# Foreign Agents Registration Act (FARA) -- Legal Analysis and Recent Developments ## Issue and Brief Answer **Issue:** Outline the scope of the Foreign Agents Registration Act (FARA), including what constitutes a violation, the legal standards for prosecution (elements and burden of proof), typical defenses, recent enforcement actions, constitutional implications (First Amendment and due process), and how FARA might hypothetically apply to U.S. politicians under an originalist "America First" perspective. **Brief Answer:** [FARA requires "agents of foreign principals"](https://www.govinfo.gov/content/pkg/USCODE-2014-title22/html/USCODE-2014-title22-chap11.htm) -- individuals or entities acting in the U.S. at the direction or control of foreign governments, parties, or persons -- to [publicly register and disclose their activities](https://www.govinfo.gov/content/pkg/USCODE-2014-title22/html/USCODE-2014-title22-chap11.htm). [Willful failure to register or making false statements in FARA filings is a felony punishable by up to five years in prison](https://www.govinfo.gov/content/pkg/USCODE-2014-title22/html/USCODE-2014-title22-chap11.htm). To convict, the government must prove the defendant acted as a covered foreign agent, engaged in specified activities (political or quasi-political) on behalf of the foreign principal, and [intentionally avoided the registration requirement](https://www.govinfo.gov/content/pkg/USCODE-2014-title22/html/USCODE-2014-title22-chap11.htm). Common defenses include asserting no agency relationship with a foreign principal (e.g. [lack of direction or control](https://www.reuters.com/legal/trump-ally-barrack-acquitted-acting-uae-foreign-agent-2022-11-04/)), falling within statutory exemptions (for bona fide commercial, academic, or religious activities), or lack of willfulness (no knowing violation). Recent years have seen a resurgence of FARA enforcement, including prosecutions of lobbyists, businesspeople, and even public officials (e.g. [[Paul Manafort]], [[Bijan Rafiekian]], [[Tom Barrack]], [[Elliott Broidy]], Senator [[Robert Menendez]]) for [unregistered foreign influence efforts](https://www.justice.gov/nsd-fara/recent-cases). FARA's broad sweep raises First Amendment concerns -- it compels speech (disclosure) but does not directly prohibit expressive conduct -- and [due process concerns over vagueness](https://www.briberymatters.com/post/are-the-menendez-and-cuellar-fara-charges-unconstitutional) (e.g. what counts as acting at a foreign "request"). Courts have generally [upheld FARA's disclosure regime as constitutional](https://supreme.justia.com/cases/federal/us/481/465/), viewing it as a transparency measure that does not suppress protected speech. However, conservative and originalist commentators caution that FARA must be narrowly construed to avoid chilling legitimate advocacy and to respect separation of powers, especially when [applied to elected officials](https://www.briberymatters.com/post/are-the-menendez-and-cuellar-fara-charges-unconstitutional). Under an America First, originalist interpretation, FARA is justified to guard against covert foreign influence (a concern dating to the Founders), but prosecuting politicians for mere "requests" by foreign leaders raises [vagueness and constitutional issues](https://www.briberymatters.com/post/are-the-menendez-and-cuellar-fara-charges-unconstitutional) absent clear quid pro quo evidence. ## Overview of FARA and What Constitutes a Violation **Statutory Scheme:** Enacted in 1938 and amended over time, FARA (22 U.S.C. § 611 et seq.) is primarily [a disclosure statute aimed at ensuring transparency of foreign influence on U.S. policy and public opinion](https://www.justice.gov/archives/usam/criminal-resource-manual-2062-foreign-agents-registration-act-enforcement). The Act requires that any "agent of a foreign principal" engaged in certain activities [register with the U.S. Department of Justice and regularly report their activities](https://www.govinfo.gov/content/pkg/USCODE-2014-title22/html/USCODE-2014-title22-chap11.htm). An "agent of a foreign principal" is [defined broadly to include anyone who acts at the order, request, or under the direction or control of a foreign principal](https://www.govinfo.gov/content/pkg/USCODE-2014-title22/html/USCODE-2014-title22-chap11.htm) and engages in covered activities, such as political or public-relations work, within the United States. Covered activities include: (i) engaging in ["political activities" (any activity intended to influence U.S. government decisions or public opinion on domestic or foreign policy)](https://www.govinfo.gov/content/pkg/USCODE-2014-title22/html/USCODE-2014-title22-chap11.htm); (ii) [acting as publicity or political consultant for a foreign principal](https://www.govinfo.gov/content/pkg/USCODE-2014-title22/html/USCODE-2014-title22-chap11.htm); (iii) [soliciting or disbursing anything of value within the U.S. for a foreign principal](https://www.govinfo.gov/content/pkg/USCODE-2014-title22/html/USCODE-2014-title22-chap11.htm); or (iv) [representing a foreign principal before U.S. government agencies or officials](https://www.govinfo.gov/content/pkg/USCODE-2014-title22/html/USCODE-2014-title22-chap11.htm). A FARA violation typically occurs when a person who meets the definition of a foreign agent willfully fails to register or fails to disclose required information. **22 U.S.C. § 612(a)** makes it unlawful to act as an agent of a foreign principal without [first filing a truthful, complete registration with the [[DOJ]] (with updates every six months)](https://www.govinfo.gov/content/pkg/USCODE-2014-title22/html/USCODE-2014-title22-chap11.htm). In essence, any person acting as a foreign agent must register within 10 days of becoming an agent and provide [detailed information about the activities and funding related to the foreign principal](https://www.govinfo.gov/content/pkg/USCODE-2014-title22/html/USCODE-2014-title22-chap11.htm). Failing to register or filing misleading documents can lead to enforcement action. **Examples of Violative Conduct:** Classic FARA violations include unregistered lobbying or public relations campaigns in the U.S. at the behest of foreign governments or political parties. For instance, if a U.S. lobbyist