Hunter Biden's Trial Is Everything MAGA Thinks The Trump Trial Was

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:44 Thomas: Hello and welcome to Opening Arguments. This is episode 1040. I'm your host Thomas Smith. That over there is real-life attorney Matt Cameron. How you doing, Matt?

0:00:52 Matt: Right. I hope you're having a good vacation.

0:00:54 Thomas: Okay, I gotta stop working right now. Sorry, I can't finish that. We were having a great time, but we did call that audible on last week's episode, which was great, and I'm glad we did, but it means that the intros got all off and everything got all off kilter because the best laid plans. But that's no problem. We're just recording the intro from another echoey hotel room and so happy to be here for episode 1040. see, we're going to talk about the Hunter Biden trial, finally. Been wanting to talk about this because it's really fascinating.

0:00:55 Matt: Yep. Sure.

0:01:22 Matt: We're actually going to have one conversation from last week where I kind of go through the basics of the trial, and then we'll talk about what happened in the past week. But I strong opinions about this trial. I will be sharing them.

0:01:32 Thomas: Can't wait. So yeah, we'll first go to the stuff we already recorded that got preempted, and then we're updating that so that we're kind So if you'd like to skip this break, head over to patreon.com/law and you don't have to hear any ads. And you get that lot off of movies, which was phenomenal. So much fun. Matt can't get it out of his head, as you'll hear. He referenced it several times in this. But yeah, it's eating your brain. So anyway, after this break we'll get to it we've We've got some Florida updates. Is our favorite judge being our favorite judge again?

0:01:52 Matt: Just keeps coming up.

0:02:07 Matt: In time, just as the focus is coming off of Marshawn up in New York, we got some new Canon business. Of all, 11th Circuit would very much like you to know that you can stop complaining about her. Please do not file any more complaints about Eileen Canon. Did you hear about this?

0:02:16 Thomas: Yeah. I didn't. I'm worried about it in a way. Like I almost, what do you think? I mean, obviously people are complaining. The kind of thing where in normal circumstances, this isn't going to become like a public campaign? Like let's say we had a judge just being crappy and not a public spotlight. Is it that the system would hear a couple complaints and then look into it? I'm just worried is the fact that they've, you know, essentially people have crashed the system here. Is that going to like sort of give her a blank check now? Are they not going to what I'm worried about this? What do you think?

0:02:22 Matt: Yeah.

0:02:50 Matt: It's really unusual. I've never heard of anything like this. And according to this order, it was an orchestrated campaign. I mean, I Think there are a lot of people out there who who know that there's things to complain about with Judge Cannon. I don't know which organization did this, but they're saying essentially they're already looking into a few complaints. They've received over 1,000 to the clerk, and they are going to reject anything else that appears to be part of this orchestrated campaign. That's what they're calling it.

0:03:10 Thomas: Is it really an orchestrated campaign?

0:03:12 Matt: Well, I mean, a lot of them are identical, which is a sign of a mass mailing kind of thing. Does it seem a little strange to just cut off all complaints, but I can see how it overwhelmed the clerk's office under these circumstances. I just hope that they are actually looking into the things that people are concerned about. What I'd like to know more than anything.

0:03:16 Thomas: Okay.

0:03:28 Thomas: And I guess to, to give them some credit, it feels like the kind of system where it shouldn't really be about like, well, we got a lot of people saying the same thing. I feel like it should more be, I don't, I mean, this is just my intuition. You can correct me if I'm wrong. I feel Like with something like this, it should more be like, even if it was only one complaint you got, if it was meritorious, it's meritorius. It doesn't seem like it's like a, like a voting system, you know? So it doesn't.

0:03:51 Matt: Sure. Right. Right.

0:03:54 Thomas: Yeah. Okay. Well, hopefully they're taking this situation serious, seriously because wow.

0:03:55 Matt: Yeah. I would hope because we've got some more to complain about. Me tell you what's going on. So you might remember the time when the FBI tried to assassinate Donald Trump. We all remember that in August 2022.

0:04:08 Thomas: Oh yeah, of course. Yeah.

0:04:10 Matt: They tried to assassinate him by showing up up at his house in Florida, wearing plain clothes and not violently displaying weapons, and just coming in to look at some documents.

0:04:17 Thomas: That famously leftist FBI. I remember.

0:04:20 Matt: Yes. And they did it at a time when they knew he wasn't going to be there. They intentionally went there knowing he was not going to be there,

0:04:27 Thomas: Yeah. To set a booby trap or something, I don't Yeah, is

0:04:30 Matt: Classic assassination tactic. Make sure the guy's not there.

0:04:34 Thomas: This is who's saying this, is this his real line? Now the assassination thing, oh

0:04:37 Matt: Really is, and it's multiple exhibits filed by Jack Smith to show you in fundraising, fundraising, in truths, all kinds of ways. He's out there in public talking about it. And I will tell you where this comes from. I'm looking at the search warrant for Mar-a-Lago. It was obviously, you know, it was executed in August, I think, 8th, 2022.

0:04:41 Thomas: My god Oh Yeah, okay.

0:04:54 Matt: Can forget those days? There's a policy statement. It's like a very boilerplate thing. And it's obviously just included in every one of these. I don't look at a lot of federal search warrants, but this looks like it's kind of something they staple onto everything. And the title of this portion is Policy Statement, Use of Deadly Force. So it is Setting the very strict limits of when the Department of Justice may use deadly force during the execution of a search warrant. It specifies, of course, the deadly force may not be used solely to prevent the escape of a fleeing suspect, that warning shots are not permitted outside the prison context. I'm not sure what that means, but anyway, it goes on. Yeah, that's a little weird. It's just what, what you'd expect, it's just like you don't use deadly force unless you absolutely have to

0:05:14 Thomas: So This is Like part of the click rap agreement of him getting his, uh, search for the all kinds of documents he should not have had, just the tons and tons of documents you should not have, and part of the, like, fine print of the warrant is like, hey, just so you know, this is when we're allowed to use deadly force. And so that's the same as hiring Boba Fett and those other bounty hunters to just come take him out

0:05:37 Matt: Yes Exactly Yes Okay Aka That's Right to track you down That's Fine, uh, of course this was, you going on two years ago that this happened, but he just found out, apparently, so he truthed it on May 21, like he has had something else on his mind at the time, on May 21st, in the caps, that he just learned that Joe Biden authorized the FBI to use deadly, parentheses, lethal, force. Now we know for sure that Joe Biden is a serious threat to democracy. He is mentally unfit to hold office, et cetera, et cetera. Got some fundraising emails, which I myself received. Best one is, "Breaking from Trump: Biden's DOJ was authorized to shoot me." Just keeps going.

0:06:01 Thomas: Yeah Oh Boy

0:06:36 Matt: You get the idea. So he's going on and on about this illegal FBI search. Steve Bannon calls an attempted assassination, and that starts to get some traction on the right. A search warrant served in the nicest possible way on somebody who wasn't home. You look as recently as P. Diddy, or whatever he's called now, getting arrested recently, had major and guns and everything. I think he owns guns. Trump is not known on guns. But still, there are worse ways to execute a search warrants, is what I'm saying. Smith sees these truths, and at 8 p.m. on Friday before Memorial Day, the 24th of May, files something to modify the conditions of release that amounts to a request for a gag order. Now, of course, he's already under a gag ordered in D.C. He was previously, as we very famously know, I guess he's now released from the gag order. I'm not sure if he's released from a gag in New York yet, since he hasn't been sentenced.

0:06:36 Thomas: Oh Interesting. Well

0:07:24 Matt: Government moves to modify defendant's conditions of release to make clear that he may not make statements that pose a significant, imminent, and foreseeable danger to law enforcement agents participating in the investigation and prosecution of this case.

0:07:33 Thomas: Or else we're gonna shoot you, you.

0:07:36 Matt: That's right. Yeah, exactly. Yeah.

