But every time something comes along so shocking that it ought to surprise, our side promptly overreacts, finds a Russian plot lurking behind -- well, just about everything, Trump says "Russia, Russia, Russia" and "hoax" and the whole thing is discredited. And here we are, doing it all over again with the Smirnov indictment. I refer to numerous people on our side claiming that the discredited report accusing Joe and Hunter Biden of accepting bribes is Russian disinformation, as opposed to simple lies.
The Whole Episode is Shocking
The account set forth in Special Counsel David Weiss's indictment is certainly shocking. During the 2020 election, the Department of Justice (DOJ) Western District of Pennsylvania, led by US Attorney Scott Brady was tasked with investigating tips from the "public" -- meaning primarily felgercarb from Rudy Giuliani -- about the Bidens' activities in Ukraine. Besides investigating these tips, the District apparently went digging through old reports for anything that might be related. One such report was a report from Alexander Smirnov dating back to 2017 that made a "brief, non-relevant" discussion of Hunter Biden's role on the Burisma board of directors. For no discernable reason, the District asked Smirnov's handler to follow up with him about that report. The handler may have been somewhat reluctant. One month earlier, Smirnov had been expressing confidence that he could find recordings to prove that the Bidens had been bribed, although all he actually managed to produce was a picture purporting to show Joe and Hunter Biden playing golf with Burisma founder Mykola Zlochevsky. The indictment says that the photograph did not show what it claimed, but did not say what the photograph did show. Smirnov said, "I'll meet with the guys as soon as I will be able to fly."
Be that as it may, the handler spoke to Smirnov and got a report alleging four conversations Smirnov had with Zlochevesky -- in 2015, 2016, 2017 and 2019 -- in which Zlochevsky said he paid the Bidens $5 million each, laundered so well as to be untraceable, and that he had texts and recordings to prove it. Oddly enough, Smirnov, though working as an FBI informant, had never seen fit to report any of this before, and Zlochevsky was conveniently on the run and not reachable. The handler nonetheless asked Smirnov for his travel records and presumably determined that he was lying. At least, when the Special Counsel looked at the records, provided by the handler, Special Counsel had no difficulty determining that the meetings never took place. The disproof was presumably why the Western District of Pennsylvania closed the matter. The FBI nonetheless kept Smirnov on as an informant, presumably because he had valuable ties to Russian intelligence that were not easily replaced.
That should have been the end of it -- disturbing, obviously, but closed, so one might say no harm, no foul. In 2023, when Republicans retook control of the House of Representatives, they learned (under unknown circumstances) about the report and made it the centerpiece of their investigation of Hunter Biden, with a presumed eye to impeaching his father. The reopening also led to a curious dispute. Jamie Raskin said that the investigation had been closed. Trump's Attorney General William Barr disputed that and said that the matter was referred to the District of Delaware (where the investigation of Hunter Biden was taking place) for further investigation. That leaves two possibilities -- either Barr was lying or the matter was sent to Delaware, but no one in Delaware saw it as worth pursuing. Marcy Wheeler of Emptywheel appears to favor the latter explanation. Her reconstruction of events is that the Western Pennsylvania District determined the matter to be without merit and closed it in July, 2020. In October, Trump demanded more material on Hunter from Barr, so Barr directed the Western Pennsylvania to forward the matter to Delaware. The Delaware District took no further action until it came under pressure from Congress.
All of that sounds fairly shocking to me, and suggests that anyone concerned about weaponization of government may have better places to look than Twitter's refusal to link to a story from the New York Post.
But is it surprising?
OK, I'll admit it. One reason I was surprised by the whole thing is that I wasn't paying attention. I sporadically follow Emptywheel, but it is hard going. A typical Emptywheel column starts out with a subject that sounds interesting and soon trails off into incomprehensible minutia which leaves me wondering whether she is going too far into the weeds for me, or if this is descending into outright paranoia. I stopped following some time ago.
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| Scott Brady |
Which is s shame, it turns out. What I found most shocking (to the point of being surprising) about Smirnov's report was that the district tasked with investigating Giuliani's felgercarb saw fit to direct Smirnov's handler to interview him based on an innocuous mention of Hunter and Burisma in 2017. If I had followed Emptywheel, I would have learned that this was not a new discovery. Emptywheel devoted a column back in November devoted to the analysis of US Attorney Scott Brady's testimony to the House Judiciary Committee (191 pages). I had a vague memory that such testimony occurred and that Brady said they had been able to verify Smirnov to the extent of establishing that he was in the places at the times he alleged. We now know that is not correct.
During his interview, Brady testified that as part of the investigation of reports from the "public" about the Bidens in Ukraine, he directed the FBI to search their files for information on Hunter Biden and Burisma, and they came across a 2017 report from Smirnov in the Washington Field Office. Under questioning from Democrats, Brady switched his story to say they were searching for information on Zlochevsky. Either way, apparently an isolated, innocuous reference to Hunter Biden and Burisma three years earlier was deemed important enough to follow up on. This really looks like using the FBI for opposition research.
So far as I can tell from the Emptywheel article, no one on the committee asked Brady the bleeding obvious question. Smirnov was coming forward with explosive revelations about the Bidens that he purportedly received as much as five years earlier. He sent regular (and purportedly reliable) reports to the FBI. Did anyone at the FBI ask why didn't he see fit to disclose any of these shocking allegations until now?!?! (I suppose I should go through all 191 pages to see if it is in there).
