www.FARA.us

The Foreign Agents Registration Act (“FARA”) has been in place since 1938.  During its eight decades of existence, the statute has been administered and enforced by different governmental bodies under varying arrangements.  Below is a description of FARA’s administration and enforcement from a historical perspective.

Initial FARA Enforcement at the Department of State (1938-1942)

As originally enacted in 1938, FARA tasked the Secretary of State with managing the foreign agent registration program.[1]  At the time, Secretary of State Cordell Hull opposed this statutory delegation of authority to the State Department, suggesting that the law would be better administered by the Department of Justice in consultation with the State Department.[2]  In testimony before a House Judiciary subcommittee in 1941, Assistant Secretary of State Adolf A. Berle, Jr., who was tasked within the State Department with administering the Act, explained that the State Department was limited in its resources to proactively enforce the Act, both because most of its staff were located abroad and because it did not employ a sufficient number of investigatory or enforcement employees.[3]

Eleven criminal cases were pursued under FARA during the period in which the statute was administered and enforced by the State Department.[4]

Early FARA Enforcement after Transfer to Department of Justice (1942-1962)

FARA was significantly overhauled by the enactment of statutory amendments in 1941, which transferred authority over administration and enforcement of the law to the Department of Justice.[5]  The U.S. House Judiciary Committee explained that this change was made at the request of the Secretary of State, the Attorney General, and the Postmaster General.[6]  The transfer of authority was motivated by a desire to place responsibility for FARA with the same Justice Department unit (the Defense Unit) that was enforcing the Voorhis Act and because “it more appropriately fits in with the functions of [DOJ].”[7]

After receiving authority under the Act effective in 1942, the Attorney General promulgated regulations placing administration with a new “Foreign Agents Registration Section” within the War Division at DOJ.[8]  The War Division was wound down at the conclusion of World War II, and by 1955, FARA was being administered by the Internal Security Section of the DOJ Criminal Division.[9]

Following World War II, enforcement of FARA decreased significantly, with only two indictments brought between 1945 and 1955, and nine “failure to file” indictments brought between 1955 and 1962.[10]

FARA Enforcement During the Cold War (1963-1989)

In 1966, FARA was amended to account for the advent of global economy.  While FARA had previously targeted foreign propagandists, the aim of the reform was to focus the statute more intently on political activities and actions benefitting foreign governments and foreign political parties.  The updated version of FARA required any person engaged in "political activities” as an agent on behalf of a foreign principal, to register. This language was far narrower than the original act, which did not require that the activities be "for or on behalf of" the foreign principal.

A civil injunctive remedy was added through the 1966 amendments, as well as an advisory opinion mechanism, wherein DOJ was to provide statements of its enforcement intentions regarding proposed activities that may require registration under the Act.[11]  The 1966 amendments and other factors resulted in a drastic reduction of criminal prosecutions under FARA, with some increased civil and administrative resolutions.[12]

Problems with administering and enforcing the Act remained.  A 1980 Government Accountability Office (“GAO”) Report claimed that although there was an increase in civil actions to register additional agents, there were more active foreign agents than those officially registered due to improperly claimed exemptions, general unawareness of the Act’s requirements, and evasion of the Act.[13]  The Report suggested “(1) establishing standard disclosure criteria and enforcing compliance with the criteria, (2) revising the forms to request information that meets the criteria, (3) giving the agents specific guidance on the criteria and how information should be reported, (4) training the paralegals to review the statements, and (5) concentrating the review process on the lawyer-lobbyist group and other more important agents.”[14]

According to the GAO Report, while enforcement activities had increased since 1974, in 1980 there were only two civil actions, two grand jury actions, and four investigative matters in progress.  The Report called for more staffing of the FARA Unit to pursue a greater number of civil actions, citing the complexity of civil proceedings.[15]

The GAO Report also suggested improving enforcement of FARA by (1) providing the FARA Unit with administrative subpoena power for use in cases of suspected nonregistered agents, (2) permitting the Unit to assess administrative fines for minor violations, an enforcement tool stronger than letters and quicker than injunctive actions, and (3) increasing the existing fines to reflect changed economic conditions.[16]