0:07:39 Thomas: No, it didn't say that. Okay.

0:07:41 Matt: So again, I mean, I'm not sure. Looking at this evidence, and again, these are prosecutors. They're just doing, what prosecutors do in protecting law enforcement. And, you know, just as kind of a safety thing, he doesn't want Trump to fundraise off of the idea that the FBI was trying to assassinate him. And obviously, you can see how this could lead to incidents of stochastic terrorism, right? You can have lone wolf types that would get out there and think they should take it out on the FBI. He puts all this into the motion, again, though, very critically for this purpose is what we're talking about, filed 8 p .m. on the Friday before Memorial Day. He had had an email exchange with Todd Blanche before that. Todd Blanche, again, a little busy back at that time, you might remember, just a couple of weeks ago in York. So he let Todd Blanche know that he'd be filing this, and Todd Blanche was not happy about it. I can read.

0:08:24 Matt: It's fun to find out what it's like.

0:08:24 Thomas: Wait, is Todd Blanche represent? Wait, what? Why is Todd Blanche? He's representing him in this too?

0:08:26 Matt: Yeah, Todd represents him in all of the cases except Georgia, I believe. Yeah, he's a busy man. Yeah. And this is what he quit his life for, was to do these. Yeah, so in the initial email, this is all going to be relevant in a second for reasons you'll see, uh, Jay Bratt says that he assumes that you'll be opposing this motion and you'll want to discuss it if you want to talk, do that later. Todd Blanche even offers to talk on Monday, which is a holiday, and they go back and forth about that.

0:08:32 Thomas: Wow. Okay, yeah, I didn't realize. All

0:08:53 Matt: Which could have been an option, I think. It's just a regular motion, and it's just to restrict his speech specifically about what he can say about law enforcement. You wouldn't think this is particularly controversial, he can't make statements that pose a significant and foreseeable danger to law law enforcement, but they fight it all the way.

So in a footnote, Jack Smith mentions that they had this exchange and that he did his best to reach counsel because there's a local rule, as is generally the case in most courts, that you do have to check with counsel. But this rule is a little more formal than I've seen in other places.

You have to actually let the court know that you have made a good faith effort to resolve the issues in the motion and you've made a reasonable effort to contact the opposing party and confer with them. That doesn't apply to ex parte filings. Obviously, if they were able to say this rose to the love of an emergency, they could just file it that way and wouldn't have to contact opposing counsel. But of course, this comes down to what a conferral is.

I'm setting all of this up because Eileen Cannon put into the record another one of her very famous paperless orders, which are not necessarily appealable. They're just little notes in the margins of the docket that explain what she's going to be doing. And so she denied this motion on May 28th, and she went on and on in her little note about how rude it was that Jack Smith's office would file this without consulting with Todd Blanche, even though, of course, they did.

She's ordering them to file with a very special certificate to make sure that when they come back in the future, that they can say that they've actually conferred in some meaningful way. Does not want the future certificate to be embedded in an editorialized footnote, which is what Jack Smith did here, and that you have to specify the exact timing, method, and substance of conferral.

It goes on and on about what they have to do to guarantee that they have tried to check in with the other party. Now, again, there is no decision that they could have reached together on this motion. Obviously,

0:10:33 Matt: Trump was going to oppose this. He wasn't going to agree to it. There's nothing really to discuss. Obviously Smith's office knows that. This is not a particularly important motion overall for the case. It's just a minor restriction on his speech based on demonstrable things he's already said. Court finds the special counsel's pro forma conferral, quote unquote, to be wholly lacking in substance and professional courtesy. To see. It's really something. Like, you were rude to Donald Trump's attorneys. How dare you, sir? How dare You? File at Friday, and again, 8 p.m. on a holiday weekend. Let him know about it at 5:30 p.m. on a holiday weekend on a Friday, which is kind of a dick I will say that it's a dick. I won't say it's not. It's also such a simple motion.

0:10:33 Thomas: Yeah, yeah.

0:11:17 Thomas: So, this is, what's the normal use of this? I mean, you notify the other party when you're going to file something, you, they can like, like, respond, or hypothetically it sounded like you were saying in case they were going to come to some like agreement before having to even do something, but is this one of those like, okay, yeah, it's a kind of a technicality that just really doesn't matter here, sure?

0:11:38 Matt: Doesn't. And this local rule is a little stricter than other things I've seen. But the idea, as it says in the rule, is to try to keep things from getting to court if you can reach some kind of agreement on things. Obviously, it's a good idea, but it's not going to happen with Trump's attorneys anyway. He's paying them too much. They're going to fight everything. Thing. Of course, Jack Smith immediately refiled this on May 31. couple days later, refiled the whole thing with more exhibits, because of course Trump had said more stuff by that point. Now has given Trump, 14 days to respond to this, 14 days to explain about why he should get to, I guess, threaten law enforcement. Is what we're doing instead of going to trial.

This and the hearing that's going to be held on the 21st of June, which is the next big event here, which is going to be a motion to dismiss. And some stuff happening around this motion to discuss as well. A hearing coming up on June 21st on one of several motions to discuss, and this is one that's based on the unlawful appointment and funding of special counsel Jack Smith by Donald J. Trump. So this is his motion to dismiss the case because you're not even supposed to be here. You're not supposed to be prosecuting

0:11:46 Thomas: And that wasn't going to happen, yeah. Yeah, I Just

0:12:33 Matt: Me. You were unlawfully appointed and funded. Has been tried, I think, in the other cases. It's never gone anywhere. There's some interesting arguments about the appointments clause and about how special counsel works, but I can't see this going too far. The interesting thing about this particular motion is that very unusually for something at the district court level, and very unusually for just emotion like this, had step in. We've had multiple people asking to argue, and she's going to allow them to argue on both sides of this issue. Again, just to make this go as long as possible, it's just the name of the game. Every piece of this, just to kind of stretch it out, let's hear from a bunch of constitutional scholars. Let's hear from Seth Barrett Tillman. Let's hear from whoever wants to show up and argue. It's It's just on and on and on. The docket that never ends. Someday, maybe, we will see something resembling real pretrial motion practice here, but this is just more of Judge Cannon being Judge Cannon.

0:12:59 Thomas: To Take Time Right, yeah. So This, you about the notification of the other side, consequential in any way, or just another little stupid thing she's putting in a thing?

0:13:29 Matt: Motion by 10 days or something. Dismissed it without prejudice.

0:13:32 Thomas: It oh, sorry. I didn't even, she dismissed it because of that. Oh, I missed that part. That's silly.

0:13:36 Matt: Yeah. He'd been rude. Yeah. Denies and then he refiles the same thing basically with a very, very specific certificate of conferral. Like he really took her seriously. It's like a whole page about all the different ways they try to communicate. Yeah. No, it's absurdly stupid, but

0:13:39 Thomas: Yeah. So dumb. Um, but I mean, basically the conclusion is she can delay this pretty much as much as she wants for any reason forever until someone does something about it. You know, like the court, whatever, whoever could possibly, you anything has any power to get her to recuse or anything that seems to be the only real solution to this, right? I mean.

0:13:57 Matt: Oh, yeah, yeah Or the mandamus petition we keep talking about as a possibility, you know, maybe if something rises, but again, she's making it so hard to actually have an order that can be appealed from because she keeps doing these little dinky administrative things. But I wanted to highlight those two things just to show just the little ways that you can do this. I know there's a lot of headlines about how she's delaying things and how she is stretching it out. But I think it's interesting to get into the weeds and actually see on paper how someone gets around to delaying a federal case if they want to. She's very, very good at it, I will say. Full credit for that. That.

0:14:38 Thomas: I mean we already knew it's easy to delay, delay, delayed just as the defendant if you have a bunch Of money. But if Forget you Have a judge trying to delay, I mean, that could be effectively forever Mean I mean, really, like, what's going to be the limit? Sure.

