“Did you know that Joe Biden called Ukrainian President Poroshenko at least three times in February 2016 after the president and owner of Burisma’s home was raided on February 2nd by the state prosecutor’s office?”

Rep. Devin Nunes (R-Calif.), senior Republican on the House Intelligence Committee, in a question directed at witnesses at the impeachment inquiry, Nov. 19, 2019

“It is my understanding that on February 4, 2016, the Ukrainian Prosecutor General’s Office, under the direction of Prosecutor General Viktor Shokin, announced the seizure of property from the Ukrainian natural gas company Burisma Holdings’ founder, Mykola Zlochevsky. The seizure occurred pursuant to a raid on Mr. Zlochevsky’s home on February 2, 2016.”

letter from Sen. Lindsey O. Graham (R-S.C.), chairman of the Senate Judiciary Committee, to Secretary of State Mike Pompeo, Nov. 21, 2019

President Trump has falsely claimed that then-Vice President Joe Biden pressured the Ukrainian government to fire Shokin, the top Ukrainian prosecutor, because he was investigating Ukraine’s largest private gas company, Burisma, at a time when Hunter Biden was on the Burisma board. In fact, the opposite is true — Joe Biden was carrying out administration policy, coordinated with European allies, to press for the removal of Shokin because he was not investigating corruption.

These facts have not stopped Trump’s Republican defenders from trying to prove Trump correct. In recent weeks, senior lawmakers have suggested that there was a nefarious connection between a “raid” in February 2016 on the home of the founder of Burisma, Mykola Zlochevsky, and calls that Biden made at the time with Ukraine’s president at the time, Petro Poroshenko.

Graham has made this alleged connection the start of an investigation he has launched into Biden and his son, demanding records and transcripts of Biden’s calls to Ukraine that month.

The Fact Checker was suspicious of these claims because it had been our understanding that the investigation of Zlochevsky was largely dormant at the time of Biden’s diplomacy. Indeed, the U.S. ambassador at the time had singled out mismanagement of the Zlochevsky case as an example of Ukraine’s failing to hold corrupt officials to account.

Working with our colleagues Michael Birnbaum and David L. Stern, who discussed the case with sources while reporting in Kyiv, we’ve determined that this alleged connection is based on a misunderstanding of what took place in the Ukrainian courts.

The Facts

Zlochevsky had served in top Ukrainian government positions in the country’s energy sector and had transformed himself into one of the country’s richest men. In the process, he has faced years of legal troubles and allegations of corruption, which he has denied. Britain once froze $23 million of his assets, but he was not charged with any crimes and the freeze was eventually lifted.

Zlochevsky was also under scrutiny by Ukrainian prosecutors. On Aug. 5, 2014, the Prosecutor General’s Office (PGO) initiated case 42014000000000805 regarding “large-scale” illicit enrichment and money laundering allegedly committed by Zlochevsky, according to a timeline provided to Birnbaum by the Anticorruption Action Center (AntAC), a leading anti-corruption group.

After briefly transferring the case to the Ministry of Internal Affairs, on Dec. 29, 2014, the PGO issued a notification of suspicion to Zlochevsky regarding the allegations. AntAC reports that prospects for success were “low from the very beginning” because the statutes for “illicit enrichment” required a high burden of proof to show that assets were proceeds of bribery. (Ukrainian journalists say that making the case briefly a police matter led to the unfreezing of Zlochevsky’s assets in Britain.)

Nevertheless, on Feb. 2, 2015, the Prosecutor General’s Office seized personal property attributed to Zlochevsky but legally owned by his family, including a mansion, a luxury car and plots of land, according to AntAC. The court order was not published, but journalists eventually exposed what had happened later in 2015.

Now here’s where it gets complicated. On Nov. 10, 2015, the Ukrainian parliament adopted a law amending the procedure for asset seizures, requiring higher standards of proof. The law came into force in December, and Zlochevsky appealed the seizure.

In the meantime, that same month, the PGO tried to send its cases to another prosecutorial entity, the National Anti-Corruption Bureau of Ukraine (NABU), which is funded with U.S. and European aid and received technical support from the FBI. “NABU received tons of files in December 2015, just as their jurisdiction was starting,” said Daria Kaleniuk, the head of AntAC.

(During a December visit to Kyiv, Biden had addressed the Ukrainian parliament and decried the “cancer of corruption” in the country. “The Office of the General Prosecutor desperately needs reform,” he said. During that visit, he also privately urged Poroshenko to fire Shokin.)

“There was a window of a few weeks when Zlochevsky’s lawyers sued to unseize the assets,” Kaleniuk told Birnbaum. “The court unseized the assets in December when the case was in between jurisdictions. The prosecutors didn’t even show up,” because they had no jurisdiction, since the case had been transferred from Shokin’s oversight, in the prosecutor general’s office, to NABU.

So, on Dec. 25, 2015, the seizure was canceled. But the court order was not published until Jan. 27, 2016, which prompted a public outcry, according to AntAC. So the PGO scrambled to get it reinstated, and the order was published Feb. 4, 2016.

