Attorney Gen. of U.S. v. Wynn

636 F.Supp.3d 96

ATTORNEY GENERAL OF the UNITED STATES of America, Plaintiff, v. Stephen A. WYNN, Defendant.

Civil Action No. 22-1372 (JEB)

United States District Court, District of Columbia

Signed October 12, 2022

Emma Dinan Ellenrieder, U.S. Department of Justice, National Security Division, Washington, DC, Nathan Michael Swinton, Counterintelligence and Export Control Section, Washington, DC, for Plaintiff.

Reid Henry Weingarten, Brian Matthew Heberlig, Nicholas Paul Silverman, Steptoe & Johnson, LLP, Washington, DC, Robert David Luskin, Paul Hastings LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

While many people may know Defendant Stephen A. Wynn as a developer who turned up the wattage in Las Vegas with his high-end resorts and casinos, the Government here contends that he has moonlighted in another sphere as well: as an agent of the People's Republic of China. In this suit, the Attorney General seeks an injunction forcing him to register as such under the Foreign Agents Registration Act (FARA).

During five months in 2017, Wynn and the Government agree that he had numerous meetings and conversations with members of the Trump Administration regarding the PRC's interest in the return of an unnamed Chinese businessperson, who fled China in 2014 and sought political asylum in the United States. The Department of Justice, alleging that Wynn traded these lobbying efforts for favorable treatment of his casino business in Macau, repeatedly advised him over the course of four years that he was obligated to register as a foreign agent under FARA. Wynn, who contests this obligation and has refused to so register, now moves to dismiss this suit, arguing that the Government cannot compel him to register after his alleged agency relationship terminated. Because the Court agrees with him that binding Circuit precedent forecloses the Government's efforts here, it will grant the Motion.

I. Background

The Court begins with a brief overview of the purposes and structure of FARA and then turns to the factual and procedural history of the case.

A. Foreign Agents Registration Act

FARA is a disclosure statute. It requires any person engaging in certain political, financial, or public-relations activities on behalf of a foreign principal to register with the Attorney General and to make periodic public disclosures about her relationship with the foreign principal and the activities she undertakes in the United States on its behalf. See generally 22 U.S.C. §§ 611-12. The purpose of these disclosures is to "prevent covert influence over U.S. policy by foreign principals . . . [by] ensur[ing] that the public is informed of the true source or sponsor behind the information being disseminated for its consideration." United States v. Craig, 401 F. Supp. 3d 49, 54 (D.D.C. 2019); see also 22 U.S.C. § 611 Note on Policy and Purpose of Subchapter.

The scope of persons subject to FARA is broad. Section 611 of the Act defines an "agent of a foreign principal" to mean anyone "who directly or through any other person . . . engages within the United States in political activities for or in the interests of such foreign principal" or "represents the interests of such foreign principal before any agency or official of the Government of the United States." 22 U.S.C. § 611(c)(1). The Act then defines "political activities" to mean any activity that is intended to or could "influence any agency or official of the Government of the United States or any section of the public within the United States with reference to formulating, adopting, or changing the domestic or foreign policies of the United States or with reference to the political or public interests, policies, or relations of a government of a foreign country or a foreign political party." Id. § 611(o). FARA's definition of "foreign principal" is similarly broad, encompassing foreign governments, foreign political parties, and other combinations of foreign persons or groups doing business outside of the United States. Id. § 611(b). Under these definitions, nearly anyone who represents the political or public-relations interests of a foreign principal in the United States is covered under FARA.

When an agent of a foreign principal undertakes any of these covered activities, she becomes subject to the statute's reporting requirements. Id. § 612. Under the terms of § 612(a), an agent must submit a registration statement to the Attorney General within ten days of the start of the agency relationship. That statement must include certain required disclosures, including, inter alia, the "registrant's name and address(es)," the registrant's nationality, a "comprehensive statement of the nature of [the] registrant's business," and the details of any written or oral agreements between the registrant and her foreign principal. Id. § 612(a)(1)-(11). After initial filing, agents must then file supplements at six-month intervals. Id. § 612(b). Section 615 further requires that registered agents "keep and preserve while [they are] an agent of a foreign principal such books of account and other records" as the Attorney General's regulations specify.

