The move to prove bribery allegations false marks Weiss’s most aggressive investigative action. This is politics, not law enforcement.
The move to prove bribery allegations false marks Weiss’s most aggressive investigative action — though none of the most critical evidence of Biden's influence-peddling comes from this source.
T he indictment that Biden Justice Department “special counsel” David Weiss brought against informant Alexander Smirnov — previously described by the FBI as “highly credible” and a useful source for several successful prosecutions over the last decade — is one of the more peculiar charging documents I’ve ever seen. (It can be downloaded at DOJ’s website, here.) Smirnov is charged with two counts of making false statements to the bureau — in essence, falsely claiming that he’d been told that President Biden and his son Hunter were bribed by a corrupt Ukrainian energy company.
There will be more to say. For now, I raise three points.
Making a Case by Encouraging a Previously Reliable Informant to Incriminate Himself
I don’t recall ever seeing a false-statements case such as this: Government investigators summoned an informant with a long history of fruitful cooperation to a meeting at which the investigators expected to elicit false statements from the informant, yet did not confront him with their belief that he was lying, nor give him an informed opportunity to explain the discrepancies between what he had said and what they believed to be true.
Generally speaking — and especially when dealing with an informant who has a track record of providing solid information — a competent investigator who catches the informant spouting false claims wants to understand if there is any innocent explanation for the inconsistencies. If there is not, the investigator wants to understand why the witness is lying. Yet, there is no indication in Weiss’s indictment of Smirnov that this happened. There is certainly no indication that Weiss’s team, before encouraging Smirnov to incriminate himself, advised him that they suspected he was lying.
That’s very odd. It doesn’t, of course, mean that Smirnov was telling the truth — far from it. But it does suggest that what Weiss was principally interested in is cinching a prosecutable case against the informant rather than understanding the underlying facts.
In an ordinary case, the Justice Department and FBI do not want to convey the message “Cooperate with us, at high risk to yourself and your family, and we will eventually, and without warning, use what you’ve told us to make a case against you.” In fact, when FBI Director Chris Wray was resisting the GOP-controlled House demands that he provide them access to the 1023 form (the report of Smirnov’s interview), one of Wray’s main points was that publicizing the report would make it harder for the FBI to recruit informants.
Apparently, Weiss and the Justice Department do not share that concern. I assume, though, that they remain concerned about the government’s obligation to disclose to defendants any information indicating that they may have been prosecuted under false premises. Presumably, House Republicans will demand both a list of the criminal cases in which Smirnov’s information was used and, from the Justice Department, any disclosure letters that prosecutors have given to the defendants in those cases relating that a key government informant has been charged with fabricating evidence and providing false statements to government agents.
Gratuitous Disclosures about Russian Espionage
Another peculiarity: the disclosures about alleged Russian espionage.
Generally speaking, and especially in such highly sensitive (usually highly classified) areas as espionage, the government does not disclose information unless it is absolutely necessary to establish probable cause for the offenses charged. And in an indictment, the disclosure of information is even less revelatory than what would be set forth in a complaint. (A complaint is a sworn statement, usually from a government agent, that lays out enough information to enable the court to find probable cause and issue an arrest warrant; an indictment, by contrast, is a formal statement of charges by a grand jury — it is not necessary to lay out the probable cause in an indictment because the court assumes it based on the grand jury’s vote to indict.)
Here, however, Weiss’s indictment painstakingly describes Smirnov’s claim that Russian officials informed him that Moscow had extensively bugged the Premier Palace Hotel in Kyiv (Weiss spells it “Kiev”) and that Hunter Biden had gone to that hotel many times. Smirnov added that he had seen video of a person he believed to be Hunter entering that hotel and urged investigators to check Hunter’s telephone usage at the hotel, since his calls may well have been recorded by Russian intelligence.
This is apropos of nothing in the charges.
The indictment avers that Hunter Biden has never been to Ukraine (not surprising given that his Burisma board seat was a sinecure — a pretext for buying the American vice president’s influence by paying millions to his son). But for present purposes, that is neither here nor there; the point is that neither of the two counts in the indictment charges Smirnov with lying about what Russian officials told him.
To the contrary, Weiss would have you to believe that, of all the claims made by Smirnov, this part and this part alone is true: Russian officials were feeding him information. In fact, in a motion filed on Wednesday to try to convince a judge that Smirnov should be detained pre-trial, Weiss aggressively argues that Smirnov’s connections to Russian intelligence make him a flight risk; and in support of this contention — quite remarkably to anyone who knows how national-security cases work — Weiss recites in lavish detail Smirnov’s long history of meetings with Russian operatives on which he has extensively reported to the FBI (see here, pp. 10–19). The prosecutor concludes by warning the court that Smirnov is engaged in “efforts to spread misinformation about a candidate of one of the two major parties in the United States” — i.e., President Biden.
