Earlier this month, House Oversight Committee Chair James Comer, R-Ky., announced that a document in possession of the FBI that relates to Hunter and Joe Biden “has not been disproven and is currently being used in an ongoing investigation.” In the hands of conservative media and some leading Republicans, that double negative quickly transformed into affirmative proof of a criminal bribery scheme involving the Ukrainian natural gas company that had hired Hunter while his father was vice president.
The entire Swamp is doing everything they can to protect Biden, but good to see House Republicans finally forcing some accountability. https://t.co/2ECwsZnv0y
— Donald Trump Jr. (@DonaldJTrumpJr) June 6, 2023
The idea that the charge has been proven is preposterous, but readers looking for details on the case have little place to turn outside of the conservative news outlets that have been making such claims. Yet if the FBI is telling Congress that it hasn’t disproved the allegation, it does raise serious questions: What exactly are the Bidens accused of doing? What is this document? And what has the FBI done to test the veracity of that evidence?
What Is the Allegation?
The charge is straightforward: If all the claims in the document are to be believed, a Ukrainian energy company, Burisma, funneled $5 million to then-Vice President Joe Biden so that he would pressure Ukraine to fire the prosecutor investigating Burisma for corruption. Joe Biden did in fact successfully push the Ukrainian government to fire the prosecutor in March 2016, though as his defenders point out, getting the prosecutor fired was official U.S. policy.
What Is the Document?
The evidence in question is a so-called FD-1023, which the FBI produces to memorialize a tip or some other information provided to the agency by a confidential human source, or CHS. More or less anybody who walks into an FBI field office and provides information would have their claims documented in an FD-1023, which does not assess the credibility of the claim or otherwise couple it with analysis of existing information. In May, an FBI whistleblower came forward to Sen. Chuck Grassley, R-Iowa, alleging the existence of a damning FD-1023 involving Joe and Hunter Biden. Grassley made the claim public, but the FBI was initially reluctant to confirm the existence of the document. FBI Director Christopher Wray eventually did so.
The House Oversight Committee asked for a copy of the document, and the FBI at first refused, saying releasing it to Congress would carry substantial risks but that members of Congress could view it in person at FBI headquarters.
“Revealing unverified or possibly incomplete information could harm investigations, prejudice prosecutions or judicial proceedings, unfairly violate privacy or reputations, create misimpressions in the public, or potentially identify individuals who provide information to law enforcement, placing their physical safety at risk,” the FBI said in a statement. “Information from confidential human sources and members of the public is critical to the work of the FBI and we are also committed to protecting the confidentiality of anyone who comes forward.”
The FBI later compromised, allowing members of the committee to view the document on Thursday in a highly secure Capitol Hill room known as a SCIF (short for “sensitive compartmented information facility”), with additional opportunity to view it Monday and Tuesday.
What Does the Document Say?
What we know about the document comes from public statements made by Grassley and Comer and leaks to the media, including The Intercept. The picture that emerges: The confidential human source reported to the FBI — which has reportedly deemed the source to be “highly credible” — in June 2020 that they had a conversation with a Ukrainian Burisma executive while Biden was vice president either in 2015 or 2016. The executive asked the source for help linking Burisma up with an American energy company, and the CHS asked why their help was needed if the company had Hunter Biden, who sat on the company’s board. The executive said Biden was “dumb” — he was in the trough of addiction at the time — and that he had paid $5 million to Hunter Biden and $5 million to Joe Biden through a variety of accounts that would take years to disentangle.
Yet even if everything in the document is true, there is still an interpretation that would stop short of implicating Joe Biden: Hunter Biden could have been lying in order to extract more money from Burisma. The document does not (and cannot) answer the question of whether Hunter Biden told the company the truth about splitting the money with his father, or whether it was a way to shakedown additional money and appear more influential than he was. In that scenario, the Burisma executive would have believed he was bribing the vice president, yet his son would have pocketed the money. The Burisma executive reportedly told the CHS that he did not pay Joe Biden directly. He’d therefore have no way of knowing if Joe Biden got the money.
