The Big Q&A With Marcy Wheeler

In our Big Q&A, intrepid online journalist Marcy Wheeler gets to the bottom of a possible plot by the DoJ to spread dirt on Biden.

Photo: Marcy Wheeler, author and editor of national security blog Emptywheel, courtesy of Wheeler.

Something about the recent indictment against the FBI informant Alexander Smirnov has been bothering me, mostly because the idea of the Justice Department (DoJ) opening a bogus investigation into Joe Biden for bribery is exactly what Trump tried to get President Zelenskyy to do in 2019. In fact, it’s what got him impeached.

So here’s a whopper of a question: Did Trump try to use his own Justice Department to frame Biden, using the false Smirnov claims? 

And is Bill Barr covering his tracks on this?

When news of the new indictment dropped, we learned what Smirnov had told his FBI handler. He claimed that the CEO of Burisma had paid Joe Biden $5 million in bribes in order to call off an investigation by Ukraine’s top prosecutor—all of which was completely unfounded and untrue. We also saw that it was Special Prosecutor David Weiss—the one who charged Hunter Biden with tax evasion after the plea deal suddenly blew up—who brought the indictment against Smirnov. So that’s also a bit odd. The file was supposedly closed a long time ago, when the DoJ determined that Smirnov’s wild bribery claims about the Bidens were entirely made up. 

And while mainstream media outlets talked primarily about how Smirnov’s indictment seriously undermines the GOP’s case for impeachment against Joe Biden, which of course is true, I was interested in the origin story of Smirnov and his claims. 

Because an even bigger story than the fact that an informant lied and the GOP pounced on that lie is this: The Justice Department, at the urging of Trump, may have tried to frame Joe Biden, and now someone is covering up that fact.

How did the false accusations become weaponized by the GOP in the first place? Was Rudy Giuliani, or Bill Barr, or Trump himself somehow behind all of this? Why, if it was clear that Smirnov was lying, did it take so long to prosecute? And why are there some glaring inconsistencies between what Bill Barr told reporters about the status of the investigation and what Weiss’s indictment of Smirnov actually says?

That’s the subject of my conversation today with Marcy Wheeler, an independent legal writer of the EmptyWheel Newsletter, who has taken the deep dive necessary to get some of these questions answered—and to ask some even tougher ones. Warning: We get into the weeds on this, because it’s a bit difficult to untangle it all, so even though we’ve tried to remove a lot of the jargon, please read this carefully, as there are many names and events. Then we’ll see if you come away as troubled as we are. 

— Jay

You’re one of my go-to writers when it comes to understanding the many moving parts in complex legal cases, especially when they overlap our politics. Before we get into whether there was an effort to frame Joe Biden and then cover it up, set the stage for us a bit. Most here aren’t as familiar with the so-called informant, this star GOP witness, who was just indicted. Can you walk us through what we need to know? And I know that this will involve a lot of players, so tell us who they are as well.

The informant is named Alexander Smirnov, whose day job is in cryptocurrency. He had reported on Burisma to his FBI handler back in 2017 (which is included in the indictment). In May 2020, Assistant U.S. Attorney Scott Brady discovered a reference to Hunter Biden and Burisma in that report and asked to reinterview Smirnov. 

That led to the production of an informant report, called an FD-1023 form, in June 2020. Brady claimed his people did additional vetting on it, including by tracking travel records for Smirnov’s alleged meetings with Ukrainian businessmen. But they didn’t check the public records from impeachment, or any of the public statements of the CEO of Burisma, Mykola Zlochevsky. 

On October 23, 2020, per an order from the Principal Associate Deputy Attorney General, Richard Donoghue, prosecutors working with Brady briefed prosecutors heading up the Hunter Biden investigation, led by David Weiss, on the FD-1023 and its contents. 

According to a public comment from Bill Barr last year, Weiss was supposed to have further investigated that informant report back in 2020. But according to the indictment, Weiss only started investigating more closely in July of 2023, right after Barr made those comments.

Weiss’ team almost immediately discovered that Smirnov’s claims made back in 2020 – such as that his travel records corroborated his claims – were false. That’s what led to the charges against Smirnov for making false statements to the authorities.

The press seems focused on the indictment itself and the nature of the false statements. Some are talking about how the GOP spread misinformation about it in order to justify their sham impeachment inquiry into Biden. But I’ve read very little that delves into the origin story, that is, how the false information got into the hands of Biden’s political opponents. To me, it feels like Trump/Zelenskyy all over again. That is, an attempt to smear a political opponent with a fabricated charge, and then use the subsequent “investigation” to dirty him up. I read in your column that Rudy Giuliani and Bill Barr were also involved. Can you explain that part?

