Good Will Hunter

Happy Friday! We’re not saying we’re to thank for China’s announcement that more pandas may be sent to the U.S. as “envoys of friendship,” but we’re not not saying it, either.

Quick Hits: Today’s Top Stories

• The Israel Defense Forces (IDF) said yesterday they had discovered the body of Judith Weiss, who lived in Kibbutz Be’eri and was kidnapped by Hamas, on Wednesday near Al-Shifa hospital. Weiss, 65, was being treated for breast cancer before she was abducted on October 7—though it’s unclear whether she died in captivity or was already dead when taken from the kibbutz. The Israeli military had been closing in on the hospital for days, and IDF officials have released videos purporting to show Hamas weaponry and tunnels discovered within and underneath the complex—U.S. intelligence officials have reportedly echoed the claim that Hamas has a “command node” under the Al-Shifa hospital. “Hamas does use hospitals, along with a lot of other civilian facilities, for command-and-control, for storing weapons, for housing its fighters,” White House National Security Adviser Jake Sullivan said earlier this week. “Without getting into this specific hospital or that specific claim, this is Hamas’ track record, both historically and in this conflict.”
• Rep. George Santos of New York announced Thursday he would not run for reelection after a House Ethics Committee report found he “sought to fraudulently exploit every aspect of his House candidacy for his own personal financial profit,” including by using campaign funds in ways that broke federal law. Santos, who survived a vote earlier this month to expel him from Congress, may now face another expulsion vote before his term ends in early 2025. He is also facing a 23-count federal indictment accusing him of wire fraud, credit card fraud, and aggravated identity theft. 
• Politico reported Wednesday that Nevada Attorney General Aaron Ford, a Democrat, is investigating Republicans who falsely claimed to be genuine electors for former President Donald Trump in 2020; Joe Biden won the state that year by more than 2 percentage points. Similarly “false electors” are already facing charges in Georgia and Michigan, and an investigation is ongoing in Arizona.
• A New York appeals court judge temporarily paused the gag order on Donald Trump on Thursday, pending a longer appeals process, citing concerns about the former president’s free speech rights. Trump had been fined twice under the order imposed by Judge Arthur Engoron last month in the former president’s civil fraud case; it restricted him from making disparaging comments about Engoron and his staff. 
• A California jury on Thursday convicted David DePape of two federal crimes for breaking into former House Speaker Nancy Pelosi’s house and attacking her husband Paul with a hammer last year. DePape could face decades in prison for one count of assault on the immediate family member of a federal official and one count of attempted kidnapping of a federal official. Nancy Pelosi was in Washington, D.C., at the time of her husband’s attack.
• The Ventura County, California, Sheriff’s Office arrested college professor Loay Abdelfattah Alnaji on Thursday on suspicion of involuntary manslaughter in the death of Paul Kessler, a 69-year-old Jewish man who died earlier this month after suffering a head injury during an altercation at dueling pro-Palestinian and pro-Israel rallies in Thousand Oaks, California. Witnesses gave conflicting accounts of what caused Kessler to fall and hit his head, and authorities continue to search for video footage of the event. Alnaji’s bail has been set at $1 million and he will appear in court Monday. 
• Shohei Ohtani, the Los Angeles Angels two-way baseball superstar, won the American League Most Valuable Player award Thursday, becoming the first player to win the award twice by unanimous vote. Atlanta Braves outfielder Ronald Acuña Jr. won the National League MVP award.

Legally Biden

Over the summer, things were looking up for Hunter Biden. The president’s son seemed set to finally iron out a federal investigation that had dogged him for years—reaching a plea deal with prosecutors that included no jail time and appeared to preclude any future federal charges related to the Justice Department probe. The younger Biden had even begun to take on a more public role alongside his father in the months leading up to the deal. For the White House, this represented a tidy resolution to a saga that Republicans had continually used to criticize the president. Then it all fell apart.

The plea deal exploded in dramatic fashion, and prosecutors have since indicted Biden again on federal gun charges while the Justice Department probe into his conduct remains ongoing. Hunter’s case is heating up again as his legal team goes on the offensive, setting the stage for a high-profile court battle in the middle of his father’s 2024 reelection campaign. 

How did things go south so quickly? As we wrote this summer, Biden’s plea deal collapsed in Delaware federal court under questions from the judge:

U.S. District Judge Maryellen Noreika—nominated by former President Donald Trump in late 2017—questioned the diversion agreement’s constitutionality and discovered the two parties didn’t actually see eye to eye on a key provision of the proposed agreement: how much immunity it would grant Biden from further charges. In response to questions from Noreika, prosecutors acknowledged that their investigation into the younger Biden remains ongoing and he could theoretically still face charges under the Foreign Agents Registration Act. This was news to the defense, which apparently believed the agreement foreclosed most further charges. Plea agreement documents obtained by Politico last night appear to support the Biden team’s interpretation of the deal. When the prosecution disputed this understanding of the deal, Biden attorney Chris Clark declared the bargain “null and void.”

