ABBE DAVID LOWELL

Partner
(202) 282-5000

June 30, 2023

VIA ELECTRONIC MAIL

Representative Jason Smith

Chairman
Committee on Ways and Means
U.S. House of Representatives
1139 Longworth HOB
Washington, D.C. 20515

Re: Ways & Means June 22 Release of Transcripts and Proposed Actions

Dear Chairman Smith:

Since taking the majority in 2023, various leaders of the House and its committees have
discarded the established protocols of Congress, rules of conduct, and even the law in what can
only be called an obsession with attacking the Biden family. Your recent actions and joint
statement with Chairmen Comer and Jordan make clear that you have joined this ignoble group,
adopting their irresponsible tactics as your own. In fact, yesterday’s press release by the three of
you seeking the testimony of a dozen law enforcement personnel based on the unsworn and slanted
statements of the IRS agents is now the proverbial card castle—something that looks real but has
no foundation.

Releasing the transcripts of and exhibits from interviews of self-styled IRS

“whistleblowers” who may be claiming that title in an attempt to evade their own misconduct was
an obvious ploy to feed the misinformation campaign to harm our client, Hunter Biden, as a vehicle
to attack his father. It is no secret these interviews were orchestrated recitations of
mischaracterized and incomplete “facts” by disgruntled agents who believed they knew better than
the federal prosecutors who had all the evidence as they conducted their five-year investigation of
Mr. Biden.

Let me be specific: (a) your release of material violated the spirit, if not the letter, of the
tax laws and federal rules governing investigations; (b) your attempt to protect the IRS agents was
a transparent effort to provide cover to those with a bias and an axe to grind so deep and sharp as
to have allowed them to avoid answering for their own conduct under oath; and (c) you then
choreographed the dissemination of incomplete half-truths, distortions, and totally unnecessary
details about Mr. Biden.
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A. Improper Disclosures of Investigation and Tax Information

Ironically, your counsel started each of the two interviews with a hollow recognition of the
privacy of the very information you then irresponsibly released. “Majority Counsel 1” stated:

Chairman Smith takes our tax privacy laws extremely seriously, and we have worked
diligently to make sure that you can provide your disclosure to Congress in a legal manner
. . . 26 U.S.C. Section 6103 makes tax return and return information confidential, subject
to specific authorizations or exceptions in the statute. The statute anticipates and provides
for whistleblowers like yourself to come forward and share information with Congress . . .

May 26, 2023, Interview Transcript of Gary A. Shapley, Jr. (Shapley Tr.) at 6. Nowhere in the
provision is there language to allow for the wholesale release of untested information from a self-
proclaimed whistleblower to the public in the manner you did. Disclosure to Congress is not the
same as disclosure to Fox News. Indeed, Majority Counsel went on to state:

The chairman considers this entire interview and the resulting transcript as protected
confidential information under Section 6103. . . I’d like to remind the witness and everyone
in the room that 26 U.S.C. Section 7213 makes it unlawful to make any disclosure of
returns or return information not authorized by Section 6103. Unauthorized disclosure of
such information can be a felony Punishable by fine or imprisonment. . .. we ask that you
not speak about what we discuss in this interview to individuals not designated to receive
such information.

Id. at 7. It seems that Majority Counsel should have read these provisions and warnings to you in
addition to the witness.

There are myriad good reasons for tax return information to be kept private. One, this
information can be complicated and nonsensical without a full understanding of the many things
that go into listing something as income or expense or as taxable. Another, tax returns themselves
can never explain how complex business entities like LLCs, partnerships, and overlapping joint
ventures can operate so that a tax item can be understood.

In addition to Section 6103, Federal Rule of Criminal Procedure 6(e) prohibits disclosure
of material obtained for a grand jury (e.g., from a subpoena or search warrant). There was no
attempt by your witnesses or counsel to distinguish what information came from that process.
Indeed, it is clear from what was said that various information had such a source. For example,
Shapley Exhibits 8 and 9 appear to come from subpoenas to or a search warrant served on third
party record-keepers that the agents admitted they did not provide the Committee. See Shapley
Tr. at 14.

There are equally several reasons for grand jury secrecy under Rule 6(e). Aside from
protecting against the release of one-sided information—the Supreme Court in United States v.
Williams ruled that a prosecutor need not present exculpatory evidence to that body—grand jury
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secrecy allows for the possibility, as occurred in the case of our client, for government attorneys
to sift the evidence before making a charging decision on the basis of that one-sided presentation
often made by case agents who have blinders to anything other than what they were told to obtain.

