Presidential Relatives Behaving Badly: What’s the Difference Between Hunter Biden and Jared Kushner?

It’s about timing with Kushner, and it’s about transparency with Biden, according to former White House ethics czar Richard Painter

Given that, in the last few weeks, I’ve written about ethics controversies around both Jared Kushner and Hunter Biden, I thought it was important to think about the differences and similarities between the two.

Kushner’s appearance of self-interest (his investment fund received $2 billion from PIF, the Saudi sovereign wealth fund, over the objections of PIF’s financial advisors) is far worse than Biden’s, because Kushner was actually an official in the Trump White House, guiding policy in the Gulf, and, so it appears, possibly benefitting financially from policy favorable to Saudi Arabia’s Crown Prince MBS—possibly at significant cost to U.S. national security. (See both my previous reporting on this—Part One, Part Two, and Part Three—as well as my book, Kushner Inc.)

Hunter Biden, on the other hand, has (sensibly) been kept far away from his father’s White House, but, even so, his past efforts at influence-peddling his father’s vice-presidency bear shades of Billy Carter. And there are questions as to whether Joe Biden, as vice-president, was as careful as he should have been at keeping out of his son’s business dealings. The big question remains as to why close Putin ally Vladimir Yevtushenkov, with whom Hunter Biden reportedly met, is still not sanctioned. Had Joe Biden never met with some of Hunter’s foreign business partners, who knew Yevtushenkov, the question would not be so problematic.

But the bottom line, as the ethics lawyer Richard Painter rightly points out below, is that the two cases are really not comparable. Jared Kushner’s conduct should not be the measuring stick by which we judge Hunter Biden. Regardless, that does not mean the media should give Hunter Biden—or his father—a pass, which does seem to be what is happening in the mainstream press.

I did two interviews with Painter, one on Kushner and one on Biden.

Here’s what he had to say.

First, on Kushner:

(Photo by Drew Angerer/Getty Images)

WARD: I've been reporting on Jared Kushner and the $2 billion deal [with Saudi Arabia’s PIF]. And, according to my reporting (and I've got legal documents), it could have to do with the ousting of MBN [Mohammed Bin Nayef], who was the Saudi crown prince when Trump first came into the White House and who the U.S. intelligence agencies very much wanted to see as the next king of Saudi Arabia. But, according to my sources, Jared Kushner in particular was very helpful in getting rid of MBN and giving MBS his current job. MBN has since been disappeared. I guess my question is: If there had been a quid pro quo—which we don’t yet know—what’s the law here?

PAINTER: If there was any quid pro quo, that would be bribery. So, if, when Jared Kushner was holding public office and was told by anyone Saudi Arabia, If you do this, now, you will be rewarded later, that would be bribery. That of course would be a very serious crime. But bribery is very difficult to prove.

The Founding Fathers knew that. They were very worried about bribery and particularly bribery by foreign nations. So that's why the Emoluments Clause is there in the Constitution. The Emoluments Clause prohibits any gift or any financial benefit—including a financial transaction from a foreign government—to a public official.

Now, I believed that, during the Trump presidency, there were emoluments from foreign governments (i.e., benefits coming to the Trump family during the Trump presidency), and I sued Donald Trump. I represented CREW (Citizens for Responsibility and Ethics in Washington), along with Professor Larry Tribe, the constitutional expert, and Norm Eisen, who had been President Obama’s ethics lawyer. We sued Trump under the Emoluments Clause, but the extent of Trump’s violations has not been fully exposed because there's no enforcement mechanism for the Emoluments Clause other than our civil suit, which President Trump tied up in the courts for four years. And once Trump left office, our case was dismissed by the Supreme Court as moot.

If our litigation had been allowed to proceed more quickly, there would have been a thorough investigation of the relationship between Jared Kushner and Donald Trump and Saudi Arabia and various other countries. We might have more evidence to show what [allegedly] happened between Jared Kushner and the Saudis. The Emoluments Clause does not apply to a former government official, but a current official shouldn’t be able to avoid its prohibitions simply by postponing receipt of the intended emoluments until after leaving office. We need to know more about what was said between Kushner and the Saudis when he was in office.