0:14:43 Matt: Yeah. Yeah, sure. It really could. No trial date in sight. Is just a whole lot of stuff she wants to get through and a whole lot of people she wants to hear from. And, you know, at some point there's a speedy trial issue where it has to get done, but that clock keeps stopping for different reasons. But should move on quickly to, I wanted to mention that Republicans want to defund Jack Smith along with Fannie Willis and Alvin Bragg. I don't know if you saw about this, the Jim Jordan appropriations. I just want to mention very quickly that Jim Jordan wrote a letter to House Appropriations Chair Tom Cole the other day, in which he demanded that appropriations not be used. There's just kind of some funny language here. The that he's looking for is countering lawfare. So they want to stop the lawfare, and specifically, yeah, that's the word of the day with all the Trump prosecutions.

0:15:26 Thomas: Lawfare What? Instead of warfare, it said they're saying we're using law. Oh, okay. That's a new one on Me, well,

0:15:35 Matt: Well, out there, yeah. That's the only kind of war I'm qualified to fight, but could be that maybe you're just prosecuting him for insurrection, but, uh, know, and that's law fair So, to counter law fair the proposal, I just think this is funny, is that no federal funds, and, and remember that, obviously, local cops and prosecutors take a lot of federal funds, shall be used to consult, advise, or direct state prosecutors and attorney general in the civil action or criminal prosecution of a former or current president or vice president brought against them in state court. So there's a prohibition on use of funds, both for that, and then also for federal agencies to make sure that no special counsel can ever be used or any other federal agency can be used to prosecute a former or current president or vice president. So, effectively, trying to stop the prosecution of presidents and vice presidents for the rest of time. That's what he's doing.

0:16:20 Thomas: You Know what to do, Joe Biden? Guess it's time to take matters into your own hands. Go rogue. Can't be prosecuted.

0:16:29 Matt: No, go rob some banks. Have fun. Mean, why not? Sky's the limit now.

0:16:32 Thomas: It's not really what I was thinking, but I guess if it's on the way, sure. Show is brought to you by Rocket Money. Rocket Money, I can pretty much guarantee you subscribe to some things that you forgot about. Out. Me explain. Rocket Money is a personal finance app that finds and cancels your unwanted subscriptions, monitors your spending, and helps lower your bills so that you can grow your savings. Was a user of Rocket Money before they even sponsored show. Knew that I had way too many subscriptions and a penchant for forgetting about them.

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0:18:02 Thomas: Time for for the main story, Hunter Biden weirdly and confusingly is now on trial. Like that's going now.

0:18:09 Matt: Timing is incredible, I have to say. I mean, this is like days after the conviction of a former US president for the first time. We have got the first trial of a sitting US president's child ever. To Tough case for him, I think. But there are actually some interesting similarities, which I'll probably note as we go between the Trump prosecution and the Biden prosecution. I think it's a very interesting moment in American history because you have a situation here within the space of two weeks where two different sets of people, effectively, I hate to divide the country down to two different sorts of people. But the major divisions that we have, one of these looks at one of those trials and sees, "He's, you know, a beloved political figure being put on trial because he's a beloved political figure and for no other reason on show trial." The other looks at the other and sees the same thing. And you can make these arguments about Hunter Biden and about Donald Trump. The scope of what Biden did is nowhere near the scope of anything that Trump has charged.

0:18:58 Thomas: It's important to say Hunter Biden has never held political office that I know of.

0:19:01 Matt: Not at all. That's right. And he's, he's A Biden, so he's going to get extra scrutiny. And it's a really awkward position, obviously, for his father at this point, because, you As is the custom, and as is pretty much always done, when Biden took office, he asked for the resignations of every one of the U.S. attorneys, except for the one in Delaware, because that was the one who was investigating his son.

0:19:20 Matt: And so that would have looked pretty bad. So the Trump appointee, David Weiss, got to stay in Delaware. John Durham was also still kept on, but he was special counsel by that point. He wasn't Connecticut's U.S. attorney by then for the Durham investigation. But David WeISS was appointed to look into the Hunter Biden whatever. I mean, it's a miasma of possible things here. It's starting in 2018. And you know how these special counsel investigations go, obviously. Once you get it going, once you uncork it, you're going to probably find something, especially when you're dealing with somebody, you know, if you want to. And if you're dealing with somebody like Hunter Biden, who honestly has had, you know, he's had a rough time of it. Know, I think we all know that he's Had a long history of addiction. He's struggled for many years. He's had a very public life, and I think much more than he would want. Listened to an interview with him recently, just to get a sense of the man. And I was very sympathetic to what I heard. And certainly,

0:19:20 Thomas: If you want to. Yeah.

0:20:16 Matt: You a traumatic life, just starting with the fact that one of his earliest memories is his mother and sister dying in a car accident. You know, kind of working from there and obviously the recent death of his brother as well. So 2018 was not a great year for Hunter Biden, but in October 12th of 2018, he bought a gun and he owned that gun for 11 days, from October 12 to October 23rd.

And at the time he had a relationship with, and an ongoing friendship with Holly Biden, who was the the widow of his brother Beau, and she found this gun and threw it into a supermarket trash can for his own safety, I guess. So he was in possession of it for 11 days, but the problem is that when he went to buy the gun, there is a special form that you have to fill out, and that is the Form 4473, Firearms Transactions Record.

And there is a question, Question 21F on this form, which asks, "Are you an unlawful user of or addicted to marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?" And there's a special warning. "The use and possession of marijuana remains unlawful under federal law, regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside." Just throwing that in to

0:21:24 Thomas: Yeah.

0:21:24 Matt: Harken back to the conversation A few weeks ago about why rescheduling won't necessarily help. It comes up in little ways like this. That's the question. Are you an unlawful user of or addicted to any of these drugs? Now, at the time, he was struggling with crack addiction. It was pretty bad. And I'm sure we all remember the back and forth about the Hunter Biden laptop. I don't want to talk about that too much, but that's actually becoming central evidence in this case. Matter its provenance, apparently the federal government announced officially that it is good enough to use, and that the evidence on there is something they can use against him.

0:21:25 Thomas: That is very interesting. I am very fascinated by that story because it just seems so unlikely and impossible. Yet, I it's not like I still, like you said, we can't get into it. But I'm wondering, do you think this trial will reveal anything more about that laptop? Like, is there going to be any more information? Like, if they're going to use anything of evidence, are we going to have any more insight to what it actually is just based on the process of authenticating evidence and, and that kind of thing?

0:21:56 Matt: Is, yeah. It is.

0:22:21 Matt: Have to. The defense is going to have to get into where this stuff came from and how much of it might have been doctored or where, you know, chain of custody for all the files. So it'll be interesting.

0:22:28 Thomas: Because it is crazy. Okay, yeah, pin in that.

0:22:31 Matt: Yeah, but you know, famously, of course, the laptop included a lot of pictures of him using drugs and, you know, various other forms of entertainment. And so that's going to be critical because to prove this charge, now I want to talk about this charge for a second. This is 18 U.S.C. 922G is the general charge, and there's nine things in there which all would keep you from buying a gun if you disclose them. One of them is restraining orders, and that issue is in front of the Supreme Court right now with Yosvi Rahimi. They're looking at it in a Bruin challenge. You remember Bruin, the Second Amendment case from a couple of years ago, obviously the extremely originalist Second Amendmentcase, which essentially, if you read Bruin strictly, it seems like they don't want any regulations of guns at all. All. So Rahimi is bringing this and saying, well, there weren't restraining orders in 1787 or whatever, and you don't have to keep me from buying a gun because of it. Yep, naturally.

0:22:54 Thomas: Mm, yeah. Of course, yeah? Boy, sound legal reasoning right there. Glad you all went to law school for that.

0:23:15 Matt: Yep. Know what else there wasn't in 1797? It was crack cocaine. So it seems like a loophole there.

0:23:20 Thomas: Yeah. Or women's rights or a million other things, Yeah.