is paid by a foreign government to influence members of Congress or U.S. officials on policy -- and the lobbyist does not file under FARA -- that constitutes a violation. Recent high-profile examples include political consultants who were paid by foreign political parties to shape U.S. policy or public opinion (e.g. [[Paul Manafort]]'s lobbying for a pro-Russian Ukrainian party without FARA registration) and businesspeople who acted as back-channel influencers for foreign governments (e.g. [[Tom Barrack]]'s [alleged advocacy for the United Arab Emirates without registering](https://www.reuters.com/legal/trump-ally-barrack-acquitted-acting-uae-foreign-agent-2022-11-04/)). Even conduct short of formal lobbying -- such as generating favorable media content, organizing events, or networking with U.S. officials at the direction of a foreign sponsor -- can trigger FARA. Notably, the law does not prohibit serving as a "foreign agent" per se; rather, it requires disclosure. The premise is that [sunlight on foreign influence allows the government and public to weigh the speaker's biases](https://www.mayerbrown.com/en/insights/publications/2024/09/us-justice-department-continues-focus-on-criminal-enforcement-of-fara). However, [acting as an unregistered foreign agent (i.e. covertly) is unlawful and can lead to criminal charges](https://www.govinfo.gov/content/pkg/USCODE-2014-title22/html/USCODE-2014-title22-chap11.htm). **Exemptions:** FARA contains exemptions to avoid overreach. For example, [purely commercial activities "in furtherance of bona fide trade or commerce" and "religious, scholastic, academic, or scientific pursuits"](https://www.congress.gov/117/meeting/house/114580/witnesses/HHRG-117-JU10-Wstate-RobinsonN-20220405.pdf) not aimed at policy influence are exempt. Lobbyists who register under the Lobbying Disclosure Act for certain foreign clients may also be exempt from FARA if the foreign principal is not a foreign government or political party (the "LDA exemption" in 22 U.S.C. § 613(h)). [Legal professionals representing foreign clients in U.S. legal proceedings may be exempt](https://www.squirepattonboggs.com/en/insights/publications/2025/01/proposed-amendments-to-the-foreign-agents-registration-act-regulations) when strictly performing legal work (the "lawyers' exemption," § 613(g)), provided they are not attempting to influence U.S. policy outside judicial proceedings. Despite these exemptions, FARA's reach remains broad, and [ambiguities in terms like "private and nonpolitical trade" or "bona fide" activities have led to confusion](https://www.congress.gov/117/meeting/house/114580/witnesses/HHRG-117-JU10-Wstate-RobinsonN-20220405.pdf). Many routine activities with minimal nexus to policy could technically trigger FARA if done at the "request" of a foreign entity. The [[DOJ]]'s FARA unit has [issued dozens of advisory opinions to clarify whether specific arrangements require registration](https://www.congress.gov/117/meeting/house/114580/witnesses/HHRG-117-JU10-Wstate-RobinsonN-20220405.pdf), underscoring the complexity of the statute's scope. **Penalties:** Violations can lead to civil or criminal enforcement. The [[DOJ]] can [seek civil injunctions to halt unregistered activities](https://www.govinfo.gov/content/pkg/USCODE-2014-title22/html/USCODE-2014-title22-chap11.htm) or compel delinquent agents to comply. Willful violations are subject to criminal prosecution. Under **22 U.S.C. § 618(a)**, [any person who willfully violates any FARA provision or willfully makes a material false statement or omission in a FARA filing is subject to up to 5 years imprisonment and a fine up to $10,000](https://www.govinfo.gov/content/pkg/USCODE-2014-title22/html/USCODE-2014-title22-chap11.htm). [Lesser offenses (such as certain technical violations regarding labeling informational materials) carry up to 6 months imprisonment](https://www.govinfo.gov/content/pkg/USCODE-2014-title22/html/USCODE-2014-title22-chap11.htm). Importantly, [FARA offenses are defined as "continuing offenses"](https://www.govinfo.gov/content/pkg/USCODE-2014-title22/html/USCODE-2014-title22-chap11.htm) -- every day of non-compliance is a new violation. This means the statute of limitations can be effectively tolled as long as the agent remains unregistered, preventing violators from running out the clock by simply lying low. ## Legal Standards, Statutory Elements, and Burden of Proof under FARA To secure a criminal conviction under FARA, the Department of Justice must prove each element of the offense beyond a reasonable doubt. The key elements include: **(1) Agency Status:** The defendant acted as an "agent of a foreign principal" as defined in the statute; **(2) Covered Activities:** the defendant engaged in at least one of the covered activities (political activities, public relations, lobbying, or fundraising for the foreign principal) within the United States; **(3) Foreign Principal:** the defendant acted subject to the direction, control, or request of a foreign principal (or a person acting on behalf of a foreign principal); **(4) Failure to Register:** the defendant knowingly failed to file the required registration (or supplement) disclosing this agency relationship; and **(5) Willfulness:** the [defendant's failure to register (or false statements/omissions in lieu of registration) was willful](https://www.govinfo.gov/content/pkg/USCODE-2014-title22/html/USCODE-2014-title22-chap11.htm) -- i.e., done with knowledge that the law required registration and with intent to avoid or deceive. **Agency and Direction/Control:** The [definition of "agent of a foreign principal" in FARA is broader than common-law agency](https://www.congress.gov/117/meeting/house/114580/witnesses/HHRG-117-JU10-Wstate-RobinsonN-20220405.pdf). The government need not prove a formal agency contract or explicit control by the foreign power. It suffices to show the defendant acted [at the "request" or under the "direction or control"](https://www.govinfo.gov/content/pkg/USCODE-2014-title22/html/USCODE-2014-title22-chap11.htm) of the foreign principal (or an intermediary) while engaging in the specified activities. Notably, [even informal influence can establish the nexus](https://www.congress.gov/117/meeting/house/114580/witnesses/HHRG-117-JU10-Wstate-RobinsonN-20220405.pdf) -- e.g., if