After Years Of Turning A Blind Eye, DOJ Moves To Ramp Up FARA Enforcement

BRENDAN SMIALOWSKI/AFP
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As former Trump Campaign chairman Paul Manafort faces dual sentencing hearings this week and next, the Justice Department is planning on invigorating enforcement of the little-known law that brought down the 69-year old lobbyist: the Foreign Agents Registration Act.

The Justice Department announced Wednesday that it has brought in a prosecutor formerly with special counsel Robert Mueller’s investigation to manage its overhauled FARA unit.

That prosecutor, Brandon Van Grack, will oversee the unit as it takes on a newly aggressive posture that may focus more on bringing criminal cases under the statute, which has long been an area of lax enforcement.

John Demers, the head of the Justice Department’s National Security Division, told an audience of white collar litigators in New Orleans on Wednesday that the Justice Department would switch “from treating FARA as an administrative obligation and regulatory obligation to one that is increasingly an enforcement priority.”

According to a September 2016 Justice Department Inspector General report, seven criminal FARA cases were brought in 50 years of enforcement, from 1966 to 2016.

But after an uptick in activity over the past few years that’s seen Manafort plead guilty under FARA and white shoe law firm Skadden Arps pay $4.6 million to settle alleged violations of the law,┬áthe Justice Department appears poised to take a more aggressive stance.

David Laufman, the DOJ’s counterintelligence chief until 2018 who helped oversee aspects of the Mueller investigation and the recent high-profile foreign lobbying charges, told TPM that appointing a former special counsel prosecutor specifically to oversee FARA suggested that the department would “further the surge” in enforcement.

“It could consist of lobbying on Capitol Hill, it could consist of having op-eds written in newspapers read by members of Congress, it could manifest itself in many ways,” Laufman said, speaking of foreign influence efforts that he saw while in government. “I wanted to make sure that we were following up in every instance that there was reason to believe that an entity or individual had an obligation to register.”

As part of the Skadden case, former Obama White House Counsel Gregory Craig reportedly remains under investigation for allegedly failing to register as a lobbyist for the Ukrainian government. Craig was hired by Ukraine’s Justice Ministry in 2012 to write a report whitewashing the prosecution of a political opponent, and then oversaw its dissemination to American journalists. Skadden got a letter from the FARA unit in 2014 asking whether it should register under the law.

The DOJ’s FARA unit lacks the power to issue administrative subpoenas. Currently, it can only send letters, as it did to Skadden in the Ukraine lobbying case, where the firm also was accused of misrepresenting its lobbying after receiving a letter from the DOJ’s FARA unit.

“That’s something we’re taking a hard look at,” CNN quoted Demers as saying. “Do I think [Skadden] would have behaved differently if they had received a subpoena versus they had just received a letter? Yes.”

Demers reportedly went on to make a specific, albeit oblique reference to Craig.

“The reason why the firm was on the hook is, after the firm got an inquiry from the FARA unit, it then went to the partner who was in charge of this matter and asked about the inquiry, and based on his representations then made a series of representations to the Justice Department that were not accurate,” Demers said at the New Orleans conference.

He added that “the lack of due diligence that went into the work that was done before the representations were made to the Department” was “really remarkable.”

Laufman told TPM that while the Justice Department may bring more criminal charges under FARA, that’s not the only measure.

“Enforcement of the act mostly has to do with effecting compliance through registration and disclosure requirements,” he said, before adding that “willful violations” that rose to the level of criminal liability would only appear in “a very small percentage of cases.”

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