0:23:24 Matt: Right, yeah, right. Everything else. That actually, the constitutionality of this provision is actually under review, and we might know any day now when Rahimi comes down how the Supreme Court feels about 922 generally. And there is an associated case called Daniels that's also being held, not directly on point, but it's related. It is on point here because it involves G3, which is the provision I just read about drug use. So if that were to be found unconstitutional, then he'd at least potentially lose one of these charges. There are three total counts on here. Two of them have to do with lying on the form.

So one of those basically creating a record that a gun dealer is going to have, and the other one is just lying on in the form itself, then the third is being in possession at the time when you knew that you were an unlawful user of a controlled substance or a drug addict. So that's the 22 G3.

You would think that maybe libertarians and gun nuts would be a little concerned about this, but I haven't seen a lot of outcry from the people I would usually be hearing from

0:23:37 Thomas: Interesting.

0:24:17 Thomas: This strikes

0:24:17 Matt: On this kind of thing.

0:24:17 Thomas: Me as the kind of thing that can't have been prosecuted too much, right? I mean, seems pretty...

0:24:22 Matt: That's right. That is exactly. I looked into it. Has not. Generally, the main use of it is 922G1, which is when you have a prior conviction for a felony that you didn't disclose. And that is 87% of these convictions. 87% have been because people didn't disclose felonies. Very, very rare to have G3, which has just the drug thing by itself, or to have prosecutions for lying about the drug issue by itself. That's a very unusual thing. And it makes sense because there's no drug test before you buy a gun. So the only way they'd find out is if somebody snitched, I guess, or if they're looking into something else. As I suspected when I was looking into this, found I a memo from the U.S. Sentencing Commission that maybe we can link to that explains the recent use of this, 97% of the people charged with 922G offenses were sentenced to prison time.

0:24:32 Thomas: Sure. Yeah. Yeah. Wow.

0:25:09 Matt: 77% of them were black, 23% were white. What's interesting to me, the stats about this is that there were 64,142 cases involving 922G in charges, but only 8,688 convictions. And what that tells me, and I've confirmed, is that these charges are used to leverage people into pleading. So these are actually just what we're talking about in the lot of movies and for the people, this was a plot point.

0:25:34 Matt: It is something obviously that all prosecutors do, where you throw in something like distribution of heroin in a school zone rather rather than just distribution of heroin. And we'll drop the school zone, which has a mandatory penalty if you'll plead, right? So that kind of thing. So this is just one of those offenses that can be used for negotiation, which

0:25:34 Thomas: Which they kind of did, right? I mean, we had a plea deal.

0:25:49 Matt: Yeah. We should talk about that because this is really interesting. I could do an entire hour or a deep dive on what went wrong with this plea deal. Never heard of anything like this. I mean, I've certainly heard of judges rejecting pleas before, but this is a Trump-appointed judge for what it's worth. Name is Mary Ellen Nureka. Just because she is from Delaware, mother was a childhood friend of Joe Biden, because I think everybody's mother was probably a childhood friend of Joe in Delaware. Was, there was initially an information. So, an information is a thing you get before an indictment in some cases. An information doesn't require a grand jury.

It looks a lot like an indictment, but it's issued by a magistrate based on the information they're provided. And at that point, they can seek an indictment. This came through, as a lot of these kinds of paper cases do, because it was lying on a form. It didn't require grand jury necessarily to get it started. They went through the magistrate, got this information. The information in the original account was just the possession thing I was just talking about, the 922G3.

Hunter Biden reached a diversionary agreement with the federal government. This was back in June, July 2023, this was going on. And the diversion agreement was tied to a plea agreement in another case that we're not talking about today, but he's also charged with multiple tax violations in Central California for not paying or filing, I think, but also mostly paying his income taxes on a substantial amount of income.

More the kind of thing that you could expect to be prosecuted from if you're a certain amount of money. That's more of a normal prosecution, the IRS going after somebody who hasn't paid a lot of money in taxes. Arguably, that's a little less political maybe. What happens here is that there's this complicated thing. And I have both the diversion agreement and the plea agreements Politico obtained, but the diversion argument was available and unsealed on the PACER. And the diversion and the plead agreement were tied.

So essentially, in exchange for pleading to the tax cases and getting probation, avoiding jail time, he would have a 24 -month diversionary period where he'd be under the supervision of federal probation. He couldn't use drugs or drink, obviously, during that time, subject to other conditions. The end of that 24 months, if everything goes well, it's dismissed, as you'd expect in a diversionary agreement. Standard stuff.

And especially for a small charge like this, it's the kind of outcome I'd fully expect to get for a client when there's really not much to this. It's no prior record, no other issues, no violence alleged. It's just

0:25:56 Thomas: Yeah. Yeah,

0:27:55 Matt: Very simple. Usually these kinds of things you can imagine with illegal gun possession. You're talking about cartel members and organized crime and street gangs, people that have violent records. Another way this is unusual. Usual. On July 26, 2023, the parties come before Marianne Larenka, and it's supposed to be a nice, easy in and out, quick plea hearing kind of thing you wouldn't think would take more than 30 minutes even in federal court. And it takes three hours. She holds them there for three hours and downloaded the transcript from Pacer. It's an interesting read. It's hard to explain exactly, but I'll do my best here to explain what happened. But has a point in what she's saying here. I think I do understand that the parties, and this is probably mostly in the prosecution, this is a little sloppy, the way they put it together. It wasn't exactly clear under which provision of Rule 11, the Federal Criminal Rule of Procedure 11. 11 concerns sentencing and the rules around that.

There are at least three different ways that you can get into a plea deal and that a judge can bring it before the court, and the bases for this, I should say. So, A, that you cannot bring or move to dismiss other charges. You're making an exchange for that, and that's kind of what's going on here, because they'd only charged them with one, but they had other potential charges.

They can recommend or agree not to oppose a defendant's request, this is B, that a particular sentence or sentencing range is appropriate, or that they agree that a specific sentence or a sentencing rate is the appropriate disposition, C. So in a B plea, and I don't want to get too far down to the weeds here, but it is important for why this happened, a B plead, where they're agreeing that they're not going to oppose a defendant's request about a sentence, which is still a big deal in a criminal case to just get the government to back off and let the judge decide, that is not binding on the court.

0:27:55 Thomas: Yeah.

0:28:28 Thomas: The actors. Time to read a transcript.

0:29:33 Thomas: Oh,

0:29:33 Matt: So the court can do whatever they want if they think it's one of those. For a C agreement where they are agreeing to a specific sentence that is binding on the court. We talked about this a little bit in the federal plea episode.

0:29:33 Thomas: Yeah,

0:29:44 Matt: Nareka at this point says she's not really sure which provision this is being brought under, but she really doesn't like that she's being cut out of this, that she doesn't really seem to have a lot of agency to decide whether this is a good idea. She thinks this is far too expansive. There's also an immunity agreement in here which would immunize him from all other crimes. Crimes related to these things, the taxes and the guns, but I think she thinks it's too broad. Way she was describing it, it was almost like the, do you remember the Epstein prosecution agreement? That's a whole, I really want to do a deep dive on that at some point.

Yeah. But there's actually more to talk about, I think maybe since it was covered on a way, but actually immunized Epstein and anybody associated with him for all time from pretty much all crimes. It was absurd. And she was saying she'd never seen anything like it, which I'm sure that there's been something like it. But what happens at this three-hour plea hearing as the parties go back and forth. And finally, the judge does not think that this is brought the right way. She thinks it's unconstitutional. She doesn't like the way that it's tying the diversionary agreement and the plea agreement together.

She doesn't like this position that they've put her in as the party's. Funny to me is you put me right smack in the middle of the diversion agreement that I have no role in. You pop me right here and there on that thing I would normally have the ability to sign off on or look at in the context of a plea agreement.

