Trump lashes out at Gov. Doug Ducey following certification

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Part 1 of 4

Transcribed Interview of Devon Archer
by Representatives Jordan, Biggs, Goldman
Committee on Oversight and Accountability, U.S. House of Reps.
7/31/23

COMMITTEE ON OVERSIGHT AND ACCOUNTABILITY,
U.S. HOUSE OF REPRESENTATIVES,
WASHINGTON, D.C.

INTERVIEW OF: DEVON ARCHER

Monday, July 31, 2023

Washington, D.C.

The interview in the above matter was held in room 6480, O'Neill House Office Building, commencing at 10:27 a.m.

Present: Representatives Jordan, Biggs, Goldman.

Appearances:

For the COMMITTEE ON OVERSIGHT AND ACCOUNTABILITY:

CLARK ABOURISK, COUNSEL
JESSICA DONLON, DEPUTY STAFF DIRECTOR
ASHLII DYER, LEGAL COUNSEL
JAKE GREENBERG, DEPUTY CHIEF COUNSEL FOR INVESTIGATIONS
JAMES MANDOLFO, GENERAL COUNSEL AND CHIEF COUNSEL FOR INVESTIGATIONS
MARK MARIN, STAFF DIRECTOR
[DELETE] MINORITY CHIEF COUNSEL
[DELETE] MINORITY SENIOR COUNSEL
[DELETE] MINORITY COUNSEL
[DELETE] MINORITY COUNSEL
[DELETE] MINORITY DIRECTOR FOR OVERSIGHT AND POLICY

For DEVON ARCHER:

MATTHEW L. SCHWARTZ, MANAGING PARTNER
[DELETE] SUMMER ASSOCIATE
BOIES SCHILLER FLEXNER LLP
55 HUDSON YARDS, 20TH FLOOR
NEW YORK, NY 10001

1
2 Mr. Mandolfo. This is a transcribed interview of Devon Archer. Chairman
3 Comer has requested this interview as part of the committee's investigation into the
4 Biden family's influence peddling and extensive receipt of money from foreign nationals
5 and foreign companies.
6 Would the witness please state your name for the record?
7 Mr. Archer. Devon Archer.
8 Mr. Mandolfo. On behalf of the Committee on Oversight and Accountability, I
9 want to thank you, Mr. Archer, for your appearing here today. The committee
10 appreciates your willingness to appear here voluntarily.
11 My name is James Mandolfo, and I am general counsel and chief of investigations
12 for the Committee on Oversight and Accountability.
13 I will now ask everyone else on the majority and the minority, including the
14 Members, to please introduce yourselves around the table. We can start with the
15 Members.
16 Mr. Jordan. Jim Jordan, Ohio.
17 Mr. Biggs. Andy Biggs, Arizona.
18 Mr. Goldman. Dan Goldman, New York.
19 Mr. Mandolfo. Go with the majority.
20 Mr. Greenberg. Jacob Greenberg, majority counsel.
21 Mr. Abourisk. Clark Abourisk, majority counsel.
22 Ms. Donlon. Jessica Donlon, majority.
23 Ms. Dyer. Ashlii Dyer, majority.
24 Mr. Mandolfo. Now for the minority.
25 Democratic staff.
4
1 Democratic staff.
2 Democratic staff.
3 Democratic staff.
4 Democratic staff.
5 Mr. Mandolfo. Thank you, everyone.
6 I'd like to go over a few ground rules and guidelines that we will follow during the
7 interview that I previously discussed with your lawyer.
8 First, our questioning today will occur in one round. The majority will ask
9 questions for up to 2 hours, and then the minority staff will have an opportunity to ask
10 questions for an equal period of time, if they choose.
11 These are accommodations that we've made at your attorney's request, and they
12 are contingent upon your attorney's representations to the committee that you will be
13 accurate and complete in your testimony here today.
14 We have also made additional accommodations at your attorney's request, which
15 is scoping the topics, and we provided our documents in advance of this interview.
16 Again, we made these accommodations with the understanding that you would give
17 complete and accurate testimony.
18 Typically, we take a short break at the end of each hour, but if you would like to
19 take a break apart from that, please just let us know.
20 As you can see, there is an official reporter taking down everything we say to
21 make a written record. So we ask that you give verbal responses to all questions.
22 Do you understand everything so far?
23 Mr. Archer. I do.
24 Mr. Mandolfo. To ensure the court reporter can make a clear record, we will do
25 our best to limit the number of people directing questions at you during any given round
5
to just those 1 people on the staff whose turn it is.
2 It's also important that we don't talk over one another or interrupt each other if
3 we can help it. And that goes for everybody else who's present at today's interview.
4 We encourage witnesses who appear before the committee to freely consult with
5 counsel if they so choose. It's my understanding that you are accompanied by counsel
6 here today.
7 If counsel could please state your name and your law firm for the record.
8 Mr. Schwartz. Good morning. Matthew Schwartz from Boies Schiller Flexner
9 for the witness, and I'm accompanied by my colleague, .
10 Mr. Mandolfo. Thank you.
11 Mr. Archer, we want you to answer our questions in the most complete and
12 truthful manner possible. If you have any questions or if you do not understand one of
13 our questions, please just let us know and we're happy to repeat the question.
14 Mr. Archer. Okay.
15 Mr. Mandolfo. If you honestly don't know the answer to a question or do not
16 remember, it is best not to guess. This is not the place to speculate. We are seeking
17 facts.
18 Please just give us your best recollection, and it's okay to tell us if you learned
19 information from someone else. Just indicate how you came to know the information.
20 If there are things you don't know or can't remember, just say so and please
21 inform us who, to the best of your knowledge, might be able to provide a more complete
22 answer to the questions.
23 You should also understand that, although this interview is not under oath, that by
24 law you are required to answer questions from Congress truthfully.
25 Do you understand that?
6
1 Mr. Archer. I do.
2 Mr. Mandolfo. This also applies to questions posed by congressional staff during
3 interviews.
4 Do you understand that?
5 Mr. Archer. I do.
6 Mr. Mandolfo. Witnesses who knowingly provide false testimony could be
7 subject to criminal prosecution for perjury or making false statements.
8 Do you understand?
9 Mr. Archer. I do.
10 Mr. Mandolfo. Furthermore, you cannot tell half-truths or exclude information
11 that would be necessary to make the statements accurate. You are required to provide
12 all information that would make your response truthful. A deliberate failure to disclose
13 information can constitute a false statement.
14 Do you understand?
15 Mr. Archer. I do.
16 Mr. Mandolfo. Is there any reason you are unable to provide truthful answers to
17 the committee here today?
18 Mr. Archer. There is not.
19 Mr. Mandolfo. Additionally, we have agreed to 2-hour rounds, but if there are
20 any interruptions or interjections -- for instance, from your attorney or from the
21 minority -- the majority's time will be paused for that duration of those interruptions and
22 then we will recommence once the issue has been resolved.
23 Mr. Archer. Okay.
24 Mr. Mandolfo. I'd like to give you the opportunity, if you want to, to make an
25 opening statement. You're not required to make an opening statement, but we give
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1 that opportunity oftentimes.
2 Mr. Archer. Yes. Thank you.
3 Mr. Mandolfo. So if you would like to, please go ahead.
4 Mr. Archer. Yeah. I would just -- I would like to say -- and, again,
5 nothing -- nothing formal -- but I would like to thank, obviously, the senior officials here.
6 Thanks for joining us. I am -- it's an honor for -- you know, to be part of this.
7 And I appreciate, you know, you letting me take the time to do -- the only thing
8 I'm going to do is just speak the truth, answer as honestly and as completely as I can, and
9 want to just move through this process.
10 It's been a long -- it's been a long decade. My forties have been kind of, you
11 know, mired in fighting the government. So I want to be cooperative now and maybe
12 we can all be friends. So let's take it from there.
13 But I'm, you know, I'm an open book. So please -- please let me know what you
14 need to know and I'll do my best.
15 Mr. Mandolfo. Thank you.
16 This is the end of my preamble.
17 Is there anything the minority would like to add before we begin?
18 Sure.
19 On June 12th, committee Democrats received notice of a subpoena to Mr. Archer
20 setting a deposition just 4 days later, on June 16th, just minutes after Chairman Comer
21 issued a press release about the subpoena.
22 Since then, committee Democrats have had to learn about Mr. Archer's
23 appearance mainly from press statements from Chairman Comer and leaks to press
24 outlets.
25 On Friday afternoon, just 3 days ago, committee Republicans provided committee
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Democrats with a six-page letter from 1 Mr. Archer's counsel that set forth the extensive
2 negotiations and agreements between committee Republicans and the witness regarding
3 today's interview.
4 The letter sets out limitations on the subjects to be covered, which are set out in
5 the six-page letter in three different appendices.
6 It also limits the documents to be used in this transcribed interview to, quote, "24
7 pages of documents," end quote, that Republicans provided to Archer's counsel on June
8 28th, as well as, quote, "highlighted transactions on the 260 pages of RSB LLC bank
9 records," end quote, that Republicans sent Archer's counsel on July 11th.
10 Committee Republicans provided committee Democrats with the, quote, "24
11 pages of documents" last night, Sunday, at 6 in the evening. The vast majority of these
12 appear to be emails, which are not part of any committee records previously provided to
13 committee Democrats.
14 Committee Republicans have not provided committee Democrats with the, quote,
15 "highlighted transactions on the 260 pages of RSB LLC records" -- "bank records."
16 Committee Democrats have been excluded from all these discussions and
17 negotiations conducted by committee Republicans, and we have not agreed to any of
18 these limitations.
19 We now find ourselves in a transcribed interview with scopes and limits we had no
20 input in, and an attempt to limit the scope of exhibits to documents handpicked by
21 Republicans, which they have failed to provide in advance to Democrats.
22 This obviously raises strong concerns that committee Republicans are once again
23 attempting to cherry-pick facts, which has been an ongoing issue in this probe.
24 Mr. Mandolfo. Thank you.
25 We disagree with the substance of what you just provided. The RSB accounts
9
1 have been subpoenaed and provided to you much earlier.
2 In addition to that, these are scoping that Mr. Archer's attorney has requested and
3 for that reason he came in voluntarily.
4 Now we may begin. The time is showing --
5 Mr. Goldman. What about the 24 documents?
6 Mr. Mandolfo. Excuse me?
7 Mr. Goldman. What about the 24 documents?
8 Mr. Mandolfo. We picked out the 24 documents.
9 Mr. Goldman. Are they -- were they among documents that were in the
10 possession of committee Democrats?
11 Mr. Mandolfo. They are documents that are either publicly available or
12 documents that are available through the Hunter Biden laptop. So yes.
13 We're going to now begin. It's 10:30 --
14 Mr. Goldman. That's a no, though. We don't have the hard drive that you
15 have, right?
16 Mr. Mandolfo. The documents are available online. The emails are available
17 online.
18 Mr. Goldman. So you are -- your evidence is derived from online sources
19 of -- from a hard drive?
20 Mr. Mandolfo. Our evidence is from several sources. One is from the Hunter
21 Biden laptop, and that is available to Democrats.
22 Mr. Goldman. You have the hard drive, right?
23 Mr. Mandolfo. It's from the hard drive from the laptop, yes.
24 We're going to now begin. 10 --
25 Mr. Schwartz. Can I just say one thing first?
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1 Mr. Mandolfo. Yes.
2 Mr. Schwartz. So as both of you have made reference to, we are here today
3 voluntarily and pursuant to a variety of agreements that are reflected in my letter to you,
4 Mr. Mandolfo, of July 24th. I understand that will be made an exhibit to this interview.
5 And, as you say, subject to that scope, it is Mr. Archer's intention to testify completely
6 and accurately today.
7 I will tell you, however, I received over the weekend correspondence from Mr.
8 Biden's lawyer raising the possibility of Mazars-type issues in the questioning today.
9 You're familiar with those issues.
10 I obviously don't know what questions you all are going to ask. It is our intention
11 to answer all your questions. I have an obligation to protect Mr. Archer, though. And
12 so I may, if the questioning seems to stray, ask you to articulate the legislative purpose
13 behind questioning so that Mr. Archer has a predicate for answering those questions in
14 the face of the Mazars-type of claims that have been raised.
15 Mr. Mandolfo. And if you need a legislative purpose, I would refer you -- the
16 committee has put out extensively our legislative purpose in our bank records
17 memorandum. And so we are -- I will rely on that for our legislative purpose. It spells
18 it out in great detail.
19 Mr. Schwartz. I understand that. As to the general proceedings here, as I say, if
20 the questioning seems to stray, I may interject.
21 Mr. Mandolfo. Understood.
22 So right now it is 10:36, and we will begin.
23 EXAMINATION
24 BY MR. MANDOLFO:
25 Q Mr. Archer, if you could please tell the committee your educational
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1 background.
2 A I attended North Shore Day School in Long Island, Glen Cove. I went to
3 Glenwood Landing Elementary. I went to North Shore High School. I went to Yale
4 University. And then started at Citibank and got most of my kind of credit and finance
5 training through Citibank Management Associates Program.
6 Q And could you give a little bit more detail on what you did for Citibank?
7 A I was a management associate in Asia. I was headquartered in Vietnam. I
8 ended up -- I started out as basically a junior position. It was called a management
9 associate.
10 And then I moved into Citicorp Asia Capital Limited, which was at the time the
11 kind of Asian -- the theater was Asia. Obviously, it was ex-China at the time, Southeast
12 Asia primarily, Hong Kong, focused on private equity.
13 Q How did you come to know Hunter Biden and the Biden family?
14 A I came to know Hunter Biden -- I -- there's a rumor that we overlapped and
15 met when he was at law school and I was at undergrad, but I -- somehow I just keep
16 reading that, but I don't think that was the case.
17 I think we met at probably -- we met in L.A. I can't name the year but a
18 Democratic convention in L.A. probably -- what was that, 2000? Maybe you wouldn't
19 know, but some of these guys might. It was in -- I forgot. It was L.A., Boston, 2004.
20 So it was one of those. It was just a handshake.
21 And then I was introduced to him by his attorney, Marc LoPresti, at some point.
22 And then my partner at the time, Chris Heinz, and Hunter had known each other casually,
23 again. And that's where -- that was really where we, you know, kind of generated a
24 relationship. That was probably in 2008-ish.
25 Q I'm going to direct your attention now to Burisma.
12
I want to first get 1 a sense of how you became involved with Burisma --
2 A Sure.
3 Q -- and when you joined the board in approximately, I believe, 2014.
4 A Okay. With Burisma, the genesis of the relationship started when
5 Zlochevsky, Mykola Zlochevsky, and Vadym -- I'm going to abuse the name, but Vadym P.
6 was -- you guys are very --
7 Q Pozharskyi?
8 A Exactly. Very familiar with. Were -- they were on kind of a target list of
9 potential investors in Rosemont Real Estate Acquisition Fund One. Okay. It was called
10 RREAF. That's -- and, essentially, there was a cap-intro company that, you know,
11 had -- had basically created a list.
12 And they came through New York. I was in China. They came through New
13 York in the early -- I'm just trying to place the year. You know, if I get the years wrong, I
14 don't want to speculate.
15 Q Approximately.
16 A Approximately the early -- that had to be the early like -- like 2010 to '15 at
17 some point, in that time. Or not to 2015. 2010 to 2014. I don't know exactly, but I
18 could probably figure it out.
19 They came through. I was not in town. The cap-intro company was called Tri
20 Global. Tri Global did the kind of pitch kind of on behalf of Rosemont Realty to them.
21 And I don't think they were very interested.
22 But that was kind of the first that I heard of Burisma, Zlochevsky, the individual,
23 and that he would be a potential investor.
24 And then I then -- I was reintroduced -- I mean, you can't make this stuff up -- but I
25 was -- I was -- we were doing a large deal with an Eastern European bank to basically
13
invest in and be like an anchor i 1 nvestor on the debt side for Rosemont Realty for
2 Rosemont Real Estate Acquisition Fund Two. And that meeting happened to be on
3 March -- it was like -- it was March 4th, 2014, which was in Moscow, which was also the
4 day that Putin invaded Crimea. So that deal fell through, as you can imagine.
5 So that started this entire process. He was in -- he was in Moscow. We were
6 like, okay, well, now we got to get back on the fundraising trip. And I met with him.
7 And -- and that was -- that was -- that was basically -- met with him. That was
8 like a follow-up meeting to pitching him, and then that was the relationship. We asked
9 him -- or I was -- it was just me meeting.
10 Q Zlochevsky, is that who you --
11 A Zlochevsky and no Vadym, one of the Tri Global kind of translator guys,
12 cap-intro guys, and myself. Pitched him. He told me at the time that -- that he
13 had -- Kwasniewski had joined -- the President of Poland had joined the board, just kind of
14 in passing. And there was no like board discussion or anything like that.
15 And basically, the next day they called -- they -- they called me -- the Tri Global guy
16 called me back and said, would you be -- you know, I don't know if they're going to be
17 interested in Rosemont Realty, but President Kwasniewski wants to meet with you.
18 So I was like, okay, this is an, you know, an interesting honor, right? And I
19 basically -- so I literally within days, I flew to Warsaw for the day. And Kwasniewski
20 asked me, it's like, I just joined this board, this is energy independence, yada, yada, yada.
21 It was all the stuff around it.
22 He was like, would you be interested in joining the board? And so that's really
23 how -- that's how the Burisma relationship started.
24 Q And that was approximately March or April of 2014?
25 A March, March. Probably that -- it was the first week of March or, you
14
1 know, into the March 10th-ish.
2 I don't -- you know, I'm sure I could -- there's -- you could find when I went to
3 Warsaw or -- it was the first week of March.
4 Q And I know you've discussed their names, but Mykola Zlochevsky was the
5 owner of Burisma?
6 A Correct.
7 Q And Vadym Pozharskyi would have been the CFO?
8 A He was the corporate secretary. He was not the CFO. Another -- another
9 guy was the CFO.
10 Q And have you heard of Karina Zlochevsky?
11 A The daughter.
12 Q Of?
13 A Mykola.
14 Q And who is Aleksander Kwasniewski?
15 A He's the former President of Poland.
16 [Archer Exhibit No. 1
17 Was marked for identification.]
18 BY MR. MANDOLFO:
19 Q And now I want to show you exhibit 1. If you can please pull that big
20 binder.
21 What I'm showing you now, this is the Rosemont Seneca Bohai account.
22 A Yeah.
23 Q According to public records, Rosemont Seneca Bohai was started on
24 February 13th of 2014.
25 What was Rosemont Seneca Bohai?
15
A Rosemont Seneca Bohai was set up 1 to hold the equity of BHR, which is Bohai
2 Harvest Rosemont Partners or some -- Equity Partners, I believe, which was a -- which was
3 a private equity fund that was started between Harvest, which is like the -- I would say
4 like the Fidelity of China. Bohai Sea Industrial Fund, which is a -- which was like a
5 government-owned private equity fund that wanted to go private. So basically, the
6 three letters of the acronym, Bohai Harvest Rosemont.
7 And this was just set up to -- to essentially own that equity and operate the, you
8 know, what we thought was going to be a successful fund, which it ended up not being.
9 That was -- that was the reason for it.
10 Q And if you could go to tab 1, please. Thank you.
11 In addition to what you just described, was the RSB account also used to receive
12 money from Burisma?
13 A Yes.
14 Q And looking at the tab there, do you see a payment for approximately
15 $83,000?
16 A Correct.
17 Q And that's on April 15th of 2014?
18 A Uh-huh.
19 Q Would that be, to your knowledge, one of the first payments from Burisma
20 that you received?
21 A Yes. Yes, to my knowledge. Unless there was one before on the page.
22 Q No. No, there is not.
23 And there's another payment underneath for approximately $29,000, correct?
24 A Uh-huh.
25 Q In addition --
16
A That's probably 1 like travel or something like that, Warsaw maybe. I don't
2 know.
3 Q In addition to you receiving funds into this account from Burisma, I want to
4 turn your attention to exhibit 3.
5 Mr. Schwartz. Tab 3?
6 Mr. Mandolfo. Tab 3, thank you.
7 BY MR. MANDOLFO:
8 Q Exhibit 1, tab 3.
9 A Yes.
10 Q Is it correct that Hunter Biden also received his share of the board payment
11 into the Rosemont Seneca Bohai account?
12 A Yes, that's correct.
13 Q And if we look at the top of the page and kind of in the header here, it has
14 "Rosemont Seneca Bohai, LLC, C/O Devon Archer."
15 A Uh-huh.
16 Q Hunter Biden was not on this account, correct?
17 A He was not -- he was not on -- no, he was not on the account.
18 Q How is it that Hunter Biden became a board member of Burisma?
19 A The -- Hunter Biden became a board member because, when I came back
20 from -- when I -- I started my tenure there and I -- we hired him as a -- as counsel, quite
21 frankly. And then he was counsel and we -- that went on for, I don't know, maybe 2
22 months.
23 And he developed a relationship with Vadym and Mykola, and they -- I think they
24 had a different design. There was a meeting in Lake Como at an economic conference.
25 Q What do you know about that meeting?
17
A That meeting -- I was there. I was there 1 at the conference. I was not -- I
2 was not involved in the conversation that they had. But out of that -- that meeting, it
3 was decided that he was going to move into a board role.
4 Q Did Hunter Biden ever tell you about that conversation?
5 A No, he did not. He did not tell me. Well, I mean the outcome was that he
6 was going to join the board. So yes, in a sense, he told me that, but it wasn't like a
7 detailed -- I mean, I know exactly where I had the conversation and I remember it vividly
8 though I wasn't part of it. They were in a different part of the conference than me.
9 Q When you and Hunter Biden first joined the board of Burisma, were there
10 service agreements that you signed as far as your -- what your roles would be at Burisma?
11 A My role was -- my role at Burisma when I joined was to go out and find
12 external financing for expansion, for global expansion. First, it was find expansion into
13 the United States, and then things got a little dicey. But then it was -- it was to basically
14 find outside financing for global expansion, which we were very successful in.
15 We opened Burisma Geothermal, bought wells in Italy, because obviously drilling
16 was like a, you know, a core competency, which was kind of a renewables tilt which we
17 thought would be, you know, looked favorably upon.
18 And we -- we opened up Burisma Eurasia, which we, you know, had a successful
19 servicing contract in Kazakhstan with Kazmu -- what was it? KazMunayGas, yeah.
20 KazMunayGas. We had 50 employees, employed a lot of other folks. We
21 bought drills in Texas and, you know, brand-new equipment, and went kind of deeper and
22 more efficiently and cleaner than they'd ever done, you know, in that part of the world.
23 And so it was -- it was, you know, I hate to say a great success, that would be
24 too -- but it was a great success. And --
25 Q Just to stop you. Do you remember the name of that company in Texas
18
1 that you just referenced?
2 A The drilling company?
3 Q Yes.
4 A I don't know the name, but I could find out.
5 Q You could find out for us?
6 A Yeah, yeah. It was -- we transported all of that equipment via sea and then
7 over land through Ukraine into Kazakhstan, which I'd have to go through another area.
8 But it was pretty wild. We pulled off a lot.
9 But that was my main purpose of -- was international expansion, which I think,
10 you know, in a very short time I had exceptional execution.
11 Q The payments appear to be approximately $83,000 per month that were
12 deposited into the Rosemont Seneca Bohai account from Burisma Holdings.
13 Was that what you were to be paid? Was it a million dollars per year?
14 A It was -- so, from a board perspective, it was a million dollars per year on the
15 board contracts, but the -- which was -- again, it was more than -- you know, there's
16 associated work. It wasn't just sitting there and, you know, going to board meetings.
17 But there was a lot of work that was done.
18 It was actually split. During my tenure, Tri Global was the cap-intro group. It
19 was actually split three ways. I don't know, you know, where it went after my time.
20 But that's -- initially, it was the sum total, kind of a take-home for, you know, the
21 company, excluding expenses, just gross, was 666 per year.
22 And then that obviously changed. I was, you know, kicked off or asked to resign
23 from the board when I got into my next issue.
24 Q Was Hunter Biden's agreement also that he would receive $83,000 per
25 month --
19
1 A Yes.
2 Q -- from Burisma?
3 A Yes. That's what I'm saying. So two -- 83 in two different -- once a month
4 was 666 annualized, divided by three.
5 [Archer Exhibit No. 7
6 Was marked for identification.]
7 BY MR. MANDOLFO:
8 Q And I'd like to turn your attention now to exhibit 7 in that binder.
9 A Sure. This one? Oh, sorry.
10 Q This is an email from you to Hunter Biden. It's dated May 7th of 2014. So
11 this is about the beginning of when he's joining the board.
12 A Uh-huh.
13 Q The subject is "Re: Notes from the 13 hr" -- meaning "hour" -- "plane ride."
14 And I want to direct your attention to paragraph 6.
15 A Uh-huh.
16 Q My understanding of this email is that Hunter Biden has -- is the lower case
17 statement and your response is the caps, all caps statement.
18 Mr. Schwartz. Well, these emails don't come from Mr. Archer, so I don't think
19 we're going to be able to authenticate the emails or tell you who wrote what. But
20 you're certainly welcome to ask about the content of these.
21 Mr. Mandolfo. Well, do you recognize this email?
22 Sorry to interrupt. Can we know where this document comes
23 from?
24 Mr. Abourisk. It comes from the hard drive.
25 The hard drive that is in the possession of committee
20
1 Republicans?
2 Mr. Mandolfo. Yes.
3 So there's --
4 Mr. Goldman. Where did you get that hard drive?
5 Mr. Mandolfo. Go off the record for a second.
6 [Discussion off the record.]
7 Mr. Mandolfo. Showing you exhibit 7, paragraph 6. I'll read it out loud. It's
8 from you to Hunter Biden.
9 "Need to determine what we consider expenses to be deducted from potential
10 Burisma 'pay'" -- "pay" in quotations -- "before we determine true split number with
11 Alex."
12 Mr. Schwartz. I don't know to whom, but I object to your characterization as
13 that's "from you to Hunter Biden."
14 Mr. Archer. Yeah, I --
15 Mr. Goldman. Can we just clarify on the record, I want to clarify on the record.
16 Mr. Mandolfo. Off the record.
17 Mr. Goldman. No, no, no.
18 Ms. Donlon. You're using the majority time. You negotiated the time --
19 Mr. Goldman. Pause the time. I don't care.
20 Mr. Schwartz. I care. I care. We negotiated the time because we wanted to
21 leave, not because we wanted 2 hours of questioning.
22 Mr. Goldman. Well, we didn't agree to your negotiated time. So we'll sit here
23 for 5 more seconds.
24 Ms. Donlon. This is the chairman's transcribed interview, so he has the authority
25 to negotiate, and this is what's been negotiated.
21
Mr. Goldman. That is fine. You 1 take whatever time you need. I just want the
2 witness, maybe aided by counsel, on the record --
3 Ms. Donlon. Sir, you can do this during your time.
4 Mr. Goldman. No, you're introducing --
5 Ms. Donlon. No, you can do it during your time.
6 Mr. Biggs. This is not a court of law. First of all, this is not a court of law. Quit
7 talking over people. He can answer. He's got counsel there that can say, "It's outside
8 the scope, we think it's dubious," whatever he wants to say about it.
9 You have to let the witness answer this, because we're not sitting in a court of law.
10 This is a transcribed voluntary interview, for Pete's sakes. If you have an objection,
11 you've stated your objection. You get to make it.
12 Mr. Goldman. But not on the record.
13 Mr. Biggs. You can get to it when it's your 2 hours.
14 Mr. Goldman. You know how depositions work, but carry on.
15 Mr. Biggs. This is a deposition. This is not in court. Yeah, this is very different
16 than that when I practiced law. But this is Congress. A little bit different. Press on.
17 Press on.
18 Mr. Schwartz. Back on the record.
19 Mr. Mandolfo. Paragraph 6. If I misspoke before, it's our understanding that
20 the lower case is Hunter Biden. The caps, all caps, would be your response. But I'm
21 just going to read it again.
22 "Need to determine what we consider expenses to be deducted from potential
23 Burisma 'pay'" -- in quotes -- "before we determine true split number with Alex."
24 And then in parentheticals, "(i.e., 5-.75/3 = 1.42 million apiece.) Is 750K
25 reasonable expense number btw Washington, D.C. office?" All caps, "TAX LIABILITY AND
22
1 SOMETHING LIKE THAT SEEMS FAIR."
2 Do you recall having a conversation with Hunter Biden regarding that you and him
3 would receive approximately -- consistent with this email -- approximately 4.85 million
4 jointly from Burisma?
5 Mr. Schwartz. So now he's not asking about the email. He's asking if you had
6 such a conversation.
7 A Uh-huh. No. That -- that -- that one is -- I don't know what that 4.5. As I
8 explained just before, it was 83, 33, 33, and it only went to one account, which we have
9 all the stuff for.
10 And theoretically -- I don't know what we were talking about here. But it was
11 like -- so 666 -- it looks like that says 750. But that -- this one seems like there's some
12 math that we were -- that's him writing to me.
13 BY MR. MANDOLFO:
14 Q That's Hunter Biden writing to you?
15 A I think. Theoretically, it would be.
16 Q In the small caps is what you're saying?
17 A Yeah.
18 Q So that would bring us to roughly 4.85 million jointly from Burisma. That
19 would be from Hunter Biden.
20 Mr. Schwartz. No. We can't -- we can't --
21 Mr. Archer. Yeah.
22 Mr. Schwartz. We can't confirm this email is from anyone. He's reading the
23 text to the document, and in the format of an email that's the way it looks.
24 So he can confirm that you accurately read it, which you accurately read; and he
25 can confirm, as he did, the conversations that he had with Mr. Biden.
23
Mr. Archer. Yes. And 1 I would also add that any money that came from Burisma
2 is all here, all documented here. There was no -- or no money that I -- I can speak for
3 only myself -- there was no money that was ever received.
4 Basically, this was the -- because we had set it up for BHR, we took in this here.
5 Hunter was the corporate secretary of RSB. So there was a COO who managed it. So
6 that was -- that was -- I don't know where that number is from.
7 Mr. Biggs. Can I ask a question about that?
8 Mr. Archer. Sure.
9 Mr. Biggs. First of all, thanks for being here. I appreciate it.
10 Maybe this would help solve the question. Do you remember ever seeing this
11 document at all? I mean, I get it's 10 years ago --
12 Mr. Archer. The email?
13 Mr. Biggs. Yeah. I just wonder if you recall. Does it look familiar? Is it
14 something that you might recall?
15 Mr. Archer. The -- no, I don't -- I can't authenticate it. But I -- you know,
16 I -- those conversations are all around what we were speaking about.
17 Like, obviously, I voluntarily just talked about the -- there was this Tri Global split.
18 I don't know exact -- those numbers. And, I mean, I've seen a lot of speculation.
19 I don't -- again, I can only speak for myself. I don't know any other money that
20 went beyond RSB Morgan Stanley account.
21 Mr. Biggs. Thank you.
22 BY MR. MANDOLFO:
23 Q At some point, though, when you ran into Federal troubles, Hunter Biden
24 started to receive his money in a different account, correct?
25 A Correct. Yes, because this got shut down. So it must have been.
24
Q And I want to show you 1 exhibit 4, tab 1 -- excuse me, exhibit 1, tab 4.
2 A Got it.
3 Q And on this page, it's August of 2015, and you'll see on August 19th there are
4 two Burisma payments for $83,000 each, one to you and one to Hunter Biden, correct?
5 A Correct.
6 Q And above that, you'll see that there --
7 A Actually, let me just clarify. It was -- we were running it as a business, so it
8 was -- it was to Rosemont Seneca Bohai for -- there were other investments that were
9 made. There were, you know, investments on behalf of the business. So, you know, as
10 the business was capitalized, we did other things with it.
11 So though kind of contractually it was a -- it was a, you know, a fee-for-service at
12 the end of the day, it was like -- we took it as revenue of the company. I don't know if
13 that makes any difference but -- so -- but yes.
14 Q But during this time, Hunter Biden had his own bank accounts, correct?
15 You'll see on this page he has an OWASCO PC, which received a transfer of $5,000, and
16 you'll also see that there was a transfer to Robert Biden for $19,000.
17 Is that correct?
18 A Yes.
19 Q And so if we take into account that Hunter Biden is receiving approximately
20 $1 million a year, and I know that he started towards the third or fourth month in 2014,
21 but how long did he work for Burisma, to your knowledge?
22 A To my knowledge, I can go as far as, you know, May, May-July. Like
23 summer of 2016. And then I'm, you know, obviously aware that he worked for Burisma.
24 I don't know when the end of his tenure was. It was years later, I believe.
25 [Archer Exhibit No. 2
25
1 Was marked for identification.]
2 BY MR. MANDOLFO:
3 Q All right. Now, I want to direct your attention to April 2014 timeline, and
4 I'd like to show you exhibit 2.
5 A Sure.
6 Q And this is an email. It states from Robert Biden, who's Hunter Biden, to
7 you, Devon Archer, dated April 12th of 2014, with a subject line "Tmrw."
8 And I'd like to turn your attention to paragraph 18 on the second page. I'm going
9 to read it.
10 A Sure.
11 Q "The announcement of my guy's upcoming travels should be characterized
12 as part of our advice and thinking -- but what he will say and do is out of our hands. In
13 other words, it could be a really good thing or it could end up creating too great an
14 expectation. We need to temper expectations regarding that visit."
15 Do you recall Hunter Biden referring to his dad as "my guy"?
16 A I believe, yes.
17 Q Given that he's referring to his dad, the average person would refer to their
18 dad as "dad" or "father" or maybe there's another nickname, but not many people would
19 refer to their dad as "my guy."
20 And so, in reading this, can you tell me what you believe Hunter Biden was getting
21 at when he's referring to his dad, "My guy's upcoming travel should be characterized as
22 part of our advice and thinking"?
23 Mr. Schwartz. You're asking him to speculate what someone else meant if that
24 person wrote this?
25 Mr. Mandolfo. I'm asking him what his interpretation of that when Hunter Biden
26
was telling him this. He just 1 said that Hunter Biden told him, did use that phrase.
2 So when he would use that phrase, what did you interpret that to mean?
3 Mr. Schwartz. When he used the phrase "my guy" --
4 Mr. Mandolfo. When he used --
5 Mr. Schwartz. -- what did that mean?
6 Mr. Mandolfo. Yeah.
7 Mr. Archer. What I think, you know, it -- my speculation would be that he
8 was -- he's saying that, you know, we can't -- I can't guide my guy, you know, I can't guide
9 my father in what he's going to do on this trip, but let's get credit for it. I think that's
10 what it's saying here.
11 BY MR. MANDOLFO:
12 Q But if he --
13 A Yeah, reframe the question.
14 Q If he's counsel, why would he get credit for his dad going to the Ukraine?
15 A Well, yeah. Why would he get credit?
16 Q Yeah. What kind of credit was Hunter Biden trying to get?
17 A Speculating, I think he was getting --
18 Mr. Schwartz. He said at the beginning don't speculate. If you don't know, you
19 don't know.
20 Mr. Archer. He was getting paid a lot of money, and I think, you know, he
21 wanted to show value.
22 BY MR. MANDOLFO:
23 Q And was part of that value him bringing his dad to the Ukraine?
24 A I think in here it's clear that he's not bringing his dad, but he's saying, you
25 know, "I'm going to get credit for it."
27
1 Q But when you say "get credit" --
2 A He's not -- he was not determining -- he wasn't setting his dad's schedule to
3 bring him to Ukraine, I don't think.
4 Q Right. But when his dad's traveling to Ukraine, he's trying to have the
5 Burisma officials recognize that he should get credit, "he", being Hunter Biden, should get
6 credit for his dad traveling to Ukraine.
7 Would you agree with that?
8 A I would say that that's -- that's what that says. And if that's -- if that comes
9 accurately, that's what he's saying. I think it's pretty obvious.
10 Q And what do you think is obvious about it?
11 A He's saying -- again, I can't speculate, because I don't know if the email -- I'm
12 just reading that email.
13 Q But you've had other conversations with Hunter Biden. You were his
14 business partner for a long time.
15 A Uh-huh.
16 Q Did he talk about how bringing his dad either to Ukraine or using his dad as
17 Vice President would add value in the eyes of Burisma officials?
18 A Yes.
19 Q And how would that come up?
20 A I just think it's almost -- it's pretty obvious if you're, you know, you're the son
21 of a Vice President.
22 Mr. Schwartz. He's asking about specific conversations.
23 Mr. Archer. Yeah. Specific conversations, no. He would -- we would not talk
24 specifically about -- you know, he would not be so overt. And I think that's, you know, I
25 think that's another obvious point, that he would not say, okay, we're
28
going to -- we're -- 1 you know, I'm overtly -- we're going to use my dad for this.
2 But I think he would -- you know, given the brand, I think he would look to, you
3 know, to get the leverage from it.
4 Q What kind of leverage was he trying to get by using his dad?
5 A I think it's more defensive, you know, defensive leverage that that the value
6 is there in his work.
7 Q I want to now show you, back to exhibit 1, tab 1, which is going to be the
8 payment.
9 A Sure.
10 Q And we just talked about this, so I'm just going to rehash it. But this email
11 happens on April 12th, 2014, where Hunter Biden talks about adding value.
12 And then, on April 15th of 2014, there's the first payment that comes in to
13 Rosemont Seneca Bohai.
14 And then are you aware -- I'll go to exhibit 3.
15 [Archer Exhibit No. 3
16 Was marked for identification.]
17 Mr. Archer. Uh-huh.
18 Mr. Mandolfo. We'll start from the bottom.
19 On April -- this is from Hunter Biden to Devon Archer dated April 22nd of 2014.
20 The subject is "Re: JRB in UKR." And I'll let you review it.
21 But, essentially, Hunter Biden copies and pastes what appears to be a quote from
22 his father's speech while Vice President Biden was in the Ukraine.
23 You then respond, "Wow. We need to make sure this ragtag temporary
24 government in the Ukraine understands the value of Burisma to its very existence."
25 Hunter Biden then said, "You should send to Vadym" -- and who is Vadym again?
29
1 Mr. Archer. Vadym is the corporate secretary of Burisma.
2 Mr. Mandolfo. "It makes it look like we are adding value."
3 This is in the beginning stages of when you're joining the board. And would you
4 agree with me this isn't legal advice that's adding value here that Hunter Biden is giving,
5 the value add that Hunter Biden brings to Burisma is Vice President Biden?
6 Mr. Schwartz. Was the question --
7 Mr. Archer. Yes.
8 Mr. Schwartz. -- what was the value that Hunter Biden brought to Burisma?
9 Mr. Archer. The value was -- the value that Hunter Biden brought to it was
10 having -- you know, there was -- the theoretical was corporate governance, but obviously,
11 given the brand, that was a large part of the value. I don't think it was the sole value,
12 but I do think that was a key component of the value.
13 Mr. Mandolfo. You keep saying "the brand," but by "brand" you mean the Biden
14 family, correct?
15 Mr. Archer. Correct.
16 Mr. Mandolfo. And that brand is what, in your opinion, was the majority of what
17 the value that was delivered from Hunter Biden to Burisma?
18 Mr. Archer. I didn't say majority, but I wouldn't speculate on percentages. But
19 I do think that that was an element of it.
20 Mr. Biggs. When you say "Biden family" -- sorry to cut in here. I just want to
21 get a clarification.
22 You aren't talking about Dr. Jill or anybody else. You're talking about Joe Biden.
23 Is that fair to say?
24 Mr. Archer. Yeah, that's fair to say. Listen, I think it's -- I don't think about it as,
25 you know, Joe directly, but it's fair. That's fair to say. Obviously, that brought the

