The Barrack indictment

A seven-count indictment, unsealed on July 20, 2021, charges Barrack and two codefendants with acting and conspiring to act as agents of the United Arab Emirates (UAE) between April 2016 and April 2018 under 18 U.S.C. section 951, a closely related but distinct statute from FARA, which nonetheless requires registration under FARA.⁸ The defendants allegedly unlawfully attempted to advance the interests of the UAE at the direction of senior UAE officials by influencing certain policy positions of Donald Trump during the 2016 U.S. presidential election. Subsequently, the defendants allegedly attempted to influence foreign policy positions of the U.S. government and shift public opinion in favor of the UAE.

Between April 2016 and November 2016, Barrack served as an advisor to the Trump presidential campaign and later served as chairman of the Presidential Inaugural Committee in which he advised senior U.S. government officials on foreign policy issues in the Middle East. In this role, Barrack and the other charged defendants are alleged to have attempted to advance the interests of the UAE by providing intelligence to the UAE and failing to notify the attorney general that their actions were taken at the direction of senior UAE officials. According to acting U.S. Attorney for the Eastern District of New York, Jacquelyn Kasulis, the defendants had an obligation to notify the attorney general of their activities, and their failure to do so was a “flagrant violation” of the law.⁹

More specifically, the 45-page indictment alleges that Barrack scheduled phone calls, drafted statements, coordinated meetings, and was regularly in contact with senior leadership of the UAE government, all for the purpose of shifting U.S. policy and public opinion in a direction more favorable to the UAE. However, the indictment does not allege that Barrack was ever directly paid for this alleged work. Rather, it only alleges that a UAE wealth fund invested in Barrack’s investment firm. Further, it does not allege that the FARA unit ever notified Barrack of its view that he was required to register under FARA.

Recent examples of FARA: related prosecutions

The Barrack indictment follows a pattern by DOJ of aggressively using FARA to widen criminal liability for what could be considered obscure interpretations or de minimis or technical violations of the statute – despite multiple Supreme Court decisions over the past decade rejecting DOJ’s broad interpretation of other criminal statutes.¹⁰

For example, in 2018, DOJ filed an indictment against 13 Russian individuals and three entities charging one count of conspiracy to defraud the United States, pursuant to the 18 U.S.C. section 371 defraud clause, which has been interpreted to prohibit “interfering with or obstructing one of its lawful government functions by deceitful and fraudulent means.”¹¹ Specifically, the defendants charged under the 2018 indictment were alleged to have engaged in social media activity for the purpose of interfering with the 2016 presidential election.¹² Since there is no statute that criminalizes this activity, in order to pursue the Concord defendants, the government used the long-controversial conspiracy-to-defraud¹³ provision, arguing that the defendants’ conduct interfered with the government’s ability to enforce FARA.

After significant pretrial activity addressing this unprecedented prosecution, the government filed a superseding indictment alleging, as to FARA, that the Concord defendants “caused unwitting persons to produce, purchase, and post advertisements on U.S. social media and other online sites expressly advocating for the election of then-candidate Trump or expressly opposing [Hillary] Clinton” but “did not … register as foreign agents with [DOJ], nor did any of the unwitting persons they caused to engage in such activities.” However, neither the indictment nor the government’s Bill of Particulars identify which defendants failed to make the required registrations with the DOJ.¹⁴ Ultimately, the government dismissed the charges against the Concord entities, but not the individual defendants.¹⁵

In 2019, the government again attempted an indirect path to enforce FARA by indicting former White House Counsel Gregory Craig. Instead of charging a FARA violation, the government charged Craig with lying to DOJ to avoid FARA registration requirements under a theory of false statements and omissions.¹⁶ These allegedly false statements included some allegedly made at a meeting between Craig and DOJ’s FARA Unit in October 2013, which led DOJ at the time to determine that Craig was not required to register under FARA. Craig was ultimately acquitted.

The future of FARA prosecutions

Despite the government’s failure to convict in these two high-profile attempts to indirectly enforce FARA, given public controversy over foreign “disinformation” campaigns and the government’s concern over foreign election influence, the increasing trend in criminal FARA prosecutions is unlikely to abate. Perhaps the Barrack indictment represents a shift toward direct enforcement of FARA. The government’s willingness to interpret FARA broadly and to enforce it indirectly underscores the importance for individuals and entities engaged in any activities that could potentially be viewed as being on behalf of a foreign principal, and thus falling under FARA’s purview, to carefully – and with the aid of knowledgeable legal counsel – take a thorough look at their possible registration obligations under the law.