a foreign official or employer merely requests the person take some action to advance foreign interests, that can meet the standard. The [terms "request" or "control" are not further defined in the statute](https://www.congress.gov/117/meeting/house/114580/witnesses/HHRG-117-JU10-Wstate-RobinsonN-20220405.pdf). Consequently, prosecutors often rely on evidence like communications from the foreign principal (emails, texts giving direction), payments or benefits given in exchange for influence, or the defendant's own statements acknowledging they were acting on behalf of foreign interests. In **U.S. v. Rafiekian** (the case of [[Bijan Rafiekian]], associate of [[Michael Flynn]], charged with acting as an unregistered agent of Turkey), the Fourth Circuit [upheld a jury finding of agency based largely on circumstantial evidence that Turkish officials orchestrated and funded Rafiekian's lobbying campaign](https://www.fara.us/flynn-associate-fara-conviction-overturned), even without a formal written agreement. The lack of a formal contract did not bar conviction; it was enough that the defendant knowingly agreed to operate at the foreign principal's behest. **"Political Activities" or Other Covered Acts:** FARA only kicks in if the agent engages in one of the enumerated activities for the foreign principal. The broadest category is "political activities," [defined as any activity intended to influence any U.S. government agency or official or to influence U.S. public opinion on domestic or foreign policy](https://www.briberymatters.com/post/are-the-menendez-and-cuellar-fara-charges-unconstitutional). This encompasses lobbying efforts (directly lobbying Congress or the executive), as well as public propaganda or advocacy campaigns. [Other categories include acting as a publicity agent or information service employee disseminating information on behalf of the foreign entity](https://www.govinfo.gov/content/pkg/USCODE-2014-title22/html/USCODE-2014-title22-chap11.htm), or [soliciting/dispensing money in the U.S. for a foreign principal's interests](https://www.govinfo.gov/content/pkg/USCODE-2014-title22/html/USCODE-2014-title22-chap11.htm). [Representation before U.S. government agencies](https://www.govinfo.gov/content/pkg/USCODE-2014-title22/html/USCODE-2014-title22-chap11.htm) (such as acting as a foreign government's attorney or lobbyist in dealings with federal officials) is also covered. In practice, the prosecution will delineate which of these activities the defendant performed. For example, in the 2018 prosecution of [[Paul Manafort]], the indictment alleged he [arranged meetings and influenced U.S. policymakers and media regarding Ukraine's political interests](https://publicintegrity.org/national-security/manaforts-guilty-plea-goes-to-the-heart-of-the-russian-intelligence-operation-in-2016/) -- clearly "political activities" in the U.S. for a foreign principal (Ukraine's Party of Regions). Similarly, in the 2022 case against [[Tom Barrack]], prosecutors presented [emails and speeches indicating Barrack was promoting UAE's preferred policy positions in U.S. media and to Trump administration officials](https://www.reuters.com/legal/trump-ally-barrack-acquitted-acting-uae-foreign-agent-2022-11-04/) -- falling under political activities and public relations on behalf of a foreign government. Establishing this element often involves extensive documentary evidence and witness testimony to tie the defendant's actions to the foreign principal's agenda. **Willfulness and Knowledge:** A critical element for criminal FARA liability is willfulness. The statute criminalizes one who [**"willfully** violates any provision" of FARA or willfully makes false material statements/omissions in filings](https://www.govinfo.gov/content/pkg/USCODE-2014-title22/html/USCODE-2014-title22-chap11.htm). This implies the government must prove the defendant knew of the legal obligation to register (or to be truthful in disclosures) and intentionally failed to comply. In practice, proving willfulness can be challenging because a defendant might claim ignorance of the law or belief that an exemption applied. The [[DOJ]] often takes steps to establish willfulness by showing the defendant was on notice of FARA's requirements. For instance, [[DOJ]]'s FARA Unit sometimes sends letters of inquiry or warning to potential unregistered agents; if the person ignores such a letter, that letter can later serve as [evidence that the defendant knew of the duty and thus acted willfully](https://www.justice.gov/archives/usam/criminal-resource-manual-2062-foreign-agents-registration-act-enforcement). Historically, in **United States v. Frank** (D.D.C. 1959), the [[DOJ]] [used a warning letter received by the defendant to help prove he willfully failed to register](https://www.justice.gov/archives/usam/criminal-resource-manual-2062-foreign-agents-registration-act-enforcement). In modern cases, emails or advice from attorneys may surface indicating the person was cautioned about FARA. If a defendant is sophisticated (e.g. an attorney or lobbyist themselves), a jury may infer willfulness more readily. The [**[[DOJ]] Justice Manual** notes that post-1966 FARA prosecutions require clear evidence of willfulness](https://www.justice.gov/archives/usam/criminal-resource-manual-2062-foreign-agents-registration-act-enforcement), and in fact [the dearth of criminal cases for decades was partly due to the higher burden of proving intentional violation](https://www.justice.gov/archives/usam/criminal-resource-manual-2062-foreign-agents-registration-act-enforcement). Prosecutors now are more aggressive, but they still typically choose egregious cases with strong evidence that the defendant deliberately hid their foreign agency despite knowing the law. **Burden of Proof and Evidence:** The burden always remains on the prosecution to prove each element beyond a reasonable doubt. Defendants are not required to prove their innocence or qualify for an exemption, though in practice a defendant who claims an exemption (e.g., "I only engaged in private commercial activity") will need to produce some evidence of that. In FARA cases, common evidence includes: financial records of payments from the foreign