When we asked Graham’s office why he thought there was a raid in February 2016, his office pointed us to a news account of the second court order. The article, however, references property “seized under the previous court ruling.”

In other words, there was largely a technical reinstatement of a court order that already had been in place for at least a year. Matching up the assets listed in the July 2015 report and the February 2016 report, the main difference we see is the inclusion in 2016 of a Rolls-Royce and a trainer, though AntAC reports a luxury car was seized in 2015.

Later in 2016, on Nov. 1, the seizure was canceled after the PGO closed the case, according to AntAC. The case over time had been turned into an investigation of possible tax avoidance, and a Burisma subsidiary paid back taxes.

As for Biden’s phone calls, the Obama administration regularly provided detailed readouts of the calls, so the topics are well-documented.

Feb. 11: Biden spoke to Poroshenko by phone. “The two leaders agreed on the importance of unity among Ukrainian political forces to quickly pass reforms in line with the commitments in its IMF program, including measures focused on rooting out corruption,” the White House said.

Feb. 18: Another call took place between Biden and Poroshenko, two days after the president had announced he had asked Shokin to resign. “The Vice President also commended President Poroshenko’s decision to replace Prosecutor General Shokin, which paves the way for needed reform of the prosecutorial service,” the White House said in a statement.

Feb. 19: Poroshenko announced he has received Shokin’s resignation letter. That same day, Biden spoke separately to Poroshenko and Prime Minister Arseniy Yatsenyuk. “He urged Ukraine’s leadership to unite and rebuild popular trust around a strong governing coalition and reform program, and to accelerate Ukraine’s efforts to fight corruption, strengthen justice and the rule of law, and fulfill its IMF requirements,” the White House said.

“I listened into to all the February calls. Until Nunes floated his wacky conspiracy theory, I’d never heard of the ‘raid’ — and nothing related to Burisma or Zlochevsky came up in any of those calls,” Colin H. Kahl, Biden’s national security adviser at the time, told The Fact Checker. “Unlike the current administration, we always read out our calls and the call readouts captured the major topics of the conversations.”

Anna Makanju, Biden’s senior policy adviser for Ukraine at the time, also listened to the calls and said release of the transcripts would only strengthen Biden’s case that he acted properly. She helped Biden prep for the conversations and said they operated at a high level, with Biden using language such as Poroshenko’s government being “nation builders for a transformation of Ukraine.”

A reference to a private company such as Burisma would be “too fine a level of granularity” for a call between Biden and the president of another country, Makanju told The Fact Checker. Instead, she said, the conversation focused on reforms demanded by the International Monetary Fund, methods to tackle corruption and military assistance. An investigation of “Burisma was just not significant enough” to mention, she said.

Pavlo Klimkin, Ukrainian foreign minister from 2014 until Aug. 29, 2019, told Birnbaum that the firing of Shokin was universally urged by Ukraine’s benefactors. “The demand came not just from the U.S., and not just from Biden,” he said. “I heard it in every meeting with the international financial institutions, especially the IMF and World Bank. It was not just Biden. Clearly.”

We reported our findings to Graham’s aides on the Senate Judiciary Committee and to a spokesman for Nunes on the House Intelligence Committee but did not receive an immediate response. Instead, out of the blue we received a phone call from John Solomon, a former Washington Post reporter who apparently was the source for Republicans. He said two people from Capitol Hill had alerted him to our inquiry.

Solomon acknowledged that there had been a seizure of assets in 2015 but said that on the basis of his interviews, such as with Shokin, and a review of court files, he believes some new assets were seized in February 2016. “My understanding is there was a reseizure and a new seizure of assets,” he said. “There was back and forth [in the courts], sure.”

Solomon added: “I am very careful to use the word ‘seizure.’ I don’t use the word ‘raid.’ ”

“The purpose of our investigation is to find out the truth of what the son of a former vice president of the United States was doing on the board of a Ukrainian gas company who was paying him $50,000 a month,” said Taylor Reidy, spokeswoman for the Judiciary Committee. “He didn’t have any known experience in Ukraine or the oil and gas industry. But the company did appear to be running into legal issues regarding corruption. Our letter was the first step in our investigation, not the last. We expect additional requests for information as we learn more about these interactions and what was happening among the stakeholders.”

The Pinocchio Test

Republicans are clearly trying to connect some dots to give an impression of malfeasance by Biden. But they are looking at the wrong dots. Nothing significant appears to have happened in February 2016 except primarily the reinstatement of a previous court order. Instead, Zlochevsky’s assets had been seized a year earlier and were only briefly not under a court order because of a prosecutorial error.

In other words, there would have been no reason for Biden to raise the supposed raid of Zlochevsky’s home in his phone calls. Moreover, as we’ve shown, Biden’s aides at the time say that neither Burisma nor Zlochevsky was raised in the calls.

Graham and Nunes earn Four Pinocchios.

Four Pinocchios

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