In the past, Hunter Biden has shared money with his father, including paying bills at Joe Biden’s Wilmington home. In a text message Hunter Biden sent to his daughter Naomi in 2019, he hinted at some type of arrangement. “I hope you all can do what I did and pay for everything for this entire family for 30 years,” Hunter Biden complained. “It’s really hard. But don’t worry, unlike pop, I won’t make you give me half your salary.”
A Daily Mail tabulation of the former vice president’s finances identified a $5.2 million discrepancy between his tax returns and public financial disclosures.
On the Senate floor Monday evening, Grassley said that he had read the document with minimal redactions and that it contained a claim that the Burisma executive also kept 15 recordings of conversations with Hunter Biden and two with Vice President Joe Biden as “a sort of insurance policy for the foreign national in case that he got into a tight spot.”
Chuck Grassley says on the Senate floor that a “foreign national” has two recording between himself and then VP Biden and 15 between himself and Hunter Biden, according to the FBI FD-1023 Republicans are trying to make public -Part 1 pic.twitter.com/VYxXrphaMM
— HalalFlow (@halalflow) June 13, 2023
The reference to the audio recordings, according to a source familiar with the document, is included in the version made available to Grassley, Comer, and Democratic ranking member Jamie Raskin of Maryland, but was redacted in the version made available to the rank-and-file committee members.
On Tuesday, Wisconsin Sen. Ron Johnson, a Republican who has played the most footsie with conservative conspiracy theories, tapped the brakes on the speculation around the audio tapes. “That’s what this person says. But again, take that with a grain of salt. This could be coming from a very corrupt oligarch. He could be making stuff up,” Johnson said on conservative radio. “We don’t really know whether the tapes exist, we just really don’t know that [or] whether this was a bluff on whoever the executive was, we think it was Mykola Zlochevsky the CEO, the corrupt oligarch. But we really don’t know.”
Why Did It Take Until June 2020 for the Source to Reveal the Information?
In January 2020, Trump ally Rudy Giuliani shared a trove of information related to Hunter Biden with the FBI. The bureau referred those documents to the Western District of Pennsylvania, which had previously been assigned to handle any incoming election-related information. While taking initial steps to verify Giuliani’s information, a search of FBI records turned up previous FD-1023s from the CHS, which included allegations made in 2017 and 2018 that mirrored some of what was in Giuliani’s cache, according to a source on the House Oversight Committee. The FBI then reached back out to the CHS to reinterview the source about their conversation with the Burisma executive, which produced the new FD-1023 in June 2020.
What Do We Know About the FBI and Confidential Human Sources?
The FBI has for years faced criticism over inadequate vetting of its confidential human sources.
While the bureau maintains a sizable CHS program — shelling out an average of $42 million in payments to informants each year — it is overseen by an understaffed team of just a few individuals backlogged with requests to vet the credibility of existing CHSs, according to a 2019 Department of Justice inspector general audit. Since many CHSs have themselves been charged with serious crimes — often the basis of their cooperation — this can pose serious risks as to their reliability.
The report drew particular attention to the bureau’s insufficient vetting of its long-term sources who can become overly familiar with their handlers and compromise their sense of objectivity. The audit cited as an example of the infamous case of mobster-turned-informant Whitey Bulger, who had grown so close to his FBI handler that he tipped him off prior to his arrest. The scandal spurred a review of the attorney general’s CHS guidelines, which now require the FBI to revalidate long-term CHSs at regular intervals. (The report found the FBI was not in compliance with these guidelines.)
In the case of the FD-1023 involving the Bidens, the FBI initially cited source protection as a reason not to share the document with Congress.
Yet the secrecy the FBI says is necessary to protect sources can also obscure the credibility of the source. Ironically, one of the sources at the heart of the now discredited Steele dossier, which included explosive allegations about then-candidate Donald Trump, was a confidential human source for the FBI. Igor Danchenko, the dossier’s primary subsource whom the U.S. government likewise deemed credible, continued to serve as a CHS from 2017 through 2020, with the FBI paying him over $200,000. Top Republicans, including Grassley, then a ranking member of the Senate Judiciary Committee, excoriated the bureau for its reliance on “unverified” allegations to launch their probe into Trump.
The secrecy the FBI says is necessary to protect sources can also obscure the credibility of the source.
