One of the MAGA movement’s most persistent criticisms of the justice system in recent years is that there is one standard for Trump supporters and another for his opponents.
Call it “Trump law.” When Democrats, like former attorney general Eric Holder, ignore a congressional subpoena, nothing happens. When Trump supporters like Steve Bannon ignored the summons of the January 6 committee, the Justice Department prosecuted him. Today Bannon is serving a four-month federal prison sentence, while Holder was put in charge of Kamala Harris’s VP search. The selective enforcement of the law should be a problem for all Americans no matter their political preference. And yesterday The New York Times, of all places, provided an even more persuasive example of this double standard.
The paper reported that Hunter Biden, the sitting president’s son, was an unregistered foreign agent while Joe Biden was vice president in 2016. He lobbied on behalf of a Romanian developer and Burisma, the Ukrainian energy firm whose board he sat on.
These facts suggest on the surface an open-and-shut violation of the Foreign Agents Registration Act, or FARA, a law that dates back to 1938 and was originally meant to force Nazi, and then later Soviet, agents of influence to register as such with the Justice Department. And yet Hunter was not punished at the time of his lobbying, or later when the Justice Department investigated his tax evasion and gun charges during Trump’s term in office.
The lack of enforcement against Hunter Biden’s lobbying on behalf of foreign entities would not normally be such a big deal. Between 1967 and 2018 the Justice Department prosecuted only 13 total cases for criminal violation of the law. Most of the time, FARA violators were fined or forced to register retroactively with the Justice Department.
But after Robert Mueller began his probe into whether the Trump campaign conspired with Russia to influence the 2016 election, his office resurrected the FARA statute in an effort to flip former advisers and hangers-on to turn on Trump. Mueller’s attorneys initially used this pressure to persuade Trump’s first national security adviser, Michael Flynn, to cooperate with the investigation. Flynn and his son were threatened with the prospect of jail time for failing to register under FARA for their foreign lobbying on behalf of Turkey. (Flynn had initially registered this work under a less cumbersome law known as the Lobbying Disclosure Act.) Mueller also went after Trump’s former campaign manager, Paul Manafort, for FARA violations. Manafort pleaded guilty to those violations as well as bank and tax fraud in 2018 and was pardoned by Trump in 2020.
One of Mueller’s deputies, Andrew Weissmann, acknowledges how rare FARA prosecutions were before he started using it to pressure Trump associates to rat on their boss. “There is little incentive for these lobbyists to register under the law because the law virtually never is criminally enforced or results in civil penalties,” Weissmann wrote in his 2020 memoir.
Weissmann believed he was using the threat of FARA prosecution to expose a Trump-Russia conspiracy. But that conspiracy was never proven or even alleged in court. Mueller’s report found no evidence that any Americans conspired with Russia’s plans to influence the 2016 election. In pursuit of that phantom, Weissmann invented a new enforcement standard for FARA.
Now that the current president’s son seems to have engaged in a FARA crime spree only a year before Weissmann started his FARA crackdown, it’s fair to say Trump and his supporters have a point when they complain about a politicized, two-tiered justice system.
Eli Lake is a Free Press columnist. Follow him on X @EliLake, and read his piece “The Difference Between the Clinton and Trump Hacks.”
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