Justice Department Steps Up Enforcement of Foreign Agent Registration Law

The recent guilty plea of Paul Manafort to violating FARA and the Justice Department’s ordering the registration of Chinese Television signals the US government is cracking down on undisclosed foreign influence operating inside the United States.

FARA was a largely forgotten law that was enacted in 1938 to ferret out pro-Nazi influencers inside America. But the Justice Department has recently increased enforcement of the law much to the concern of foreign corporations, governments, political parties, and the law firms and lobby shops that represent them.

The primary purpose of FARA, as the Justice Department recently told Congress, “is to ensure that the American public and our lawmakers know the source of information that is provided at the behest of a foreign principal, where that information may be intended to influence US public opinion, policy, and laws.” To this end, FARA registrations are available in a publicly searchable database.

FARA requires “agents” of “foreign principals” who engage in “political activities” to register within ten days of agreeing to become an agent and report their activities to the Justice Department. A foreign principal includes just about any foreign-based corporation, government, or non-profit entity. “Political Activities” means any activity intended to “influence any agency or official of the Government of the United States or any section of the public within the United States[.]”

Being sensitive to registration is critical in this era of heightened enforcement. Historically, the Justice Department has broadly interpreted what constitutes an “agent” under the law. A formal contract or even receipt of payment from a foreign entity is not required to trigger FARA: just an agreement that you are representing the foreign interest before the US Government or the American people.

FARA covers a wide range of activities by the agent on behalf of a foreign principal. They include:

1. Engaging in political activities;
2. Acting as public relations counsel, publicity agent, information service employee, or political consultant;
3. Soliciting, collecting, disbursing, or dispensing contributions, loans money or other things of value in the United States; and
4. Representing the interests of the foreign principal before any agency or official of the United States.

22 USC §611(c). The Justice Department may order an agent to register, such as its recent instruction to Chinese Television, if the agent has failed to do so on its own.

Exceptions to FARA registration may be available, depending on the nature of the foreign principal and the type of work to which the agent has agreed. One important exception: representing foreign business interests in the United States will not trigger FARA if the actor undertakes purely legal or transactional work that does not attempt to influence US policy. And further, lobbying on behalf of a foreign corporation for private and nonpolitical activities can be disclosed to Congress under the Lobby Disclosure Act instead of the more onerous FARA requirements. This exception does not apply to lobbying on behalf of a foreign government or foreign political party with the objective of influencing US policy.

A thorough examination of the activities that will be rendered for the foreign interest is the only way to determine whether registration under the FARA is required or advisable. Advisory opinions, published on the Justice Department’s website, are helpful indicators of recent enforcement activity.

A violation of FARA carries a maximum penalty of 5 years in prison and