WASHINGTON – Empower Oversight (Empower) has filed a Freedom of Information Act request for communications initiated by attorneys for Hunter Biden to the Department of Justice asking the department to investigate IRS Supervisory Special Agent Gary Shapley. Shapley made protected whistleblower disclosures to the U.S. House of Representatives about the handling and prosecution of Hunter Biden.
Empower’s request stems from multiple instances when the Biden attorneys alleged in the media and in the plea deal hearing to Judge Maryellen Noreika that SSA Shapley broke laws regarding the privacy of grand jury deliberations.
Among the allegations in the media, The New York Times revealed to SSA Shapley’s legal team that Biden’s attorneys had sent a letter to the Justice Department asking for an investigation. The Biden attorneys subsequently filed a motion to seal the record in the plea hearing because of these allegations. The judge dismissed the allegations finding that “broad allegations of harm are not sufficient,” and “Defendant has failed to make any specific showing of harm.”
The text of the request follows here. The full request can be found here.
September 7, 2023
Via Electronic Transmission: MRUFOIA.Requests@USDOJ.Gov
FOIA/PA Mail Referral Unit
Department of Justice
Washington, DC 20530-0001
Phone: (202) 616-3837
RE: FOIA Request for Communications Regarding Hunter Biden Case
Dear FOIA Officer:
Empower Oversight Whistleblowers & Research (“Empower Oversight”) is a nonpartisan, nonprofit educational organization dedicated to enhancing independent oversight of government and corporate wrongdoing. We work to help insiders safely and legally report
waste, fraud, abuse, corruption, and misconduct to the proper authorities, and seek to hold those authorities accountable to act on such reports by, among other means, publishing information concerning the same.
Empower Oversight assists in representing Internal Revenue Service (“IRS”) Supervisory Special Agent (“SSA”) Gary Shapley, who in a May 26, 2023 transcribed interview with Majority and Minority staff of the U.S. House of Representatives Committee on Ways and Means made protected whistleblower disclosures about the Department of Justice’s (“the Department”) handling of the investigation and prosecution of Hunter Biden.1 Pursuant to its authorities under 26 U.S.C. § 6103(f)(4)(B), the Committee voted on June 22, 2023 to release a transcript of its interview with SSA Shapley.2
Michael Schmidt, a reporter for The New York Times, contacted our legal team on June 27, 2023 to seek comment on a story he was writing. Mr. Schmidt said that Hunter Biden’s defense counsel had sent the Department a letter asking in writing that it investigate our client, SSA Shapley, for allegedly breaking laws protecting the privacy of grand jury deliberations.
When asked for a copy of the letter, Mr. Schmidt claimed neither he nor his colleagues at the paper had a copy and when pressed for details of the allegations on which he was seeking comment, his replies were vague and inconsistent. The story published by The New York Times did failed to include our comment in full and failed to share with readers the detail that the Biden attorneys had made their allegations in writing, instead reporting merely that: “Hunter Biden’s lawyers have told the Justice Department that Mr. Shapley has broken federal laws that keep grand jury material secret.”3
On June 28, 2023, we contacted the Justice Department Inspector General to report this effort to retaliate against SSA Shapley for his protected disclosures and intimidate him as a cooperating witness in the Inspector General’s investigation of those disclosures. That email describing the call with Mr. Schmidt in detail is attached here as Exhibit 1.4 Mr. Biden’s legal team has continued to press this baseless accusation. When House Ways and Means Chairman Jason Smith included SSA Shapley’s transcript in an amicus brief to the U.S. District Court for the District of Delaware,5 Mr. Biden’s defense counsel contacted counsel for Chairman Smith on July 25, 2023, alleging the material “violated the court’s rules because it contained ‘grand jury and confidential tax payer information that must be sealed immediately.’”6 After plea hearing on July 26, 2023, the next move from Mr. Biden’s attorneys was to file a motion to seal the record, again alleging that multiple exhibits attached to Chairman Smith’s amicus brief—including the transcript of SSA Shapley’s interview—“contain information that is patently considered grand jury material protected from disclosure,” and that “their dissemination is prohibited by law.”7 These arguments were rejected by Judge Maryellen Noreika on August 17, 2023, when she issued an order finding that “broad allegations of harm are not sufficient” and “Defendant has failed to make any specific showing of harm,” thus denying the request to seal the record.8
Nevertheless, the public has a strong interest in understanding the arguments Mr. Biden’s defense counsel have made to the Department in an attempt to artificially gin up a retaliatory prosecution of our client in response to his legally protected whistleblowing.
Pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to shed light on these frivolous accusations, Empower Oversight requests that the Department produce all communications sent by Mr. Biden’s legal team to the Department regarding our client, SSA Shapley.