There is no good law-enforcement reason for these disclosures. They are extraneous to the false-statements charges. And from an intelligence perspective, the disclosures are exactly the kind of information that the FBI’s counterintelligence agents and the intelligence community habitually fight tooth and nail to prevent the Justice Department from disclosing in court submissions that are or may become public. Even if such information seems benign (and this information seems anything but), our intelligence agents do not want foreign intelligence agents — especially Russia’s — to have insight into what we know and how we know it.
While it makes no law-enforcement or intelligence sense for Weiss to have revealed this information, his doing so makes perfect sense if you believe, as I have contended, that Weiss’s main job all along has been to protect President Biden.
Since the 2019 Trump impeachment regarding Ukraine, a ceaseless Democratic message, abetted by FBI agents and former national-security agents, has been that all derogatory information regarding the Bidens’ activities with Ukrainians (including Hunter’s “laptop from hell”!) is Russian disinformation. By gratuitously disclosing this intelligence about foreign espionage — in public documents for a very high-profile case that has captured national attention — Weiss is feeding the Democratic political narrative that all indications of Biden corruption (including those that have no connection whatsoever to Smirnov) are generated by the Kremlin. Ergo, anyone (particularly congressional Republicans) who investigates and/or publicizes Biden-corruption information is either an unwitting tool or a clandestine agent of Vladimir Putin.
This is politics, not law enforcement.
Concealing Weiss’s Willful Investigative Inaction
Finally, a big objective of the Smirnov indictment — another objective that has nothing to do with outlining charges and supporting evidence — is to cover up Weiss’s failure to conduct a competent investigation with the degree of aggression ordinarily expected of federal prosecutors.
The indictment details that Smirnov reported to his handling agent in early summer 2020 that Burisma boss Mykola (“Nicolay”) Zlochevsky had acknowledged paying $10 million in bribes to Joe and Hunter Biden. In response, we’re told the FBI collected travel records from Smirnov “in an attempt to determine whether the information he provided was accurate.” Then, Weiss abruptly concludes:
By August 2020, FBI Pittsburgh concluded that all reasonable steps had been completed regarding the Defendant’s allegations and that their assessment, 58A-PG-3250958, should be closed. On August 12, 2020, FBI Pittsburgh was informed that the then-FBI Deputy Director and then-Principal Associate Deputy Attorney General [PADAG] of the United States concurred that it should be closed.
This is cute.
Obviously, Weiss’s aim here is to (a) bolster the Democrats’ claim, most insistently posited by Jamie Raskin (D., Md.), the ranking member on the Oversight Committee, that the Justice Department thought so little of the bribery allegations against Biden that the investigation was closed; and (b) obscure Weiss’s own dereliction of duty: For three years, he took no investigative action to follow up on allegations that President Biden, while he was vice president, was implicated in a bribery scheme.
It’s deception through and through. First, the lawyerly crafted paragraph excerpted above does not actually say the investigation was closed. It says that someone at the FBI’s Pittsburgh field office concluded that the matter “should be closed,” and that two high-ranking officials — the FBI’s then–deputy director David Bowdich and DOJ’s then–principal associate deputy attorney general Richard Donoghue — “concurred that it should be closed.” Weiss wants you to assume nothing happened for three years because top DOJ and FBI officials concluded there was nothing to Smirnov’s allegations.
Weiss is carefully eliding the part of the story related in the House testimony of former Pittsburgh U.S. attorney Scott Brady.
In January 2020, Brady was tasked by then–attorney general Bill Barr to vet information about Ukraine that had come to the Justice Department from various sources. This was a matter of controversy at the time: During the Democrat-controlled House’s late 2019 impeachment of then-president Trump, Rudy Giuliani, in his capacity as Trump’s personal lawyer, tapped sources in Ukraine for information about the Bidens’ relationship to Burisma and to the Ukrainian prosecutor who was investigating Burisma — who then–vice president Biden had demanded be fired. Democrats alleged that Giuliani’s sources were — what else? — Russian agents.
Hence, Barr decided to set up a triage process: A team led by Brady, working closely with the aforementioned Donoghue, would do a first-cut evaluation of all Ukraine information from any source (including Giuliani) to assess whether it appeared sufficiently credible to warrant further investigation. Brady would then refer any information that bore some indicia of reliability to the appropriate U.S. attorney’s office, fully brief that office on what the team had learned, and leave it to the U.S. attorney to decide how to proceed. (At the start of this process, Donoghue was the U.S. attorney for the Eastern District of New York, one of the three districts — along with Weiss’s Delaware and the Southern District of New York — to which Ukraine information would be referred; in July 2020, Donoghue moved to Washington as principal associate deputy attorney general.)
