Let’s talk about what to expect from Archer’s testimony today, behind closed doors, before the House Oversight Committee. In a subsequent post, I’ll address the weekend controversy over whether the Justice Department tried to have Devon Archer imprisoned (on the as-yet-unserved sentence for his 2018 fraud conviction) or, at a minimum, was trying corruptly to influence his testimony. The testimony is the more important matter, and considering it may help us evaluate whether the prosecutors’ correspondence over the weekend was connected to the House hearing and intended to be menacing.
I am skeptical that Archer’s testimony will be the bombshell that many anticipate. Reportedly, he will acknowledge that his longtime business partner, Hunter Biden, frequently put their business associates (including foreign ones) in direct touch with Hunter’s father, Joe Biden, including while the latter was serving as Barack Obama’s vice president. Such testimony would be relevant but not very revelatory.
We already know Hunter put Joe Biden in direct touch with his business partners. Hunter said so in various emails, and some of his associates acknowledged it. The first thing Hunter did after flying to China with his father in 2013 was introduce the then–vice president to his Chinese partner, Jonathan Li (for whom Joe Biden later wrote a letter to help Li’s son get into an Ivy League school). Tony Bobulinski gave public statements recounting face-to-face meetings with Joe Biden over Hunter’s CEFC deal with China. Hunter and Archer threw a dinner party for business associates in 2015 that the then–vice president attended. There are some corroborating photos that show Joe in the company of Hunter’s business associates. Burisma founder Mykola Zlochevsky told an FBI informant that he spoke directly with Joe Biden (whom he says he bribed) about installing Hunter on Burisma’s board. And as we detailed in a recent editorial, IRS whistleblower agents testified about a WhatsApp message in which Hunter, while extorting a Chinese business, warned that his father was sitting with him and would help him turn up the heat unless the partner complied with Hunter’s demands.
Beyond that, what do we really expect Archer, a loyal Democrat, to say? Archer, a national vice-chairman of John Kerry’s failed 2004 presidential campaign, went into business over a decade ago with two chums from Yale — Chris Heinz, the stepson of John Kerry, then secretary of state, and Hunter Biden, the vice president’s son. Do you think he is going to implicate himself in a decade of fraud schemes based on monetizing Democratic Party political power? Color me doubtful.
Archer is looking at a year in prison for a fraud conviction. As I recounted last week, Hunter Biden was significantly implicated in the case, but he was not charged. Archer may have been involved in other shady arrangements with the Bidens, but neither he nor they have been charged with crimes arising out of any such transactions. Is he going to unfold such conspiracies at great risk to himself?
Archer couldn’t, for example, implicate the Bidens in a multimillion-dollar Burisma bribery scheme unless he said the payments he himself received were part of it. If, as seems likely, the Hunter/Archer partnership — Rosemont Seneca — was mainly a vehicle for collecting lots of money from people who wanted to benefit from Joe Biden’s political influence, Archer couldn’t explain that scheme without implicating himself in it.
Why would he do that?
The House Oversight Committee cannot do anything to help Archer. Chairman James Comer (R., Ky.) is a member of Congress, not a prosecutor. Comer has no authority to reduce or undo Archer’s one-year prison sentence or the approximately $60 million in forfeiture and restitution he was ordered to pay. If Archer implicates himself in other crimes, the House cannot prevent the Biden Justice Department from prosecuting him for those crimes.
That is why it’s so difficult for Congress to try to be a grand jury and investigate crimes. Yes, a committee can compel testimony and the production of documents by subpoena. But Congress has no power to prosecute or to reduce sentences. Only prosecutors have such power, and their exercise of it is what generally induces accomplices to become cooperators. Congress has some authority to grant immunity, but to be effective such grants require bipartisan cooperation and consultation with the Justice Department. Don’t hold your breath.
Plainly, Archer is a “what’s in it for me?” type of guy, as well as a convicted fraudster. I don’t see what incentive he has to implicate himself in a slew of crimes — a list potentially including bribery, money-laundering, failures to register as a foreign agent, conspiracy, and so on. Unless he can get out from under the year of incarceration and crushing financial penalties he already faces, in addition to being given immunity from prosecution, what’s in it for him to bury the Bidens? And Comer’s committee cannot make Archer’s troubles go away as a reward for his testimony.
Only the Justice Department could do that. In fact, under federal law, a court has no power to reduce a sentence that has been imposed unless prosecutors make a motion seeking such a reduction — and that has to be done in a tight window that, arguably, is already closed. (See Rule 35[b], Federal Rules of Criminal Procedure.)
It’s possible that this is what the SDNY’s letter to the court on Saturday may have been about: reminding Archer that, as far as the Justice Department is concerned, he is going to prison no matter what he says in his Monday House testimony. Reminding him that the House has no power to help him, no matter how cooperative he is in the committee’s investigation of the Bidens, and that the Biden Justice Department has no intention of helping him — though it could prosecute him further if additional evidence of crimes emerges.
We’ll consider that possibility in my next post.