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”) within 10 days of agreeing to become an agent, and before performing any political or quasi-political activities in the United States on behalf of the foreign principal.

The definition of “foreign principal” includes the following entities and/or individuals: (1) a non-U.S. government or subdivision thereof (including factions or insurgents not formally recognized by the United States as legitimate governments); (2) a non-U.S. political party; (3) or a non-U.S. person or organization. To be considered an “agent of a foreign principal” for the purposes of FARA’s registration requirement, the agent must operate within the United States under the direct or indirect control of a foreign principal, and engage in any of the following on behalf of the foreign principal or its interests:

• Political activities;
• Representation of the foreign principal as public-relations counsel, publicity agent, information-service employee, or political consultant;
• Solicitation, collection, or spending of anything of value; or
• Representation of the interests of the foreign principal before any U.S. government agency or official.

Registration under FARA requires foreign agents to file, under oath, a registration statement with the U.S. Attorney General within 10 days after becoming an agent and before performing any activities for the foreign principal. The registration statement must include (among other things): comprehensive identifying information about the agent, copies of the agent’s agreements with the foreign principal, descriptions of the measures to be undertaken for the foreign principal, and details of all transfers of anything of value from the foreign principal to the agent. Violations of these registration requirements—Manafort and Gates are charged with failing to register—can result in a fine of no more than $10,000, imprisonment of up to five years, or both.

FARA provides certain exceptions to its registration requirements, including exceptions for the following individuals:

• Journalists;
• Duly accredited foreign diplomatic or consular officers recognized by the U.S. Department of State while acting within the scope of their official functions;
• Foreign government officials or diplomatic or consular staff members engaged in the activities for which they have registered with, and are recognized by, the U.S. Department of State (not including public-relations counsel, publicity agents, information-service employees or U.S. Citizens);
• Those solely engaged in private/non-political commercial or trade activities or the solicitation of contributions within the U.S. to be used only for medical aid or food/clothing assistance;
• Registered lobbyists; and
• Those engaging solely in religious, scholastic, academic, scientific or fine arts pursuits.

Persons registered as foreign agents pursuant to FARA are identified in semi-annual public reports provided to Congress by the FARA Registration Unit of the Counterintelligence and Export Control Section in the Department of Justice’s National Security Division. The report is organized by country and describes the services to be provided by each registrant. The report is available to the public from the fara.gov webpage. Potential registrants under FARA may be deterred by the limited enforcement of this law, the publicly available reports to Congress, and FARA requirements for marking statements made on behalf of the foreign principal, presumably undermining the weight accorded to those statements.

Manafort/Gates FARA Allegations

The Indictment alleges that from 2008-2014, in violation of FARA, Manafort and Gates knowingly acted as agents of a foreign principal without registering with the Attorney General. They allegedly engaged in a multi-million dollar lobbying and public relations campaign on behalf of the Government of Ukraine, the Party of Regions (a pro-Russia Ukrainian political party) and its successor, the Opposition Bloc, and Victor Yanukovych (President of the Party of Regions from 2010-2014). Manafort and Gates are additionally alleged to have provided false and misleading statements in the FARA registration they ultimately provided to the Attorney General in 2016-2017.

Other Recent FARA Cases

FARA has not commonly been used by federal prosecutors to bring criminal charges. According to the Audit of the National Security Division’s Enforcement and Administration of the Foreign Agent Registration Act (published by the Office of the Inspector General of the DOJ in September 2016 and available here), the DOJ has only brought seven criminal FARA cases between 1966 and 2015. One of these cases resulted in a conviction at trial for conspiracy to violate FARA and other statutes, and two cases resulted in guilty pleas with respect to the FARA charges.

Two noteworthy FARA criminal cases were brought in 2010. In June 2010, federal prosecutors charged 11 people alleged to have been part of a Russian spy ring in the United States. These individuals were charged with—and ultimately plead guilty to—violating FARA’s registration requirement. In addition, in July 2010, former Michigan Congressman Mark Siljander pled guilty to violating FARA by failing to register as an agent of the Islamic American Relief Agency, a charity that hired Siljander to lobby the Senate Finance Committee to remove it from a list of charities with possible terrorism ties. 

Looking Ahead

With the high level of public interest in the Manafort Indictment, the U.S. Government’s scrutiny of FARA registrations and foreign agent activity may increase. 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, should carefully—and with the aid of knowledgeable legal counsel—take a thorough look at their possible registration obligations under the law.

Client Alert 2017-265