Protecting the information that you improperly released, as well as preventing leaks of
information that occurred in the public appearances of Mr. Shapley, are so important that various
courts have stated such disclosures are “more egregious” than the alleged crimes that agents, like
Mr. Shapley, are supposed to investigate. See, e.g., United States v. Walters, 910 F.3d 11, 32 (2d
Cir. 2018) (concurring opinion). At least once before, in April 2023, Mr. Shapley used Congress
to provide him cover to make other unauthorized disclosures when he wrote a letter claiming
political interferences with his investigation which was given to the media likely before Members
of Congress could open their copies. This week you did it again.

The timing of the agents’ leaks and your subsequent decision to release their statements do
not seem innocent—they came shortly after there was a public filing indicating the disposition of
the five-year investigation of Mr. Biden. To any objective eye your actions were intended to
improperly undermine the judicial proceedings that have been scheduled in the case. Your release
of this selective set of false allegations was an attempt to score a headline in a news cycle—full
facts be damned. We all know the adage: an allegation gets page one attention, while the
explanation or exoneration never gets coverage at all or is buried on page 10. This letter is an
attempt to make sure the response is found.

B. Accountability for Illegal Leaks in the Investigation

As you and your staff know by now, the investigation in which Mr. Biden was a subject
was plagued by leaks to the media about the investigation that violate various laws—tax laws and
grand jury rules—as well as codes of conduct for law enforcement agents and attorneys. One of
the most egregious leaks was an October 6, 2022, Washington Post article where sources that could
only be from law enforcement told reporters that they had “sufficient evidence to charge” our client
with tax and gun crimes. The article detailed what “agents” had gathered and what “agents” had
determined. Devlin Barrett & Perry Stein, Federal agents see chargeable tax, gun-purchase case
against Hunter Biden, WASH. POST (Oct. 6, 2022), https://www.washingtonpost.com/national-
security/2022/10/06/hunter-biden-tax-gun-charges/. It is a tried-and-true tactic of aggrieved
agents, who believe they know better than experienced prosecutors and disagree with those
prosecutors timing or conclusions, to seek to influence an outcome of an investigation and pressure
prosecutors to charge by leaking to the media. Happens all the time.

With this known practice and the publication of articles where the only source who would
know what “agents” did and believed were the “agents,” the Committee’s conduct was, as the least,
curious and were purposely designed to avoid getting to the bottom of who was dealing in illegal
leaks. For example, the two agents who appeared on May 26 and June 1, 2023 were not sworn in.
They were not told—as every government interviewer does—that providing false testimony could
lead to criminal charges (e.g., 18 U.S.C. § 1001). While the subject of leaks came up once or
twice, neither agent was asked “You obviously had disagreements with the prosecutors about the
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evidence. Before appearing here today, did you talk to or communicate in any way with anyone
in the media? Do you know which of your colleagues were talking to the media? Did you ever
provide any information of any kind about your work with anyone to the media? Have you been
notified by any Justice Department, IRS, or Treasury office that you are the subject of any
investigation concerning leaks? Were you removed from the investigation about which you
complain here today because you were the subjects of such an investigation? Why would Treasury
Department or Justice Department officials seek your emails and communications if not to
determine whether you were the ones leaking to the media?” And when one of the agents
mentioned the outrageous October 6, 2023, leak indicating agents had concluded that charges
against Mr. Biden should be brought, you allowed the agent to suggest unchallenged that the leak
which was very prejudicial to Mr. Biden “might have come from” the defense. June 1, 2023,
Interview Transcript of Agent X (Agent X Tr.) at 58. A ridiculous proposition.

Now that these shortcomings have been noticed, will the Committee follow up now and
ask everyone who came or comes forward and claims the title of “whistleblower” to answer those
questions? In that regard, it was more than a little odd for Mr. Shapley to start his interview by
declaring “[t]here is no reward for me becoming a whistleblower” and to conclude his interview
by thanking the Committee and saying: “Just thanks for listening. My life’s on the line here, so do
what you can?” Mr. Shapley may be reaping the “reward” from the cover you have given him
considering the penalties for agents illegally leaking this type of information. And how could Mr.
Shapley’s life “be on the line” (e.g., was he suggesting someone in the U.S. Attorney’s Office in
Delaware or elsewhere was threatening him physically? If so, wouldn’t intimidation or threats to
a federal agent be ripe for inquiry by the Committee?). Perhaps, Mr. Shapley was referring to his
status in some investigation of his own conduct, and his plea to have your Committee “do what
you can” was to help him in that regard.