principal, communications (emails, texts, memos) showing the foreign principal's requests or instructions, public statements or filings by the defendant that omitted foreign ties, and testimony from associates or the foreign principal's representatives. Notably, the statute provides in **22 U.S.C. § 618(b)** that in any FARA proceeding where the charge is being an unregistered agent, ["proof of the specific identity of the foreign principal shall be permissible but not necessary."](https://www.govinfo.gov/content/pkg/USCODE-2014-title22/html/USCODE-2014-title22-chap11.htm) In other words, the government doesn't have to pinpoint exactly which foreign entity was behind the scenes if it can show the defendant acted on behalf of a foreign principal. This flexibility can help in cases where the agent worked through cut-outs or the foreign principal's identity is murky (e.g., acting for a foreign intelligence service indirectly). The jury instructions will typically require finding that the defendant acted under foreign direction/control for the purpose of influencing U.S. actions or public opinion, and that he intentionally avoided registration. In summary, the legal standard for FARA prosecutions is stringent due to the willfulness element, but the definitions are broad. After 1966, [Congress narrowed some definitions (requiring the acts be on behalf of the foreign principal, not merely parallel to foreign interests)](https://www.justice.gov/archives/usam/criminal-resource-manual-2062-foreign-agents-registration-act-enforcement), which increased the government's burden of proof slightly. Nevertheless, the breadth of "request or control" and "political activities" gives [[DOJ]] significant latitude in characterizing conduct as within FARA. The jury's task is to decide if the defendant's relationship with the foreign power and conduct in the U.S. meet the statute's criteria, given the evidence. The [[DOJ]], cognizant of the burden, traditionally avoided prosecution unless the facts were especially clear and egregious (as noted, [between 1966 and the mid-2010s, there were virtually no successful FARA prosecutions](https://www.justice.gov/archives/usam/criminal-resource-manual-2062-foreign-agents-registration-act-enforcement)). This has changed in recent years, as discussed below, with [[DOJ]] now more willing to test the margins of the law in court. ## Common Defenses to a FARA Violation Defendants charged under FARA have several lines of defense, attacking either the factual elements (agency status, covered activities, willfulness) or the law's application to their case (exemptions, constitutional challenges). Some of the most common defenses include: - **"I Was Not an Agent of a Foreign Principal":** The most straightforward defense is to deny that the defendant was acting under the direction or control of any foreign principal. Because FARA's definition of "agent" is broad, this often turns into a factual argument about the nature of the relationship. The defendant may claim that their actions were independent and not on behalf of the foreign entity, even if the foreign entity benefitted. For example, [[Tom Barrack]] -- acquitted in 2022 of acting as an unregistered agent for the UAE -- admitted he met with and spoke to Emirati officials but [**"denied ever agreeing to act under the country's direction or control, as U.S. law defines agents."**](https://www.reuters.com/legal/trump-ally-barrack-acquitted-acting-uae-foreign-agent-2022-11-04/) He maintained that any alignment with UAE interests was incidental to his own business or political activities. The jury found reasonable doubt, illustrating that absent a clear quid pro quo or directive, a defendant can prevail by arguing lack of a formal agency agreement or that communications with the foreign side were mere friendly exchanges, not commands. Similarly, in the case of **[[Greg Craig]]** (a former White House counsel charged with making false statements to avoid FARA registration for work related to Ukraine), [[Greg Craig]]'s defense successfully argued he was not acting as Ukraine's agent in a public influence capacity -- he performed legal work and did not agree to PR services -- therefore he had no duty to register. The jury acquitted him in 2019. These defenses aim to show the prosecution has stretched the "foreign agent" label too far. Cross-examination will emphasize the absence of explicit instructions from the foreign principal or any control mechanism. - **Lack of "Political Activities" or Covered Acts:** Even if a relationship with a foreign entity existed, a defendant might argue their activities did not rise to the level of "political activities" or other FARA-triggering conduct. For instance, if one was merely advising a foreign corporation on investment strategy (a private commercial activity) and not attempting to influence U.S. policy, that should fall outside FARA's scope. The statute's exemptions support this defense: one can claim the [commercial exemption (22 U.S.C. § 613(d)) if the actions were "in furtherance of bona fide trade or commerce"](https://www.congress.gov/117/meeting/house/114580/witnesses/HHRG-117-JU10-Wstate-RobinsonN-20220405.pdf) and not primarily political. Likewise, scholars or think-tank analysts working with foreign organizations might invoke the [academic or scholastic exemption by arguing their work was bona fide research or education, not lobbying](https://www.congress.gov/117/meeting/house/114580/witnesses/HHRG-117-JU10-Wstate-RobinsonN-20220405.pdf). A concrete example is a nonprofit officer charged for collaborating with a foreign NGO -- they might contend that their seminars or publications were purely academic discourse, not intended to sway U.S. policy (even if the foreign NGO had its own agenda). The challenge here is that FARA's definition of political activity is broad (influencing any part of public opinion could count), so this defense often hinges on credibility and intent: convincing the factfinder that influencing policy was not the purpose of the interactions. - **Claimed Statutory Exemption:** As noted, FARA explicitly exempts certain categories of agents from registration. A defendant can assert they squarely fall into an exemption, such as: (a) **Lobbying Disclosure Act (LDA) exemption** -- if they were lobbying for a foreign commercial client and registered under the domestic lobbying law, they might be exempt from FARA (though this exemption does not apply if the client was a foreign government or political party). (b) **Legal representation exemption** -- if the activities were in the course of legal representation in an official proceeding, and not attempts to influence policy outside that proceeding, an attorney can avoid FARA (often invoked by lawyers who write that they are "appearing in court on behalf of X foreign entity"). (c) **News/Press exemption** -- [media organizations that are at least 80% U.S.