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Repairing the Foreign Agents Registration Act
Until recently, the Foreign Agents Registration Act (FARA or the Act) was a curious historical and legal artifact with little contemporary relevance. Passed in 1938 in order to prevent a "fifth column" of Nazi supporters from secretly advocating on behalf of Hitler's Germany, Congress enacted FARA in order to require "agents of foreign principals who might engage in subversive acts or spreading foreign propaganda" to register with the Department of Justice. Viereck v. United States, 318 U.S. 236, 241 (1943). For decades, the statute laid dormant, with only seven criminal FARA cases initiated between 1966 and 2015. See, Office of the Inspector General, Department of Justice, Audit Division 16-24, Audit of the National Security Division's enforcement and Administration of the Foreign Agents Registration Act, at 8 (September 2016). In recent years, however, mostly due to the well-publicized prosecution of Trump campaign manager Paul Manafort, FARA has become more of a focus for federal prosecutors. As a result, white-collar attorneys have been consulted more often about whether particular conduct requires registration under the Act.
Lawyers and clients alike have been surprised by FARA's breadth and reach, apparently requiring registration in a host of contexts in which there is no real "agency" relationship between the registrant and the so-called "foreign principal." Given the stigma sometimes associated with registration as an agent of a foreign principal and the logistical burden of registering, many clients would prefer to avoid engaging in certain conduct if that conduct would require FARA registration.
FARA and its implementing regulations are broadly written, with vague and undefined terms complicating the analysis of whether registration is required. With limited FARA litigation, there are very few judicial decisions that clarify the distinction between conduct that requires registration and conduct that is outside the Act's reach. The Department of Justice, however, offers some useful guidance. First, DOJ publishes FARA FAQs on its website. Second, DOJ will respond to written requests for advice about whether registration is required in a given case, and, from time to time, it will publish its responses as advisory opinions on its website in redacted form, organized by particular subject area (such as FARA's various exemptions). While these advisory opinions are useful, they contain little factual detail and sometimes seem to offer inconsistent advice based on similar factual narratives.
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