Increased FARA Enforcement Is Here to Stay - A Debrief on ACI's Second National Forum on FARA

Increased Foreign Agents Registration Act (FARA) enforcement is here to stay. That is the consensus view of senior Department of Justice (DOJ) officials responsible for the statute’s administration and enforcement who appeared at the American Conference Institute’s (ACI) Second National Forum on FARA (the Forum), held virtually on 4 December 2020.

This alert summarizes the salient developments in FARA law and policy that DOJ officials and FARA practitioners discussed at the Forum, including:

• New DOJ guidance on the statute’s legal representation exemption;
• The scope of the LoLobbying Disclosure Act (LDA)xemption;
• Increased focus on nonprofits and U.S.-based subsidiaries of foreign media companies; and
• Potential developments under the incoming administration.

FARA has sprung to prominence in recent years, with high-profile enforcement actions—some more successful than others—partially explaining the increased focus.¹ DOJ’s emphasis on FARA enforcement is reflected in the recent, dramatic surge in new registrants and foreign principals under the statute—twice as many in 2019 compared to 2016 and nearly double the number of short-form registrants.

During the Forum’s keynote address, National Security Division (NSD) Deputy Assistant Attorney General (DAAG) Adam Hickey put this trend into context. Two data points drove DOJ’s renewed focus on FARA, according to DAAG Hickey: (1) a mandate by the U.S. House of Representatives Committee on Appropriations that DOJ’s Office of the Inspector General (OIG) audit FARA enforcement, and (2) DOJ’s investigations into foreign interference in the 2016 presidential election. Prompted by these developments, DOJ OIG responded with extensive recommendations in September 2016² and NSD created the FARA Registration Unit in 2019, installing former Mueller prosecutor Brandon Van Grack as its first chief.

In Chief Van Grack’s nearly two years on the job, there has been no shortage of activity. New areas of FARA enforcement have gained prominence. U.S.-based subsidiaries of foreign media companies have either been persuaded or compelled to register under the statute.³ Requests for voluntary disclosures, notices of deficiency, and inspections have risen. The pace of guidance out of the FARA Unit has also increased significantly during Chief Van Grack’s tenure. In the last 16 months, the FARA Unit released nearly 20 new advisory opinions (AO) and new guidance regarding the scope of agency under the statute,⁴ among other topics. The FARA Unit’s focus, Chief Van Grack told the Forum, is on promoting compliance with the statute, rather than enforcement.

Recent developments regarding the statute’s legal representation exemption were featured prominently during the Forum. Under limited circumstances, FARA provides an exemption for lawyers who provide legal representation of foreign principals in the course of judicial or administrative proceedings.⁵ On 3 December 2020, the FARA Unit issued new FAQ guidance regarding the exemption’s reach:

• The legal exemption is triggered once a person, qualified to practice law, engages or agrees to engage in the legal representation of a disclosed foreign principal before any court or agency of the Government of the United States…. The scope of the exemption, once triggered, may include an attorney’s activities outside those proceedings so long as those activities do not go beyond the bounds of normal legal representation of a client within the scope of that matter.⁶

The last sentence of the new guidance, emphasized above, appears to be DOJ’s attempt to provide clarity to practitioners who have asked whether activities ancillary to the legal representation of one’s client—e.g., holding a press conference to announce the initiation of a legal action—qualify under the legal representation exemption.

On this point, DAAG Hickey explained how certain activities outside the...