A Primer on the Foreign Agents Registration Act—and Related Laws Trump Officials May Have Broken

About a week ago, I wrote a pair of posts about the increasing insinuation in various camps that, if in fact the Trump campaign colluded with the Russian government to influence the outcome of the 2016 election, then those responsible might be guilty of treason. As I suggested then, I think that argument is patently without merit, if for no other reason than the absence of any proper “hostilities” between the United States and Russia. (I also think it’s more than a little dangerous to bandy about a term like treason, and have former Governor Mike Huckabee to thank for proving my point.)

That doesn’t mean, of course, that there’s no specter of criminal liability arising out of the growing stream of information about troubling contacts and connections between senior Trump campaign (and government) officials and foreign entities. Indeed, there are a number of different provisions of federal law that could have been violated by such collusion–still more if any of the communications involved individuals sharing any classified information. Thus, I thought it would be helpful to put together a post on the relevant prohibitions on contacts with foreign governments, businesses, and individuals–both with an eye toward the Russia investigation specifically, but also as a more general primer on how federal law tries to police such fraught relationships. 

Perhaps the most important statute here is a largely obscure 1938 law, the Foreign Agents Registration Act (FARA), which has already come up in the context of former National Security Advisor Michael Flynn (who belatedly registered under the statute after it was discovered that his lobbying firm received $530,000 for work on behalf of a Dutch company with ties to the Turkish government); and former Campaign Manager Paul Manafort, who is alleged to have received far more money from Oleg Deripaska (a Russian billionaire with close ties to Vladimir Putin) to promote various Russian interests. Whatever ultimately comes out about these cases (or others), it seems like we’re going to be hearing a lot more about FARA in the coming weeks and months. So before turning to other statutes, let’s start with some background on FARA.

I.  What is FARA, and Why Was It Enacted?

FARA is something of an unusual statute. Codified today at 22 U.S.C. §§ 611-621, it was enacted in 1938 in the run-up to World War II in response to concerns raised by a special congressional committee over the large number of Nazi and Communist propagandists active in the United States at the time. As the DOJ Inspector General recently noted, “A significant finding of the committee’s study was that the Nazi German government had established an extensive underground propaganda apparatus using American firms and citizens.” Per the Justice Department’s thorough and helpful “FARA FAQ,” we are told that “[t]he purpose of FARA is to insure that the U.S. Government and the people of the United States are informed of the source of information (propaganda) and the identity of persons attempting to influence U.S. public opinion, policy, and laws.” Such information, in turn, allows the public to “appraise [those individuals] and the purposes for which they act,” in the words of a 1966 House of Representatives report.

Most importantly, as these quotes suggest, FARA is a procedural statute, not a substantive one. As explained in more detail below, it does not prohibit particular activities in the abstract; it merely requires that those engaged in such activities on behalf of foreign interests identify themselves (and disclose their interests) to the U.S. government.

II.  What, Exactly, Does FARA Require / Prohibit?

It’s complicated. But in a nutshell, FARA requires individuals acting within the United States as agents of “foreign principals” to, in plain English, “register with the Department of Justice and file forms outlining its agreements with, income from, and expenditures on behalf of the foreign principal. These forms are public records and must be supplemented every six months.” An “agent of a foreign principal,” in turn, is defined as

Moreover, the statute defines “foreign principal” not just to include a foreign government itself, but also foreign political parties, a person or organization outside the United States (except U.S. citizens), and any entity organized under the laws of a foreign country or having its principal place of business in a foreign country. So, in a world in which individuals were receiving financial or other enticements from Russian corporations, oligarchs, or the Russian government itself, in order to “engage[] within the United States in political activities for or in the interests of such foreign principal,” that seems to fall within the heartland of what FARA covers.

FARA includes some important exemptions, such as for those engaging only “(1) in private and nonpolitical activities in furtherance of the bona fide trade or commerce of such foreign principal; or (2) in other activities not serving predominantly a foreign interest; or (3) in the soliciting or collecting of funds and contributions within the United States to be used only for [certain humanitarian purposes.” It also exempts, for obvious reasons, diplomatic officers and other officials of foreign governments, and those engaging in “activities in furtherance of bona fide religious, scholastic, academic, or scientific pursuits or of the fine arts.” (And individuals can avoid FARA if they’re allowed to register under other lobbying statutes, including the 1995 Lobbying Disclosure Act, which has, at least in some respects, fewer / easier-to-satisfy requirements for those working only on behalf of foreign commercial, rather than foreign political, interests.)

Critically, as noted above, FARA itself does not prohibit any conduct. It just requires registration, and creates both civil and criminal penalties for an individual’s willful (1) failure to register; or (2) making of a false statement or omission of a material fact in connection with their registration. Proving willfulness is often a high bar, since FARA’s complexity and exemptions may facilitate claims that the failure to register was simply negligent. One wonders, though, whether it would be easier to demonstrate willfulness by senior campaign officials, especially those who are the subject of detailed media speculation about their connections to foreign entities.

Indeed, a separate statute, 18 U.S.C. § 219, goes one important step further, making it a crime for any individual who is an “officer or employee or person acting for or on behalf of the United States, or any department, agency, or branch of Government thereof, including the District of Columbia, in any official function,” to be or to act as an agent of a foreign principal under FARA.