And, with respect to the integrity of your proceeding, there were dozens of occasions when
a question was asked and then you allowed the agent to go “off the record” before an answer was
recorded. In many instances, this very unusual and constant “off the record” practice was to allow
an answer to be better framed before “on the record” returned. On June 1, 2023, you asked Agent
X, “Have you ever been removed from an investigation prior to the one at issue here?” Agent X
then asked “Can we go off the record for a second.” Agent X Tr. at 47. When you came back on
the record, the question was left hanging. On occasions when an agent seemed to be confused,
you allowed his/her attorney to go off the record to apparently coach the correct answer. For
example, Agent X was asked about events in 2015 and started to answer, but Mr. Zerbe asked to
go off the record, so he “could be sure.” Id. at 68. This happened on other occasions as well. See,
e.g., id. at 75 (“What were the three filings you were referring to?” followed by “Can we go off
the record”); id. at 76 (after Agent X was asked about the access to an IRS system, Mr. Zerbe said,
“Let me go off the record”); id. at 77 (when Agent X was asked about media articles including
“Trump’s tweets,” a committee counsel went off the record); id. at 89 (when Agent X was asked
“what the hazards of litigation were in particular?”, he asked “Can we go off the record”); id. at
121 (when asked if Agent X has been excluded in other presentation by defense attorneys with
prosecutors, Mr. Zerbe said “Let’s go off the record”); id. at 151 (when Agent X was asked about
his views of whether the U.S. Attorney could bring a case in the District of Columbia, Mr. Zerbe
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said “Let me go off the record”). What real inquiry allows this practice of a witness speaking off
the record to then have a better answer, and what occurred at each and every such off the record
moment?

Your proceedings clearly adopted the agents’ point of view that they were removed from
the investigation because they, not the experienced prosecutors and law enforcement leaders, knew
the right thing to do and were being punished for making their views known. But your conclusion
is absurd under the slightest of scrutiny. With the entire media, Congress, Inspectors General, and
the public watching, how could it be remotely possible that the supervisors and attorneys the agents
named were retaliating against them? Isn’t it more likely that this feigned retaliation theory has
been spun because there is evidence that the wrongdoing in the case was committed by the agents
turned “whistleblowers”? How could you believe the agents’ stories at face value when it would
make no sense for Republican-appointed and career prosecutors to turn away from any wrongdoing
committed by Mr. Biden? Your report fails to note, for example, that the investigation you and
your Republican colleagues have focused on began during the Republican Trump Administration,
supervised by two Republican Attorneys General, carried forward by a hold-over Republican U.S.
Attorney, and pursued and reviewed by career and experienced attorneys. What possible motive
would any of these people have to ignore proper evidence and fail to bring proper charges if those
were warranted? And, critically, what reason would Attorney General Garland—a former
prosecutor, advisor to Justice Department officials, and federal judge with an impeccable
reputation for honesty and integrity—have to lie about the authority that he provided the U.S.
Attorney in Delaware? Moreover, why would the U.S. Attorney for the District of Columbia who
recently confirmed that the U.S. Attorney for Delaware, as the Attorney General has stated, had
complete authority to file any charges in D.C. have reason to also lie? The answers are “none.”
Believe long-standing, experienced, and highly reputed and Senate-confirmed public officials or
believe biased IRS agents; you chose the latter.

If you wanted to find out if the agents who you have dubbed “whistleblowers” were not
the sources of illegal leaks and others were responsible, you did everything possible to avoid that
inquiry.

