After decades in which the Foreign Agents Registration Act (FARA) received relatively little attention, a confluence of recent events has given the statute newfound prominence. Together, these developments compound the compliance challenges and enforcement risks for U.S. firms assisting foreign clients on matters implicating U.S. policy and public opinion—the principal arenas that FARA seeks to protect from undisclosed foreign influence.
Earlier this week, Assistant Attorney General for National Security John Demers announced an overhaul of the Department of Justice’s (DOJ) FARA enforcement practices and signaled a shift toward more aggressive FARA enforcement.1 Likewise, Robert Mueller’s ongoing investigation into matters arising from the 2016 presidential election has highlighted the criminal exposure that can result from FARA noncompliance. More generally, a 2016 report by the DOJ Office of the Inspector General, which faulted DOJ for lacking a comprehensive FARA enforcement strategy, has led to increased scrutiny of potential FARA registrants and catalyzed DOJ’s enforcement efforts. Finally, starting in 2018, DOJ began to release redacted versions of previously confidential advisory opinions, providing new insight into its interpretation and application of the statute.
Unfortunately, the heightened enforcement environment has not been accompanied by increased clarity regarding FARA’s reach or application—and DOJ’s limited guidance reveals that FARA contains many traps for the unwary. While FARA compliance will necessarily require a case-specific analysis, this summary is intended to help those serving foreign clients identify potential issues that warrant further attention.
FARA requires “agents” of “foreign principals” to register with DOJ and to file periodic reports regarding their work, unless their activities fit within one of FARA’s important statutory and regulatory exemptions.
Foreign Principal. As a threshold matter, FARA broadly defines “foreign principal” to encompass not only foreign governments, officials, and political parties, but also foreign individuals and business enterprises—specifically, any “partnership, association, corporation, organization, or other combination of persons organized under the laws or having its principal place of business in a foreign country.” 22 U.S.C. § 611(b)(3). Thus, firms representing foreign corporations or individuals in the United States—or taking direction from them in their representation of U.S. affiliates—may fall within FARA’s reach.
Agent of a Foreign Principal. FARA also broadly defines “agent of a foreign principal” to encompass those who engage in a range of activities directed at influencing U.S. policy or public opinion on behalf of foreign clients, as well as those who otherwise seek to advance foreign political interests in the United States. Specifically, the term applies to any person who acts “at the order, request, or under the direction or control, of a foreign principal or of a person any of whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in major part by a foreign principal,” and who directly or through any other person:
i. engages within the United States in political activities for or in the interests of such foreign principal;
ii. acts within the United States as a public relations counsel, publicity agent, information-service employee or political consultant for or in the interests of such foreign principal;
iii. within the United States solicits, collects, disburses, or dispenses contributions, loans, money, or other things of value for or in the interest of such foreign principal; or
iv. within the United States represents the interests of such foreign principal before any agency or official of the Government of the United States.
Id. at § 611(c). While each of the italicized terms above is specifically defined by statute, the enumerated provisions collectively cover a broad range of activities deemed capable of influencing U.S. policy or public opinion or otherwise advancing the interests of a foreign client in the United States.2 Moreover, unlike the Lobbying Disclosure Act, FARA does not distinguish between individuals who engage in overt lobbying through personal contacts and those who play only a behind-the-scenes advisory role: FARA may require even behind-the-scenes advisors to register.
The breadth of FARA’s expansive definition of registrable activities is moderated by various statutory exemptions, which are codified at 22 U.S.C. § 613. We address the three that are most relevant to professional service firms serving foreign clients.
The Lawyer’s Exemption
FARA contains a categorical exemption for lawyers representing clients before federal courts and agencies (broadly defined to include congressional committees), provided that the lawyer’s role is disclosed to the relevant agency or tribunal and the representation does not extend to efforts to influence federal officials “other than in the course of” the relevant proceeding. 22 U.S.C. § 613(g). DOJ’s implementing regulations specifically deny the exemption where the representation includes “attempts to influence or persuade 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.” 28 C.F.R. § 5.306.
