Indictment Monday and some thoughts on FARA

With the indictments coming down against Paul Manafort and his partner, Rick Gates, I turned on CNN just in time to see Mr. Manafort’s attorney, Kevin Downing, stating that few people have been prosecuted by the Department of Justice for failing to file under the Foreign Agents Registration Act (FARA).

Let’s put aside for a moment that failing to file under FARA is just one of the charges that Mr. Manafort is facing and that he registered under the law retroactively as a lobbyist for the pro-Russia Ukrainian government that was ousted by its people for corruption.

Instead, I want to spend a moment talking about FARA as an important lobbying disclosure tool, helping us understand who is influencing the American political system on behalf of foreign governments, including those whose interests might conflict with those of American democracy (cough, dicatorships, cough).

What is FARA?

The act was passed by Congress during the rise of the Nazis in Germany to fight Nazi propaganda in the United States. The idea was to give Congress information on who was paying the people lobbying them on behalf of a foreign interest.

As a result, if you are being paid to represent a foreign government, you must file paperwork disclosing that to the Department of Justice for whom and what issues you are advocating. You’re also required to report the phone calls and emails you make to members of Congress and the press, as well as turn over copies of any media material (advertisements) distributed to the American public. Reports go out to Congress so that members of Congress know the intentions behind those contacting them and asking for meetings.

Last year, as the news about Manafort was breaking, I wrote a piece for the Sunlight Foundation about what FARA is and its weaknesses, as well as what Congress could do to strengthen it. I spent a long time talking to people in the FARA office about some of the obstacles they have in performing their job.

Enforcement of FARA

I want to look at Mr. Downing’s quote from yesterday about the charges facing Mr. Manafort. Specifically, Downing stated:

Today you see an indictment brought by the Office of Special Counsel that is using a very novel theory to prosecute Mr. Manafort regarding a FARA filing. The United States government has only used that offense six times since 1966 and only resulted in one conviction.

He’s right. There have been very few convictions under FARA. However, that’s because of all of the issues I point out in the Sunlight piece. Most of the enforcement that the Department of Justice does in this area is simply letting people know they are required to file. A lot of people don’t realize this is a law—so the DOJ simply sends them a letter letting them know and the individual files.

However, this is about the extent of what the DOJ can do if they suspect someone hasn’t registered. The Department of Justice can only ask to review the individual’s records IF the individual has registered under FARA. (I’m fairly certain this is why the DOJ had to get a search warrant for Manafort’s home where they found the Ukraine documents.) Professional lobbyists know this is the case… so they have no incentive to register proactively. Many of them wait to see how much they can get away with before getting that letter from the DOJ asking them to file. Then, they file retroactively with basically no consequence.

There are those who will say that people avoid filing because they don’t want the “foreign agent” label. And sure, I’ve seen press reports saying “this person has registered as a foreign agent” and making it sound like the activity is shady even though the person may be advocating for the government on issues like tourism.

Interestingly, the DOJ finds most of the people who didn’t file through reporting from the press. Yet, the filings are not available in machine readable format and supplemental material can only be inspected in person at the DOJ in Washington.

So long story short—the fact that we got to the point where there is an indictment by a grand jury is a big freaking deal. It’s also a big deal that Tony Podesta, from one of the largest foreign lobbying firms and brother of Hillary Clinton campaign manager John Podesta, stepped down yesterday as well. I’d like to hope that yesterday’s activity by the Special Counsel is sending a message for those lobbying on behalf of foreign governments that they need to report that activity—because the Special Counsel’s office intends to prosecute.

Yet, I’m not optimistic that a FARA charge alone is enough because the DOJ has to prove “willful violation of the law.” That’s very difficult and why I think you see Mueller’s office listing that charge with several others.

Congress could propose legislation that would strengthen the DOJ’s ability to require those lobbying on behalf of foreign governments to disclose their activity. I really hope people start pressing members of Congress about this or that some lawmaker decides to take the initiative and propose legislation to fix the loopholes in the current system.

By the way—a great “food for thought” piece—my former colleague and now Splinter political writer, Libby Watson, muses over yesterday’s developments with What if ‘Lobbyist for a Foreign Dictator’ wasn’t a job it was OK to have?

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