Now, once again, if this business deal were done as a quid pro quo for official action by Kushner in the White House, it would be criminal bribery, but it's very hard to show. That’s why the founders included the Emoluments Clause in the Constitution. But that would be of little value if the emoluments were offered while someone like Kushner is in office and then accepted by closing a business deal after they leave office. We need to know what happened.

I would say that, if there were any type of agreement or understanding that Jared Kushner would receive this business deal—and [if] that understanding was reached while he was in office—that really is constructively an unconstitutional foreign emolument, even if the deal were closed later.

WARD: What I've put out on my newsletter are text messages from legal documents showing that MBN believed that MBS and Jared Kushner were discussing the Saudi succession. Now, that's not a quid pro quo. It means they were discussing the Saudi succession.

PAINTER: Were they discussing this business deal, though, at the same time?

WARD: Well, MBN believed so. But the question is: Are there records of that? I don't know of any.

PAINTER: If you are discussing a personal business deal at the same time as you are discussing official United States government business with a foreign country, then the evidence of quid pro quo bribery begins to mount.

If at the same time as you’re negotiating behalf of the United States government with a foreign country, you—in [a] personal capacity or [on behalf of] your family company—are negotiating a business deal with the same country or powerful people connected to the government of the same country, you are in a situation where you could be accused of soliciting a bribe.

So what we need to know is when did the negotiations of this business transaction start?

There is enough evidence here that Congress should investigate. Only if there is evidence of criminal conduct would the case be referred to the Department of Justice. I believe this is worthy of a congressional subpoena, to find out when this business transaction started to be discussed between the various business entities here.

WARD: Well, Elizabeth Warren has called for a Justice Department investigation. So that's the question they should start asking, right?

PAINTER: The problem is the Justice Department often doesn't investigate until there is some significant evidence of a crime. The House and Senate should seriously think about having their own investigation because Congress has the right to investigate the integrity of public officials regardless of whether or not there's evidence of a crime. This is a high-ranking official in the White House who handled U.S. relations with the Saudis and then closed an enormous deal with the Saudis within two years after leaving office. I think that is more than enough to warrant a congressional investigation [and] congressional subpoenas. And then if they uncover more in Congress, they might be successful in persuading DOJ to proceed. I admire Elizabeth Warren for asking for that. I think she ought to start talking to her colleagues in the Senate about opening an investigation. It's critically important to our national security.

Of course, the Republicans are going to be investigating President Biden. They're making an enormous stink out of this Hunter business. I have said publicly: the Biden Administration needs to clarify that and also his relationship with the University of Pennsylvania, which got millions of dollars of Chinese money that the University President Amy Gutmann, now Ambassador to Germany, testified under oath that she didn’t know about.

But the ethics problems with President Trump were far, far more egregious. And it makes no sense for the Democrats to just say, Well, we won't investigate Trump or Jared Kushner, because it might look political. I can assure you that if the Republicans get control of the House and Senate, we’ll hear about nothing but Hunter Biden and University of Pennsylvania.

So, I think Democrats are being very foolish if they don't use their power in Congress to investigate Kushner and the Saudis. This is not a fishing expedition. This matters to our national security, and it is serious.

Congress needs to find out what happened. And this is the fundamental question: When did the Kushner negotiations start for [this] business transaction with the Saudis? With the congressional subpoena, they can find out pretty darned quick. There were lawyers, bankers and other witnesses. There were deal papers, emails—everything else related to the deal. Congress should get it.

(Photo by Drew Angerer/Getty Images)

I spoke to Painter again following my report on Hunter Biden. I was curious what he made of that and how Biden’s activities compared to Kushner’s. Here’s Part Two of our interview:

WARD: Since we last spoke, somebody then handed me this Russian document that shows Hunter Biden had a breakfast meeting scheduled in 2014 with this Russian oligarch Vladimir Yevkushenkov, who hasn't been sanctioned. [Note: That the meeting took place has since been confirmed.]