While many types of routine lawyering should be exempt from FARA registration, lawyers and firms need to tread carefully where their work may extend to public-relations or lobbying matters—or advocacy that predates or extends beyond particular proceedings. Lawyers cannot insulate themselves from FARA exposure by limiting themselves to behind-the-scenes advice on public-relations or government-relations matters.
The Commercial Exemption
FARA also contains an exemption for activities in service of a foreign principal’s bona fide commercial interests, provided that the activities are not “directed by a foreign government or political party” and do not “directly promote the public or political interests of the foreign government.” 28 C.F.R. § 5.304. The exemption is quite technical, however, and the DOJ advisory opinions applying it reveal inconsistencies in the Department’s application of the exemption over the years.
While the exemption should cover activities in service of purely commercial objectives for private-sector clients, a more fact-intensive inquiry is required whenever the foreign principal is state-owned or closely affiliated with a foreign government, or where the commercial interests are intertwined with sovereign governmental interests. Anyone assisting foreign clients with respect to influencing U.S. policy or public opinion, including with respect to trade, tourism, foreign investment, or banking matters, should tread especially carefully. For example, in an advisory opinion from April 2013, DOJ concluded that the commercial exemption was not available to a law firm that proposed to engage in lobbying on behalf of a foreign bank to enable direct banking relations with U.S. financial institutions, because the foreign government and its banking system were “bound together” for FARA purposes, and any change in the U.S. sanctions regime that inhibited direct banking was governmental rather than commercial.
The LDA Exemption
When the Lobbying Disclosure Act (LDA) was enacted in 1995 to require registration and reporting by federal lobbyists, Congress created a corresponding exception to FARA that exempts any agent of a foreign principal—other than a foreign government or political party—if the agent “has engaged in lobbying activities” and “has registered under the [LDA] in connection with the agent’s representation of such person or entity.” Id. § 613(h).
While the exemption can function as a safe harbor for those to whom it applies, its application can require a fact-intensive analysis. In particular, DOJ regulations deny the exemption where a foreign government or foreign political party is “the principal beneficiary” of the work, 28 C.F.R. § 5.307, and DOJ advisory opinions and enforcement practice suggest that the Department will look behind the direct client relationship to determine whether the activities principally benefit an undisclosed foreign government or political party. Moreover, DOJ has not addressed in published guidance whether the LDA exemption would be available to persons who are not individually identified in their employer’s LDA filings, but who nonetheless engage in activities that are covered by FARA (e.g., public-relations personnel who manage external communications, or executives who participate in incidental lobbying activities).
FARA Registration and Reporting
Anyone who engages in covered activities and does not fit within one of FARA’s exemptions must register with DOJ within 10 days of becoming a foreign agent. Registered agents must file reports on their activities every six months, and submit copies of any materials disseminated on behalf of foreign principals within 48 hours of their transmission. While the registration and reporting processes are straightforward (both may be accomplished electronically via DOJ’s FARA website, www.fara.gov), the extent of FARA’s disclosure obligations may come as an unwelcome surprise to registrants and their clients.
In general, FARA requires the disclosure of substantially more information than is required under the LDA, both at the time of registration and over the course of the engagement. For this reason, agents who qualify for the LDA exemption may prefer to register under the LDA rather than FARA.
Registration is accomplished by electronically filing an initial registration statement, which discloses basic identifying information about the registered entity; information about ownership and control of the registrant, including identification of its officers and directors; information about the client and the services performed; the financial terms of the engagement; political contributions by the registrant; and any third parties retained to assist in the preparation or dissemination of materials on behalf of the foreign principal.
Registrants also are required to file copies of their articles of incorporation (or similar documents), and engagement letters or contracts memorializing their arrangement with their foreign principal. As these documents are publicly filed, registrants should be aware that their financial arrangements—including hourly billing rates—will be readily accessible to the public.
In addition, individuals (whether officers, directors, partners, or employees) who perform nonclerical work directly in support of the registrant’s FARA-covered activities must file a “short form” registration statement. The form discloses basic personal identifying information about the individual, including the form of financial compensation (e.g., salary, partnership distributions), a description of the services to be performed on behalf of the foreign principal, and personal political contributions—even those unrelated to the activities the person performs on behalf of the foreign principal. Notably, DOJ’s implementing regulations expressly exempt individuals who “do not engage directly in registrable activity in furtherance of the interests of the foreign principal,” 28 C.F.R. § 5.202(b). As a result, determining who in the organization is required to file a short form can often require a fact-dependent analysis based on the nature and type of activities performed by each person as part of the engagement.
