If the stakes were not high, it would be a laugh-riot to listen to people who relied on the Steele dossier in an Intelligence Community assessment, and in four sworn FISA warrant applications, going on now about the Biden laptop being a “Russian disinformation” hoax.
But let’s be serious about authenticity for a second.
In a court of law, even in a criminal case where a person’s liberty is at stake, there is a presumption in favor of admitting relevant evidence as long as it appears to be what the proponent represents it to be.
That is, the evidence is put before the jury. Lingering questions about its provenance go to the weight of the evidence — meaning, how much, if any, importance we should ascribe to it. They do not result in the suppression of the evidence.
The most salient consideration in analyzing the authenticity of an item is the item itself.
I do not mean to dismiss such circumstances as the biases of the source of the evidence, the chain of custody, the opportunities there have been to tamper with it, and any indication that it has been tampered with in some way. To be sure, all of these indicators can be significant. In some situations, they can be so significant that the proffered item should be given no probative weight.
What I mean is that if the item itself does not appear to be what its proponent represents it to be, the inquiry is at an end. The item would be rejected because of its own innate fraudulence. There would be no need to expend effort to investigate its sourcing — except, perhaps, to pursue a case of fraud against the proponents, if the matter were grave enough.
Most alarming about the way materials from the alleged Hunter Biden laptop have been sloughed off by Biden supporters and their media (including social media) allies has been the resistance — no pun intended — to analyzing the substance of the emails and photos themselves. Instead, we get caterwauling about “Russian disinformation” and “hacked materials,” as if these knee jerk allegations were not just pertinent but dispositive on the matter of authenticity.
That is absurd.
The fact that Russians or Russian-sourced information are somehow attendant to documents or photos does not automatically make those materials Russian disinformation. It could be true information from or about Russians. Often, even the hostile Russian regime communicates to us things that are authentic precisely because they are authentic, and having to deal with them creates problems for our country.
Other times, in a compendium of information, the Russians might seed a few fabricated items, although most of the information will be authentic. That makes the disinformation harder to spot, and thus more effective. But we don’t dismiss the whole package because some of it may be corrupt. We analyze it more carefully.
Much of the time, though, the fact that Russians are somehow involved is just tangential or irrelevant. That appears to be the case with the alleged Biden materials. It is said that the president’s private lawyer, Rudy GiulianiRudy GiulianiMiller on whether Trump regrets ‘Lock her up’ chant about Whitmer: ‘Not at all’ Feds investigating if alleged Hunter Biden emails connected to foreign intelligence operation: report Intelligence officials warned Trump that Giuliani was target of Russian influence campaign: report MORE (who hired me as a U.S. prosecutor many years ago), was dealing with people suspected of Kremlin ties when he investigated the Bidens’ business and political activities in Ukraine. Even if that’s true — and we don’t know that it is — what that has to do with a laptop apparently left by Hunter Biden in a Delaware repair shop is not obvious. (By contrast, it’s not surprising that one tracking down shady doings, as Giuliani was doing, would have to deal with shady people.)
As President Reagan famously said when dealing with the Kremlin, “Trust everybody but cut the cards.”
As suggested above, the Clinton campaign, the Obama administration, U.S. intelligence and law-enforcement agencies, congressional Democrats and the legacy press knew for dead certain that the Steele dossier was Clinton campaign-sponsored political opposition research, sourced to Russians — a key one of whom, we now know, was suspected by the FBI of being a Kremlin asset. Far from the information being dismissed out of hand, we were taken by the media-Democratic complex on a four-year “collusion” ride.
The “don’t rely on hacked information” claim is even more ludicrous. There is no evidence the Biden materials were hacked. At the moment, the evidence is that the laptop was taken to a repair shop and then abandoned — entirely plausible, given that the shop was in Delaware, which is Biden-central, and Hunter Biden’s behavior is notoriously erratic because of his admitted drug abuse. The hard drive wasn’t hacked; it was quite intentionally given to the shopkeeper.
More to the point, even if the information had been hacked, that would not make it inauthentic. The reason hacking is a serious offense that causes humiliation and wreaks financial and privacy havoc is because it exposes true information. The hacked Democratic National Committee emails were a problem for Democrats in 2016 because they were real. Media outlets published stories about them, and the Obama administration confronted the Russian regime over them, because the emails were authentic. Hacking is a bad thing … but there’s nothing about it that makes the stolen information suspect. It’s bad for the opposite reason.
As we’ve noted, though, first and foremost in any authenticity examination is the item itself. Here, we have thousands of Biden photographs and videos that plainly appear to be real. The emails make contextual sense, and they fit what is known about Hunter Biden’s business activity (about which a great deal of investigative journalism has been done, most effectively by Peter Schweizer). According to Fox News, one unidentified participant in an email about Hunter’s Chinese business dealings has acknowledged the email’s authenticity.
Most significantly, neither Hunter Biden nor the Biden campaign has claimed the materials are fabricated. To the contrary, when initially asked about an email indicating that Joe BidenJoe BidenBiden: Trump ‘continues to lie to us’ about coronavirus Rally crowd chants ‘lock him up’ as Trump calls Biden family ‘a criminal enterprise’ Undecided voters in Arizona wary of Trump, crave stability MORE, as vice president, met with an executive of Burisma, the Ukrainian energy company that was lavishly paying Biden’s son, the Biden campaign’s reaction was to check the former vice president’s official calendar — after which the campaign first lamely said there was no notation of any such meeting, and then meekly admitted that Biden might well have met with the Burisma executive.
But notice what they didn’t say: Nobody claimed there was no need to check any official calendar because the email was a fake. They assumed it was authentic, because there was no good reason not to.
And do you think the FBI and the Delaware U.S. attorney’s office issued a grand jury subpoena for the laptop because they thought the whole thing was a fabrication? Maybe … and maybe pigs can fly.
At the moment, the known evidence overwhelmingly tends to establish that the laptop is exactly what it is represented to be: the repository of Hunter Biden’s authentic emails, documents, photos and videos. The claims that it may be Russian disinformation, or should be dismissed because of “hacking,” are frivolous.
Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His latest book is “Ball of Collusion.” Follow him on Twitter @AndrewCMcCarthy.