trump will fight for "people like me." Some 61% of GOP primary voters say Trump is trustworthy and honest, with 71% of Trump supporters saying they believe him over any other source.

As I've said for years now, it's a cult, and deprogramming the tens of millions of white supremacist domestic terrorist cultists in our midst who expect Trump will exact bloody revenge on the rest of us will be the work of a lifetime. When Trump gives his cult permission to enact violence in his name in more than just a stochastic or implied manner, that's when America burns, and my fear is that this day is coming sooner rather than later.

Sunday Long Read: Returning, To Basics

The logistics of managing returning products to retailers is literally a trillion-dollar industry in America's consumerist culture, and in our Sunday Long Read this week, the New Yorker's David Owen explores the growing reverse supply chain of stuff we send back every day.

The twentysomething daughter of a friend of mine recently ordered half a dozen new dresses. She wasn’t planning to keep the lot; she’d been invited to the wedding of a college classmate and knew in advance that she was going to send back all but the one she liked best. “Swimsuits and dresses for weddings—you never buy just one,” Joanie Demer, a co-founder of the Krazy Coupon Lady, a shopping-strategy Web site, told me. For some online apparel retailers, returns now average forty per cent of sales.

Steady growth in Internet shopping has been accompanied by steady growth in returns of all kinds. A forest’s worth of artificial Christmas trees goes back every January. Bags of green plastic Easter grass go back every spring. Returns of large-screen TVs surge immediately following the Super Bowl. People who buy portable generators during weather emergencies use them until the emergencies have ended, and then those go back, too. A friend of mine returned so many digital books to Audible that the company now makes her call or e-mail if she wants to return another. People who’ve been invited to fancy parties sometimes buy expensive outfits or accessories, then return them the next day, caviar stains and all—a practice known as “wardrobing.” Brick-and-mortar shoppers also return purchases. “Petco takes back dead fish,” Demer said. “Home Depot and Lowe’s let you return dead plants, for a year. You just have to be shameless enough to stand in line with the thing you killed.” It almost goes without saying that Americans are the world’s leading refund seekers; consumers in Japan seldom return anything.

Earlier this year, I attended a three-day conference, in Las Vegas, conducted by the Reverse Logistics Association, a trade group whose members deal in various ways with product returns, unsold inventories, and other capitalist jetsam. The field is large and growing. Dale Rogers, a business professor at Arizona State, gave a joint presentation with his son Zachary, a business professor at Colorado State, during which they said that winter-holiday returns in the United States are now worth more than three hundred billion dollars a year. Zachary said, “So one and a half per cent of U.S. G.D.P.—which would be bigger than the G.D.P. of many countries around the world—is just the stuff that people got for Christmas and said, ‘Nah, do they have blue?’ ” The annual retail value of returned goods in the U.S. is said to be approaching a trillion dollars.

Most online shoppers assume that items they return go back into regular inventory, to be sold again at full price. That rarely happens. On the last day of the R.L.A. conference, I joined a “champagne roundtable” led by Nikos Papaioannou, who manages returns of Amazon’s house-brand electronic devices, including Kindles, Echos, and Blink home-security systems. He said that every item that’s returned to Amazon is subjected to what’s referred to in the reverse-logistics world as triage, beginning with an analysis of its condition. I asked what proportion of triaged products are resold as new.

“It’s minimal,” he said. “I’m not going to give you a specific number, because it’s so dependent on the product category. But our approach with this question is that, if the seal has been broken, if the wrap is not intact, then it’s not going back to the shelf.” Even though Papaioannou understands this fact as well as anyone, he said, he often shops the way the rest of us do. When he buys shoes, for example, he typically orders two pairs, a half size apart. In brick-and-mortar stores, a pair of tried-on shoes will be re-boxed and reshelved. “From an Amazon viewpoint, the moment the box opens, you’ve lost the opportunity,” he said.

For a long time, a shocking percentage of online returns were simply junked. The industry term is D.I.F., for “destroy in field.” (The Web site of Patriot Shredding, based in Maryland, says, “Product destruction allows you to protect your organization’s reputation and focus on the future.”) This still happens with cheap clothes, defective gadgets, and luxury items whose brand owners don’t want a presence at Ocean State Job Lot, but, in most product categories, it’s less common than it used to be. Almost all the attendees at the R.L.A. conference, of whom there were more than eight hundred, are involved, in one way or another, in seeking profitable, efficient, and (to the extent possible) environmentally conscionable ways of managing the detritus of unfettered consumerism. “Returns are inherently entrepreneurial,” Fara Alexander, the director of brand marketing at goTRG, a returns-management company based in Miami, told me. She and many thousands of people like her are active participants in the rapidly evolving but still only semi-visible economic universe known as the reverse supply chain.

In a world where more and more products are going digital, existing only online, we demand the same functionality from our analog physical products too, including the ability to just send it back when we're done with it.  Even our consumerism is temporary in the 2020s. We rent apartments, clothes, jobs, entire lives, and return them when we're ready to move on to the next stage, the next place, the next career. We reinvent ourselves regularly to adapt, evolve, and stay ahead of being "destroyed in field".

That includes all our stuff, too.