Below is my column in the New York Post on the implications of the recent civil lawsuit against Steve Wynn for allegedly working as an agent for China. The lawsuit was brought under the Foreign Agents Registration Act. The timing of the shift to civil penalties is significant given the ongoing investigation of Hunter Biden for possible FARA violations. The decision of the Biden Administration to move away from criminal charges under FARA could prove highly advantageous for Hunter Biden.
Here is the column:
The Justice Department this week sued former casino mogul Steve Wynn for allegedly working as an agent for China. The lawsuit under the Foreign Agents Registration Act is bad news for Wynn, but it may be a win for another potential target: Hunter Biden.
By bringing this action as a civil lawsuit, the Justice Department may have undercut the ongoing investigation by David Weiss, the US attorney for Delaware, into Hunter Biden’s foreign dealings. This civil suit doesn’t necessarily bar Weiss, but Biden’s team can now argue that criminally charging him with a FARA violation would be inconsistent with contemporary investigations.
I recently testified in Congress on FARA prosecutions and noted that the Justice Department had largely dropped civil actions under the act in favor of criminal charges. Special counsel Robert Mueller targeted various Trump officials with FARA, using the law to investigate, search or charge attorneys from Paul Manafort to Rudy Giuliani to Victoria Toensing.
I testified earlier that “after ramping up prosecutions in the last decade, the Justice Department has created precedent for the criminalization of what were previously treated as administrative violations. From Paul Manafort to the current investigation of Hunter Biden, there remain questions as to whether Justice Department will operate under a single, coherent and predictable standard.”
Some in the administration may be hoping that this charge will compel a consistent approach that would effectively decriminalize any violations under investigation in Delaware.
The feds sued Wynn over his effort to intervene in the case of Chinese businessman Guo Wengui, a billionaire real-estate magnate and critic of the Chinese government. Beijing wanted the businessman back in China and hoped to persuade the US government to deny him a visa.
Wynn spoke to President Donald Trump about the case, a call that carried added weight due to Wynn’s position as the Republican National Committee’s finance chairman.
Wynn has interests in Macau, and his intervention was allegedly appreciated by high-ranking Chinese officials. The Justice Department asked Wynn to register as an agent, but he declined.
What is most striking about this case is how serious it is, particularly compared with past criminal cases like the prosecution of Paul Manafort. Here, Sun Lijun, then the Chinese vice minister for public security, was allegedly organizing the lobbying effort in 2017 and contacted figures like Elliott Broidy, a former RNC finance chairman, and Nickie Lum Davis, a top Trump fundraiser. Both Broidy and Davis later pleaded guilty in prosecutions.
The question is why Broidy was criminally prosecuted in 2020 under FARA, including for work on the Guo matter, yet the Biden administration suddenly decided that the Wynn part of the deals should be treated as a civil matter. This is coming at the very time a grand jury is reportedly considering charges against Hunter Biden that could include FARA violations.
Wynn not only allegedly acted at the request of Chinese officials but was able to make direct contact with Trump to lobby him on the issue. He had no apparent interest in Guo, who would face a dire future if deported to China. But he had major financial interests in China, and the investigation yielded other criminal charges.
A huge high-profile case like Wynn’s is not simply left to local prosecutors. Main Justice is often involved in such investigations and charging decisions. Other agencies can also be involved.
The decision to depart from the earlier cases and proceed civilly could not come at a better time for Hunter Biden. If the Justice Department applied the same approach used in the Paul Manafort case, Biden would be looking at the serious prospect of a felony charge.
Biden discussed the possible need to register in light of his extensive work on behalf of foreign interests in what many view as blatant influence peddling. This work happened during the same period as the Wynn work. In 2017, Biden texted his business associate Tony Bobulinski: “No matter what it will need to be a U.S. company at some level in order for us to make bids on federal and state-funded projects. Also we don’t want to have to register as foreign agents under the FCPA [Foreign Corrupt Practices Act] which is much more expansive than people who should know choose not to know. James [Biden] has very particular opinions about this so I would ask him about the foreign entity.”
There was ample reason to worry given the wide array of foreign clients and their interest in using Hunter’s access and influence. The president’s son was working with CEFC, a Chinese Communist Party-linked company led by Ye Jianming. The Justice Department criminally charged one of Ye’s associates, Patrick Ho, in 2017 under the FCPA. The first call he reportedly made after his arrest was to James Biden, who said that he was trying to reach his nephew, Hunter.
Hunter worked on a joint venture between an entity called Sinohawk and CEFC. He had extensive dealings with Chinese figures as well as officials in Russia, Kazakhstan, Ukraine and other countries. Emails referred to meetings with his father, then vice president. In 2014, he wrote to former business partner Devon Archer about an upcoming trip to Ukraine by “my guy” — his dad. He noted that it should “be characterized as part of our advice and thinking — but what he will say and do is out of our hands.” (Archer would later be criminally convicted of fraud in a separate matter).
Hunter Biden arranged meetings between his father and Ukrainian and foreign clients. He also continued to express his concerns over registration laws, noting that executives at the Ukrainian energy company Burisma “need to know in no uncertain terms that we will not and cannot intervene directly with domestic policymakers, and that we need to abide by FARA and any other U.S. laws in the strictest sense across the board.”
He never, however, registered. Like Wynn, he maintained that his work for foreign interests stayed short of the FARA line despite the broad interpretation the Justice Department gave in past criminal cases. Compared with those other cases, Hunter Biden seems well over the line. In United States v. Chaudhry, a US resident pleaded guilty under FARA for efforts to influence various US think tanks’ views on US-Pakistani relations.
Now the Justice Department has departed from years of criminal charges in favor of civil charges. Many of us have questioned the need for criminalization of these charges and the broad sweep of FARA. But the timing of the Biden administration’s sudden change could not have come at a more opportune time for the president’s son.