Attorneys representing Hunter Biden in his criminal tax case, which is scheduled to be heard in the United States District Court in Wilmington, Delaware, on Wednesday, have responded to an order from the presiding judge to “show cause as to why sanctions shouldn’t be considered for misrepresentations to the Court.” That order came after someone working at the firm, Latham & Watkins, called the clerk’s office and allegedly claimed that she was with a law firm representing House Ways and Means Chairman Rep. Jason Smith, who had just filed an amicus brief asking that the Court toss Hunter’s “sweetheart plea deal,” and asked that Smith’s filing, including 448 pages of Congressional testimony from the IRS whistleblowers who worked on the case, be removed.
In a letter to Judge Maryellen Noreika Hunter’s attorney, Matthew Salerno, said it was all a “miscommunication” and not a “misrepresentation.”
We write this letter and provide the accompanying affidavit in response to the Court’s Oral Order directing that counsel for Defendant show cause as to “why sanctions should not be considered for misrepresentations to the Court.” See Dkt. No. 12. The matter under consideration appears to stem from an unfortunate and unintentional miscommunication between a staff member at our firm and employees of the Court. We have no idea how the misunderstanding occurred, but our understanding is there was no misrepresentation.
The entire letter can be read below:
The filing included an affidavit from the staff member, Jessica Bengels, and an exhibit with a screenshot of her call records Tuesday with the Delaware court.
Jessica also helpfully included a screenshot of her call records today with the Delaware court. pic.twitter.com/ROqpijQweT
— Miranda Devine (@mirandadevine) July 26, 2023
In a nutshell, Bengels claims that she has not worked on the Hunter Biden case but was asked to call the clerk’s office “to ask for guidance regarding the appropriate procedures for restricting confidential e-filed material from public view.” She says that she was told that a motion to seal would need to be filed. Bengels says she then asked if there was “any policy for restricting personal information…from the docket on an interim basis while the parties filed a more formal sealing application.” The clerk asked Bengels for the case number, which she gave, then asked if she could place Bengels on a brief hold.
After returning, the clerk asked Bengels which law firm she worked for. According to Bengels, she told the clerk Latham & Watkins and also mentioned the attorney, Matt Salerno. Bengels says the clerk asked which docket numbers contained the confidential information, and Bengels informed her that she dd not have that information and could call back with it. Bengels says the clerk then asked if the docket items in question had been filed by Kittila’s firm (the firm representing House Ways and Means), and Bengels said she believed so.
Bengels said another court employee called her back about 10 minutes later to say that the materials had been “removed from the docket as non-compliant with Federal Rule of Criminal Procedure 49.1” and that during that call she never said which law firm she was with.
Bengels says she later missed two calls from the court, just before 2 PM Eastern, and attempted to call back around 4:40 PM Eastern.
Bengels’ full affidavit can be read here:
Now, things might be different in Delaware, but in my experience gathering court filings in numerous federal criminal court cases from PACER, when there are documents under seal for privacy or national security or other reasons, the docket entry and date/time information remains and there is a description of the sealed document. In this instance, since a clerk apparently determined that the filing was in violation of Federal Rules of Criminal Procedure 49.1, the entire filing was removed.
The removal of the entire filing is nonsensical, because even if the exhibits to the whistleblower testimony contained covered information under FRCP 49.1, it’s highly unlikely that the amicus brief itself did. For reference, FRCP 49.1(a) states:
Unless the court orders otherwise, in an electronic or paper filing with the court that contains an individual’s social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, a financial-account number, or the home address of an individual, a party or nonparty making the filing may include only:
(1) the last four digits of the social-security number and taxpayer-identification number;
(2) the year of the individual’s birth;
(3) the minor’s initials;
(4) the last four digits of the financial-account number; and
(5) the city and state of the home address.
The exhibits to whistleblower testimony, to my recollection, do not violate that rule. The only possible exception is if the filing includes Hunter Biden’s full date of birth; however, with Hunter’s status as a public individual his full date of birth has been widely known for years and is not a reason to exclude the entire document.
In addition, the exhibits could reasonably be considered to meet one of the exemptions to the redaction requirement, since they are arguably the records of a court or tribunal, or a filing related to a criminal matter or investigation not filed as part of any docketed criminal case. FRCP 49.1(b) states:
The redaction requirement does not apply to the following:
(1) a financial-account number or real property address that identifies the property allegedly subject to forfeiture in a forfeiture proceeding;
(2) the record of an administrative or agency proceeding;
(3) the official record of a state-court proceeding;
(4) the record of a court or tribunal, if that record was not subject to the redaction requirement when originally filed;
(5) a filing covered by Rule 49.1(d);
(6) a pro se filing in an action brought under 28 U.S.C. §§2241, 1 2254, or 2255;
(7) a court filing that is related to a criminal matter or investigation and that is prepared before the filing of a criminal charge or is not filed as part of any docketed criminal case;
(8) an arrest or search warrant; and
(9) a charging document and an affidavit filed in support of any charging document.
And, as Bob and many other observers noted, the redacted testimony and exhibits were published by Congress more than a month ago and have been continuously available on the House Ways and Means Committee website.
The only opinion that matters, though, is the opinion of Judge Noreika, which we will likely hear Wednesday morning. After spending nearly two decades in courtrooms, though, I can say that alleging incompetence on the part of the Court staff is rarely a winning strategy, but Judge Noreika is likely quite upset that in a case of this notoriety the clerks involved did not come to her before taking such a bold step.