You take it out and say, "Your Honor, don't pay any attention to that provision not to prosecute because we put it in an agreement beyond your ability." I can see her point if she's not allowed to look at some part of this. Complicated. The actual explanation for what happened in this is painful. It gets migraine-inducing.

0:30:08 Thomas: We covered that, didn't we? Oh wow.

0:31:03 Thomas: What

0:31:03 Matt: Just in terms of the way she went back and forth about which provision this is supposed to be brought under, to get your head around what she's trying to say and the way she comes down on it and the fact that eventually the parties are just like, "Okay, well, we're going going to trial because obviously the judge isn't going to accept this. This is the agreement we had." It was a pretty good agreement from what I can tell. And of course, there's already politically, you know, you've got Republicans screaming about how this is a sweetheart deal, even though I don't think, I don'T do federal criminal defense, but just given these charges, given this person, given, you know his whole deal, I DON'T see how this would end up in jail time for something like this, where it's a paper case with no record, but you know they're saying that he somehow is getting a deal that nobody else would get, etc., etc. So now, this week, he has started trial.

0:31:03 Thomas: Do you mean? Okay.

0:31:17 Thomas: Huh.

0:31:42 Thomas: It really was the judge that that scuttled this? It wasn't, thought I the immunity was the problem from my memory. Like they thought, Hunter Biden thought they were, he was getting immunity and then apparently he wasn't. It's So just a little different than I remember.

0:31:53 Matt: Yeah. It was ultimately up to the judge, but what it came down to is that in the course of this, she realized that the defense and the prosecution had different ideas about what this was going to do. So at that point, obviously is a concern, but

0:32:02 Thomas: Oh yeah. Well, definitely. I mean, just that alone, like, so they think that's right. Okay. So they think they've kind of met minds, possibly, and then the judge points out, like, we'll have you. And then at that point, it still seems to me that they could have been like, yes or no, let's fix that real quick. Why didn't that happen on

0:32:14 Matt: Mm -hmm.

0:32:25 Matt: A good question, because it seems like, like you said, if it's a contract, you just sit down and meet the minds. I'm not sure what happened from there, but there was some yelling apparently at one point, and somebody just yelled, "Let's rip it up." And that's the last we know. And it went on from there, and

0:32:35 Thomas: Which side? What do you mean, who, who yelled and who ripped what up? Was the kind of thing where, like, the public pressure got to them, and then they were... for they then they wanted to be like harsher on him or something? Wow.

0:32:44 Matt: I think they just realized that they weren't going to get the deal that they thought they were going to get. There was a huddle where Biden's lawyers huddled with DOJ and tried to figure this out, tried to salvage it. And it was overheard in the middle of the huddles, "We'll just rip it up," Chris Clark, Biden's then attorney, shouted as tempers flared. The judge asked what they want to do now, and the prosecutor confirmed there's no deal. And at that point, when you just can't reach a deal, then you have to go to trial.

So the indictment followed in September, and were three counts. In the indictement, They added the other two involving lying on the forms, and punishable by up to 25 years in prison. I don't think that's possible here. I shouldn't say possible, but I don't think it's likely. He was an actual addict, and not a cartel member. This is someone who's gone through a lot. I can't imagine sending to prison is really the way to go, but we'll see. As I said, 97 % of these do end up in prison, but I think it's because 97 % of these look very different from Hunter Biden.

0:32:58 Thomas: Jeez. Yeah.

0:33:30 Thomas: And interesting to me is, wasn't there any opportunity after that to renegotiate? It seemed like it just ended. It was just like, "All right, no." And it just seemed really sudden and irreversible in a way that I didn't know that's how it worked. Is it just like they realized they were at impasse? Or was there some procedural reason they just weren't allowed to continue negotiating?

0:33:51 Matt: They could have brought something else back. They could have certainly asked for more time to do that. Interesting, too, because the tax case that he was supposed to be entering the plea to, that's going to go to trial in the fall in California. So that's the other thing. Yeah, so he's going be on trial twice this year. Succession. Session.

0:34:00 Thomas: Wow. Jeez, it's gonna be hard for him to run president. For He's gonna have to campaign while he's... Oh, Oh, no, a different one. Sorry. This is just a guy that I don't actually care about at all. It's not important to me in any way.

0:34:09 Matt: Yeah, no, right. Yeah. I at. And so the trial at opening statements this morning, the day that we're recording, and I just want to summarize very quickly what the positions are. Biden is being represented by Abbott Lowell, who is a very famous DC attorney who represents a lot of scandalous people or people involved in scandals. He actually recently represented Jared Ivanka on advising on some ethics issues.

0:34:31 Thomas: Oh, God.

0:34:33 Matt: He represented Jack Abramoff. He represented Bob Menendez in his previous corruption trial, not the one that's going on right now. He's just kind of a bipartisan scandal guy. And he's a very good lawyer, from what I can tell, knows what he's doing. Lowell, in his opening statement, really emphasized that the government can't prove beyond a reasonable doubt that Hunter Biden was using for those 11 days. That's what they're going to have to do. Evidence that, you know, at the time, yeah, I know.

0:34:54 Thomas: Eleven days. What a stupid thing. OK, I

0:34:58 Matt: Know 11 days of possession. It's absurd. I'm not a gun rights person, but 11 days.

0:35:02 Thomas: don'T I think any mean, again, you're talking about some horrible criminal murder, drug cartel, whatever, it's one thing you're doing about somebody who doesn't have he has no does he have any sort of criminal record of any kind? I mean You know, he's been had a trouble past, but so he's got no criminal record. He's got nothing violent, nothing, anything. If you were to ask just any random person, "Hey, do you think this person's potential freedom should rest on whether he used a substance within this specific 11 days that he technically owned a gun?" I think most people would be like, well, that's insane. Like that's maybe a slap in the wrist, but yeah, like what are we talking about here?

0:35:15 Matt: No, I don't believe he does.

0:35:31 Matt: Yeah. What are we talking about? What is this? Yeah. I mean it actually reminds me of For the People, which I keep thinking about, the wonderful movies, with that speech from them.

0:35:41 Thomas: You'll never stop thinking about It. We've ruined our brains because it was the worst show ever made. Yeah.

0:35:47 Matt: But that speech from the U.S. attorney and, you know, about how, you know, you have to prosecute everything. You've got to, once in a while, you've just got to haul up a regular person and slam them with the justice or whatever, you know, just to make an example. You know, of course, Hunter Biden is not a regular person and he's getting, you and very unfortunately, the brunt of the fact that it's an election year where, to I the point that David Weiss was appointed special counsel at his request in August 2023 to sure that there was insulation from the justice departments So nobody could say the Justice Department, no matter what happens. The Justice Department wasn't involved directly in a way that Biden could have been responsible. So the special counsel is special counsel.

0:35:52 Thomas: Yeah.

0:36:18 Thomas: Can still say that, Matt. I Let me correct you. They can't still say whatever the F they want. Doesn't matter what we do, they can say anything.

0:36:20 Matt: Oh, of course they will. And they are, naturally. Very true. They will. And they have. And certainly, as I want to talk about sometime soon, they are saying anything about the Trump trial. They might as well say anything about this one.

0:36:25 Thomas: Yeah. Man.

0:36:31 Matt: Lowell really stressed in his opening about those 11 days, what was going on and the fact that it was Howie. Biden found the gun, threw it away, no harm done. Done. Prosecution's opening, as far as I can tell, was basically just nobody gets to lie to the government. Said even Hunter Biden. That's where we're at. Is going to be a number of witnesses that are going to have to testify that have been compelled to testify about his drug use at that time, including Hallie Biden, who threw the gun away. I think she's coming in pretty soon. She's been subpoenaed to testify against him. Of course, as I said, all that evidence from the laptop. So we'll start to see how that plays out.

0:36:59 Thomas: Talk about a Gavel Gavel. God, god, I want to cover this on Gavel Gavel. So interesting for so many different reasons. Yeah.

