On 28 June 2018, Baker McKenzie hosted a breakfast and briefing in the Washington, DC Office on the Foreign Agents Registration Act. The event provided a forum to discuss legal and policy issues relating to increased FARA registrations and a possible new era in FARA enforcement by the US Department of Justice.
Following a brief introduction of recent FARA developments in the news and a background of the law, the discussion considered the 2016 DOJ Inspector General report on FARA recommending a comprehensive enforcement strategy, and the recent DOJ release of all of its advisory opinions under FARA since 2010, particularly as they relate to allowable exemptions under the law. Speakers Tom Firestone and Bruce Linskens, who recently worked together to obtain a favorable decision from DOJ for a client in a FARA investigation, shared their experiences from handling various FARA-related matters and DOJ investigations, and discussed the future of FARA enforcement and proposed legislation to update and revise the law.
New FARA registrations increased by nearly 48 percent from 2016 to 2017, and 2018 will likely be another record year.
The September 2016 OIG report applied pressure for DOJ to enact changes in enforcement and administration strategies.
The October 2017 Indictment against Paul Manafort for acting as an unregistered agent of Ukraine and the conviction under FARA of an unregistered agent of the government of Pakistan have increased public awareness of the law.
Many of the exemptions from FARA registration require an examination of the totality of the circumstances when evaluating the potential application of the exemptions.
The recent release by DOJ of its advisory opinions under FARA provides some insight on the agency’s interpretation of some of the statute’s provisions, although in many cases they lack important contextual and factual background information, and they do not carry the same precedential value as those from other agencies.
Legislation is currently pending in the 115th Congress to enact certain changes to the law, such as eliminating the Lobbying Disclosure Act (LDA) exemption for individuals who engage in lobbying for a foreign principal that is not a foreign government or foreign political party, and authorizing DOJ to issue civil investigative demands to compel the production of documents relevant to FARA investigations before initiating criminal or civil proceedings.
Never ignore a letter of inquiry from the DOJ’s FARA Unit and never provide false information.