As I understand it, Brady said that the FBI had been able to verify parts of Smirnov's report, such as establishing that people were present at the places and times alleged. If I wanted to be charitable, I would say that this is accurate -- for the 2017 report. But Weiss's Special Counsel's office was easily able to refute the 2020 report based on travel records. Furthermore, its source for these travel records was Smirnov's handler. It surpasses belief that Brady and his team were not also able to figure out, based on his travel records, that Smirnov was lying to them My own, uninformed guess is that the FBI did figure out that Smirnov was lying and that was the reason they closed the investigation. But they kept him on as a source because his network of contacts was too valuable to throw away.
So for that, at least, we can reasonably be surprised. Or can we? Emptywheel offers a clear tell from the interview. Brady's attorney directed him not to answer specific questions about what investigation he performed to verify the information in Smirnov's report. Generally speaking, when a suspect says not to look under the floor boards, it means that is the place to look. Asked in general about the vetting he did, Brady answered:
I think what our broadly, without going into specifics, what we were looking to do was corroborate information that we could receive, you know, relating to travel, relating to the allegation of purchase of a North American oil and gas company during this period by Burisma for the amount that’s discussed in there. We used open sources and other information to try to make a credibility assessment, a limited credibility assessment. We did not interview any of the subsources, nor did we look at public statements by the subsources relating to what was contained in the 1023. We believed that that was best left to a U.S. attorney’s office with a predicated grand jury investigation to take further.
Democrats on the committee, not knowing that Smirnov's travel records contradicted his report, focused on Zlochevsky's and other Ukrainians' public statements denying any improper influence on the Biden's, as well as Zlochevesky's non-pubic answers to Giuliani.*
So it seems fair to say that we should have recognized the FBI did not properly vet Smirnov's report and not been surprised that it turned out to have serious problems. But we are at least entitled to be surprised that the FBI had travel records in its possession proving that Smirnov was lying and did not reveal that the whole thing had been decisively refuted.
It also appears true that, under pressure from Trump and Barr, the West Pennsylvania District passed this disproven and closed report on to Delaware for possible criminal investigation. And, again, that is not just shocking, but I think we are now entitled to be surprised that West Pennsylvania had proof the report was false when they forwarded it.
But can we please not get paranoid
So, yes, all of this looks bad. Probably bad enough to warrant, once again, asking the Inspector General to investigate the investigators.
But can we please drop the claim that Smirnov's allegation of bribery was Russian disinformation. It was nothing of the kind, just a plain, old-fashioned lie. Smirnov, after all, was not passing on some third- or fourth-hand rumor from a Russian connection. He was purporting to report on conversations that he personally took part in. He most certainly knew that these conversations never took place and that he was making them up out of thin air.
It is true that about a month before coming up with these stories, he was attempting to chase down evidence, which he believed genuinely existed, of Biden taking a bribe (Indictment, paragraphs 8-11). It is true that Smirnov had a text exchange with his handler which concluded with Smirnov saying, "I'll meet with the guys as soon as I will be able to fly." (paragraph 11). Smirnov did not indicate who the "guys" were. It does seem plausible that the "guys" were his Russian connections, and that they failed to yield anything of value. Nor does it seem too much of a stretch to suspect that this failure to find any real information was what convinced Smirnov to lie.
But, first of all, this is pure speculation on my part and, second, this is not Russian disinformation. It is just the opposite. If true, this would mean that it was the lack of useful disinformation that persuaded Smirnov to lie. And this is an important distinction to keep in mind because our side genuinely did fall for Russia disinformation in the Steele Dossier, which the right wing in general and Trump in particular have seized on to dismiss as "the Russia hoax" or "Russia, Russia, Russia." The result has been that every time our side says Russian disinformation, the right wing has a Pavlovian reflex to dismiss it as a hoax and much of the mainstream media goes along. For that very reason, we must not say Russian disinformation when 2020 report was not, in fact, Russian disinformation.**
*And here is where Emptywheel slips into paranoia, or at least rank speculation. According to Lev Parnas, Giuliani offered to intercede for Zlochevsky with the DOJ if Zlochevsky would give him dirt on Hunter. The original 2017 report by Smirnov was part of an investigation of Zlochevsky under the Foreign Corrupt Practices Act, which was ultimately dropped in December, 2019. She speculates that Zlochevesky gave Smirnov dirt on the Bidens in 2019 in return for the investigation being dropped. Granted, she made this speculation in November, 2023, before the indictment landed. But, aside from being wholly unsupported, there is an obvious problem with this speculation. Smirnov alleged that Zlochevsky made his bribery allegations well before 2019 and only gave new details in 2019.
**Admittedly, Smirnov did pass on Russian disinformation after he was caught, alleging that the Russians had recorded Hunter while staying at the Premier Hotel in Kiev. At least, he attributed this information to Russian intelligence sources, and the FBI was able to confirm that the Premier Hotel was a nest of Russian espionage. But they also knew the story was false because Hunter had never been to Kiev and did not even bother with further investigation. My own, uninformed speculation, is that at this point the FBI realized the Russians were on to Smirnov and were feeding him deliberate lies, making him useless to them, and that this played a major role in their decision to indict. Others, better informed than I am, have speculated that it was the 2020 report going public that tipped the Russians off.
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