0:37:03 Matt: Could be interesting. Could be, yeah. Just to kind of show how one of these, I mean, it's just the charges and everything, but one interesting similarity to the Trump prosecution, I've identified a couple actually, but this morning they started off the evidence by reading excerpts from his book into court. So just like they did with Trump. Yeah.

0:37:19 Thomas: Great. Was it like, "Hey, always, always lie about," I don't think it's going to be as incriminating as Trump's was, hey, whenever filling out a form about owning and buying a gun, I always make sure to lie as much as possible. I don't think, that really would be the equivalent of what we saw in Trump's book. God, that was so hilarious.

0:37:23 Matt: Yeah, Right. No. Or it's funny. No, that's right. Yeah. Yeah, it would. Yeah. I think this is Hunter Biden talking about his addiction and his history. You know much much less Fun than the Trump books. He also filed motions to dismiss that have already been up and down to the Third Circuit, very similar to the ones that Trump filed. I think it's fair game. But, you know, he was saying, just as Trump was, that this is selective prosecution, which it's hard to argue that it's kind of not, given what we're just talking about. Also are arguing the same stuff about how the special counsel was unlawfully appointed and funded. So there's something there, obviously. I don't know anything about that legal issue, but Third Circuit actually refused to hear that because there was no final judgment and because they didn't consider anything that he was raising to be a collateral thing that could be attacked on an interlocutory motion. So the Third Circuit did not actually get anywhere with this.

0:37:42 Thomas: Yeah, sure.

0:38:14 Thomas: As in, like, you'd have to wait until after things are over to complain about this?

0:38:18 Matt: Challenging the prosecution in that way is not considered to be collateral because everybody would do it. And if it was collateral, then you would just get to hold up your trial with an interlocutory appeal every time because you just don't like the prosecution. Yeah, no, no. I just want to make that point out anyway. That's where we're at. We will see how this trial goes. It's probably going to be another week or two. Not as long as the Trump trial, I don't think, but we'll be following it during

0:38:23 Thomas: Yeah. Yeah. Yeah. Just clarifying terminology for, it really is down to the key is they have to prove he was on substance, like using substances for this 11 days or any time during this 11 days.

0:38:45 Matt: The time he's in possession. Yeah. And yeah, the Fifth Circuit's already found that this is unconstitutional. Know, like I was saying, that's kind of the bundle of cases that the Supreme Court's looking at right now.

0:38:47 Thomas: Yeah. Wait, what? They found that it's unconstitutional?

0:38:54 Matt: In the Daniels case I was telling you about.

0:38:56 Thomas: But I thought that was a different provision of the thing.

0:38:57 Matt: So, no, so Rahimi is the restraining order one, and Daniels is the one that they're also holding that involves this exact one with the drug use.

0:39:00 Thomas: Oh, oh, oh. I missed that. Okay.

0:39:05 Matt: So, Daniels

0:39:05 Thomas: Okay, so, So they're holding, well, they're insane, but they, they found the whole thing the unconstitutional, or just the drug use one? Yeah

0:39:13 Matt: As to the drug one, and they actually found that because it applies to people who are sober at the time, they filled out the application. And, you know, so you can say that kind of the problems here, it's a very strange thing. It is almost even kind of a status offense, the way that we were talking about just this week.

0:39:25 Thomas: I, you know, I was gonna, I was gonna mention that it's like, what is important is it that you were addicted? What was the wording of the question again?

0:39:29 Matt: Let question was, are you an unlawful user of or addicted to? Like, are you using right now, but are you just generally an unawful user? So, I mean, even just marijuana, if you just occasionally use marijuana in a state like this one where it's legal, that's enough. You don't have to be addicted. It's just, you know, there's a big difference between unlawfully user of and and addicted to. Those are big poles of contention there. So, you know, it is, it's very broad. Think it may be because it hasn't been charged by itself that often, it hasn'T been challenged much. So we'll see what they do with it. Other 2 charges still just have to do with lying on the form. If And this is unconstitutional, that could still be an issue because that's what he's lying about.

0:39:34 Thomas: User Right.

0:40:07 Thomas: And Were, where those lies is?

0:40:08 Matt: Said he lied on the form and that he lied to register the gun. Then the third charge is about the possession.

0:40:13 Thomas: Sorry, what did he lie about it?

0:40:15 Matt: His drug use. So it's lying on the forum by, that he wasn't a drug addict, and then lying on something that was going to be registered with, with the gun shop, and then being in possession of the gun while he was actually an addict, essentially. Lying about his addiction status on the forum is a separate issue. So you can see it. But it all comes back to this 922G thing.

0:40:33 Thomas: They have to prove, like, any sort of intent, like, can he, it seems like whenever Trump is in trouble for anything, it's just like, well, but does he 100% know and believe and say that he's lying? Or like, is there any room for Hunter Biden to be like, well, I don't understand the question to mean this, or what, uh,

0:40:50 Matt: That's a great question, because there actually was a Supreme Court case on this in 2021 on this exact question pertaining to the 922 statute generally, involving all these unlawful gun things. Rehaef, the U.S., it was a briar majority of 7-2, and it held that the government has to prove both the possession and the status at the time of the possession, and knowledge. There was an Alito dissent that was pretty scathing, saying that knowledge has never been an issue here, that they're kind of unlawfully reading it in. It doesn't matter, but there at least was some review of this already, already. See. Because this new look at the Second Amendment, the Bruin framework, certainly, and I thought this at the time, as a lot of people did, it seems like a lot of gun regulations would not hold up under the Bruins analysis. So we're starting just now to see the fallout from it. And we're seeing now in front of the Supreme Court. Any day now, I'm sure we'll talk about it when Ramey comes down.

0:41:34 Thomas: In all this stuff, I just want people to be treated pretty equally under the law. I mean, I get there's going to be a few concerns here and there for when you're running for president or have secret service, like, okay, yeah, there's gonna be certain slightly different things. Other than that, can we, we all just be treated equally under the law. And it strikes me that, like, I don't care about Hunter Biden whatsoever. He's not important to me in any way.

I forget he exists most of my day, actually. Don't think about him. Don't care. I don't have a hat with his name on it. Don't care. Seems like he's kind of getting prosecuted for something that people, anyone else in his situation, really wouldn't. So that seems like it's, in a way. However, however, you know, if we're here and he did break this law, then I don't know, I guess I'd want justice to apply to him like anybody else. Same goes for Trump.

And it's a way Trump did a way worse thing. And it was given all the chances in the world and did a worse thing, and I just am so tired of any sort of narrative that this has to do with Trump really, or is comparable, or, you know, like, what, do you think should happen at this point? Like, in the interest of, like, a, you're, lawyer, you're interested in, you know, the justice system, not sucking. What, what should happen here? Do you know enough to say whether he should be found guilty, be acquitted? Found? Do you have any opinion on it?

0:42:50 Matt: Evidence in front of me that would really depend on what the jury is going to see and how much they can prove during those 11 days that he was actually using. But generally, what should have happened is that plea and diversion agreement should have been accepted, because that's what would happen with pretty much anybody else. And if the case got that far, I mean, most people would not have the case get that far. And that is one thing that the Trump and the Biden prosecutions also have in common, is that they're both kind of unusual uses of the statute.

We've talked at length about the Trump New York statute and how that was applied. I don't think there's any issue there. Consequences of what he did, arguably, were that he became president. Like, that's how he did it in kind of the final analysis. I don'T know what having a gun for 11 days did for Hunter Biden. Point at which the has started with David Weiss in when Biden comes comes into office, it looks really bad to take him off that case. You can't really do it. You have to let it play itself out. And

0:42:53 Thomas: Yeah. Yeah. Yeah, yeah. Sure.

0:43:38 Matt: Then once he asked to be special counsel, you have to let him do it if you deny the special counsel request, that would look pretty bad, too. So even if in the worst case, David Weiss is a partisan hack, who's just a Trump guy all the way, you thing that kills me is knowing that we've been talking about for the past year or more that if Trump becomes president, and one of the only reasons he's running for president, that he will do whatever he can to broom the federal cases.

