Summary List Placement
Thank Rudy Giuliani and the FBI raid of his home and office Wednesday for vaulting the Foreign Agents Registration Act — an obscure, pre-World War II law that went little-enforced for decades — back into public prominence.
“FARA is definitely having its moment in the spotlight now,” said Robert Kelner, chairman of law firm Covington & Burling LLP’s election and political law practice.
So what, exactly, is FARA?
Here are five key things to know:
FARA was designed to fight Nazi propaganda
President Franklin Roosevelt signed FARA into law in 1938 to “combat the spread of hidden foreign influence through propaganda in American politics.”
Federal officials were particularly aghast at Nazi efforts to propagandize Americans in the years immediately before the United States’ entry into World War II.
FARA’s passage provided legal muscle against a danger that even President George Washington foreshadowed in his farewell address.
“Against the insidious wiles of foreign influence (I conjure you to believe me, fellow citizens) the jealousy of a free people ought to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of republican government,” Washington wrote in 1796 when the nation remained in its infancy.
This isn’t your grandfather’s FARA
Lawmakers have significantly revised FARA over the years, gearing it away from propaganda and toward exposing and defending against foreign meddling in US politics, including foreign advocacy and lobbying.
Congress revised FARA in 1942, 1966, and 1995, according to the Congressional Research Service.
In its modern context, “the core purpose of FARA is to put US government officials and the American people on notice when a foreign government or other foreign interest is behind efforts to influence their opinions or actions, so that they can appropriately consider and weigh information or content in light of that underlying foreign interest,” said David Laufman, a partner at Wiggin and Dana and former top Justice Department official who oversaw FARA enforcement.
In practical terms, non-diplomats who work as “agents” for a “foreign principal” must register with the Department of Justice and provide regular updates about their political, public relations, consulting, and fundraising activities.
Foreign principals, for the purposes of FARA, are defined as foreign governments, political organizations, corporations, or even individuals, such as an oligarch.
In many cases, lobbyists for foreign companies are able to avoid registering under FARA and instead reveal their work under the less-onerous Lobbying Disclosure Act, so long as the advocacy advances a commercial interest and is not principally serving a foreign government or political party.
Three events changed FARA enforcement
There are several reasons FARA’s profile has increased in recent years.
A 2016 Justice Department inspector general report concluded that foreign agents subject to FARA were “frequently late in submitting required documentation” and “unresponsive” to federal officials’ efforts to obtain it, the inspector general concluded.
The inspector general also chided federal officials for their anemic enforcement of FARA — and offered numerous recommendations for improvement, including the development of a “comprehensive enforcement strategy.”
Soon after, Special Counsel Robert Mueller III made FARA a “principal tool” in his investigation into Russian influence during the 2016 election, Kelner said.
FARA’s increased prominence is also a “product of our time” where there’s “a fear of foreign influence in the United States across many fronts,” Kelner said.
Giuliani should fear FARA
In recent years, FARA cases have resulted in probation or even prison sentences for convicted offenders.
One of Mueller’s first cases involved charges that former Trump campaign chairman Paul Manafort failed to register as a foreign agent in connection with his past lobbying work for the Russia-backed government in Ukraine.
After being convicted at trial in Alexandria, Virginia, on a raft of financial charges, Manafort admitted in a Washington DC-based federal court to conspiring to violate FARA. Manafort was sentenced to a combined seven-and-a-half years in prison between the two cases but was later pardoned by former President Donald Trump.
More recently, the businessman and political donor Imaad Zuberi was sentenced to 12 years in prison after pleading guilty to violating FARA and other offenses, including tax evasion and making illegal campaign contributions.
The FARA charge against Zuberi stemmed from his lobbying efforts on behalf of Sri Lanka, but ahead of his sentencing, prosecutors pointed to his interactions with other countries as justifying a longer prison term.
Other high-profile FARA cases during the past several years involved former Trump National Security Advisor Michael Flynn, former Trump 2016 campaign aide Rick Gates, the prominent Republican fundraiser Elliott Broidy, and the law firm Skadden, Arps, Slate, Meagher & Flom LLP.
That recent track record underscores the real threat of prison time that Giuliani now confronts.
On Wednesday, federal investigators executed search warrants at Giuliani’s office and residence in Manhattan. The broad-daylight raid on the former mayor of New York City escalated a probe into Giuliani’s dealings in Ukraine during his time as Trump’s personal lawyer.
“The days that people assume the department is going to be lax in enforcing FARA are over,” Laufman said. “People and companies that willfully fail to register under FARA are now playing with fire.”
What are the penalties for violating FARA?
The penalty for a single “willful violation” of FARA is a prison sentence of up to five years or a fine of up to $250,000 — or both, according to the Department of Justice.
Certain FARA violations are considered misdemeanors, with prison terms of up to six months and fines of up to $5,000.
The Justice Department also has the authority to file civil lawsuits to compel registration under FARA.
In 2019, a federal judge in Florida ordered RM Broadcasting to register as a foreign agent in connection with its airing of the radio channel Sputnik, whose parent company is owned and operated by the Russian government. The Justice Department countersued in the case after RM Broadcasting went to court challenging the department’s determination that it was required to register under FARA.
Under the Trump administration, top Justice Department officials signaled that the department would more regularly turn to its civil authority to drive disclosures of foreign influence efforts.
A member of Mueller’s special counsel team, Brandon Van Grack, was assigned in 2019 to lead the Justice Department unit tasked with overseeing compliance with FARA. Van Grack left the Justice Department in January after a two-year tenure in which the FARA unit adopted a more aggressive approach to enforcement.
The unit is now led by Jennifer Kennedy Gellie, a career counterespionage prosecutor in the Justice Department’s national security division.