DOJ’s Focus on Foreign Agents Has Hit a Snag

Earlier this year the Justice Department announced a renewed focus on the Foreign Agents Registration Act (“FARA”), which requires an “agent” who acts within the United States on behalf of a “foreign principal” to register and comply with various disclosure and recordkeeping requirements. However, this initiative may have hit a snag recently. In September, former Skadden partner Greg Craig was acquitted on FARA-related charges relating to work he did for the Ukraine government. Just a few weeks later, a judge in unrelated FARA case overturned jury verdicts against a business partner of Army General Michael Flynn over work done in Turkey.

My view, particularly in light of these setbacks, is that FARA is overly broad and needs to be seriously reconsidered on both a statutory and enforcement strategy basis. In the near absence of case law and only a few publicly available DOJ opinions, the boundaries of who and what FARA covers has been left almost entirely to the discretion of federal prosecutors. As with other regulatory regimes like the Foreign Corrupt Practices Act (“FCPA”), this leads to government overreach and a moving target for compliance professionals and in-house counsel to conform to.

For more on FARA’s history and future outlook please check out my recent Bloomberg publications:

• My Bloomberg Law op-ed from 9/25/2019 (INSIGHT: Craig Acquittal Shows Uncertain Future for Aggressive FARA Enforcement)
• My Bloomberg Law X.0 podcast from 10/30/2019 (ANALYSIS: Foreign Agents Registration Act in a New Era).

Happy November!

Please note that this article does not constitute legal advice and reflects only my personal views. For more information feel free to contact me directly or follow me on Twitter (@JosephMoreno).