US FOREIGN REGISTRATION ACT (FARA) ENFORCEMENT

The Foreign Agents Registration Act of 1938, as amended (FARA or the Act) is a disclosure statute aimed at "agents of foreign principals" (agents) as defined, who are engaged in covered activities, on behalf of their foreign principal(s), unless exempt.

In 1966, FARA was significantly amended to focus on the integrity of the United States Government decision-making process, and to emphasize agents seeking economic or political advantage for their clients. It required any person engaged in "political activities", as defined, as an agent on behalf of a foreign principal, to register.

The threshold for a criminal investigation is the presence of reason to believe that a significant FARA offense has been committed and that sufficient evidence should be available to prove this.

FARA criminal prosecutions must be approved by the Criminal Division or higher authority under the United States Attorney's Manual, and in practice must first be approved by the appropriate United States Attorney's office.

The threshold for a civil action is sufficient credible evidence of a significant violation for which the civil injunctive remedy is judged appropriate in light of all the circumstances because time is of the essence or for some other reason. Civil actions often result from "Section 5" inspections of the books and records of registered agents. Section 5 of the Act, allows the Attorney General to conduct inspections of the books and records of registered agents, which shall be "open at all reasonable times to the inspection of any official charged with the enforcement of this Act."  The Department has never asked the FBI to develop a strictly civil FARA case. Civil cases are always submitted to the Assistant Attorney General, Criminal Division for approval before filing.

If the Department receives credible information establishing a prima facie registration obligation, where evidence of intent is lacking, the Department usually sends a letter advising the person of the existence of FARA and the possible obligations thereunder. FARA, after all, is a malum prohibitum enactment not well known outside the legal/lobbying community. The letter usually cites or provides the information prompting the inquiry. In the Department's experience, the vast majority of persons approached with an inquiry letter based on public source information respond within a reasonable amount of time and either register or convincingly explain their lack of agency status or the availability of an exemption.

If this administrative route is chosen, and there is no response to the letter, or a seemingly false response, the only alternatives are to refer the matter to the FBI, which has the responsibility for FARA investigations, or to close the matter pending receipt of sufficient evidence to warrant some other action. The letter in that event will have served its purpose of putting the person on notice of the existence and reach of the Act.The Department has asked for authority to issue civil investigative demands (CID) to more effectively gather evidence in these situations. In the meantime, letters have been used as stated above.

Enforcement Issues under the Foreign Agents Registration Act of 1938, as amended 

The oft-amended Foreign Agents Registration Act of 1938, as amended, is the foundation for requiring the registration of, and disclosures by, "agents of foreign principals," as defined, who are engaged in "political activities" as defined, or other defined activities of a quasi-political nature, and who are not exempt. It covers most lobbying, advertising, public relations, and fundraising for "foreign principals" as defined, that is not of a commercial nature, or performed by Embassy officials. The Act requires agents to make periodic public disclosure of their identities, agency, activities, receipts and disbursements. Disclosure of the required information facilitates evaluation by the government and the American people of the statements and activities of such persons in light of their status as foreign agents. The news media are the greatest users of the information filed under the Act, and give it further publicity, usually without attribution. Other agents, commercial firms, students and academics, in that order, are also major visitors to the Department's public office.

FARA does not exhaust the federal government's response to perceived problems in this area. There are numerous other federal statutes aimed at persons loosely called foreign agents. Restricting the discussion to foreign agents engaged in political activities covered by the Act, there are both federal statutes which authorize the exemption of otherwise covered agents and statutes and regulations which prohibit certain agents from engaging in activities otherwise covered by the Act.

The cornerstone of the Registration Unit's enforcement efforts is encouraging voluntary compliance. This includes the essentially administrative function of providing registration forms, with copies of the Act, Rules, Regulations, and guidelines for responses to the firms and individuals registered under the Act, as well as the members of the public, press and bar who write or call to request them. It also includes the more proactive outreach to the primarily professional communities (law, advertising, political and public relations) from which the majority of agents are drawn, as well as informing and educating prosecutors, and interested Departments and Agencies regarding the Act.

