David Weiss’s Latest Motion Shows By Protecting The Bidens, He Compromised National Security
A federal judge rejected Special Counsel David Weiss’s request that confidential human source Alexander Smirnov remain jailed pending trial on charges that he lied to the FBI. While the special counsel’s office lost its motion to detain Smirnov, Weiss likely viewed the defeat as a public relations victory, given the gratuitous details he included in the memorandum filed with the court.
Weiss would be wrong, however, to consider anything about his office’s prosecution of Smirnov as a win. Rather, Tuesday’s court filing — if accurate — renders Weiss’s incompetence even more consequential.
Last week, news broke that Weiss had charged Smirnov in a two-count indictment with making false statements to the FBI and creating a false and fictitious record. The charges stem from Smirnov’s alleged lies to the FBI in June of 2020 concerning conversations Smirnov claims he had in 2015-2016 and then again in 2017 with various executives of the Ukrainian energy company Burisma.
Among other things, Smirnov claimed Burisma executives said Hunter and Joe Biden pressured them to pay them $5 million each in bribes to ensure the Ukrainian prosecutor’s office left Burisma untouched. The handler memorialized Smirnov’s reporting in an FD-1023, which Sen. Chuck Grassley, R-Iowa, later released to the public after whistleblowers suggested the Delaware U.S. attorney’s office had failed to investigate the CHS’s claims.
In indicting Smirnov, Weiss confirmed his office had botched the Hunter Biden investigation by ignoring the FD-1023 for nearly three years — and then only investigating Smirnov’s claims after Grassley made the document public. Specifically, according to Thursday’s indictment, the FBI did not question Smirnov about his reporting until Sept. 27, 2023.
As I wrote at the time, the “timeline confirms the incompetence of Weiss in handling the investigation into Hunter Biden because in October 2020, Weiss’s Delaware office received ‘a substantive briefing’ concerning the FD-1023 from the Pittsburgh U.S. attorney’s office.”
Former Attorney General William Barr had tasked Pittsburgh with screening information related to Ukraine, which agents did with the FD-1023. Among other things, the Pennsylvania-based office obtained travel records of the confidential human source (CHS) and communicated with the CHS’s handler, with the information obtained consistent with Smirnov’s representations in the FD-1023. In screening the material, the U.S. attorney in Pittsburgh, Scott Brady, also vetted the FD-1023 “against known sources of Russian disinformation,” and found no connection. Accordingly, Pittsburgh closed out its screening process and forwarded the material to Delaware, recommending that Weiss’s team investigate the allegations.
U.S. Attorney Weiss’s team must have done nothing further, though, because not only did the FBI only recently question Smirnov, but Smirnov continued to serve as a CHS for the FBI. That later point only became clear Tuesday when the special counsel’s office filed a motion to keep Smirnov detained pending trial.
In Tuesday’s memorandum in support of detention, Weiss argued Smirnov was a flight risk, supporting that argument in part by highlighting Smirnov’s many connections to foreign intelligence services, including individuals in Russian intelligence.
And how do we know about those connections? Because Smirnov reported the contacts to his handler.
For instance, in October 2023, Smirnov reported numerous contacts with Russian Official 1, who was described “as the son of a former high-ranking Russian government official.” Smirnov apparently also claimed Russian Official 1 controlled “two groups of individuals tasked with carrying out assassination efforts in a third-party country,” as well as “someone with ties to a particular Russian intelligence service.”
Smirnov also reported to his handler a meeting in December 2023 with Russian Official 1, as well as a second meeting with Russian Official 2, the latter of whom Smirnov “described as a high-ranking member of a specific Russian foreign intelligence service.” Smirnov further claimed that during this trip, he learned that “Russian Official 4, the head of a particular unit of a Russian Intelligence Service, ran an intelligence operation at a ‘club’ located at a particular hotel.” Smirnov told his handler that “the Russian Intelligence Service intercepted several calls placed by prominent U.S. persons the Russian government may use as ‘kompromat’ in the 2024 election…”
In Tuesday’s court filing, Special Counsel Weiss’s office argued, “Smirnov’s contacts with Russian officials who are affiliated with Russian intelligence services are not benign,” because when the FBI finally got around to interviewing him in September 2023, Smirnov claimed he had seen video footage of Hunter Biden at the Russian-controlled hotel in Kiev. But Hunter had never traveled to Kiev, the motion stressed. This shows, according to Weiss, that Smirnov is attempting to interfere in the 2024 election.
“He is actively peddling new lies that could impact U.S. elections after meeting with Russian intelligence officials in November,” Weiss wrote in Tuesday’s filing — a not-so-subtle suggestion that Smirnov is taking part in a Russian disinformation plot to interfere in the upcoming presidential election.
If true, Weiss’s incompetence left the man he would have us believe is a Russian asset not just free in America, but working to interfere in our election and pushing who knows what other lies to the FBI. Further, because the Delaware U.S. attorney’s office did not investigate Smirnov’s claims in 2020, he was never branded as a possible source of Russian lies.
Recall also that until recently, the FBI considered Smirnov a highly credible source and one even authorized to engage in criminal conduct. What information might our FBI have entrusted Smirnov with during those three years?
In short, while the Delaware U.S. attorney’s office’s goal may have been protecting Hunter Biden, by failing to investigate the FD-1023, they harmed our national security.
This all assumes the indictment and the memorandum represent reality. Smirnov has yet to have his day in court, and there may be much more to the story. But one thing is certain, even if Smirnov is guilty, that does not exonerate Weiss.
Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion (forthcoming), National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prive—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.
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