The political, if not legal, theory behind this is apparently: What’s good for the Russian goose is good for the Chinese gander. Before Robert Mueller used the Foreign Agent Registration Act as a lever to force people to talk, no one took violations of it seriously as a criminal issue, least of all the Department of Justice. Now that Paul Manafort and associates of Michael Flynn got convicted on FARA-related charges, however, suddenly it’s all the rage.
And in fairness, it’s also the law, although it looks like the use here is just as politically motivated:
A search of Justice Department databases reveals that Hunter Biden failed to register as a foreign agent while promoting the interests of foreign business partners in Washington, including brokering meetings with his father and other government officials, and RealClear Investigations has learned that at least one Senate committee is investigating whether Joe Biden’s son violated federal laws requiring disclosure of such foreign contacts.
The Obama administration did not prosecute Hunter Biden for potential violations of the Foreign Agents Registration Act, despite its much more aggressive pursuit of FARA cases relative to other administrations — including its opening of criminal investigations on no fewer than six Trump campaign advisers in 2016.
One of them, Paul Manafort, ended up in prison on charges that included failing to publicly disclose his lobbying on behalf of Ukrainian clients and partners. Newly discovered April 2015 emails show Hunter Biden appeared to be helping a Ukrainian energy executive meet with and lobby his father, who was vice president at the time. Hunter, who held a lucrative seat on the board of Ukrainian gas giant Burisma at the time, also sought meetings with State Department officials.
Until Mueller, FARA violations were only slightly more likely to result in criminal probes than supposed violations of the Logan Act. This also misses the fact that Manafort got convicted on other and more serious charges, as well as the fact that the DoJ had built a case against him as far back as 2014. They didn’t go after Manafort at that time because they hoped to net bigger fish, but when that didn’t materialize, they shelved their investigation. Mueller picked it back up and added in the FARA violations in order to squeeze Manafort for testimony against Donald Trump. When it turned out that there wasn’t any crimes to charge in the “Russia-collusion” case, Mueller just polished off the existing DoJ cases against Manafort and Rick Gates.
Still, the use of FARA as a snare now has precedent. RCI’s Paul Sperry reports that one Senate committee plans to use it in dealing with Hunter Biden, although which committee turns out to be a bit of a surprise:
The Senate Finance Committee, which is chaired by Sen. Chuck Grassley, an Iowa Republican, is actively investigating Hunter Biden’s possible non-compliance with the FARA statute, according to a spokesman.
“Chairman Grassley is continuing to review developments surrounding Hunter Biden’s foreign-influence arrangements to determine whether any potential violation occurred,” Grassley spokesman Taylor Foy said, adding that staff investigators are combing through the trove of emails found on Hunter’s laptop.
Asked if they are preparing to refer the matter to Justice for criminal investigation, Foy said, “We haven’t reached that point at the moment, but we are actively looking at the material with FARA in mind.”
Not the Intelligence Committee? Not Homeland Security, where Ron Johnson is already interested in the Hunter threads? The Finance Committee seems like an odd fit here for a FARA probe. The DoJ would be the most likely agency to deal with this, but given their decades-long inclination to treat FARA as a minor issue, it’s not surprising that they’re not following Mueller’s precedent here. Sperry reports that the National Legal and Policy Center plans to file a complaint with the DoJ, but it seems unlikely that they will get any more interested, especially in a case involving the son of a major-party presidential nominee days before the national election.
These efforts are likely doomed anyway, legally and politically. The statute of limitations on FARA is five years, which means that all of the 2013 stuff is useless. If Hunter lobbied his father on Ukraine later than that, then maybe it works, but only if it gets filed really soon, but even that requires a connection to a foreign government. The DoJ would have to prove he actually lobbied his father on behalf of the Ukraine government, which so far we haven’t seen firmly established — as it was in the Manafort case, because the previous Ukrainian government was his client. (We haven’t seen firm evidence that Hunter lobbied Joe for Burisma, either; they both deny it.) The recent issues with CEFC China Energy and Sinohawk wouldn’t qualify, since Joe wasn’t in office at the time. Simply doing business in a foreign country doesn’t qualify; you have to be lobbying on behalf of a foreign government or entities controlled by that government.
Politically, this is a dog, too. Hunter isn’t running for office, nor is he likely to do so. A FARA indictment might dent Joe a little, but most people are inclined to dismiss October surprises, especially those aimed more at family members. Pushing this in Senate committees in the last week of the election looks more like a stunt than a real investigation into real corruption. Shouldn’t all this attention be on Joe Biden’s agenda, and Donald Trump’s wins over the last four years?