-owned and not controlled by a foreign principal are exempt](https://www.govinfo.gov/content/pkg/USCODE-2014-title22/html/USCODE-2014-title22-chap11.htm) from being deemed agents even if they disseminate foreign information. For example, when the [[DOJ]] ordered the Russian state media outlet RT's U.S. affiliate to register under FARA in 2017, RT America could not use the press exemption because it was essentially controlled by the Russian government. But a hypothetical independent U.S. newspaper that receives foreign funding might try to use this exemption to resist being labeled a foreign agent. The success of an exemption defense depends on meeting the precise terms of the exemption, which sometimes is a fact-intensive showing. Courts will construe exemptions narrowly since FARA's purpose is disclosure -- [the defendant has the burden of proving an exemption applies](https://www.congress.gov/117/meeting/house/114580/witnesses/HHRG-117-JU10-Wstate-RobinsonN-20220405.pdf) once the government shows they otherwise fit the definition of an agent. - **No "Willfulness" (Lack of Criminal Intent):** Another common defense is to argue that any failure to register was not willful. The defendant might claim they did not know about FARA or did not realize their conduct triggered it. This can be credible especially for less sophisticated defendants or where the FARA obligation was debatable. For example, if someone was informally advising a foreign friend and didn't consider that "acting as an agent," they might assert they acted in good faith. In such cases, the defense will highlight ambiguity in the law and possibly that the defendant consulted an attorney who advised no registration was needed (relying on counsel can negate willfulness if reasonable). We saw this in **United States v. [[Biyan Rafiekian]]**: [[Biyan Rafiekian]] argued he believed his consultancy's work for Turkey was covered by another filing and did not require a FARA registration; although the jury convicted, the trial judge initially set aside the verdict partly questioning if [[Biyan Rafiekian]] truly knew the legal duty. (The conviction was later reinstated on appeal, as evidence suggested he deliberately concealed the foreign source of funding, implying consciousness of guilt.) Nonetheless, emphasizing a lack of notice -- e.g. no direct warning from [[DOJ]], no prior experience with FARA -- can resonate with jurors, given that FARA was a rarely enforced law for decades. - **First Amendment and Selective Prosecution Defenses:** Some defendants raise constitutional defenses (discussed more fully in Part 5). They may argue that FARA is being applied to punish them for disfavored political speech or associations, in violation of the First Amendment or equal protection. While courts have generally upheld FARA's constitutionality, a defendant might claim their prosecution is selective or politically motivated -- for example, that [[DOJ]] only enforced FARA against them because of the viewpoints they expressed (perhaps critical of U.S. policy or aligned with a disfavored foreign country). [Selective prosecution is hard to prove (requiring evidence of intentional discrimination)](https://www.aclu.org/press-releases/aclu-and-knight-institute-urge-court-to-construe-foreign-agent-registration-act-narrowly), but raising it can be part of a public-facing defense narrative. Similarly, a defendant might challenge the term "agent" or "political activities" as unconstitutionally vague (a due process argument) -- asserting they had no reasonable way to know their conduct was prohibited. These arguments, while rarely successful in court, lay groundwork for appeal or at least create doubt about wilfulness (if even lawyers disagree on FARA's scope, how could the defendant be sure?). - **Separation of Powers or Immunity (if a Public Official):** In the special case of members of Congress or other U.S. officials charged under related statutes (18 U.S.C. § 219, which forbids officials from acting as foreign agents), defenses unique to their status arise. A member of Congress might invoke the Speech or Debate Clause of the Constitution, which shields legislative acts from being questioned in court. Senator [[Robert Menendez]], when charged with conspiring to act as an unregistered agent of Egypt, [moved to dismiss the charge on Speech or Debate grounds, arguing that enforcing FARA-related provisions on legislative activities intrudes on Congress's independence](https://www.briberymatters.com/post/are-the-menendez-and-cuellar-fara-charges-unconstitutional). The court rejected this, noting that [Congress itself passed the law prohibiting such foreign agency, and that enforcement of generally applicable laws does not inherently violate separation of powers](https://www.briberymatters.com/post/are-the-menendez-and-cuellar-fara-charges-unconstitutional) as long as it targets criminal conduct. Still, a lawmaker could claim that meetings with foreign officials and subsequent advocacy were part of their official duties or political speech, and thus immune or protected -- an argument likely to face an uphill battle but potentially resonant to an originalist judge concerned about executive prosecution of legislators. In practice, defendants often employ a combination of these defenses. For example, "I didn't willfully fail to register because I genuinely didn't think I was acting as a foreign agent -- I was doing X (exempt activity) on my own initiative." The **[[Tom Barrack]]** trial encapsulated several defenses: [[Tom Barrack]]'s team argued [no agency ("nothing nefarious" in his ties to UAE, no