You wouldn’t know if from watching the news recently, but it’s not a crime to be an agent of a foreign government in America. Even a government with a spotty human rights record. Or even Russia.
Make no mistake: if you hold a security clearance, acting as a foreign agent would… complicate… your periodic reinvestigation. But I can’t say enough that it’s not a crime to be an agent of a foreign government. The crime, as those paying close attention to current events will understand, is in not registering with the Justice Department.
Former Trump campaign chairman Paul Manafort is currently on trial in the federal courthouse in Alexandria, Va. for failure to register as a foreign agent, money laundering, and tax evasion. His case represents a rare prosecution for failure to comply with the Foreign Agent Registration Act. Because according to the Department of Justice, between 1966 and 2015, the Justice Department pursued prosecutions in just seven FARA cases.
Mueller cracks the whip
But special prosecutor Robert Mueller is the new sheriff in town. Wednesday morning, news broke that in looking into Russian interference in the 2016 presidential election, he was referring several cases of noncompliance to the U.S. attorney for the southern district of New York for possible prosecution. Proving that shilling for foreign governments is a bipartisan affair, among those supposedly referred were Tony Podesta, the quintessential high-powered Washington lobbyist and brother to Hillary Clinton’s presidential campaign chairman John Podesta, Greg Craig, who served as White House counsel under President Barack Obama, and Vin Weber, a former Republican congressman from Minnesota who is a lobbyist at Mercury Public Affairs.
All three worked with Manafort on behalf of then-Ukranian President Viktor Yanukovych through a non-profit called the European Center for a Modern Ukraine. They were led to believe the organization was not funded by the Ukrainian government, and registered under the Lobbying Disclosure Act instead of FARA. They are certainly not alone, which makes their referral for possible prosecution all that much more curious.
In 2016, the Justice Department’s Inspector General audited the National Security Division’s “enforcement and administration” of FARA. The report notes that FARA registration is only required when representing the interests of a foreign government or political party before the U.S. government. Any other work for commercial or academic organizations triggers lobbying registration only.
Congress first passed FARA in 1938, when concern over foreign propaganda from both the communist Soviet Union and Nazi Germany was high. In 1966, it expanded the law’s scope to “protecting the integrity of the government’s decision-making process and to the identity of the sources of political propaganda.”
The fact that the government has only prosecuted only seven people since 1966 is due to the fact that while the FBI and various U.S. attorney offices wanted to pursue criminal charges, the lawyers in the National Security Division who are responsible for the law’s enforcement believe “the focus of the FARA Registration Unit’s enforcement efforts is encouraging voluntary compliance, rather than pursuing criminal or civil charges.”
This is why, after Mueller charged Manafort last year, Podesta, Craig, and Weber all retroactively filed FARA paperwork. While the government has not filed charges against any of the three, the fact that the cases were even referred is highly unusual. There normally has to be some sort of flagrant violation to trigger prosecution. The IG’s report cited the fact that between 2005 and 2015, the FARA unit sent “approximately 130 letters of inquiry” to individuals it thought had an obligation to register. “Thirty-eight of the recipients were found to have an obligation to register under FARA, and subsequently did so.” None were prosecuted.
Foreign governments have every right to represent their interests in front of the U.S. government. Diplomatic personnel are skilled in negotiation, but for the times when they need specialized skills, or advice on the right person to talk to, they hire experts like Tony Podesta and Vin Weber. Disclosing that activity so the public can know who is paying whom to do what is a perfectly reasonable requirement. But prosecution for a failure to disclose these relationships needs to rise to the level of “willful.” Prosecutors need to be sure a person intentionally and deliberately evaded complying with the law, not simply that the person thought or even received guidance that said otherwise.
That distinction is perhaps why despite the revelation that Mueller’s team referred Podesta, Weber, and Craig months ago, there have been no charges. Mueller’s referrals, combined with the leak to the press months later, ought to serve as a signal that new rigor may come to FARA enforcement.
Perhaps the government does need to change the way it enforces this law. But these revelations, coming when and how they did, reeks of politics.