1. Press Release, Department of Justice, “Former Advisor to Presidential Candidate Among Three Defendants Charged with Acting as Agents of a Foreign Government” (July 20, 2021), available at justice.gov.
2. See, e.g., Viereck v. United States, 318 U.S. 236, 241 (1943) (“The general purpose of [the 1938 Act] was to identify agents of foreign principals who might engage in subversive acts or in spreading foreign propaganda, and to require them to make public record of the nature of their employment.”).
3. “The act was not intended to bring about wholesale convictions for violations. It was – and is – intended to bring about disclosure.” 112 Cong. Rec. 13,827-28 (1966) (statement of Senator J. William Fulbright); see also Keene v. Meese, 619 F. Supp. 1111, 1115 (E.D. Cal. 1985), rev’d, 481 U.S. 465 (1987) (finding that Congress in the 1960s rewrote the statute and “deemed it appropriate to modify the xenophobic tenor of the original Act and to emphasize the ‘sunshine’ aspect of the law”).
4. See, e.g., Reed Smith Client Alert, “What You Need to Know About the Foreign Agents Registration Act (FARA),” available at reedsmith.com.
5. See, e.g., David Laufman, “FARA Enforcement: The Year Ahead,” LAW360 (Feb. 7, 2019), available at law360.com (comparing the number of criminal prosecutions between 2017 and 2019 to the 40-year period between 1966 and 2015); see also Department of Justice, “Recent FARA Cases” (updated Feb. 26, 2021), available at justice.gov (reflecting at least 10 criminal FARA prosecutions between 2017 and 2021).
6. Press Release, Department of Justice, “DOJ OIG Releases Report on the DOJ’s Enforcement of the Foreign Agents Registration Act” (Sept. 7, 2016), available at oig.justice.gov; see also 56 Stat. 249, at 250–51 (repealed 1995).
7. Department of Justice, Remarks of Deputy Attorney General Adam Hickey, ACI 2nd National Forum on FARA (Dec. 4, 2020), available at justice.gov.
8. Indictment, United States v. Al Malik Alshahhi et al., Docket No. 21-CR-371 (E.D.N.Y. July 20, 2021); see Department of Justice, “FARA Related Statutes” (updated Nov. 6, 2019), available at justice.gov. According to the DOJ, registration under FARA serves as the requisite notification for 18 U.S.C. section 951.
9. Press Release, Department of Justice, “Former Advisor to Presidential Candidate Among Three Defendants Charged with Acting as Agents of a Foreign Government” (July 20, 2021), available at justice.gov.
10. See, e.g., Van Buren v. United States, 141 S. Ct. 1648, 1662 (2021) (holding the Computer Fraud and Abuse Act only reaches computer users “who obtain information from particular areas in the computer … to which their computer access does not extend” and rejecting the government’s more expansive interpretation, which would have punished people who “have improper motives for obtaining information that is otherwise available to them”); Yates v. United States, 135 S. Ct. 1074, 574 U.S. 528 (2015) (reversing criminal conviction, finding that a “fish” is not a “tangible object” for the purposes of the Act and rejecting the prosecution’s expansive view that criminalized a fisherman who threw a fish overboard where the government claimed he “knowingly … destroy[ed] … [a] … tangible object with the intent to impede … the investigation … of any matter within the jurisdiction of any … agency of the United States” 135 S. Ct. at 1078 (quoting 18 U.S.C. section 1519)).
11. United States v. Cohn, 270 U.S. 339, 346 (1926); see also United States v. Johnson, 383 U.S. 169, 172 (1966).
12. Indictment, United States v. Internet Research Agency, No. 1:18-cr-00032 (D.D.C. Feb. 16, 2018) (Concord) (charging, inter alia, defendant Concord with conspiracy to defraud the United States by “impairing, obstructing, and defeating the lawful functions of the Government through fraud and deceit for the purpose of interfering with the U.S. political and electoral processes, including the presidential election of 2016”).
13. National controversy over the government’s misuse of the federal conspiracy statute dates back more than 60 years. For example, in 1959, Yale Law School Professor Abraham Goldstein wrote about the dangers and ambiguities of the law of conspiracy. See, e.g., Abraham S. Goldstein, Conspiracy to Defraud the United States, 68 Yale L.J. 405 (1959) (criticizing the lack of boundaries imposed by the vague terms “conspiracy” and “defraud”).
14. Motion for a Supplemental Bill of Particulars, United States v. Internet Research Agency, No. 1:18-cr-00032 (D.D.C. Feb. 16, 2018).
15. Government’s Motion to Dismiss, United States v. Internet Research Agency, No. 1:18-cr-00032, at 2–3 (D.D.C. Feb. 16, 2018).
16. Indictment, United States v. Gregory Craig, No. No. 1:19-cr-00125 (D.D.C. Apr. 11, 2019) (18 U.S.C. section 1001(a)(1) (False Statements Scheme) and 22 U.S.C. sections 612, 618 (False and Misleading Statements)).

In-depth 2021-206