0:43:42 Thomas: Yeah do the opposite of that. Yeah.

0:43:58 Matt: Exactly. That he'll, he'll just immediately, in very serious charges, not dinky little gun charges, that he's going to find a way to drop these cases against him or put the right people on to make sure that they just fizzle out or whatever. We just know that. We know that's a thing that's going to happen in this country, that somebody is running for office so they can do that.

0:43:58 Thomas: Might as well be on his platform. Like you might as well actually just formalize it. Yeah Yeah.

0:44:18 Matt: Yeah, right. I promise not to have myself prosecuted. People would love that if he promised that at this point. But It's bad and it's dangerous. And I just want to say it again. I know I've said it before on this show. But that is not something that we should accept. It's not normal. It is just really strange.

0:44:22 Thomas: Yeah. Yeah.

0:44:37 Matt: Right, Thomas. Well, the last time we talked to you about the Hunter Biden trial was, oh, we've fast forwarded now to a different day. We talked on Tuesday, I believe, of last week when opening arguments had just started. The opening, excuse statements and initial witnesses gotten going, but we have a much better sense of this case now because the defense is now well into it. We don't know yet if Hunter Biden is going to testify. That hasn't been decided, but the defense has already presented a couple of witnesses. Is, but I just want to talk about kind of how this trial looks right now and where things are at. Know, our initial read of this was just that this seems like somebody who wouldn't have been prosecuted if he wasn't named Biden. Opinion of that has not changed at all. But have here is a very sad family story being brought out. You talked about how the his memoir was being used. That was actually the audio book. So they got to hear the actual audio of Hunter Biden

0:44:40 Thomas: From the future yeah opening Wow. Oh,

0:45:27 Matt: Reading it. So even if he doesn't testify, he's already testified. And it has to be even more affecting than hearing Trump's words read out loud by a publisher, right? I mean, you're actually hearing the man.

0:45:28 Thomas: Wow. You're saying the prosecution used that?

0:45:38 Matt: Which I think is especially cold because he's talking about his struggle with addiction. And they're trying to prove that in the fall of 2018 that he considered himself to be an addict. And They even brought in Hallie Biden, who was Beau Biden's widow, to talk about that because they were friends and had a relationship during that time. And she was the one who found the gun and was concerned about him. Biden's daughter, Naomi, who was also in touch with him during that time, and unfortunately, there's some contradiction between Naomi Biden's testimony and Hallie Biden's testimony. And it's very unfortunate, of course, because this is his daughter trying to help, of coarse, telling the truth, I have no doubt.

0:45:39 Thomas: Yeah. Oh, Wow. That's

0:46:13 Matt: She's coming in on behalf of the defense, Hallie Biden has been subpoenaed by the prosecution. And the family is very much all involved in this case, from what I can tell, and clearly all very concerned for him still. There's a contradiction here about the state of the truck. So Hunter Biden had a truck at that time, and his daughter Naomi was borrowing it. He asked at two in the morning in kind of a strange text if he could get the truck back, that he needed it.

Testified at the time that she had the truck, that it was fine, it was in good condition inside, and then Hallie Biden testified it was kind of a mess and she found the gun there. So there may be some contradiction about that. But what I thought was especially interesting was a piece of evidence that was excluded and potentially very important evidence excluded by this judge, who again was pointed by Trump for what it's worth, that the Starquest gun shop and the owner of this gun shop has already testified, his name is Gordon Cleveland, that they sold him a gun without the the two forms of identification that were required. There's no doubt

0:46:46 Thomas: Weird.

0:47:06 Thomas: Huh?

0:47:06 Matt: They recognized him, they knew who he was, they knew he was a Biden when he wanted to buy it. And you're required when buying a gun to present both, obviously, personal ID and then also ID that shows your residence. So it's absolutely required under federal law to present two forms of ID. And on the actual form that that was filled out, there's no doubt that the only form of ID that was presented was his passport. And later, when they sent it into the ATF in 2021, the gun shop added another form of ID.

0:47:19 Thomas: That's interesting.

0:47:37 Thomas: Hmm.

0:47:37 Matt: The Gordon Cleveland testified that he, at the time, was being sensitive to the fact that the address was actually Joe Biden's address, and he wanted to be careful about where that was at. But it does still look like this gun shop maybe was a little sloppy about its record keeping, and that there's kind of, right.

0:47:52 Thomas: Yeah, that there is a question that if they messed up their side of it, you know, does that mean you can hold Hunter Biden accountable? I mean, I could kind of see arguments both ways there. It's like that doesn't get you out of jail free, I guess, but it still makes it even more dinky to be like, well, they messed up their side of it. But also you might have said something wrong about this gun you had for 11 days. It's just like, come on, what are we doing here?

0:47:56 Matt: Yes.

0:48:14 Matt: Well, And potentially too, they committed a crime by not properly registering the sale. That's kind of a sticky thing. And it looks like the gun shop owners have already been given immunity, and the judges excluded any possibility that that comes out to the jury.

0:48:22 Thomas: Wow. I'm sorry. They've been given immunity. So for the crime that is a crime, like we're talking about basically the same level of crime. Like I think I'll tell you this, it's worse if a gun shop is violating this law because they are are probably doing it repeatedly with everyone who buys their guns. Potentially, I'm saying. If one person does it one time, yeah, okay, it's still a crime by the letter of the law. Sure, whatever. But when you're talking about prosecutorial decisions and actual harm and all that, that's outrageous. So the gunshot people get immunity in exchange for bringing down this Hunter Biden for having lied this gun he had for 11 days or lied about his drug habit. That's feeling pretty stupid to me. Do I

0:48:29 Matt: Yeah. It looks that way. Yeah, yeah, yeah. Record keeping.

0:49:07 Matt: No,

0:49:07 Thomas: Have anything wrong there? What do you think?

0:49:08 Matt: No, I agree. And I think that this is a really important part of the defense because the gun owner's testimony, The gun shop owner's testimony has been somewhat contradictory about how he took this record and how he generally keeps these records. He mentions at one point in his testimony that he was told that it's okay to just have a passport when, you know, that's just not the law. I think it is really relevant that the form that they ended up sending in, exactly.

0:49:27 Thomas: They Could have given Hunter Biden immunity to testify against this gun shop owner. Am I crazy,

0:49:33 Matt: No, no, it's very selective about how they're doing this. Yeah. And 2021 form that was sent to the ATF had this addition on it. And that's obviously a real problem if you're adding something to the form after the customer walks out of the store. But the judge excluded it because in both versions of the form, the no box is checked on the relevant question about the drugs.

0:49:33 Thomas: This is insane.

0:49:54 Thomas: Yeah.

0:49:54 Matt: And she's saying that's the real thing. It would prejudice the jury too much to find this out. And I don't know. I think this is going to be be a pretty good appeal issue because it's a pretty major piece of evidence and it's

0:50:02 Thomas: Well, What would you, okay, so what is the evidence, is it, would it be like, hey, for all you know he didn't even check that checkbox, you

0:50:11 Matt: Also yeah it's that but it's Also how thorough he is when he goes through the form with people because he testified that you know, he was standing there watching him while he filled out the form. So there's you know there's just a lot of if you're going to force this beyond a reasonable doubt as a defense absolutely must you to make sure the government's proving its burden.

0:50:24 Thomas: Yeah, They can't bring in that evidence to impeach that witness that

0:50:28 Matt: This is right. That's that's what I'm saying. Too prejudicial according to this judge. So that is that's a problem.

0:50:29 Thomas: Seems okay and Hunter Bide is under a gag order, not even allowed to testify. No, sorry. I'm mixing it up.

0:50:37 Matt: Yeah, it's somebody else. Yeah. Only one person that's ever happened to, and of course it's Donald Trump.