I’d love your thoughts on the comparison about ethics here. I will tell you, as a reporter, the silos of the media could not be more frustrating and more apparent. I'm all over MSNBC when I'm talking about Jared Kushner and the Saudis. And then, to my absolute astonishment, I find that Tucker Carlson is talking about me on Fox News when I'm writing about Hunter Biden. And I'm in the New York Post and the Daily Mail. It seems to me as a journalist that my job should be to report corruption on both sides of the aisle—and that, in an ideal world, both stories would be of interest to everyone in the media because they share a theme.

Now, Hunter Biden is not in his father’s White House, unlike Jared Kushner, as we’ve discussed previously. But his father was the vice president when Joe Biden very clearly showed up to a dinner in a room full of Kazakh businessmen who Hunter Biden was making money off of in 2015.

Why are the ethics of one not covered? Or covered less? Why are they different—or why are they perceived to be different?

PAINTER: Well, they are a very, very different, but that doesn't mean that what happened with Hunter Biden is right.

These are entirely separate matters. Hunter Biden’s issues are closer to the problems they had under President George H.W. Bush dealing with Neil Bush. That's probably long before your time.

WARD: I know Neil Bush. I wrote a piece about it.

PAINTER: Neil Bush was pushing for favorable regulatory treatment for his savings and loan and apparently may have tried to use some connections through the White House to reach bank regulators. Whether or not the White House played along, George H. Bush was blamed for a lot of went wrong with the economy in ’92, even though he cracked down on those savings and loans. They couldn't get away from the Neil Bush thing. It was a real mess and people wondered whether Neil Bush was using influence.

So, we knew that, and, for George W. Bush, we had a “no Bushes rule.” If anybody dropped any Bush family names to try and get access to any regulators [or] any political appointees, we made it clear that we were going to shut that down real quick.

I think we had one or two various Bush family personal friends or business partners who would try to knock on the door of some embassies. And we said that was not allowed, and we shut that down.

Another apt comparison to Hunter Biden of course was during Jimmy Carter’s administration. We had Billy Beer. And the joke now going around about Billy Carter is that if he [had] done it the Hunter Biden way—instead of selling the beer, he should have just painted a picture of the beer can—perhaps we would have gotten more money than Andy Warhol got for his Campbell soup cans.

The question is what happened when Joe Biden was vice president. He may have been less careful than he should have been as vice president. I believe that's what you're looking into now.

WARD: Right.

PAINTER: As for the time now when Biden is president, my main criticism is that the Biden White House should have had absolutely nothing to do with that awful art dealer. The White House negotiated some confidentiality deal with the art dealer. I think that was a bad idea. I thought it was a big mistake for the White House to be negotiating a secrecy agreement with him. It would have been much better to encourage Hunter Biden to be transparent about who he sold the paintings to.

WARD: But the investigations into Hunter Biden are about the past.

PAINTER: Yes. He has some of his own problems apparently and may not have paid enough taxes on a bunch of money, so he could have tax issues and other record-keeping issues.

WARD: But the ethical controversy is also that the optics are that he used his father to make his money. And then the really big question that we don't know the answer to: Did he give his father some of his earnings as vice president? I mean, I guess my question to you is why do the Washington Post and the New York Times appear to think they don't need to look into this?

PAINTER: Well, they do need to look into that. Has anyone looked at the then-vice president’s financial disclosure Form 278 and the tax returns that I believe were released during his vice presidency?

Somebody should look at both. He has [two S] corporation[s] listed on his public disclosure Form 278. That apparently is just for book royalties and speaking fees, but he doesn't list the income sources for this underlying entity. We had the same issue but much worse with Trump who had lots of corporate entities and we had no idea where they got their money.