The prosecutors—led by David Weiss, a U.S. attorney appointed during the Trump administration—and Biden’s lawyers tried to salvage the deal with a new bargain that limited Biden’s immunity to tax, drug use, and gun possession offenses from 2014 to 2019, and left open the possibility of foreign agent charges. But Noreika still had lingering questions about the constitutionality of resolving the gun charge through a pretrial diversion program. Within two weeks, prosecutors filed a motion signaling the death knell for the deal: “The parties are at an impasse and are not in agreement on either a plea agreement or a diversion agreement,” the motion read.

Prosecutors charged Biden again in September with three felonies related to his purchase of a firearm while abusing drugs, to which he pleaded not guilty last month.

With cooperation with the government off the table, at least for now, Biden’s lawyers have started hitting back. His legal team, led by Abbe Lowell, requested on Wednesday the judge approve subpoenas for former President Donald Trump and former Attorney General Bill Barr, and two high-ranking Justice Department officials who served under Barr, Jeffrey Rosen and Richard Donoghue. Lowell argued the public comments made by Trump and some of these officials suggested the original investigation into Biden, which began in 2018, was politically motivated. If approved, the subpoenas would seek documents and correspondence about how the investigation began and the decision-making process regarding the charges eventually brought against Biden.  

The case, Lowell argued, is “possibly a vindictive or selective prosecution arising from an unrelenting pressure campaign beginning in the last administration.” The motion cited public evidence, including posts from Trump during and after his presidency calling for law enforcement to go after Biden and a passage in Barr’s 2022 memoir that described a conversation with the former president in which Trump asked Barr about Hunter Biden—and ended with Barr saying, “Dammit, Mr. President, I am not going to talk to you about Hunter Biden. Period.” Lowell also referred to Donoghue’s notes from a phone call with Trump and Rosen, when Rosen was acting attorney general in December 2020. “You figure out what to do [with] H. Biden—people will criticize the DOJ if he’s not investigated for real,” the notes recounted Trump saying.

The partisan influence didn’t stop there, according to Lowell’s telling. He argued a pressure campaign led by Republican lawmakers and Trump against the original plea agreement, once public, was what really sunk the deal. “That outside pressure culminated in special counsel Weiss’s then changing course and bringing this indictment,” Lowell wrote in the filing.

Some legal analysts are skeptical that such arguments will succeed as a defense against the gun charges Hunter faces. “I don’t think frankly the motion has the right focus,” Ken White, a criminal defense attorney and former federal prosecutor, told TMD. “He’s really talking about doing selective prosecution discovery, and there’s a specific body of law for when you’re allowed to do that. He doesn’t really engage it.” The defense, White continued, would have to show some evidence that similarly situated people are not prosecuted and that there’s proof that an impermissible reason is motivating the prosecution. 

But winning the narrow claim in court might not be Biden’s ultimate legal strategy, and since September his team has filed a flurry of civil suits. He brought a civil suit against Rudy Giuliani and Guilani’s former attorney, Robert Costello, for allegedly accessing and tampering with data stolen from Biden’s devices—presumably a reference to the infamous laptop discovered in a Delaware repair shop in 2020. He filed a similar suit against former Trump White House aide Garrett Ziegler. He also sued the two Internal Revenue Service whistleblowers—Gary Shapley and Joe Ziegler—who in July alleged political misconduct in the handling of the Justice Department probe, amounting to what Biden alleges was an illegal dissemination of his tax information. And just last week, Biden sued former Overstock CEO Patrick Byrne (a Trump ally who was involved in efforts to overturn the results of the 2020 election) for defamation related to his claims that Hunter asked his father to unfreeze Iranian funds in exchange for a bribe. 

The suits and requested subpoenas amount to a full-court press. “It’s pretty clear that he’s suing all these people for defamation and other stuff, not so much to get money, but really for vehicles for discovery,” White said. “He can build up information about who was saying what, who was doing what within the Trump administration with an ultimate goal of having that ready to use in his defense if Trump gets reelected and goes after them the way he’s been threatening too.” 

Biden’s lawyers also argued that part of the original plea agreement—the pre-trial diversion program for the gun charge—is still binding. “You can expect Hunter’s team to drop a lot of motions here premised on the idea that there was a deal and the government improperly backed out of it,” White told TMD. “All the law in this area is always biased wildly for the government, but the circumstances of the deal falling apart are a mess. So I think they’re going to be able to make plausible arguments that are going to get them a hearing.” Hearings on additional motions could complicate the case and prolong the trial process for months. 

Meanwhile, Republican lawmakers are still scrutinizing special counsel Weiss’ handling of the case and hunting for evidence of political pressure influencing charging decisions. As part of the House impeachment inquiry into President Joe Biden, Weiss sat down earlier this month for a voluntary interview with investigators from the House Judiciary Committee, including Rep. Jim Jordan of Ohio. He declined to answer many of the interviewers’ questions, citing Justice Department policy of not commenting on specifics in an ongoing case, but promised that some of them would be addressed in his final report after the close of the case. He did, however, directly deny some of the claims from IRS whistleblowers, including Shapley’s allegation that, during an October 2022 meeting, Weiss said he wasn’t the ultimate decision maker on whether to indict Hunter. “It’s not what I said,” Weiss told lawmakers, “nor is it what I believed.” 