Encouraging voluntary compliance and providing information on the identities of those registered generates "Rule 2" advisory opinion requests, regarding the applicability of the Act to certain specific circumstances from agents and their attorneys interested in complying with the Act. It also prompts registrants and others to alert the Unit to other persons similarly situated who are not yet registered, a service the Unit's contacts in the various Departments, Agencies and Committees of Congress also provide.

At another level, the Unit has established a number of routine enforcement initiatives, from reviewing a wide range of publications for indications of activities by unregistered agents to reviewing the filings of registered agents and conducting audits or inspections of their books and records. Almost all of the Unit's civil enforcement actions,  were developed in this fashion. The Unit also works closely with the law enforcement and intelligence community components who provide reports on potential violations of the Act. The Unit's less frequent criminal prosecutions have primarily come from this source. 

FARA Coverage

FARA requires individuals acting within the United States as agents of ‘foreign principals’ to, register with the Department of Justice and file forms  outlining its agreements with, income from, and expenditures on behalf of the foreign principal. These forms are public records and must be supplemented every six months.

Covered Activities

Political Activity

“[A]ny 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 or any section of the public within the United States with reference to formulating, adopting, or changing the domestic or foreign policies of the United States or with reference to the political or public interests, policies, or relations of a government of a foreign country or a foreign political party”

Public Relations Counsel

“[A]ny person who engages in informing or advising any other person with reference to the domestic or foreign policies of the United States or the political or public interest, policies, or relations of a foreign country or of a foreign political party.”

Money, Representation and Status

“ Any person who collects or disburses anything of value for or in the interests of a foreign principal; represents the interests of a foreign principal before any agency or official of the US Government ; Agrees, consents, purports to act as, or who is or holds himself out to be, regardless of contractual relations”

Moreover, the statutes define “foreign principal” not just to include a foreign government itself, but also foreign political parties, a person or organization outside the United States (except U.S. citizens), and any entity organized under the laws of a foreign country or having its principal place of business in a foreign country.

FARA includes some important exemptions, such as for those engaging only

“(1) in private and nonpolitical activities in furtherance of the bona fide trade or commerce of such foreign principal; or

(2) in other activities not serving predominantly a foreign interest; or

(3) in the soliciting or collecting of funds and contributions within the United States to be used only for [certain humanitarian purposes.”

It also exempts, for obvious reasons, diplomatic officers and other officials of foreign governments, and those engaging in “activities in furtherance of bona fide religious, scholastic, academic, or scientific pursuits or of the fine arts.” (And individuals can avoid FARA if they’re allowed to register under other lobbying statutes, including the 1995 Lobbying Disclosure Act, which has, at least in some respects, fewer / easier-to-satisfy requirements for those working only on behalf of foreign commercial, rather than foreign political, interests.)

Critically, FARA itself does not prohibit any conduct. It just requires registration, and creates both civil and criminal penalties for an individual’s willful (1) failure to register; or (2) making of a false statement or omission of a material fact in connection with their registration. Proving willfulness is often a high bar, since FARA’s complexity and exemptions may facilitate claims that the failure to register was simply negligent.

Indeed, a separate statute, 18 U.S.C. § 219, goes one important step further, making it a crime for any individual who is an “officer or employee or person acting for or on behalf of the United States, or any department, agency, or branch of Government thereof, including the District of Columbia, in any official function,” to be or to act as an agent of a foreign principal under FARA.

In other words, for a private citizen, FARA’s entire impact is in requiring disclosure. But for public officials, § 219 actually prohibits such individuals from acting as foreign agents. Thus, whereas a private citizen need only apprise the Justice Department if they are receiving funds from foreign principals to influence U.S. policy, public officials may not receive such funds, and face felony charges if they do.