Whether registration is triggered is highly fact dependent, turning on whether agency exists, the nature of the activities conducted by the agent, and whether any of FARA’s amorphous “exemptions” apply. This leaves prosecutors ample room to bring novel test cases, and parties who are new to the statute ample room to misjudge its boundaries.įARA is a complicated, arcane, and loosely worded statute. And, while the DOJ FARA Unit commendably published a subset of its long-secret advisory opinions last year, these short opinions are light on legal analysis and difficult to apply to other situations. There are exceedingly few cases clarifying FARA’s broadly worded provisions. public opinion could trigger registration. A request from a foreign person or entity to provide advice regarding how best to influence U.S.government officials could trigger registration. A mere “request” from a foreign person or entity (such as a foreign government official or, in some circumstances, even a foreign private sector individual or company) for help setting up meetings with U.S.There does not need to be any payment of a fee.There does not need to be a written contract.There does not need to be a foreign government client.subsidiaries of foreign companies, and other commercial enterprises. FARA is written so broadly that, if read literally, it could potentially require registration even for some routine business activities of law firms, lobbying and public relations firms, consulting firms, nonprofit advocacy groups, charitable organizations, ethnic affinity organizations, regional trade promotion groups, think tanks, universities, media organizations, trade associations, U.S.But first, here are some of the key points to keep in mind: Key Points about FARAīelow we provide a detailed primer on FARA registration, highlighting the ways in which it is now relevant to a broad cast of characters, including multinational corporations. Recent events have further incentivized them to take a harder line. The report has, in turn, created a feedback loop, emboldening government officials to be more aggressive in response to the IG’s criticism. It is likely that the IG’s lengthy review encouraged line FARA attorneys at DOJ to toughen their posture, even before the IG’s critical report was issued. The IG’s report recommended that DOJ’s National Security Division adopt a comprehensive FARA enforcement strategy. In September 2016, DOJ’s Inspector General issued a report suggesting that the Department’s enforcement of FARA was too lax, pointedly noting the rarity of prosecutions, and recounting FBI field agents’ complaints that it was too hard to secure DOJ approval to file FARA charges. A significant uptick in audits of registered foreign agents by the FARA Unit (the Department of Justice office that administers FARA), followed by significant staffing changes in the FARA Unit, and then noticeably more aggressive interpretations of the statute in advisory opinions and informal advice from the FARA Unit, all signaled a sea change. While recent cases related to Special Counsel Robert Mueller’s investigation are the most salient examples, the renewed focus on foreign agents actually began a few years ago, and not all of the recent prosecutions are connected to the Mueller investigation. In-house lawyers are scrambling to bone up on this famously vague criminal statute, at a time when the nation’s tiny bar of experienced FARA lawyers can still hold its meetings in the back of a mini-van. In the last three years, prosecutors have brought more FARA prosecutions than they had pursued in the preceding half century.
Like the once obscure Foreign Corrupt Practices Act, which prosecutors revived from hibernation more than a decade ago, FARA is receiving its close-up. Until recently, it was a backwater of American law-and a very still backwater at that, with just seven prosecutions between 19. As amended over the years, it applies broadly to anyone who acts on behalf of a "foreign principal" to, among other things, influence U.S. In 1938, Congress enacted the Foreign Agents Registration Act ("FARA"), requiring "foreign agents" to register with the Attorney General. The Foreign Agents Registration Act (FARA): A Guide for the Perplexed