FARA, the Foreign Agent Registration Act, had been a largely dormant federal statute until it found new life with Justice Department Special Counsel Robert S. Mueller III’s investigation into matters related to President Donald J. Trump’s election. Consequently, FARA, a federal criminal statute rarely employed before 2018, has been spotlighted in the news. Less widely reported is the Justice Department’s other FARA enforcement efforts targeting those in the entertainment, legal, educational, public relations, and other entities advocating for an array of policy changes. In response to the September 2016 Inspector General report the rarity of prosecutions, FARA enforcement efforts are growing in scope and frequency using the broad scope of the law to ensure future Congressional funding and staffing. Those involved in political advocacy, public relations, and soliciting donations to political action committees (PACs) never concerned about FARA are receiving target letters, requests for information, Grand Jury subpoenas, and search warrants.
Three federal statutes provide criminal penalties for acting on behalf of a foreign government without notifying the U.S. Government. The Justice Department’s Counter Espionage and Export Control Section, called “CES,” works with experienced national security prosecutors to enforce these statutes. Historically, CES sent letters requesting information from targets and asking the targets to register to educate the public about FARA pitfalls. Starting in 2018, federal prosecutors starting using those letters to circumvent the Fourth Amendment and “request” information to determine if registration is required. Those unfamiliar with the perils of dealing with federal prosecutors can usher their clients into felony convictions and forfeiture of assets.
FARA broadly defines “foreign principals,” “foreign agent,” and events that trigger registration requirements. Unlike other federal criminal law, FARA has no de minimis requirement. The Justice Department’s reports to Congress indicate that it intends to narrowly construe the exceptions to FARA while expanding the activity it views within FARA’s scope. To inch the law toward its FARA interpretation, the Justice Department has issued letter requests for information or Grand Jury subpoenas to obtain evidence that provides a prosecution roadmap. Obtaining evidence voluntarily from targets allows the government to proceed to prosecution without worrying about revealing sensitive methods and techniques it may have otherwise employed to obtain the same evidence. In other words, the government got it from you in response to some process and you cannot complain about it after you provided it.
It is essential to have lawyers who understand the Constitutional and practical implication of providing information in response to a Grand Jury subpoena or a letter request for information. This ensures you do not walk your client into a felony conviction. It is imperative to retain counsel experienced in national security and criminal investigations to navigate these perils. The United States Supreme Court noted the 5th Amendment Right to Remain Silent protects both the guilty and innocent. If you believe you are under federal investigation, or if you are an attorney with a client under federal investigation, call us immediately at (407) 901-5852.
