Tipsheet

IRS Whistleblower's Attorneys Slams Misinformation From Hunter Biden Attorney

Rebecca Downs
Rebecca Downs  |  August 19, 2023 10:00 AM

On Sunday, Abbe Lowell, an attorney for Hunter Biden, appeared on CBS News' "Face the Nation" after he also appeared on CNN's "The Source with Kaitlan Collins" last Friday. During both appearances, Lowell engaged in misinformation, as addressed in a fact-check by Empower Oversight, which is representing IRS Whistleblower Gary Shapley. Empower's president, Tristan Leavitt also addressed the fact-check over Twitter.

Leavitt began tweeting out the fact-check on Monday afternoon. The document was released on Tuesday, which was included in coverage from the Daily Caller. 

One of the first tweets addresses a claim we have heard for some time about U.S. Attorney David Weiss, who was appointed as special counsel by Attorney General Merrick Garland last Friday. 

"What happened today, as a practical matter, is not much different than what was the case, yesterday, or three weeks from before," Lowell told Collins last Friday. "The Attorney General and Mr. Weiss both have said for weeks, months, that he had all the authority he needed, to bring any charge that was merited, at any time that was appropriate, in any place that made sense. And so, the power that a Special Counsel has is the power that he has had. So, from a practical point of view, nothing really changed." 

That's not quite the case. 

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"U.S. Attorney Weiss had no ability to bring charges on his own in the proper venues of the District of Columbia and the Central District of California. Special counsel authority grants him the ability to do so," the fact-check mentioned, also pointing out that Lowell is correct in that Garland and Weiss have "repeatedly made this claim."

Leavitt has kept tabs on the confusion Weiss has caused, especially through letters sent to members of Congress, including House Judiciary Chairman Jim Jordan (R-OH) and Senate Judiciary Ranking Member Lindsey Graham (R-SC). He tweeted such a reminder on Thursday, again addressing Weiss' status.

Another claim that Lowell repeatedly emphasized to Collins was that the investigation took place over five years, even that it was "one of the most thorough investigations that office has ever done." With how long and how "painstaking" the investigation was, Lowell also mentioned that "so, whatever [Weiss'] title is, and whatever happens next, we're confident that that should be the same conclusion." He also stressed the "facts" of the case, and how they would lead to Hunter Biden facing misdemeanor charges.

As Leavitt mentions in his tweet, though, "something other than the facts and law 'infected the process' well before the plea deal."

The reality of the situation is that plea deals carry lesser charges. "Plea agreements frequently involve lesser charges than the government would seek to prove if it went to trial. In this case, the investigation referred to the Department of Justice in early 2019 was for felony tax evasion," the fact-check mentioned, also explaining the felony charges in depth. 

Weiss' authority--or lack thereof--is again at play here. 

"Because proper venue for the 2014 and 2015 tax charges was the District of Columbia and for the 2016-2019 charges was the Central District of California, U.S. Attorney David Weiss was unable to bring the charges on his own without the partnership of Justice Department headquarters or the relevant U.S. attorneys in those districts, or special authority granted by the Attorney General," the fact-check mentioned .   

Another claim addressed how Lowell tried to downplay the tax charges, which the fact-check pointed out weren't merely a matter of late taxes in that Hunter's "returns were not just delinquent, but contained false deductions that have never been corrected, which as described above is a felony offense." 

Lowell also claimed to "understand that high-profile subjects of investigations get more scrutiny," but suggested it led to Hunter Biden to be regarded more harshly. "Those who think that he got some sort of sweetheart deal should look at all the other people that have committed the same offense that he was willing to take responsibility for, and see what happened to them," Lowell told Collins. 

It  would seem that Hunter got preferential treatment. As the fact-check addressed:

Investigators testified to Congress that the President’s son was treated differently because his last name was Biden, but only to his benefit. Against the objection of investigators, prosecutors removed Hunter Biden’s name from documents requests, court orders, and electronic search warrants, even while conceding this would result in them not obtaining all records. Search warrants for both Hunted Biden’s and his father’s residences were denied even though prosecutors acknowledged there was probable cause to obtain the warrants. Even an unintrusive search warrant for a storage unit was aborted when prosecutors tipped off defense counsel. 

"The initial plea agreement prosecutors drafted did not follow this guidance. Furthermore, during the July 26, 2023 plea hearing, prosecutors admitted three different times to Judge Maryellen Noreika that the manner in which they were seeking to grant immunity was without precedent," the fact-check also points out. 

This would certainly not seem to be a case to be downplayed as being similar to so many others. It's also worth reminding that others have gone to or would go to jail for the same charges that Hunter Biden has faced.