As will become relevant later, violations of FARA may lead to both criminal and civil sanctions. Individuals who willfully violate the registration requirements or any other provision of FARA are subject to criminal prosecution, id. § 618(a), and § 618(e) specifically makes failure to file the required registration statements a continuing offense. The Attorney General may also bring a civil suit for appropriate injunctive relief, including seeking "an order requiring compliance with any appropriate provision" of FARA. Id. § 618(f).

B. Factual Background

Taking the facts alleged in the Complaint as true — as the Court must at this stage, see Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) — efforts to enlist Wynn as an agent of the Chinese government began with a May 2017 meeting that included an unusual cast of characters: a former RNC finance chair (Elliott Broidy), a businessperson (Nickie Lum Davis), and a member of the hit 1990s hip-hop group The Fugees (Prakazrel Michel). See ECF No. 3 (Compl.), ¶ 16. That meeting, coordinated by foreign national Low Take Jho, involved a request from Sun Lijun, the former Chinese Vice Minister for Public Security, for help lobbying then-President Trump and his Administration on behalf of the People's Republic of China. Id. Perhaps embracing The Fugees' famous line — "ready or not, here I come, you can't hide," The Fugees, Ready or Not, on The Score (Ruffhouse Records 1996) — the PRC sought to have the Trump Administration cancel the visa of and remove from the United States an unnamed Chinese businessperson whom the PRC had charged with corruption. The Chinese businessperson, perhaps understanding that "jail bars ain't golden gates," id., had fled China in 2014, seeking political asylum in the United States. See Compl., ¶ 16.

Defendant entered the picture in June 2017, following that initial meeting, when Broidy approached him on behalf of Sun to elicit his help in the PRC's lobbying effort. Id., ¶ 17. At that time, Wynn was acting as the latest RNC finance chair, and, according to the Complaint, Broidy "believed that [Wynn's] RNC experience, combined with [his] business dealings in the PRC and friendship with then-President Trump, would be helpful in getting access to Trump Administration officials." Id. Broidy explained to Defendant that the Chinese businessperson was a "criminal wanted by the PRC who was hiding in the United States, that the PRC wanted him arrested, and that his visa was due to expire soon." Id., ¶ 18. Specifically, the PRC wanted Wynn to lobby the Trump Administration to deny his upcoming visa-renewal application and to place him on the No Fly List. Id., ¶ 21. Broidy then provided Defendant with the Chinese businessperson's "passport photos, an Interpol red notice, and links to various news articles about [him]." Id., ¶ 19.

After Broidy softened the ground, Sun began communicating with Wynn directly, at which point Defendant "agreed to raise the matter with then-President Trump and Trump Administration officials." Id., ¶ 20. At a dinner on June 27, 2017, Wynn made good on that promise. There, Defendant "conveyed to then-President Trump the PRC's desire to have the PRC national removed from the United States and provided the PRC national's passport photos to then-President Trump's secretary." Id., ¶ 22. Over the rest of the summer, Wynn and Sun kept in touch by phone, with Sun reiterating the importance of the United States' not renewing the visa of the Chinese businessperson, id., ¶ 23, and Defendant organizing further meetings with White House and National Security Council officials, as well as with the then-President himself. Id., ¶ 25.

Around this same time, Defendant's casino business in Macau, a special administrative region of the PRC, also entered the conversation. Id., ¶ 23. According to the Complaint, Wynn's lobbying campaign — which was sandwiched between a 2016 decision by the Macau government to significantly limit the number of gaming tables at his casino and an upcoming license renegotiation for those same casinos in 2019, id., ¶ 29 — was motivated all along "by his desire to protect his business interests in the PRC." Id., ¶ 28. By October 2017, when it became evident that the PRC's lobbying campaign had failed to elicit the removal of the PRC national and that Wynn could do no more to help, he "gracefully" exited his role as agent, id., ¶ 27, admitting to Sun that he had "exhausted the advantages of [his] position," but that he was "of course . . . anxious to help" if an opportunity arose in the future, and that he "remain[ed] grateful for the privilege of being part of the Macau and PRC business community." Id., ¶ 28.

C. Procedural Background

Nearly a year after the PRC's lobbying campaign began, the ...