DOJ Officials Shed Light on Ongoing FARA Enforcement

Last week, we and other members of the FARA bar gathered in Washington, DC for ACI’s 3rd National Forum on the Foreign Agents Registration Act, where practitioners traded insights and heard from current and former government officials about the FARA Unit’s recent work and enforcement priorities. Three current officials with responsibility for FARA matters addressed the conference: Jay Bratt, Chief of the Counterintelligence & Export Control Section (CES) of DOJ’s National Security Division (NSD); Jennifer Gellie, Chief of the FARA Unit; and Heather Hunt, Senior Counsel for FARA Administration.

Our takeaway: while the FARA Unit continues to pursue its mission primarily through voluntary compliance, the enforcement push of the last few years is far from over. Officials emphasized that the Unit will continue drawing on all of its compliance and enforcement tools, including the publication of advisory opinions, requests for information from potential registrants, compulsory process in connection with criminal investigations, and even affirmative civil litigation to compel registration. The Department is also taking steps to clarify FARA through an upcoming rulemaking on a broad range of topics.

The government speakers addressed the following topics, among others:

Year in review. The number of registered agents is at its highest level since at least 2013, with 121 added to the rolls in the past year. The FARA Unit reviewed 5,975 documents. The Unit continues to pursue criminal cases under both FARA and 18 U.S.C. § 951, a related but separate provision prohibiting certain agents of foreign governments from acting in the United States without prior notification to the Attorney General.

New personnel. The Unit recently hired a longtime assistant US attorney with experience in affirmative civil enforcement litigation, and it plans to onboard another analyst in the near future. The Unit is also making greater use of CES trial attorneys in its work.

Advisory opinions. The Unit continues to make an effort to include more detail in its publicly available advisory opinions. According to Unit Chief Gellie, the Unit’s attorneys operate by consensus and workshop drafts to promote consistency. NSD routinely tweets out new advisory opinions and other FARA updates under the @DOJNatSec handle.

Advanced Notice of Proposed Rulemaking (ANPRM). DOJ is soliciting comments regarding its recently issued ANPRM. Officials acknowledged that there may be gaps in their understanding of how the FARA Unit’s interpretation of certain statutory or regulatory provisions affects clients in practice. DOJ is actively seeking feedback from stakeholders, including members of the FARA bar and their clients.

Additional civil enforcement tools. Both the government and private-sector speakers addressed the merits of adding civil investigative demand (CID) authority or civil monetary penalties to the Unit’s toolkit. Some noted that the binary nature of DOJ’s current authorities is not optimal for either the government or potential registrants: the Unit can either pursue voluntary compliance through administrative requests or open a criminal investigation and seek grand jury subpoenas, but it has no options for compulsory civil process, resulting in “too much” or “too little” process in some cases. Other speakers took the position that the Department already has plenty of tools at its disposal and that adding CID authority would impose unnecessary burdens on potential registrants. Civil monetary penalties for non-compliance with administrative inquiries offer a possible middle ground.

Voluntary compliance. Voluntary compliance remains the focus of the FARA Unit. Unit Chief Gellie noted that the purpose of the Unit’s outreach to potential registrants is to “start a conversation” and that fewer than half of the FARA Unit’s Letters of Inquiry to potential registrants result in a determination of an obligation to register.

Our FARA team provides proactive advice to clients on their registration obligations. We also represent clients in responding to requests for information from the FARA Unit, filing initial and supplemental registration forms, preparing for inspections by the FARA Unit and FBI, and navigating criminal investigations. For questions about FARA, please reach out to the authors or any of their colleagues in Arnold & Porter’s White Collar Defense & Investigations practice group.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.