The recent acquittal in the Eastern District of New York of Thomas Barrack, a longtime friend and ally of former President Donald Trump, who was accused of acting as an unlawful agent of the UAE to influence Trump's decision-making, is only the latest example of the DOJ's difficulties successfully prosecuting cases of nontraditional foreign influence in U.S. affairs. DOJ has also faced repeated setbacks in its prosecution in the Eastern District of Virginia of Bijan Rafiekian, former business partner of Trump's National Security Advisor Michael Flynn, accused of acting as an illegal agent of the Turkish government in an effort to obtain the extradition of a Turkish dissident. Both Barrack and Rafiekian were charged under '951 of the U.S. Criminal Code, which has roots in the Espionage Act of 1917, and broadly prohibits agents of foreign governments from acting in the United States without first notifying the Attorney General. Despite the statute's broad language, the DOJ has faced significant hurdles in pursuing '951 prosecutions outside the traditional espionage context, and particularly where the alleged foreign agent's activity involves ostensibly legitimate international business dealings.
Revelations of broad-ranging Russian efforts to influence the 2016 presidential election, which resulted in criminal charges against multiple Russian intelligence officers brought by special counsel Robert Mueller, focused attention on criminal laws designed to prohibit the activities of foreign agents in the United States. DOJ officials initially touted one such law, the Foreign Agents Registration Act (FARA), 22 U.S.C. '611 et seq., which makes it illegal to act as an agent of a foreign principal by engaging in political activities in the United States without prior registration. DOJ used FARA to prosecute former Trump campaign chair Paul Manafort and Trump fundraiser Elliott Broidy, and in its unsuccessful prosecution of former Obama White House Counsel Gregory Craig for his alleged lobbying efforts on behalf of Ukraine stemming from his private practice legal work. Recent prosecutions, however, have relied on '951. These troubled cases raise caution flags for future DOJ criminal prosecutions of non-traditional foreign influence cases.
Section 951
Section 951 criminalizes "act[] [ing] in the United States as agent of a foreign government without prior notification to the Attorney General." 18 U.S.C. '951(a). Section 951 encompasses any activity by an "agent of a foreign government," which is defined as "an individual who agrees to operate within the United States subject to the direction or control of a foreign government or official." The statute excludes from its reach diplomatic officers and publicly acknowledged officials, and, significantly, also has an exception for any "person engaged in a legal commercial transaction." Id. '951(d)(1)-(4). A "legal commercial transaction" is defined as "any exchange, transfer, purchase or...