He also pushed back against whistleblower claims that the Justice Department (aka Main Justice) rejected his request for special counsel status. Weiss said that he “raised the idea” of special attorney status, a different designation than special counsel, with the department in early 2022. “I had a conversation with Main Justice about following the process,” he said. “No one ever said—no one ever denied—my authority. And I didn’t request special counsel authority.” Weiss asserted he was never denied any integral authority in the case, while the whistleblowers and Republican critics like Jordan believe the fact that Weiss wasn’t granted special attorney status earlier proves there was undue interference. In August, Attorney General Merrick Garland granted Weiss special counsel status after he requested it following the collapse of the plea deal.  

At least so far, the House GOP impeachment inquiry has come up short in producing a smoking gun showing President Biden engaged in criminal conduct related to his son’s overseas business. But Republicans have uncovered evidence of plenty of sleazy activity—including Hunter Biden trading off the cachet of the family name—that contradicts many of the blanket denials of wrongdoing the elder Biden made during and after his 2020 campaign. Republican investigators issued subpoenas earlier this month for both Hunter Biden and Joe Biden’s brother James, as well as several of Hunter’s business associates, to appear for depositions. (The committee also requested transcribed interviews from additional Biden family members and associates.) “The Oversight Committee is entering the deposition phase of this investigation and looks forward to hearing from key witnesses who played important roles in the Biden family’s influence peddling schemes,” House Oversight Chair James Comer said in a statement shared with TMD. Jordan said Sunday he believes the House will decide on whether to pursue articles of impeachment early next year after hearing the depositions and interviews.

It remains to be seen whether House investigators will uncover evidence of criminal wrongdoing—but what is certain is that both Hunter Biden’s legal strategy and Republicans will keep the Biden family in the news as the president campaigns against an opponent facing his own legal woes. 

Worth Your Time

• Following a spate of high-profile derailments, a team of ProPublica reporters—Topher Sanders, Jessica Lussenhop, Dan Schwartz, Danelle Morton, and Gabriel Sandoval—examined the questionable safety record of the railroad transportation industry. “If the public thinks of America’s sprawling freight rail network at all, it typically does so when a train derails, unleashing flaming cars and noxious smoke on a community as it did this year in East Palestine, Ohio,” they wrote. “The rail industry usually responds by vowing fixes and defending its overall record, which includes a steady decrease in major accidents. But a ProPublica investigation has found that those statistics present a knowingly incomplete picture of rail safety. They don’t count the often-harrowing near misses, the trains that break apart, slip off the tracks or roll away from their crews with no one aboard—the accumulation of incidents that portend deeper safety risks. The government trusts the rail companies to fix the underlying problems on their own, to heed the warnings of workers like Bradley Haynes of loose hoses that could impair brakes or rotting tracks that could cause derailments. Unless those mishaps result in major injuries or costly damage, the companies don’t have to report them to anyone. But as railroads strive to move their cargo faster, that honor system, ProPublica found, is being exploited. To squeeze the most money out of every minute, the companies are going to dangerous lengths to avoid disruptions—even those for safety repairs. They use performance-pay systems that effectively penalize supervisors for taking the time to fix hazards and that pressure them to quash dissent, threatening and firing the very workers they hired to keep their operations safe. As a result, trains with known problems are rolling from yard to yard like ticking time bombs, getting passed down the line for the next crew to defuse—or defer.”

Presented Without Comment

NBC News: TikTok Removes Hashtag for Osama bin Laden’s ‘Letter to America’ After Viral Videos Circulate

Also Presented Without Comment

Axios: IBM Suspends Advertising on Elon Musk’s X After Their Ads Appear Next to Nazi Content

Also Also Presented Without Comment

Business Insider: George Santos Spent Campaign Funds on OnlyFans, Botox, and Hermes, Ethics Report Finds

Toeing the Company Line 

• Alex fact checked Vivek Ramaswamy’s many accusations against Ukraine during the most recent GOP debate.  
• In the newsletters: Sarah and Mike explored what would happen if Trump is on trial in Georgia in January 2025 while Nick lamented (🔒) the growing levels of antisemitism on both sides of the political aisle.
• On the podcasts: Sarah was joined by Jonah and Mike on The Dispatch Podcast to discuss Osama bin Laden’s 9/11 manifesto going viral, the Biden-Xi meeting, and the relative benefits of power tools.
• On the site: Kevin weighs in on the feud between Pope Francis and a bishop in Texas, while Frederick Hess and Matthew Levey argue that lackluster K-12 civics education contributed to the Hamasification of campuses.

Let Us Know

If you were a lawyer (or if you are a lawyer), would you rather be representing Hunter Biden or Donald Trump?