C. The Dissemination of Half-Truths, Distortions, and Unnecessary Information

Perhaps the most troubling of all the Committee’s conduct was to allow the disclosure of
one-sided, biased, incomplete, and distorted presentation of Mr. Biden’s conduct and tax issues.
In all law enforcement, there is a proper allocation of roles: agents, police, and investigators gather
information, and prosecutors and lawyers evaluate the information for the requirements of bringing
a charge and trying a case. It is supposed to be that way because each party to the process brings
their own experience and ability and provides an overall view to create a proper outcome. Agents
tend to seek out and see inculpatory information; prosecutors weigh that against both exculpatory
data and the rules for bringing cases (e.g., evidence of willfulness, admissibility of information,
statutes of limitations, venue, legal precedents, agency long-standing policies).
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Just as in the intelligence sphere raw data must be reviewed and evaluated, so too in
criminal investigations the same process must occur. In the end, these checks and balances are a
critical part of our country’s legal system, which insures the presumption of innocence. What you
did turns all that on its head. You gave disgruntled agents free reign to present their views with no
counterweight. You knew ahead of time that the agents disagreed with the broader view that
prosecutors bring to the process. You knew there were certainly agents in the case who already
had tried to improperly influence the decision-making through illegal leaks. You knew that the
prosecutors in the case—adhering to the law, rules, and ethical restraints—would not be able to
respond. You knew that, as in all matters, thorough cross-examination would be a tool to provide
more reliable results. Yet, for all you knew, you simply allowed those who had a clear bias to be
the ones on whom you relied to provide the public with your revelations of “wrongdoing.”

According to the agents, Mr. Biden committed clear chargeable tax offenses for almost
every tax year from 2014–2019 and a set of IRS supervisors and Justice Department attorneys did
not care. On its face, this is a ridiculous premise. This letter and certainly made-for-media
proceedings you have been conducting and now with Chairmen Comer and Jordan you plan to
continue, are not the forum to rebut each and every one of the agents’ improper statements
concerning Mr. Biden’s taxes. However, had you and your staff asked the agents thorough
questions, they would have confirmed that the charges they sought require a taxpayer’s intentional
and willful violation, that there be a tax deficiency to address, that any tax error was not the result
of mistakes people make all the time in compiling their taxes, that there was no excusable disability
or other defense (e.g., an accountant’s loss of records or an accountant’s passing away). These and
so much more are how responsible prosecutors evaluate evidence before filing a charge.
Investigating agents do not do this; rather, prosecutors who have to write and justify charges and
try them in court do.

You can readily know the slant that the agents put on the events with just a few examples
of their willingness to bend facts to support their version of events:

• The agent indicating that some laptop was authentic (Shapley Tr. at 12) completely ignores
the real issue, which is whether data that has now been accessed, copied, disseminated,
stolen, and manipulated is authentic, including communications the agent was relying on.
Various media outlets have concluded data purporting to be from Mr. Biden is not authentic
(and various Republican operatives have admitted they manipulated the hard drive
contents).

• Continued reference to an unsolicited email purportedly sent from a former business

associate, Tony Bobulinski, who coined the phrase “Ten held by H for the big guy.”
(Shapley Tr. at 18). By now, a complete review of communications indicates 1) such a
breakdown was never included in any agreement, 2) the concept was that of Bobulinski’s,
with whom Mr. Biden never did business and about whom any of his views were deemed
by his business associate as being Bobulinski’s “wishful thinking,” and 3) finally, that our
client never responded or acknowledged that communication, ever.
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• A gratuitous and intentionally misleading statement like “The years in question included
foreign income . . . through a partnership with a convicted felon” (Shapley Tr. at 25), when
the conviction he refers to was after the transaction involved and had nothing to do with
that transaction.

• A conclusion with no support (Shapley Tr. at 97) that people he identified as employees of
one of Mr. Biden’s entities were “not working.”

• Accepting the right-wing theory that some purported laptop was “abandoned” (Shapley Tr.
at 104) when the agent had no basis to make that legal conclusion which is being contested
in separate litigation.

• Stating the decisions of the prosecutors left Mr. Biden “tax free” (Shapley Tr. at 154) when
the agents know well that years ago Mr. Biden paid all taxes due with interest and penalties,
as often is the opportunity people have as a mitigating factor before any civil or criminal
cases are filed.

The errors and omissions by the agents were magnified by the those you and your staff
committed. These include making sure salacious and unnecessary details (e.g., references to
prostitutes) were included in your release, allowing allegations of much earlier tax issues (not at
all in the period the agents were assigned to investigate) to go unanswered, and even to willfully
misrepresenting communications the agents claimed were authentic.

