In case you give a shit.
It appears that [Special Counsel] David Weiss did not obtain a reliable warrant for the most showy evidence in his response motion to Hunter’s selective and vindictive prosecution claim until after he indicted Hunter for 3 gun felonies — indeed, he appears not to have obtained it until after [Biden's attorney] Abbe Lowell asked for this kind of evidence.
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I think it likely that, as a result, David Weiss will technically be relying on evidence from the laptop he obtained from John Paul Mac Isaac, which (as I’ll show in a follow-up), may be a particularly acute problem for the period in question.
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The gun indictment, which Weiss obtained just before the statute of limitations expired, did not provide any proof that Hunter Biden was an addict when he purchased a gun on October 12, 2018. It simply stated, for each of three charges, that he knew he was.
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[B]y Weiss’ own admission, he never had a warrant to access iCloud content for gun charges — as opposed to tax and foreign influence charges — until he got it with District of Delaware Case No. 23-507M. If my approximations below are correct, Weiss didn’t obtain a warrant to search Hunter’s iCloud content for gun charges until sometime between November 30 and December 4 of last year.
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And all this is before you consider the possibility that the second warrant, obtained in 2020, relied on the laptop (something that is consistent with Shapley’s testimony). If that’s the case, then Weiss would have a whole slew of other problems — not least, that John Paul Mac Isaac claims FBI was accessing the laptop before the date that Shapley says they got a warrant.
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There’s no question that there was probable cause for gun crimes available for a warrant affidavit last year. And it is fairly common for prosecutors to get new warrants for content they’ve already seized; SDNY did so against both Michael Cohen and Rudy Giuliani, for example.
One reason this is problematic, though, is the timing. Weiss is arguing that he always intended to prosecute gun crimes, but he appears not to have gotten a warrant until after he charged it, which hurts his argument that he always intended to prosecute it (as does the delay in sending the gun to the lab). So it could hurt Weiss’ chances to win these motions.
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Weiss is really squirrely about when — or even if — it gave Abbe Lowell the warrant for this material. If they gave it to him after the deadline for these motions to suppress, it would mean they’ve deprived him of the ability to file a motion to suppress.
Emptywheel
Hunter Biden attorney Abbe Lowell sent James Comer and Jim Jordan a letter [on January 12] that has gotten all the journalists who treat James Comer as a credible human being confused.
Effectively, the letter says:
1) Whatever subpoenas you claim to have sent were invalid because you had no authority to issue an impeachment subpoena
2) Now that you have authority to issue an impeachment subpoena, if you issue one, Hunter is willing to appear at a hearing or sit for a deposition
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[F]or the purpose of journalists who treat James Comer as a credible human being, the important takeaway is this: If Lowell is right — or even if Lowell is just sufficiently right to keep Hunter out of jail for this — then it means everything that came up to this point involved Comer and Jordan deceiving you about what was going on; Comer and Jordan deceiving you, and you believing them, and misleading your readers or viewers about what was really going on.
All those stories about how Hunter Biden “defied” a subpoena? Retract them, or issue a correction and say, “my bad, there was no subpoena. Hunter wasn’t defying anyone.”
Emptywheel
Even as the IRS spent years scrutinizing Hunter’s digital payments, they appear to have ignored how his digital life faced one after another compromise, most (but potentially not all) undoubtedly arising from the erratic habits of an addict. Those potential compromises should have elicited an entirely different investigative focus, but they also will make any digital evidence obtained from Hunter Biden’s devices difficult and at times impossible to validate for trial.
Take the texts that Hunter Biden sent Hallie in the two days after he purchased the gun for which he has been charged with three felonies, texts that Weiss has admitted he did not seek until last year, apparently only after indicting the President’s son. Prosecutors are very excited about obtaining these texts, after the fact, to prove that Hunter was smoking crack during the days he possessed a gun.
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Weiss doesn’t say what time these texts were sent. Nor does he say whether these were telephony or app texts (Hunter was using at least WhatsApp in the period), and if the former, via which phone account.
But it happened on the same days that Hunter was informed that someone, whose name does not otherwise show up in public emails, emailed Hunter to tell him “you left your phone,” followed, after three attempts, by a shared Note that appears to link to a live Apple account.
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Hunter does appear to have left his phone — or phones, plural — somewhere, probably the day before he bought the gun.
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In addition to [two] iPhones he would use to replace his main phones, Hunter (or someone else) accessed his digital identity from a Samsung Galaxy, a rare deviation from Hunter’s commitment to Apple products.
A week later Hunter’s account would begin to be accessed using the laptop that would ultimately end up with the FBI.
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[During this time,] Hunter’s accountant was trying to get him to file his 2017 taxes, Twitter was informing him of this story showing that Jared Kushner hadn’t paid taxes for years, Hunter was draining his bank account one $800 withdrawal after another, and his business partner was approving a payment to Hunter’s lawyer that would all but drain the Hudson West business associated with CEFC. A different business partner, Eric Schwerin, was also pushing Hunter to resolve their business interests during the 2018 tax year, something he failed to pull off.
Emptywheel
The whole shebang gets complicated at this point, but we can move on to the point...
If they can’t prove the location and IP from which these texts were sent, they may not be admissible at all, because prosecutors may not be able to prove that they are, in fact, Hunter’s words and not those of someone using his lost phones.
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[I]t may mean that this entire investigation has been built on this impossibly rocky foundation since 2019.
The laptop that FBI started using as evidence without first fully validating it destroys chain of custody not just because it was accessed by a hostile person over the course of months before being delivered to the FBI, but also because Hunter’s use of it would have been built on a digital identity that was totally compromised.
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But even ignoring the likelihood that more nefarious people might have compromised Hunter’s identity in this period (for which these is some evidence), Hunter’s addiction meant that his digital identity was persistently in a state of half-compromise through this entire period. His addiction led him to do things that prosecutors have now charged him for. It also adds a good deal of validation challenges for the kind of evidence that normally is routine.
And now...
President Joe Biden's son, Hunter, has agreed to testify directly to a Republican committee as part of an impeachment probe against his father.
The decision, announced by the House Oversight Committee on Thursday, comes after he refused for months to testify in any hearing not open to the public.
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The hearing will be held on 28 February.
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Congressional Republicans leading the impeachment probe against President Joe Biden are investigating his son's business dealings to determine if Hunter Biden improperly benefited from his family name and "sold" access to his father..
BBC
They weren't concerned about the Trump kids improperly benefiting from their family name.
And they're negotiating testimony of Joe's brother, James Biden.
They're desperate.
...but hey, do what you want...you will anyway.
UPDATE 01/26/2024:
UPDATE 01/31/2024:
