More From Abbe Lowell

Since the elevation of David Weiss to special counsel in the Hunter cases, the one highly visible member of Hunter's legal team has been Abbe Lowell. In yesterday's post, I quoted from an interview he gave Friday on CNN's The Source with Kaitlan Collins. The context of Mr Lowell's apparent new status as lead in Hunter's Delaware cases appears to be the breakdown of the proposed plea agreement in Judge Noreika's Delaware courtroom on July 26.

Hunter's lead attorney on the gun and tax cases up to that point had been Chris Clark. On July 26, Mr Lowell had just been sitting in the courtroom audience along with Kevin Morris, who characterizes himself as Hunter's overall lead attorney and who apparently pays Hunter's legal bills, so he calls the overall shots. When Clark and the prosecutors failed to agree on the deliberately unspoken terms of Hunter's diversion agreement, it sounds as though Messrs Morris and Lowell decided it was time for Lowell to step in.

“Abbe Lowell freaked out, according to my buddy in the courtroom,” said Will Scharf, who also worked as a staffer supporting the Supreme Court confirmations for justices Brett M. Kavanaugh and Amy Coney Barrett.

. . . Lowell’s outburst came when federal Judge Maryellen Noreika asked Assistant U.S. Attorney Leo J. Wise if the government was foregoing future prosecutions of Biden based on conduct known to the government, Wise said: No.

Scharf said that his courtroom source told him that Lowell was incensed and glared at the federal prosecutors when it was revealed that Biden would still be subject to violations of the Foreign Agents Registration Act and other charges—which Wise confirmed to the judge when he told her there were still ongoing investigations.

“Lowell stood up and made a commotion,” said Scharf, who earned his bachelor’s in history at Princeton.

“Then, apparently, he approached one of the DOJ lawyers and said: ‘I wasn’t involved in this case. Now, I am involved in this case.”

As I noted yesterday, Lowell's position as implied in his remarks to Kaitlan Collins is that the prosecutors were acting in bad faith, backing off what Lowell clearly felt was a previous unspoken agreement. And now that Lowell is the one talking to CNN, it looks as though Chris Clark has been shunted aside. We've seen many different interpretations of Attorney General Garland's naming David Weiss special counsel since Friday, but I think Abbe Lowell's take is a strong one, since he's looking at the situation entirely from Hunter's interests -- and he thinks Garland caved to political pressure from the right.

“From the moment this arrangement and agreement has been announced and filed, you have every MAGA right-wing, fanatical person, yelling, and screaming, and saying: ‘It’s not right, and it’s not fair, and it’s not just,’” said Abbe Lowell, Washington’s premier defense attorney and fixer of legal entanglements.

. . . “You have the former president trying to use Hunter Biden as a way to excuse his own conduct,” he said. “At some point, that could pierce; the noise could actually be so noisy that it’d get in the way of the facts and the law.”

Then, Lowell sent a shot across Weiss’ bow: “I am confident that a responsible prosecutor would not let that happen, and we’ll just have to wait and see.”

Lowell, whose job again is to protect his client's interests, is going to maintain the position that the original favorable deal with the guilty pleas and the diversion agreement should stand, and the prosecutors backed off at the last minute due to political pressure. But from Hunter's standpoint, nothing has changed:

Lowell said it should not matter that Weiss is now a special counsel because he and Garland have said there were no restrictions on Weiss taking the investigations and prosecutions wherever he wanted to go, so nothing has changed.

“David Weiss was in charge of the investigation last year, the year before that, and the year before that,” he said.

“He is in charge of the investigation today and tomorrow. He has a new title. His powers, in our view, are the same,” he said. “The evidence hasn’t changed. The law hasn’t changed.”

Now, of course, something has in fact changed, if nothing else, because Garland and Weiss are responding to political pressure, at minimum to improve appearances. As of Friday,

David Weiss, the U.S. attorney leading the investigation moved to dismiss the case against Biden in new court filings so prosecutors can bring charges in Washington, D.C., or California.

. . . After the hearing last month, both parties were directed to submit in writing their responses to Judge Maryellen Noreika’s concerns. On Friday, the Justice Department asked Noreika to set aside those briefing deadlines.

“The Court’s briefing order is premised on the idea that the parties intend to continue towards a guilty plea in Criminal Action No. 23-mj-00274 and diversion in Criminal Action No. 23-cr-00061,” prosecutors wrote.

“But that is no longer the case,” they said. “Following additional negotiations after the hearing held on July 26, 2023, the parties are at an impasse and are not in agreement on either a plea agreement or a diversion agreement. Therefore, the Government believes the Court’s briefing order should be vacated.”

The general reaction to Weiss's designation as special counsel has been that it enabled him to make this move, and the assumption has also been that the likely result will nevertheless be that Weiss will resume a strategy of delaying any action over Hunter, at least until after the 2024 election.

But Lowell's problem, as Hunter's attorney, is that this extends Hunter's risk, and it subordinates the favorable resolution of his client's case to the political winds as they affect Joe. Up to July 26, Hunter had a sure thing, and his risk would end on that day. Now he doesn't, his risk now continues indefinitely, irrespective of any under-the-table renegotiations or assurances Garland and Weiss may give him, which in Lowell's view can no longer be trusted anyhow.

But let's think this through. Abbe Lowell is a seasoned Washington player. He has a client whose interests he's obligated to pursue, and the client is Hunter, not Weiss, not Garland, not even Joe. What I'm reading from this situation is that Hunter's interests are no longer necessarily aligned with Joe's, and that changed on July 26. This changes the dynamic: what does Hunter have on Joe that he could use to protect himself from bad faith dealing and political expedience in these changed circumstances? As Lowell himself says, we’ll just have to wait and see.