control)](https://www.reuters.com/legal/trump-ally-barrack-acquitted-acting-uae-foreign-agent-2022-11-04/), and also hinted that prosecuting informal diplomacy could chill policy discussions (an implied policy/First Amendment defense). The acquittal shows that juries may be sympathetic where the conduct is in a gray area and lacks clear quid pro quo. By contrast, in cases of blatant subterfuge -- e.g. hiding payments or lying to investigators -- defenses tend to crumble. Notably, when defendants plead guilty (as did **[[Elliott Broidy]]** in 2020 to a FARA conspiracy, for [lobbying the Trump administration on behalf of Malaysia and China](https://www.justice.gov/nsd-fara/recent-cases)), it's often because the evidence of willful wrongdoing (secret contracts, payoffs) is overwhelming. ## Notable Recent FARA Prosecutions and Enforcement Actions After a long period of infrequent enforcement, FARA has experienced a renaissance in the past decade. The Department of Justice has brought a number of high-profile cases, signaling a crackdown on undisclosed foreign influence. Below are some notable recent prosecutions and actions: - **[[Paul Manafort]] and [[Rick Gates]] (2017--2018):** [[Paul Manafort]], a lobbyist and former Trump campaign chairman, and his associate [[Rick Gates]] were charged with conspiracy to violate FARA for their [multimillion-dollar lobbying campaign on behalf of a pro-Russian Ukrainian political party. They had secretly orchestrated lobbying of U.S. officials and media placements to benefit Ukraine's government, routing payments through offshore accounts](https://mikejohnson.house.gov/news/documentsingle.aspx?DocumentID=22). In 2018 [[Paul Manafort]] [pleaded guilty to FARA-related offenses (among other charges) and admitted to willfully failing to register for the Ukraine work](https://publicintegrity.org/national-security/manaforts-guilty-plea-goes-to-the-heart-of-the-russian-intelligence-operation-in-2016/). These prosecutions (stemming from Special Counsel [[Robert Mueller]]'s investigation) highlighted how FARA can attach to lucrative political consulting for foreign clients. [[Paul Manafort]]'s case also [exposed loopholes in enforcement -- he evaded detection for years -- prompting [[DOJ]] to vow stricter compliance checks](https://www.pogo.org/analysis/manafort-indictment-demonstrates-how-fara-falls-short). - **[[Bijan Rafiekian]] (2019):** [[Bijan Rafiekian]], former business partner of [[Michael Flynn]], was indicted for acting as an unregistered agent of Turkey in a 2016 lobbying effort. The jury convicted him on FARA charges, but the trial judge overturned the conviction, doubting the sufficiency of evidence that he knowingly worked under Turkey's direction. In 2021, the Fourth Circuit [reinstated the conviction, upholding that ample evidence of Turkish funding and direction (via cut-outs and a purported "independent" company) supported the jury's finding](https://www.fara.us/flynn-associate-fara-conviction-overturned). This case is significant as one of the few fully litigated FARA trials. It underscored [[DOJ]]'s willingness to go to trial on difficult FARA cases and the courts' willingness to infer agency from circumstantial evidence (payments, parallel objectives, etc.). However, it also showed the risk: the initial acquittal by the judge demonstrated judicial caution when evidence of a clear agreement is lacking. - **[[Gregory Craig]] (2019):** As noted, [[Greg Craig]] was acquitted at trial on a charge of lying to [[DOJ]] about his need to register under FARA. [[Greg Craig]], a prominent lawyer, had authored a report for the Ukrainian government and shared it with U.S. media. [[DOJ]] argued this was a public relations activity requiring registration; [[Greg Craig]] maintained his purpose was legal and he had not agreed to act as Ukraine's agent in a PR capacity. The jury sided with [[Greg Craig]]. The case was notable because it was one of the first FARA-related prosecutions of such a high-profile figure in decades, and its defeat may have informed [[DOJ]]'s strategy to focus on more clear-cut FARA violations thereafter. It also illustrated the difficulty of drawing lines between legal work and PR when foreign clients are involved. - **[[Elliott Broidy]] and [[Nickie Lum Davis]] (2020):** [[Elliott Broidy]], a fundraiser with ties to the Trump campaign, and his associate [[Nickie Lum Davis]] pleaded guilty to a scheme involving lobbying the U.S. government (and even the President) to drop an investigation into the 1MDB Malaysian sovereign wealth fund scandal and to return a Chinese fugitive to China -- all on behalf of foreign principals (Malaysian and Chinese) who paid them large sums. They did not register under FARA. [[Elliott Broidy]]'s [guilty plea to conspiring to violate FARA](https://www.justice.gov/nsd-fara/recent-cases) was a watershed, as it showed [[DOJ]] applying FARA in a global corruption context. ([[Elliott Broidy]] was later pardoned, but the case remains a template for prosecution of influence-peddling for foreign interests.) [[Nickie Lum Davis]] also pleaded guilty to aiding the scheme. These cases signaled [[DOJ]]'s intent to use FARA alongside traditional anti-bribery laws to tackle covert lobbying. - **[[Tom Barrack]] (2021--2022):** [[Tom Barrack]], a billionaire and close advisor to President Trump, was indicted in 2021 for allegedly acting as an agent of the UAE, including by pushing UAE-favorable positions to the campaign and government, without registering. His trial in 2022 was closely watched. Despite substantial evidence that Emirati officials communicated talking points to him and invested money with his business, [[Tom Barrack]] was [acquitted on all FARA-related counts](https://www.reuters.com/legal/trump-ally-barrack-acquitted-acting-uae-foreign-agent-2022-11-04/). The jury was not convinced that [[Tom Barrack]] had agreed to operate under UAE control rather than act out of his own aligned interests. This high-profile acquittal was a setback for [[DOJ]]'s FARA initiative and demonstrates that jurors may demand a clear "smoking gun" of agency (such as an explicit agreement or direct orders) when the defendant is an American businessman with plausible independent reasons to engage with a foreign government. Nonetheless, the very fact of the