Government Investigations & Political Compliance: The Manafort indictment has been released and includes charges of FARA violations. Here’s a summary of the Foreign Agent Registration ActMonday, October 30, 2017
WHAT IS FARA?
FARA is short for the Foreign Agents Registration Act of 1938, as amended, 22 U.S.C. § 611 et seq
WHAT IS THE PURPOSE OF FARA?
The purpose of FARA is to ensure that the U.S. Government and the people of the United States are informed of the source of information (propaganda) and the identity of persons attempting to influence U.S. public opinion, policy, and laws. In 1938, FARA was Congress’s response to the large number of German propaganda agents in the pre-WWII U.S.
ARE FOREIGN GOVERNMENTS THE ONLY FOREIGN PRINCIPALS?
No. The term also includes foreign political parties, a person or organization outside the United States, except U.S. citizens, and any entity organized under the laws of a foreign country or having its principal place of business in a foreign country.
HOW DOES THE ACT WORK?
1. FARA requires every agent of a foreign principal, not otherwise exempt, to register with the Department of Justice and file forms outlining its agreements with, income from, and expenditures on behalf of the foreign principal. These forms are public records and must be supplemented every six months.
2. FARA also requires that informational materials (formerly propaganda) be labeled with a conspicuous statement that the information is disseminated by the agents on behalf of the foreign principal. The agent must provide copies of such materials to the Attorney General.
3. Any agent testifying before a committee of Congress must furnish the committee with a copy of his most recent registration statement.
4. The agent must keep records of all his activities and permit the Attorney General to inspect them.
WHEN DOES ONE REGISTER?
One must register within ten days of agreeing to become an agent and before performing any activities for the foreign principal.
DOES FARA LIMIT AN AGENT’S LOBBYING AND PUBLISHING INFORMATIONAL MATERIALS (PROPAGANDA) FOR A FOREIGN PRINCIPAL?
No, FARA requires only registration.
WHAT ARE THE FILING AND LABELING REQUIREMENTS FOR INFORMATIONAL MATERIALS?
Section 4 of the Act, 22 U.S.C. § 614, outlines the responsibilities of a registrant who disseminates informational materials on behalf of a foreign principal.
If an agent disseminates informational materials, by mail or by any means or instrumentality of interstate or foreign commerce, and intends the materials to be disseminated among two or more persons, the agent must adhere to the requirements of Section 4(a) and (b) of the Act. A copy of all informational materials disseminated for or in the interests of a foreign principal must be filed within 48 hours of transmittal, and must adhere to the statutory labeling requirements, which include the presence of a conspicuous statement on the materials. See 22 U.S.C. §§ 614(a) and (b). The following language must be included in the conspicuous statement in order to comply with Section 4(b) of the Act:
This material is distributed by (name of registrant) on behalf of (name of foreign principal). Additional information is available at the Department of Justice, Washington, DC.
When seeking to comply with the requirements of Section 4 of the Act, a personal or organizational website, as well as any social media presence or text message, must contain a conspicuous label if such media are used as instruments to disseminate informational materials. Acceptable methods for placing a conspicuous label on a website include placing the required language visibly on the home page, as a running header or footer on a website home page, or within a website “About Us” page. Appropriate methods for labeling a social media presence such as Twitter, Facebook, an online forum, or a blog include placing a conspicuous statement on the social media access page of the person’s or organization’s website, within a Facebook or Twitter profile summary, or on the home page for an online forum or blog. A text message used to disseminate informational materials shall be marked at its beginning with the required label.
Whenever transmittal of the same item of informational materials is made over a period of time, the registrant may file the materials annually for as long as such transmittal continues. Examples include tourist brochures (no label required), economic development pamphlets, and trade publications.
If a registered agent contacts any agency or official of the Government (including a member or committee of Congress) on behalf of the agent’s foreign principal, Section 4(e) of the Act requires that the agent disclose his or her status as a foreign agent and identify his or her foreign principal.
Section 4(f) of FARA states, in essence, that whenever a registered agent appears before any committee of Congress to testify for or in the interest of his or her foreign principal, the agent shall, at the time of the appearance, furnish the committee with a copy of the agent’s most recent registration statement filed with this Department for inclusion in the record as part of his or her testimony.
ARE THERE CRIMINAL PENALTIES FOR VIOLATING THE ACT?
Yes, failure to register, keep accounts, mark informational materials, provide a congressional committee with a copy of the agent’s most recent registration, and agreeing to a contingent fee based on the success of political activity are violations of the Act. The FARA Unit seeks to obtain voluntary compliance with the statute.
DOES EVERYONE WHO ACTS AS AN AGENT OF A FOREIGN PRINCIPAL HAVE TO REGISTER?
No, there are a number of exemptions. For example, diplomats and officials of foreign governments, and their staffs, are exempt if properly recognized by the U.S. State Department. Persons whose activities are of a purely commercial nature or solely of a religious, scholastic, academic, scientific or fine arts nature are exempt. Certain soliciting or collecting of funds to be used for medical aid, or for food and clothing to relieve human suffering are also exempt. Lawyers engaged in legal representation of foreign principals in the courts or similar type proceedings, so long as the attorney does not try to influence policy at the behest of his client, are exempt. Any agent who is engaged in lobbying activities and is registered under the Lobbying Disclosure Act is exempt from registration under FARA if the representation is not on behalf of a foreign government or foreign political party.
IS FARA THE ONLY STATUTE RELATING TO THE REGISTRATION OF AGENTS?
No. The Lobbying Disclosure Act of 1995 (LDA), 2 U.S.C. § 1601, removed from FARA a class of agents who are engaged in lobbying activities and who register under the LDA. This Act is administered by Congress.
18 U.S.C. § 951 provides criminal penalties for anyone, other than a diplomat, to operate as an agent of a foreign government without first notifying the Attorney General, unless the agent is engaged in legal commercial transaction. This statute is aimed at foreign government controlled agents engaged in non-political activities.
Also, 18 U.S.C. § 2386 requires registration by certain organizations which engage in political activity, civilian military activity, is under foreign control, or has as its purpose the overthrow the government by force.
Finally, 50 U.S.C. § 851, requires registration of persons who have knowledge of or have received instruction or assignment in espionage, counterespionage or sabotage service or tactics of a foreign country or political party.