Sure. Basically, in 2020, while Trump was still being impeached for asking Volodymyr Zelenskyy for help investigating the Bidens and Burisma, Bill Barr set up a way for DoJ to do just that. On January 3, 2020, one of Barr’s top aides, Seth DuCharme, asked Pittsburgh US Attorney Scott Brady to oversee a special intake process for tips relating to Ukraine. It was billed as the gathering of public information, but in reality, it was primarily focused on dealing with all the dirt Giuliani had been collecting. This even included information delivered during a meeting in December 2019 with a known Russian agent, Andrii Derkach. It was, quite literally, giving Giuliani a channel through which to share dirt from a Russian spy! 

Barr did this even while protecting Giuliani. At the same time, Barr sharply limited the Southern District of New York’s (SDNY) investigation of Giuliani and his associates, Lev Parnas and Igor Fruman. Among other things, that limitation prevented the SDNY office from expanding its investigation to consider that very December 2019 Giuliani meeting with Derkach.

As part of this intake process in Pittsburgh, Brady interviewed Giuliani. But that interview was not shared with SDNY. Brady even told SDNY they had the facts of their investigation wrong. 

In short, the special intake process was a way for Giuliani to share information he had gotten under really sketchy circumstances, with no legal risk to himself. Brady has said, for example, that Giuliani didn't reveal he had reached out to Zlochevsky (the CEO of Burisma), nor did Giuliani tell Brady he had gotten hold of Hunter Biden’s laptop. 

So okay. This whole thing was off to a suspicious start. What happened with that special channel Barr set up for Giuliani? How did it go from sketchy outfit to something bigger?

In February of 2020, Rep. Jerry Nadler (D-NY), the ranking Democrat on the House Judiciary Committee, learned about Giuliani’s special channel. The DOJ told him it was about publicly known investigations.

But in testimony before the House Judiciary Committee this past October, which was largely focused on this FD-1023 report, Brady revealed that Giuliani’s special channel was significantly focused on Hunter Biden – again, precisely the kind of politicized investigation Donald Trump had been demanding from Zelenskyy when he got impeached. Among other things, Brady described discussing this project with David Weiss “every … four weeks, six weeks.”

Weiss, as you recall, is the Special Counsel prosecuting Hunter Biden who has charged him with tax evasion.

Brady also described submitting interrogatories to Weiss to find out what Weiss was doing.

Barr’s name was scrubbed from a key part of the indictment. Any thoughts about what’s going on with that? My spidey senses tell me that someone is trying to cover something up. I can’t help but wonder if Barr was somehow also involved in trying to frame the Bidens using a 1023 report that he knew was bogus. Am I crazy?

The indictment states that Jeffrey Rosen, not Bill Barr, set up the side channel intake project with Brady. But testimony from Brady and texts from Barr's phones reveal that Barr was in fact personally involved. The indictment also doesn’t note that Barr’s public comments last summer, in which he claimed the informant report had been sent to Weiss for more investigation in October 2020, conflict with the indictment. Specifically, it conflicts with this paragraph, which states that the FBI request for assistance happened nearly three years later, in July of 2023:

41. In July 2023, the FBI requested that the U.S. Attorney’s Office for the District of Delaware assist the FBI in an investigation of allegations related to the 2020 1023. At that time, the United States Attorney’s Office for the District of Delaware was handling an investigation and prosecution of Businessperson 1. 

So which version of events is true? And why is someone lying about the timeline?

The timing winds up mattering. The October 2020 date is very curious. Just days earlier, Trump yelled at Barr about the Hunter Biden investigation, demanding he do more. The sharing of the FD-1023 with Weiss’s office a few days later appears to be the direct result. 

And, finally, Barr’s involvement is important because his public representations last summer, claiming he never closed down the investigation relating to the informant and the FD-1023, were a big reason why Weiss decided to investigate further. 

I see. So Trump puts direct pressure on Barr, who then hands this bogus Smirnov information to Weiss just days later, saying please investigate. That sounds a lot like using the Department’s resources to dig up dirt on a political opponent. It’s Zelenskyy 2.0. So let’s widen the lens a bit and ask, how does this all tie into the broader Hunter Biden investigation?

Bill Barr set up an assessment, using a case number used for public corruption investigations, in January 2020. That was right in the middle of the first impeachment. Giuliani had been chasing dirt on Hunter, including meeting with a Russian spy, for an entire year. Again, this “dirt chasing” was precisely what Trump had demanded Ukrainian president Volodymyr Zelenskyy do with the Bidens back in July 2019, for which he was impeached! 

That assessment process lasted from January to August, after which Brady provided an unknown set of recommendations to Richard Donoghue (who had picked up the project from Seth DuCharme).