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Part 2 of 4

30
1 most value to the brand.
2 Mr. Biggs. Thank you.
3 Mr. Mandolfo. I want to go back to another point you said earlier. You said
4 Hunter Biden didn't overtly talk about how he would use his -- and if I'm
5 mischaracterizing this or getting it incorrect, please correct me -- but that he wouldn't use
6 overtly that he's going to use his father or his father's name in order to add value or
7 maximize what he could get from others.
8 So how did you know that that's one of the ways that Hunter Biden was, like,
9 meeting with officials from Burisma or getting access to officials with Burisma or getting a
10 job that paid a million dollars? What is -- how did you know that?
11 Mr. Schwartz. Know what?
12 Mr. Archer. Yeah, say it again.
13 Mr. Mandolfo. That Hunter Biden was adding value. His value that he was
14 adding was, in part, as you said, his family.
15 Mr. Archer. Uh-huh.
16 Mr. Mandolfo. And so what is your basis for knowing that?
17 Mr. Archer. My basis for knowing that? Well, I think there was -- there are
18 particular, you know, objectives that Burisma was trying to accomplish.
19 And a lot of it's about opening doors, you know, globally in D.C. And I think that,
20 you know, that was the, you know -- and then obviously having those doors opened, you
21 know, sent the right signals, you know, for Burisma to, you know, carry on its business
22 and be successful.
23 Obviously, that all backfired, you know, terribly for them, and I think Mykola is in
24 hiding in Cypress right now.
25 But, yeah, I think -- how did I know? It's just -- I mean, it's a lot -- it's how this
31
1 town works as an outsider looking in.
2 [Archer Exhibit No. 4
3 Was marked for identification.]
4 BY MR. MANDOLFO:
5 Q And I now want to turn your attention to exhibit 4. And this is an email
6 from you to Vadym Pozharskyi.
7 A Saying, "This works for me"?
8 Q I'm just going to put everyone else who's on it too. Copying Hunter Biden,
9 Sebastian Momtazi, and Joan Peugh.
10 A Uh-huh.
11 Q Dated October 5th of 2015, with the subject "Re: Next BoD meeting."
12 And then starting at the bottom, it appears to be an email from Mr. Pozharskyi, and it
13 describes a board of directors meeting in the first week of December in Dubai, and that
14 people would fly in on December 3rd, and then there would be a board of directors
15 meeting midday of December 4th.
16 And then your response, as you just said, was, "This works for me," correct?
17 A Uh-huh. Correct.
18 Q Do you recall the board of directors meeting in Dubai?
19 A Yes.
20 Q Before going to Dubai, do you remember going to Kyiv in Ukraine?
21 A I don't remember. Like right on that same trip?
22 Q Yes.
23 A Did I?
24 Q If you don't remember, you don't remember.
25 A I don't remember.
32
1 Q It's not a trick question.
2 A I don't -- on that particular trip in December? You know, I've been to Kyiv,
3 but I don't remember it being connected with that trip. It was December what year?
4 Q Of 2015.
5 Mr. Schwartz. If you don't remember, it's okay.
6 Mr. Archer. I'm sorry. I don't remember. I'm not -- I don't remember if we
7 stopped there.
8 BY MR. MANDOLFO:
9 Q And do you remember going to the board of directors meetings in Dubai?
10 A Yes.
11 Q And do you remember who was at that meeting?
12 A Yes. Alan Apter, Aleksander Kwasniewski, Mykola Zlochevsky, Vadym P.,
13 Hunter Biden, and then some other -- some other executives. And then there were two
14 Cypress board members that I can't remember their names.
15 Q And who is Alan Apter?
16 A He was a board member. He was a -- he's a London banker.
17 Q Do you remember what was discussed at the board meeting?
18 A December 2015?
19 Q Yes.
20 A We were -- we were in the -- Burisma Eurasia was in high gear, and we set up
21 a big office there. That was kind of my content like piece. As well as Burisma
22 Geothermal had been set up. I just came from a Geothermal conference in Reno, I
23 think, right before that. I just remember that because my brother joined.
24 So those are like my content. And the rest of it would have been, you know,
25 reviewing the financials and production and et cetera, et cetera.
33
Q And do you recall if 1 Hunter Biden went on this trip?
2 A He did.
3 Q After the board of directors meeting, do you recall at any point going to
4 dinner with any other individuals afterwards?
5 A Yes. We had a board dinner.
6 Q And did you commonly have board dinners?
7 A Yes.
8 Q And who would attend the board dinners?
9 A Generally, everyone from the -- or some smaller subset. It wasn't limited,
10 but it would be -- I don't, like, remember the particular table or restaurant. I know we
11 stayed at the -- you know, the Burj Khalifa, the sail-looking structure in Dubai. So I think
12 we had dinner there.
13 Q And after dinner, did you and Hunter Biden go out for drinks?
14 A We did not. We did not go out for drinks. We were -- we -- I met him at
15 the Four Seasons or -- yeah, the Four Seasons. He stayed at the Four Seasons.
16 Q And what happened at the Four Seasons?
17 A We had -- we had coffee. I don't know if we had drinks. But we
18 were -- we met at the Four Seasons.
19 Q Did Hunter Biden during that time ever get a call from Mykola Zlochevsky or
20 Vadym Pozharskyi?
21 A Vadym and they both joined us at the Four Seasons.
22 Q Why did they join you?
23 A It was -- I mean, basically, after all -- that was normal course. Like after
24 all -- we kind of spent the 3 days together.
25 Q Did -- during that I'll say after dinner at the Four Seasons, did Mykola
34
Zlochevsky or Vadym ask 1 Hunter Biden to make any phone calls?
2 A Yes, though I was not party to that phone call.
3 Q What was the request?
4 A The request was I think they were getting pressure and they requested
5 Hunter, you know, help them with some of that pressure.
6 Q What pressure?
7 A Government. Government pressure on their -- you know, government
8 pressure from Ukrainian Government investigations into Mykola, et cetera.
9 But it was -- it was not -- it wasn't like a specific -- not a specific request. It was
10 just we were sitting there at the Four Seasons having, you know, coffee and there
11 was -- there was Mykola, there was one of the managers for the Four Seasons who
12 managed that property, Vadym. So it wasn't like a closed -- it was not like a specific
13 meeting.
14 Q When you say pressure from the government, at this time were you aware
15 that Viktor Shokin was investigating Burisma?
16 A To the best, I vaguely -- whether it was Shokin, I vague -- there was a lot of
17 pressure initially. There was -- there was several pressure issues. It was kind of a
18 theme of Burisma.
19 There was capital tied up in London, 23 million pounds. There was, you know, a
20 U.S. visa denied and then a Mexico visa denied. And then there was -- so Shokin wasn't
21 specifically on my radar as being an individual that was -- that was targeting him. But
22 yes, there was constant pressure. And it was like -- it was like whack-a-mole in regards
23 to the pressures that had to resolve.
24 Mr. Jordan. The request from Mr. -- from Mykola Zlochevsky and Vadym to Mr.
25 Biden and/or if you said it was to you, the request for help from whom to deal with what
35
1 pressure?
2 Mr. Archer. The request -- you know, basically the request is like, can D.C. help?
3 But there were not -- you know, I'm not going to -- there were not -- it wasn't like -- there
4 weren't specific, you know, can the big guy help? It was -- it's always this amorphous,
5 can we get help in D.C.?
6 Mr. Jordan. The request was help from the United States Government to deal
7 with the pressure they were under from their prosecutor, and that entailed the freezing
8 of assets at the London bank and other things that were going on in Ukraine?
9 Mr. Archer. Correct.
10 Mr. Jordan. Okay.
11 Mr. Biggs. I just -- I think you might have just clarified. I just want to make
12 sure.
13 Mr. Archer. Sure.
14 Mr. Biggs. When you say D.C. help, like they said, we could use some D.C. help,
15 I'm not asking what you think they -- I'm asking what you interpreted that to mean?
16 Mr. Archer. Well, I'm still learning about it, but it seems like -- really a lot like at
17 the end of the day lobbying, you know, soft lobbying help, firm lobbying help.
18 I mean, there was constant, you know, constant pressure on them, and there
19 were various service providers hired and people working on, you know, help in D.C. A
20 lot of power is obviously flexed here. So that was a -- that was a constant, you know,
21 whether it was putting out fires or helping expand.
22 Mr. Biggs. So why do you think they were asking Mr. Biden for D.C. help if they
23 had -- I'm assuming what you're saying is they might have had some kind of lobbying
24 group on retainer, perhaps.
25 Mr. Archer. Yes.
36
Mr. Biggs. So why do you think they were asking 1 Hunter Biden for D.C. help?
2 Mr. Archer. I mean, why?
3 Mr. Biggs. I mean, what did you take away from that?
4 Mr. Archer. Well, I mean, he was a lobbyist and an expert and obviously he
5 carried, you know, a very powerful name. So I think it was -- that's what they were
6 asking for.
7 They had -- they also -- you know, there was a firm, Blue Star Strategies, that was
8 hired to be, you know, kind of the -- I don't know if they were a lobbying firm or just
9 strategic advisory. It's still unclear what the difference is. But, you know, that was
10 part of the mix.
11 But it was -- yeah, it was a high-pressure environment, and there was -- there was
12 constant requests for help.
13 BY MR. MANDOLFO:
14 Q What did Hunter Biden do after he was given that request?
15 A Listen, I did not hear this phone call, but he -- he called his dad.
16 Q How do you know that?
17 A Because he -- because I think Vadym told me. But, again, it's unclear. I
18 just know that there was a call that happened there and I was not privy to it.
19 Q What did Vadym tell you about the call?
20 A Just that -- just that they -- "We called D.C." But he didn't -- you know,
21 again, it's not like the -- there was not a -- there was not, "Oh, we've got all our problems
22 solved" kind of, you know, revelation. I was -- I was not on that side of the equation and
23 kind of working on the lobbying side of the business.
24 Q When Vadym told you this, where were you?
25 A I was -- you know, basically what -- then we drove back to the hotel I was
37
1 staying at.
2 Q Who's "we"?
3 A Me, Vadym, and Mykola.
4 Q Was it during that drive back that Vadym told you that Hunter Biden had
5 called VP Biden at that time?
6 A It would have been at some point there or after. You know, maybe the
7 next day. Again, we spent -- you know, on a board trip where you travel with people
8 from all over the world, we spent 3 days together.
9 So the exact time I can't say, but that was the -- that was the -- that was -- that's
10 what happened.
11 Mr. Schwartz. He told you expressly he called his father or that he called D.C.?
12 Mr. Archer. D.C., D.C.
13 BY MR. MANDOLFO:
14 Q When he told you this, did you confront Hunter Biden about it at any point?
15 A No. I wouldn't have done that. Like confront him for what reason?
16 Q Well, if they -- "they" being Burisma -- are facing government pressure.
17 A Uh-huh.
18 Q And Vadym comes or Mykola comes to Hunter Biden and says, "We're facing
19 pressure, we need you to do something," and then Hunter Biden calls the Vice President
20 of the United States to do something, that could cause off some serious alarm bells for
21 influence peddling, conflicts of interest.
22 A Right.
23 Q I mean, Hunter Biden at this time is supposedly acting as the corporate
24 governance.
25 A Right.
38
1 Q But he's calling his father about --
2 A I think that it's even more reason that I was left out of these, you know,
3 black box D.C. types of -- types of conversations. I was working on the ground to build
4 the business.
5 Q What do you mean by that?
6 A Like, it was not -- I wasn't -- the pressures were -- were -- the pressures that
7 were exerted, I was -- that was a kind of a Blue Star, you know, the resources of
8 Rosemont Seneca Advisors or whatever the subsidiary in D.C. partners, that was like
9 that -- that world.
10 Q Are you aware that Vadym had told Blue Star that one of the
11 issues/pressures that he was facing was related to Shokin and the investigation into
12 Burisma?
13 A So -- yes. I was -- the narrative that was spun to me, quite frankly, just to
14 be -- and I remember this because, obviously, it's -- the narrative that was spun to me was
15 that Shokin was under control and that whoever the next person that was brought in
16 was -- you know, the fact that he was -- this is the total, this is the narrative spun to me,
17 that Shokin being fired was a -- was not good, because he was like under control as
18 relates to Mykola.
19 I have no way to verify that. And that was spun to me from various folks in D.C.,
20 not Hunter specifically, but that was what I was led to believe. Whether it's true or not,
21 I cannot speculate.
22 Q With that said, though, are you aware that Vadym specifically told Blue Star
23 Strategies that one of the issues that he wanted resolved was resolving Viktor Shokin's
24 investigation into Burisma?
25 A I don't recall Vadym saying that specifically. I don't -- but, again, I was spun
39
a narrative that 1 was quite the opposite of that.
2 Q But not from Hunter Biden or Vadym, correct?
3 A Correct.
4 Q And not from Zlochevsky?
5 A No. Zlochevsky spoke very little English.
6 Q In addition to this phone call to -- that Hunter Biden made --
7 A Uh-huh.
8 Q -- have you ever been privy to Hunter Biden calling his father around other
9 either potential business investors or other foreign nationals who Hunter Biden or you
10 may have been trying to work with or were working with?
11 A Yes.
12 Q Can you please tell the committee about that?
13 A Again, it's -- as far as specifics, we can talk about it. But, you know, Hunter
14 spoke to his dad every day, right?
15 And so in certain circumstances, when you're in -- you know, if his dad calls him at
16 dinner and he picks up the phone, then there's a conversation. And the, you know, the
17 conversation is generally about the weather and, you know, what it's like in Norway or
18 Paris or wherever he may be. But that was -- yeah, that happened.
40
1
2 [11:30 a.m.]
3 BY MR. MANDOLFO:
4 Q Are you aware of Hunter Biden putting his -- or have been told that Hunter
5 Biden put his father on speakerphone during any of these interactions that you're just
6 describing now?
7 A Yes.
8 Q Can you please tell us about that?
9 A He put him on speakerphone, again, occasionally. Specifics, like, you know,
10 dinner -- you know, dinners occasionally.
11 Q Can you tell us about those dinners?
12 A Yeah. I remember a dinner in Paris with a French energy company that
13 was -- we were speaking to an advisor, and then -- we were speaking to. And it was
14 really a Rosemont Seneca Advisors type of -- a Rosemont Seneca Advisors kind of a pitch,
15 at the end of the day. And there was a talk, and he said that we're at this -- you know,
16 we're at this restaurant in Paris, and he put him on the speaker. So that did happen.
17 There were other people there.
18 Q Who else was there?
19 A There was me, myself; Hunter; Eric Schwerin; and then the executives from
20 the French energy company.
21 Q Do you remember the name of that company?
22 A I'm sure you could find it. It was probably, like, a 2011, you know, trip
23 planning. But it was a very large French energy company.
24 Q Are there other --
25 A And I believe they didn't -- they also didn't get the work, by the way, just an
41
1 FYI, so there's not much about it.
2 Q Do you recall other times where Hunter Biden placed his dad on
3 speakerphone?
4 A In you know, a dinner -- a dinner in -- with BHR, with Jonathan Li.
5 Q Where was that dinner?
6 A In Beijing, at, you know, some restaurant -- or Chengdu or something like
7 that. I don't remember the -- I don't remember specifics. This was just -- it was
8 not -- it was like a, you know -- especially with the time zone difference, there was -- you
9 know, there were meetings where his dad would call and he would be talking to him or
10 put him on speaker. I'm not going to -- you know, that's -- that happened.
11 Q And with the phone call with Jonathan Li, do you recall what was said while
12 VP Biden --
13 A Yeah.
14 Q -- was on the call?
15 A I mean, on any of the specifics, like, from a blanket perspective, it was
16 always, you know, what's the -- you know, not necessarily the weather, but, you know,
17 there's no -- there was no -- and I think you have to understand that there was no
18 business conversation about a cap table or a fee or anything like that. It was, you know,
19 just general niceties and, you know, conversation in general, you know, about the
20 geography, about the weather, whatever it may be.
21 But just on -- as far as, like, a blanket for all of them, let's just go with the -- there
22 was not a specific time that I witnessed a, you know, specific business deal or business
23 dealings or, you know, specifics about any kind of financial stuff.
24 Mr. Jordan. Would he just say, like, "Hey, guys, my dad's on the phone. Dad,
25 can you say hi to" --
42
1 Mr. Archer. Yeah.
2 Mr. Jordan. -- you know --
3 Mr. Archer. There you go. See? Politician.
4 Mr. Jordan. Well, I'm sure that that took place in addition to just talking about
5 the weather.
6 Mr. Archer. Yeah.
7 Mr. Jordan. So let me go back to -- so you're in Dubai in this December meeting.
8 And you and Zlochevsky and Vadym Pozharskyi are staying at the one hotel where the
9 board meeting's at. After the board meeting, you go to the --
10 Mr. Archer. Four Seasons.
11 Mr. Jordan. You go to the Four Seasons for dinner. And then you stay for
12 drinks later.
13 Mr. Archer. No. We -- just on that night of the -- I believe we had dinner at the
14 Burj -- the Burj -- not the tall -- the sail. Burj Khalifa or Burj Al Arab? Burj Al Arab.
15 Mr. Jordan. Did you ride with -- did you all three ride together from the one
16 hotel? Did you take a cab or --
17 Mr. Archer. No. Hunter -- Hunter went before us.
18 Mr. Jordan. No, the three of you who were staying there --
19 Mr. Archer. Yeah, we --
20 Mr. Jordan. -- Vadym, you, and --
21 Mr. Archer. We did. We took a --
22 Mr. Jordan. -- Zlochevsky.
23 Mr. Archer. Uh-huh. We took a --
24 Mr. Jordan. Okay. So you get there; you have dinner. Sometime during
25 dinner, Zlochevsky requests help with the U.S. Government to deal with Ukrainian
43
prosecution 1 situation. Is that right?
2 Mr. Archer. Not -- that's a -- that's a little bit -- that's a little bit of -- that's
3 speculation. "We're under pressure. We need to go -- we want to talk to Hunter."
4 So I think -- and let me back up there. I think how you just rehashed that -- we
5 all had dinner, like a board dinner, at the Burj Al Arab --
6 Mr. Jordan. Then you go for drinks afterward.
7 Mr. Archer. Then -- then Hunter went to the Four Seasons. That was -- and he
8 met his -- you know, one of his friends was a manager and used to be in Georgetown.
9 And then we -- you know, later in the evening, we went over there, you know, not,
10 like -- whatever. I don't know the time. And then Vadym, Zlochevsky, and myself
11 went --
12 Mr. Jordan. Right.
13 Mr. Archer. -- later.
14 Mr. Jordan. Okay.
15 Mr. Archer. So that's when we met up. And they were -- you know, they
16 were -- it was this, you know, specifically under -- you know, they were feeling the heat or
17 whatever. And they were like, okay, can we -- can we call D.C.
18 And, again, I can't -- on that particular -- you know, there were conference calls
19 where we talked around the table. On that call, I was not in the earshot of that -- of
20 that. But I know that there was -- you know, there was a call made.
21 Mr. Jordan. Okay.
22 Mr. Archer. But that was the sequence of events.
23 BY MR. MANDOLFO:
24 Q And that call that was made, that was on December 4th of 2015?
25 A On or around.
44
Q And then just 5 days later, Vice 1 President Biden has a trip to the Ukraine, and
2 he makes a statement: "It's not enough to set up a new anti-corruption bureau and
3 establish a special prosecutor fighting corruption. The Office of the General Prosecutor
4 desperately needs reform."
5 I know you've talked about these different pressures, but when VP Biden comes
6 on December 9th of 2015, he talks about the specific pressure of the Office of the General
7 Prosecutor.
8 And so, based upon that, is it your testimony here that Hunter Biden, Viktor
9 Shokin never -- excuse me -- Hunter Biden and Vadym never discussed the investigation
10 by Shokin into Burisma?
11 Mr. Schwartz. You're asking --
12 Mr. Archer. I can't --
13 Mr. Schwartz. -- what conversation he was personally privy to?
14 Mr. Mandolfo. Yes.
15 Mr. Schwartz. I think he answered that already.
16 Mr. Archer. Yeah. I was --
17 BY MR. MANDOLFO:
18 Q Ever?
19 A Yeah. I was -- and I answered it before. I was spun a narrative that
20 Shokin was good for Burisma from --
21 Q But that was not from Hunter Biden or --
22 A No --
23 Q -- Vadym?
24 A -- it wasn't from Hunter. I can't say it was from Hunter. So --
25 Mr. Schwartz. The answer --
45
1 Mr. Archer. Yeah, no.
2 Mr. Schwartz. -- is, no, no such conversation happened.
3 Mr. Archer. Right. No, that didn't happen. But, again, I was left out of
4 everything.
5 BY MR. MANDOLFO:
6 Q I want to turn your attention now -- how much time do we have left for the
7 first hour?
8 Mr. Abourisk. About 6 minutes, 5-1/2 minutes.
9 Mr. Mandolfo. Okay.
10 BY MR. MANDOLFO:
11 Q -- turn your attention now to spring of 2015, dinner at Cafe Milano, where I
12 believe Vice President Biden attended as well.
13 Can you tell us about that dinner? Who was there?
14 A Okay. Could you repeat the date?
15 Q It's the spring or April of 2015, around --
16 A April 2015.
17 Mr. Schwartz. The second one.
18 Mr. Archer. Oh, the second -- there you go.
19 Yes, Vice President Biden did attend.
20 BY MR. MANDOLFO:
21 Q And who else was there?
22 A There was two dinners.
23 At that diner, it was Vadym, Karim Massimov -- so Vadym P. from Burisma; Karim
24 Massimov; a Greek priest, Orthodox priest; I think -- I believe someone from the World
25 Food Programme. I think that was the -- and then there -- do you have others?
46
1 Q What about Kenes Rakishev?
2 A No, he was not there at the second dinner.
3 Q Was he at the first dinner?
4 A Yes.
5 Q And for the second dinner, was Yelena Baturina there?
6 A I believe -- I believe she was at the first dinner. Yeah.
7 Q What about the --
8 A She was at the first dinner, yes.
9 Q We can start with the first dinner.
10 A Yeah, why don't we do that.
11 Q Why don't we start with the first dinner. Who was at the first dinner?
12 A So the first dinner was Karim Massimov, who's -- he's a friend of mine,
13 unfortunately for him.
14 Karim. Yelena Baturina. Kenes Rakishev. It's revisionist history. I believe
15 Yury, her husband, was there. I can't -- because I see in the emails, but I can't -- he
16 didn't make much of an impact, because I don't remember -- I don't have that, like, visual,
17 but he very well could've been there -- the late Yury. And Joe Biden. Hunter Biden.
18 Possibly Eric Schwerin, possibly not.
19 But that was -- that was -- that was generally it. There might be some others, if
20 you -- you guys have the information closer to -- I haven't thought about this in a while.
21 Q Who was Kenes Rakishev?
22 A He was a -- he's a businessman from -- he's a Kazakh
23 native -- Europe -- Europe and Kazakhstan.
24 Q And, then, who was Yelena Baturina?
25 A She was the -- she was the CEO, chairman, founder, owner of Inteco, which
47
is one of the largest 1 -- or was the largest real estate company in Russia, Eastern Europe.
2 And she was the wife of Yury -- last name escapes me right this second, but --
3 Q Luzhkov?
4 A Yeah, who was the mayor of Moscow.
5 Q When did Joe Biden arrive at the dinner, if you can recall?
6 A He arrived somewhere -- you know, sometime after we had started, but
7 not -- I don't think we had eaten yet, but at some point he arrived. It was dark.
8 Q And do you remember, when he arrived, what he did, who he talked to?
9 A Yeah. He entered the room and shook everybody's hand. And, you know,
10 the conversation -- you know, again, I don't want to be -- it's important that I'm accurate.
11 I don't really remember it. You know, I don't -- not really. I don't remember the
12 conversation. I just remember that he was -- he came to dinner, and we ate and kind of
13 talked about the world, I guess, and the weather, and then everybody -- everybody left.
14 As far as -- I know you're probably going to ask, you know, how much time. I
15 don't -- it wasn't 5 minutes; it wasn't 3 hours.
16 Mr. Mandolfo. How much time do we have?
17 Mr. Abourisk. We're about at the hour.
18 Mr. Mandolfo. Okay. We're at about the hour, so we'll take a 10-minute break
19 for the bathroom, and then we'll come back. Thank you.
20 Off the record.
21 Mr. Archer. Off the record.
22 [Recess.]
48
1
2 [11:56 a.m.]
3 Mr. Mandolfo. We'll go back on the record.
4 Mr. Schwartz. Before you resume, I just want to clarify something from before
5 the break.
6 Mr. Mandolfo. Okay.
7 Mr. Schwartz. And I'll ask the question so you get his testimony.
8 So, Mr. Archer, you talked before about a meeting and a subsequent phone call
9 that occurred in Dubai. Do you recall that?
10 Mr. Archer. Yes.
11 Mr. Schwartz. All right. So, just to clarify, before Hunter Biden made a phone
12 call, there was a reference to making a call to D.C.?
13 Mr. Archer. Correct.
14 Mr. Schwartz. And, afterwards, Vadym told you that they had called D.C.?
15 Mr. Archer. Correct.
16 Mr. Schwartz. You did not hear that phone call?
17 Mr. Archer. I did not hear that phone call.
18 Mr. Schwartz. Did anyone ever tell you that that call was to Vice President
19 Biden?
20 Mr. Archer. No, they did not tell me that.
21 Mr. Schwartz. Do you know to whom they made the phone call?
22 Mr. Archer. I don't know who they made the phone call to.
23 Mr. Schwartz. So you don't know one way or the other whether it was to Vice
24 President Biden?
25 Mr. Archer. I do not know one way or the other whether it was to him. "D.C."
49
1 BY MR. MANDOLFO:
2 Q When Hunter Biden would travel internationally, do you know what phones
3 he would use?
4 A He would use I think generally his iPhone. I don't think he had other
5 phones. The iPhone. No burners.
6 Q And are you aware that he used the same --
7 Mr. Schwartz. You've got to let him ask all the questions.
8 Mr. Archer. Sorry.
9 Mr. Schwartz. Now they have you saying that word first, when he was going to
10 ask you about it.
11 Mr. Archer. I know, but I just have seen it so many times.
12 BY MR. MANDOLFO:
13 Q Are you aware if he used the same phone number then that he has now?
14 In the sense that have been referenced in these emails, is it that same phone number?
15 A I'm -- yeah, I'm fair- -- I could speculate that he used the same phone
16 generally.
17 Q The same phone number? You didn't see him using different phone
18 numbers?
19 A I didn't, no, to be honest.
20 Q And I want to go back to Dubai during that meeting.
21 A Uh-huh.
22 Q There was a request, as I understand it, to release pressure and Hunter
23 Biden to call D.C., is how you understand it, correct?
24 A Correct.
25 Q Where were you when the phone call took place?
50
A I was on the -- I was on, like, an o 1 utside deck of the Four Seasons in Dubai,
2 which is kind of on the water, next to a pier.
3 Q Where was Vadym and Hunter Biden at that time?
4 A More inland, on another deck.
5 Q Why were you away from them if you were all there together?
6 A I was -- why was I away from -- I don't have a -- I think I was speaking -- I
7 believe I was in conversation with the manager of the hotel.
8 Q Did they ask you to leave at any point?
9 A No. They left me.
10 Q And when you say they left you, they were at the same spot where you were
11 with the manager --
12 A Uh-huh. Yes.
13 Q -- and then Vadym and Hunter Biden then left where you were?
14 A Correct.
15 Q And that's when you believe the phone call was made?
16 A Correct.
17 Mr. Greenberg. And Mykola Zlochevsky also accompanied them?
18 Mr. Archer. Yes.
19 Mr. Greenberg. Did they tell you why they were stepping away?
20 Mr. Archer. Did they tell -- I can't recall. It was more of an organic situation.
21 You know, it wasn't like, "We're getting up to call." It was just, as I -- as we -- just went
22 over.
23 BY MR. MANDOLFO:
24 Q How long did the phone call take place for?
25 A That I can't recall. It wasn't 2 hours, and it wasn't 5 minutes.
51
1 Q So you think the call was longer than 5 minutes?
2 A I don't --
3 Mr. Schwartz. Well, when you say "the call," you mean the time period --
4 Mr. Archer. The time period -- yeah.
5 Mr. Schwartz. -- that they stepped away from --
6 Mr. Archer. Yeah. Let me clarify.
7 The time period that they stepped away from me for was probably -- was longer
8 than 5 and shorter than an hour. But I just -- it's a long time ago.
9 BY MR. MANDOLFO:
10 Q How many times would you say that Hunter Biden put his father on
11 speakerphone or referenced his father being on the phone in front of others who were
12 either foreign investors or foreign nationals who he was soliciting business with or
13 working with, approximately?
14 A Approximately? The differentiation between investor and normal course
15 of day -- you know, that's a very hard thing to speculate on. But he -- they spoke every
16 day. He acknowledged that they spoke every day. And he would -- you know, he
17 would sometimes make it apparent that he spoke to his dad, and sometimes he put him
18 on speaker.
19 But as far as quantifying the number, you know, relative to investors, I don't know.
20 Q Not necessarily investors but with people who Hunter Biden was trying to
21 either get business with or make contacts with or add value to?
22 A In my 10 -- in my whole partnership, maybe 20 times.
23 Q And during those 20 times, did Hunter Biden ever place his dad on
24 speakerphone?
25 A Yes.
52
Q And, before, you had said that 1 they would talk about what, when he was on
2 speakerphone?
3 A Say, where are you, how's the weather, how's the fishing, how's
4 the -- whatever it may be, whatever -- but -- you know, it was very, you know, casual
5 conversations about -- you know, not about cap tables or financials or anything like that.
6 Q But the purpose wasn't for Vice President Biden to do cap tables or to break
7 down the different business deals. Would you agree with me that the purpose was that
8 that was Hunter Biden's value-add? That's what he would bring, in part at least, to the
9 table if the foreign nationals or businesses were to retain him?
10 Mr. Schwartz. So you're asking him to speculate about the purpose --
11 Mr. Mandolfo. I'm asking his opinion, not his speculation.
12 Mr. Schwartz. Well, first of all, you haven't asked him if these phone calls
13 occurred when they were not with business associates, when they were not talking to
14 investors.
15 Did he behave differently when he was with friends?
16 Mr. Archer. No, that's -- no, he did not behave differently. It was the same
17 course of action. Phone calls.
18 BY MR. MANDOLFO:
19 Q But if I were to just call my dad right now and put him on speakerphone and
20 we're in a professional business meeting here, would that be odd to you?
21 A Would that be odd to me?
22 Q Yes.
23 A That would be odd, if you called your dad right now.
24 Q So there is a time and a place when it's professional to do -- excuse
25 me -- where you're in a personal meeting and you may call your dad or a family member
53
if you're with family. But if you're i 1 n a professional meeting and you're meeting foreign
2 business leaders or whoever it may be and you just place your dad on speakerphone on
3 the table, that's a little odd, isn't it?
4 A That is a little odd. I mean, it's not odd -- I mean, it's quite obvious what
5 we're talking around.
6 Q So what are we talking about? You are talking around it, and so I'd like to
7 get out, what are we talking about here?
8 A That, I think, at the end of the day, part of what was delivered is the brand.
9 I mean, it's like anything, you know, if you're Jamie Dimon's son or any CEO. You know, I
10 think that that's what we're talking about, is that there was brand being delivered along
11 with other capabilities and reach.
12 Mr. Biggs. Could I ask --
13 Mr. Archer. I think "brand" is the best way to describe it.
14 Mr. Biggs. Yeah. So a couple questions with regard to that. I appreciate
15 saying "brand." You and I talked about that earlier, and we talked about how the main
16 brand is Joe Biden -- not the Biden family, but Joe Biden.
17 So I'm going to ask you just a couple questions along that, based on what you just
18 said --
19 Mr. Archer. Sure.
20 Mr. Biggs. -- what you just answered.
21 Did you or your partners ever design or discuss that you were going to use political
22 influence to try to raise capital or to further the business?
23 Mr. Archer. So --
24 Mr. Schwartz. Did you have discussions --
25 Mr. Archer. Yeah, did we have discussions --
54
Mr. Biggs. I didn' 1 t ask if you had discussions. I just said, did you and your
2 partners --
3 Mr. Schwartz. Discuss.
4 Mr. Biggs. -- ever talk about it?
5 Mr. Archer. No. How we would -- How I would characterize that is that we,
6 you know --
7 Mr. Schwartz. He asked you a "yes" or "no" question. Did you have discussions
8 with your business partners --
9 Mr. Biggs. Well, let me rephrase, because I think you're not quite getting the
10 essence.
11 So I'll ask the question again, and then you can answer "yes" or "no," and then we
12 can elaborate, if we want to, at that point, okay?
13 Mr. Archer. Uh-huh.
14 Mr. Biggs. Did you or your partners design or seek to use political influence to
15 help you raise capital or further your business?
16 Mr. Archer. I would -- can I answer it with a --
17 Mr. Biggs. Yes. Of course.
18 Mr. Archer. We would discuss having, you know, an understanding of D.C., and
19 that was a differentiating component of us being able to raise capital.
20 So we would -- it wasn't as, you know, specific as, okay, you know, just down to
21 individuals or, you know, the Vice President's son. But, obviously, the brand carried.
22 Because we'd say, you know, what gives you a unique advantage to start up Rosemont
23 Seneca Technology Partners or Rosemont Realty? And that was just, you know, you're
24 in a competitive environment out there trying to raise capital for various investment
25 initiatives, and you would say, "Okay, well, we have a D.C. office." I mean, I think a lot
55
of -- pre 1 tty much every, you know, bank and --
2 Mr. Biggs. Did you -- did you --
3 Mr. Archer. -- firm would do the same.
4 Mr. Biggs. I'm sorry. I didn't want to cut you short.
5 Mr. Archer. Yeah, no worries.
6 Mr. Biggs. Did you intimate ever that that would give you some kind of unique
7 access, as you were meeting with clients or businesses, unique access because of the
8 familial relationship that Hunter Biden had with his father, at that time the Vice
9 President?
10 Mr. Archer. Yeah, again, I think I answered that in the same -- in -- before. Yes,
11 we would say we had unique understanding of D.C. and how it operates and how that,
12 you know, could positively reflect on the terms of our business. So, yes.
13 Mr. Biggs. Thank you.
14 Did Hunter Biden ever indicate to you that soliciting Chinese
15 investments -- Chinese investments -- was important to his family, and particularly with
16 reference to his father?
17 Mr. Archer. Soliciting Chinese investments in what regards? Raising capital
18 for --
19 Mr. Biggs. Yeah.
20 Mr. Archer. So, with BHR, we weren't responsible -- we didn't have a fundraising
21 capacity. We were out -- we were deal-sourcing for the initial -- that's what we're
22 talking about generally, BHR? Or -- I don't have much -- I don't have anything --
23 Mr. Biggs. Yeah, I would say BHR.
24 Mr. Archer. Yeah. So BHR Partners, it was a cross-border fund -- you know,
25 Bohai Sea Industrial Fund, Harvest. They were setting up a private equity fund, and they
56
wanted to go out and buy -- yo 1 u know, basically buy assets outside of China.
2 Mr. Biggs. But did --
3 Mr. Archer. So we didn't raise capital from the Chinese.
4 Mr. Biggs. Okay, but the crux of the question is, did Hunter Biden ever talk to
5 you about how important that relationship with China was to his family, particularly to his
6 father?
7 Mr. Archer. No, not -- not -- not specifically. No.
8 Mr. Biggs. And did Hunter ever indicate to you that the Chinese anticipated that
9 after his father was out of office he might join their company with -- one of their
10 companies as a paid advisor?
11 Mr. Archer. Did he intimate that --
12 Mr. Biggs. Did he indicate that to you?
13 Mr. Archer. I don't recall, but potentially.
14 Mr. Biggs. You don't recall, but it's not new to you, is what you're saying.
15 Mr. Archer. It's not new to me.
16 Mr. Biggs. Thank you.
17 I yield back to you.
18 Thank you for -- thanks for answering my questions.
19 Mr. Archer. Yeah.
20 BY MR. MANDOLFO:
21 Q Going back to the calls that Hunter Biden would put on speakerphone with
22 his father and others, can you describe what the other people would say, if you can recall,
23 after Hunter Biden did that?
24 Because I'll tell you, just from an everyday American, if someone were to put the
25 Vice President of the United States on the phone right in front of you, it'd be pretty
57
1 impressive --
2 A Absolutely.
3 Q -- and I would think there would be some sort of reaction from those people.
4 A Yeah, I think everybody -- I think everybody remains, you know, cool and
5 calm like it was, you know -- and then probably called their friends and family and said
6 that they spoke to him. But, you know, the reaction -- I don't have any specifics of, like,
7 people jumping up and giving high-fives, but I think it was, you know, a signal that, you
8 know, they respected and thought was of value.
9 Q And I want to talk about the value. Going back to this, it would be, spring
10 of 2014 Cafe Milano dinner --
11 A Uh-huh. The spring of '14, yeah, the first one.
12 Q And since we talked about it before the break, if you could just recap. Can
13 you just say again who was there?
14 A Sure. Kenes Rakishev, Karim Massimov, Yelena Baturina, possibly Yury,
15 Hunter Biden, Joe Biden, possibly Eric Schwerin.
16 Q The duration of time that Joe Biden stayed there you said you couldn't recall.
17 But do you recall whether he had dinner or whether --
18 A He had dinner, yeah. I recall that he had dinner. It was a regular -- not a
19 long dinner, but dinner.
20 Q And so this dinner takes place in spring of 2014, approximately. But then
21 do you recall getting a wire on February 14th of 2014 from Yelena Baturina for
22 $3.5 million to Rosemont Seneca Thornton?
23 A To Rosemont Seneca Thornton?
24 Q Yes.
25 A Yes. And why I remember that is from the -- from other testimony. Yes.
58
Mr. Schwartz. Yes. In other words, 1 his memory has been refreshed. He
2 doesn't remember that it happened.
3 Mr. Archer. Exactly. My memory has been refreshed.
4 BY MR. MANDOLFO:
5 Q And, also, there was a wire from a company related to Kenes Rakishev
6 for -- and it's in tab 1 -- for $142,300?
7 A Yes. Again, I've been refreshed. Very familiar.
8 Q So, leading up to this dinner at spring 2014 at Cafe Milano, the -- I'm going to
9 call it the RST account --
10 A Uh-huh.
11 Q -- and the RSB account had received wires from both Yelena Baturina as well
12 as --
13 A Yeah.
14 Q -- Kenes Rakishev?
15 A Yes. This is -- let me just explain that.
16 So, with Yelena Baturina, it was from Inteco. And Inteco invested -- we're really
17 not sure why that 3.5 went to RST. Inteco invested close to $120 million with us in
18 Rosemont Realty. So, you know, on that particular wire, there was some commission
19 element. There was a -- two warehouses in Brooklyn. I don't know what the specifics
20 of the wire were, but it was -- quite frankly, it was not supposed to go there, but that's
21 where it went.
22 And RST was set up to be the equity shareholder of BHR. So Rosemont Seneca
23 Bohai ends up being the shareholder of BHR, the "R" -- you know, so -- but we'd set up
24 RST with this group called Thornton, which was once the group that introduced us to
25 Bohai. And because their regulation to own 30 percent -- so I think RST was in existence
59
for about 30 days. Because to own -- so 1 there's three -- there was three partners: RSB,
2 which was Hunter and myself, and then Thornton, and 30 percent broke a threshold of
3 owning BHR.
4 So you had this, like -- I mean, it's -- you know, because, obviously, it's gone over
5 and over -- that was, like, really -- like, it was a mistake, because it didn't meet the
6 regulatory hurdles of BHR to be below 24.9 percent. Otherwise, you have to register
7 with their equivalent of the SEC as a shareholder. So that was a little bit of an anomaly.
8 But the 3.5 was a Rosemont Realty component of a $118 million, $120 million
9 investment.
10 Q The "T" in RST, Rosemont Seneca --
11 A Thornton.
12 Q -- Thornton, is Bulger, correct?
13 A Yes.
14 [Archer Exhibit No. 6
15 Was marked for identification.]
16 BY MR. MANDOLFO:
17 Q And I want to show you exhibit 6.
18 We've looked over and subpoenaed the Rosemont Seneca Thornton documents,
19 and one of the beneficiaries for Rosemont Seneca Thornton is Rosemont Seneca Partners.
20 And so I just want to see that -- who was the chairman of Rosemont Seneca Partners?
21 A Hunter.
22 Mr. Schwartz. Is that accurate, or you're just reading this?
23 Mr. Archer. I was just --
24 Mr. Schwartz. His question is, who was the chairman of Rosemont Seneca
25 Partners?
60
Mr. Archer. 1 Rosemont Seneca Partners, yes, that is -- that's accurate.
2 But RST was, like, kind of a mistake, at the end of the day. Not -- it wasn't a
3 mistake; it was just, like, a regulatory thing that we set up mistakenly, basically.
4 BY MR. MANDOLFO:
5 Q We've also traced the money, the $3.5 million, that came from Yelena
6 Baturina, and over $2 million of that travels into Rosemont Seneca Bohai.
7 A Right.
8 Q Do you know why over $2 million of that was going to Rosemont Seneca
9 Bohai, which was the same account also where Hunter Biden was receiving his money?
10 Mr. Schwartz. So I'm going to let him answer this question, but Yelena Baturina
11 is not within scope of this interview. It's not one of the names that you gave us, it's
12 not --
13 Mr. Mandolfo. Well, it's one of the wires that I highlighted.
14 Mr. Schwartz. But, again, the letter which I sent you makes clear that everything
15 is limited by the scope.
16 There's all sorts of stuff in those documents that is in scope and out of scope.
17 The documents are ones that you might use. I don't know for what purpose you were
18 going to use them. Only you knew your questions. But we had negotiated a scope
19 that included very specific people and entities, and --
20 Mr. Mandolfo. But Rosemont Seneca --
21 Mr. Schwartz. -- she was not one of them.
22 Mr. Mandolfo. -- Thornton was negotiated.
23 Mr. Schwartz. So that's why I said I'm not going to stop you from asking this
24 question. But we should move off of Yelena Baturina, in part because he's not prepared
25 to testify, so you're going to get less accurate answers.
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Mr. Archer. Yeah, and I would -- the scope 1 -- Yelena Baturina, just to get -- is a
2 total Rosemont Realty -- she's a Rosemont Realty -- so whether it was, like, an accounting
3 that was owed or not --
4 Mr. Schwartz. All right. His question is, why did that money go from Thornton
5 to Bohai?
6 Mr. Archer. Thornton to Bohai. Probably because it was owed --
7 Mr. Schwartz. Because they're representing it did.
8 Mr. Archer. Yeah. I'm not -- I can't answer that.
9 But the Rosemont Realty relationship, though he met her once, was -- it is --
10 BY MR. MANDOLFO:
11 Q "He met her." Who is --
12 A Hunter met Yelena once, at that same Lake Como meeting. But there was
13 no -- he was not involved. I think we put him on the advisory board for a minute. And
14 he was really -- Rosemont Realty was completely out of his, kind of, portfolio.
15 Q When was that Lake Como meeting?
16 A That was the meeting I referred to earlier, was probably in May of 2014.
17 That was the transition from legal representation to board member.
18 Q And I want to turn to tab 1.
19 A Sure.
20 Q And, for the record, Kenes Rakishev is in Appendix B.
21 A Uh-huh.
22 Q There's a wire, an incoming wire, to the Rosemont Seneca Bohai account for
23 April 22nd of 2014 for $142,300.
24 Soon thereafter, there's an outgoing wire, which appears to be the next day, to a
25 beneficiary of Schneider Nelson Motor for this exact same amount.
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What was -- first off, our understanding is 1 that Novitas Holdings, PTE Ltd. is
2 associated Kenes Rakishev.
3 A That's my understanding.
4 Q Why did Rosemont Seneca Bohai receive this $142,000 payment from
5 Rakishev?
6 A It was for a car.
7 Q Whose car?
8 A Also, let me clarify. I didn't do -- I didn't, like, do the actual banking, so --
9 Q Who did?
10 A Sebastian Momtazi.
11 Q And Sebastian --
12 A So, like, I wouldn't have sent these wires or received these wires or, like,
13 pressed "go" or -- he would have some rubber stamp, you know, and do it. Hunter
14 interfaced with him. But I know this was for a car.
15 Q Did Sebastian work for Rosemont? One of --
16 A Yeah.
17 Q -- the Rosemonts?
18 A He worked for one of them. I don't know -- I forget --
19 Q Do you remember which one?
20 A Rosemont Realty. First Rosemont Capital, then transitioned to Rosemont
21 Realty.
22 Q What was purpose of this wire?
23 A It was for a car.
24 Q For whose car?
25 A For Hunter's car.
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1 Q Was this a Porsche?
2 A It gets a little foggy here. I believe it was a Fisker first and then a Porsche.
3 But it was -- yes, it --
4 Q For an expensive car.
5 A For an expensive car, yes. It gets a little -- yes.
6 Q And you talked earlier about Kenes Rakishev. Do you know his
7 relationship -- and I don't mean familial; I just mean business relationship -- with Prime
8 Minister Karim Massimov?
9 A Do I -- yeah, his relationship? They knew each other.
10 Q How?
11 A Kenes is a prominent -- you know, is a prominent businessman in
12 Kazakhstan, in Europe. He also has a prominent family. So that -- they -- Karim was
13 the Prime Minister, and therefore they knew each other.
14 Q And now I'm going to take you back --
15 A Sure.
16 Q -- to the spring 2014 dinner, where two of the attendees, would you agree
17 with me, one had sent a wire to RSB account for $142,000 and another one of the
18 attendees had sent a wire to RST for $3.5 million? Is that correct?
19 A It is not completely correct, because the RST transfer was part of a much
20 bigger investment program, but the first part is correct.
21 Q But these are people who you and Hunter Biden are in business with,
22 correct?
23 A Correct. Well, with Kenes, no -- I mean, I don't think he ever -- Kenes was
24 pitched -- was pitched to Rosemont Realty, but I don't think he ever -- he never -- the only
25 thing that I think ever transacted was a car.
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1 Q Well, why did he send --
2 Mr. Schwartz. And what was Hunter's connection to Rosemont Realty?
3 Mr. Archer. Minimal.
4 Mr. Schwartz. Right. So was he in business with --
5 Mr. Archer. He was not --
6 Mr. Schwartz. -- investors in Rosemont Realty?
7 Mr. Archer. No. Hunter we put on the board of Rosemont Realty for a very
8 short period of time.
9 Mr. Greenberg. Did Hunter receive a distribution when Rosemont Realty was
10 sold?
11 Mr. Archer. I believe so, I believe a very low amount of distribution for his
12 tenure on the board of advisors. But I don't -- I can't confirm it.
13 Mr. Greenberg. Was it over a $100,000?
14 Mr. Archer. I don't know. And that would've been associated with capital
15 raised, not equity.
16 BY MR. MANDOLFO:
17 Q So then what was the purpose of the Porsche payment?
18 A It was -- that's a business matter between them.
19 Q "Them" being who?
20 A Hunter and Kenes.
21 Q So --
22 A That's why I clarified the point, like, I wasn't, like, doing this banking.
23 Hunter was a corporate secretary of RSB. We had a handshake 50-50 ownership. And
24 he conducted, you know, banking business with the COO.
25 Q So you're telling us here today that you don't know why this expensive car

