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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 non-traditional 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.
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By Harry Sandick and Sarah Hardtke
The guidance mirrors the recent, broader impulse among U.S. prosecutors and regulatory agencies to extend application of U.S. law to foreign persons and entities, even when those persons and entities have only threadbare connections to the U.S.
By Jonathan B. New, Patrick T. Campbell and Rachel H. Ofori
Because PR firms may be considered third parties for privilege purposes, it is crucial that communications between a company’s counsel and its PR firm are handled with care to avoid waiving the attorney-client privilege.
Navigating the SEC’s New Cybersecurity Disclosure Rules
By Olivia J. Greer, Catherine Kim and Jeeyoon Chung
With the first cybersecurity rule for public companies, and the landscape of ongoing scrutiny and enforcement, SEC registrants should not lose time in reviewing their cybersecurity postures and policies to ensure compliance and, even ahead of formal adoption of certain still-pending rules, align with best practices.
Understanding the Difference Between Advocacy and Obstruction When Facing Government Investigations
By Christopher D. Carusone
Corporate counsel must understand the difference between advocacy and obstruction when facing government investigations.