prosecution -- first of its kind against such a figure -- put U.S. elites on notice that informal advisory roles for foreign allies can trigger criminal scrutiny. - **[[Prakazrel Michel]] (2023):** [[Pras Michel]], a former member of the Fugees (hip-hop group), was [convicted in April 2023 on multiple counts, including serving as an unregistered agent of foreign principals (Malaysia and China)](https://www.justice.gov/nsd-fara/recent-cases). He was part of the same 1MDB lobbying scheme involving [[Elliott Broidy]]. His conviction (which included other charges like witness tampering and campaign finance violations) exemplifies how FARA can ensnare even entertainment figures when they step into the world of international lobbying. [[Pras Michel]] [faces significant prison time (sentencing pending)](https://www.justice.gov/nsd-fara/recent-cases), reinforcing that FARA violations, when coupled with other crimes, can yield heavy penalties. - **[[Gal Luft]] (2023):** [[Gal Luft]], an Israeli-American think tank director, was indicted in [[July 2023]] for willfully failing to register under FARA in a scheme to promote Chinese interests. According to [[DOJ]], [[Gal Luft]] covertly tried to recruit and pay a former high-ranking U.S. official (an adviser to the incoming administration) to publicly support pro-China policies, and [facilitated dialogues published in media to influence U.S. opinion](https://www.justice.gov/nsd-fara/recent-cases). He was charged with FARA violations among other offenses. [[Gal Luft]]'s case is notable in part due to its political overtones -- he later claimed he was targeted for politically motivated reasons (he had made allegations against the [[Joe Biden]] family). He became a fugitive. The case highlights [[DOJ]]'s focus on PRC influence operations and shows how FARA is used even in intelligence-adjacent contexts (essentially alleging [[Gal Luft]] was running a clandestine influence campaign). - **Senator [[Robert Menendez]] (2023-2024):** In a stunning development, Senator [[Robert Menendez]] was charged in a superseding indictment in late 2023 with [conspiracy to act as an unregistered agent of Egypt](https://www.justice.gov/nsd-fara/recent-cases). This came alongside bribery charges. Prosecutors alleged [[Robert Menendez]], while chairing the Senate Foreign Relations Committee, [accepted bribes to benefit Egyptian government interests and even agreed to informally assist or advise Egypt](https://www.justice.gov/nsd-fara/recent-cases) -- effectively acting on its behalf. In [[July 2024]], [[Robert Menendez]] was reportedly [convicted on related charges](https://www.briberymatters.com/post/are-the-menendez-and-cuellar-fara-charges-unconstitutional), though it's unclear if the FARA/§219 count was resolved by plea or trial at that point. This case is historic as the first known prosecution of a sitting U.S. Senator under 18 U.S.C. § 219 (which incorporates FARA's agency definition for public officials). It demonstrates zero tolerance for undisclosed foreign alignment by policymakers. However, it also raises profound constitutional questions (addressed below). - **Rep. [[Henry Cuellar]] (2024):** Likewise, Rep. [[Henry Cuellar]] of Texas was indicted in [[May 2024]] for, inter alia, [violating the ban on acting as a foreign agent (18 U.S.C. § 219) by allegedly accepting bribes from entities tied to Azerbaijan and Mexico](https://www.justice.gov/nsd-fara/recent-cases) in exchange for influencing U.S. policy in their favor. This and the [[Robert Menendez]] case underscore that [[DOJ]] is willing to bring FARA-related charges at the highest levels of government when backed by evidence of quid pro quo corruption. - **[[Sue Mi Terry]] (2024):** In [[July 2024]], [[Sue Mi Terry]], a former [[CIA]] analyst and Korea expert, was [indicted for substantive FARA violations, accused of secretly acting as an agent of the South Korean intelligence service](https://www.justice.gov/nsd-fara/recent-cases) after she left U.S. government employment. The indictment alleges she [advocated for Korean policy positions, arranged access to U.S. officials, and even hosted events for congressional staff at the behest of her ROK handlers](https://www.justice.gov/nsd-fara/recent-cases), in exchange for benefits (luxury gifts, funding for her think-tank program). This case, coming to light in 2025, shows FARA being used to address foreign influence in the think tank and academic realm. It also drew criticism from civil liberties groups -- the [[ACLU]] and Knight Institute [filed an amicus brief warning that an overly broad reading of FARA in this case could chill legitimate speech by scholars and journalists](https://www.aclu.org/press-releases/aclu-and-knight-institute-urge-court-to-construe-foreign-agent-registration-act-narrowly) who interact with foreign sources. - **Other Enforcement:** Not every FARA enforcement is a criminal trial. [[DOJ]] has also stepped up civil enforcement. For example, in [[October 2023]], [[DOJ]] obtained a [default judgment (civil injunction) against a U.S. organization **(Federación de Alcaldes Pedáneos)** that had failed to comply with registration and reporting](https://www.justice.gov/nsd-fara/recent-cases) despite warnings. The court [enjoined the group from acting on behalf of its foreign principals](https://www.justice.gov/nsd-fara/recent-cases) until it cured its FARA deficiencies. Additionally, [[DOJ]] has leveraged Deferred Prosecution Agreements (DPAs) in some cases -- e.g., lobbyists **[[Barry Bennett]] and [[Doug Watts]]** in 2024 [avoided indictment by admitting to a FARA violation (running a secret smear campaign on behalf of a foreign government through an unregistered entity) and agreeing to pay fines](https://www.justice.gov/nsd-fara/recent-cases) and retroactively register. These tools show [[DOJ]]'s holistic approach: not every case goes to trial; some are resolved by bringing individuals or entities into compliance and penalizing them lightly, particularly where the violation can be corrected. **Trend:** The pattern of recent cases reveals [[DOJ]]'s emphasis on using FARA to combat "malign foreign influence," whether in elections (as with [Russian trolls indicted for social media influence in 