FARA requires active registrants to file semiannual reports—called “supplemental statements”—on their activities over the preceding six months. DOJ regulations require the reports to include “that degree of specificity necessary to permit meaningful public evaluation of each of the significant steps taken by a registrant to achieve the purposes of the agency relation.” 28 C.F.R. §5.210. In practice, this generally requires registrants to establish an internal system to track communications, meetings, external materials, contact lists, distribution lists, receipts, and disbursements, so that the relevant information can be compiled and reported in the semiannual reports.
Labeling and Filing
FARA registrants engaged in the dissemination of material for their clients should be cognizant of FARA’s labeling and filing requirements. FARA requires that such materials bear a “conspicuous” label with a variant of the following language: This material is distributed by (name of registrant) on behalf of (name of foreign principal). Additional information is available at the Department of Justice, Washington, DC. In addition, such materials must be filed with DOJ within 48 hours of their transmission in interstate commerce.
FARA requires registrants to keep relevant records—contracts, correspondence, distribution lists, financial receipts and disbursements, and “such other books, records, and documents as are necessary properly to reflect the activities for which registration is required”—for a period of three years following the termination of registration. See 28 C.F.R. §5.500.
FARA Enforcement and Advisory Opinions
FARA is a criminal statute. Willful violations are punishable by fines of up to $10,000, and up to five years’ imprisonment. 22 U.S.C. § 618(a). Although FARA does not itself contain a mechanism for civil fines, providing only for DOJ to seek injunctive relief against noncompliant parties, id. §618(f), the Department has on occasion looked to other sources of authority to recover funds even in the absence of any criminal conduct. Whether DOJ will seek to augment its civil-enforcement authority—either through legislative amendments to FARA itself or through expanded reliance on other statutory mechanisms—remains to be seen.
FARA is enforced by the FARA Unit within DOJ’s National Security Division. DOJ allows parties to seek advisory opinions from the FARA Unit about whether their proposed activities would require registration under the Act. While DOJ will redact identifying information from the advisory opinions before making them public, the parties are required to identify themselves to the Department in seeking an advisory opinion. See generally 28 C.F.R. § 5.2. Advisory opinions are posted on DOJ’s FARA website, www.fara.gov.
When FARA Issues Arise
FARA issues can arise in a variety of ways: A new foreign client may present FARA risks on its face; an existing matter for a foreign client may evolve to take on a political or quasi-political dimension that implicates FARA; or the DOJ FARA Unit may send a letter requesting information based on recent media coverage or advertising campaigns raising potential FARA issues.
In such circumstances, firms should consider seeking competent FARA counsel to advise on the appropriate path forward. That may include declining or carefully defining the scope of an engagement at the outset; avoiding public-relations or lobbying efforts for a foreign client on matters intertwined with foreign governmental interests; registering under the LDA; or, if necessary, registering under FARA and implementing an appropriate compliance regime.
Where issues arise with respect to past conduct, it bears noting that DOJ has historically encouraged parties to bring themselves into compliance voluntarily, including through retroactive registrations if needed.
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When Congress enacted FARA in 1938, it did so to require the registration and disclosure of persons disseminating Nazi and communist propaganda in the United States—shining “the pitiless spotlight of publicity” on those activities.3 A generation later, when Congress amended the Act to create the version that is largely in place today, the Senate explained that “[t]he place of the old foreign agent has been taken over by the lawyer-lobbyist and public relations counsel whose object is not to subvert or overthrow the U.S. Government, but to influence its policies to the satisfaction of his particular client.”4
Recent developments underscore DOJ’s renewed enforcement vigor with respect to this type of influence. Unfortunately, FARA is a highly technical statute that has been subject to inconsistent interpretations over the years. Given FARA’s newfound prominence and the likely increase in DOJ’s enforcement activity, professional service firms with questions about the application of FARA to their work on behalf of foreign clients would be well advised to seek guidance from experienced FARA counsel.