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1 was purchased through Rakishev.
2 A No, I don't know why. I was jealous -- no, I'm just kidding.
3 Mr. Mandolfo. Go ahead.
4 Mr. Abourisk. Yeah. Just a point of clarification.
5 Mr. Archer. Sure.
6 Mr. Abourisk. When the $3.5 million comes into Rosemont Seneca Thornton, an
7 entity with a beneficiary of Rosemont Seneca Partners, I understand your testimony
8 today is that that wire was supposed to go to Rosemont Realty.
9 Mr. Archer. Uh-huh.
10 Mr. Abourisk. But it's correct that that money, that $3.5 million, roughly
11 $2.5 million of that was not wired to Rosemont Realty, it was wired to Rosemont Seneca
12 Bohai, right?
13 Mr. Schwartz. If you know.
14 Mr. Archer. Is that -- I don't know, but if it -- you're saying that's the case.
15 Mr. Abourisk. And Rosemont Seneca Bohai, like you just said, was a 50-50
16 handshake between you and Hunter Biden, right?
17 Mr. Archer. Correct.
18 Mr. Abourisk. Okay.
19 BY MR. MANDOLFO:
20 Q And to finish up this spring 2014 Cafe Milano dinner, is there anything else
21 you remember about VP Biden saying during that dinner?
22 A No, not -- this is the first dinner? No.
23 Q Yes.
24 All right. Let's move on to the second dinner --
25 A The second dinner.
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Q -- 1 the spring 2015 Cafe Milano. Who was there?
2 A That dinner was -- I think we went over it before, but it was Vadym, Hunter,
3 Joe, myself, Karim Massimov, a Greek Orthodox priest, maybe someone from World Food
4 Programme.
5 Q And what did Joe do at that dinner? Did he have dinner? How long was
6 he there?
7 A He had dinner. He had dinner. And there was -- on that one, I believe the
8 first one was, like, a birthday dinner, and then the second was -- I think we were
9 supposed to talk about the World Food Programme. So there was some talk about that.
10 Mr. Goldman. Did you say when the first one was? I'm sorry, I didn't hear.
11 Mr. Archer. The first?
12 Mr. Schwartz. Dinner.
13 Mr. Archer. Oh, the first one was a birthday dinner.
14 Mr. Goldman. When?
15 Mr. Archer. That was the spring of --
16 Mr. Mandolfo. 2014.
17 Mr. Archer. -- 2014.
18 Mr. Goldman. All right.
19 [Discussion off the record.]
20 Mr. Schwartz. Yeah. Let's just clean that up.
21 Mr. Archer. Okay.
22 Mr. Schwartz. I think you said it a second ago, that Hunter Biden was the
23 corporate secretary of RSB. Do you know that to be true, or are you recalling a
24 document you have been shown after the fact?
25 Mr. Archer. I was shown a document after the fact.
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Mr. Schwartz. And you hadn't se 1 en that document before?
2 Mr. Archer. I had not seen that document before.
3 Mr. Schwartz. To your independent knowledge, did Hunter Biden ever have any
4 official position with RSB?
5 Mr. Archer. Just -- no. Just equity.
6 Mr. Schwartz. Handshake equity.
7 Mr. Archer. Handshake equity.
8 BY MR. MANDOLFO:
9 Q So you're saying there's no -- he had no -- "he" being Hunter Biden -- had no
10 position with RSB, Rosemont Seneca Bohai?
11 A Right.
12 Q So Hunter Biden at this time, he has -- at least for part of the RSB account, he
13 has an Owasco account, he has other bank accounts.
14 A Uh-huh.
15 Q What is the purpose in Hunter Biden receiving all of this money into the RSB
16 account? Because if I am partners with you and we have a split, you have access to the
17 entire account.
18 A Right.
19 Q You would be -- I would be -- not have access to my money.
20 So why was Hunter Biden not receiving this money in his Owasco account, where
21 his name would be affiliated with?
22 A I don't have an answer to that. I actually don't know.
23 Mr. Schwartz. Well, you answered that in part before. Did you view these
24 payments as personal payments to you and Hunter, or was that revenue for --
25 Mr. Archer. Revenue for our business.
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But, at the end of the day, that was how 1 we set it up. There were investments
2 made from it. You know, it's all -- I see all -- you know, in here. And it just kind of
3 happened from there. I don't -- that's all I -- that's all I know.
4 BY MR. MANDOLFO:
5 Q One of the phone calls that you discussed with Vice President Biden on was
6 with an individual by the name of Jonathan Li.
7 A Yes.
8 Q Who is Jonathan Li?
9 A He is the CEO of BHR.
10 Q When was that phone call?
11 A That I don't recall. Just --
12 Q Do you remember the year?
13 A I don't. It would be before, you know, spring of '16 and after spring of
14 2013.
15 Q What is Jonathan Li's role with that company?
16 A CEO.
17 Q And --
18 A He was also kind of the -- you know, the founder.
19 He left -- he was the CEO of Bohai Sea Industrial Fund, and he wanted to get out
20 of, you know, kind of a government private equity fund. And so he had the
21 entrepreneurial spirit to, you know, come to the States. I actually took him on a tour
22 of -- we met with Blackstone, with, you know -- I don't know -- Apollo, Franklin
23 Templeton, some other large sponsors.
24 And, in the meantime, we became -- Rosemont Realty got enough scale in, you
25 know, size of portfolio that we had a -- you know, we had a meeting, and he was like,
69
"Well, you guys are over 2 billion 1 in AUM now. Why don't you just be the partner?"
2 And that was -- that's how -- how it was -- I was literally taking him on a roadshow
3 with all these -- with a lot of other firms that they were going to do JV with, and then he
4 suggested it to me, actually here in New York -- we're not in New York, but -- in New York.
5 Q Why did Hunter Biden put VP Biden on the phone, on the speakerphone,
6 when Jonathan Li was at the meeting?
7 Mr. Schwartz. You're asking him to speculate?
8 Mr. Mandolfo. No. I'm asking if they discussed it.
9 Mr. Schwartz. Okay.
10 Mr. Archer. Oh, no, no, they didn't discuss -- same answer for -- you know, I
11 never had a specific business discussion --
12 Mr. Schwartz. He's asking if you and Hunter discussed why Hunter put his dad
13 on the phone.
14 Mr. Archer. No.
15 BY MR. MANDOLFO:
16 Q What were Jonathan Li, you, and Hunter talking about at the time that
17 Hunter Biden put his dad on the phone?
18 A Beijing, how great Beijing is -- or Chengdu, whichever city we were in. But,
19 you know, same answers -- non-specifics relative to business and just, you know, an
20 expression of hellos, I guess.
21 Mr. Mandolfo. Do you want to ask your --
22 Mr. Abourisk. Yeah.
23 BY MR. ABOURISK:
24 Q I just have a couple followups --
25 A Sure.
70
Q -- on BHR. So you previously 1 talked about -- you kind of went through the
2 30 percent --
3 A Threshold.
4 Q -- ownership that you needed for BHR.
5 A Uh-huh.
6 Q So I want to take you back to -- when did you -- that 30 percent. And it
7 was -- who were the partners of that 30 percent on the --
8 A Thornton?
9 Q -- American side? Which is who?
10 A James Bulger and Michael Lin.
11 Q Okay. And then who was the other --
12 A It was Hunter and myself.
13 Q Okay. So it was the four of you?
14 A Yes.
15 Q That owned the 30 percent?
16 A Yeah.
17 Q Okay. And when did you guys get ownership of BHR, that 30 percent that
18 we're talking about? Was that at the beginning, in 2014?
19 A That was in, yeah, the beginning.
20 Q Like, January or February of 2014?
21 A Yup.
22 Q Okay. And do you remember how much you all, the four of those partners,
23 initially invested in BHR at the beginning part of 2014?
24 A I'm sure it's in here, but maybe in the $400,000 range.
25 Q Ballpark, $420,000?
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1 A There you go.
2 Q And later in 2014, did you invest again -- did the four of you invest again in
3 BHR?
4 A In '14?
5 Q Yeah, later, in December of 2014 there was another cap -- was there another
6 capital contribution requirement?
7 A Yeah. Registered capital contribution.
8 Q And how much did the four of you all put in December --
9 A A lesser --
10 Q -- of 2014?
11 A -- amount, I believe.
12 Q Was it $480,000 in December of 2014? Does that sound about right?
13 A Yeah, it sounds about right.
14 Q Okay. So, if you added up the total, we're at about $900,000 --
15 A Yeah.
16 Q -- that the four of you invested --
17 A Correct.
18 Q -- in BHR? Was that the total --
19 A And there was an additional capital call.
20 Q Okay, yeah. When was that?
21 A It was a couple years later. Like, a year later? I don't know.
22 Q Okay. Maybe 2015?
23 A Maybe. Yep.
24 Q Okay. And how much?
25 A I'm sure it's all right there.
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Q How much was t 1 hat capital contribution requirement?
2 Mr. Schwartz. He knows the answers to all these questions.
3 Mr. Archer. Yeah, I realize that. Help me out.
4 What?
5 BY MR. ABOURISK:
6 Q How much was the capital contribution for --
7 A The final?
8 Q -- the third one? Yeah, the final one.
9 A Let me guess. 3-? 4-? 5-?
10 Mr. Schwartz. Don't guess.
11 BY MR. ABOURISK:
12 Q Yeah, I don't want you to guess.
13 A I don't know. I know it's in here, but I would say, you know, probably
14 in the -- it probably all, you know, totaled out to a million and a half from the RSB side.
15 Q Okay. And for that million and a half dollars that was invested in BHR --
16 A Uh-huh.
17 Q -- that got the four of you, it got you two board seats on BHR? Or how
18 many board seats did it get you?
19 A That was two board seats.
20 Q Okay. And so you sat on the board of BHR?
21 A I did.
22 Q From when to when?
23 A I sat on the board from the beginning -- I was the vice chairman -- until I had
24 my legal issues.
25 Q Okay. So that was early 2014 to mid-2016?
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A I think -- well, it was under - 1 - yeah. May 31st, my birthday. May 31, 2016.
2 Mr. Schwartz. That is not the date that you stepped --
3 Mr. Archer. That was the indictment.
4 Mr. Schwartz. -- down from BHR.
5 Mr. Archer. No, no, that's the --
6 Mr. Schwartz. It wasn't that day.
7 Mr. Archer. Okay.
8 He knows better.
9 BY MR. ABOURISK:
10 Q Got it.
11 And when did Hunter sit on the board of BHR, to your knowledge?
12 A When did he sit on the board? I don't -- to my knowledge, I know he was
13 on the board at some point, but I don't know if it was before or after. That's a little
14 fuzzy.
15 Q Was it 2014 when you sat on the board?
16 A Perhaps. I don't know the answer to when he was on the board. I'm sure
17 that's easily discoverable.
18 Mr. Schwartz. It's okay to say you don't remember.
19 Mr. Archer. Yeah, I just don't remember.
20 Mr. Abourisk. Okay.
21 Mr. Archer. Because I know it was on and off, but he was definitely on the board
22 at some point.
23 BY MR. ABOURISK:
24 Q When was he on and off?
25 A I don't have the answer to that.
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Q Okay. You were on the board 1 of BHR and didn't know why a fellow board
2 member was taken -- was on or off?
3 A I just -- if you can give me the times that he was on and off? Do we know
4 the times?
5 Q No, no, I'm asking you. When you were on the board in 2014 at BHR, was
6 Hunter on the board? I mean, he was invested in the company with you, right, in 2014?
7 A I think initially was on the board, yes.
8 Q Okay.
9 A And I think he stepped off at some point, probably after Schweizer's book.
10 It's true.
11 Q Okay.
12 A I think it was "Secret Empires"?
13 Q Got it.
14 A That might have been the catalyst.
15 Q Okay. Thanks.
16 BY MR. GREENBERG:
17 Q You mentioned earlier in the interview that there was pressure coming from
18 all, kind of, several different angles regarding Mykola Zlochevsky --
19 A Uh-huh.
20 Q -- that he was facing. And you mentioned that one of those angles was his
21 difficulty in receiving a visa.
22 A Correct.
23 Q Do you know why he was having difficulty receiving a visa?
24 Mr. Schwartz. Do you know?
25 Mr. Archer. I don't know. I know he was having difficulty receiving a visa.
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1 BY MR. GREENBERG:
2 Q Did anybody speak to you about why?
3 A Did anybody speak to me about why he was -- no. I just know that he was
4 very upset about it.
5 Q And that's for an American visa?
6 A Correct.
7 Q And then he --
8 A And the Mexican visa.
9 Q And a Mexican visa.
10 A Which I think reciprocal, so -- yeah. He was unable to receive either.
11 [Archer Exhibit No. 10
12 Was marked for identification.]
13 BY MR. GREENBERG:
14 Q If we can look at exhibit 10, this is an email from, at the bottom, Vadym
15 Pozharski on October 20, 2014, to Devon Archer, subject: "visa update." It says,
16 "Hello, mate. Are there any news re the visa issue? Vadym."
17 And then you wrote to Hunter Biden, "Any progress with DHS?"
18 Is that correct?
19 Mr. Schwartz. That -- you read it correctly.
20 BY MR. GREENBERG:
21 Q Do you have any -- do you remember writing --
22 A I don't remember writing this specifically, but I acknowledge that there was
23 an issue with the visa, and I -- but --
24 Mr. Schwartz. Let him ask the questions.
25 Mr. Archer. Yeah.
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1 BY MR. GREENBERG:
2 Q What was your understanding of Hunter Biden's knowledge of progress
3 within DHS?
4 A I don't know. I don't know. I know that he never got a visa.
5 Q Do you know -- do you remember why you thought Hunter Biden had any
6 kind of connection to the Department of Homeland Security?
7 A I believe he had a -- you know, lobbyist that they worked with.
8 Q And do you remember any discussions regarding Hunter Biden with any
9 board member or executive in Burisma regarding the visa issue?
10 A Yes, it was -- yes. Was Hunter -- did Hunter know about the visa issue?
11 Q Yes.
12 A Yes.
13 Q And what were those conversations?
14 A He got rejected when he had got his visa; can you guys help us with
15 someone? And they spoke to a former DHS lobbyist lawyer-type person, which -- the
16 name escapes me, but I'm sure it's somewhere in the laptop.
17 Q Was one of the people that you spoke to Amos Hochstein?
18 A I know that name. I feel like it's a different person for this particular issue,
19 but maybe.
20 Mr. Schwartz. You've been asked about a lot of names. Do you --
21 Mr. Archer. Yeah, a lot --
22 Mr. Schwartz. Do you remember that --
23 Mr. Archer. No.
24 Mr. Schwartz. -- name in connection with this issue?
25 Mr. Archer. I remember that name, but not in connection with this. I think it
77
was a more 1 -- there was basically -- like, essentially -- not "essentially." There's a
2 lobbyist that the D.C. team would call for, like, visa issues, and that was the guy that was
3 engaged.
4 BY MR. GREENBERG:
5 Q Amos Hochstein was the guy who was engaged?
6 A Oh, no. I don't know if it's Amos Hochstein. That doesn't sound familiar.
7 I think it was a more -- less exotic name.
8 Q All right.
9 BY MR. MANDOLFO:
10 Q Let's talk about some of the other times that you've interacted with Vice
11 President Biden.
12 A Uh-huh.
13 Q You went to the -- I believe it was the "visit Vice President Joe Biden" in April
14 of 2014. What was -- why did you go visit him then, if you can recall?
15 A Is this with my son?
16 Q I don't -- I don't know.
17 A April of 2014. Can you frame it a little bit more?
18 Q Well, it would've been around the same time that you had just joined the
19 board of Burisma. You got your payment from Burisma on April 15th of 2014.
20 Mr. Schwartz. You're taking about a meeting at the White House?
21 Mr. Mandolfo. Yes.
22 Mr. Archer. Yeah. Yes. That's what I was looking for. Yeah, the --
23 Mr. Schwartz. I know.
24 Mr. Archer. The, yes, meeting -- I met with Vice President -- then-Vice President
25 Biden in the office next to the White House, the Vice President's office, like that formal
78
1 office.
2 And it was -- I brought my son. We went into -- we did -- like, went into the
3 armored cars and did some things -- you know, showed him the thick glass. And
4 we -- this -- I mean, I think we have video that was, like, on Twitter, but basically we were
5 talking about his paper-mache White House project for second or third grade.
6 And then Hunter joined us for some portion, I think the formal White House
7 portion of that.
8 BY MR. MANDOLFO:
9 Q And then in the spring of 2015 you attended a breakfast at the Naval
10 Observatory where the U.N. Secretary-General was present?
11 A No --
12 Q Do you remember that?
13 A No, the U.N. Secretary-General was not present at that breakfast. But it
14 was, like, a U.N.-related conversation.
15 Q Who was present?
16 A A gentleman named Mark Holtzman, myself, Hunter, and the Vice
17 President -- Vice President.
18 Q And what was the discussion about?
19 A It was about who was going to be the next U.N. Secretary-General.
20 Q Why were you involved in that?
21 A Because Mark Holtzman was lobbying for Karim Massimov. But it
22 was -- obviously, that didn't happen.
23 Q Did there come a time when you ever met with the Prime Minister, Karim
24 Massimov, of Kazakhstan?
25 A Did I -- that I ever met --
79
1 Q Yes.
2 A Yeah. I'm friends with him. I'm a friend, a good friend.
3 Q And did you meet with him with Kenes Rakishev at any point?
4 A Yes.
5 Q What was the purpose of that meeting?
6 A The purpose of meeting -- well, I was -- I was trying to raise capital for
7 Rosemont Realty.
8 Q Did it have anything to do with the Chinese National Offshore Oil
9 Corporation, CNOOC?
10 A CNOOC. I mean, that could've come up, but I don't -- I don't remember
11 specifically. Certainly never -- nothing ever materialized from that.
12 The other reason for Massimov were Burisma Eurasia, because he was the Prime
13 Minister, and Burisma was trying to expand its businesses, so I leveraged the relationship
14 to introduce him to the company -- the country and new equipment and technology and
15 clean drilling.
16 So that was -- that was probably some of the effort. But, initially, it was the
17 Rosemont Realty pitch.
18 Q Are there any other dinners with Vice President Biden that we have not
19 discussed that you recall where he was present?
20 A With other -- with other people? I think I've -- or just me?
21 Q No, where you were present, with other people, either.
22 A Well, I think we had Vietnamese food in Georgetown once with just Hunter.
23 I don't know. Are there any that I --
24 Q No, I'm asking.
25 A I can't recall right now. But I think that those were, like, the extent of
80
the -- it's been pored 1 over pretty well.
2 Q What about golfing?
3 A Golf, yes. I think everybody's well aware that I've golfed with the Vice
4 President.
5 Q And who else has been on those golfing trips?
6 A Hunter. And in one of them, we played with, you know, three different
7 people and the owner of the club.
8 Q Anybody else that was present for those?
9 A A lot of Secret Service. Yeah, I don't think anyone else was present on the
10 golfing.
11 Q Leading up to today's interview, has anyone contacted you regarding -- and
12 I'm not asking about any communication between you and your attorney -- outside of
13 your attorney, about you testifying here today with the committee in order to try and get
14 you to not testify or to meet with us?
15 Mr. Schwartz. He's received a lot of anonymous --
16 Mr. Archer. Yeah.
17 Mr. Schwartz. -- threats or whatever.
18 BY MR. MANDOLFO:
19 Q People who you know. How about that? People who you know.
20 A People who I know? Like, from a legal -- I mean, it's a lot.
21 Q No --
22 A I have so many opinions, it's -- I wouldn't even be -- it's mind-numbing, the
23 amount of --
24 Mr. Schwartz. He's not asking for your advice. He's asking if anyone was
25 passing a message to you not to testify, on behalf of the family or the administration.
81
1 Mr. Archer. No, not directly.
2 BY MR. MANDOLFO:
3 Q What indirectly?
4 A No, just, you know, death threats and my parents' death threats and all that
5 kind of stuff.
6 Q When was the last time you spoke with Hunter Biden?
7 A I had a Signal message exchange when his book was published. I can't put
8 a date on that, but years ago.
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1
2 [12:43 p.m.]
3 BY MR. MANDOLFO:
4 Q Did Hunter Biden ever use encrypted apps when he talked with you?
5 A Signal.
6 Q How frequently would you talk on Signal?
7 A I mean, quite frankly, in the scope of what we're talking about, that was, like,
8 all post my issues. So not often, not often. Here, you know, here and there.
9 Q I believe you've mentioned this person before. But who's Eric Schwerin?
10 A Eric is -- he was the, you know -- you know, for lack of a better term,
11 Hunter's kind of COO at Rosemont Seneca Advisors and Seneca before that, I think the
12 lobbying firm before that.
13 Q And who is Jeffrey Cooper?
14 A He was -- he was the founder of Eudora Global, which was a firm that Hunter
15 Biden had some equity.
16 Q When was the last time you talked with Jeff Cooper?
17 A Jeff Cooper is a dear friend of mine.
18 Q And so when was the last time you talked with him?
19 Mr. Schwartz. After April 2016.
20 BY MR. MANDOLFO:
21 Q I want to get into some documents to see if you have them in your
22 possession or if you know who may have the documents.
23 A Sure.
24 Q Were there any -- related to Burisma -- were there any documents created in
25 relation to the board, such as board minutes, related to board appointments, resolutions,
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1 notes? Are you aware of any of those documents?
2 A Am I aware?
3 Q Were those documents --
4 A Do I know where they are? No.
5 Q Were they created, first? That's my first question.
6 A Yes.
7 Q And your answer to the second question is you don't know where they are at
8 the moment.
9 A Correct.
10 Q Do you have any text messages or emails with any Burisma associates or
11 Hunter Biden or any other Biden associates in your possession?
12 A No.
13 Q Where are they?
14 A They would be easily found in my discovery from my case.
15 Q What about related to Rosemont Seneca Partners? Are all of your -- are all
16 of the materials related to Rosemont --
17 A Yeah, I don't have -- like, as far as documents, I don't have any -- I don't
18 have -- I barely have email.
19 Q Is there any --
20 A I don't have a computer.
21 Q Excuse me?
22 A I don't have a computer.
23 Q Is there anyone holding any of your documents that you're aware of at the
24 moment?
25 A AlixPartners.
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1 Q What documents are they holding?
2 Mr. Schwartz. Sorry. They are retained through counsel. So that's us.
3 Mr. Mandolfo. So you have the documents. Boies Schiller has --
4 Mr. Schwartz. We have some documents. I'm not saying responsive to your
5 specific question. We have some documents.
6 BY MR. MANDOLFO:
7 Q If you can go to exhibit 1, tab 7. If you go to the line item that's August
8 26th of 2015.
9 A Yes. Sorry.
10 Q There's a beneficiary?
11 A Uh-huh.
12 Q MFTCG Holdings, LLC, Biden.
13 A Uh-huh.
14 Q For $150,000. What is that?
15 A I'm assuming it's an account of Hunter's.
16 Mr. Schwartz. You're assuming?
17 Mr. Archer. Right. I'm assuming. MFTCG Holdings. Is that -- the account
18 name is -- I'm just reading it. It says
19 Biden. Is that a note, or is that the actual account?
20 Mr. Mandolfo. This is the bank records. This is the record that was created by
21 the bank, and I'm just asking if you know that company.
22 Mr. Archer. I don't offhand.
23 Mr. Greenberg. Who is Rob Walker?
24 Mr. Archer. Rob Walker was another Rosemont Seneca Advisor partner.
25 Mr. Greenberg. In 2015, Rob Walker used his company, Robison Walker, LLC, to
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1 take in money from Gabriel Popoviciu.
2 Do you know who Gabriel Popoviciu is?
3 Mr. Schwartz. None of this is within scope. Don't answer that.
4 Mr. Biggs. Thank you. Thanks.
5 I know you're going to think I sound like a one-note piano, but I've got to keep
6 coming back because I want to make sure that I fully understand.
7 As you call it, you talked about the brand. Okay?
8 Mr. Archer. Uh-huh.
9 Mr. Biggs. I've got to understand the brand if I can -- so I can understand all of
10 this.
11 You're in Dubai and you're told that there's pressure coming on and going to make
12 a phone call to D.C., and, if I understand it right, they excuse themselves to go make this
13 call, right?
14 In the meantime, one thing you've said is that you guys had -- you worked with
15 some -- I think Blue Star? Is that the name of it?
16 Mr. Archer. Correct. Blue Star Strategies.
17 Mr. Biggs. Blue Star Strategies. And they took care of some of the lobbying
18 and internal D.C. mechanisms.
19 Mr. Archer. Correct.
20 Mr. Biggs. Okay. And -- but you've also testified that President -- excuse
21 me -- then Vice President Biden would make phone calls and actually made some -- went
22 to dinner at Cafe Milano.
23 And he might just say, "Hey, how's it going, take care of my boy" -- I don't know if
24 he said, "Take care of my boy" or not. I don't know. But he was giving some
25 glad-handing types of comments when he would call in. I think you testified about 20
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times that 1 he called in. Is that fair?
2 Mr. Schwartz. Is the question did Hunter Biden and his father speak 20 times in
3 front of Mr. Archer?
4 Mr. Biggs. No, no, in these conference calls, whether it was a dinner meeting or
5 meeting in front of clients or personal. Is that fair?
6 Mr. Archer. That is fair.
7 Mr. Biggs. Okay. And so what I'm trying to understand here is you had Blue
8 Star and other D.C. reps.
9 Mr. Archer. Uh-huh.
10 Mr. Biggs. You had Vice President Biden. Vice President Biden either attended
11 or made phone calls. But I assume that nobody from Blue Star Strategies was calling in
12 and getting put on a conference call with potential clients or business people. Is that a
13 fair assumption?
14 Mr. Archer. No, not necessarily. Blue Star was working very hard for their -- so
15 they were -- they were very well engaged with Burisma. They had a lot of problems.
16 There was a lot of work to do.
17 Mr. Biggs. They had a lot of problems, but they weren't being called in to recruit
18 or to --
19 Mr. Archer. To recruit?
20 Mr. Schwartz. Let him finish the question.
21 Mr. Archer. Yeah.
22 Mr. Biggs. To recruit or to basically be a PR face for your partnership like Joe
23 Biden was.
24 Mr. Archer. I disagree. They were brought in and -- and, you know, brought in
25 for other meetings. They were brought in to, you know, have meetings with State
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1 Department people.
2 And, you know, they were -- Blue Star was very active with kind of dealing with
3 lower-level, you know, government folks to help advance whatever Burisma was trying to
4 solve for. There was --
5 Mr. Biggs. But they weren't the brand.
6 Mr. Archer. They were not the brand.
7 Mr. Biggs. The brand was really Joe Biden.
8 Mr. Archer. U.S. -- U.S. -- D.C. was the brand.
9 Mr. Biggs. D.C. But earlier in your response to me you said it was really the
10 Biden -- the Biden family. And then we got to it wasn't anybody else but Joe Biden.
11 Mr. Archer. In the context of the Biden family.
12 Mr. Biggs. Right. So that leads to the next question.
13 Did anybody else from the Biden family, as part of the Biden brand, ever show up
14 at these dinners or phone calls -- have phone calls -- or was it just the Vice President?
15 Mr. Archer. Not during my tenure.
16 Mr. Biggs. And did Vice President Biden ever call in to Burisma board of director
17 meetings while you were on the board or Hunter was on the board to your knowledge?
18 Mr. Archer. Not to my knowledge. I was on the board. I would say no, not to
19 the board, actual board meetings.
20 Mr. Biggs. Then that leads me to ask this follow-up question. What do you
21 mean when you say not to the actual board meetings? Was there some other way he
22 was contacting the Burisma board members?
23 Mr. Archer. No, not -- not that I know of.
24 Mr. Biggs. Okay. And so I just want to see if I can --
25 Mr. Archer. Uh-huh.
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Mr. Biggs. -- put this square 1 peg in the round hole again.
2 Mr. Archer. Sure.
3 Mr. Biggs. Is what I understand you to be testifying to, you don't have to
4 comment about what my understanding -- what my understanding. You just say I've got
5 it all screwed up or I'm with you.
6 And that is you had this group of individuals, Blue Star management, whatever
7 they were, that were working actively as problem solvers for, say, Burisma, right?
8 Mr. Archer. Right.
9 Mr. Biggs. And on the other hand, you had what you call D.C., and it became the
10 name brand, which we all agree is Joe -- Vice President Joe Biden. He's over here. And
11 he's making calls to all kinds of folks, 20 of them that you had mentioned. Fair to say?
12 Mr. Goldman. Who's making calls?
13 Mr. Schwartz. What is fair to say?
14 Mr. Goldman. Who's making calls?
15 Mr. Biggs. The Vice President made 20 calls. That's what you said.
16 Mr. Archer. Let's clarify. He did not -- whether it was Joe calling --
17 Mr. Biggs. Or Hunter Biden calling.
18 Mr. Archer. -- there was a call. And that also is over, you know, 10-year
19 partnership. So --
20 Mr. Biggs. But he was the brand, face of the brand, not anybody else?
21 Mr. Archer. Yes.
22 Mr. Biggs. Not anybody else in the Biden family?
23 Mr. Archer. No one else in the Biden family. It was Hunter Biden and him.
24 Mr. Biggs. And not the D.C., what do you call them, the machine or, you know,
25 the machine manipulators, Blue Star agency, right? That was not --
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Mr. Archer. That was complementary t 1 o the brand. That was the operational
2 elements.
3 Mr. Biggs. Sure.
4 Mr. Schwartz. You guys have 2 minutes left on the clock.
5 Mr. Biggs. Back to you guys.
6 Mr. Mandolfo. I just have one question about Jeff Cooper. It falls within, even
7 though it's April 2016, he's a Biden associate. Whether any Biden associates, including
8 Jeff Cooper or anyone from the Biden administration, has communicated in any manner
9 with you regarding the committee's investigation.
10 Mr. Archer. No. No. No.
11 Mr. Mandolfo. Clark, anything you want to add? You've got 1 minute.
12 Mr. Schwartz. You don't have to use every last second.
13 Mr. Biggs. This may never happen again.
14 Mr. Schwartz. This won't happen again but it still --
15 Mr. Biggs. It may never happen again. Never say never.
16 Mr. Mandolfo. That's not in the letter.
17 Thank you. We'll take a break.
18 Mr. Greenberg. We're off the record.
19 [Recess.]
20 Back on the record at 1:36.
21 EXAMINATION
22
23 Q Good afternoon, Mr. Archer.
24 A Thank you.
25 Q Before I start with my questions, I want to come back to documents you
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were shown during the Republicans' r 1 ound of questioning. You were shown various
2 documents that appear to be emails.
3 A Uh-huh.
4 Q The majority staff has represented -- the Republican staff has represented
5 that they come either from the internet or from a hard drive in their possession that they
6 have refused to date to provide to committee Democrats.
7 Mr. Archer, I want to be clear. You are unable to authenticate these emails. Is
8 that correct?
9 A I am unable to authenticate. That is correct.
10 Q You don't have a personal memory or recollection that would allow you to
11 determine whether these emails are, in fact, authentic.
12 A I don't -- I don't know if they're authentic. They're kind of in the genre of
13 what we talked about.
14 Q I'd like to start off by coming back to Burisma, which we've talked about a
15 lot.
16 You mentioned during the Republicans' round of questioning that you were
17 invited to come join the board of Burisma by former Polish President Kwasniewski.
18 Is that right?
19 A Correct.
20 Q And Kwasniewski has a reputation internationally of being a reformer --
21 A Uh-huh.
22 Q -- in Poland.
23 A Uh-huh.
24 Q Did you have an understanding of why he joined the board of Burisma?
25 A Do I have an understanding? I think -- I think he enjoyed the
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compensation. I think 1 that he also had some -- there was some messaging about energy
2 independence from Russia kind of thing.
3 Q And was that something that Mr. Kwasniewski felt important about?
4 A I think so.
5 Q And that's Burisma's role in being a bulwark on behalf of Ukraine against
6 Russia.
7 A Right.
8 Q And is that a pitch that he made to you when he was trying to recruit you to
9 the board of Burisma?
10 A Yes.
11 Q There's been public reporting that at the time in recruiting board members
12 Mr. Zlochevsky, the owner of Burisma, explained that he wanted his company to adapt to
13 Western standards of transparency.
14 Do you recollect whether that's something Mr. Zlochevsky would say?
15 A Yes.
16 Q And can you explain kind of what expertise you brought to the board of
17 Burisma?
18 A So what I brought -- the initial -- the initial engagement, it was really
19 about -- around me raising additional, you know, outside capital, possibly debt capital,
20 expansion capital, from, you know, European, Western, Singapore, U.S. markets, for them
21 to -- I think the initial idea was expansion into the U.S. by a small U.S. company.
22 But as things got, you know, hotter, it was -- it was by, you know, by
23 another -- expand it to other countries that were less sensitive to kind of the -- the public,
24 you know, press and what have you in regards to the company.
25 So I think the first was raise capital.
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The second, when the capital 1 window kind of closed based on really, you know,
2 based on Hunter joining the board, When the capital window closed, it became, "Okay,
3 Devon, repurpose your efforts on expanding internationally."
4 Q And you explained that you had a background in finance and private equity --
5 A Uh-huh.
6 Q -- in Asia?
7 A I did, yeah. I started in Asia.
8 Q So is it fair to say that, you know, you had a lot of business connections --
9 A Yes.
10 Q -- throughout Asia?
11 A Uh-huh, globally.
12 Q But particularly in Asia.
13 A Particularly in Asia, yes.
14 Q And do you remember talking about Burisma to Hunter Biden?
15 A Yes.
16 Q And what --
17 A Just in general.
18 Q And what was -- what was your -- what were your conversations with Hunter
19 Biden about joining Burisma -- about doing work with Burisma?
20 A I don't recall directly. I do know it started under the guise of legal
21 representation and then evolved outside of my -- well, it was in my purview but outside
22 of my direction into a board membership.
23 Q And by that you mean at the time Hunter Biden was of counsel at the law
24 firm Boies Schiller. Is that right?
25 A That is correct.
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Q And is it fair that 1 you talked to Hunter Biden about corporate governance
2 issues that Burisma was facing?
3 A Yes.
4 Q And is it fair that you thought that he and the firm of Boies Schiller might be
5 able to help Burisma with that?
6 A Yes.
7 Q Is that something that you --
8 A We went so far we commissioned a report where the initial reading was,
9 like, a Crowell Report. Then we commissioned a report from Nardello, which still sits in
10 my office -- it's about ten binders wide -- to, you know, to dig into the governance and,
11 you know, vision forward and set new ground rules and all that kind of stuff.
12 So, yeah, it was very -- we were very active. That took quite some time.
13 Mr. Goldman. And he, Hunter Biden, was involved in that process?
14 Mr. Archer. Yes.
15 And Boies Schiller, where he was of counsel, is an international
16 law firm with, you know --
17 Mr. Archer. They're all right. No, I'm just kidding.
18 It's an international law firm with a very good reputation. Is
19 that fair?
20 Mr. Schwartz. He'll stipulate it's the greatest law firm ever.
21 Mr. Archer. That's great.
22 And Mr. Biden, who was an attorney at that law firm, is it fair to
23 say that he had some expertise in issues of corporate governance from a legal
24 perspective?
25 Mr. Archer. Yep. Yes.
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1 I want to turn to --
2 Mr. Goldman. Just on that subject.
3 You said you met Hunter Biden at one of the conventions and then were
4 reconnected to him through your mutual friend, Chris Heinz, in around 2008.
5 Mr. Archer. No. It was Marc LoPresti.
6 Mr. Goldman. Marc LoPresti. Okay.
7 Mr. Archer. Yeah, so I would have met him with Chris Heinz at the convention.
8 Mr. Goldman. I see.
9 Mr. Archer. And then this attorney, LoPresti, introduced us, Marc LoPresti.
10 Mr. Goldman. At that time what did you know Hunter Biden's profession to be?
11 Mr. Archer. Well, he introduced himself as a, you know, a -- he was in the D.C.
12 advisory business, that he had -- he was going to have to leave lobbying or he left
13 lobbying -- I forget at the time -- and shifted from lobbying to advisory, and that he was
14 the -- obviously, he was then interested in private equity. So he was, "Why don't we
15 combine forces?" and blah, blah, blah.
16 Mr. Goldman. You said initially that there were some rumblings that you
17 overlapped --
18 Mr. Archer. At Yale.
19 Mr. Goldman. -- at Yale.
20 Mr. Archer. Yes.
21 Mr. Goldman. Where was he at Yale?
22 Mr. Archer. He was at law school I guess --
23 Mr. Goldman. So he graduated from Yale Law School.
24 Mr. Archer. He graduated from Yale Law School. Two of the years he was -- I
25 think he transferred from somewhere. But two of the years he was there and lived very
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1 close to me.
2 Mr. Goldman. Okay. So by the mid-two thousand teens he was of counsel at
3 Boies Schiller after having a career in lobbying, advising, consulting, and some business
4 ventures?
5 Mr. Archer. Yes, some business ventures. But, yeah, it was all in the legal.
6 And I think he worked for a credit card company, as well.
7
8 Q And we talked about how President Kwasniewski felt that Burisma had a role
9 to play in helping as a bulwark against Russia --
10 A Uh-huh.
11 Q -- which was being aggressive toward Ukraine at the time.
12 Is it fair to say that Hunter Biden kind of shared that thought? He was quoted,
13 for example, in the press as saying that: Helping out a domestic Ukrainian gas producer
14 as a bulwark against Russia -- Russian aggression -- seems like I was on the side of angels.
15 A Right. I think that was the belief.
16 Q So is it fair to say that there was kind of an idealistic fiber to Hunter Biden's
17 interest in Burisma, in part?
18 A In part.
19 Q I want to turn to exhibit 2, which is one of the exhibits your counsel and
20 Republican -- committee Republicans agreed to as one of the exhibits in this TI. I want
21 to turn to point 8 in here.
22 "Burisma has an opportunity here to play the hero if it ignores the artificial market
23 value of their product and plays to the national interest."
24 And so I just -- is that kind of a continuation of that theme of Burisma's role in
25 Ukraine's energy independence?
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A I don't -- I don't really understand 1 that comment. "Opportunity here to
2 play hero if it ignores the artificial market value of their product"?
3 Q I think above it says, "There would be enormous pressure on Burisma to
4 lower prices for the national good."
5 A Oh, oh, I see. I see.
6 Mr. Schwartz. It's okay if you don't understand.
7 Mr. Archer. Yeah, I don't know what that means.
8
9 Q I'd like to point you to point 16 --
10 A Uh-huh.
11 Q -- where in this email it says, "We can actually be of real value here.
12 Developing relationships, bringing U.S. expertise to the company, supplying strategic
13 advice on politics and geopolitical risk assessment."
14 Do you see that sentence?
15 A Yep.
16 Q Does that coincide with your recollection of the value that Hunter Biden felt
17 he could add to the firm Burisma?
18 A That is -- I felt like that was -- yeah, I think collectively we probably felt that.
19 Mr. Goldman. Burisma, as well.
20 Mr. Archer. Yeah, I think that's the -- that was kind of the spirit of it.
21
22 Q I want to point you now to point 20 in this email --
23 A Uh-huh.
24 Q -- where it says, "To that end, they" -- and I believe "they" is a reference to
25 Burisma here -- "need to know in no uncertain terms that we will not and cannot
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intervene directly with domestic 1 policymakers, and that we need to abide by FARA and
2 any other U.S. laws in the strictest sense across the board."
3 Do you see that sentence?
4 A I do.
5 Q And do you understand FARA to be a reference to the Foreign Agents
6 Registration Act?
7 A I do.
8 Mr. Schwartz. You're asking him his current understanding.
9 Mr. Archer. Yes, current understanding, yes. At the time I don't think I was
10 familiar with FARA.
11 But, yes, I am very aware of it.
12
13 Q Is it your understanding that Hunter Biden felt that it was important that his
14 role -- in his role in Burisma he comply with U.S. laws?
15 A Did he -- did I --
16 Q Yes.
17 A I could speculate that he would think that, yes.
18 Q Based on your interactions with him.
19 A Based on interactions, and I don't think he was looking to break any laws.
20 Mr. Goldman. Well, on this, does this refresh your recollection, this email, as to
21 whether or not you heard him say that to you either in writing or verbally as you look at
22 this document?
23 Mr. Archer. Yeah. He -- yes, he was -- he was very -- he was cognizant of his
24 name and his brand and would talk about it, yeah.
25 Mr. Goldman. This doesn't talk about the name and the brand. This just talks
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about 1 his -- making sure that Burisma understands --
2 Mr. Archer. Yes.
3 Mr. Goldman. -- the scope of what he can and cannot do and that he cannot
4 intervene directly with domestic policymakers and need to abide by FARA and any other
5 U.S. laws in the strictest sense across the board.
6 Was that your understanding of both his approach and Burisma's understanding,
7 as well?
8 Mr. Archer. I would say -- I would say yes to the first part of the question. The
9 first part of the statement, yes, I think Burisma was constantly looking for more.
10 And it kind of speaks a little bit to that other email that we used as an exhibit
11 earlier where it's, like, we're going to use my dad's thing and take credit for it. There
12 was an element that he was always trying to avoid that but at the same time trying to
13 prove value. So it was this element of, like, signals.
14 Well, we'll return to that --
15 Mr. Schwartz. Your reference to the name and the brand, what you mean is he
16 had to be scrupulous about not violating the law because that would --
17 Mr. Archer. Right. That's why I refer to the brand.
18 Mr. Schwartz. -- reflect on the name and the brand.
19 Mr. Goldman. All right. So when you were talking about the name and the
20 brand, that because of that --
21 Mr. Archer. Because of that --
22 Mr. Goldman. -- it was your understanding that he was even more fastidious
23 about following the law --
24 Mr. Archer. Right.
25 Mr. Goldman. -- because of the name and the brand --
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1 Mr. Archer. Yes.
2 Mr. Goldman. -- as you describe it.
3 Mr. Archer. It was a -- it was a constant push-pull in that regard, you know.
4 Mr. Goldman. Because Burisma wanted him --
5 Mr. Archer. People always wanted more.
6 Mr. Goldman. Burisma wanted him to do more --
7 Mr. Archer. Right.
8 Mr. Goldman. -- with his connections.
9 Mr. Archer. Correct.
10 Mr. Goldman. And Hunter Biden understood that he could not do that, but he
11 was trying to --
12 Mr. Archer. Balance it.
13 Mr. Goldman. -- balance it and prove value to a company that expected him to do
14 things that --
15 Mr. Archer. Right.
16 Mr. Goldman. -- he was uncomfortable doing.
17 Mr. Archer. Right.
18
19 Q And so as a Biden, it was important for him to follow the law. Is that fair?
20 A That's fair.
21 Q On point 17, on this same email, the previous page, it says, "BSF" -- which I
22 believe is a reference to Boies Schiller Flexner -- "can actually have direct discussions at
23 state, energy, and NSC. They can devise a media plan and arrange for legal protections
24 and mitigate U.S. domestic negative press regarding the current leadership if need be."
25 Is it your understanding that Hunter Biden's plan, in order to make sure he
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followed the law, was to hire a 1 different partner at Boies Schiller to take care of these
2 discussions with U.S. Government entities?
3 A Yeah, that happened.
4 Q And so was the idea that hiring kind of that firm for that mission would help
5 ensure that actions on behalf of Burisma stayed in compliance with the law?
6 A That was the intent, yes.
7 Q And in addition to -- and just to be clear, when he talks about Boies Schiller
8 doing that, he's talking about a different partner at Boies Schiller, not him, right?
9 A Right.
10 Q And in addition to bringing in Boies Schiller to do that, is it also fair that at
11 some point a different -- I think you called it lobbying group -- the Blue Star Group was
12 brought in to handle interactions with U.S. Government officials?
13 A Correct.
14 Q And then when we talked about exhibit 10, which is the email about any
15 progress with DHS --
16 A Uh-huh.
17 Q -- I think you mentioned that there was another lobbyist who was brought in
18 to deal with this visa issue.
19 A Yes.
20 Q And I think you said that it actually was unsuccessful and Mr. --
21 A Yes, he never --
22 Q -- Zlochevsky never got his visa.
23 A Correct. It was a lot of work on that. Never happened.
24 Q So is it fair to say that Hunter Biden helped bring in a group of government
25 affairs and lobbying experts to handle the interactions with U.S. Government agencies?
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1 A Uh-huh, yes, that's fair to say.
2 Q And so I think you referenced a D.C. team.
3 A Uh-huh.
4 Q Is it fair to say that there was a whole D.C. team that handled public affairs
5 on behalf of Burisma?
6 A Yes.
7 Q And that D.C. team was firms like Boies Schiller, Blue Star Group, this
8 lobbyist who was brought in to do the DHS issue. Is that fair?
9 A Fair.
10 Q That's not Joe Biden.
11 A No, that's not -- that's not the D.C. team.
12 Mr. Goldman. You mean Joe Biden is not the D.C. team.
13 Mr. Archer. Right.
14
15 Q So Congress, particular Republicans in Congress, have been talking about
16 Burisma for a long time.
17 A Uh-huh.
18 Q And so forgive me, but I want to bring up 2020.
19 In 2020, going back a few years, the Senate Committee on Homeland Security and
20 Governmental Affairs and the Senate Finance Committee, which were then under
21 Chairman Johnson and Chairman Grassley, Republican chairmen, conducted an extensive
22 investigation in an effort to show some connection between Hunter Biden's work on
23 behalf of Burisma and then Vice President Biden's role in carrying out official U.S. policy in
24 Ukraine.
25 As part of that investigation, there were 46 subpoenas issued, 50 hours of
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transcribed interviews of 1 10 witnesses, reviews of tens of thousands of pages of
2 documents over the course of a year-long investigation.
3 A Uh-huh.
4 Q At the conclusion of that investigation, Senate minority staff issued a report
5 summarizing the findings. And I'd like to read those for you.
6 "Every witness interviewed for this investigation testified that Vice President
7 Biden did not alter United States foreign policy to benefit his son Hunter Biden, and that
8 Hunter Biden's presence on the board of the Ukrainian gas company Burisma had no
9 effect on U.S. foreign policy.
10 "Every witness stated that Hunter Biden and his associates had no role in the
11 formulation of U.S. policy, that Hunter Biden's role did not influence U.S. foreign policy
12 decisions, and that Vice President Biden carried out U.S. foreign policy in the interest of
13 the United States.
14 "The investigation's evidence, set forth in this Minority report, confirms there was
15 no corruption, wrongdoing, or impropriety on the part of" the Vice President."
16 Having read that for you, I have a few questions for you based on your own
17 knowledge and experience.
18 So based on your own knowledge and experience -- your relationship with Hunter
19 Biden, your time on Burisma's board, and the entirety of your knowledge and