Then, after Trump complained to him directly in October 2020, Barr ensured this informant report—the one filled with lies—was shared with the Hunter Biden investigation on October 23, 2020. 

Wow. That was just weeks before the 2020 election. Weiss didn’t act on it then, thank goodness. But fast forward, a few years later. The people who saw the false report, like Rep. James Comer and Sen. Chuck Grassley, kept vouching for its credibility. The AUSA Scott Brady made it seem like Smirnov’s purported travel receipts matched up with his claims, but this wasn’t true. It feels like they are trying to pull the same trick, investigating a bogus, trumped up claim in order to dirty the Bidens unfairly. Some in Congress, like Rep. Jared Moskowitz, are asking how long these guys knew they were lying about the report. Can you shed some light on this for our readers?

The informant report says the travel records match up (though it doesn't include a date for the last, claimed meeting with Zlochevsky, which by description would have been during Trump’s first impeachment). So Republicans might be forgiven for that. But ultimately, Barr's assignment of Scott Brady to conduct a second investigation of Hunter Biden, six months after Trump demanded just that from Zelenskyy, is the real scandal. He was basically using the DoJ to conduct an investigation of Trump's opponent, based off the garbage Giuliani had solicited. 

So, if Barr is on record saying that the investigation into the allegations made by Smirnov never ended, but rather was sent over to Weiss in October 2020, and that now contradicts what the indictment says, with Weiss claiming that he performed the investigation in 2023…that makes Weiss a potential witness to an attempted framing and a cover-up, involving the very person he is prosecuting, right?  What the heck should we take from that?

It's unclear, and that's why Weiss has no business overseeing this investigation! Someone who wasn't personally involved should be investigating misuse of DoJ resources, not someone who reneged on a plea agreement with Hunter Biden and has played dumb about all this for the last two months.

What's most important, though, is that the indictment claims Richard Donoghue agreed the public corruption assessment should be shut down. But Donoghue is also the person who ordered Weiss to accept a briefing about the informant report. And, again, that happened days after Trump yelled at Barr personally about not doing more against Hunter Biden.

That means more than just Barr and Brady understood the assignment. Donoghue may have, too. And there’s still an active case against Hunter Biden for tax evasion, brought by Weiss. We all expected that case to go away because of the nature of the charges, and the fact that Hunter Biden repaid what he owed with interest and penalties. Instead, the deal fell apart, and now this same U.S. attorney has brought an indictment against the informant, Smirnov. These two things are tied together, right?

As I said, it appears that, under pressure last summer, David Weiss reneged on an existing plea deal with Hunter Biden, just as he was beginning to investigate this informant report.

The uncontested record submitted in the Delaware case against Hunter Biden shows that on June 19, 2023, Weiss's First AUSA, Leo Wise, told Hunter Biden's attorney, Chris Clark, that there was no ongoing investigation. 

Then, Weiss and his AUSA said differently, including to Congress and in the plea colloquy where the plea fell apart. In litigation in Delaware, Weiss has offered no explanation at all for reneging on the plea deal. And he told Congress that threats elicited by the political pressure in this case made him worried for his family. 

The record also shows that Weiss hadn't done really basic things to investigate the Hunter Biden gun crimes until after indicting. For example, in October, after the indictment, they sent a pouch the gun was found in to test for cocaine residue. On December 4, Weiss got the first warrant to search Hunter's digital records for evidence of gun crimes. That makes it exceedingly likely that Weiss had no intention of charging Hunter for gun crimes until Trump and Jim Jordan demanded it. 

Here’s kind of a catch-all question: What is the mainstream media failing to report on around this case and the Hunter Biden case that is driving you the most crazy? 

There is a great deal of evidence that this investigation has always been politicized, with the personal involvement of Bill Barr and Donald Trump, both before and after the end of the Trump term. It's precisely the kind of politicized prosecution that journalists imagine would happen in a future Trump Administration. 

This is also another case where threats ginned up by Donald Trump have had an effect. There's abundant reporting about the threats that other prosecutors and judges – people like Arthur Engoron and Tanya Chutkan and Jack Smith and Fani Willis – have suffered as a result of Trump's (and Jim Jordan's) political pressure. 

But there’s almost no reporting about this case, even though it has come up in testimony before the House Judiciary Committee repeatedly—from Weiss, from the Special Agent in Charge Thomas Sobocinski, from the AUSA who oversaw this investigation, Lesley Wolf, and Los Angeles US Attorney Martin Estrada (the latter of whom likened it to the threats he has gotten as an organized crime prosecutor). 

Hunter Biden's attorneys have made a really good case that David Weiss reneged on a plea deal because of the pressure from Trump and Jim Jordan and the IRS agents (whose claims have been debunked). That may or may not be enough to get them to throw out the indictments, but it needs to be a political scandal. 

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog.