'Seriously?' Judge questions DOJ case review as he rejects bail for FBI informant in Biden plot
Some of Alexander Smirnov’s lies related to Burisma, the Ukrainian energy company that was a Trump campaign talking point and a focus of Biden impeachment efforts.
A federal judge in Los Angeles questioned why the U.S. Department of Justice is reviewing old cases when he rejected on Monday a request from prosecutors to release from prison a former FBI informant who pleaded guilty to lying about the Bidens.
A prosecutor new to Alexander Smirnov’s case said U.S. Department of Justice leaders are reviewing it to determine “whether or not a different result might be the appropriate disposition of this case.” He said they are evaluating “the fairness of the prosecution.”
Assistant U.S. Attorney Robert Keenan told U.S. District Judge Otis D. Wright II he doesn’t believe Smirnov, who previous prosecutors said was influenced by Russian officials, ever wanted to flee, and “it’s the lowest incentive at this point” because he now has a receptive ear in the office that put him in prison.
“It would be foolish and absurd for him to flee to the garden spot of Russia,” Keenan said, adding sarcastically, “Maybe a, you know, nice spot on the coast of Siberia.”
Judge Wright, however, rejected bail for Smirnov pending his 9th U.S. Circuit Court of Appeals, and he took issue with Keenan’s “passing reference to the fact that the government is reviewing its earlier decisions.”
“And I want to know, what the hell does this mean?” asked Wright, a 2007 George W. Bush appointee. “Seriously? At this stage, the government is taking a look at this case anew? Am I reading that correctly?”
“Yes, sir,” Keenan answered.
Keenan never mentioned Bill Essayli, the new Donald Trump-appointed interim U.S. attorney for the Central District of California, but he several times mentioned the former appointee under Biden, Martin Estrada, and said the new leadership’s case review continues a review process Estrada implemented.
Keenan said the reviews are “one government trying to do the right thing.”
“I want to make clear: There’s nothing new under the sun with the U.S. government,” Keenan said. He said the same rules apply that always have in the 24 years he’s worked at the DOJ.
“We want to make sure we get the result right, and that the end result is fair and just,” Keenan told Judge Wright.
The DOJ’s new support for Smirnov comes after Judge Wright sentenced him to six years in prison on Jan. 8 after he pleaded guilty in December to one count of causing the creation of a false and fictitious record in a federal investigation and three counts of tax evasion. Smirnov was prosecuted by now-former Special Counsel David Weiss’ office after Weiss was appointed to investigate criminal allegations against now-former President Joe Biden’s son Hunter Biden.
But after Essayli took over the DOJ’s Los Angeles office, David Friedman, an assistant U.S. attorney in Los Angeles who is chief of the Appeals Section, replaced Senior Assistant Special Counsels Leo Wise and Derek Hines, then filed a joint stipulation with Smirnov’s lawyers calling for Smirnov’s release.
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The document cites Smirnov’s “chronic eye disease” and the medical treatment that Wise and Hines repeatedly rejected as grounds for his release. U.S. Pretrial Services also supports Smirnov’s release.
Keenan on Monday cited conservative commentator Dennis Prager’s book Think A Second Time and told Judge Wright, “There’s no harm in looking at something anew and making sure we got it right.”
Kennan said in his 24 years in the office, “one of the great things about it is that regardless of what administration happens to be in control in D.C., the rules are still applied.”
Three employees of the U.S. Attorney’s Office sat in the front row of the courtroom gallery during the hearing, passing notes and exchanging incredulous looks. They did not speak with Keenan. An office spokesman has not responded to a request to identify all cases Essayli is reviewing, but one is the civil rights conviction of a former Los Angeles County sheriff’s deputy who is to be sentenced next month.
Smirnov, 45, was not in court on Monday. He’s currently at the Terminal Island prison near Long Beach, according to Bureau of Prisons records. He currently is scheduled to be released on March 27, 2029.
Smirnov’s lawyer David Chesnoff of Las Vegas spoke to Judge Wright first, and he said the point of the appeal is to eventually get Smirnov’s plea withdrawn.
Keenan told Judge Wright he doesn’t believe “any promises or guarantees” have been made to Smirnov, but he believes the appeal of his six-year sentence has merit. If the 9th Circuit vacates his sentence, prosecutors may support him withdrawing his guilty plea.
Prosecutors last week didn’t oppose Smirnov’s lawyers request to lift the protective order in the case, then filed their own proposed order supporting it, which Judge Wright authorized on April 24. This allows Smirnov’s lawyers to disseminate”certain sensitive, confidential documents to persons outside the prosecution,” Keenan said.
“I want to thank you for that,” Keenan told the judge.
Wright said he doesn’t believe Smirnov’s appeal has merit. Wright sentenced him to six years under a binding plea agreement, but Wright didn’t specify he’s to be credited for time already served like the agreement says.
“I think there's a substantial question that is likely to result in reversal of the sentence, not due to any error on your part,” Keenan said.
Keenan also cited Smirnov’s eye condition and medical reports that he’s now legally blind after missing needed surgeries.
“That’s intolerable to me. It’s intolerable to my office, and we think it should be given great weight by the court,” he said.
Keenan quoted what he said is “usually a sarcastic and derisive criticism” of the criminal justice system: “The process, sometimes, is the punishment.”
“The Department of Justice is willing to take a look, just as Martin Estrada would … to evaluate the fairness of the prosecution,” Keenan said.
Keenan mentioned Smirnov’s family and his ties to California and Nevada when arguing he’s not a flight risk as previous prosecutors said. He believes government cooperators such as Smirnov who “occasionally run afoul of a particular statute” deserve to have their good deeds considered as well as their bad.
That was the closest Keenan came to mentioning Smirnov’s crimes, which included falsely telling the FBI in June 2020 that executives associated with the former Ukrainian energy company Burisma paid the Bidens $5 million each in 2015 or 2016. The Burisma allegations helped fueled Republican impeachment efforts against Biden and were a frequent campaign talking point for Trump.
According to prosecutors’ Jan. 1 sentencing memorandum, Smirnov also told his FBI contact that an executive claimed to have hired Hunter Biden to “protect us, through his dad, from all kinds of problems” and that he paid Biden $5 million so he “will take care of all those issues through his dad.”
Smirnov repeated some of his lies in a September 2023 interview but also changed some of his story and “promoted a new false narrative after meeting with Russian officials,” prosecutors wrote.
In court on Monday, Keenan said Smirnov is “a naturalized citizen” and “longtime resident of the southwest of the United States, living either in California or Nevada for approximately 20 years.”
Chesnoff told Wright that Smirnov paid “almost $700,000 to the government” shortly before sentencing and is not hiding money or other assets.
“Your Honor, this isn't a fellow who was a criminal,” Chesnoff said. “This is a person who made a conscious decision to act patriotically and assist the United States government.”
Judge Wright, however, said, he’s “done all I’m going to do with this case.”
Smirnov doesn’t agree, Wright said, “so the fortunate thing is, it is now before the 9th Circuit.”
“I’m satisfied to let them do their work,” the judge said.
He took the issue under submission and had not yet officially ruled as of late Monday, but he said before court adjourned, “I haven’t heard anything that’s going to change my mind.”
“So with that, we’re done. Thank you,” Wright said.
Chesnoff told reporters after court that he’s going to ask the 9th Circuit to release Smirnov on bail. He and prosecutors filed a joint motion with the 9th before they turned to Wright, but Judges John B. Owens and Roopali Desai rejected it and said they can try again if the trial court rejects their request.
“We appreciate the efforts of the United States government to assist in bail and to review the matter,” Chesnoff said.
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