20 experience -- do you have any basis to disagree with the conclusion that, quote, "Vice
21 President Biden did not alter U.S. foreign policy to benefit his son Hunter Biden"?
22 A I have no basis to know if he altered. I have no basis to know if he altered
23 policy to benefit his son.
24 Q So you have no knowledge --
25 A I have no knowledge. Sorry.
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1 Q -- of him --
2 A Yes, I have no knowledge.
3 Q -- altering U.S. policy to benefit his son.
4 A I have no knowledge.
5 Q You -- do you have any basis to disagree with the conclusion that "Hunter
6 Biden's presence on the board of the Ukrainian gas company Burisma had no effect on
7 U.S. foreign policy"?
8 A Not directly. You mean like making laws? I don't -- I don't think so.
9 Mr. Goldman. Foreign policy.
10 Mr. Archer. No -- no -- no on foreign policy.
11
12 Q No basis to disagree with that conclusion.
13 A No.
14 Q Do you have any basis to disagree with the conclusion that "Hunter Biden's
15 role did not influence U.S. foreign policy decisions"?
16 A I have -- yeah, I have no basis.
17 Q Do you have any basis to disagree with the conclusion that "Vice President
18 Biden carried out U.S. foreign policy in the interest of the United States"?
19 A I have no basis to judge.
20 Q Or to disagree with that.
21 A Or disagree.
22 Q You have no knowledge -- nothing based on your knowledge or experience
23 contradicts this conclusion.
24 A No.
25 Q Does anything in your knowledge or experience contradict the conclusion
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that "there was no corruption, wrongdoing, or 1 impropriety on the part of Vice President
2 Biden"?
3 A I have no basis to know.
4 Q The report also found, quote, "No --"
5 Mr. Goldman. I'm sorry. You have no basis to know or is that a no?
6 Mr. Archer. I have -- I have -- I would have no idea.
7 Mr. Goldman. No basis --
8 Mr. Schwartz. Are you aware of any wrongdoing by Vice President Biden?
9 Mr. Archer. No, I'm not aware of any.
10
11 Q So based on your knowledge and experience, you have no evidence that
12 would contradict any of these conclusions I just read.
13 A No.
14 Q The report also found, quote, "No evidence that any action of the U.S.
15 Government or any U.S. official was taken to benefit Burisma or Hunter Biden."
16 Do you have any evidence or knowledge that contradicts this conclusion?
17 A No.
18 Q So based on everything you saw, heard, and observed, did you have any
19 knowledge of Joe Biden having any involvement with Burisma?
20 A No -- not direct, no.
21 Q No involvement of Joe --
22 A No.
23 Q -- Biden with Burisma.
24 A No. My only thought is that I think Burisma would have gone out of
25 business if it didn't have the brand attached to it. That's my, like, only honest opinion.
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But I 1 have no basis for any -- never heard any conversations --
2 Mr. Goldman. But that's different than Joe Biden's action.
3 Mr. Archer. Right.
4 Mr. Goldman. You're just talking about that Hunter was on the board.
5 Mr. Archer. Right. And I think that's why --
6 Mr. Goldman. And so --
7 Mr. Archer. -- it was able to survive for as long as it did.
8 Mr. Goldman. By -- because of additional capital or --
9 Mr. Archer. Just because of the brand.
10 Mr. Goldman. Well, I don't understand. How does that have an impact?
11 Mr. Archer. Well, the capabilities to navigate D.C. that they were able to, you
12 know, basically be in the news cycle. And I think that preserved them from a, you know,
13 from a longevity standpoint. That's like my honest -- that's like really what I -- that's like
14 how I think holistically.
15 Mr. Goldman. But how would that work?
16 Mr. Archer. Because people would be intimidated to mess with them.
17 Mr. Goldman. In what way?
18 Mr. Archer. Legally.
19 Mr. Goldman. Uh-huh.
20 Mr. Archer. So on this line of questioning, I have no, like, proof. I have no
21 nothing.
22 Mr. Goldman. Let's talk about legally, I think just pivot to that, because you had
23 said earlier that -- I believe the direct quote is that Burisma felt like they had Shokin under
24 control.
25 Mr. Archer. Correct.
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1 Mr. Goldman. What did you mean by that?
2 Mr. Archer. That was like -- that was a narrative that was -- that was told to me
3 by various of the D.C. team, that the firing of Shokin was bad for Burisma because he was
4 under control.
5 Mr. Goldman. What did you understand "under control" to mean?
6 Mr. Archer. Meaning that they were going to maybe give a slap on the wrist as
7 opposed to --
8 Mr. Goldman. Okay.
9 Mr. Archer. -- you know, seize all his assets.
10 Mr. Goldman. Because there was a lot of characterizations by the Republicans in
11 the first part about a Ukrainian investigation.
12 Mr. Archer. Uh-huh.
13 Mr. Goldman. But you're not actually aware of any investigation by the
14 prosecutor general in Ukraine into Burisma which is different from the
15 British investigation.
16 Mr. Archer. Right. The British investigation I was aware of. I think in the
17 early stages, like the visa and the British, I was made aware of. And then it kind of
18 my -- I had other responsibilities and I was less informed as we moved forward and Blue
19 Star kind of was more involved.
20 Mr. Goldman. Was taken over on that --
21 Mr. Archer. Yeah.
22 Mr. Goldman. -- on that angle of things.
23 Mr. Archer. I was, like, an FYI at first, and then I became less FYI as time
24 progressed.
25 Mr. Goldman. So was it -- Shokin was ultimately removed from office.
107
1 Mr. Archer. Right.
2 Mr. Goldman. Was that a bad thing for -- and the Burisma leaders felt like that
3 would be bad for them?
4 Mr. Archer. That was what I was told.
5 Mr. Goldman. Okay. Maybe go to the --
6 Mr. Schwartz. Not by the Burisma leaders.
7 Mr. Archer. Exactly. Not by the Burisma leaders. I was told by the D.C. team.
8 Mr. Goldman. Got it.
9
10 Q So there was a lot of talk about the December 2015 phone call that you
11 made.
12 A Uh-huh.
13 Q So I want to kind of zoom out and kind of take stock of what was going on at
14 that time.
15 A Sure.
16 Q January 2015 is when Zlochevsky's assets in the U.K. were unfrozen.
17 A Uh-huh.
18 Q Do you remember that?
19 A Yes.
20 Q And it was widely reported that that was because of a lack of cooperation
21 from the Ukrainian prosecutor's office.
22 A Correct.
23 Q And so this goes to this idea that Shokin, who was prosecutor general in
24 2015, was good for Burisma.
25 A Uh-huh.
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1 Q Is that fair?
2 Now, Vice President Biden was vocal about his concerns about corruption in the
3 prosecutor general's office in Ukraine during this time period.
4 A Correct.
5 Q And called for the removal of Shokin from office. Is that correct?
6 A Yes. That was very well publicized.
7 Q Okay. And the Senate minority report, which I referenced earlier,
8 described how Vice President's public calls for the Ukrainian Government to remove
9 Shokin as prosecutor general was part of an anticorruption policy of the U.S. Government
10 with broad bipartisan support, as well as support from allies and international institutions
11 like the EU and the International Monetary Fund.
12 Do you agree with that conclusion?
13 A Sorry. Can you repeat that?
14 Q Yeah. The Vice President's public calls for the removal of Shokin was part
15 of this broad bipartisan, international anticorruption effort in Ukraine.
16 A Yes, I believe that was -- that was part of the conversation.
17 Q But it was bad for Burisma. That was the perception at Burisma, because
18 they had Shokin under their control.
19 A No. Burisma never informed me of that. I just was -- that's what was I
20 told, that it was bad for Burisma. But I don't know. I don't know if it was good or bad.
21 Mr. Schwartz. Told by the D.C. team.
22 Mr. Archer. Yeah, by the D.C. team.
23 Mr. Goldman. But you knew that the funds were unfrozen --
24 Mr. Archer. I did know that, yes.
25 Mr. Goldman. -- because of lack of --
109
1 Mr. Archer. Cooperation.
2 Mr. Goldman. -- cooperation from the Ukrainian prosecutor.
3 Mr. Archer. Yes.
4 Mr. Goldman. So if you heard that from the D.C. team and then you thought
5 about your understanding of what happened with those funds, your own personal
6 knowledge was consistent with what you were hearing --
7 Mr. Archer. Right.
8 Mr. Goldman. -- from the D.C. team.
9 Mr. Archer. Right.
10
11 Q And the same minority report noted that State Department officials
12 interviewed in this investigation explained that Shokin did not pursue corruption
13 investigations against Burisma's owner, effectively shielding the owner from prosecution,
14 and that removing Shokin made an investigation into Burisma more, not less, likely.
15 It sounds like that's in accordance with --
16 A Uh-huh.
17 Q -- your general understanding of what was going on at the time.
18 A But quickly after, where all of his assets were seized, Zlochevsky, and he had
19 to leave Ukraine.
20 Q But so do you have any basis to believe that Vice President Biden's call for
21 Shokin's removal was driven by anything other than the U.S. Government's anticorruption
22 policy in Ukraine?
23 A Yeah, I have no -- I have no other -- I have no proof or thought that
24 that -- that he fired him for that reason.
25 Q You have no reason to believe otherwise.
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1 A I have no reason to believe.
2 Q And so kind of going back to the call in Dubai in December of 2015, you
3 explained that Zlochevsky and Vadym left --
4 A Uh-huh.
5 Q -- to go make a call --
6 A Uh-huh.
7 Q -- that you did not hear. Is that right?
8 A Right.
9 Q And I think you described that you were told that the call was a call to D.C.
10 A Correct.
11 Q But you don't know to who that was.
12 A I do not have -- I do not know.
13 Q You don't know whether it was to the D.C. team that we talked about earlier.
14 A I do not know.
15 Q I also -- okay. I want to ask you now about an FBI Form 1023 --
16 A Uh-huh.
17 Q -- that Chairman Comer and Senator Grassley recently made public, on July
18 20th.
19 A Right.
20 Q Do you -- have you seen that form?
21 A Yeah.
22 Q Is it your understanding that in this form an FBI confidential human source is
23 reporting years after the fact statements supposedly made by executives at Burisma,
24 including Mykola Zlochevsky?
25 A Yes.
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1 Q That's what it represents.
2 A Yeah, yeah, absolutely.
3 Q In this form, the FBI confidential human source appears to relate a
4 statement attributed to Mykola Zlochevsky that says, "It costs five to pay one Biden and
5 five to another," the mark "million" in parentheses.
6 Do you remember reading that?
7 A I do. I do.
8 Q Were you ever made aware of Mr. Zlochevsky paying $5 million to two
9 different Bidens?
10 A No, I'm not. I would assume he's probably talking about me and Hunter,
11 but I don't know. But I don't know anything about those five.
12 Q Based on your knowledge, including your work for Burisma's board, your
13 conversations with Hunter Biden, Mykola Zlochevsky, and others at Burisma, does this
14 allegation strike you as credible, meaning the allegation that there were two $5 million
15 payments to two Bidens?
16 A I think it's -- the agent explains it pretty well on the bottom. And it's similar
17 to, you know, Hunter Biden taking credit for his dad's visit. It's like sending a signal.
18 So he's bragging to this guy that they paid, you know, where he probably paid $5
19 million or whatever, $6 million altogether, you know, so that, you know, just to show
20 he's -- well, there's a lot of -- and he explains it. I forget. There's a word in the
21 document.
22 Mr. Schwartz. You're guessing.
23 Are you aware of a $5 million payment --
24 Mr. Archer. No.
25 Mr. Schwartz. -- to one Biden and a $5 million payment to another?
112
1 Mr. Archer. No.
2 Mr. Schwartz. You ever hear anything about that?
3 Mr. Archer. In that document.
4
5 Q Other than that document.
6 A The $5 million and the $5 million, I first saw that in the document.
7 Q And so I think the point you're referring to is that in this document the
8 confidential human source says he cannot opine to the veracity of the allegations and
9 notes that it's not unusual for Ukrainian business executives to brag or show off.
10 A Correct.
11 Q Is that consistent with your understanding?
12 A It's consistent of what I was just explaining in both directions.
13 Q If someone were to conclude from this that this is evidence, this Form 1023
14 is evidence that Joe Biden was bribed by Mykola Zlochevsky, would you disagree with
15 that conclusion?
16 A Yeah, I would.
17 Q So in talking about how Zlochevsky and other Ukrainian businessmen brag --
18 A Uh-huh.
19 Q -- exaggerate, tell fibs, is that fair?
20 A Yep, very similar to D.C. operators.
21 Q Similar to D.C. operators.
22 In another sense, you know, is it fair to say that people in D.C. like to give off the
23 impression of access that they don't necessarily actually deliver on?
24 A Yep, correct. And in Ukraine, in Russia they brag about how much -- they
25 brag about bigger bribes than they actually give. So it's pretty kind of similar symbiosis
113
1 there.
2 Q Now, I want to come back to exhibit 2, which you discussed, and point 18,
3 where it says, "The announcement of my guy's upcoming travels should be characterized
4 as part of our advice and thinking -- but what he will say and do is out of our hands. In
5 other words, it could be a really good thing or it can end up creating too great an
6 expectation. We need to temper expectations regarding that visit."
7 A Yep.
8 Q So to the extent you remember, would this have been a comment about an
9 upcoming trip of Hunter Biden -- of then Vice President Joe Biden to Ukraine?
10 Mr. Schwartz. Again, we can't authenticate the documents. We don't know
11 that it was said.
12 Are you representing that this accurately reflects --
13 I'm asking about Mr. Archer's recollection and whether
14 there -- shortly after April 12th, 2014, there was an upcoming visit of Vice President Joe
15 Biden to Ukraine.
16 Mr. Schwartz. So your question is chronologically whether there was an
17 upcoming visit of Vice President Biden?
18 Yes.
19 Mr. Schwartz. In April 2014?
20 Yes.
21 Mr. Archer. Yeah, this is back to my point from earlier.
22
23 Q And to your knowledge, did Hunter Biden have any role whatsoever in
24 getting his father, the Vice President, to visit Ukraine?
25 A I have no idea. I have no knowledge.
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Q 1 You have no basis to believe that Hunter Biden --
2 A No.
3 Q -- had any role in his --
4 A I have no basis to believe.
5 Q In fact, this statement, if it is actually a statement from Hunter Biden, says,
6 "He will say" -- "What he will say and do is out of our hands."
7 Does it accord with your recollection that Hunter Biden had no ability to influence
8 what his father would do or say on official trips to Ukraine?
9 A Yeah, I have -- I have no -- I have no basis to understand what his father and
10 his conversations were about policy in Ukraine. But, as you can see, that seems pretty
11 familiar, that, you know, he can't influence it but take credit for it.
12 I mean, that was -- it's literally the back and forth between the last exhibit and this
13 exhibit. That's what goes on. People send signals and those signals are basically used
14 as currency. And that's kind of how a lot of D.C. operators and foreign tycoons and
15 businessmen work.
16 Q In other words, it's not that Hunter Biden was influencing U.S. policy. It's
17 that Hunter Biden was falsely giving the Burisma executives the impression that he had
18 any influence over U.S. policy.
19 A I think that's fair.
20 Q And in exhibit 3, there appears to be a quote from Vice President Joe Biden
21 about fighting the cancer of corruption and about the importance of Ukraine reducing its
22 crippling dependence on Russia for supplies of natural gas.
23 A Uh-huh.
24 Q Do you see that?
25 A Yes.
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Q And there's a 1 statement here that seems like it comes from you that says,
2 "We need to make sure this ragtag temporary government in the Ukraine understands
3 the value of Burisma to its very existence."
4 Do you understand what that sentiment means?
5 A Yes. I think it was I was a believer in Burisma at the time.
6 Q Meaning that you believed that --
7 A Yeah, I thought we were doing something good. It's all funny in retrospect.
8 Q In terms of working toward Ukraine's energy independence.
9 A Yeah. A fresh company that was doing incredibly well and incredibly
10 efficient in their, like, capacity and hit rate and all that stuff. So it was -- yeah.
11 Q And then above that there's a comment that's attributed to Hunter Biden
12 that says, "You should send to Vadym -- makes it look like we are adding value."
13 A Yep.
14 Q "Makes it look." Does that mean that he's actually adding value or that
15 he's claiming credit for something he has no control over?
16 Mr. Schwartz. Again, are we accepting this as genuine?
17 I'm asking whether --
18 Mr. Goldman. Commonsense interpretation.
19 Mr. Archer. The commonsense interpretation is taking credit where credit is not
20 due.
21
22 Q In other words, Hunter Biden would take credit for his father's actions, even
23 though he had no role or influence in those actions.
24 A He would take credit for them.
25 Q Despite having no role in them or no influence over them.
116
1 A Yeah.
2 Q Is that fair?
3 A Yeah, I can't -- I don't know --
4 Q Based on what you knew --
5 A Based on what I knew, yes.
6 Q Did Hunter Biden ever tell you, "I can get my dad to change U.S. policy"?
7 A No.
8 Q Are you aware of Hunter Biden ever asking his dad to change foreign policy?
9 A No.
10 Q Are you ever -- were you ever privy to any conversations between Hunter
11 Biden and Joe Biden in which they discussed how --
12 A No.
13 Q -- Joe Biden would --
14 A No.
15 Q -- take official actions on behalf of Hunter Biden?
16 A No.
17 Q So is it fair to say that Hunter Biden was selling the illusion of access to his
18 father?
19 A Yes.
20 Q So when you talk about selling the brand --
21 A Uh-huh.
22 Q -- it's not about selling access to his father. It's about selling the illusion of
23 access to his father. Is that fair?
24 A Is that fair? I mean, yeah, that is -- I think that's -- that's almost fair.
25 Q Almost fair. Why almost fair?
117
A Because there -- there is -- 1 there are touch points and contact points that I
2 can't deny that happened, but nothing of material was discussed. But I can't go on
3 record saying that there was -- there was communications.
4 Mr. Goldman. You mean --
5 Mr. Archer. Yeah, yeah.
6 Mr. Goldman. -- hello and --
7 Mr. Archer. Yeah, there were communications.
8
9 Q By "touch points," you mean Hunter Biden talked to his dad a lot. Is that
10 fair? Is that right?
11 A He talked to him every day.
12 Q He was his son.
13 A Correct.
14 Q Father and son talked all the time.
15 A Uh-huh.
16 Q In 2015, in spring of 2015, Beau Biden died. Is that right?
17 A That's correct.
18 Q Did the frequency of interactions between Hunter Biden and his father
19 increase after Beau Biden's death?
20 A I would say yes.
21 Q Did Joe Biden regularly check in on his son who's admitted he had issues
22 with --
23 A Every day.
24 Q -- drugs and other issues?
25 A Uh-huh.
118
1 Q Yes?
2 A Yes. Sorry.
3 Q In the context of those conversations, did you ever witness them discussing
4 the substance of Hunter Biden's business?
5 A No.
6 Mr. Goldman. Can we just stop on the Beau point a minute?
7 Mr. Archer. Uh-huh.
8 Mr. Goldman. Did you know Beau?
9 Mr. Archer. I did.
10 Mr. Goldman. Do you recall when he got -- when his health really started
11 deteriorating?
12 Mr. Archer. Yes.
13 Mr. Goldman. What impact did that have on Hunter Biden?
14 Mr. Archer. He was distraught. Definitely a huge impact. And, obviously, you
15 know, it cascaded into -- into a relapse.
16 Mr. Goldman. And --
17 Mr. Archer. Lasted a long time.
18 Mr. Goldman. That -- that last --
19 Mr. Archer. Lasted a long time.
20 Mr. Goldman. Yeah. And so you were still in a business relationship with him
21 during the period when Beau was sick and then after he died, when Hunter relapsed,
22 right?
23 Mr. Archer. Right.
24 Mr. Goldman. And what impact could you see that Beau's death had on then
25 Vice President Biden?
119
Mr. Arche 1 r. Yeah. I think absolutely devastated, the same, you know, the
2 same -- very similar effect, obviously, about the relapse. But he was, yeah, devastated.
3 Mr. Goldman. So he died -- Beau died in the spring of 2015. Do you remember
4 how long he had been really --
5 Mr. Archer. Sick?
6 Mr. Goldman. -- sick?
7 Mr. Archer. It was -- the deterioration was quick at the end.
8 Mr. Goldman. Yeah.
9 Mr. Archer. So there was obviously always the notion of that he had gotten this
10 diagnosis, but it was -- he was fairly functional. And then it was -- then it was a very
11 quick, like, you know, you could really see it at the end.
12 So I'm thinking about, like, summer of -- so that was out. We were out to, you
13 know, and like the last time I saw Beau was we had ice cream in South Hampton with the
14 kids. And he was, like, on the way out, and it was, yeah, it was really sad.
15 And, obviously, his dad there was and he was extremely -- it was a very, very
16 difficult time for them.
17 Mr. Goldman. Was that right before he passed away --
18 Mr. Archer. Yeah.
19 Mr. Goldman. -- or was that the previous summer?
20 Mr. Archer. It was like -- what month was it? Spring of -- of -- it was like
21 September, like, yeah, like Indian summer. So it was probably -- I can't remember.
22 Mr. Goldman. '14?
23 Mr. Archer. Yeah.
24 Mr. Schwartz. '15, May 30th, 2015.
25 Mr. Archer. '15.
120
Mr. 1 Goldman. That's when he died, right?
2 Mr. Archer. Yeah.
3 Mr. Goldman. You were saying --
4 Mr. Archer. Yeah, so it was probably September, yeah.
5 Mr. Goldman. And so was -- you obviously were spending a fair amount of time
6 with Hunter. Were the conversations between Hunter and his father primarily centered
7 at that point around Beau's illness and how they were both coping? Is that --
8 Mr. Archer. Yeah. A lot of logistics and, you know, travel for between, you
9 know, his treatments and who was going to be with him that week and a lot of it.
10 Mr. Goldman. And then after just the grief and the sorrow --
11 Mr. Archer. Yeah.
12 Mr. Goldman. -- and checking in? Is that --
13 Mr. Archer. A lot, yeah, and then the checking in.
14 Then I think, yeah, the optempo of the comms, when it was every other day, it
15 became every day from kind of that -- those days forward until it seems like they had a
16 little bit of a hiatus, but I was out of the picture by then.
17 Mr. Goldman. And you -- to your knowledge, you know, none of the times that
18 you would ever overhear Vice President Biden calling Hunter was to -- was with the
19 purpose of discussing business with him.
20 Mr. Archer. It was, yeah, not related to commercial business, politics, that kind
21 of stuff.
121
1
2 [2:20 p.m.]
3 Mr. Goldman. Family.
4 Mr. Archer. Family, politics, you know, and geography, fishing, whatever
5 the -- but --
6 Mr. Goldman. But not Hunter's business ventures.
7 Mr. Archer. -- only the practical -- yeah -- the practical stuff that I would hear
8 would be politics-related. Like, I think he -- I think his dad really respects his -- respected
9 or still respects -- you know, his opinion on political things.
10 Mr. Goldman. Unrelated to whatever --
11 Mr. Archer. Yeah.
12 Mr. Goldman. -- business dealings you guys had together.
13 Mr. Archer. Yeah. I don't think there's much -- he doesn't have much expertise
14 in the world of business.
15
16 Q Joe Biden, that is?
17 A Right.
18 Q I want to come back -- there was a lot of conversation in the Republicans'
19 hours of questioning about these phone calls --
20 A Uh-huh.
21 Q -- around the presence of business partners.
22 A Right.
23 Q I think you've discussed the Dubai call --
24 A Yes.
25 Q -- which you didn't actually --
122
1 A That one I did not --
2 Q -- hear at all.
3 A Yes.
4 Q There was a call in Paris --
5 A Uh-huh.
6 Q -- and you mentioned a call with Jonathan Li.
7 A Yes.
8 Q During those calls -- let's start with the one in Paris.
9 A Sure.
10 Q -- did Joe Biden -- was Joe Biden calling Hunter Biden? Was Hunter Biden
11 calling Joe Biden?
12 A I believe on the Paris, it was he called Hunter.
13 Q He called Hunter.
14 A Uh-huh.
15 Q One of the regular kind of check-in calls?
16 A Uh-huh.
17 Q You said he'd call him every day.
18 A Yep.
19 Q And Hunter Biden picked up --
20 A Correct.
21 Q -- and put him on speakerphone? Is that correct?
22 A Yes.
23 Q Did Joe Biden know he was on speakerphone?
24 A Yes, I would say he knew. I don't -- I have no basis to know, but he would
25 say -- you know, he'd say, "Hey, say hello to" -- you know, it's great in Paris, the weather's
123
1 this. And everybody would know. And then that was over.
2 Q So Hunter Biden would tell his dad --
3 A Yeah.
4 Q -- he's in Paris, the weather's great?
5 A Yeah, he never -- there was no ambushing in the sense that, like, Hunter
6 wouldn't just, like, be like, listen, this is my dad.
7 Q And he said, "Say hello to," and he would just say the names of the people
8 there?
9 A I don't recall directly, but, yes, something like that.
10 Q And did you ever have the impression that Joe Biden actually knew who
11 these people were? Or was he just telling -- saying hello, kind of, at Hunter Biden's
12 invitation?
13 A You know, sometimes yes, sometimes no, but generally no.
14 Q Generally he didn't know these people?
15 A Generally it was a very good political, you know, action.
16 Q So he said, "Say hello to Louis" --
17 A Yeah.
18 Q -- and Joe Biden would say, "Hello, Louis," without knowing who Louis was.
19 Is that fair?
20 A Sometimes, yes.
21 Q And on this Paris call -- because let's take them --
22 A Uh-huh.
23 Q -- was there any discussion of Hunter Biden's business in Paris or this
24 business meeting that they were having?
25 A No.
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Q The conversation 1 was about the weather --
2 A The weather and niceties, all of it -- any -- as it goes for any of the -- there
3 was never a discussion of cap tables, and that wasn't -- you know, that was not the
4 purpose of the calls.
5 Q But beyond cap tables, there wasn't any conversation of "you need to help
6 me with this business I have with these people," or, "you need to take this action or that
7 action to help these business partners of mine."
8 A Correct.
9 Q That never happened.
10 A That did not happen.
11 Q Jonathan Li --
12 A Yes.
13 Q -- that call, was that an inbound call, an outbound call? To the extent you
14 remember.
15 A Yeah, to the extent I remember, that -- I don't know, but I know there was a
16 "hello." There was, like -- you know, they ended up having coffee, I think, so he
17 might've known him.
18 Q Jonathan --
19 A Jonathan Li and President Biden had coffee. So it might've been, like, after
20 they had coffee, and he was saying hello, so there was, like, some familiarity.
21 Q Where was that, that they had coffee?
22 A They had coffee in Beijing.
23 Q So it was reported that that meeting was kind of just a handshake --
24 A Yeah.
25 Q -- meeting in --
125
1 A Right.
2 Q -- Beijing --
3 A Yes.
4 Q -- while --
5 A I wasn't there, so I'm not -- I don't -- I just -- I read the reporting and heard
6 from Hunter and Jonathan. So he might've been saying, "Oh, I'm with Jonathan Li again.
7 Remember, you met him in Beijing."
8 Q Although, isn't it fair to say the Vice President probably shakes hands with
9 thousands of people over the course of the Vice Presidency?
10 A That is fair to say.
11 Q So did you have any reason to believe that, on that call, Joe Biden actually
12 knew who Jonathan Li was?
13 A I have no basis.
14 Q And was there any discussion of BHR or Hunter Biden's business with
15 Jonathan Li?
16 A Yeah -- oh, you mean with --
17 Q While Joe Biden was on the phone.
18 A No.
19 Q Was there any -- did you ever witness Hunter Biden asking Joe Biden to do
20 something for -- you know, to help BHR or help out Jonathan Li?
21 A A college recommendation. She didn't get in.
22 Mr. Goldman. For who?
23 Mr. Archer. I think for his daughter, to Georgetown. It didn't work.
24
25 Q Was it a kind of nonpersonalized letter of recommendation?
126
A It was a -- I don't -- I actually don't 1 remember it. But I remember the -- I
2 remember he got him to write him a recommendation -- her, the daughter.
3 Q Did he take any official action on behalf of BHR?
4 A No.
5 Q Was he ever asked to take an official action on behalf of BHR?
6 A No.
7 Q So is it fair to say that these conversations that my Republican colleagues
8 asked you about where Hunter Biden had Joe Biden on the phone around business
9 partners, that there was nothing in those conversations beyond the exchange of
10 pleasantries?
11 A That is correct.
12 Q And we talked earlier about, kind of, Hunter Biden liking to project this
13 image, this illusion, of access to his father.
14 A Uh-huh.
15 Q Was this just part of his effort to say, "Hey, I'm Joe Biden's son, and I talk to
16 Joe Biden a lot"?
17 Mr. Schwartz. If you know. I mean, don't speculate about what --
18 Mr. Archer. Right. I don't want to speculate about what he was thinking. But
19 I think it's just, you know, just common sense and, you know, that it's the brand and
20 that's the value and -- yeah. I don't --
21
22 Q But it was just about --
23 A It was about projecting who he was.
24 Q But, in fact, Hunter Biden -- Joe Biden never helped out Joe Biden's -- sorry.
25 Scratch that.
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In fact, Hunter Biden never asked 1 his father to take official actions on behalf of his
2 business partners?
3 A He did not. He did not ask him -- to my knowledge, I never saw him say, do
4 anything for any particular business.
5 Q And you're not aware of Joe Biden ever doing anything to help his son's
6 business partners?
7 A No. I think that the calls were -- that's what it was. They were calls to talk
8 about the weather, and that was signal enough to be powerful.
9 Q So this, again, was about projecting this illusion of access to his father. Is
10 that right?
11 A Correct.
12 Q And then, you know, we talked -- you talked during the Republicans' hours of
13 questioning and during this hour of questioning about Hunter Biden's various business
14 ventures with you.
15 A Uh-huh.
16 Q And I understand that in December 2020 you received a grand jury subpoena
17 as part of the Delaware-led investigation into Hunter Biden, the investigation led by U.S.
18 Attorney David Weiss.
19 Mr. Schwartz. So where are you going with this? Because anything in this time
20 period is out of scope.
21 I just want to establish that Mr. Archer received a grand jury
22 subpoena, participated in an interview, and answered the questions honestly and
23 fulsomely.
24 Mr. Schwartz. He did. He appeared. He answered questions in a voluntary
25 proffer. And then he testified pursuant to an immunity order in the grand jury.
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1
2 Q And at that meeting when you provided testimony, there were people from
3 the Delaware U.S. Attorney's Office --
4 A Uh-huh.
5 Q -- Department of Justice's Tax Division, Department of Justice's National
6 Security Division, the FBI, and the IRS. Is that right?
7 A Correct.
8 Q And you answered all the questions they had for you fulsomely and
9 truthfully. Is that right?
10 A Yes.
11 Mr. Goldman. As you are doing here today?
12 Mr. Archer. Yes.
13 And did the questions they have for you generally cover the same
14 subject areas that we're covering here today?
15 Mr. Schwartz. Don't get into the subject --
16 Mr. Archer. Okay.
17 Mr. Schwartz. -- matter of -- I mean, you can answer that question.
18 Mr. Archer. Yes.
19 Mr. Schwartz. Don't get into the subject matter of your --
20 Mr. Archer. It was, like, a --
21 Mr. Schwartz. -- interviews with law enforcement.
22 Mr. Archer. Yeah. It was, like, a, I would say, 20-percent overlap. There were
23 a lot of other directions.
24 Meaning, they covered more --
25 Mr. Archer. Yeah, it covered more.
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-- than 1 what we have covered here?
2 Mr. Archer. It was also 18 hours, I think.
3 Mr. Goldman. How was the temperature?
4 Mr. Archer. It was hot too. It was kind of hot. Not as hot as this room.
5 Mr. Schwartz. It might've felt like it.
6 Mr. Archer. Felt like it, yeah.
7 Let's go off the record. I think we're arriving at the --
8 Mr. Goldman. Let's, yeah, take a quick break.
9 -- end of our first hour.
10 Mr. Archer. Okay.
11 And so we'll take a quick break and then pick back up and finish.
12 Mr. Archer. Yeah.
13 [Recess.]
14 Ready to go back on the record?
15 Mr. Schwartz. Yep.
16 Mr. Archer, before the break, you were asked a question along the lines of, was
17 Hunter Biden selling access to his father or was he selling the appearance of access to his
18 father? Do you recall that question?
19 Mr. Archer. Yes.
20 Mr. Schwartz. My question is, was it that Hunter Biden was creating the
21 appearance of access to his father or that he was creating the appearance of access to
22 Washington, D.C.?
23 Mr. Archer. It was the -- overall, it's the appearance to all of D.C.
24 Mr. Schwartz. And part of his perceived value-add was the ability to navigate
25 Washington --
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1 Mr. Archer. Right.
2 Mr. Schwartz. -- and access to various people and --
3 Mr. Archer. He spent a career in D.C., and he carried the Biden name. So I
4 think that's -- that's it.
5 Mr. Goldman. So is the difference that you're trying to draw out here that he
6 actually did have a lot of his own contacts and experience in navigating Washington, D.C.,
7 and so that was actually something that he provided to Burisma?
8 Mr. Archer. Yes.
9 Mr. Goldman. And then, separately --
10 Mr. Archer. He was helpful.
11 Mr. Goldman. And then, separately, he wanted to also give off the illusion of
12 having access to his father as the Vice President?
13 Mr. Schwartz. Well, don't speculate on what someone else wanted unless you
14 two talked about it.
15 Mr. Goldman. Well, I'm just trying to understand why you're making this -- the
16 only reason to make this clarification is because he has his own experience in lobbying
17 and D.C. connections from his own professional experience.
18 Mr. Schwartz. Yeah.
19 Mr. Goldman. But what you said about his relationship and connection and use
20 of his father remains the same, which is that he never asked for anything from his father,
21 never received anything from his father, and his father was not involved in any of these
22 business dealings, nor making policy based on whatever his son's business dealings were.
23 Mr. Schwartz. So, if you separate the prelude to that question from the actual
24 question, I think he'll agree with the question. Try it again.
25 Mr. Goldman. So he was giving the impression that he had --
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Mr. Schwartz. It is still 1 true that you are not aware that Hunter Biden ever
2 discussed policy with his father, discussed business with his father, influenced American
3 policy for purposes of his business or otherwise caused the Vice President or asked the
4 Vice President to do anything improper, right?
5 Mr. Archer. That's my understanding.
6
7 Q So Hunter Biden did help set Burisma up with Boies Schiller, with Blue Star
8 Group, with the DHS lobbyists, with a whole government affairs and lobbying team in D.C.
9 Is --
10 A Correct.
11 Q -- that right?
12 A That is correct.
13 Q That was access that he provided to them to D.C. public affairs and lobbying
14 groups. Is that correct?
15 A That's correct.
16 Mr. Goldman. And that was what he had -- in that statement, you know, that
17 summary of what he was bringing to Burisma, that was included in that explanation,
18 correct?
19 Mr. Archer. Yes. There's a portfolio of access.
20
21 Q But he did not provide the Burisma executives with actual access to his
22 father. The access to his father was an illusion of access to his father. Is that right?
23 A Right. An illusion of access to his father, other than social -- you know,
24 socials. Because Vadym was at dinner, for instance, so I can't --
25 Mr. Goldman. Right, to say -- when they socially said "hello." Is that what
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1 you're referring to?
2 Mr. Archer. They had dinners together, et cetera.
3 So it was -- it was -- like I said from the beginning, there was never -- they
4 didn't -- it's just like when, you know, Jamie Dimon comes in to talk about an IPO. You
5 know, he doesn't know what the pricing's going to be or when the date's going to be.
6 It's just a -- it's a conversation, and that was never part of it.
7 But the actual, tangible assets of the portfolio were, you know, lobbying and a
8 career in D.C.
9 Mr. Goldman. Let me ask you a followup. You've used this Jamie Dimon
10 analogy, and I think you used it during the majority's time of questioning in reference to
11 your description of the brand.
12 Mr. Archer. Uh-huh.
13 Mr. Goldman. Just so I can understand what you mean by that, let's take the
14 Trump family.
15 Mr. Archer. Sure.
16 Mr. Goldman. Would you say that the Trump family has a brand?
17 Mr. Archer. Absolutely.
18 Mr. Goldman. And would you say that Donald Trump, Jr., gets access and --
19 Mr. Schwartz. This is so out of scope. He doesn't know anything about the
20 Trump family.
21 Mr. Goldman. Well, did you play golf with Donald Trump?
22 Mr. Archer. No, I haven't played golf with him.
23 Mr. Goldman. You never did play golf with Donald Trump?
24 Mr. Archer. Oh, I did play behind him. Sorry. Scratch that. I played behind
25 him. And then he came up to me at the clubhouse and talked -- he didn't know who I
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1 was, but he didn't like my, like, athletic shorts.
2 Mr. Goldman. It is within the scope. If you're going to bring up Jamie Dimon,
3 then we get to clarify what he means by "the brand."
4 Mr. Archer. That's fine.
5 Mr. Schwartz. You can ask him that without getting into other people that are
6 outside of scope.
7 Mr. Goldman. So -- well, I think you can give a little leeway here, Mr. Schwartz.
8 This is not going into his criminal case or anything that we had nothing to do with
9 negotiating it.
10 But I do think it's important to provide proper context for, when you're talking
11 about the Biden brand, that there's another brand that you just described, which is the
12 Trump brand. And is it your --
13 Mr. Schwartz. You want to start drawing equivalencies between the Biden brand
14 and the Trump brand?
15 Mr. Goldman. I would like for you to let me ask the question, which is: Would
16 you say that Donald Trump's children benefit from their last name being Trump?
17 Mr. Archer. I would speculate to say yes.
18 Mr. Goldman. I'll leave it at that.
19
20 Q You mentioned, kind of, social dinners. You talked about two dinners at
21 Cafe Milano.
22 A Uh-huh.
23 Q I just wanted to go over those quickly.
24 A Sure.
25 Q The second dinner, the one in 2015, that was a dinner about the World Food
134
1 Programme? Is that right?
2 A Yes, that was the -- there was an attendee from the World Food Programme.
3 Q And Hunter Biden is on the board of the World Food Program USA or
4 something along those lines?
5 A I think he was along -- in 2015, he was.
6 Q Okay.
7 And The Washington Post reported on that dinner, and their reporting was that it
8 was organized to discuss food security issues in connection with Hunter Biden's role as
9 chairman of World Food Program USA.
10 Does that sound right?
11 A That does.
12 Q Okay.
13 A That's probably where I remember it from.
14 Q And The Washington Post also reported that President Biden made an
15 appearance at this dinner, which is also what you testified to. But the Washington Post
16 reporting was that President Biden only spoke to his longtime friend, Father Alex
17 Karloutsos, a prominent member of the Greek Orthodox Church, at that dinner.
18 Does that coincide with your memory?
19 A No.
20 Q What do you remember?
21 A I remember just a regular dinner where there was a table of conversation
22 and -- you know, talked about the World Food Programme probably. I don't recall, but
23 it wasn't -- it wasn't -- that's not correct reporting.
24 Q Did Hunter Biden or any of his business associates talk about their business
25 together at that dinner?
135
1 A No.
2 Q Was the conversation just about the World Food Programme and, kind of,
3 general pleasantries?
4 A Again, I don't recall -- I don't -- it was a long time ago. I don't recall the
5 specific conversation. But I would -- you know, like I've said across the board, there was
6 no business-deals specifics discussed ever at any of these things, but it was -- it was a
7 nice, you know, conversation.
8 Q And is that also the case at the first Cafe Milano dinner, that the
9 conversation was not about Hunter Biden's businesses with his various business
10 associates?
11 A Right. It was dinner conversation.
12 Mr. Goldman. And just to be clear, Joe Biden had nothing to do with any of your
13 business ventures with Hunter Biden, right? He was --
14 Mr. Archer. As far as ownership?
15 Mr. Goldman. Yeah, or --
16 Mr. Archer. No.
17 Mr. Goldman. -- investing or anything, to your knowledge.
18 Mr. Archer. Not to my knowledge.
19 Mr. Goldman. And in all this exhibit 1, 260 pages, you didn't see a single wire
20 transfer to Joe Biden, did you?
21 Mr. Archer. I -- no, I have not seen a wire transfer to Joe Biden.
22 Mr. Goldman. Give us 1 second.
23 Mr. Archer. Uh-huh.
24 [Discussion off the record.]
25 Mr. Goldman. Oh, I do have a question for you.
136
1 Mr. Archer. Sure.
2 Mr. Goldman. We can go back on the record.
3 Because of your experience at the beginning of your career working in Asia, did
4 you have more -- would you say you had more access than the average private-equity
5 businessman, you know, working in the United States to that part of the world?
6 Mr. Archer. Yes.
7 Mr. Goldman. You have greater familiarity?
8 Mr. Archer. Yes.
9 Mr. Goldman. And this private-equity deal with Bohai was used -- it was using
10 some of Chinese investors' money to source deals outside of China?
11 Mr. Archer. That was the original intent, yes. And then there was a -- the
12 original intent was outbound private equity. And then there was a policy shift, and
13 there was a small window of privatizations, so -- the Sonipak Marketing and some other
14 privatizations. And then --
15 Mr. Goldman. Where were those privatizations?
16 Mr. Archer. Those were, like -- those were, like, privatizations of divisions of
17 Chinese companies.
18 Mr. Goldman. In China?
19 Mr. Archer. In China. So there was -- what happened was, the capital controls
20 tightened, so a shift in strategy based on policy from China. So they had --
21 Mr. Goldman. Chinese policy made it more --
22 Mr. Archer. Yeah. And then CFIUS got a lot tighter with the U.S., so it was
23 harder -- you know, so those assets were not able to be purchased. And it just -- and
24 then, again, like every business dealing that Hunter touched, it just turned into -- all just
25 went by the wayside.
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Mr. Goldman. What 1 was his involvement with that venture?
2 Mr. Archer. He was on the board initially.
3 Mr. Goldman. Initially.
4 Mr. Archer. Yes. He was on the board initially, and I think it was the -- I
5 corrected ourselves. It was not the Schweizer book, but it was the -- I believe it was the
6 Navy issue was when he resigned from the board.
7 Mr. Goldman. And was that around the same time that Beau's death --
8 Mr. Archer. Yeah.
9 Mr. Goldman. -- and thereafter?
10 Mr. Archer. Yeah.
11 Mr. Goldman. So he was going through his personal issues as well?
12 Mr. Archer. Correct.
13 Mr. Goldman. Okay.
14 But, originally, it was your entree into China? Is that how --
15 Mr. Archer. It was actually Thorn- -- well, it was -- the direct relationship was
16 like, "Oh, this guy's worked in private equity in Asia." And then some -- you know, a
17 mutual partner of Rose- -- it was called Rosemont Solebury Co-Investment
18 Fund -- introduced us to Thornton and said, "Oh, they're thinking about, you know,
19 setting up these private equity funds in China. You've got experience in Asia" -- even
20 though it wasn't in the same country. "Why don't you go over and meet them?"
21 And I actually went, and I met Jonathan Li on the first trip. And then --
22 Mr. Goldman. That was how --
23 Mr. Archer. That was, like, 2008, though. So it was 6 years later that I think we
24 ended up kicking it off.
25 Mr. Goldman. Got it. Okay.
138
Mr. Archer. 1 Yeah, it actually predated me meeting Hunter.
2 Mr. Goldman. So the Jonathan Li relationship was your relationship.
3 Mr. Archer. Uh-huh.
4
5 Q And, just to clarify, there are two entities that were discussed in the
6 Republicans' hours of questioning, Rosemont Capital and Rosemont Realty.
7 A Uh-huh.
8 Q Hunter Biden didn't have an ownership stake in any of those -- in either of
9 those?
10 A He did not. Definitely not in Rosemont Capital. There might have been a
11 small -- I just have to check. There might have been a small dividend when Rosemont
12 Realty was sold, but it was a very low, low percentage. It was probably based on
13 whatever capital he had brought to the table, like, raised -- like, raised capital.
14 Mr. Schwartz. Not based on equity.
15 Mr. Archer. Yeah, not based on equity.
16
17 Q And that capital he raised didn't involve any of the funds from Ms. Baturina?
18 A No. He had no -- no --
19 Mr. Schwartz. No.
20 Mr. Archer. He had no -- no Baturina.
21 Mr. Goldman. Could I clarify the arrangement you had with Burisma through
22 RSB?
23 Mr. Archer. Uh-huh.
24 Mr. Goldman. So, essentially, both you and Hunter Biden had a board contract
25 that, in return for all of your work for the board, you would get paid a million dollars a
139
1 year. That went into RSB.
2 Mr. Archer. Uh-huh.
3 Mr. Goldman. And then it was split up in three ways -- you, Hunter, and then the
4 Tri Global?
5 Mr. Archer. Tri Global. Yeah.
6 Mr. Goldman. Why was that, with Tri Global?
7 Mr. Archer. Because they were the -- they, like, were the cap intro and
8 basically initially introduced Zlochevsky and the Burisma team --
9 Mr. Goldman. Uh-huh.
10 Mr. Archer. -- you know, early on, and then followed up in that -- you know,
11 followed up in that 2014.
12 And, you know -- so, during my tenure, that was -- and minus any investments or,
13 like, collective expenses that we incurred.
14 Mr. Goldman. Right. But the idea was --
15 Mr. Archer. So the net wasn't necessarily that every month, but theoretically
16 that was, like, what our share was --
17 Mr. Goldman. Got it.
18 Mr. Archer. -- of that piece.
19 Mr. Goldman. And the reason it went through RSB is because you had this third
20 partner involved in -- you know, related to the Burisma board work you were doing?
21 Mr. Archer. I don't think I could say that. The reason it went through RSB was
22 it just happened to be, like, kind of a catchall. Like, you understand I was
23 running -- Rosemont Realty was a 2-, almost 3-billion-dollar fund. I was a general
24 partner. We had 400 employees. Like -- this, though, has gotten more airtime
25 than -- it really wasn't my -- I wasn't doing this --
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1 Mr. Goldman. You weren't focused on it.
2 Mr. Archer. -- on a day-to-day --
3 Mr. Goldman. But I guess I'm just -- you then paid Tri Global out of RSB.
4 Mr. Archer. Yes, we did. Yeah. There -- that's all in there. You can find
5 them all.
6 Mr. Goldman. All right.
7 Mr. Archer. It's probably -- it's the different consulting groups and whatever
8 they were.
9
10 Q So it's fair to say Burisma paid the money into RSB, and then RSB disbursed
11 the relative shares to you, Hunter Biden, and Tri Global?
12 A Yes.
13 All right. I think we're good. Off the record.
14 [Whereupon, at 3:00 p.m., the interview was concluded.]
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Certificate of Deponent/Interviewee

I have read the foregoing ____ pages, which contain the correct transcript of the
answers made by me to the questions therein recorded.

_____________________________
Witness Name

_____________________________
Date

[admin]

Trump’s Former Top Lawyer [Bill Barr] DISMANTLES HIS LEGAL DEFENSES in Live Interview
by Ben Meiselas
MeidasTouch
Aug 4, 2023

MeidasTouch host Ben Meiselas reports on how Donald Trump’s former Attorney General Bill Barr gave a live interview where he explained why Trump’s purported defenses are all invalid, inapplicable, and entirely without merit.



Transcript

I'm Ben Meiselas from the Meidas Touch Network. You know it's bad when your former top attorney eviscerates the defenses that your current lawyers are floating. That's exactly what is happening. Donald Trump's current lawyers, John Lauro, and Todd Blanche, and others, are floating to this media a defense to special counsel Jack Smith's most recent criminal indictment in Washington DC for Trump's criminal conduct relating to the 2020 election, as well as the January 6th insurrection, and these real frivolous defenses that I hear Lauro and other Trump lawyers talking about is, "Oh, Advice of Counsel. It was Donald Trump's lawyer John Eastman who gave him this advice. So if anything, blame John Eastman." And also the other frivolous defense that Trump's lawyers are floating is that, "Oh, it's just a free speech issue. You are going after Donald Trump for his First Amendment rights." Well, Bill Barr, of all people, who is now considered a RINO by MAGA Republicans -- he's not Trump culty enough. Just think about that: Bill Barr, the attorney general in the Trump administration, who covered up all of these crimes for Donald Trump, he's now viewed as a Republican In Name Only, with MAGA Republicans saying, "Oh, we're gonna go RINO hunting." And they call Bill Barr a "slob," and they call Bill Barr a "crook." MAGA Republicans going after Bill Barr! He's yours, MAGA Republicans! Take him! But for MAGA Republicans, he's not corrupt enough.

Well, Bill Barr went on CNN, and again, he eviscerated both of these purported defenses that Donald Trump's lawyers are floating. The first one, as Bill Barr explains, if Donald Trump were to assert Advice of Counsel, Trump would have to take the stand. If he's blaming his lawyer, Trump's current lawyers -- by the way, you're going to get thrown under the bus soon, because MAGA stands for "Make Attorneys Get Attorneys," -- but his current lawyers couldn't call to the witness stand someone who said, "Yeah, Donald Trump told me that he was relying on the advice of his lawyers." He couldn't do that. That would be hearsay. It would be inadmissible. So the only way you can blame your lawyers in a case like this is Trump would have to take the stand, then he would be open to cross-examination by Special Counsel Jack Smith, which Trump is way too cowardly to ever do, and it wouldn't go well.

So first, let's watch Bill Barr, of all people, eviscerate the Advice of Counsel defense by Donald Trump. Play this clip.

[Kaitlan Collins] He's citing John Eastman as this constitutional scholar. But we know in the Indictment, I mean, it says Trump is ignoring your advice, that of other senior Justice Department officials, Pat Cipolloni, the White House counsel, the Director of National Intelligence. I mean, is it a credible defense to say he was just listening to John Eastman?

[Bill Barr] You know, I don't think that dog is going to hunt. As you say, first as the people who had some knowledge of whether or not there was fraud, everyone was telling him that the election was not stolen by fraud. And then as to the issue of what he could do legally at that point, he went through all the lawyers -- you know, he wouldn't listen to all the lawyers in various departments, or the White House, that had those responsibilities, or his campaign. He would search for a lawyer who would give him the advice he wanted. But I'm not even sure you would characterize what Eastman said as advice. I mean, it'd be interesting to see, but I interpret what he was saying essentially was, Well, you know, it's unclear here, and you can make this argument -- I'm not saying the courts would accept it." And so forth. And you act on that at your own hazard. Also, I don't think this defense of Advice of Counsel is going to go forward, because I think the [former] President would have to get on the stand and subject himself to cross-examination in order to raise that, and he'd also have to waive attorney-client privilege.

[Kaitlan Collins] And what would happen if he got on the stand?

[Bill Barr] I think it would not come out very well for him.

[Kaitlan Collins] Do you think it would hurt him?

[Bill Barr] Oh yes. Yes.

[Kaitlan Collins] Why do you think that?

[Bill Barr] Well, because I think he'd be subject to very skilled cross-examination, and I doubt he remembers all the different versions of events he's given over the last few years.

[Ben Meiselas] Next, Bill Barr eviscerates the claim by Donald Trump's lawyers, "Oh, this is just a free speech issue. Donald Trump -- you're just criminalizing speech here. And First Amendment." No. And as Bill Barr points out in this clip, "No, in Paragraph 3 of the Indictment, Special Counsel Jack Smith addresses the issue, and says, 'Look, yes, Donald Trump had a First Amendment right to even lie, and mislead the American people knowingly, about the election results, but, once it becomes a criminal conspiracy to deprive Americans of their vote, when it becomes a criminal conspiracy to obstruct the counting of electoral votes, when it becomes a criminal conspiracy to have votes changed illegally from President Biden, then candidate Biden to Donald Trump, it's not just a matter of Free Speech. You are now engaged in a criminal conspiracy to overthrow elections. And that is a crime. And that is very simple.'" Watch Bill Barr explain that.

[Kaitlan Collins] But, I mean, when you do look at the Indictment, do you think it's something you would have brought?

[Bill Barr] I think, I don't know if I would have approved the Indictment, but in this sense I may have exercised discretion, and not gone forward with the case. I'm also concerned about having this case going on during the election, and diverting people's attention from the issues in the election. I'm also worried about, you know, what the impact is if there are acquittals during the campaign. But, as a legal matter, I don't see a problem with the Indictment. I think that it's not an abuse. The Department of Justice is not acting to weaponize the Department by proceeding against the President for a conspiracy to subvert the electoral process.

[Kaitlan Collins] Which is what Trump's attorneys are saying. And they're also saying that he was just exercising his First Amendment right here. Do you think that's a valid argument in your view?

[Bill Barr] No! I really don't think that's a valid argument, because, you know, as the Indictment says, they're not not attacking his First Amendment right. He can say whatever he wants. He can even lie. He can even tell people that the election was stolen when he knew better. But that does not protect you from entering into a conspiracy. All conspiracies involve speech. And all fraud involves speech. So you know, Free Speech doesn't give you the right to engage in a fraudulent conspiracy.

[Ben Meiselas] And then Bill Barr just takes appropriate jabs at Donald Trump here. Here Bill Barr says, "Ah, Donald Trump playing the victim, this isn't about victimization. Trump brought it upon himself." I find myself agreeing with Bill Barr here?! Play the clip.

[Kaitlan Collins] Do you think this entire Indictment for January 6 could have been avoided? Is this something of his own making?

[Bill Barr] Yeah. You know, I don't think that this is an issue of his victimization. I think he brought this on himself. This is one of the reasons I oppose him for the Republican nomination. Because he has this penchant for engaging in these reckless acts that create these calamitous situations, and then undercut the cause he is supposed to be leading. And this is a perfect example of it.

[Ben Meiselas] Bill Barr says, "By the way, this is only the Tip of the Iceberg." Play the clip.  

[Bill Barr] So now, what I think is important is, the Government has assumed the burden of proving that. The Government in their Indictment takes the position that he had actual knowledge that he had lost the election and the election wasn't stolen through fraud. And they're gonna have to prove that beyond a reasonable doubt.

[Kaitlan Collins] Which is a high bar, of course.

[Bill Barr] It's a high bar. Now that leads me to believe that we're only seeing the tip of the iceberg on this.

[Kaitlan Collins] You think Jack Smith has more?

[Bill Barr] Oh yes. I believe he has a lot more. And that's one of the things that impressed me about the Indictment. It was very spare. And there were a lot of things he could have said in there. And I think there's a lot more to come. And I think they have a lot more evidence as to [former] President Trump's State of Mind.

[Kaitlan Collins] You said you've come around to the idea that you do think he knew that he lost. Why have you come around to that?

[Bill Barr] Number one, comments from people like [Steve] Bannon and [Roger] Stone before the election saying that he was gonna claim it was stolen if he was falling behind on election night. And that was the plan of action. I find those statements very troubling. And then you see that he does that on election night. And then the evidence that has come out since that, you know, the press reports in the Indictment, and his lack of curiosity as to what the actual facts were, just leave me -- that's my personal opinion. That's my personal opinion. And we'll see if the Government can prove it beyond a reasonable doubt.

[Ben Meiselas] Bill Barr not saying here if he's spoken to Special Counsel Jack Smith. Sure sounds like he did! Play the clip.

[Bill Barr] We'll see if the government can prove it beyond a reasonable doubt.

[Kaitlan Collins] You spoke to the January 6 Congressional committee. Have you talked to Jack Smith's investigators?

[Bill Barr] I'm not going to get into that.

[Ben Meiselas] And here Bill Barr criticizes the entire Republican Party in the House of Representatives, saying how these co-conspirators of Donald Trump in the Superseding Indictment, in the other Indictment, the other case brought in the Southern District of Florida by Special Counsel Jack Smith, for Donald Trump's unlawful, willful retention of National Defense information at Mar-A-Lago, Waltine Nauta, and Carlos De Oliveira, Bill Barr says, the same way these sycophants have now got themselves into criminal trouble, same thing with all the House Republicans. They're just like Waltine Nauta and Carlos De Oliveira. Play this clip.

[Bill Barr] And it's also quite typical in this sense, you know, these two individuals, Nauta and Carlos [De Oliveira], are dragged into this thing, their lives turned upside down by Trump, to pursue this caper of his. And he leaves in his wake ruined lives like this. The people who went up to Capitol Hill -- these individuals, many of the people who served him in Government that got sucked into things. And he just leaves all this carnage in his wake.

[Kaitlan Collins] Do you think he cares about that?

[Bill Barr] No! He doesn't care about that. Loyalty is a one-way street for him. And in many ways, you know, I think these two people down in Mar-A-Lago represent many Republicans who feel that they have to man-the-ramparts, and defend this guy no matter what he does, and go along with him. And I think they have to be careful, or they're going to end up as part of the carnage in his wake.

[Ben Meiselas] And folks, again, when I find myself saying, "Bill Barr's got some good points" -- put it this way: It's never a good sign for Donald Trump.

And this case is before a real Law and Order judge, Judge Tanya Chutkan. She's already set a court date, August 28th, where she wants to set the trial. Trump's lawyers tried to do their delay thing, the Magistrate Judge says, "You got five days to submit your brief. DOJ, you got five days to respond. Be ready for a trial date on August 28th."

I'm Ben Meiselas from the Meidas Touch Network.

[admin]

Devon Archer Transcript Released - Says Joe Biden Never Discussed Business with Hunter or His Business Partners: Devon Archer testified that Joe Biden never discussed business with Hunter, or any of his business partners, and never received any money or altered US policy in any way.
by Ron Filipkowski
MeidasTouch
Aug 3, 2023

The transcript has been released from the closed-door deposition of former Hunter Biden business partner Devon Archer before the House Oversight Committee. Not only did it fail to live up to the hype from Jim Jordan and James Comer, it only served to persuasively exonerate Joe Biden of any connections to his son's business dealings.

A copy of the full transcript of this deposition is posted below. I will include the page numbers to this story if you would like to go to the specific part of the transcript to read the sections yourself.

The deposition began with Archer testifying that he could not authenticate any of the emails or documents purported to be from the hard drive on Hunter's laptop. P.23, 90.

Hunter said he had no control over his father's schedule or what he would say about Ukraine during foreign policy statements as VP, but he falsely claimed credit to his business partners in Ukraine for Biden's trip to the country to impress them. P.25.

Archer was shown a document from the laptop showing that when Burisma was under investigation by Ukrainian authorities, an executive asked them to get "DC help." This was a passage House Republicans claimed referenced Joe. However, Archer said what was meant by that was for him them to retain a lobbying firm in DC, which they later did. P.34-35.

There was a phone call referenced on the laptop allegedly between Hunter and Joe where a Burisma executive was present. When asked about it, Archer said the executive told him that was a call, but he had no first hand knowledge if it actually took place and he was not present. P. 36-37.

Archer testified that in the 10 years he knew Hunter, he would speak to his father "every day." Each would call each other. When asked what the conversations were about, he said the weather, fishing, describing the city they were in, the places they went to, etc. He said business was never discussed. P. 39, 52.

He said Hunter put his father on speaker phone during dinners they were having with clients. He said this happened on about 20 occasions over 10 years and business was never discussed, only pleasantries. P. 41.

Archer said once when they were in China meeting with a client Hunter put Joe on speaker phone. Again, no business was discussed. P. 69.

When asked if he ever met Joe Biden, he said he once got a White House tour with his son where he spoke to the VP about his second-grade paper mache project. P. 77.

Archer said at no time did Joe Biden communicate in any way with Burisma board members during their meetings. He said Joe Biden never had any involvement with Burisma in any way. P. 87, 104.

Archer said Burisma executives were constantly pushing Hunter to use his connections in DC to help them out. Hunter told Archer that there really was nothing that he could do, but he wanted to bluff the Burisma executives into thinking he could help them. P. 98-99.

When asked what they did to help Burisma in DC, Hunter said they hired a group of government affairs and lobbying experts in DC. P. 100.

Archer testified that he had no basis to believe that Joe Biden ever altered any US foreign policy to benefit his son or his business partners, and as far as he knows no policy was ever actually changed to their benefit. P. 102-103.

Archer testified that he was not aware of any money that was ever paid to Joe Biden. He said Burisma executives liked to brag and make wild claims that they had access when they didn't and it was just them bluffing to their associates. P. 111-112.

Archer said that Hunter falsely created the impression to Burisma executives that he had influence over this father, which they both knew was a lie. He said that when Joe Biden would make policy statements about the need for Ukraine to achieve energy independence, Hunter would falsely claim credit for it to Burisma executives when in fact he had nothing to do with it. P. 114-115.

Archer summarized this by saying that Hunter was "selling the illusion of access" when in fact he had none except for a father-son relationship. P. 116.

Read the full transcript here:

[admin]

Defendant Trump’s Sweetheart Deal: Former New York prosecutor Karen Friedman Agnifilo urges prosecutors to treat Trump like any other criminal defendant
by Karen Friedman Agnifilo
Aug 6, 2023
https://www.meidastouch.com/news/defend ... heart-deal



In the bizarro upside down world that has currently infected the right wing, there is a drumbeat narrative alleging that Hunter Biden has received a sweetheart deal from the Department of Justice, while Donald Trump is being 'persecuted.' However, it is the exact opposite and here is why: defendant Trump is treated differently than other similarly situated defendants and continues to be given pass after pass after pass by prosecutors and judges alike.

As a three-decade former state prosecutor in New York, I have never seen a defendant treated as leniently as defendant Trump. He has a rap sheet with 3 open felony indictments, 78-charges, in 3 separate jurisdictions. He has repeatedly threatened prosecutors, judges, and potential witnesses and has his own 757 jumbo jet at the ready to fly anywhere in the world and can abscond at any time. And the nature of his charges are among the most serious there are — he is accused of stealing our nation’s most sensitive secrets, trying to destroy evidence of his crimes, committing fraud in the oval office, and causing a violent insurrection in order to attempt to steal an election he lost, and our democracy. Imagine if he were Black or Muslim. There is no doubt he would be incarcerated pending trial.

Let’s unpack this together. The most recent example of Trump’s flagrant proverbial middle finger in the face of justice is when, the day after he was arraigned in the blockbuster Democracy stealing indictment, he crossed a bright red line and fake tweeted:

“IF YOU GO AFTER ME, I’M COMING AFTER YOU!”

This post on his personal social media platform Truth Social was a clear threat to the prosecutors when it was viewed in context with a photo of Biden, Willis, Bragg, James and Smith – where he labeled them all “the fraud squad.”1 And let’s not forget the post from several months ago where he posted two photos next to one another where he held a baseball bat next to a photo of Bragg’s head and when called on it gave an excuse that not even a toddler would find credible.

Just 10% of Manhattan Residents Voted for Anti-Trump DA in 2021 Election
Anti-Trump Manhattan DA Alvin Bragg won the votes of only 10% of Manhattan residents in New York City's 2021 election cycle.

In both of these instances, he has not only (allegedly)2 committed a crime, but he has also violated his terms of release from custody.3 Defendant Trump’s release conditions are contextually quite lenient in all three of his open cases. I dare anyone to find any other defendant with a rap sheet like his with only these conditions. Trump’s release conditions in the most recent Federal indictment are:

** Trump must not violate federal or state law. (The Magistrate Judge who arraigned Trump even warned him that this is the most important condition.)

** Trump must appear in court as directed and must sign an appearance bond (which essentially means he must sign something that says he promises to appear in court).

** Trump must not communicate with anyone he knows to be a witness except through his lawyers and in the presence of his lawyers.

The Magistrate Judge then spoke directly to defendant Trump at 4:26pm: “You have heard your conditions of release. It is important you comply. You may be held pending trial in this case if you violate conditions of release.” Do you understand? Are you prepared to comply?

The defendant replied, “Yes”

Equally, in the New York State case, Judge Juan Merchan also required that Trump not commit any new crimes and stated that he is to “refrain making comments or engaging in conduct that has the potential to incite violence, create civil unrest, or jeopardize the safety or well-being of any individuals and “do not engage in words or conduct which jeopardizes the rule of law, particularly as it applies to these proceedings in this courtroom.”

Defendant Trump has plainly violated his release conditions.

He has (allegedly) committed several crimes with his thinly veiled threats, and by (allegedly) committing these crimes, he has violated the most important condition of his release - namely that he must not commit any crimes. He has (allegedly) at least committed the crime of Aggravated Harassment in the Second Degree in violation of which reads in pertinent part:

A person is guilty of aggravated harassment in the second degree when:

With intent to harass another person, the actor communicates, by computer or any other electronic means, a threat to cause physical harm to such person, and the actor knows or reasonably should know that such communication will cause such person to reasonably fear harm to such person's physical safety.4

In any other situation, with any other defendant who threatened his prosecutor the day after being arraigned in federal court for inciting a riot and attempting to overthrow our democracy, the prosecutor would march into court, bring the threats to the attention of the judge, and the judge would likely find the defendant in violation of his release conditions and incarcerate him.

But what happened here? Instead, Jack Smith immediately requested a protective order for the discovery in the case, stating that the defendant’s threats, if they contained grand jury transcripts or other discovery, could have a harmful chilling effect on witnesses. The next morning, a Saturday, Judge Chutkan ordered Trump to respond to the proposed protective order in 2 days. Instead of complying with the court’s order, Trump’s legal team filed a motion requesting more time (delay tactic - sound familiar?) and Jack Smith immediately filed an opposition and called out Trump’s attempt to delay saying, “Rather than spend time complying with the Court’s order, the defendant drafted a filing as to why he did not have time to review the 5-page protective order.” Smith also pointed out that this proposed protective order is nearly identical to the one filed in Florida in his Mar a Lago document’s case.5 Judge Chutkan, (all still happening on Saturday) without wasting any time, swiftly and summarily denied defendant’s request for more time.

The special prosecutor and the court are all reacting swiftly and strongly to Trump’s shenanigans; however, one cannot ignore the disparately lenient treatment he is receiving. Even his lowly co-defendant property manager had to post $100,000.00 bond and cannot leave the confines of the Southern District of Florida. Trump can fly anywhere he wants in his plane, has not had to post any bond, and has had no mug shot taken. His threats and taunts are not only crimes, they make a mockery out of our justice system as he openly flouts the rules with almost no consequence. While split screen simultaneously, a Black man in New York City who incited a riot when he tried to give away video games was swiftly arrested, while an orangish-white man who incited a riot while trying to steal our democracy walks free with almost no consequence.

Karen Friedman Agnifilo served as Chief Assistant District Attorney of the Manhattan District Attorney’s Office. She is the co-host of Legal AF podcast on the MeidasTouch Network and a CNN Contributor.

______________

Notes:

1. His spokespeople have desperately tried to walk this back saying he wasn’t referring to the prosecutors.

2. I say “allegedly” lest risk the wrath of a defamation lawsuit from the Orange Bully in Chief.

3. When any person is arrested they are in custody until a judge releases them from custody. Almost all judges impose “release conditions” on every defendant.

4. This is an abbreviated version of the statute

5. There is also a protective order for the discovery in the New York State indictment.

Karen Friedman Agnifilo
By Karen Friedman Agnifilo

[admin]

Right Wing Lawyers [Professor William Baude & Michael Stokes Paulsen] TURN AGAINST Trump and Make SHOCKING Request
by Michael Popok
MeidasTouch
Aug 12, 2023

Michael Popok of Legal AF reports on a new case made by 2 leading right wing Federalist Society law professors that Trump participated in a Rebellion and Insurrection against the US and right now is disqualified under the 14th Amendment from ever holding office again, a position that will no doubt end up being cited by courts and judges up to the Supreme Court going forward as the DOJ and others seek to have Trump ruled disqualified.



Transcript

This is Michael Popok LegalAF. When
Federalist Society right-wing
constitutional Scholars who would vote
Republican and for Donald Trump come out
with a 127 page law review article Law
Journal academic analysis to apply to
Donald Trump the disqualifying provision
of the 14th Amendment for participation
in an Insurrection or Rebellion you're
in a load of hurt if you're Donald Trump
and that's just what's happened let me
make this clear this isn't left-wing
Progressive Democrats uh constitutional
Scholars from the other side of the
aisle or the Spectrum creating an
analysis or scholarship to argue that
Donald Trump participated in a rebellion
and Insurrection related to John 6 and
clinging to power and the and the
stopping of the peaceful transfer these
are two of the most leading
Scholars Federalist Society Scholars out
there who who entire their entire focus
is on the 14th Amendment and the
disqualifying provision that was
implemented around the time of the Civil
War to stop people who were part of the
Civil War and were part of the Rebellion
against Lincoln and the Republic to ever
serve in office again including that
holding the highest job in the land the
president United States you lose that
part of the right wing judicial
constitutional uh Scholars and you've
lost it all and now we've got two of
them William Baude & Michael Stokes Paulsen who
have joined together in 126 page law
review article to be published in the
University of Pennsylvania Law Journal
one of the leading law journals in which
they argue that not only does the 14th
Amendment vehicle 3 apply to the
president or former president of the
United States but there is no doubt in
their mind under the original
interpretation the originalism
interpretation of the U.S Constitution
Donald Trump is an insurrectionist and a
person who participated in rebellion and
therefore should never serve office
again this I assure you will lead to
people in court challenging Donald Trump
now citing the study that the
scholarship of these two rightist of
right-wing Federalist Society
constitutional law professors writing
emphatically without any hesitation
without any equivocation that Donald
Trump should be disqualified it will be
cited in in court filings in briefs
filed by parties perhaps by the
Department of Justice and it will be
cited in rulings that are made all the
way after the U.S Supreme Court and
these are not just two crackpots these
are people who are Yale law graduates
who served one of them Michael Stokes
Paulson was a Justice Roberts law clerk
at one point in his career before he
became a constitutional scholar and and
the right-wing MAGA on the U.S Supreme
Court they drink from the same water
bowl the same trough as these two
constitutional law professors because
they all believe in what's called
originalism or original intent that they
believe that if you look close enough
and hard enough at the text of the
constitution in the context of what the
founding fathers and the framers of the
Constitution meant back in 1780s and
1790s about that document you can you
can then apply it to the and use the
original intent today in 2023 and Beyond
that's called originalism they don't
believe that it's a living breathing
document the way I do they believe you
got to go back and make it really
brittle and you gotta only believe what
people wearing powdered wigs believed
back in the 1780s in Philadelphia
okay put that aside for a minute what
I'm trying to tell you is these two
constitutional Scholars that would
normally line up in favor of Donald
Trump are arguing the exact opposite I'm
going to read to you
the abstract right the abstract that's
out there which is kind of the summary
of what their analysis is what their
rationale is and then I'm going to read
the last 10 or not the whole thing but
the focus of it the kernel of it the nut
of it in the last 10 pages this law
review article is called The Sweep and
force of section three by Professor
William body and Michael Stokes Paulson
now let's start with now that I've got
your attention let's start with
um what we call the abstract which will
sort of give you what this whole thing
is about the abstract says that this
article will ultimately argue right that
there has been mistaken prior
constitutional scholarship in the area
and that they make a number of
fundamental findings that the 14th
amendment was not repealed these are
these are arguments that were raised by
a guy named Tillman when uh Morrison
cawthorne and Marjorie Taylor green
tried to avoid being disqualified from
running for office and people challenged
them so it's sort of known as the
Tillman argument and they attacked the
Tillman argument and say it's it's hot
it's hogwash uh my term and instead they
say these are the fundamental read that
they make with their background
experience in Powerhouse intellect of
what the originalism intent of the
Constitution was in this provision that
one article 14 the four sorry the 14th
Amendment article 3 was not later
Changed by an act of Congress in which
for a very short window they let former
Civil War participants on the wrong side
come back to office and reconcile in
terms of reconstruction of the United
States that the amnesty act an act of
Congress does not in the rock paper
scissor world of constitutional law
defeat the existence of the 14th
Amendment if Congress wanted to do that
they'd have to go through the process of
amending the Constitution and they never
did second major point in the article is
that the provision the 14th Amendment
article 3 is in their few self-executing
meaning there doesn't have to be another
act of Congress Congress has already
spoken and said if you're an
insurrectionist or person who
participated in a rebellion and you're
running for an elected office Senate
house president you hold those offices
you're out forevermore permanent
disqualifier and and there's no other
act of Congress there's no other hearing
that has to be made there's no
impeachment like process all we have to
do according to these two law professors
is go right to federal court or state
court and and have those judges review
14 Amendment against the actions and
find that the person participated in
this case Donald Trump at an
Insurrection or Rebellion and then the
last thing the last major mind-blowing
uh uh
um conclusion
is that Donald Trump in their view
Federalists right wing originalists
right people that normally would back
Donald Trump in their view Donald Trump
disqualified himself participated in a
rebellion participated in an
Insurrection because he attempted to
overthrow the 2020 election that is the
Paradigm that is their scholarship they
then spent 126 Pages going through each
point and refuting any other point
before I read from this mind blower that
again I want to remind everyone is not
just idle scholarship
it's not just you know how many Angels
or Devils dance on the head of a pin or
you know how much fuzz do I have in my
navel this is this is the this body of
work this scholarship gets used it'll be
cited in briefs filed by people
challenging Donald Trump
it'll be quoted back by sympathetic or
perhaps not federal uh federal federal
judges maybe all the way up to the U.S
Supreme Court this is important stuff as
a practicing lawyer for 32 years I don't
want you to think it's just going to
collect dust or it's going to be on the
bottom of a bird cage one day it's not
first of all it hasn't even been
published yet we've got a copy of it
kind of an early hot off the process
copy of it but it hasn't yet been
published but it will be cited
you know the the bod Paulson you know uh
uh promotion of this of this analysis
the scholarship on the 14th Amendment is
really important it will outlive them
and it will seep its way into the
jurisprudence related to Donald Trump
now having done all of that and then
reminding readers the two professors
reminded readers that when you read the
Constitution you give it a natural
sensible reading all of these other
readings of language parsing and Hyper
technical analysis and backflips to try
to reverse engineer to get to the point
you want to make should be rejected or
as they like to say you read the text
precisely
naturally sensibly without artifice or
injecting in invention or creativity and
when they say when you do that when the
scales drop from your eyes and you read
the original intent it's about the only
time I'm ever going to agree with an
originalist on the Constitution because
I love the way this came out but having
said that let me now read for you
so we're all clear the parts that are
mind-blowing so that you understand it
and it starts on and we'll post this up
on the Midas touch website so that you
can see the entire thing but in starting
on page 111 Under The Heading the
attempted overthrow of the 2020
presidential election
this is what these two law professors
say we come finally to the Urgent
question of the day how does section 3
apply to the events of 2020 and 2021 or
as they say the efforts by Donald Trump
and others to overthrow the results of
the 2020 presidential election and
install Trump as president for another
term despite his loss to Joe Biden see
how they see what they did there see how
they framed that the professors go on to
say that considering the overall package
of events the dishonest attempts to set
aside valid state election results with
false claims of voter fraud the
attempted subversion of the
Constitutional processes for State
selection of electors for President and
Vice President the efforts to have the
vice president unconstitutionally claim
of power to refuse to count electoral
votes certified and submitted by several
States the efforts of members of
Congress to reject votes lawfully cast
by electors and finally the fomenting
and incitement of a mob that attempted
to forcibly prevent congresses in the
vice president's counting of such lawful
cast votes culminating in a violent and
deadly assault on the Capitol and
Congress and the vice president on John
6 2021 taken together that group of of
events that package of events that in
the view of these two professors is
Insurrection and is rebellion and Donald
Trump participated in it and if you're
just coming into this hot take late and
you think these are a couple of crock
pots they're not
the scholarship of these two gentlemen
is is without parallel in the area of
the of of the 14th Amendment their
Federalist Society card carrying members
they're originalists just like six out
of the nine Supreme Court Justices and
their approach to the interpretation of
the Constitution William baud Professor
William bought a University of Chicago
is the Harry Kelvin Junior professor of
law he's the director of the
Constitutional Institute at the
University he served on Joe Biden's
presidential commission on the Supreme
Court
when you read what he Geeks out on in
his own profile on his own website he
says it's 14th Amendment section one and
section three
um he's a scholar for the center for the
study of constitutional originalism and
his co-writer who he who he joined for
this particular exercise has similar
credentials at the University of Saint
Thomas in Minnesota he's the he is the
distinguished University chair and
Professor he worked in the Department of
Justice in the Criminal Division and the
Appellate Division he's he's a leading
scholar on constitutional interpretation
right
um and and on things related to uh uh
religion in government
okay these are people that normally
normally up until today and the writing
of this article that they've written for
over a year right so yeah they saw the
Gen 6 report right which we have right
here
but they didn't see the indictment until
recently and look how closely they hewed
in their own independent analysis that
everything here constitutes rebellion
and Insurrection to disqualify Donald
Trump without a further act of Congress
under their analysis or to continue from
their Law Journal article and I quote
taken as a whole these actions
represented an effort to prevent the
lawful regular termination of President
Trump's term of office in accordance
with the Constitution they were an
attempt to unlawfully over overturn or
thwart the lawful outcome of a
presidential election and to install
instead the election loser as president
oh I love that phrase let's say it again
to install the election loser as
president and loser in their own writing
was emphasized in italics they
constituted a serious attempt to
overturn the American constitutional
order
does section 3 cover this conduct did
these events constitute Insurrection or
Rebellion within the meeting of the
Constitution these are questions the law
professors ask in their law article and
if so who all might be said to have
engaged in that conduct or given Aid in
Comfort to those who did we will
consider these questions and turn and
then they do for the remaining pages in
the law review article and they conclude
that Donald Trump is an insurrectionist
that he's that he's guilt even if he's
not charged let me make this clear and
he hasn't yet been charged in any of the
indicting documents in any of the
indictments with the actual
um count of seditious conspiracy or
Insurrection or Rebellion he hasn't been
charged but these law these law
professors constitutional professors
Federalist Society professors their
position is he doesn't have to be though
whatever he's charged with the
underlying body of Acts is Insurrection
and rebelling Rebellion which is a
disqualifier under the 14th Amendment
section three plain and simple under
their interpretation simple direct
um elegant
without artifice in reading the language
of it
and or as they like to put it and I'll
leave you on this at least on this part
of the law review article and quoting
from them this brings us to the rubber
hits the road question quoting for the
law review article who all by virtue of
their personal voluntary conduct can be
said to have engaged in Insurrection or
rebellion in connection with the efforts
to overthrow the results of the
presidential election of 2020 and
unlawfully maintained Donald Trump in
office who while perhaps not a direct or
indirect participant gave Aid and
comfort and then they go through
piece by piece and talk about why Donald
Trump should never serve in office again
why that's self-executing under the
um Constitution why it doesn't there's
no more action by Congress meaning we
can don't have to worry about who's got
the majority in the house
or or this is it this is the explosive
application of section three quoting
from the law review article
this is their quote to end it in our
view on the basis of the public record
the law professors write former
president Donald J Trump is
constitutionally disqualified from again
being president or holding any other
covered office because of his role in
the attempted overthrow of the 2020
election
and they say the case for
disqualification is strong and that the
evidence is abundant
and they also quote to people like J
Michael luddick who's also on the Mount
Rushmore of the Federalist Society
former federal judge most of the Supreme
Court or its clerks Trace their way back
to having served with Michael luddig
when he was a federal judge
right he's a lion of federalism of the
conservative movement he's a lion of
originalism and how you interpret the
Constitution he's the one that that Mike
Pence went to to ask him at the end can
I follow the president's Direction and
not certify the election for Joe Biden
who was told no you can't do that that
Michael Luttig is also quoted in the
footnotes here in the law review article
so what's the takeaway of all this is it
that some dusty law review article by a
couple out of touch right-wing
Federalist Society guys you'll never see
the light of day has been published no
the takeaway is the weather has now
changed in the room it's not just Jack
Smith independent special counsel
bringing indictments through grand
juries it's independent Scholars on the
far right wing of the spectrum who are
Federalists who are originalists who the
people on the Supreme Court like they
used to clerk for like Chief Justice
John Roberts it will resonate with them
this scholarship it will harmonize with
their own thought process it will help
them interpret the applications to Bar
Donald Trump and whether it's brought by
the Department of Justice or any other
citizen who has standing and we all do
because we all have the right to a fair
count in the election of our vote of our
electoral vote and the underlying
popular vote everyone should have
standing under a general injury Theory
let's say to challenge Donald Trump in
court based on the indictments that have
already been rendered
and we don't have to wait to see if he
if he's also indicted for Insurrection
it's not necessary says these two
constitutional Scholars we're going to
continue to follow it and don't be
surprised whether it's here or it's on
uh it's on hot takes that I do on a
regular basis only on the Midas touch
network but look you're gonna find it uh
you're gonna find it on the Midas touch
Network where you free subscribe we're
going to follow things on hot takes just
like this one if I'm not doing it it's
one of my colleagues Karen Freeman
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we've got like I don't know 150 years of
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one and we bring you the analysis as
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including now on threads until the next
hot take this is Michael Popok, LegalAF
reporting.


******************************

Conservative Case Emerges to Disqualify Trump for Role on Jan. 6: Two law professors active in the Federalist Society wrote that the original meaning of the 14th Amendment makes Donald Trump ineligible to hold government office.
by Adam Liptak
Reporting from Washington
New York Times
Published Aug. 10, 2023
Updated Aug. 11, 2023

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Former President Donald J. Trump appeared in federal court in Washington after being indicted over his efforts to overturn his defeat in 2020. Credit...Doug Mills/The New York Times

Two prominent conservative law professors have concluded that Donald J. Trump is ineligible to be president under a provision of the Constitution that bars people who have engaged in an insurrection from holding government office. The professors are active members of the Federalist Society, the conservative legal group, and proponents of originalism, the method of interpretation that seeks to determine the Constitution’s original meaning.

The professors — William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — studied the question for more than a year and detailed their findings in a long article to be published next year in The University of Pennsylvania Law Review.

“When we started out, neither of us was sure what the answer was,” Professor Baude said. “People were talking about this provision of the Constitution. We thought: ‘We’re constitutional scholars, and this is an important constitutional question. We ought to figure out what’s really going on here.’ And the more we dug into it, the more we realized that we had something to add.”

He summarized the article’s conclusion: “Donald Trump cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6.”

A law review article will not, of course, change the reality that Mr. Trump is the Republican front-runner and that voters remain free to assess whether his conduct was blameworthy. But the scope and depth of the article may encourage and undergird lawsuits from other candidates and ordinary voters arguing that the Constitution makes him ineligible for office.

“There are many ways that this could become a lawsuit presenting a vital constitutional issue that potentially the Supreme Court would want to hear and decide,” Professor Paulsen said.

Mr. Trump has already been indicted twice in federal court, in connection with his efforts to overturn the 2020 election and his retention of classified documents. He is also facing charges relating to hush money payments in New York and may soon be indicted in Georgia in a second election case.

Takeaways From Trump’s Indictment in the 2020 Election Inquiry

Four charges for the former president. Former President Donald Trump was charged with four counts in connection with his widespread efforts to overturn the 2020 election. The indictment was filed by the special counsel Jack Smith in Federal District Court in Washington. Here are some key takeaways:

The indictment portrayed an attack on American democracy. Smith framed his case against Trump as one that cuts to a key function of democracy: the peaceful transfer of power. By underscoring this theme, Smith cast his effort as an effort not just to hold Trump accountable but also to defend the very core of democracy.

Trump was placed at the center of the conspiracy charges. Smith put Trump at the heart of three conspiracies that culminated on Jan. 6, 2021, in an attempt to obstruct Congress’s role in ratifying the Electoral College outcome. The special counsel argued that Trump knew that his claims about a stolen election were false, a point that, if proved, could be important to convincing a jury to convict him.

Trump didn’t do it alone. The indictment lists six co-conspirators without naming or indicting them. Based on the descriptions provided, they match the profiles of Trump lawyers and advisers who were willing to argue increasingly outlandish conspiracy and legal theories to keep him in power. It’s unclear whether these co-conspirators will be indicted.

Trump’s political power remains strong. Trump may be on trial in 2024 in three or four separate criminal cases, but so far the indictments appear not to have affected his standing with Republican voters. By a large margin, he remains his party’s front-runner in the presidential primaries.

Those cases could give rise to prison time or other criminal punishment. The provision examined in the new article concerns a different question: whether Mr. Trump is eligible to hold office.

There is, the article said, “abundant evidence” that Mr. Trump engaged in an insurrection, including by setting out to overturn the result of the 2020 presidential election, trying to alter vote counts by fraud and intimidation, encouraging bogus slates of competing electors, pressuring the vice president to violate the Constitution, calling for the march on the Capitol and remaining silent for hours during the attack itself.

“It is unquestionably fair to say that Trump ‘engaged in’ the Jan. 6 insurrection through both his actions and his inaction,” the article said.

Steven G. Calabresi, a law professor at Northwestern and Yale and a founder of the Federalist Society, called the article “a tour de force.”

But James Bopp Jr., who has represented House members whose candidacies were challenged under the provision, said the authors “have adopted a ridiculously broad view” of it, adding that the article’s analysis “is completely anti-historical.”

(Mr. Bopp’s clients have had mixed success in cases brought under the provision. A state judge, assuming that the Jan. 6 attacks were an insurrection and that participating in them barred candidates from office, ruled that Representative Marjorie Taylor Greene, Republican of Georgia, had not taken part in or encouraged the attacks after she took an oath to support the Constitution on Jan 3. A federal appeals court ruled against Representative Madison Cawthorn, Republican of North Carolina, on one of his central arguments, but the case was rendered moot by his loss in the 2022 primary.)

The provision in question is Section 3 of the 14th Amendment. Adopted after the Civil War, it bars those who had taken an oath “to support the Constitution of the United States” from holding office if they then “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

Congress can remove the prohibition, the provision says, but only by a two-thirds vote in each chamber.

The new article examined the historical evidence illuminating the meaning of the provision at great length, using the methods of originalism. It drew on, among other things, contemporaneous dictionary definitions, other provisions of the Constitution using similar language, “the especially strong evidence from 1860s Civil War era political and legal usage of nearly the precise same terms” and the early enforcement of the provision.

The article concluded that essentially all of that evidence pointed in the same direction: “toward a broad understanding of what constitutes insurrection and rebellion and a remarkably, almost extraordinarily, broad understanding of what types of conduct constitute engaging in, assisting, or giving aid or comfort to such movements.”

It added, “The bottom line is that Donald Trump both ‘engaged in’ ‘insurrection or rebellion’ and gave ‘aid or comfort’ to others engaging in such conduct, within the original meaning of those terms as employed in Section 3 of the 14th Amendment.”

Though the provision was devised to address the aftermath of the Civil War, it was written in general terms and continues to have force, the article said.

Congress granted broad amnesties in 1872 and 1898. But those acts were retrospective, the article said, and did not limit Section 3’s prospective force. (A federal appeals court agreed last year in the case involving Mr. Cawthorn.)

The provision’s language is automatic, the article said, establishing a qualification for holding office no different in principle from the Constitution’s requirement that only people who are at least 35 years old are eligible to be president.

“Section 3’s disqualification rule may and must be followed — applied, honored, obeyed, enforced, carried out — by anyone whose job it is to figure out whether someone is legally qualified to office,” the authors wrote. That includes election administrators, the article said.

Professor Calabresi said those administrators must act. “Trump is ineligible to be on the ballot, and each of the 50 state secretaries of state has an obligation to print ballots without his name on them,” he said, adding that they may be sued for refusing to do so.

(Professor Calabresi has occasionally strayed from conservative orthodoxy, leading to an unusual request from the group he helped found. “I have been asked not to talk to any journalist who identifies me as a co-founder of the Federalist Society, even though it is a historical fact,” he said. I noted the request and ignored it.)

Some of the evidence the article considered overlapped with what was described in the recent indictment of Mr. Trump accusing him of conspiring to subvert the 2020 election. But that case and Section 3 address “completely separate questions,” Professor Baude said.

“The question of should Donald Trump go to jail is entrusted to the criminal process,” he said. “The question of should he be allowed to take the constitutional oath again and be given constitutional power again is not a question given to any jury.”

Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002. More about Adam Liptak

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Part 1 of 8

The Sweep and Force of Section Three
by William Baude & Michael Stokes Paulsen
172 U. PA. L. REV. (forthcoming 2024)
8/9/23

* Harry Kalven, Jr. Professor of Law, University of Chicago Law School.
** Distinguished University Chair and Professor of Law, University of St. Thomas Law School. We thank Frank Bowman, Steve Calabresi, Josh Chafetz, John Harrison, Ed Hartnett, Daniel Hemel, Myles Lynch, Gerard Magliocca, Michael McConnell, Derek Muller, Eric Posner, Micah Quigley, Richard Re, Michael Rosin, Stephen Sachs, Greg Sisk, Seth Barrett Tillman, and workshop participants at the University of Chicago Law School and University of St. Thomas Law School for helpful comments on this draft, T.J. Bowman, Nicole Catlin, Connie Gong, Sarah Leitner, James Marmaduke, and Matt Phillips for valuable research assistance, and countless others for background discussions about these issues—though not all of them gave aid or comfort to our conclusions.

Abstract: Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This article corrects those mistakes by setting forth the full sweep and force of Section Three.

First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications. Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment. Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted over-throw of the 2020 presidential election.

Contents:

Introduction
I. Section Three is Legally Operative Today
A. The Generality and Presumptive Perpetuity of Constitutional Language
B. Has Congress Removed the Disability for Everyone for All Time? (And Could It Do So If It Wanted To?)
II. Section Three is Legally Self-Executing
A. Section Three as Automatic Legal Disqualification
B. Who (All) Can (Must) Faithfully Apply and Enforce Section Three?
1. Seeking Office
a. by election
b. by appointment
2. Holding Office
3. Special Situations
C. The Problem of Griffin’s Case
1. Background
2. Chase on Section Three
a. “The argument from inconveniences, great as these”
b. The argument from “the intention of the people”
c. The argument that Section Three should not be read to depart from the “spirit” of prior constitutional law
d. The argument from the Section Five enforcement power
3. Griffin’s Self-Defeating and Highly Irregular Dictum
III. Section Three Supersedes, Qualifies, or Satisfies Prior Constitutional Provisions
A. Bills of Attainder
B. Ex Post Facto Laws
C. Due Process of Law
D. The Ominous Question: Section Three and the First Amendment
IV. Section Three’s Substantive Disqualification is Sweeping
A. Section Three’s Disqualifying Conduct: “Insurrection or Rebellion”; “Engaged In”; “Aid or Comfort” to “Enemies”
1. Working definitions
2. Contemporaneous Dictionary Definitions
3. Intratextualism
4. Contemporaneous Public, Political, Legal Usage
a. President Lincoln
b. Congress
i. The Ironclad Oath
ii. The Second Confiscation Act
c. The Supreme Court’s decision in The Prize Cases
5. Other Extant Statutory Sources and Notorious Examples
a. The Insurrection Acts (and Insurrections Generally)
b. The Congressional Exclusion Debates
6. Legislative History
7. Early Applications of Section Three
B. What Prior Officeholders are Covered? What Future Offices are Barred?
C. The Attempted Overthrow of the 2020 Presidential Election
1. The Question of Coverage: Insurrection and Rebellion
2. The Question of Participation: “Engaged in” and “Aid or Comfort”
a. General Principles Concerning Culpable Participation
b. Section Three Disqualifies Donald Trump from Future Office
c. Beyond Trump
Conclusion

Introduction

“Section 3 has long since faded into history.”
Eric Foner1

Reports of Section Three’s demise are greatly exaggerated. It turns out that Section Three of the Fourteenth Amendment remains of direct and dramatic relevance today—a vital, fully operative rule of constitutional law with potentially far-reaching contemporary real-world consequences. Section Three remains in legal force, and has a broad substantive sweep.

Here is what it says:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.2

This section of the Fourteenth Amendment was designed to address a particular historical situation and acute problem arising in the aftermath of the Civil War. States in the South had purported (unconstitutionally)3 to secede from the Union; they had purported to form the (so-called) “Confederate States of America” in rebellion against the authority of the U.S. Constitution; and they had waged a bloody four-year war of rebellion against the United States. Yet even after the rebellion had been defeated, Southern States had audaciously sent to Congress, to serve as U.S. Senators and Representatives, men who had notoriously violated previously sworn oaths to support the U.S. Constitution by subsequently engaging in or supporting secession, rebellion, and civil war against the authority of the United States (to say nothing of those now serving again in their state governments). These men who arrived in Washington included several who had held prominent positions in the rebel Confederacy: “four Confederate generals, four colonels, several Confederate congressmen and members of Confederate state legislatures, and even the vice president of the Confederacy, Alexander Stephens.”4

The Congress that proposed the Fourteenth Amendment rightly regarded the situation as outrageous—not only morally, but practically. If former Confederates held the levers of federal and state government power, effective “reconstruction” of the political order and any hope of extending the full and equal protection of the laws to the newly freed former slaves would be at an end. Section Three of the Fourteenth Amendment responded to that outrage, enacting a sweeping disqualification from state and federal office of those who had, as legislators or officers in the federal or state government prior to the War, sworn required oaths of loyalty to the United States Constitution and subsequently engaged in “insurrection or rebellion” against the U.S. constitutional authority or given “aid or comfort” to persons engaged in such acts of insurrection or rebellion. Only a two-thirds majority vote of both houses of Congress could remove that sweeping disqualification.

