First-Time FARA Registrant? Here’s Our Advice

So, you’ve decided to register under FARA. As DOJ officials and panelists from the private sector alike emphasized at the recent ACI FARA conference, understanding and complying with FARA’s requirements is essential to avoid drawing inquiries from the FARA Unit regarding noncompliant forms. Our FARA team provides comprehensive, proactive advice regarding requirements, obligations, and consequences at every step of FARA registration and beyond. Here are some practical tips to make the process as painless as possible:

• Get moving. Once you’ve identified a registration obligation, begin gathering the necessary information immediately. You don’t have much time. The statute requires registrants to file an initial registration statement within 10 days of having agreed to act as an agent of a foreign principal. You can find the registration forms and templates on the FARA Unit’s website. For the initial registration, you will need to file an initial registration statement (registration information), Exhibit A (foreign principal information), Exhibit B (agreement or contract), and any short form registration statements. You may also have to file Exhibit C (organization’s charter or bylaws) and Exhibit D (fundraising details). Keep in mind that DOJ maintains a searchable public database of registrants and filings, and the press routinely reports on new information added to this database. It is safe to assume that everything you file can be seen by the public.

• Make sure your forms are detailed and complete. In recent remarks to the FARA bar, DOJ’s FARA Unit emphasized that insufficient detail in the registration submissions can prompt the FARA Unit to send a deficiency letter or otherwise follow up with the registrant. Filing incomplete forms will also put you at a greater risk of inspection by DOJ and the FBI.

• Keep gathering information and maintaining records for biannual supplemental reporting. Registration isn’t the end of the story—it creates ongoing information-gathering, reporting, and recordkeeping obligations. During the six-month period following the initial registration, and for every six months for which registration is required, the registrant must monitor and maintain records of information for supplemental reports that are due 30 days after the end of every six-month period following the initial registration. This includes information regarding (1) activities and services rendered by the registrant to the foreign principal; (2) political activity engaged in by the registrant on behalf of the foreign principal; (3) financial information; and (4) informational materials. We recommend using the CSV template on the FARA Unit’s website to maintain your records to avoid problems with the electronic filing system. Keep in mind, you must keep these books and records for three years after terminating registration.
• Know the collateral consequences of registration. Prior to registering, make sure you are familiar with the potential political, professional, and reputational repercussions. For example, many US electoral campaigns (including the Biden presidential campaign) refuse to accept donations from individuals registered under FARA. US government officials (including members of Federal Advisory Committees) cannot act as foreign agents, so FARA registrants are not eligible for appointment to those committees. And earlier this year, President Biden issued an executive order prohibiting FARA registrants from accepting a political appointment with an executive agency with which they previously interacted on behalf of a foreign principal.
• Develop compliance programs for the future. Once you’ve made it to the end of the initial registration process, focus on creating a reliable compliance system going forward. We often recommend to our clients (particularly PR and lobbying firms) that they establish a standardized intake process to identify any potential FARA issues when considering a new case or client. We also offer training for clients and their employees who may be in a position to identify potential registration obligations.

For questions about FARA, including assistance with the registration process, 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.