Hunter Biden, FARA and Unequal Justice

Unequal justice has emerged as a theme in the Hunter Biden plea deal, and one example came last week when Judge Maryellen Noreika asked the prosecution and defense in court if their agreement meant the President’s son could still be prosecuted for violating the Foreign Agents Registration Act. Hunter’s lawyers said no, but the prosecutor said yes, and Hunter can thank Robert Mueller if he is prosecuted under that statute.

FARA is a long-ignored law dating to 1938 that special counsel Mueller brought out of mothballs in an attempt to pry information out of Donald Trump’s associates. It requires Americans acting as an “agent of a foreign principal” under most circumstances to register with the U.S. government. As we noted at the time, in the nearly half-century up to 2016 the Justice Department brought only seven criminal FARA cases and won three convictions. The rarity of prosecutions created much confusion about how and when the law applies.

That didn’t stop Mr. Mueller. As special counsel investigating nonexistent Russia collusion, he used FARA to prosecute Trump associates who were mostly accused of lying about their work on behalf of foreign governments.

This is how he nailed Paul Manafort, who took money from the Ukrainians. Michael Flynn admitted to making false statements in documents filed pursuant to FARA regarding his work on behalf of the Turkish government. FARA also ensnared Greg Craig—a high-powered Democratic lawyer and former White House counsel to President Obama—who was prosecuted as an offshoot of the Mueller investigation into Mr. Manafort’s deals with Ukraine.

As long as FARA was targeting people in the Trump orbit, Democrats cheered these prosecutions. They weren’t even fazed when a federal jury acquitted Mr. Craig on FARA-related charges that we and others believe should never have been brought.

They may regret that legal standard now that federal prosecutors have confirmed to Judge Noreika that FARA charges could still be lodged against the President’s son. Based on Mr. Mueller’s prosecutions, Hunter is vulnerable.

We know Hunter set up a shell company to do business with CEFC China Energy, and that he didn’t register as a foreign agent. Shell companies are a common strategy for disguising ownership, and accepting money from a foreign entity would normally require FARA registration. Similar questions remain about Hunter’s dealings in Ukraine.

A FARA prosecution has political implications for President Biden. To have his son acting as a foreign agent while they were travelling to the relevant foreign countries together on Air Force Two would make the President’s claims of ignorance about Hunter’s business even harder to believe. This is guaranteed to be an issue in his 2024 bid for re-election—not least because staffers in the Obama Administration sent up red flags about Hunter’s lucrative work on the board of Burisma, the Ukrainian energy company.

FARA has never been clearly defined and is used selectively. That is the definition of a bad law that is too easy for prosecutors to exploit against their political enemies.

Democrats have reason to say that if everyone in Washington who violates FARA were prosecuted for it, half the lobbyists would be out of business. But this would be a more persuasive argument if they had made it when Robert Mueller was busy using it against their political enemies.