DOJ Officials Promise Continued FARA Enforcement

Last week, we and other members of the Foreign Agents Registration Act (FARA) bar gathered in Washington, DC, for ACI’s 4th National Forum on FARA, where practitioners swapped insights and heard from current and former government officials about the FARA Unit’s recent work and enforcement priorities. Four current officials with responsibility for FARA and related 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; Heather Hunt, Senior Counsel for FARA Administration; and Laura Dehmlow, Chief of the FBI’s Foreign Influence Task Force.

Our takeaway: despite recent litigation losses for the government, there are no signs of a slowdown in the enforcement push of the last few years. Officials emphasized that DOJ will continue drawing on its full compliance and enforcement toolkit, including reviewing open-source information, conducting inspections, requesting information and seeking voluntary compliance through the civil administrative process, and pursuing criminal and civil cases. In addition, the Department is continuing its efforts to clarify the scope of the statute and to educate the FARA bar and the public, including through the ongoing publication of advisory opinions and a proposed rulemaking on a broad range of issues.

The government speakers addressed the following topics, among others:

Year in review. The number of active FARA registrants is at its highest level since 2013, with 551 active registrants and 131 new registrants. The number of new registrants is the second highest since 2019, which CES Chief Bratt described as a “banner year.” Collectively, the 551 active registrants—and the 2,759 individual “short-form” registrants working for them—represent 863 foreign principals. The FARA Unit reviewed 6,402 documents, a new record for the past decade, and conducted 22 inspections, the highest number since 1985. Both CES Chief Bratt and Unit Chief Gellie noted that they expect an even higher number of inspections in the coming year. The Unit added another full-time analyst, and, in January, another attorney will join from elsewhere within NSD.

Open-source review. Officials confirmed that Unit analysts continue to review open-source information—including news reports, filings submitted under the Lobbying Disclosure Act, and the filings of FARA registrants—to identify unregistered agents. In addition, Unit Chief Gellie noted that the Unit looks into every referral it receives from members of the public.

Three strikes and you’re out. CES Chief Bratt explained that the Unit has more or less institutionalized a “three strikes” system: an initial notice to the potential registrant, a notice of deficiency, and, finally, a notice of non-compliance. Although the Unit typically secures compliance by Step 3 of this process, the next step is to institute legal proceedings.

Litigation. Although CES Chief Bratt characterized FARA enforcement efforts as still “nascent,” DOJ 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. In addition, the Department recently dusted off its civil enforcement tools, bringing its first affirmative civil injunctive lawsuit in about 30 years against casino magnate Steve Wynn. In remarks at the conference, Department officials addressed recent losses on both the civil and criminal fronts—including the October 2022 dismissal of the Wynn suit and the November 2022 acquittal of Thomas Barrack in a Section 951 case—dismissing predictions that these losses would make the Department more cautious and vowing that they would continue to “bring hard cases” and to “follow the facts and the law.” Just hours after the conference ended, DOJ appealed the Wynn decision.

Advisory opinions. The Unit continues to make an effort to include more detail in its publicly available advisory opinions. According to Unit Chief Gellie, Unit staff draft advisory opinions with the understanding that the audience is not limited to the requesting party and that published advisory opinions play an important role in educating the FARA bar and the public. The Unit balances this interest against the need to preserve confidentiality by redacting identifying details.

Advanced Notice of Proposed Rulemaking (ANPRM). Officials confirmed that DOJ received 28 unique submissions in response to its solicitation of comments in late 2021. According to Unit Chief Gellie, the Department is drafting proposed language and stakeholders will have another chance to weigh in with any tweaks they believe are needed to make FARA work in the real world.

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 2022 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.