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Last week, the Department of Justice’s FARA Unit released 15 new Advisory Opinions.  Here are our main takeaways from the new Advisory Opinions:

• Interactions with state-level government officials might not be subject to FARA. For the first time, the Department raised the prospect (2-23-2024) that contacts with state-level officials might not trigger FARA registration.  The Department told a U.S law firm it would not engage in “political activities” or other registrable conduct if it communicated with state-level officials on a foreign client’s behalf because “the term ‘Government of the United States’ refers to the federal government and does not include state governments.”  The Department found in previously released Opinions (3-26-2019, 5-19-2023) that contacts with non-federal officials would qualify as “political activities,” so it is uncertain whether this latest Opinion represents a new interpretation.

• FARA registration can sometimes be triggered, even in the absence of receiving funds from a foreign source. In a reminder that FARA registration can potentially be triggered without a prospective “agent” receiving funds from a foreign interest, the Department told a U.S. limited liability company (3-25-2024) that it was required to register after it mobilized U.S. volunteers in coordination with a foreign government and a foreign political party “on activities that directly advance those foreign principals’ interests.”  And in one of the more questionable Advisory Opinions issued in the recent past, the Department told a U.S. nonprofit (12-21-2023) “whose core mission is to address atrocity crimes, including genocide, war crimes, and crimes against humanity” to register for presenting evidence of war crimes “relate[d] to the pillage of grain” to U.S. officials after it had presented similar information to a foreign government’s officials, even though the nonprofit directed the U.S. government presentation itself and received no money from any foreign government.  The Department seemed to focus in both Opinions on close, repeated coordination with foreign governments to determine “agent” status in the absence of receiving foreign funds.     

• DOJ is attempting to further define when investment activities by foreign pension managers are registrable. In the past, the Department has repeatedly grappled with whether those working for state-led commercial entities (3-20-2019, 9-18-2019, need to register under FARA.  The Department tackled this question yet again with this latest batch of Advisory Opinions when it examined whether a U.S. firm working for a U.S. joint venture of a foreign public pension fund (9-14-2023) was eligible for the Lobbying Disclosure Act exemption.  The Department reasoned, in this instance, that the exemption was available despite the indirect benefit to a foreign pension fund because the U.S. firm’s lobbying work was “primarily intended” to advance the U.S. joint venture’s commercial business interests and because the foreign pension fund’s investment in the U.S. joint venture was “one of many diverse investments made on behalf of [foreign country’s] public sector investment funds.”  

• DOJ redactions can make some Advisory Opinions almost useless. The Department regularly redacts identifying information from published Advisory Opinions, but in at least two recently issued Opinion (11-22-2023, 3-25-2024), the redactions are so extensive as to make the Opinions nearly unreadable.

• Advisory Opinion requests should include all potentially applicable registration exemptions. The Department addresses only the issues that are before it, so an Advisory Opinion requestor must remember to ask whether all potentially available exemptions apply.  A U.S. individual working on a foreign individual’s behalf (3-21-2024) could have been exempt under several registration exemptions, but apparently did not assert that any exemptions applied in their request.  And a U.S. public affairs firm working for a foreign religious organization (2-29-2024) unwisely chose to place all its “eggs in one basket” when it argued only for the application of the religious pursuits exemption at 22 U.S.C. § 613(e), rather than appealing to multiple other exemptions as well.

Please note that you can find summaries and links for all publicly issued FARA Unit Advisory Opinions on the FARA.us Advisory Opinion Index.

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