In one excerpt that has now gotten a great deal of media attention, Mr. Biden is alleged to
have been sitting next to his father on July 30, 2017, when he allegedly sent a WhatsApp message,
urging the completion of some business transaction. See Shapley Tr. at 14. The inference is that
the referenced message was being sent to an official of CEFC (China Energy) to forward a false
narrative about the Bidens’ involvement in that company. The facts, which some media has now
reported, are that President Biden and our client were not together that day, the company being
referenced was not CEFC but Harvest Financial Group (with a person who also had the initial
“Z”), and that no transaction actually occurred. More important, your own actions call into
question the authenticity of that communication and your subsequent use of it. The agent only
described one message, but you took that purported text and disseminated images of it on June 22
and June 24 in two Twitter postings.
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The screen-grab images you posted are not real and contain myriad of issues: both include
a photo of Mr. Biden not from 2017 but from the White House Easter Eggroll in April 2022 (long
after the purported message was sent); both images portray the message in a blue bubble, when
WhatsApp messages are in green; one image super-imposed the Chinese flag for the contact ID,
when surely that was not how a text or contact was kept; and one purports to be a screenshot with
the “. . .” of someone composing a text (as in Apple’s iMessage) when that does not happen on
WhatsApp. In short, the images you circulated online are complete fakes. Many media articles
confirm that data purported to have come from Mr. Biden’s devices has been altered or
manipulated. You, or someone else, did that again. All of the misstatements about this
communication and your use of a false text are good examples of how providing one-sided,
untested, and slanted information leads to improper conclusions.

Equally misleading are the agents’ and your statements that involvement of the Justice
Department Tax Division in advising on a tax investigation was unusual or indicated interference
with the authority of the U.S. Attorney. Quite to the contrary, non-involvement by the Tax Division
would have been unusual. There is rare exception to the involvement the Tax Division plays before
any criminal case is brought based on tax issues. That is for the very sound reason that millions
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of Americans every year have errors and omissions on tax filings, and there are so many different
reasons for a person’s or company’s actions that a consistent approach to what is a civil case and
a criminal case is needed. Countless investigations would have been misfiled as criminal cases
were it not for the wiser review based on decades of experience of the Tax Division. Mr. Biden
did not get any more favorable treatment to have these experts involved in his investigation, and
excluding the Tax Division would have been an act worthy of agents’ concern for disparate
treatment—not the opposite.

Moreover, in tax cases especially, prosecutors reach out to defense counsel to understand
the explanations and defenses a person or company may have to a tax filing error or omission.
Indeed, unless a tax charge is an adjunct to some other set of criminal counts (i.e., organized crime,
drug trafficking), meetings with defense counsel are routine. It is not unusual for case agents not
to attend such meetings, and the protestation by the agents you interviewed that they are always
included is simply false. Once again, prosecuting attorneys meet with defense attorneys and make
an evaluation based on a complete picture—a tax error or omission, the reason for it, evidence of
willfulness, other mitigating factors (a person’s health, or other disability) before ascribing a
fraudulent intent that would turn a civil case into a misdemeanor or a misdemeanor into a felony.

Furthermore, various statements by the agents demonstrate either a misunderstanding by

the agents or, worse, a purposeful attempt to create a false narrative. These include the red-herring
issue of appointing the U.S. Attorney in Delaware to be a special counsel when for all intents and
purposes the delegation to that U.S. Attorney was as great as that which a special counsel would
receive; that prosecutors “let” statutes of limitations expire rather than deciding that a charge was
not supported for a year in which a statute of limitations running was irrelevant; implying that the
October 7, 2022, meeting in Delaware of prosecutors and agents was somehow the agents’ doing
when it is clear from the chronology that it was called the day after a destructive media leak by
some agent, likely made with the intent to pressure some inappropriate decision in the
investigation; that the agents knew better than the lawyers as to whether an attorney-client
privilege review of material was required; or that a Tax Division memorandum recommended
some type of charge(s) when the agent admits he never saw it.

Chairman Smith, it is easy when a committee does not operate with fairness and
thoroughness and an adherence to rules and procedures to forward a false political narrative. You
have done that, and it appears that you (joined now by other Republican chairs who have also been
shown to shoot first—sometimes at their own feet—and aim second) will continue to do that. We
can only hope that the specious methods you are using, some of which are laid out in this letter,
will inform the public of the right way things should be done.

Sincerely,

Abbe David Lowell

Counsel for Robert Hunter Biden
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cc: Richard Neal, Ranking Member, House Committee on Ways and Means