The U.S. Department of Justice (DOJ) has, for the first time, released largely unredacted determinations regarding whether specific identified parties are subject to the Foreign Agents Registration Act (FARA or the Act). These “Letters of Determination” supplement the existing public repository of FARA advisory opinions and provide a glimpse into DOJ’s application of the Act to detailed factual scenarios.

DOJ has also published new guidance on who qualifies as an “agent of a foreign principal,” which is the threshold question for determining who must register under FARA.

With these new resources at the public’s disposal, individuals and organizations have more information to help them understand their potential obligations under the law.

Background

FARA requires agents of foreign principals to register with DOJ within 10 days of becoming an agent and before engaging in any registrable activity. Registered agents must file periodic reports and copies of informational materials with DOJ. Generally, individuals or entities may qualify as foreign agents if they represent the foreign principal before the U.S. government, engage in political activities, act as a public relations counsel or political consultant, or raise funds within the United States on behalf of a foreign government, foreign political party, or person, company, or organization outside of the United States. To trigger FARA registration, one need not make any lobbying contacts, nor must one even be paid: FARA can cover “back-end” advice and has no financial trigger for registration.

Letters of Determination

DOJ regularly reviews information, such as news sources and existing FARA registrants’ reports, to determine whether other persons or entities could have an obligation to register under the Act. When it appears an obligation to register could exist, DOJ requests additional information from the person or entity and issues a “Letter of Determination” when it reaches a conclusion. These letters set forth the relevant facts, applicable statutory and regulatory provisions, and DOJ’s analysis. Until now, these Letters of Determination generally had not been publicly disclosed. While they do not carry the precedential weight of an advisory opinion, the Letters of Determination provide valuable insight into how DOJ applies the Act to detailed factual scenarios.

The recently released letters primarily address three subjects: the scope of the legal services exemption; the limits of the exemption for registration under the Lobbying Disclosure Act (LDA); and, broadly, the influence of foreign media organizations in the U.S.

For example, DOJ made the following determinations:

• Legal services exemption. A U.S. law firm was required to register under FARA for its work on behalf of the government of Turkey, which sought to persuade the U.S. government to take certain action relating to Iran and a pending U.S. criminal trial. This political activity fell outside the scope of the exemption for providing legal services because the firm’s attempts to influence the U.S. government were not in the course of law enforcement inquiries, investigations, or judicial proceedings involving the client, nor was the client a party to the case the firm sought to influence. We discussed the limited scope of FARA’s legal services exemption in an earlier update. (King & Spalding LLC, 2017)
• LDA exemption. Two U.S. lobbying and public affairs firms were required to register for providing services to a foreign advocacy organization, which included a public relations campaign in the United States and arranging meetings with U.S. government officials and U.S. media to promote Ukraine’s public and political interests. Although the firms registered under the LDA, they were not exempt from FARA registration because DOJ determined the Ukrainian government was a principal beneficiary of each firm’s activities in the United States. While neither firm, nor the client organization, was funded or controlled by the Ukrainian government, the client was funded and controlled in part by persons with government ties. This was apparently sufficient basis for DOJ to determine that the Ukrainian government was the principal beneficiary, rendering the LDA exemption unavailable. (Podesta Group; Mercury Public Affairs, 2017)
• Influence of foreign media entities in the United States. The U.S. bureau of a Chinese state-owned broadcasting company was required to register because it engaged in political activities and served as a publicity agent and information-service employee in the United States on behalf of its parent company, the Chinese government, and the Chinese Communist Party. DOJ determined the U.S. company engaged in political activity by referring to the company’s style guide, which specified reporters are expected to “include China’s point-of-view,” and statements from the company’s executives. The company’s origins traced to a Chinese government initiative to grow global influence and the company’s content reflected China’s policy positions. Although the company claimed to enjoy editorial independence, the evidence demonstrated the broadcaster’s mission was ultimately to further Chinese state interests. (CGTN America, 2018)

This window into DOJ’s decision-making and application of the law will be useful as others assess their potential FARA obligations.

Guidance on the Scope of Agency Under FARA

DOJ has also released new guidance on the scope of who is an “agent of a foreign principal” under FARA. “The ultimate test for agency under FARA is whether it is ‘fair to draw the conclusion that an individual is not acting independently, is not simply stating his or her own views, but is acting as an agent or alter ego of the foreign principal.’”

For FARA purposes, “agency” includes the formal, ongoing relationships that fall within the common law definition of agency. Thus, an agent for FARA purposes includes someone who formally acts as an agent, representative, or employee of a foreign principal. These relationships are often subject to a written agreement. However, the scope of agency for FARA goes beyond the common law definition of agency. It can include “less formally defined (and more episodic) behavior in ‘any other capacity’ at the ‘order,’ ‘request,’ or ‘under the direction or control’ of a foreign principal.” This means FARA reaches conduct that is undertaken on behalf of a foreign principal even without a formal relationship. However, DOJ interprets agency, including agency established via “request,” to involve some form of authority by the foreign principal over the agent, even if it does not rise to the level of a legally enforceable obligation. The question of agency can be especially complicated when working in legislative or lobbying coalitions, when different principals seek the same outcome, but potentially for different reasons.

In the guidance, DOJ said it will consider the following factors in assessing whether a person is an “agent”:

• Whether those requested to act are identified with specificity. A person or group is more likely to be an agent if the foreign principal specifically identifies an individual or limited group of individuals in its request to act, as opposed to a general plea to the public or members of a large societal group.
• The specificity of the action requested. Persons who adhere to a particular course of conduct requested by the foreign principal are more likely to be agents.
• Whether the request is compensated or coerced. The presence of compensation (e.g., monetary payment, in-kind benefits, favorable treatment) or coercion suggests the person is an agent acting under the direction or control of the foreign principal.
• Whether the political activities align with the person’s own interests. DOJ may consider whether the person appears to be advancing his or her own interests or those of a U.S. person, on one hand, or the interests of a foreign principal, on the other.
• Whether the advocated position aligns with the person’s subjective viewpoint. DOJ may consider whether the person appears to personally agree with the position he or she is advocating as evidence that the person might not be acting on behalf of the foreign principal.
• The nature of the relationship between the person and the foreign principal. DOJ may also consider factors, such as whether there is an ongoing relationship between the person and the foreign principal, whether the person coordinates activities with the foreign principal, whether the person seeks or receives feedback from the foreign principal, and the frequency of meetings between the person and the foreign principal.

While these factors are neither exhaustive nor authoritative, they do provide the first articulated framework for assessing agency under FARA, apart from the statute, regulations, and court cases. Potential registrants and their counsel can use this guidance to make a more informed assessment of whether an agency relationship exists that may be subject to FARA.

Perkins Coie’s Political Law Group helps clients determine their potential FARA obligations and stays on top of developments affecting FARA compliance. 

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