FARA Enforcement During the Post-Cold War Era (1990s-Early 2000s)

In 1994, the Registration Unit was moved from DOJ’s Internal Security Section within the Criminal Division over to the newly created National Security Section as part of a division reorganization led by Attorney General Reno.[17]  FARA enforcement from the 1990s into the 2000s was limited, and focused primarily on ensuring registration and disclosure without penalty.[18]  The FARA Unit never pursued injunctive remedies for FARA violations between 1992 and 2016, and became reluctant to seek civil penalties after two failed attempts in the early 1990s.[19]   In 1993, the FARA Unit introduced filing fees for registrants, which may have precipitated a significant decrease in the number of registrations in subsequent years.[20]

Concerns over the administration of FARA persisted, as another GAO Report in 1990 found that DOJ had not implemented any of the recommendations made in the legislative agency’s 1980 report.[21]  The GAO found that many registered foreign agents were late filing disclosure reports or did not fully disclose their activities.[22]  GAO further recommended that the FARA Unit develop standard disclosure criteria for reporting under the Act, provide specific guidance to agency personnel on those criteria, enforce compliance with the stated criteria, and revise the supplemental statement reports to better reflect the requirements of the Act.[23]

The 1990 GAO Report also suggested Congress consider amending FARA to give the FARA Unit the authority to subpoena foreign agents to appear, testify, or produce records at administrative hearings and impose administrative fines for minor violations against those who, after being directly informed of their obligation to report, still failed to do so.[24]

In 1995, Congress passed the Lobbying Disclosure Act (“LDA”), which contained an amendment to FARA that exempted agents required to register under the LDA from the FARA registration requirements.  The exemption is not available for individuals representing a foreign government or political party and does not apply if a foreign government or political party is the “principal beneficiary” of the activities, regardless of whether a government or political party is the actual client.[25]  The LDA also replaced the term “political propaganda” in FARA with the term “informational materials,” eliminated certain requirements related to the distribution of those materials, clarified the meaning of the “legal representation” exemption, and adjusted the requirement for the Attorney General to report to Congress.[26]

The passage of the LDA exemption led to a steep decline in FARA registrations in the years that followed.[27]

FARA Enforcement Moves to the National Security Division (2006-2017)

In 2006, the FARA Unit was moved from the DOJ Criminal Division to the newly created National Security Division (“NSD”) and housed within that Division’s Counterintelligence and Export Control Section (“CES”).[28]  FARA still resides within this Division and Section.[29]  In order to pursue a FARA prosecution, the Unit must receive approval from both CES and NSD.[30]

A 2016 DOJ Inspector General report found a perception among agents and prosecutors that the National Security Division was reluctant to approve FARA charges, and that the Unit focused mostly on facilitating registration and disclosure over the previous two decades.[31] Concluding that DOJ lacked a “comprehensive FARA enforcement strategy,” the report made 14 recommendations, including making FARA advisory opinions publicly available as an informational resource.[32]  Noting that FARA registrations fell sharply after the passage of the LDA, the report also recommended determining whether a formal effort to seek legislative change on the LDA exemption was warranted.[33]

Current FARA Enforcement (2017-Present)

FARA gained prominence in the wake of reports of foreign interference in the 2016 general election and the subsequent investigation by special counsel Robert Mueller.  DOJ secured guilty pleas from Trump campaign aides Paul Manafort[34] and Richard Gates[35] for, among other charges, failing to register under FARA for their lobbying work on behalf of the Ukrainian government.[36]  In a related case, the law firm Skadden agreed to pay $4.6 million to settle DOJ’s investigation into its work advising Manafort’s client without disclosing its work under FARA.[37]  DOJ also won its first civil case enforcement since 1991 when a federal court ruled that a Florida broadcasting company broadcasting a Russian-owned radio channel was required to register under FARA.[38]

Amid such high-profile cases involving FARA, Congress has also expressed increase interest in improving enforcement of the law, introducing several bills aimed at making the law more effective. Many proposals have included measures repealing the LDA exemption, which would mean that entities lobbying for foreign corporations or nonprofits would have to register under FARA, with its stricter disclosure requirements, if the statute’s other exemptions are inapplicable.[39]

In March 2019, head of the National Security Division John Demers announced the appointment of Brandon Van Grack as head of the FARA Unit.  Demers described the appointment as signaling a shift “from treating FARA as an administrative obligation and regulatory obligation to one that is increasingly an enforcement priority.”[40]  Indeed, even before Van Grack’s appointment, DOJ had been building up the FARA Unit staff to ramp up enforcement of the Act.