As Brady explained in his testimony, he and his team evaluated the information Smirnov had provided to the FBI. (Smirnov, as noted above, was a longtime FBI informant, not a Giuliani-connected source.) In 2017, Smirnov had told his handling agent (whose name I have not seen reported) that he had had contact with Burisma, which had placed Hunter Biden on its board. Brady pressed a reluctant FBI to reinterview Smirnov in June 2020; it was in those interviews — which were summarized in the 1023 form — that Smirnov allegedly first made the Biden-bribery claims that Weiss has now charged as false statements.
Brady’s team did not have full-fledged investigative authority (it could not convene a grand jury), but it did collect some travel records from Smirnov’s handler. Based on the travel records, which showed that Smirnov had gone to places he’d claimed to have gone, coupled with Smirnov’s track record of providing reliable information, Brady’s team concluded that there were sufficient indicia of reliability to call for further investigation, especially given the gravity of the allegations. To be clear, Brady did not find that Smirnov was credible or that the allegations about Biden were true; just that they should be further investigated by Weiss.
Brady elaborated that, during his ten-month assignment, it was extraordinarily difficult to work with Weiss’s team in Delaware — led by assistant U.S. attorney Lesley Wolf (the prosecutor who whistleblower agents say admonished them not to ask questions or follow leads pertaining to Joe Biden). Weiss was cordial enough, Brady recalled, but he consistently deferred to his subordinates, who were hostile to Brady’s team and unreceptive to the information they’d vetted. (Equally frustrating for Brady was the FBI’s bizarre establishment of a process that called for (a) the investigation to be reauthorized regularly and (b) an absurd chain of command that required sign-off by 17 different FBI officials, mostly at headquarters, before even rudimentary investigative steps could be pursued.)
Things got so bad that Brady’s team was forced on one occasion to submit in writing questions it needed Weiss’s team to answer. And several times, Brady had to ask his and Weiss’s Justice Department superiors to order Weiss’s office to cooperate with Brady’s team. In fact, Weiss’s team had to be ordered by Main Justice to attend the final October 2020 briefing, at which Brady’s subordinates outlined Smirnov’s allegations and why they believed follow-up investigation was warranted. Brady, moreover, took pains to ensure that the 1023 report was provided to Weiss’s office and to the FBI’s Baltimore field office (which was supporting what passed for Weiss’s investigation of the Bidens).
It’s not enough to say that the Smirnov matter was very much open in August 2020. As Weiss well knows, it was open at the direction of the attorney general, who outranked the officials Weiss mentions in the indictment when misleadingly intimating that the investigation was closed. While Weiss’s indictment goes into lavish detail — including detail about Russian espionage that the government would ordinarily withhold — there’s not a peep about Brady’s review. There’s not a peep about the fact that in October 2020, two months after the indictment suggests that the Smirnov matter was closed, Brady’s team fully briefed Weiss’s team on Smirnov’s allegations about Joe Biden, leaving it to Weiss to decide how to proceed.
Weiss “proceeded” by not proceeding. Just as he did nothing on the Hunter Biden investigation, allowing the statute of limitations to run on some of the most serious criminal conduct (the conduct that occurred from 2014 through 2016 while Joe Biden was vice president), Weiss did nothing about the Smirnov allegations.
Those lay unacted upon for three years until, finally, (a) House Republicans pressured the FBI into providing the investigative committees with Smirnov’s 1023 and (b) Weiss’s sweetheart plea bargain with Hunter Biden imploded, after which Attorney General Merrick Garland purported to appoint Weiss as a special counsel — notwithstanding that he is not qualified to serve as a special counsel under DOJ regulations. (Because special counsels are to be appointed only when the Justice Department has a conflict of interest, the regs mandate that “special counsels shall be selected from outside the United States Government.” Weiss was not just from inside the government, he was a high-ranking official of the conflicted Justice Department, and he has steered the case exactly as you’d expect a conflicted lawyer would.)
Only in late August 2023, after the plea-bargain blowup and the theatrical special-counsel appointment, did Weiss swing into action. It appears to be the first and quite possibly the only aggressive investigative action he has undertaken in the Biden probe: an energetic effort to prove that bribery allegations against Joe Biden were false, to make a case against a confidential informant, and to help Democrats portray the House Republicans’ investigation of the president as being based on “Russian disinformation” — even though none of the most critical evidence of Biden-family influence-peddling comes from Smirnov or Russians.
A very peculiar case, I’d say.