When it comes to examples, he fact-check points to the "far better comparison" of Darryl De Sousa, a former Baltimore City police commissioner. His case was prosecuted by Leo Wise and Derek Hines, who happen to be "the exact same Assistant U.S. Attorneys as those who negotiated Biden’s plea deal." De Sousa, meanwhile, was charged with misdemeanor violations, with prosecutors recommending 12 months of incarceration. He was sentenced to 10 months. 

Another claim from Lowell made to "Face the Nation" host Margaret Brennan is one that we have heard for far too long. Yes, Weiss was appointed by former President Donald Trump. It's a point that the White House and the media, including Brennan, use ad nauseam. 

Lowell actually overstepped in his claim, too, as he referred to "this group of prosecutors." However, in this case, only Weiss was appointed by Trump. 

Further, Delaware Sens. Tom Carper and Chris Coons, both Democrats, had recommended Weiss, as the fact-check mentioned, citing the Delaware News Journal. "The support of Delaware’s two Democratic U.S. Senators was required under the longstanding Senate practice of deferring to 'blue slips' from home state senators," the fact-check mentioned.

Weiss had also served under President Barack Obama's administration, and "former Biden staffer and longtime friend of Hunter Biden Alexander Mackler served as another of Weiss’s Assistant U.S. Attorneys from 2016 until May 2019," the fact-check added as well. 

Others have significant Democratic ties. "The lead prosecutor for almost the entirety of the case, Assistant U.S. Attorney Lesley Wolf, donated to Democrats in 2020 and 2022. Her husband is a longtime Democratic donor, dating back to the 2008 and 2012 Obama/Biden campaigns," the fact-check pointed out. 

It gets even juicier:

Special Agent Joseph Ziegler testified that when the Justice Department determined jurisdiction in 2019, he sought to have it assigned to the District of Columbia, where Hunter Biden had lived in 2014 and 2015. Not only did it appear there was unlikely to be venue in Delaware, he testified he was concerned about how well-known the Biden family was in the very small state, including by investigators and prosecutors assigned to the case. An inappropriate comment made by a Delaware magistrate judge signing the first electronic search warrant even led to that judge’s recusal, which cost the investigative team 4 months to seek new warrants.

When it comes to Trump appointees, Judge Noreika was also appointed by the former president. And it was a factor that Hunter Biden's legal team used in going after the judge, as they were left "fuming" after the plea deal fell apart.

Further, as Leavitt has pointed out, Noreika is a registered Democrat and was on a ones to watch list of judges Biden was thought to have been considering to name to the Federal Circuit. 

Yet another fact-checked point again has to do with Weiss' authority. 

"No one has come up with a reason why anybody who was on the prosecution team would have gone easy on Hunter Biden," Lowell claimed to Brennan. 

"The special treatment Hunter Biden received is broadly attributable to both the U.S. Attorney’s Office for the District of Delaware and the fact that it had to obtain approvals from other U.S. Attorneys appointed by President Biden," the fact-check addressed. 

There's also revealing information that the special agents spoke to about how the investigation was handled, as well as how far Weiss could go:

As Supervisory Special Agent Shapley and Special Agent Ziegler testified, from 2019 to 2021 prosecutors in the Delaware U.S. Attorney’s Office slow-walked the investigation and closed a number of investigative leads, declining to let the agents follow the facts where they led. While the actions of prosecutors like Assistant U.S. Attorney Wolf sometimes appeared partisan, the agents have not claimed to know prosecutors’ motivations for these moves.  

Because U.S. Attorney Weiss did not have special charging authority, like special counsel or special attorney authority, he was unable to bring charges outside of his district without the support of DOJ’s Tax Division or of the relevant U.S. Attorney’s office. In 2022 DOJ’s Tax Division granted “discretion” in the case, meaning it would not assign its own Assistant U.S. Attorneys to the case. That only left partnering with the relevant U.S. Attorneys, and both U.S. Attorney Matthew Graves (D.C.) and Martin Estrada (Central District of California) declined to do so. 

The special agents also faced enormous pressure. "As both Supervisory Special Agent Shapley and Special Agent Ziegler testified, in August 2022 they became aware Biden’s [now former] attorney Christopher Clark told prosecutors they would be committing 'career suicide' if they charged his client," the fact-check mentioned. 

The fact-check remains relevant because Lowell keeps making it relevant. He spewed similar misleading claims during his Friday appearance on MSNBC's "Morning Joe," prompting Leavitt to tweet out parts of the fact-check once more in another thread.