History Repeats Itself: Mueller Investigation Spurs Renewed DOJ Focus on WWII Era Foreign Agents Registration Act
V&E Government Investigations Update, April 25, 2019
Special Counsel Robert Mueller’s “Report on the Investigation into
Russian Interference in the 2016 Presidential Election” highlights already well
publicized concerns about covert foreign influence on U.S. politics. In
response to those concerns, the Department of Justice (“DOJ”) is focusing more
on a previously somewhat obscure law from 1938: the Foreign Agents Registration
Act (“FARA”). FARA requires anyone engaging in political activities in the U.S.
on behalf of a foreign entity to disclose those activities by registering and
filing certain information with the DOJ. Willful violations of the law carry
significant criminal penalties, including fines and/or up to five years
FARA was enacted in 1938
due to concerns that the Nazi German government was secretly using U.S. firms
and citizens to disseminate propaganda in the U.S. More than 80 years later,
covert foreign intervention in U.S. politics has again become a major public
concern, and at least seven FARA charges have been brought in connection to the
Special Counsel’s investigation. In comparison, only seven criminal FARA cases
in total were brought between 1966 and 2015.2
In recent weeks the DOJ
has continued to signal its renewed focus on FARA enforcement. For example, a
former prosecutor from the Special Counsel’s investigation has been selected to
lead the DOJ’s FARA enforcement efforts. And on April 11th, while speaking at
an American Enterprise Institute event, the Assistant Attorney General of the
National Security Division, John Demers, indicated that he expects to see
continued focus on FARA enforcement.3 Demers suggested that the
DOJ may need to perform additional inspections of FARA registrants, issue more
deficiency letters, further scrutinize the content of FARA registrations, and
explore potential civil enforcement remedies.4
Importantly, not all work
done on behalf of a foreign entity requires registration. In fact, there are
several instances which are explicitly exempt under FARA, such as for
religious, scholastic, or scientific activities, or if an agent has registered
under the Lobbying Disclosure Act.5 Outside the specified exemptions,
whether registration is required largely turns on whether the foreign agent is
engaging in “political activities,” which the Act defines as “any activity that
the person engaging in believes will, or that the person intends to, in any way
influence any agency or official of
the Government of the United States. . . .”6 This definition gives
foreign agents some wiggle room to determine on their own whether they believe
their activities are “influencing” the government, and therefore whether
registration is necessary. Combined with the Act’s historically low
enforcement, the administrative burdens involved, and stigmas attached to
registering as a foreign agent, many people may have decided that registration is
not worth it. However, increased criminal prosecution of FARA violators could
change the calculus behind that decision.
Among other things, FARA requires
an agent to register with the DOJ before conducting activities on behalf of a
foreign principal, and within 10 days of agreeing to enter into the agency relationship.7 Registration also requires
filing several additional documents, such as copies or descriptions of the
terms of the agency agreement, a detailed statement of every activity the agent
is performing, and information about contributions from the foreign principal
to the agent.8
Supplemental statements must be filed every 6 months during the agency
relationship, and any informational materials distributed on behalf of the
foreign principal must include a “conspicuous statement” regarding the agency
relationship and also be filed with the government.9
the past, the government preferred pursuing registration for alleged FARA
violators rather than seeking prosecution, and companies may have felt
comfortable not registering until instructed to do so.10 However, if the government
decides to increase its enforcement efforts, remaining unregistered could lead
to criminal prosecution. Therefore, unregistered foreign agents should
seriously consider reexamining whether registration would be in their best
interest. Given that the number of active FARA registrants increased from 365 to
458 between 2016 and 2018, some agents may have already taken heed of the Special
Counsel’s investigation and decided to register.11 With increased
enforcement on the horizon, expect those numbers to continue to rise as
companies and individuals carefully evaluate their practices and consult with
counsel to determine how best to comply.
Visit our website to learn more about V&E’s Government Investigations & White Collar Criminal Defense practice. For more information, please contact Vinson & Elkins lawyers Bill Lawler or Lincoln Wesley.
1 22 U.S.C. § 618(a).
2 Office of the Inspector General, U.S. Department of Justice, Audit of the National Security Division’s Enforcement and Administration of the Foreign Agents Registration Act, 8 (September 2016), https://oig.justice.gov/reports/2016/a1624.pdf.
3 AEI, Protecting Democracy: Modernizing the Foreign Agents Registration Act (April 17, 2019), https://www.aei.org/events/protecting-democracy-modernizing-the-foreign-agents-registration-act/.
5 22 U.S.C. § 613.
6 Id. § 611(a).
7 Id. § 612(a).
9 Id. at § 612(b), § 614(a)-(b).
10 OIG Audit, supra note 2 at 10.
11 FARA Quick Search, U.S. Department of Justice, https://efile.fara.gov/pls/apex/f?p=181:140:0::NO:RP:P140_FROMDATE,P140_TODATE:04%2F22%2F2019,04%2F22%2F2019 (filtering by date range for 2016 and 2018).