0:50:41 Thomas: He didn't gag him. Would just like to tell everybody that Matt let me know that he's mad. But beforehand, he was like, I'm mad about this. And I was like man, can't wait to hear it, buddy.

0:50:48 Matt: I am. Yeah I really am. I mean it's especially Could you

0:50:56 Thomas: Lovable Matt, never expressing any anger.

0:50:59 Matt: Not tell?

0:51:00 Thomas: No it it is. No, I'm happy to be your anger aid, Matt.

0:51:03 Matt: It's true.

0:51:04 Thomas: I can... Yeah.

0:51:05 Matt: Because the other thing about this is, I guess, just the whole thing, right? The whole picture they're trying to paint. Contrast between using Donald Trump's book about how he's an asshole businessman, right, who counts every penny and watches every check go out. I mean, that's fine. But bringing in this guy's memoir, bringing out all this personal pain, putting him on on trial, essentially, for being an addict, and then trying to prove that he was an addict for this 11-day period.

And they're not doing a very good job of that, because they don't have anything really on point during those 11 days. They just have to try to rely on sort of general evidence that's out there, and the impressions of the people around him, and whatever else. There's potentially one text, I think, during that period that mentions smoking crack. It's not entirely clear, you know, to what level, though, he was a addict or a user during that time.

And his daughter testified that he was living with a sober coach and that he was doing pretty well and that she had a good impression of where he was at in the fall of 2018. So I think this there's plenty of doubt here. The infamous laptop made an appearance, and that's relevant because it includes all of this evidence about his addiction.

And I've seen a lot of conflicting headlines about this, and of course, a lot of right-wing people crowing about how this proves the laptop actually exists, and it's real, and the FBI is relying on it. Yes, it's always existed. It's also, it should be hard drive from the laptop. There's a lot of confusion about this, thing has been all over.

And one of the things we've learned from all of this is that Hunter Biden didn't really exercise any digital security or privacy on any of his devices. So there's a real chain of custody issue with a lot of this stuff. I want to credit the reporting of Marcy Wheeler, the independent journalist who has

0:52:33 Matt: Been covering this like nobody else. And I'm drawing some of what I'm talking about here from her site and her very good Twitter feed that is well worth a check at Empty Wheel.

0:52:33 Thomas: Oh, yeah. Empty wheel. Yeah. I want to say she came on OA back in the day, I think.

0:52:44 Matt: Probably did and she's a great guest. I'm sure, because the level of detail she goes into and the way that she's been carefully following this is really filling in gaps that the mainstream media doesn't seem to be

0:52:45 Thomas: Yeah, because Just to make it clear, I mean, I know we didn't have time to go into the laptop story, and I would love to, but the right would like to say that this is a laptop that he took in for repairs, and he happened to take it into into the most right-wing asshole in the world who, and he also happened to not pick it back up. He just left it there. And this right-wing asshole turned it, didn't even call like Rudy Giuliani or something crazy like that, that I was like, in my mind, I was Like, there is no way that that's true. Like, that just can't be true. But then I got a lot of pushback, actually, from a lot of cybersecurity people who listen who are like, hey, this, that happens. Like Like they essentially people who told me like, hey, you'd be surprised like people not only yes, is it easy to like access all this stuff? There's no like password protection, you know, whatever. It's not going to be like that.

Well, it also depends on if it's actually if it'S a PC or a Mac type laptop, which is funny. But anyway, they also told me, like, yeah, this this actually does tend to happen. Like people just forget their stuff and don't. And I was like, God, that but that's a hell of a coincidence, like hell of a coincidence. But the other side would say that, possible this information could or the data could have been hacked and fed to this guy or put on a laptop.

It's like either way, it feels a little tinfoil hat to me. And so I feel like there isn't a solid dead -to -rights kind of opinion on that, but I also haven't kept up with it as much as probably you have. And that's what I've been curious to look at with this trial to see if if we get any further answers on that.

0:53:16 Matt: Yeah, he knew what it was, yeah.

0:54:19 Matt: And I don't think we have a lot more, because, as Marcy Boyer points out, there have been sort of different iterations of this thing floating around. It's just the hard drive, it's very hard to authenticate, and the FBI witness did not do a particularly good job of actually saying that they have actually authenticated the laptop up itself. What they have authenticated is the emails, I think, that we're talking about and some of the other things. But there not a firm confirmation that this is absolutely the hard drive of the same device that was dropped off at that repair shop. And I think that's important too.

0:54:46 Thomas: Guess if they're only having to authenticate the individual pieces of data that they're using, then maybe we won't get that kind of answer. I don't know. Unless it's the kind of thing where you can cast out on the whole thing. But do know that a common form of this misinformation is hacking and then releasing amongst 97 % real stuff, 3% fake stuff. So it's not as though any one confirmation means that all the stuff is real. But also, obviously, they, they got real stuff. Yeah, it's, it's weird. Okay, well, we'll keep an eye on it for sure. The

0:55:04 Matt: Yes, exactly.

0:55:16 Matt: Yeah. And this makes me really sad also, along with being angry, just to see someone's private pain out there when, you know, his motion to this case on selective prosecution grounds is already denied, as we just discussed. He already tried to take it up with the Third Circuit. This seems like a really clear case of selective prosecution as we're watching this. You know, they're just, the way that they have gone out of their way, just overbearing on all of this to try to prove these things.

0:55:39 Thomas: Gun shop thing's insane, Matt.

0:55:40 Matt: It is. And the judge called it a conspiratorial theory in a footnote. And she said that essentially she's keeping it out because she thinks that this seems like a conspiracy theory. But again, it's important.

0:55:41 Thomas: Like that's that's crazy oh Like they messed up the form or something, or what's a conspiracy, oh okay but

0:55:55 Matt: They're using the word doctored, and they're trying to suggest that maybe other things could be doctored. But obviously, if they were... I don't know.

0:56:02 Thomas: I'm making a slightly different point, which is the fact that they might have broken, that they have immunity, like, they broke the law, and the fact that we're punishing the guy who would have lied once, inconsequentially, versus, uh, shopkeepers who clearly would have lots of buyers, and if they're inconsistently, you know, these rules that I think are very, but the very little rules that we have about guns in this country, like, if they're not following those well, I would rather go after people where they're going to be repeatedly doing that in a way that would be more harmful. Oh,

0:56:32 Matt: Yeah, and I was just reading the other day that I t remember where I read this, but there was a U.S. attorney saying that if you just wanted, in my district right now, to just prosecute PPP, the COVID loan violations, we could do that. We could do it all day. We have more than enough of the PPP cases.

0:56:43 Thomas: God yeah yeah it would make a lot of money back, probably all

0:56:46 Matt: Alone. Yeah, probably, right? That would actually be much more public service. More.

0:56:49 Thomas: Right. Well, that's infuriating, Matt. We'll talk more about it. We'll keep an eye on the laptop thing. And thanks so much for the coverage. The time to get that update, because we got to hear you really mad. I mean, I'm scared right now, actually. Fearful.

0:56:59 Matt: I'm just shaking with rage. You got it. All right.

0:57:01 Thomas: Yeah. No, thanks so mucho for listening, everybody. We love you so much. Support the show, patreon.com/law. And uh, look forward to Wednesday's T3B with Heather, which has been so fun, gotten so much good feedback about that. Uh, really fun. I do, I do want to say I sincerely miss your puns. I'm tempted to run the questions by you to see if I can like get your puns in there somehow. We'll see, we'll say if it's but uh

0:57:12 Matt: Yeah? Whatever.

0:57:23 Matt: Well, it's good to know that I'm not barred from this.

0:57:24 Thomas: Yeah thanks everyone for listening, and never mind, I don't actually miss the puns that much. I thank you for reminding me the grass is always greener, you know, like you think. No, I'm just kidding. All right. Thanks so much, Matt. And thanks so much, listeners. We'll see you next time.

0:57:40 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.