“COMMUNICATION(S)” means every manner or method of disclosure, exchange of information, statement, or discussion between or among two or more persons, including but not limited to, face-to-face and telephone conversations, correspondence, memoranda, telegrams, telexes, email messages, voice-mail messages, text messages, Slack messages, meeting minutes, discussions, releases, statements, reports, publications, and any recordings or reproductions thereof.
“DOCUMENT(S)” or “RECORD(S)” mean any kind of written, graphic, or recorded matter, however produced or reproduced, of any kind or description, whether sent, received, or neither, including drafts, originals, non-identical copies, and information stored magnetically, electronically, photographically or otherwise. As used herein, the terms “DOCUMENT(S)” or “RECORD(S)” include, but are not limited to, studies, papers, books, accounts, letters, diagrams, pictures, drawings, photographs, correspondence, telegrams, cables, text messages, emails, memoranda, notes, notations, work papers, intra-office and inter-office communications, communications to, between and among employees, contracts, financial agreements, grants, proposals, transcripts, minutes, orders, reports, recordings, or other documentation of telephone or other conversations, interviews, affidavits, slides, statement summaries, opinions, indices, analyses, publications, questionnaires, answers to questionnaires, statistical records, ledgers, journals, lists, logs, tabulations, charts, graphs, maps, surveys, sound recordings, data sheets, computer printouts, tapes, discs, microfilm, and all other records kept, regardless of the title, author, or origin.
“PERSON” means individuals, entities, firms, organizations, groups, committees, regulatory agencies, governmental entities, business entities, corporations, partnerships, trusts, and estates.
“REFERS,” “REFERRING TO,” “REGARDS,” REGARDING,” “RELATES,” “RELATING TO,” “CONCERNS,” “BEARS UPON,” or “PERTAINS TO” mean containing, alluding to, responding to, commenting upon, discussing, showing, disclosing, explaining, mentioning, analyzing, constituting, comprising, evidencing, setting forth, summarizing, or characterizing, either directly or indirectly, in whole or in part.
“INCLUDING” means comprising part of, but not being limited to, the whole.
The words “and” and “or” shall be construed in the conjunctive or disjunctive, whichever is most inclusive.
The singular form shall include the plural form and vice versa.
The present tense shall include the past tense and vice versa.
In producing the records described above, you shall segregate them by reference to each of the numbered items of this FOIA request.
If you have any questions about this request, please contact XXXXXXXXXXX by e-mail at
FEE WAIVER REQUEST
Empower Oversight agrees to pay up to $25.00 in applicable fees, but notes that it qualifies as a “representative of the news media” and requests a waiver of any fees that may be associated with processing this request, in keeping with 5 U.S.C. § 552 (a)(4)(A)(iii).
Empower Oversight is a non-profit educational organization as defined under Section
501(c)(3) of the Internal Revenue Code, which helps insiders safely and legally report waste, fraud, abuse, corruption, and misconduct to the proper authorities, and seeks to hold those authorities accountable to act on such reports by, among other means, publishing information concerning the same.
Further, the information that Empower Oversight seeks is in the public interest because it is likely to contribute significantly to the public’s understanding of the Department’s handling of allegations that it or its employees was negligent or engaged in wrongdoing.
Empower Oversight is committed to government accountability, public integrity, and transparency. In the latter regard, the information that that Empower Oversight receives that tends to explain the subject matter of this FOIA request will be disclosed publicly via its website, and copies will be shared with other news media for public dissemination.
For ease of administration and to conserve resources, we ask that documents be produced in a readily accessible electronic format. Thank you for your time and consideration. Please do not hesitate to contact me with any questions.
1 Available at https://waysandmeans.house.gov/wp-content/uploads/2023/06/Whistleblower-1-Transcript_Redacted.pdf.
2 See https://waysandmeans.house.gov/event/meeting-on-documents-protected-under-internal-revenue-code- section-6103.
3 Glenn Thrush and Michael S. Schmidt, Competing Accounts of Justice Dept.’s Handling of Hunter Biden Case, N.Y. TIMES (Jun. 27, 2023), available at https://www.nytimes.com/2023/06/27/us/politics/irs-official-justice- dept-hunter-biden.html.
4 Email from Jason Foster to Michael Horowitz, et al. (Jun. 28, 2023) (Attachment).
5 United States v. Biden, No. 23-00274-MN (D. Del. Jul. 25, 2023) (Letter) [ECF Doc. 8].
6 United States v. Biden, No. 23-00274-MN (D. Del. Jul. 25, 2023) (Exhibit A) [ECF Doc. 8].
7 United States v. Biden, No. 23-00274-MN (D. Del. Jul. 26, 2023) (Motion to Seal Document) [ECF Doc. 17].
8 United States v. Biden, No. 23-00274-MN (D. Del. Aug. 17, 2023) (Order on Motion to Seal Document) [ECF Doc. 42].