WASHINGTON — Last year, American Media, Inc., the scandal-plagued parent company of the National Enquirer, produced 200,000 copies of a special-edition magazine called “The New Kingdom.” On its cover was the new crown prince of Saudi Arabia, Mohammed bin Salman. The glossy magazine championed the young Saudi leader and touted his supposed “reform” agenda in the wake of bin Salman’s March 2018 visit to the United States.
Before AMI published “The New Kingdom,” it consulted with the Department of Justice. According to the Wall Street Journal, the media company asked the DOJ if it would need to register as a foreign agent for the purposes of publishing its unabashedly pro-Saudi mag. DOJ lawyers ultimately said no, but the fact that AMI felt the need to ask at all shows how much a once-obscure law, the Foreign Agents Registration Act (FARA), has been revived in recent years as part of the government’s larger effort to expose foreign influence operations on American soil.
In the Trump era, FARA has undergone a revival of sorts. Special Counsel Robert Mueller has used it repeatedly in his investigation into Russian interference in the 2016 election. The DOJ’s more aggressive enforcement of the law has led to more political consultants disclosing — voluntarily or not — their work to influence American politics and public opinions on behalf of foreign governments.
Congress passed FARA in 1938 to expose those believed to be behind pro-Nazi propaganda in the United States. The law requires people working on behalf of a foreign official to influence American policy, politics or public opinion to disclose a wealth of information: How much they’re getting paid, who they’re meeting with, the tactics they’re using to push their client’s message and how they’re spending said client’s money. All of that information is posted online, giving journalists, members of Congress and regular citizens the ability to see how foreign governments are trying to influence this country and its government.
But for much of FARA’s existence, the law resulted in few criminal prosecutions. Between 1966 and 2015, there were only seven FARA-related prosecutions. A 2016 DOJ inspector general’s report concluded that the unit overseeing the law “lacks a comprehensive FARA enforcement strategy.” It was treated, as one foreign lobbyist recently put it, like “a stop sign in the desert.” There have been almost as many criminal prosecutions under FARA brought in the last 18 months — five — as there were in the preceding 40 years.
In late 2014, David Laufman, a career DOJ lawyer, became the chief of the counterintelligence and export control section in the department’s national security division, which includes oversight of FARA enforcement. Laufman tells Rolling Stone that, soon after he took over, he realized that “there was a great deal more we could do to enforce the statute appropriately and in a more muscular way.” Under his watch, he says, the DOJ began to enforce FARA more aggressively. (He says the inspector general’s 2016 findings were “outdated and inapt.”)
Mueller’s investigation is a big reason for this. Almost one year ago, a D.C. grand jury convened by Mueller indicted the Internet Research Agency and 13 Russian nationals for carrying out an assortment of tactics to sow discord in American elections, including the use of fake American identities and social media platforms to organize rallies and spread disinformation. The first count in that indictment accused the Russians of conspiracy to defraud the U.S. by failing to register as foreign agents under FARA.
As Laufman, who left the DOJ last year and now advises clients on FARA compliance, writes in a recent Law360 analysis, Mueller’s case against the IRA and its agents may be the first time foreign nationals on foreign soil were charged with criminal acts under the act. Laufman says this is a signal that the DOJ intends to be more aggressive with FARA prosecutions, especially as the weaponization of social media becomes more commonplace in our elections.
“We’re living in an era where foreign influence operations present novel and sometimes destabilizing threats to the United States,” Laufman tells Rolling Stone. “The manifestations of that are not always transparent. The whole purpose of the statute is to effect and maximize transparency through registration and disclosure with respect to who the real parties and interests are behind lobbying activities and content that is propagated within the United States.”
A week after the IRA indictment, Rick Gates, the former Trump deputy campaign chairman and Paul Manafort protege, pleaded guilty to a similar conspiracy charge, this time for failing to register for lobbying work he did on behalf of the government of Ukraine and the pro-Russia Party of Regions. Last fall, Manafort, who served as Trump’s campaign chairman in 2016, also pleaded guilty to not registering as a foreign agent for Ukraine, the Party of Regions and former Ukrainian President Viktor Yanukovych.
Mueller’s investigation has also apparently led to two other FARA-related guilty pleas brought by other law-enforcement offices. In August 2018, Samuel Patten, a political consultant and ex-Manafort associate, pleaded guilty in D.C. federal court to violating the law for not registering for political work he did for the Ukraine’s Opposition Bloc party and an anonymous “prominent Ukraine oligarch.” Last December, in what appeared to be another spinoff from the Mueller investigation, federal prosecutors in the Eastern District of Virginia charged two men with ties to former Trump national security adviser Michael Flynn for acting as foreign agents for the government of Turkey without registering under FARA.
The Justice Department has also ramped up its FARA enforcement in the form of more demands for information from potential foreign agents, and in some cases pressuring people and companies to register under the act. In the past two years, for instance, at the DOJ’s insistence, Russia Today (RT) and RIA Global, two TV networks with ties to the Kremlin that operate in the U.S., registered as foreign agents. This month, CGTN America, the U.S. affiliate of a Chinese state-owned media organization, begrudgingly registered under FARA as well.
In several instances, political operatives have retroactively registered under FARA after their work came under public scrutiny. In March 2017, Michael Flynn, the president’s former national security adviser, retroactively registered as a foreign agent working in the interests of the Turkish government. Last year, Joey Allaham, a New York restaurateur, worked for months to help burnish the image of the state of Qatar within the American Jewish committee and also retroactively registered as a foreign agent.
Joshua Rosenstein, a Washington, D.C.-based lawyer who represents clients registered under FARA, tells Rolling Stone that the DOJ’s more aggressive stance on FARA has led to a greater awareness by people working in and around the foreign influence industry.
“The two new changes we have seen are a large number of new clients all of a sudden asking for advice, and realizing they may need to get lawyers who understand this law,” Rosenstein says.