U.S. Department of Justice building in Washington, D.C. Photo Credit: Diego M. Radzinschi/ALM
A senior U.S. Justice Department official signaled Wednesday that prosecutors will expand their tactics to drive the increased disclosure of foreign influence campaigns, using civil authority to force advocates to report work connected to overseas governments.
John Demers, the assistant attorney general in charge of the Justice Department’s national security division, said prosecutors will continue to step up their enforcement of the Foreign Agents Registration Act—but not always with the hammer of a criminal prosecution.
Noting that FARA is “not just a criminal” statute, Demers said the Justice Department can also take a lighter touch and pursue civil court actions to halt foreign influence campaigns and require disclosures without a prosecution that raises the possibility of a prison sentence.
The Justice Department will also more thoroughly examine the disclosures of already-disclosed lobbying work to ensure they include adequate detail, Demers said.
“In light of the increased sensitivity of the problem of covert foreign influence, we should expect to see a continued focus on this area—and not just measured by criminal cases,” Demers said, acknowledging the department’s opportunity to use the civil enforcement provision of the statute.
The Justice Department is already in the midst of such a civil action. In a West Palm Beach federal court, the Florida-based RM Broadcasting last year challenged the Justice Department’s demand that it register as a foreign agent in connection with its airing of the radio channel Sputnik, whose parent company, Rossiya Segodnya, is owned and operated by the Russian government. The Justice Department, invoking its civil authority, countered on New Year’s Eve with a request for Judge Robin Rosenberg to issue an injunction forcing RM Broadcasting to register as a foreign agent.
Assistant Attorney General John Demers
In his remarks Wednesday, Demers said the Justice Department also sees a need to “do more inspections” of disclosures from those already registered as foreign agents and send “deficiency letters” when reports lack adequate detail.
His remarks came during a panel discussion at the American Enterprise Institute focused on FARA, an 80-year-old law originally designed to shine a light on Nazi propaganda campaigns. In the decades since, the Justice Department has lightly enforced FARA, producing a meager record that drew criticism from the DOJ’s inspector general and Congress.
In recent years, jolted by the inspector general’s 2016 report and the revelations of the investigation into foreign influence in the 2016 election, the Justice Department pivoted to take a more aggressive posture.
The special counsel’s office charged former Trump campaign chairman Paul Manafort in 2017 with violating FARA by failing to disclose his past work for the Russia-aligned government of Ukraine, a case that shined a light on what was then a little-known lobbying disclosure law.
In January, the law firm Skadden, Arps, Slate, Meagher & Flom agreed to pay $4.6 million to resolve allegations that it violated FARA by not registering as a foreign agent in connection with a report it prepared in 2012 on the Ukrainian government’s prosecution of Yulia Tymoshenko, a former prime minister and political rival of the country’s president at the time, Viktor Yanukovych.
The lead partner on that work, Greg Craig, a former Obama White House counsel who left Skadden in 2018, was indicted last week in Washington on charges he made false and misleading statements to the Justice Department to avoid registering as a foreign agent. Craig pleaded not guilty last week, and he said defiantly that his work did not require him to register under FARA.
Hours earlier, Washington lobbyist Sam Patten was sentenced to three years of probation for failing to register as a foreign agent in connection with his work for a Ukrainian political party. Prosecutors said Patten had sought to arrange for his Russian business partner and a member of the Opposition Bloc, a Ukrainian political party, to meet with members of Congress. Also, he was accused of brokering access to Trump’s inauguration for a pro-Russian Ukrainian oligarch, in violation of the federal prohibition on foreigners contributing to such ceremonies.
Patten, just days removed from his sentencing before U.S. District Judge Amy Berman Jackson, attended Wednesday’s panel discussion. After one attendee attempted to ask about the Craig prosecution, only to be told by the moderator that she’d promised not to discuss the case, Patten rose to ask: “Are the subjects of individual cases allowed to ask questions?”
His presence appeared to surprise the audience. His question concerned non-governmental organizations, specifically the so-called “academic exemption” to FARA that allows scholarly institutions to avoid registering if they are engaged solely in religious, scholastic, academic, or scientific pursuits or the fine arts--and not political activities.
“My question has to do with the NGO exclusion. And let’s take a hypothetical, for instance: A country that’s come into a lot of attention recently is Ukraine. There’s a presidential election this summer in Ukraine. Let’s say the think tank community sort of believes that one candidate should win. Let’s say there’s a think tank that received funding from supporters of that particular candidate that issued and disseminated opinion pieces arguing for that candidate’s victory. Is there a reason that shouldn’t be applicable under FARA?”
Covington & Burling partner Robert Kelner, the leader of the firm’s political law and election practice, took the question.
“Well, a threshold question is whether there’s agency for a foreign government or a foreign political party. So you can have activity by a US non-profit that involves U.S. elections or foreign elections where it’s not necessarily on behalf of a foreign principal," Kelner said. "But if you do have evidence of agency,” meaning the organization is working at the behest of a government or political party, “generally speaking, it is likely to trigger the statute."
Registering as a 'Foreign Agent'? Why Law Firms and Lobby Shops Might Demur.
Ex-Partner's Fight Against Lobbying Charges to Put Skadden Back in Limelight
Greg Craig, Defiant After Lobbying Charges, Pleads Not Guilty
Lobbyist Sam Patten, Charged in Mueller Spinoff Case, Gets 3 Years' Probation
Manafort Judge Says Foreign Lobbying Law Is No 'Pesky Regulation'