So the New York Post picked this up and asked that Biden disclose not only tax returns, but the tax returns for the sub-chapter S corporation, the privately held corporation that was reported in his tax returns, so we can see what money's going in and out. Unlike with Trump, it’s probably just book royalties and the like, but we should know for sure. That would clarify that he did not get anything from his son, which he says he did not.

I think that, in the end, he did not touch any Hunter Biden money. I think it would be foolish for a parent in public life to share in any portion of the money that a child gets, particularly a child who has been operating in this way.  President Biden also doesn’t need the money.

Putting that issue aside, he has the other much more difficult issue. What do you do about your kid going around capitalizing on your name to make money?  That's really hard to deal with. In retrospect, it would have been better for then-Vice President Biden not to have shown up at any events with his son’s business partners and all that.

WARD: Right.

PAINTER: Apparently, as vice president, he may have done that. I don't think he's doing that as president. Although it's a legitimate story, I think it's better not to even try to compare it to Kushner because Kushner created a much bigger and entirely different set of problems when he came into the administration and had an impact on policy in the administration.

WARD: Yes, exactly. And national security exactly.

PAINTER: Yeah. It's a very difficult situation. Now, the personal side of this is very hard for Joe Biden, as he lost his older son and his younger son Hunter struggled with past addiction. [Hunter] went to Yale Law School but didn’t practice law. He went over to Ukraine and starts doing business deals when his dad is vice president. Everybody wants to do business with him. And his dad apparently met with some business associates here and there. It's perfectly legal but unsavory.

WARD: I think the problem is they've not acknowledged some of it. For example, this meeting at Café Milano in 2015.

PAINTER: They should be as honest about it as possible. When was that meeting?

WARD: January 2015.

PAINTER: And who was it with?

WARD: The Kazakhstan prime minister. And the former mayor of Moscow. And [when] the White House [was] asked about it by the Post, they did not respond.

PAINTER: Well, I am concerned. And I've already talked to you about my concern about the professorship at Penn, which is now gradually getting some attention. Soon-to-be-candidate Biden was appointed as Benjamin Franklin Presidential Practice Professor at the University of Pennsylvania from 2017 to 2019; he got $911,000. It's on his financial disclosure form. It's publicly known. That's a heck a lot of money for a professor. And then apparently Amy Gutmann, the president of the university, went around raising a huge amount of money for the university. They have a Biden Center there, and she may have been dropping his name a lot.

WARD: Right.

PAINTER: And then to make matters worse, she got nominated to be ambassador to Germany [and] shows up in confirmation hearing and says she didn't know anything about $86 million in Chinese money. I wanted her ambassadorial nomination to be withdrawn, as there were just too many problems with this much Chinese money she didn’t know about although Biden didn’t get any of it. Now Peter Schweizer, who wrote a book about the Clintons, is writing about it. If the press had been a little harder on this when Gutmann was nominated, they might have withdrawn that nomination. And at least we wouldn't have the current ambassador to Germany tied up in it.

Still there is no evidence that Biden got any of the Chinese money, and none of this is anywhere near as bad as Trump’s conflicts of interest and Kushner getting all that money from the Saudis after leaving office. Of course’s that's not my standard—“not as bad as Trump” doesn’t cut it.

The standard I think is to try to avoid even the appearance of impropriety. The White House should recognize that the Hunter Biden situation is a problem and deal with it the best they can. The president’s past relationship with the University of Pennsylvania was a problem, and the current Biden Center there because of the millions of Chinese money the university president raised and now claims she doesn’t remember. I suggested that the White House ask that the president’s name be taken off the Penn Biden Center so there can be no possibility of anyone raising money from outside the United States using the president’s name. They also should be as transparent as possible about everything that has happened when he was vice president and since then. If he was at dinners, they should just acknowledge it. Just tell the truth. It’s probably not a big problem. But if you don't tell the truth about something, then it becomes a big problem—ten times worse than it would have been.

WARD: Richard, thank you.