In other words, for a private citizen, FARA’s entire impact is in requiring disclosure. But for public officials, § 219 actually prohibits such individuals from acting as foreign agents. Thus, whereas a private citizen need only apprise the Justice Department if they are receiving funds from foreign principals to influence U.S. policy, public officials may not receive such funds, period–and face felony charges if they do. (N.B.: There’s an interesting question about whether transition officials might qualify as “public officials” for purposes of § 219. I’m skeptical, but at least in Flynn’s case, there’s still the issue of whether he was continuing to serve as an agent of a foreign power on and after January 20, when he became the National Security Advisor.)

III.  How is FARA Enforced?

FARA is overseen by the FARA Registration Unit of the Counterintelligence and Export Control Section (CES) in the Justice Department’s National Security Division. As the Justice Department’s U.S. Attorneys’ Manual suggests, its preference is to enforce FARA through administrative and/or civil remedies, with criminal punishment as more of a fall-back option. Thus, the Department provides a procedure (the “Rule 2 procedure“) through which individuals with questions about how FARA may apply to them can request from the National Security Division:

a statement of the present enforcement intentions of the Department of Justice under the Act with respect to any presently contemplated activity, course of conduct, expenditure, receipt of money or thing of value, or transaction, and specifically with respect to whether the same requires registration and disclosure pursuant to the Act, or is excluded from coverage or exempted from registration and disclosure under any provision of the Act.

In other words, the Rule 2 procedure is a means to effectively obtain advisory opinions from the Justice Department about how FARA applies to current or contemplated conduct. And even when the government itself uncovers a potential violation of FARA, its practice is often to notify individuals of apparent FARA violations and give them a period within which to rectify the failure to register–at least in cases in which the failure to register appears to be accidental. (And at that point, a continuing failure to register, or a false statement or omission of a material fact, becomes pretty solid evidence of the agent’s willfulness.) As the U.S. Attorneys’ Manual makes clear in its discussion of FARA, “The cornerstone of the Registration Unit’s enforcement efforts is encouraging voluntary compliance.” After that, the statute expressly authorizes both civil and criminal penalties. Thus, one important question is what kinds of communications the Justice Department has already had with senior Trump campaign and administration officials about FARA…

To be sure, the government has been faulted for not enforcing FARA aggressively enough, especially in a September 2016 report by the Justice Department’s Inspector General. But for present purposes, the key point is that FARA is still a pretty big deal–and far more significant to contemporary discussions than treason, the Logan Act, or a host of other more widely discussed criminal prohibitions.

IV.  Why is FARA a Potentially Serious Problem for Senior Trump Officials?

There are two major reasons why FARA is such a potential stumbling block for the Trump administration. The first was already noted above: Under 18 U.S.C. § 219, anyone who is continuing to act “as an agent, representative, employee, or servant, or any person who acts in any other capacity at the order, request, or under the direction or control, of a foreign principal,” cannot hold any office within the U.S. government.

But even for everyone else, the key is FARA’s disclosure rules. After all, as the government notes, “The news media are the greatest users of the information filed under the Act, and give it further publicity, usually without attribution. Other agents, commercial firms, students and academics, in that order, are also major visitors to the Department’s public office.”

In other words, failures to register on the part of individuals like Flynn, Manafort, and so on are potentially actionable in their own right, but also can only be ameliorated by the provision of public information that should, in turn, shed a lot more light into the financial dealings that senior members of the Trump campaign and administration have had, and continue to have, with foreign governments, foreign corporations, and other foreign individuals. The Flynn/Turkey story is just the most obvious example to date, but the (apparently ongoing) investigation of Manafort will likely prove to be a treasure trove on this score before it’s over.

V.  What Other Statutes May Be Implicated by the Russia Investigation?

FARA is by no means the only statute at issue when it comes to the interactions between senior U.S. campaign and executive branch officials and foreign powers. Separate from the general criminal prohibitions on making false statements to federal investigators, obstruction of justice, and so on, there are a panoply of other statutes dealing more specifically with disclosures of financial (and other) relationships with foreign interests, although none with the breadth and depth of FARA.

And, just because it’s worth saying, there’s also the emoluments problem–not just in the sense of the Trump businesses and the Constitution’s (Foreign) Emoluments Clause, but also the fact that all officers of the United States are bound by that provision, and by the statute implementing it–the Foreign Gifts and Decorations Act, which separately proscribes the receipt “not only [of] gifts of travel and food, but also [of] payments such as proportionate profit-sharing” or other remuneration. Although that statute only usually applies to individuals while employed by the federal government, it also extends to retired military officers (like General Flynn), because they are subject to being recalled to active duty under the Uniform Code of Military Justice (UCMJ). (The ranking Democrats on the six House committees with relevant oversight responsibility sent Secretary Mattis a letter on February 1 requesting more information about Flynn’s potential violations; I’m unaware of what response, if any, DoD has provided.)

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To be clear, this post has not endeavored to be comprehensive. Even with regard to FARA, there’s far (sorry–I couldn’t help it) more to say. But for folks who are genuinely interested in the legal ramifications here, and not just the political ones, it’s time to stop talking about treason, the Logan Act, and other more sensational charges, and start talking about FARA–and who else hasn’t been satisfying its registration and reporting requirements…

Image: Getty / Drew Angerer