FARA Unit Directors Identified in Public Records

• Adolf A. Berle, Jr., Assistant Secretary of State (1941)[41]
• Keith Kane, Special Assistant to the Attorney General, Defense Unit (1942)[42]
• William E. Foley, Chief, Foreign Agents Registration Section, Internal Security Division (1948-1954)[43]
• Nathan B. Lenvin, Chief, Registration Section, Internal Security Division (1955-1968)[44]
• James L. Weldon, Chief, Registration Section, Internal Security Division (1968-1971)[45]
• James C. Hise, Chief, Registration Section, Internal Security Division (1971)[46]
• Justin O’Shea, Chief, Foreign Agents’ Registration Section, Internal Security Division (1972-1973)[47]
• Joseph E. Clarkson, Chief, Registration Unit, Internal Security Division/National Security Section (1983-1994)[48]
• Marshall R. Williams, Chief, Registration Unit, Internal Security Section (1997-2000)[49]
• Heather Hunt, Chief, Registration Unit, Counterespionage Section/National Security Division (2003-2019)[50]
• Brandon Van Grack, Chief, FARA Registration Unit, National Security Division (2019-Present)[51]

[1] Pub. L. No. 75-583, 52 Stat. 631.

[2] Amending Act Requiring Registration of Foreign Agents: Hearings Before the Subcomm. No. 4 of the H. Comm. on the Judiciary, 77th Cong. 28 (1941) (statement of Hon. Adolf A. Berle, Jr., Assistant Sec’y of State) [hereinafter 1941 Hearings].

[3] Id.

[4] FARA.us, Criminal Enforcement Summaries, available at https://fara.us/criminal-enforcement-summaries/.

[5] Pub. L. No. 77-531, 56 Stat. 248.

[6] 1941 Hearings, supra note 2, at 10.

[7] Id. at 11.

[8] U.S. Dep’t of Justice, Report of the Attorney General to the Congress of the United States on the Administration of the Foreign Agents Registration Act of 1938, As Amended for the Period from June 28, 1942 to December 31, 1944, app. I-21 (1945), https://www.justice.gov/nsd-fara/page/file/991971/download.

[9] U.S. Dep’t of Justice, U.S. Attorneys’ Manual, Title I, p. 3 (1955). 

[10] Staff of S. Comm. on Foreign Relations, 87th Cong., Nondiplomatic Activities of Representatives of Foreign Governments 11 (Comm. Print 1962).

[11]U.S. Dep’t. of Justice, Criminal Resources Manual at 2062, available at https://www.justice.gov/archives/usam/criminal-resource-manual-2062-foreign-agents-registration-act-enforcement.

[12] U.S. Dep’t. of Justice, Criminal Resources Manual at 2062, available at https://www.justice.gov/archives/usam/criminal-resource-manual-2062-foreign-agents-registration-act-enforcement.

[13] U.S. Government Accountability Office, Improvements Needed in the Administration of Foreign Agent Registration at 1 (July 31, 1980), available at https://www.gao.gov/assets/140/130020.pdf [hereinafter 1980 GAO Report].

[14] 1980 GAO Report at 4.

[15] 1980 GAO Report at 7.

[16] 1980 GAO Report at 8.

[17] Letter from Assistant Attorney Gen. Jo Ann Harris to H. Judiciary Comm. Minority Counsel Thad Strom (Nov. 23, 1994).

[18] U.S. Dep’t of Justice Office of Inspector General, Audit of the National Security Division’s Enforcement and Administration of the Foreign Agents Registration Act 11-12, 20 (2016) [hereinafter 2016 IG Report].

[19] Id. at 12.

[20] Id. at 20.