Fast-forward a century and a half. The events surrounding efforts to overturn the result of the presidential election of 2020 have sparked renewed scholarly, judicial, and political interest in Section Three of the Fourteenth Amendment.5 The core events are familiar to all—the dishonest attempts to set aside valid state election results with false claims of voter fraud; the attempted subversion of the constitutional processes for States’ selection of electors for President and Vice President; the efforts to have the Vice President unconstitutionally claim a power to refuse to count electoral votes certified and submitted by several States; the efforts of Members of Congress to assert a similar power to reject votes lawfully cast votes by electors; the fomenting and immediate incitement of a mob to attempt to forcibly prevent Congress’s and the Vice President’s counting of such lawfully cast votes—all in an attempt to prevent the defeated incumbent President, Donald Trump, from losing power in accordance with the Constitution.

This was undoubtedly a serious assault on the American constitutional order. Not since the Civil War has there been so serious a threat to the foundations of the American constitutional republic. It takes little imagination to describe the efforts to maintain Trump in office, notwithstanding his defeat, as an attempted political coup d’etat. These actions culminated in the incitement and execution of a violent uprising at the Capitol on January 6, 2021—an “insurrection” aimed at preventing Congress and the incumbent Vice President from performing their constitutional responsibilities to count the votes for President and Vice President in the 2020 election. Several of the people involved in these events—most notably the defeated President, Donald Trump—had previously taken oaths to support the Constitution. If they engaged in or gave aid and comfort to an insurrection against the constitutional government, Section Three would appear to bar them from holding office again.

As legal officials and citizens generally have begun to confront the application of Section Three, they have foundered on the most fundamental questions. How does Section Three’s disqualification apply—does it apply—to those who planned, supported, encouraged, assisted, incited, or otherwise participated in the events surrounding the attempted overturning of the presidential election of 2020? Does Section Three’s century-and-a-half old disqualification, designed for the aftermath of the Civil War, even remain legally operative in the first place? If so, what must be done to enforce Section Three? Does it require implementing legislation or criminal trials (or impeachments) before its disqualification kicks in? How does Section Three interact with the rest of the constitutional order—are its subjects protected by constitutional principles of attainder, anti-retroactivity, due process and free speech? And if Section Three does apply—to what and to whom? What actions count as having “engaged in insurrection or rebellion” against the Constitution of the United States or having “given aid or comfort to the enemies thereof”? Which officials are covered by Section Three’s exclusions?

This article attempts to answer these questions. It makes four key points (or clusters of points):

First. Section Three remains legally operative. It is no less part of the Constitution than the other provisions of the Fourteenth Amendment. It is not a dead letter. The Constitution is a binding, authoritative written text, not a collection of specific historical purposes and intentions. Where the text applies, it applies. Its legal force is not limited to the immediate problem or purpose that prompted its enactment. Section Three is not limited to the circumstances of the Civil War and Reconstruction, even if the meaning of its terms may be illuminated by that experience and history.

Nor has Section Three somehow been “repealed” by Congress’s two major nineteenth-century statutes granting amnesty to those covered by Section Three. This is not because it would be impossible for a constitutional provision to expire by its terms after a period of time, or upon the occurrence of a particular event, or upon action taken by future actors. Article I, Section 9, for example, created a constitutional prohibition of most congressional regulation of the international slave trade for a period of twenty years—but its prohibition then vanished in 1808. Section Three, however, does not work that way. It imposes a general, prospective, rule of disqualification, which Congress may remove by two-thirds vote of both houses only once it has occurred. Section Three is prospective; Congressional amnesty is retrospective.

Second. Section Three is legally self-executing. That is, Section Three’s disqualification is constitutionally automatic whenever its terms are satisfied. Section Three requires no legislation or adjudication to be legally effective. It is enacted by the enactment of the Fourteenth Amendment. Its disqualification, where triggered, just is. It follows that Section Three’s disqualification may and should be followed and carried out by all whose duties are affected by it. In many cases, Section Three will give rise to judiciable controversies in the courts. In others it will be enforceable by state and federal officials. But no prior judicial decision, and no implementing legislation, is required for Section Three to be carried out by officials sworn to uphold the Constitution whose duties present the occasion for applying Section Three’s commands. Section Three is ready for use.

While Section Three’s requirements could be made the subject of enforcement legislation by Congress, under its general power under Section Five of the Fourteenth Amendment “to enforce” the provisions of the amendment, no such legislation is constitutionally required as a prerequisite to Section Three doing what Section Three itself does. Chief Justice Salmon P. Chase’s circuit court opinion to the contrary, In re Griffin,6 is simply wrong on this point—full of sleight of hand, motivated reasoning, and self-defeating maneuvers—as we will explain at length. In re Griffin should be hooted down the pages of history, purged from our constitutional understanding of Section Three.

Third. Section Three supersedes (or satisfies) earlier-enacted constitutional provisions to the extent of any supposed conflict between them. Section Three, at the time it was adopted as part of the Constitution, imposed a disqualification from office based on an individual’s past conduct. Even if imposition of such a disability might otherwise, if done by statute, have been a forbidden Ex Post Facto law or Bill of Attainder, Section Three of the Fourteenth Amendment constitutionally supersedes any prior provision conflicting with its terms.

This principle extends to a more unsettling point. To the extent Section Three’s disqualification for having “engaged in insurrection or rebellion” or giving “aid or comfort” to “the enemies” might turn out to be in tension with the First Amendment’s protection of freedom of speech, Section Three supersedes the First Amendment to the extent of any true conflict. To be sure, the proper construction of Section Three’s terms (“insurrection,” “rebellion,” “aid and comfort,” “enemies”) will leave much speech and advocacy completely free. But in the cases where it does not, the terms of Section Three, not the constructions of the First Amendment, decide where the line is.

This leads to the article’s fourth and final group of points:

Fourth. Section Three’s disqualification is sweeping in its terms. It disqualifies from future officeholding persons who “engaged in”—an expansive and encompassing term connoting many forms of participation in or active support of—a broad swath of activity covered by the terms “insurrection or rebellion” or the giving of “aid or comfort” to “enemies” of the nation or its constitutional order. It applies to a broad swath of civilian, military, and legislative office holders who swore oaths of fidelity to the Constitution, and it disqualifies such persons from holding in the future any of an extraordinarily broad swath of public offices. Taking Section Three seriously, on its own terms, means taking seriously the enormous sweep of the disqualification it creates. And, we will argue, taking Section Three seriously means that its constitutional disqualifications from future state and federal officeholding extend to participants in the attempted overturning of the presidential election of 2020, including former President Donald Trump and others. The substantive terms of Section Three’s prohibition are not themselves difficult or inscrutable (even if there might be questions of application at the outer edges of the text’s meaning). But they are potentially breathtaking in their straightforward consequences.

In what follows, we develop each of these four core points at length.

Section Three remains a valid, prospective, enforceable, self-executing, broad, and relevant part of our Constitution. It falls to us to fulfill our duties to it. These include the duties of legislative bodies, state and federal election officials, executive officers, and perhaps others to take up the Constitution, including Section Three of the Fourteenth Amendment, and wield it faithfully and forcefully against its enemies. Taking Section Three seriously means excluding from present or future office those who sought to subvert lawful government authority under the Constitution in the aftermath of the 2020 election by engaging in or giving aid or comfort to acts of “insurrection or rebellion” against the lawful constitutional order.

I. Section Three is Legally Operative Today

A. The Generality and Presumptive Perpetuity of Constitutional Language

The first step in our argument is an easy one, but perhaps not immediately obvious to everyone: Section Three’s disqualification remains an operative rule of the Constitution. The reason this might not be obvious, at least to the uninitiated, is that Section Three plainly was designed for a specific historical situation—the circumstances of Reconstruction following the end of the Civil War. The implication, in the eyes of some, might be that that historical situation limits the scope of the provision’s operation. We think any such inference badly mistaken. Section Three was prompted by historical circumstances, but that does not in any way detract from its enduring force.

To be sure, Section Three clearly bears the hallmarks of its historical context. It is, for one thing, a radical rule. The sheer sweep of the disqualification from offices that it imposed on former Southern office-holders-turned-rebels was dramatic. Its operation was hugely disruptive of antebellum patterns of elite political leadership, apparently indifferent to inconvenience, and seemingly rather punitive in its consequences. Section Three is harsh. It is categorical. It is insistent. It seems to have been deliberately designed to turn the prior Southern political order upside down. As Eric Foner puts it, “Section 3 aimed to promote a sweeping transformation of Southern public life.”7

In these respects, the disqualification reflects and embodies the distinctive political impulses of the so-called Radical Republican Congress that proposed the Fourteenth Amendment in 1866. If its disqualification had radical policy consequences for the South, so be it.8 It was more important to strip insurrectionists and rebels of governing power completely, to remake Southern political society thoroughly, and to prevent Southern backsliding from the full consequences of Union victory entirely, than to be concerned about such things as seeming harshness, impracticality, or disruptiveness. Section Three is very much a creation and creature of its day.

Yet it is (or should be) basic constitutional law that it is the enduring text of the Constitution that supplies the governing rule, not the ostensible “purpose” or specific historical situation for which the text was written. Constitutional provisions, written into our fundamental law, live beyond the circumstances that prompted their adoption. And many such constitutional provisions are written in broad, or general, terms that obviously extend beyond the specific situation or situations that led to their enactment. Sometimes this is by design: the text’s drafters wrote a general rule, applicable to a broad class of circumstances, as a more general, “neutral,” way of addressing a class of situations of which the specific problem motivating the writing of the text might be just one instance. The thinking might be that if the principle giving rise to the text is a correct one, it should be correct in like circumstances, not just the one situation that provoked the rule’s adoption. And sometimes a text’s breadth and generality might not reflect conscious design: the text’s drafters wrote a general rule that unintentionally went further than the problem they had in mind. Put colloquially, the text sometimes “overshoots” its drafters’ intended purposes. (A text might undershoot the problem its framers had in mind to address, too—or achieve only part of its intended purpose, perhaps because of political compromise.)

The reason does not really matter. It is the rule as drafted and enacted in the written text that counts, whether it goes further than the purposes supposed to have inspired its adoption, or even whether it falls short of fully achieving those purposes. While evidence of intention, usage, purpose, and political context can assist in ascertaining the meaning of the enactment, it is that objective meaning that constitutes the law, not the ostensible purposes or motivations that supposedly lay behind it. This is “originalism,” our system’s basic method for interpreting the Constitution and its amendments.9

Consider, for example, Section One of the same Fourteenth Amendment. As a matter of historical purpose, the specific mischief the framers of Section One had in mind was the enactment of “Black Codes” in Southern States that discriminated against the newly freed former slaves. But the words chosen by the drafters to enact the rule embodied in the text command, in general terms, that no state shall abridge the “privileges or immunities of citizens of the United States” nor deny to any “person” within its jurisdiction the “equal protection of the laws”—rules not cast in racial terms at all, let alone limited to the immediate situation of former enslaved persons. The rules enacted apply to all persons irrespective of race. So it was entirely plausible for lawyers to argue that Section One also barred the same kind of discrimination against women citizens that it barred against black citizens. It doesn’t matter that the draftsmen of the amendment might not have had women “in mind” if women are covered by the meaning of the words they actually wrote and ratified.10 Similarly, it was entirely plausible to argue that Section One went so far as to ban racially segregated schools.11 The answers to each of these questions turn on the objective, original meaning of “privileges or immunities of citizens of the United States” and “equal protection of the laws,” not whether the 1866 Congress and subsequent ratifiers had thought through the possible radical implications of their own work. If the meaning of the Fourteenth Amendment’s terms forbade racially discriminatory classifications of any and all kinds, as a matter of the rules of late1860s language and usage, it doesn’t matter one way or the other whether it was intended or expected that governments could enforce certain types of racial discrimination, like enforced racial segregation. The rule as adopted might overshoot the purposes, expectations, or desires of those who voted for it. But the rule is the rule; the text’s meaning is the text’s meaning.

Thus, if the framers and ratifiers of the Fourteenth Amendment enacted a general rule in Section Three—a disqualification from future officeholding keyed to having taken an oath to the Constitution and subsequently engaging in insurrection or rebellion against the United States—rather than a provision that by its terms applied only to the case of former Civil War secessionists and Confederate officials and officers,12 it is the general rule that matters. That the rule had a particular political purpose behind it as a matter of history might be an aid to correct interpretation of the language supplying that rule. (We will make such an argument below, concerning the meaning, in context, of the phrase “insurrection or rebellion.”)13 But in the end the question is what rule was enacted. If Section Three’s rule fell short somehow, missing some folks its drafters might have meant to ensnare, those persons are not ensnared. The text might (or might not) be thought deficient in this regard—as having failed to fulfill its full purpose. But the text means what it says. Similarly, if the rule supplied by the objective meaning of the text runs right on past the specific historical purpose for which it was enacted and embraces as well other insurrectionists, rebels, and aiders and comforters of enemies, that rule must be given full legal effect as part of the Constitution. The rule’s overbreadth in terms of its perceived purpose, and even its inconvenience as a consequence of such overbreadth, are beside the point.14

Finally, we take it as almost too obvious to require stating that constitutional provisions have indefinite life unless and until repealed or amended by subsequent constitutional enactments. The fact that an unrepealed, unamended provision of law is “old” does not in any way weaken its legal force. The First Amendment is old too, as is the entire original Constitution. But both remain in force. This is true even if the purpose for which a constitutional provision was originally written has ceased to be relevant, or even if the constitutional provision at issue might be thought in today’s society to be something of an anachronism.15 There are, of course, some self-identified living constitutionalists who deny this point—who think that old texts have a legal shelf life and lose their potency over time, as “the interest in sovereignty fades.”16 But in our view, this just shows what is wrong with such living constitutionalism.17 The Constitution is not a spice cabinet.

All of this might seem to belabor the obvious. Few interpreters of Section Three explicitly deny that it continues to govern new insurrections and rebellions.18 But sometimes we wonder if this kind of denial is sneaking in to people’s intuitions—subtly infecting and distorting the actual interpretation of Section Three. So let us start from the right first principles: Section Three remains constitutionally fully in force, as alive as the day it was enacted.

B. Has Congress Removed the Disability for Everyone for All Time? (And Could It Do So If It Wanted To?)

But what about this? The second sentence of Section Three provides that Congress “may by vote of two-thirds of each House, remove such disability.”19 Just as the first sentence’s disqualification is not limited specifically to the Civil War, neither is Congress’s power to grant amnesty. Thus, Congress can, by the requisite vote, remove any disqualification that exists by virtue of the operation of Section Three. But just exactly how far does that power reach? Could Congress, by two-thirds majorities, essentially extinguish the legally operative effect of Section Three entirely, by removing the disability imposed by Section Three generally, prospectively, and universally? Put more vividly: Can Congress, by two-thirds vote of each house, essentially “explode” Section Three—render it inoperative in the future, for all time?

These questions turn out not to be completely hypothetical. In two statutes enacted in the late nineteenth century, Congress might arguably have done this. One statute (from 1872) removed “from all persons whomsoever”—except designated categories of individuals—all “political disabilities imposed” by Section Three.20 Another (from 1898) further removed “the disability imposed by section three of the Fourteenth Amendment to the Constitution of the United States heretofore incurred.”21 And indeed, in a recent case (brought by then-Representative Madison Cawthorn) a federal judge relied on these statutes to conclude that Section Three was now legally dead.22 Is that right? Do these statutes—can these statutes—grant amnesty to all insurrectionists, past, present and future?23

No. While the argument is not entirely bonkers, it does not withstand more serious scrutiny. It is wrong on both statutory and constitutional grounds. Consider the statutes first. Neither one purports to rescind Section Three’s operative rule for all time. They do not pretend to explode the first sentence of the constitutional provision.

Begin with the 1872 act. In 1872, after a period of case-by-case consideration of amnesty requests, Congress, as mentioned above, enacted a general statute removing disqualification from a broad description of persons embraced by Section Three’s prohibition. As Professor Magliocca recounts, the statute reflected a mixture of motives: genuine mercy and magnanimity; the practical consequences of Section Three in the South; the burdens and biases of case-by-case consideration of private bills; the politics of a presidential election year; and the general but regrettable retreat from aggressive Congressional Reconstruction.24 But what is most important is what it says. The statute reads, in full:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each house concurring therein), That all political disabilities imposed by the third section of the fourteenth article of amendments of the Constitution of the United States are hereby removed from all persons whomsoever, except Senators and Representatives of the thirty-sixth and thirty seventh Congresses, officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States.25

The key words are “imposed” and “[hereby] removed.” The words of the 1872 statute are used in the past tense: the statute removed disqualifications imposed by the Fourteenth Amendment—that is, disabilities that had already become legally effective. That is simply the natural reading, and the natural implication, of the language employed.

Indeed, this is almost exactly what the Fourth Circuit recently said in reversing the district court’s decision in the Cawthorn case: Congress in 1872 employed “the past-tense version” of the verb “impose,” thus “indicating its intent to lift only those disabilities that had by then been ‘imposed.’”26 Moreover, the Fourth Circuit continued: “[t]he operative clause’s principal verb—‘removed’—reinforces this conclusion. In the mid-nineteenth century, as today, that word generally connoted taking away something that already exists rather than forestalling something yet to come.”27

By contrast, the district court had faulted Congress for not being more explicit: Congress “could have limited the Act to remove Section 3’s disabilities from ‘persons currently subject to the disabilities’ or ‘persons against whom the disabilities were lodged’ at the time (i.e., the ‘Confederates’) but did not do so.”28 Therefore, the district court concluded, by the “plain language of Section 3 and the 1872 Act, Congress removed all of Section 3’s disabilities from all persons whomsoever who were not explicitly excepted.”29 With all due respect, the district court appears to have been simply hoodwinked by the (for lack of a better word) feel of the “all persons whomsoever” language and completely missed the other language that made clear the statute’s past tense.

What about the 1898 statute? Does it yield a different result? On the cusp of the Spanish-American War, at a moment of seeming national unity and perhaps a desire to put aside old sectional grievances (and, one might add more cynically, at a time of rising Jim Crow sentiment)30—Congress enacted another general disqualification-removal statute. This one removed the disqualification for everybody, without exception. Its language is even more laconic:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the disability imposed by section three of the Fourteenth Amendment to the Constitution of the United States heretofore incurred is hereby removed.31

In one sense, that’s about as categorical, across-the-board a disqualification-removal as one can imagine: the disability imposed by section three is hereby removed. Period. No exceptions. But here it is also even clearer that the 1898 act is backward-looking. Like the 1872 act, the 1898 act uses past-tense language: a disability (already) “imposed” is now being “removed” from its prior legal existence. What’s more, the 1898 says that the Section Three disqualification being removed was one “heretofore incurred.” That is unmistakably backward-looking, past-occurrence language.

What might otherwise—that is, but for the clarity of the “heretofore incurred” language—give the 1898 act the feel of a now-and-ever-shal--t-be removal, eliminating all future Section Three disqualification as well as any and all extant ones, is the Act’s reference to “the disability” imposed by Section Three. This singular reference might be taken to suggest that Section Three’s disqualification was thought a one-time-only, single-shot, Civil War era occurrence.32 If Section Three was good for one rebellion only, then repealing it in the past tense repeals all that there is. But of course, as we have argued, Section Three is not limited to one rebellion only, and so far as we can tell even the Fifty-fifth Congress did not think that it was33 (nor would it matter if they did).

In any event, though these statutes do not even purport to sunset Section Three for the future, they do prompt us to consider the interesting question of Congress’s constitutional power: What if they did purport to sunset Section Three for the future? Is Congress’s constitutional power to remove Section Three’s disqualification general and prospective, letting it remove Section Three’s disqualification once and for all, including for future situations? We think not.

To be clear, we don’t think there’s anything inherently unthinkable or absurd about the idea of an “exploding” or otherwise defeasible constitutional provision. Legal drafters might sometimes want to provide for an expiration event or expiration date, even in an enduring Constitution. Article I’s Slave Importation Clause, protecting the international slave trade, exploded after twenty years.34 So too the initial allocation of representatives to states is written in to the text of the Constitution, even though it was then exploded by the subsequent census.35 Other provisions of the Constitution set baseline rules that Congress has power to modify. Article I, section 4 does that with respect to state legislative power over congressional elections: “Congress may at any time by Law make or alter such Regulations.”36 Article III, section 2 does that with respect to the Supreme Court’s appellate jurisdiction, setting a default rule subject to “such Exceptions, and under such Regulations as the Congress shall make.”37 The Twentieth Amendment, in Section 2, sets a default date of Congress’s annual meeting.38

There’s no reason why the framers of the Fourteenth Amendment could not have similarly drafted Section Three to provide for the provision’s own extinction after a supermajority vote of Congress.39 But that is simply not what Section Three says. The second sentence of Section Three is not a grant of power to explode, or amend, the content of the rule stated in the first sentence. It is a grant of power to remove the consequences of the rule’s operation.

To see this, break down Section Three into its component parts: Section Three has two sentences. The first one describes at length the disqualification for those who have taken a covered oath and engaged in insurrection or related conduct. Of course, those two things must actually have happened for the rule of Section Three’s first sentence to be triggered—for a disqualification to have come into legal effect.

The second sentence (the “But” sentence) then gives Congress the power to “remove such disability.” (“But Congress may by a vote of two-thirds of each House, remove such disability.”) The “But” sentence explicitly cross-references the first. Thus, the most natural reading of the two sentences in relation to each other is that the second sentence confers an exceptions power that only comes into existence when the conditions specified in the first sentence have occurred. And to belabor the point a moment further, the word “Remove” means (and meant at the time, according to 1864 dictionaries) to displace or take away something that already exists.40 This confirms that Congress’s removal power therefore only comes into being when a legal disqualification has vested by virtue of the operation of Section Three’s first sentence.

Section Three’s first sentence is written as a general and prospective rule, not limited to the specific instance of the Civil War. Section Three’s second sentence is written as a continuing power to grant relief from disabilities already imposed by the operation of the first sentence. The power to remove an extant legal disability is not a power to rescind the legal rule that creates that disability. Thus, not only has Congress never purported to sunset Section Three, it lacks the power to do so by Section Three’s own terms.

* * *

All of this is, we submit, basic. But it is also foundational. Section Three remains legally operative as part of the U.S. Constitution. Its rule of disqualification is general, not limited to the Civil War era. It states a rule of law embodied in the written constitutional text as permanent fundamental law. It possesses prospective force and applies to new situations: wherever the rule applies, the rule applies. And while Congress comprehensively relieved insurrectionists of the disability of disqualifications incurred prior to 1898, it did not (and could not) erase Section Three from the Constitution. Section Three remains in force.

Is anything more required, then, before this provision of the Constitution can (and must) be given effect by U.S. political actors whose powers and duties are such as to call for application of Section Three as a rule of law? Put somewhat differently: Is Section Three a self-executing rule of constitutional law, complete in itself? Or does Section Three require implementing legislation by Congress or some other further legal or administrative action before it has legal force? We take up that question next.

II. Section Three is Legally Self-Executing

Our second point is colossally important—a major sticking point for some. But it is a point we think should be obvious: Section Three is self-executing. That is, its disqualifications from office are constitutionally automatic whenever its conditions for disqualification are met. Nothing more needs to be done in order for Section Three’s prohibitions to be legally effective. Section Three requires no implementing legislation by Congress. Its commands are enacted into law by the enactment of the Fourteenth Amendment. Where Section Three’s legal rule of constitutional disqualification is satisfied, an affected prospective officeholder is disqualified. Automatically. Legally.

In the years immediately after the Fourteenth Amendment was adopted this seemingly obvious reading of Section Three was deemed inconvenient, rejected in the highest quarters, and has since faded from view. We thus give the point considerable attention here. Our analysis here is organized in three steps. First, we take Section Three itself, and explain why it has direct legal effect. Second, we discuss how this legal effect can and must be recognized by all persons and institutions who have the occasion to apply it in the performance of their duties—election officials, state and federal administrators, legislatures, courts. Third, we consider at some length the leading counterargument to our view: the 1869 opinion written by Chief Justice Salmon P. Chase as a circuit court judge in Griffin’s Case. Even if the result in that case is defensible—which is far from clear, and raises grave separation of powers problems of its own—its argument against self-execution is so wrong as to prove our case. Section Three is legally self-executing as operative constitutional law.

A. Section Three as Automatic Legal Disqualification

Before we consider Section Three itself, consider the Constitution as a whole. Though too many constitutional law teachers and casebooks begin their study of the Constitution with questions of judicial review, and cases like Marbury,41 in doing so they put the cart before the horse. The horse is the Constitution, which is itself the “supreme law of the land.”42 Our system is one of constitutional supremacy, not judicial supremacy or legislative supremacy. As a general matter, this means that it is the Constitution which states the law, and it is the job of government officials to apply it, not the other way around.

This general truth is no less true of Section Three. Section Three’s language is language of automatic legal effect: “No person shall be” directly enacts the officeholding bar it describes where its rule is satisfied. It lays down a rule by saying what shall be.43 It does not grant a power to Congress (or any other body) to enact or effectuate a rule of disqualification. It enacts the rule itself. Section Three directly adopts a constitutional rule of disqualification from office.

This should be no surprise, as the same thing is true of the Constitution’s other rules of disqualification from office. A person who has not attained to the age of thirty-five is not qualified to be President of the United States. This disqualification is automatic. The Constitution’s rule is self-executing. “No person . . . shall be eligible” to be President who does not satisfy the age requirement.44 The disqualification requires no further legislation or other action, by anybody, to be operative. The disqualification simply is. So too for Article II’s citizenship and length-of-residency eligibility prerequisites for the office of President. And so too for the constitutional qualifications—age, citizenship, state inhabitancy—for members of the House and Senate: “No Person shall be” a Representative who does not meet Article I, section 2’s requirements.45 “No Person shall be” a U.S. Senator who does not meet Article I, section 3’s requirements.46 These restrictions on eligibility are legally binding simply by virtue of their presence in the Constitution.

The language of Section Three of the Fourteenth Amendment parallels, even duplicates, the language used in these other provisions to express other constitutional disqualifications from officeholding.47 None of these disqualifications requires any further legal action or legislation to be operative. Where a constitutional legal disqualification exists, it simply exists. It is a binding rule of constitutional law.

Again, this kind of binding rule should be no surprise. The Thirteenth Amendment’s ban on slavery, enacted a few years earlier, works the same way. Immediately upon adoption of the amendment, slavery was legally extinguished as a matter of constitutional law. “Neither slavery not involuntary servitude . . . shall exist …,” the Thirteenth Amendment provides.48 The institution of slavery was immediately, legally, constitutionally gone.49 The Thirteenth Amendment contains a separate section granting Congress the power to enforce the prohibition of slavery.50 But that enforcement power scarcely means that the ban on slavery contained in Section One was inoperative unless and until Congress passed legislation making it operative. Such a position would be ridiculous. The power to enforce adds to the substantive prohibition—it is not a subtraction from or suspension of it.

And of course, the same is true elsewhere in the Fourteenth Amendment too. We take it as obvious that Section One is self-executing. Section One of the Fourteenth Amendment, like Section Three states directly operative rules of constitutional law: “No state shall,” in Section One, and “No person shall” in Section Three.51 Both of these provisions are subject to additional enforcement legislation by Congress under Section Five. Yet it is common ground that Section One is self-executing. Nobody thinks (for example) that the prohibitions of Section One are inoperative unless and until Congress enacts legislation pursuant to its Section Five legislative power to bring them to life.

In each instance, Congress certainly can enact legislation “to enforce” the Thirteenth and Fourteenth Amendments’ commands, pursuant to their grants of legislative power.52 Doing so can unlock additional procedural mechanisms, additional deference by courts to Congress’s view of the law, and so on. The Civil Rights Act of 1866, the Ku Klux Klan Act of 1871 and more were designed to enforce Section One of the Thirteenth and Section One of the Fourteenth Amendment. But, to repeat, the existence of an enforcement power does not mean that the Amendment’s specific legal commands lack any independent, self-executing force.53

So too, Congress in fact enacted implementing legislation in 1870 to enforce Section Three, authorizing quo warranto civil suits brought by the United States to remove state officials unconstitutionally holding office in violation of Section Three and imposing criminal penalties for knowing violations of Section Three.54 But Congress’s choice to trigger additional procedural mechanisms and federal jurisdiction for Section Three cases does not mean that there was no constitutional prohibition before Congress acted.55 Congress enforced Section Three’s prohibition. Congress was not the one to give it legal effect. Section Three was effective law all along.

Section Three is also noticeably different from other constitutional provisions that deal with misbehavior—provisions that are not self-executing in the same way. Article III, for instance, describes the offense of treason:

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.56

Note the contrast. The Treason Clause defines an offense (“Treason . . . shall consist”) but it does not itself convict anybody of treason. Section Three, by contrast, enacts its own disqualification (“No person shall be”). It acts on persons, not offenses. This is driven home by the Treason Clause’s specific procedures and powers: “[C]onvict[ions] of treason” require two witnesses or a public confession; and “Congress shall have power to declare the punishment of treason.” Section Three of the Fourteenth Amendment, by contrast, is offense, conviction, and punishment all rolled in to one.

Similarly, the Constitution’s impeachment provisions say that those who are impeached “shall be removed from Office.”57 But the Constitution does not itself impeach anybody. Instead, it specifies that somebody else—the House and Senate—must do the impeaching.58 Again, Section Three’s contrast is glaring. The framers of Section Three had the treason clause and impeachment clauses at hand and chose a noticeably different path.59 Section Three does not call for treason trials or the impeachment of secessionists. It directly imposes an across-the-board disqualification and involves Congress only if Congress wishes to end it.

Section Three’s constitutional disqualification, where applicable, just is. It stands on its own as a constitutional rule of law, having come into legal force “as Part of this Constitution,” along with the rest of the Fourteenth Amendment, “when ratified” as a constitutional amendment.60 It immediately became “supreme Law of the Land.” 61 Its rule took immediate effect. Section Three is, in that sense, legally self-executing.

Is there any serious textual argument to the contrary? We will address Chief Justice Chase’s conclusion in Griffin’s Case in a moment. But we suspect that resistance to this point often comes instead from some misdirected intuitions. One is the problem of supposed difficulty. It seems easy, perhaps, to apply the constitutional qualifications of age and citizenship.62 It is pretty obvious what these are and obvious what they demand that we do. But who exactly is disqualified by Section Three is, at least to initial appearances, a more difficult, complicated, and fact-specific question. It is a more difficult question of law because we must plumb the meanings of “insurrection” and “rebellion” and so on—and these meanings are not quite as self-evident as “thirty-five years of age” (at least until this article is widely read and accepted). And it is more difficult in practice, because even once we know what the terms of Section Three mean, we must know what exactly every prior-oath-sworn official did.

Not all participation in insurrection or rebellion is open and notorious. More difficult it may be, to interpret and apply the disqualification of Section Three than the disqualifications of age, citizenship, and residency. But the fact of difficulty is a non sequitur. The fact that it might be hard for us to know today what a legal rule means (or how it applies) does not mean that it is not the legal rule.63 The Constitution says what it says and we must try to apply it as best we can. To start by asking what is easy for us, and then to assume that the Constitution must mean something that makes our lives easy, is as fallacious as drawing the curve before gathering the data points.64

Resistance might also come from the problem of enforcement. The Constitution is generally self-executing law, but still, somebody has to enforce it. Somebody has to read it, understand it, and ensure that our practices conform to its commands. (Many somebodies, actually, as we discuss shortly.) This is true, but again it is a nonsequitur. It is true that government officials must enforce the Constitution, and who does this and how they do it are important questions, maybe the central questions of constitutional law. But the meaning of the Constitution comes first. Officials must enforce the Constitution because it is law; it is wrong to think that it only becomes law if they decide to enforce it. Section Three has legal force already.

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Part 2 of 8

B. Who (All) Can (Must) Faithfully Apply and Enforce Section Three?

As we just said, even though Section Three is a self-executing, immediately applicable constitutional legal rule, someone needs to do the actual applying of that rule to particular situations where its application is called for. Section Three’s constitutional disqualification exists of its own force as an abstract matter. But someone needs to bring that legal rule to bear in a concrete situation as a practical matter.

Who has the power and duty to do this? We think the answer is: anybody who possesses legal authority (under relevant state or federal law) to decide whether somebody is eligible for office. This might mean different political or judicial actors, depending on the office involved, and depending on the relevant state or federal law. But in principle: Section Three’s disqualification rule may and must be followed—applied, honored, obeyed, enforced, carried out—by anyone whose job it is to figure out whether someone is legally qualified to office, just as with any of the Constitution’s other qualifications.

These actors might include (for example): state election officials; other state executive or administrative officials; state legislatures and governors; the two houses of Congress; the President and subordinate executive branch officers; state and federal judges deciding cases where such legal rules apply; even electors for the offices of president and vice president. We will discuss in detail some of these examples presently. But two points are important to keep clear at the outset: First, all of these bodies or entities may possess, within their sphere, the power and duty to apply Section Three as governing law. Second, their authority to do so exists as a function of the powers they otherwise possess. No action is necessary to “activate” Section Three as a prerequisite to its application as law by bodies or persons whose responsibilities call for its application. The Constitution’s qualification and disqualification rules exist and possess legal force in their own right, which is what makes them applicable and enforceable by a variety of officials in a variety of contexts.

Consider some illustrations:

1. Seeking Office

a. by election

Anybody who seeks office will at some point need to show that they are entitled to hold that office. At every point that this occurs, Section Three governs. So, for instance, state or local election boards, and state Secretaries of State, may possess state-law authority to make at least initial determinations as to eligibility of candidates for elected office in that state or representing that state in Congress (as authorized by Article I, section 4 of the Constitution)—and, thus, whether or not such candidates shall be placed on a primary or general election ballot.65 Those state bodies or officers are obliged, often by oath—sometimes by oath mandated by the U.S. Constitution—to act consistently with the requirements of the Constitution in the discharge of their duties.66 Accordingly, such state actors can and must apply Section Three’s disqualification in carrying out their state-law responsibilities—just as they possess the authority and duty to comply with and enforce the Constitution’s other qualification-for-office requirements.67

For an example of how this process is supposed to work, consider how the state of Georgia entertained a Section Three challenge to the qualifications of Representative Marjorie Taylor Greene under Georgia law. A state administrative law judge took evidence about Representative Greene’s involvement in the events of January 6, 2021.68 The judge proceeded under the theory that if January 6 was a constitutional “insurrection,” and if Representative Greene had been part of it, she would be barred from office.69 But it concluded that the challengers had failed to meet their burden of proof under state law: “In short, even assuming, arguendo, that the Invasion was an insurrection, Challengers presented no persuasive evidence Rep. Greene took any action—direct physical efforts, contribution of personal services or capital, issuance of directives or marching orders, transmissions of intelligence, or even statements of encouragement—in furtherance thereof on or after January 3, 2021.”70 Secretary of State Brad Raffensberger issued a final decision ratifying the hearing officer’s proposed findings that day.71

Such determinations about ballot eligibility may also be subject to further judicial review. In state courts, these procedures will of course depend on what review is available under state law. Similarly, federal courts might well possess jurisdiction, subject to the usual federal jurisdiction doctrines (such as standing, ripeness, mootness, and abstention), to decide cases of candidate eligibility. Continuing the example, Representative Greene did file a federal lawsuit attempting to enjoin the then-pending state proceedings (mentioned above), and the district court concluded that the case was justiciable and that Younger abstention did not apply, but that Greene’s claims failed on the merits.72 While Greene’s appeal to the Eleventh Circuit was pending, she prevailed in the state proceedings, so the case was dismissed as moot.73 The details, of course, will vary from case to case. But where any of these tribunals has jurisdiction they too obviously have the power and duty to apply Section Three as the supreme law of the land.

This is not to say that states must provide any particular procedure for bringing a challenge to ballot eligibility qualification or grant a cause of action to particular private individuals to bring such challenges. For instance, in a recent suit seeking to disqualify Arizona Representative Mark Finchem and U.S. Representatives Paul Gosar and Andy Biggs from the 2022 primary ballot, the Arizona Supreme Court concluded that state law did not provide a private cause of action for a disqualification challenge.74 In principle, that could well be right. Whether to provide a cause of action in such cases is largely a question of state law. Section Three slots in to existing powers and procedures without mandating or micromanaging them.

That said, the Arizona Supreme Court’s muddied reasoning in the Finchem-Gosar-Biggs case necessitates a few clarifying points. First, state law can enforce Section Three, and the Fourteenth Amendment does not place any particular presumption against doing so. Unfortunately, the Arizona Supreme Court suggested otherwise, writing that “Section 5 of the Fourteenth Amendment appears to expressly delegate to Congress the authority to devise the method to enforce the Disqualification Clause . . . which suggests that A.R.S. 16351(B) does not provide a private right of action to invoke the Disqualification Clause against the Candidates.”75 This inference is mistaken—Congress’s power to enforce federal law, including constitutional law, is not exclusive of the states, and states regularly enforce federal law including constitutional law in their own courts.76

Second, in some circumstances state law not only can but must enforce Section Three. Under the rule of Testa v. Katt,77 where a state does open its courts to a cause of action, it must apply federal law evenhandedly to that cause of action. As the unanimous Court put it: “[T]he Constitution and the laws passed pursuant to it are the supreme laws of the land, binding alike upon states, courts, and the people, ‘anything in the Constitution or Laws of any State to the contrary notwithstanding.”78 And thus “the policy of the federal Act is the prevailing policy in every state.”79 A state cannot treat federal obligations the way it can treat foreign ones.

