Hunter Biden Likely to be Charged Under FARA . . . If the Justice Department Applies the Mueller Standard
Here is the column:
As US Attorney David Weiss leads a long line of witnesses before a grand jury, Washington is preparing for the possibility of an indictment of the son of President Joe Biden, Hunter. This has led to a nosebleed of a turn for the media, as major outlets suddenly acknowledge that the story that they tried to kill in 2020 is in fact legitimate.
Many legal experts have insisted that any prosecution for tax violations would be uncommon or unwarranted because Hunter Biden belatedly paid taxes after the start of the investigation. However, not only are tax and international transactional violations still possible, there is a looming threat of charges under the Foreign Agents Registration Act (FARA).
This week, I testified in the House Judiciary Committee on enhancements of FARA and was asked whether Hunter Biden could be charged under the act. The answer is clearly yes. Indeed, if the Justice Department applies the standard used in the Paul Manafort case, it would seem like such a charge is not just possible, but even probable.
The similarities of the Manafort and Biden cases are striking. On a personal level, both men had ravenous levels of material consumption. Where Manafort had his $15,000 ostrich coat, Biden had his high-priced hookers and $143,000 Fisker sports car. Both burned through money and found themselves with towering debts.
However, the greatest similarities is how they paid those bills. The Manafort indictment included charges for lobbying on behalf of the Ukrainian government and Ukrainian political parties from 2008 to 2014. He did not register under FARA, which has sweeping terms covering such work.
While FARA was rarely used for criminal investigations and prosecutions, special counsel Robert Mueller seemed to charge by the gross under the act. He hit a line of Trump associates with such allegations from Manafort to Michael Flynn to George Papadopoulos to Rick Gates. More recently, the Justice Department used FARA to conduct searches on the homes and files of former Trump counsel Rudy Giuliani, Republican counsel Victoria Toensing and others.
The recent use of FARA was celebrated by legal experts and media figures. Now, however, Hunter Biden is the target and the evidence against him on FARA may actually be worse than Manafort in some respects.
In Biden’s laptop, there are hundreds of e-mails detailing work with “foreign principals,” which can include not just foreign governments or foreign agencies, but foreign-based companies, nonprofits and individuals, including Americans living in foreign countries. That would covers companies like CEFC, which had close ties to the Chinese government.
Biden does not appear to have done much, if any, conventional legal work for these foreign sources, despite his high fees. Indeed, there is no record Hunter did anything to earn the cool $1 million given to him to “represent” CEFC’s Patrick Ho, who was later convicted and sentenced to three years in prison.
Instead, the record shows Biden advising and facilitating access for foreign clients, including meetings with his father. That includes, like Manafort, dealings with Ukrainian officials and businesses.
There was nothing subtle about the alleged influence-peddling effort of Hunter Biden or his uncle James. In Washington, influence peddling is a virtual cottage industry. However, there was a little sophistication in these e-mails to hide the corruption. The Hunter dealings were more like influence peddling by eBay in terms of the raw pitches and open admissions.
On May 1, 2017, Hunter Biden recognized how his work with CEFC at a minimum could trigger FARA and acknowledged that his uncle was also aware of the danger:
“No matter what it will need to be a US company at some level in order for us to make bids on federal and state funded projects. Also We [sic] don’t want to have to register as foreign agents under the FCPA which is much more expansive than people who should know choose not to know. James has very particular opinions about this so I would ask him about the foreign entity.”
The e-mail is a prosecutor’s dream. FARA violations, like tax violations, can be viewed as cut-and-dried charges for jurors. In this case, the potential defendant not only incriminated himself under the law, but his associates and family, as well.
That is why, if the Justice Department applies the same standard applied to figures like Manafort, Biden would likely be indicted.
The question is whether the same standard will apply. I have long criticized the sweeping language of FARA. However, the Justice Department has shifted from prior administrative enforcement to criminal prosecutions. The Justice Department in recent years has convicted various individuals for engaging in public relations and lobbying efforts for foreign countries, including China and Ukraine.
A sudden shift away from such criminal enforcement would raise questions of favored treatment — and magnify the concern over Attorney General Merrick Garland refusing to appoint a special counsel in the scandal.
In The Washington Post, the Manafort and other FARA cases were heralded as essential to protecting democracy. A columnist concluded, “FARA can be a powerful tool for detecting those foreign instruments. We should use it. No matter whom it ensnares.”
It has now ensnared the son of President Biden. The question is whether the Justice Department and the media still have the same appetite for FARA prosecutions.
Jonathan Turley is an attorney and professor at George Washington University Law School.