[21] U.S. Government Accountability Office, Foreign Agent Registration: Justice Needs to Improve Program Administration at 1 (July 1990) available at https://www.gao.gov/assets/220/213011.pdf [hereinafter 1990 GAO Report].

[22] 1990 GAO Report at 1.

[23] 1990 GAO Report at 7.

[24] 1990 GAO Report at 7.

[25] 22 U.S.C. § 613(h).

[26] P.L 104-65, 109 Stat. 699, 700, 704 (1995).

[27] 2016 IG Report at 5.

[28] Id. at 3.

[29] Dep’t of Justice, Foreign Agents Registration Act, http://fara.gov (last visited Dec. 5, 2019).

[30] 2016 IG Report, supra note 11, at 4.

[31] Id. at 8, 11-12.

[32] 2016 IG Report at 5; 21.

[33] 2016 IG Report at 21.

[34] CNN, Paul Manafort pleads guilty and agrees to cooperate with Mueller investigation (Sept. 14, 2018) https://www.cnn.com/2018/09/14/politics/paul-manafort-guilty-plea/index.html.

[35] Newsweek, Former Trump Aide Pleads Guilty to Conspiracy Against the United States, Making False Statement (Feb. 23, 2018) https://www.newsweek.com/trump-aide-guilty-plea-conspiracy-813690

[36] Lawfare, Paul Manafort Guilty Plea Highlights Increased Enforcement of Foreign Agents Registration Act (Sept. 14, 2018)  https://www.lawfareblog.com/paul-manafort-guilty-plea-highlights-increased-enforcement-foreign-agents-registration-act

[37] N.Y. Times, Law Firm to Pay $4.6 Million in Case Tied to Manafort and Ukraine (Jan. 17, 2019).

[38] FARA.us, DOJ Wins First FARA Civil Enforcement Case Since 1991, https://fara.us/2019/05/doj-wins-first-fara-civil-enforcement-case-since-1991/

[39] FARA.us, Updates on Congressional Action on FARA Reform, https://fara.us/2019/02/updates-on-congressional-action-on-fara-reform/

[40] FARA.us, DOJ National Security Division Announces Significant Appointment and Shift on FARA Enforcement, https://fara.us/2019/03/foreign-agents-registration-act-2/

[41] 1941 Hearings, supra note 2, at 28.  The duration of Assistant Secretary Berle’s oversight over FARA is unclear.  Contemporary Official Register and State Department Register listings do not identify any foreign agent registration unit or identify the precise duties of Assistant Secretary Berle. See 1940 Register of the Department of State at 13.

[42] N.Y. Times, R. Keith Kane, 73, Lawyer, Is Dead (May 31, 1974) available at https://www.nytimes.com/1974/05/31/archives/r-keith-kane-73-lawyer-is-dead-exaide-to-attorney-general-held-many.html.

[43] Wash. Post, William Foley, Ex-Official At Justice, Dies (Aug. 12, 1990).

[44] Government Accountability Office, Effectiveness of the Foreign Agents Registration Act of 1938, As Amended, And Its Administration By The Department Of Justice at 33 (Mar. 13, 1974), available at http://archive.gao.gov/f0302/095964.pdf  [hereinafter 1974 GAO Report].

[45] 1974 GAO Report  at 33.

[46] 1974 GAO Report at 33.

[47] 1974 GAO Report at 33.

[48] Hearing Transcript of the House Subcommittee on Civil and Constitutional Rights at 2 (Mar. 18, 1983), available at https://babel.hathitrust.org/cgi/pt?id=pur1.32754078045840&view=1up&seq=5.

[49] 62 Fed. Reg. 49703; 64 Fed. Reg. 74067.

[50] DOJ Adv. Op. Aug. 27, 2003, available at https://www.justice.gov/nsd-fara/page/file/1046166/download; FARA.us, DOJ National Security Division Announces Significant Appointment and Shift on FARA Enforcement, https://fara.us/2019/03/foreign-agents-registration-act-2/.

[51] FARA.us, DOJ National Security Division Announces Significant Appointment and Shift on FARA Enforcement, https://fara.us/2019/03/foreign-agents-registration-act-2/.