Still, top Republicans are now citing exactly the kind of evidence — a confidential human source relaying the unverified allegations of a Ukrainian business executive — that they dismissed as unreliable when it came to Trump and the dossier.
“The FBI created this record based on information from a credible informant who has worked with the FBI for over a decade and paid six figures,” Comer said last week.
Last Wednesday, Comer unveiled a resolution to hold contempt of Congress hearings against Wray, a historically unprecedented course of action that the FBI complained was an “escalation” that was “unwarranted.” Comer walked back those plans after the FBI agreed to let members of the Oversight Committee review the FD-1023.
For civil liberties advocates, the GOP’s recent interest in abuses by federal law enforcement is a welcome if late development.
The FBI has “long abused this privilege to withhold information that’s merely embarrassing to the bureau. … It isn’t partisan politics but rather interest in protecting the FBI from criticism.”
“The FBI has a long history of rebuffing, delaying, and refusing congressional requests for information,” Mike German, a former FBI special agent and fellow with the Brennan Center for Justice’s liberty and national security program, told The Intercept. “Obviously, there are some good reasons to withhold information regarding active investigations, investigations not resulting in an indictment, grand jury investigations, and source identification, but they have long abused this privilege to withhold information that’s merely embarrassing to the bureau.”
But the bureau’s lack of responsiveness to Congress is not a partisan tendency.
“Sen. Grassley has been most aggressive in publicizing these complaints, but the FBI refuses to cooperate with Democratic members’ requests too,” German said. “It isn’t partisan politics but rather interest in protecting the FBI from criticism.”
In probing Wray about what steps the FBI has taken to check out the information provided in the FD-1023 — much of which can be tested against bank records or by attempting to obtain the alleged audio recordings — House Republicans say they have been told only that the evidence is part of an ongoing investigation.
The FD-1023 makes reference to two other FD-1023s, according to a committee source. On Monday, Comer vowed that he will gain access to additional FBI documents related to the matter. Wray has agreed to allow Comer and Raskin, the committee’s ranking Democrat, to view them privately, though he has not agreed to open it up to all committee members.
Records like these could provide fodder for additional subpoenas, like the one Comer sent to a Biden family associate Monday for testimony around his knowledge of the family’s business deals abroad.
Comer also said that the committee will be creating new legislation compelling senior elected officials’ family members to disclose more information regarding foreign transactions.
“Moreover, in order to prevent financial transactions from being structured in a way to evade oversight, the Committee is examining whether certain reporting requirements,” Comer wrote in a letter attached to the subpoena, “including any new reporting requirements for senior elected officials’ family members, should extend for a period of time after a President or Vice President leaves office.”
Democrats are highly skeptical that the Trump administration possessed actionable and damning information against Joe Biden but didn’t use it during the 2020 campaign, while Republicans charge the FBI covered up the evidence to protect Biden. Raskin has argued that Republicans should train their fire on the previous administration because it was the Trump FBI that shut down the investigation. The FBI did indeed close its investigation into the claims made by Giuliani in 2020, but a separate investigation into Hunter Biden is ongoing.
There is some dispute over whether the FD-1023 ever moved from the Giuliani probe to the Hunter Biden one. Wray told Grassley that the document was related to an ongoing investigative matter, according to Grassley spokesperson Taylor Foy. Yet Democrats who have viewed the document said the FBI has told them the investigation into the allegations contained in the document was closed in 2020 after the bureau concluded there wasn’t sufficient evidence to justify continuing with it.
Former Trump Attorney General Bill Barr, meanwhile, told Fox News that the investigation into the specific allegations contained in the FD-1023 was never closed. Rather, Barr said, the evidence was assessed not to be disinformation and forwarded on to the Delaware prosecutor probing Hunter Biden, an investigation that remains ongoing — frustratingly so for Barr. “I think it’s time to fish or cut bait and find out what actually happened in that investigation,” he said.
White House press secretary Karine Jean-Pierre on Tuesday dismissed Grassley’s claim of audio recordings between the Burisma executive and Vice President Joe Biden. “It’s malarkey,” she said.
Update: June 14, 2023
This article has been updated to include comments made by Sen. Ron Johnson.