The Arizona Supreme Court’s decision unfortunately can be read to suggest otherwise. The court cryptically wrote that the state “statute’s scope is limited to challenges based upon ‘qualifications . . . as prescribed by law,’ and does not include the Disqualification Clause, a legal proscription from holding office.”80 If the court meant to distinguish federal constitutional qualifications from state statutes, it seems to have violated Testa. If the court meant that Section Three’s disqualification is not a “qualification,” that seems nonsensical. And if it meant something else, it is hard to figure out what.

In any event, the real question is what procedure is available for determining whether a candidate is qualified to office. That is basically a question of state law, and the correct procedures will likely vary from state to state. But the courts owe state law a full and fair reading, not one slanted by reticence to acknowledge the life in Section Three.

b. by appointment

Now let us turn to appointments. Just as with elected office, anybody who must decide whether an appointee is qualified must comply with Section Three. Traditionally this includes at a minimum whoever nominated the officer.81 Thus governors, presidents, and other nominating authorities can and should—indeed, constitutionally must—decline to nominate and appoint to state or federal offices persons who are constitutionally disqualified by Section Three. And likewise, where nominating authority is subject to additional confirmation—by a state senate, the U.S. Senate, or any other body—that body presumably can and should, constitutionally must, decline to consent to the appointment of such constitutionally disqualified nominees.82

In other words, the election and appointment systems, from top to bottom, frequently make decisions about a candidate’s eligibility for office. All of those decisions are legally bound by Section Three of the Fourteenth Amendment; and all persons making such decisions are correspondingly bound to faithfully interpret, enforce, and apply Section Three.

2. Holding Office

What about those who already hold office—either because Section Three was not attended to before they gained office, or because their disqualifying conduct happened later?83

Once again, the answer turns in part on what procedures are available under other law. State officials can be subject to a variety of remedies for unlawfully holding office. They might (or might not) be subject to removal, as a matter of state law, by a private suit quo warranto, by the authority of another executive or judicial officer or administrative board, or perhaps even by the state legislature exercising powers of impeachment or recall. In addition, it is possible that the salaries of such rightfully-disqualified officials—and the legal eligibility of such persons for those salaries—might be subject to the authority and determination of some other state official.

We submit that all such officials—administrators, executives, legislatures—possessing legal authority concerning such matters likewise possess the authority (and duty) to interpret, apply, and enforce Section Three’s disqualification in the course of exercising that legal authority. And once again: if such determinations are judicially reviewable under state law, the courts likewise possess the authority and duty to interpret, apply, and enforce Section Three.84

For an example of how this process is supposed to work consider how the state of New Mexico removed commissioner Couy Griffin from state office.85 Griffin was an elected commissioner for Otero County, New Mexico, who promoted, assisted, and ultimately joined in the January 6 insurrection against the Capitol. A group of New Mexico citizens filed a quo warranto action against Griffin under New Mexico law, seeking his removal from office. The New Mexico district court took evidence, received legal arguments, and then concluded that Griffin was disqualified under Section Three. More precisely, and quite correctly, it held that Griffin had been disqualified since the day of the January 6 insurrection, and ordered his immediate ejection from office, and permanently enjoined him from seeking or holding any other covered position.86

As a matter of state procedure, the court concluded that the New Mexico quo warranto statute was a remedy for ejecting unlawful office holders.87 It also concluded that quo warranto could be sought by any citizen of New Mexico, without any further showing of injury, because the New Mexico courts are not bound by the same “standing” limitations as the federal courts are. As a matter of federal law, the court had no trouble concluding that the events of January 6. 2021 were a constitutional “insurrection.” And it had no trouble concluding that Griffin had engaged in that insurrection, both by “voluntarily aid[ing] the insurrectionists’ cause by helping to mobilize and incite” the crowd, and by joining in the invasion of the Capitol itself, even though Griffin himself did not commit a violent act.88 The New Mexico county court correctly recognized both its power and its duty to interpret and apply Section Three of the Fourteenth Amendment.

The same general principle applies to the situations of those who hold federal office. Again, anyone who possesses legal power to decide whether such a person can and should hold (or continue to hold) the office in question must apply Section Three’s disqualification in doing so.89 Here, the specific federal constitutional rules for tenure and removal present some interesting complications, which we address shortly.

But in general: wherever anyone possesses the constitutional authority or duty to remove others from office for legal reasons, they can and should remove those barred by Section Three. Presidents—and subordinate executive officers acting at the president’s direction—should remove from office executive officers, civil and military, who are constitutionally disqualified by Section Three. Likewise, the House of Representatives should impeach, and the Senate convict and thereby remove from office, civil executive officers who become constitutionally disqualified by Section Three.90

Finally and additionally, what happens if all of the above fails? Somebody disqualified by Section Three is given office and nobody removes that person from office. What then? Here too there will often still be additional procedures to enforce Section Three. These procedures mirror those available to enforce the Appointments Clause and other constitutional law of appointments. A litigant can move to disqualify a judge whose appointment is improper.91 A regulated entity can challenge the actions of an executive official who holds office improperly.92 Those who cannot constitutionally hold office cannot constitutionally exercise government power, so the subjects of that power can challenge their acts as ultra vires. While there may be some limits to the available relief in some kinds of suits under the “de facto officer doctrine,” (more on which shortly), in many cases the courts will be called on to decide if an action is ultra vires. Section Three governs those cases.

3. Special Situations

A few federal constitutional offices raise special cases, where the Constitution itself speaks to official tenure or qualifications.

First consider Congress. Each house of Congress has two specific powers with respect to its own membership in which Section Three might come into play. First, each house has power to “Judge of the Elections, Returns, and Qualifications” of “its own Members.”93 Since one of those qualifications is non-disqualification under Section Three, each house can and must judge whether Section Three forbids the seating of a member. This judgment is conclusive, and it operates as a crucial constitutional backstop for each house. No state or group of voters can force upon the House or Senate a Member it judges to be constitutionally disqualified. Indeed, even federal courts could not properly do so. While the Supreme Court has held, in Powell v. McCormack,94 that Congress cannot create new “Qualifications” and that the federal courts have the power to stop it from doing so, neither Powell nor first principles allow a federal court to second-guess each house’s judgment about whether the existing, constitutional, qualifications have been satisfied. 95

Some have argued that each house’s judging power also preempts other early stages of the election process. The argument is that states and state election law have no power to exclude a candidate for Congress because they are constitutionally ineligible to office—that instead the state must allow the voters to send up the ineligible candidate, so as not to prejudge the possibility that the House or Senate will find them eligible.96 With respect, we do not agree with this argument. As a logical matter, each house’s right to judge whether an elected candidate can hold office does not give it the power to force states to elect that candidate (or allow them to be elected) in the first place. And as a textual matter, state legislatures have the power to regulate the “manner” of elections, which includes ballot eligibility.97 In our view, the better interpretation is that Section Three can be relevant to both the state’s power to regulate the manner of elections and each house’s power to judge the results of those elections.

The second relevant power each house possesses with respect to its own Members concerns Members already sitting in Congress. Each house also has power to “determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”98 So in addition to the initial power to exclude under Section Three, each house could potentially proceed through the expulsion power instead, by two-thirds vote.99 As with the power to exclude, the power to expel, where exercised within the scope of the power conferred exclusively on each house, is committed to that house’s discretion.

Federal judges hold their offices during “good Behaviour.”100 What if a sitting federal judge or even a Supreme Court justice has engaged in insurrection or rebellion or given aid or comfort to the nation’s enemies?101 As a matter of substance this is easy. Whether regarded as simply a violation of the Article III tenure condition of “good Behaviour” or as satisfying the impeachment standard of “high Crimes and Misdemeanors,”102 conduct meeting Section Three’s standard disqualifies a federal judge from office.

As a matter of procedure the question is trickier. The conventional wisdom is that Article III allows good behavior to be judged only through the procedure of impeachment by Congress. An alternative view, with some support in the history, is that Congress could provide other procedures for adjudicating misbehavior (as for instance in the 1791 Crimes Act, which purported to require the immediate removal of any federal official convicted of bribery or other crimes).103 Whichever is the answer, the procedures and criteria for judging judges can and must apply Section Three.

Finally, what about the top of the ticket? What if the President or a presidential candidate (or likewise for Vice President) is constitutionally disqualified?104 Who has the power and duty to enforce Section Three’s legal prohibition? Again, the answer depends on whether the supposedly disqualified individual is seeking election to office or already holds it. In the case of a candidate, state election officials and state election law will frequently judge that candidate’s ballot eligibility, applying Section Three as described above, and subject to the usual avenues of judicial review. That eligibility question can be a part of a state’s Article II election for electors just as much as any other state election.105 Put simply: a state secretary of state (for example) might well possess state-law authority to determine candidate eligibility for federal elective offices—President and Vice President, U.S. Representatives, U.S. Senators—selected directly or indirectly via state elections; and among those relevant eligibility criteria is whether a candidate is disqualified from the office he or she seeks by Section Three of the Fourteenth Amendment.

Additionally, presidential electors have the power (and therefore perhaps the responsibility as well) to enforce Section Three.106 In perhaps half the states, the question is more complicated, because state laws purport to bind the electors in various ways to vote for their party’s candidate rather than making their own determination, and the Supreme Court has recently upheld such laws.107 But even working within that paradigm, states and their legislatures have their own duties to uphold the Constitution. That means they have a responsibility to arrange that their electors do not elect a constitutionally disqualified candidate, which should be reflected in their laws.

If the voter and presidential electors do select a disqualified candidate for the Presidency, we do not believe that Congress (or the Vice President) have the power to reject that candidate when the votes are counted in joint session. Whatever the extent of Congress’s and the Vice President’s authority to count the electoral votes, or determine the authenticity of submitted votes—i.e., was this the act of the electors of the state?—we do not believe that they have the authority to evaluate the decisions or actors of the electors themselves.108 So if a properly selected elector submits a vote for a constitutionally disqualified individual it should still be counted.

Still, once those votes are counted, a disqualified candidate does not become president, even if he has the most votes. This is made explicit by the (self-executing) command of Section Three of the Twentieth Amendment, which sets the constitutional terms of a President’s term. It states that at “the time fixed for the beginning of [the President’s] term,” “if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified.”109 The language thus specifically confirms the possibility of a failure to qualify, and specifies the consequences of that failure. If the President-elect is covered by Section Three, he cannot become President—unless Congress chooses (by supermajority votes) to remove Section Three’s disability.

Once the President has taken office, the Constitution provides two paths for involuntary removal from office: impeachment for “high Crimes and Misdemeanors” and removal for being “unable to discharge the powers and duties of his office” under the procedure of the Twenty-fifth Amendment. We think it likely that Section Three would apply to both procedures. The impeachment route is straightforward. As we have discussed, an insurrection against the United States is a paradigm example of a high crime or misdemeanor. It also seems to us possible that a President who is, by operation of the Constitution, legally disqualified from holding his office might be said to be “unable to discharge the powers and duties of his office” within the meaning of the Twenty-fifth Amendment. To be sure, this is doubtless not the paradigm case that the authors of the Twenty-fifth Amendment had in mind. Moreover, “unable” as employed in the Twenty-fifth Amendment would appear, linguistically and structurally, akin to “inability” as used in Article II, Section 1, paragraph 6—the provision that the Twenty-fifth Amendment amends in this respect. (Paragraph 5 of Article II addresses questions of eligibility; and paragraph 6 separately addresses questions of inability.) But regardless of intention, the natural import of the words of the Twenty-fifth Amendment is that they broadly include all reasons why a president might be “unable” to perform his or her duties. And it is the meaning of the words enacted, not the subjective intentions or expectations of those who drafted them, that is what makes our constitutional law. The procedures of the Twenty-fifth Amendment are complicated and convoluted, to be sure. But where they are employed, there is a good argument that a president’s disqualification from office under Section Three is one of the grounds on which he or she might be judged “unable” to continue in that role.

* * *

Tying together all of these different procedures and possibilities: consider briefly (and not-so-hypothetically) a violent insurrection on the seat of government, by a mob joined or given aid and comfort by various government officials, from a state representative or commissioner to a U.S. Senator to the President himself.110 From the moment of their participation in the insurrection, those officials would be legally ineligible to hold their offices, thanks to Section Three of the Fourteenth Amendment. How this would play out practically might vary across them. As the state official returned home, he would immediately be subject to state law procedures such as a quo warranto suit.111 He might be removed by such a suit,112 or might well choose to resign instead.113 The Senator might choose to brazen it out, counting on the difficulty in getting together a two-thirds vote to expel him. But if he sought reelection the Senate could and should exclude him by a mere majority vote. As for the hypothetical President, by right he ought to be immediately subject to impeachment and conviction by Congress, and perhaps also a Twenty-fifth Amendment declaration by the Vice President and supported by the cabinet. Even if those things did not happen, if he sought reelection, state election officials around the country would be bound by Section Three in deciding whether to put him on the ballot, even in the primary.

And of course, some of these matters would no doubt promptly find their way into the courts as well. Continuing the example of the presidential candidate, if state officials excluded him from ballot eligibility, he would likely be able to sue in state or federal court to challenge state officials’ determination of ineligibility. And if he was not excluded by state officials, voters (at least in some states) might possess the legal right to challenge his eligibility. Either way, such a challenge would present a classic legal case or controversy. It is not difficult to imagine such suit being resolved by courts. Indeed, given the magnitude of the question and its consequences, it is not difficult to imagine such an important case making its way quickly to the U.S. Supreme Court. It would then become the province and duty of the Court to determine and apply the meaning of Section Three.

Section Three thus functions as a sort of constitutional immune system, mobilizing every official charged with constitutional application to keep those who have fundamentally betrayed the constitutional order from keeping or reassuming power.

C. The Problem of Griffin’s Case

A small problem with our view that Section Three is self-executing and immediately operative is that the Chief Justice of the United States said the opposite, almost immediately after the Fourteenth Amendment was adopted. This was the opinion in Griffin’s Case by Chief Justice Salmon P. Chase, sitting as Circuit Justice in 1869, in one of the first cases to interpret any part of the Amendment. In Griffin’s Case, Chief Justice Chase concluded that Section Three is inoperative unless and until Congress passes implementing legislation to carry it into effect.114 This precedent continues to cast a shadow over Section Three today.115

But there is a simple response to this small problem. Griffin’s Case is just wrong. It is possible—possible—that its result is correct on an alternate ground, under the so-called de facto officer doctrine, which we will discuss. But Chase’s legal reasoning that the Fourteenth Amendment is not self-executing is unsustainable. Indeed, the more one pulls at his opinion, the more it unravels. We examine it in some detail.116

1. Background

Caesar Griffin, a black man, was charged in a Virginia state court with the crime of shooting with the intent to kill. Griffin was tried, convicted, and sentenced to prison. He made no claim that the statute under which he was tried was unconstitutional; nor that he had been subjected to discrimination because of his race; nor that the composition of the jury was improper. As Chase put it: Griffin made “no allegation that the trial was not fairly conducted, or that any discrimination was made against him, either in indictment, trial, or sentence, on account of his color.”117 Nor did Griffin allege that the presiding judge—Judge Hugh W. Sheffey—“did not conduct the trial with fairness and uprightness.”118 Griffin raised just one challenge to the validity of his conviction: that Judge Sheffey (or, one might say, so-called Judge Sheffey)119 was legally disqualified by Section Three of the Fourteenth Amendment from serving.

The facts relevant to Judge Sheffey were not disputed either. He had taken the oath: Before the Civil War, Hugh Sheffey had been a member of the Virginia state legislature, as far back as 1849. And he had “engaged in” rebellion: After Virginia purported to secede from the Union, Sheffey continued to serve as a member of Virginia’s secessionist legislature. In that role, in 1862, he “voted for measures to sustain the so-called Confederate States in their war against the United States.”120 Thus “it is admitted,” wrote Chase, that Judge Sheffey “was one of the persons to whom the prohibition to hold office pronounced by the amendment applied.”121

Griffin had petitioned the U.S. district judge, Judge John Underwood, for a writ of habeas corpus challenging the lawfulness of his custody, which Judge Underwood granted.122 The sheriff appealed to the circuit court, which was held by Chase as circuit justice.123

2. Chase on Section Three

Chase reversed. Here is how he framed the problem: Everybody agreed that Sheffey had been lawfully appointed as a state judge in February 1866, while Virginia was controlled by military reconstruction and the Fourteenth Amendment did not exist.124 The question was whether ratification of Section Three kicked him out. As Chase put it: “whether upon a sound construction of the amendment, it must be regarded as operating directly, without any intermediate proceeding whatever, upon all persons within the category of prohibition, and as depriving them at once, and absolutely, of all official authority and power.”125

Chase said no, rejecting this as a “literal construction” 126 of Section Three. There is a lot going on in this opinion. Chase included a number of makeweight arguments and asides on topics such as the legal history of West Virginia.127 But his core argument was that surely Section Three cannot mean what it says: It would have bad consequences, can’t possibly have been intended by the ratifiers, and would violate the spirit of the Constitution. As we will explain, these arguments are bad ones. Chase then supplemented them with a shocking claim of a secret Supreme Court ruling in favor of an alternative approach—which was both generally improper, but also further impeached Chase’s interpretation of Section Three. All in all, Griffin’s Case is a case study in how not to go about the enterprise of faithful constitutional interpretation.

a. “The argument from inconveniences, great as these”
The core of Chase’s argument was that if Section Three were an immediately operative, self-executing constitutional rule of disqualification, it would have inconvenient consequences in the Reconstruction South. “In the examination of questions of this sort,” Chase wrote, “great attention is properly paid to the argument from inconvenience.”128 And here “the argument from inconveniences” was “great” in Chase’s estimation— it was “of no light weight.”129

In several incompletely reconstructed Southern governments, many offices were in fact held by former oath-breaking rebels.130 If Section Three were automatically operative, it would have immediately barred all such men from office. (Indeed.) Yet, Chase argued, many such disqualified persons in fact had not vacated their offices but instead continued to exercise authority under those offices notwithstanding the ratification of the Fourteenth Amendment. To give Section Three immediate effect would thus upset the apple cart in a fairly major way. “No sentence, no judgment, no decree, no acknowledgement of a deed, no record of a deed, no sheriff’s or commissioner’s sale—in short no official act—is of the least validity.”131 Chase found this unthinkable: “It is impossible to measure the evils which such a construction would add to the calamities which have already fallen upon the people of these [Southern] states.”132

Chase went on: not only did Section Three impose great “inconveniences” and “calamities,” it was unfairly punitive—ungraciously ousting once-lawfully-appointed officers from their offices—and ostensibly inconsistent with the “spirit” of prior constitutional principles, concerning due process, bills of attainder and ex post facto laws.133 And besides, the specific remedy sought—vacating Griffin’s conviction—only worked mischief, because it did not even seek the literal removal of Judge Sheffey from office. Put these things together and you have Chase’s interpretive driver: “Surely,” Chase continued, “a construction which fails to accomplish the main purpose of the amendment, and yet necessarily works the mischief and inconveniences which have been described, and is repugnant to the first principles of justice and right embodied in other provisions of the constitution, is not to be favored, if any other reasonable construction can be found.”134

Chase tried to funnel these policy arguments into a rule of constitutional construction: “the argument from inconvenience.”135 This argument “it is true, can not prevail over plain words or clear reason,” Chase acknowledged.136 “But, on the other hand,” he wrote, “a construction which must necessarily occasion great public and private mischief, must never be preferred to a construction which will occasion neither, or neither in so great a degree, unless the terms of the instrument absolutely require such preference.”137

This is not an unreasonable principle, as interpretive canons go. When confronted with two plausible interpretations of genuinely ambiguous, unclear text, one of which would produce manifestly jarring results, the less jarring interpretation is more likely the correct one. As James Madison said in his famous speech against the national bank: “Where a meaning is clear, the consequences, whatever they may be, are to be admitted—where doubtful, it is fairly triable by its consequences.”138 Or as Chief Justice Marshall said in United States v. Fisher: “where great inconvenience will result from a particular construction, that construction is to be avoided, unless the meaning of the legislature be plain; in which case it must be obeyed.”139 But Chase’s canon was noticeably more aggressive: The supposedly more disruptive reading must “never be preferred” unless the text’s terms “absolutely require” such preference.140 That is putting not just a thumb on the scale, but a whole hand.

But that is not the real problem with Chase’s analysis. The real problem was how Chase applied these principles to Section Three.

First, Chase was too quick—far too quick—to dismiss the “literal” reading of the “terms of the instrument” as meaning exactly what they seem to say. As discussed above, the language of Section Three’s prohibition on office holding is clear and direct; it is hardly doubtful at all. It takes considerable effort to impute any ambiguity to the text and Chase’s opinion does not even undertake that effort. Instead, the opinion assumes its own conclusion—that the text’s language is somehow insufficiently clear to justify applying the “literal” meaning of its words. Indeed, even on Chase’s own hyper-strict standard, the words of Section Three do “absolutely require” the conclusion that it, on its own, disqualifies covered rebels from office.

Second, Chase was too ready—far too ready—to find that following the (“literal”) language of the document would produce (what Chase considered to be) great “inconveniences” or “mischief”— indeed, increase “calamities” already visited upon the South. Chase emphasized the breadth of Section Three’s language: it applied in all the states, not just the former Confederacy (so?); it applied beyond the context of Civil War but included aiding enemies in a foreign war (so?); it would apply in terms to immediately disqualify men for acts done long ago, for example in the Mexican War (so?); it would apply “to all persons in the category” and “for all time, present and future” (so?). And, taken seriously, this broad rule would, as noted, “annul all official acts” performed by disqualified officers, including judges. (Would it?)

For Chase, all this seemed to border on the shocking—a parade of horribles demanding the search for an alternative construction of Section Three. But why? Because it might have a broad effect? Because it adopted a new rule of constitutional law superseding prior law? Because it would have removed immediately a substantial number of former-oath-swearing-office-holders-turned-rebels from positions of power? Because it could have the effect of invalidating their unauthorized, lawless actions? Chase’s parade of horribles assumes, without argument, the correctness of his own apparent policy prejudices.141

Now Chase did attempt to groom these prejudices into more plausible legal arguments, which we will get to in a moment. But because these arguments from inconvenience are the heart of Chase’s opinion, and because we still see these kinds of arguments repeated today, we pause to emphasize that this is not how judging is supposed to work, even if it too often does.

Chase’s construe-to-avoid-the-force-of-constitutional-language-whose-policy-consequences-you-dislike approach to constitutional interpretation is simply wrong. Judges do not get to rewrite constitutional provisions they find objectionable on policy grounds. Relatedly, judges do not get to make up new provisions of law in order to devise policy “solutions” to texts they don’t like. Chase’s opinion imposed, as a solution to textual literalism and its real and imagined policy inconveniences, a different kind of constitutional provision, one more like the Impeachment Clause and the Treason Clause. Put bluntly, Chase made up law that was not there in order to change law that was there but that he did not like.

b. The argument from “the intention of the people”

In places, Chase raises the inconvenience argument as an inquiry into the “intent” of the Framers: “What was the intention of the people of the United States in adopting the fourteenth amendment? What is the true scope and purpose of the prohibition to hold office contained in the third section?”142 This at least sounds kind of like the question a judge should be asking—the original meaning of the constitutional provision adopted by We The People and binding on those who interpret it. But in fact it conceals still more sleight of hand.

First and foremost, Chase’s framing of the interpretive question commits a classic blunder: swapping in original intent for original meaning. In our constitutional system, law is made by enacting texts, not by searching for the unenacted wishes of lawmakers.143 And whatever evidence Chase might have that the consequences of Section Three were unintended by some of those who voted for it, he had no evidence that these consequences were not entailed by what they voted for.

Second, however dubious it is to look to original intent over original meaning generally, it is especially dicey to do so in the case of the Fourteenth Amendment. The Fourteenth Amendment was ratified in unusual, exigent circumstances. In Congress, the Amendment represented a compromise between different Republican factions, some much more radical than the others. And in the states, where ratification made it law, the Amendment depended on the ratification votes of the southern states, who were pressured—some might say “coerced”—to ratify the Amendment as the price of regaining their representation in Congress.144 Even if one accepts this process as lawful (which we do) it is obvious that it means one must cast a skeptical eye on stories about the supposed “intent” of those who ratified it, especially in the South. It may well be that some of the ratifiers had their fingers crossed behind their backs and intended to give the Amendment as little effect and as little quarter as they could get away with. But so what? What matters is what they did, in one of the highest-stakes moments of constitutional law making in American history. By diminishing the plain scope of the Amendment’s text, Chase was succumbing to this kind of anti-constitutional subversion.

Third and finally, all of Chase’s evidence of this supposed intent just boils down to the inconvenience argument we have just discussed. And as discussed above, this is why one must be especially careful with judges who invoke the supposed “intent” of a written text. When meaning is uncertain, it is permissible to give a slight edge to the interpretation that is more likely to match what its authors were trying to do. But it is easy for a judge to use this principle as an excuse for reading into the text his own views of what the law should be. After all, the authors of the provision were reasonable people, trying to do reasonable things, and, I, the judge, am also reasonable, so surely if I don’t like this result, they wouldn’t have liked this result, and therefore it must not be the result. To write it down this way would give up the game, but it is too easy to think it. Chase’s use of original intent is makeweight at best, and a trick at worst.

c. The argument that Section Three should not be read to depart from the “spirit” of prior constitutional law

The “inconveniences” and “calamities” that, surely, were not intended by the authors of the Fourteenth Amendment were Chase’s main arguments. But he had a bit more to say. There was “another principle, which in determining the construction of this amendment, is entitled to equal consideration.”

Of two constructions, either of which is warranted by the words of an amendment of a public act, that is to be preferred which best harmonizes the amendment with the general terms and spirit of the act amended. This principle forbids a construction of the amendment, not clearly required by its terms, which will bring it into conflict or disaccord with the other provisions of the constitution.145

What was the supposed conflict between Section Three and the rest of the Constitution? Chase fretted that Section Three was a penal enactment, imposing punishment without trial on secessionists, and thus in tension with the spirit of earlier provisions on bills of attainder, ex post facto laws, and due process:

Now it is undoubted that those provisions of the constitution which deny to the legislature power to deprive any person of life, liberty, or property, without due process of law, or to pass a bill of attainder or an ex post facto, are inconsistent in their spirit and general purpose with a provision which, at once and without trial, deprives a whole class of persons of offices held by them, for cause, however grave. It is true that no limit can be imposed on the people when exercising their sovereign power in amending their own constitution of government. But it is a necessary presumption that the people in the exercise of that power, seek to confirm and improve, rather than to weaken and impair the general spirit of the constitution.146

Thus, Chase concluded, Section Three should not be read as accomplishing disqualification of its own force.

Now once again, the interpretive rule Chase is formulating here is not totally crazy. But it is a warped version of the real thing. As we discuss at length in the next part: It is true that repeals by implication are disfavored, and this principle applies to constitutional law. But at the same time, constitutional amendments change things, and when an amendment is inconsistent with prior constitutional rules, ultimately it is the amendment that controls. If a new provision fairly can be harmonized with prior law—where there is no true conflict—the provisions should be read harmoniously.147 But where new language in fact changes old law, by clear terms or necessary logical effect, the greater error is to deny such change out of undue attachment to the former legal regime.

This greater error is exactly what Chase did. Chase leaned very heavily—too heavily—on the rule against implied repeals, ratcheting it up to “forbid[]” readings of a text “not clearly required” by its terms, that would “bring it into conflict or disaccord” with other provisions of the Constitution.148 Each leaning is wrong. Repeals by implication may be disfavored; but repeals, made in terms or by necessary logical implication, are not presumptively forbidden. Nor does new language changing old provisions require such extraordinary clarity as Chase would have it. The true question is whether the language and logic of a new provision really does present a conflict with prior law. And the idea that constitutional amendments should presumptively be read so as not to change the Constitution (!)—that they should be construed to avoid conflict or even mere disaccord with prior constitutional law—is indefensible. Of course constitutional amendments change prior constitutional law. That is their purpose and function. Now, that doesn’t warrant reading them to change more than they really do. But a presumption that constitutional amendments should be read to change as little as possible makes no sense.

Finally, this part of Chase’s argument took a puzzling turn that is worth noting. In one of many strange asides, Chase noted the possibility that Section Three had implicitly repealed the Treason Clause: “in the judgment of some enlightened jurists, the legal effect” of Section Three’s imposition of a new prohibition on officeholding for rebels and insurrectionists “was to remit all other punishments” for treason.149 If anything this seemed to hurt Chase’s argument against self-execution, because it emphasized that Section Three could change the preexisting constitutional rules. And at the same time this supposedly enlightened argument was also bonkers. The enactment of a constitutional rule of disqualification from office does not remotely suggest a supersession or repeal of criminal-law punishment for treason. And if it did it would have the perverse effect of leaving Confederates who had not previously taken a constitutional oath subject to the death penalty, while previous office holders avoided all criminal punishment except the officeholding ban.150

So why did Chase bring it up? Who were these “enlightened jurists” who imagined such a thing? The answer is . . . Chase himself! He had asserted precisely this wacky construction of Section Three’s effect on the criminal penalty for treason—and quietly suggested the argument to defense counsel—in the federal criminal treason prosecution of Jefferson Davis just two years earlier.151 Even Davis’s lawyers had been puzzled by the argument, and wondered if it was some sort of trick, and it seems likely that Chase had complex political motivations in proposing it at the time.152 This argument was tendentious then, and weirdly irrelevant in Griffin’s Case. But it is a helpful reminder that Chief Justice Chase was not shooting straight in his applications of Section Three.

d. The argument from the Section Five enforcement power

Having flailed to avoid the natural reading of Section Three, Chase finally offered his alternative, “reasonable construction”:

For in the very nature of things, it must be ascertained what particular individuals are embraced by the definition, before any sentence of exclusion can be made to operate. To accomplish this ascertainment and ensure effective results, proceedings, evidence, decisions, and enforcement of decisions, more or less formal, are indispensable; and these can only be provided by Congress. Now, the necessity of this is recognized by the amendment itself, in its fifth and final section, which declares that ‘congress shall have power to enforce, by appropriate legislation, the provision[s] of this article.’ [sic] … The fifth section qualifies the third to the same extent as it would if the whole amendment consisted of these two sections.153

Section Five “qualifies” Section Three. Of course, this proves too much. Taken seriously, it would suggest that Section Five likewise “qualifies” Section One and renders its commands—birthright citizenship, privileges or immunities, due process, and equal protection—inoperative until enforced by congressional legislation. It would imply that Section One had no self-executing legal effect, which has never been the law. It also proves too little. It is true, perhaps, that carrying a legal prohibition into practical effect in actual situations frequently will involve, necessarily, actions by persons and institutions charged with applying that prohibition as law in the course of performing their assigned duties. But as noted above there is no reason why “proceedings” and “decisions” and “enforcement” with respect to Section Three’s commands may not be conducted and carried out by these various state and federal actors, exercising their usual authority with respect to such matters.154 It is simply not true that “these can only be provided by Congress.” Congress can provide them. But so can many others. Indeed, that is just what Judge Underwood was trying to accomplish in Griffin’s Case, until Chase stopped him.

Chase’s tendentious construction of Section Three has gone on to a surprisingly serious career as a precedent. But it simply does not hold up as an original matter. But that is not even the weirdest thing about Griffin’s Case.

3. Griffin’s Self-Defeating and Highly Irregular Dictum

Chase concluded his discussion of Section Three this way: “After the most careful consideration, therefore, I find myself constrained to the conclusion that Hugh W. Sheffey had not been removed from the office of judge at the time of the trial and sentence of the petitioner; and that the sentence of the circuit court of Rockbridge county was lawful.”155

By Chase’s logic, such as it was, that should have been the final line of his opinion. But strangely, Chase was not actually done. He then launched into the weirdest part of his opinion, a sort of half-dictum, half-advisory opinion that cast further doubt on all that had come before:

In this view of the case, it becomes unnecessary to determine the question relating to the effect of the sentence of a judge de facto, exercising the office with the color, but without the substance of right. It is proper to say, however, that I should have no difficulty in sustaining the custody of the sheriff under sentence of a court held by such a judge. . . .

This subject received the consideration of the judges of the supreme court at the last term, with reference to this and kindred cases in this district, and I am authorized to say that they unanimously concur in the opinion that a person convicted by a judge de facto acting under color of office, though not de jure, and detained in custody in pursuance of his sentence, can not be properly discharged upon habeas corpus.156

What is going on here? Chase describes an alternate ground for the case—“a judge de facto acting under color of office,” which we would now call the “de facto officer doctrine”—explains that it is unnecessary to decide it, but then also explains that he would “have no difficulty” resolving the case on that alternate ground, and also that the rest of the Supreme Court agrees with him. It is hard to make sense of this part of Chase’s opinion, but the more one digs in to it the more dubious the whole opinion becomes.

First of all, notice that what Chase says here fatally undercuts his earlier arguments about Section Three. The heart of Chase’s argument was that a sel-executing Section Three would have calamitous consequences that could not possibly have been intended. But here Chase says that even an illegally appointed officer can be a “de facto” officer whose acts are treated as valid for purposes of a habeas claim. If Chase believed this claim about the de facto officer doctrine, then his earlier claim about the consequences was overblown. The de facto officer doctrine would limit or eliminate the supposedly calamitous consequences and allow Section Three to be given its more natural interpretation in other situations. On its own terms, then, this dictum is colossally selfdefeating.157

Indeed, if Chase’s extensive dictum about Section Three made it “unnecessary” to resolve the de facto officer doctrine, the same was equally true in reverse. Accepting Chase’s conclusion about the de facto officer doctrine would have made his erroneous disquisition on Section Three completely unnecessary. The criticisms sometimes levelled against the chief justices who wrote the famous (or infamous) opinions in Marbury v. Madison, and Dred Scott v. Sandford, for having reached out to decide, gratuitously, unnecessarily, and improperly, grand questions of constitutional law,158 fall far more heavily upon the head of Chief Justice Chase for his opinion in Griffin’s Case.

Even stranger, Chase represented that the full Supreme Court unanimously agreed with him that on the de facto officer question. “This subject received the consideration of the judges of the supreme court at the last term,” Chase asserted, “with reference to this and kindred cases in this district.”159 The full Court had apparently decided the de facto officer question, in secret, without having announced the fact in any case decision or written opinion,160 in some form of advisory preemptive appellate jurisdiction!?

To be sure, judicial norms were looser back then, but the whole thing was highly irregular even by the standards of the day. Charles Fairman, whose account defends the whole affair as an urgent workaround to stop Judge Underwood, nonetheless acknowledges that “[i]t was most unusual to hear a Justice on circuit declare that he was authorized to announce the opinion of the Justices of the Supreme Court on a matter pending in the Circuit Court.”161 Fairman further acknowledges technical problems with this maneuver, because the only issue in front of the full Court was an original writ of prohibition in Ex Parte State of Virginia, where the Court had granted a stay despite manifest procedural flaws.162 Somehow the Court’s nonruling in a dubious vehicle became a secondhand advisory opinion on a legal question of great importance. The criticisms levelled today at the shenanigans allegedly perpetrated on the Supreme Court’s “shadow docket,”163 fall much more heavily and justifiably on the heads of the Reconstruction justices.

And to return to this point once more, even if we accept this whole problematic advisory opinion, it simultaneously undermines the other part of Chase’s decision—his interpretation of Section Three. As Chase described it, there were two alternative ways to resolve the case—one massive constitutional question, and the other a more modest procedural question. Chase claimed that the whole Supreme Court had authorized him to issue a secondhand advisory opinion on the procedural question, an opinion adequate to resolve the Judge Underwood situation. But Chase ignored his colleagues’ apparent preference and resolved the case on massive constitutional grounds instead—grounds that he did not claim were endorsed by the rest of the Court. Is there any justification for his doing so other than a personal power grab?

All of this is without taking a view on the merits of the de facto officer question. This, we think, is not as obvious as Chase (and apparently his colleagues) made it out to be. True, American and English history was full of many statements about the valid acts of “de facto” officers and even specifically judges.164 But many of these statements could not be taken to their logical extreme in our constitutional system, and indeed, at the founding the Supreme Court had refused to accept the actions of several de facto judges in the saga surrounding Hayburn’s Case.165

How to reconcile these principles is a difficult question. One possibility, stated in some of the cases, is that an unlawful, but de facto, officer’s acts can be questioned directly, and on direct review, but not “collaterally.”166 On this possibility, maybe the de facto officer doctrine was a defense to claims like habeas—the procedural vehicle in Griffin’s Case—because habeas was a collateral attack.167 Habeas could not be used as a substitute for a writ of error, where the challenge would have been properly raised.

But another possibility is that the de facto officer doctrine protects only technical and ordinary legal defects in an officer’s appointment, not fundamental inability to exercise power, as when that power is forbidden by the Constitution.168 On this possibility, Judge Sheffey’s acts were inherently void, and thus everything he did fell outside of his court’s jurisdiction.169 The de facto officer arguments in Griffin’s Case—and thus the correct legal fate of Caesar Griffin—turn on these technicalities.170 Indeed, these technicalities were argued by the parties and they were the main subject of Judge Underwood’s opinion below.171 Chief Justice Chase could have turned his considerable powers to them, had he not been busy kneecapping the Fourteenth Amendment instead.

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