Reed Smith In-depth

The recent arrest and indictment of former Trump campaign advisor, Thomas Barrack, for alleged illegal lobbying, unsealed in federal court in Brooklyn, New York, on Tuesday, July 20, 2021, indicates the Department of Justice’s continuing aggressive use of the Foreign Agents Registration Act (FARA or the Act).1 This client alert briefly summarizes the state of the law surrounding FARA and highlights that criminal enforcement of this previously rarely used statute is likely to remain a top priority of the government.

Continued increase in FARA enforcement

FARA is a federal statute originally intended to force disclosure of foreign propaganda.2 The statute was enacted to counter subversive activity during a time when Nazi propaganda was common in the United States. Amendments to the statute in the 1960s shifted its focus toward the simpler goal of promoting lobbying transparency to protect government decision-making from foreign influence.3 Following further registration amendments in the 1990s, which removed the term “propaganda” from the statute, the current Act requires certain foreign agents to register with the United States attorney general, and applies broadly to anyone who acts on behalf of a foreign principal to influence U.S. policy or public opinion. Its purpose is to (i) identify those who are attempting to influence U.S. public opinion, policy, and laws on behalf of foreign officials, and (ii) be informed of the source of informational materials utilized in those efforts. In a nutshell, FARA permits the United States government to impose criminal fines and imprisonment for anyone who willfully fails to register as a foreign agent with the United States Department of Justice (DOJ).4

The latest indictment represents at least the twelfth criminal prosecution for FARA violations since 2017 – nearly twice as many as during the 40-year period between 1966 and 2015. This appears to be a deliberate policy decision spanning the last three administrations.5 For over five years, DOJ has signaled its willingness to use FARA to target agents of foreign “propaganda,” despite that term having been repealed from the statute by the 1990s amendments.6 For example, in December 2020, former Deputy Assistant Attorney General for the National Security Division Adam Hickey stated publicly that certain Russian media organizations were at “the very heart of what FARA was designed to address: state propaganda published under the guise of independent speech.”7 The newest indictment continues the increasing trend in criminal prosecutions under FARA, which had its genesis in the Obama administration and quickened over the last decade. The indictment signals that the government is unlikely to slacken its aggressive FARA enforcement posture.