2024](https://www.mayerbrown.com/en/insights/publications/2024/09/us-justice-department-continues-focus-on-criminal-enforcement-of-fara)), corruption of officials ([[Robert Menendez]], [[Henry Cuellar]]), or [covert propaganda (RT operative indictments)](https://www.mayerbrown.com/en/insights/publications/2024/09/us-justice-department-continues-focus-on-criminal-enforcement-of-fara). While early results were mixed (some high-profile acquittals), the overall trajectory is aggressive enforcement. According to a [[September 2024]] legal update, ["[[DOJ]]'s use of FARA as a predicate to prosecute foreign influence activity has not slowed, despite prior losses in some cases."](https://www.mayerbrown.com/en/insights/publications/2024/09/us-justice-department-continues-focus-on-criminal-enforcement-of-fara) Public officials, media platforms, and lobbyists have all been warned to tighten compliance, as FARA ["reaches well beyond traditional lobbying activity" and can apply to any "broad range of activities designed to shape US public opinion and policy."](https://www.mayerbrown.com/en/insights/publications/2024/09/us-justice-department-continues-focus-on-criminal-enforcement-of-fara) Indeed, FARA's mandate is transparency, but the recent prosecutions make clear that failing to uphold that transparency can result in severe legal consequences. ## Constitutional Implications of FARA: First Amendment and Due Process FARA strikes a delicate balance between national security/transparency interests and constitutional freedoms. By compelling disclosure of certain political expression and association, FARA raises First Amendment issues, and its broad definitions invite vagueness challenges under the Fifth Amendment's due process clause. Here we examine these concerns, including originalist and conservative perspectives on the statute's legitimacy. ### First Amendment: Free Speech and Association **Disclosure vs. Suppression:** FARA does not outright ban speech or political advocacy by or for foreign principals; rather, it requires disclosure and labeling of such advocacy. The Supreme Court has generally treated disclosure requirements more leniently than direct restrictions on speech. In the seminal case **[[Meese v. Keene]] (1987)**, the Court [upheld FARA's requirement that certain foreign informational materials be labeled as "political propaganda"](https://firstamendment.mtsu.edu/article/meese-v-keene/) (a term since removed from the statute). The plaintiff, a California state senator, argued this compelled pejorative labeling chilled his desire to exhibit foreign films. The Court disagreed, finding that ["the Act neither inhibits...access to the films nor prohibits, edits, or restrains distribution... it simply requires the disseminators of propaganda to make additional disclosures... and thereby actually fosters freedom of speech."](https://supreme.justia.com/cases/federal/us/481/465/) In other words, because FARA's mechanism is to inform the public rather than silence the speaker, it was deemed a permissible regulation. The Court noted that [providing audiences with information about the source of speech (foreign government sponsorship) helps the audience evaluate it, which is consistent with First Amendment values](https://supreme.justia.com/cases/federal/us/481/465/). This reasoning aligns with originalist and conservative approaches that favor transparency and counterspeech over censorship -- the idea being that sunlight and robust debate are the remedy for disfavored speech, not banning the speech. **Chilling Effect and Overbreadth:** Despite FARA's intent as a disclosure law, critics argue that it can still chill speech. Registration as a "foreign agent" carries stigma that might [deter individuals from engaging in activity that could even remotely trigger the law](https://www.congress.gov/117/meeting/house/114580/witnesses/HHRG-117-JU10-Wstate-RobinsonN-20220405.pdf). For example, [nonprofit organizations have voiced concern that being labeled a foreign agent implies subversive or "nefarious" intent, damaging their reputation and undermining their independent advocacy](https://www.congress.gov/117/meeting/house/114580/witnesses/HHRG-117-JU10-Wstate-RobinsonN-20220405.pdf). This fear can cause self-censorship: a journalist or academic may avoid even legitimate collaboration with foreign colleagues lest they be ensnared by FARA. The First Amendment is implicated if a law is overbroad enough to deter or punish a substantial amount of protected speech. Civil liberties groups like the [[ACLU]] argue that FARA's ["sweeping terms could be read to apply to speakers with only a minimal connection to foreign entities," thus "impos[ing] serious burdens on speech"](https://www.aclu.org/press-releases/aclu-and-knight-institute-urge-court-to-construe-foreign-agent-registration-act-narrowly) and enabling selective enforcement based on viewpoint. For instance, an American editor who publishes op-eds from foreign contributors or a policy analyst who accepts research funding from a foreign university might technically fall under FARA if they "act at the request" of the foreign source in influencing public debate. The **Knight First Amendment Institute** warned in 2021-2022 that FARA, if too broadly construed, ["could chill a wide range of speech on issues of public concern"](https://www.aclu.org/press-releases/aclu-and-knight-institute-urge-court-to-construe-foreign-agent-registration-act-narrowly) by tagging it as foreign-sponsored and threatening criminal penalties. These arguments raise First Amendment concerns in two flavors: **compelled speech** (being forced to speak by registering and labeling one's materials) and **free association** (the government effectively penalizing association with foreign organizations by requiring stigmatizing disclosure). However, the counterargument -- and thus far the legal consensus -- is that FARA's requirements are content-neutral and serve a substantial government interest (transparency of foreign influence). Under intermediate scrutiny (the usual standard for disclosure laws), FARA is viewed as [narrowly tailored to serve the interest of informing the public about foreign propaganda](https://supreme.justia.com/cases/federal/us/481/465/). In **[[Meese v. Keene]]**, the Court explicitly rejected the notion that the term "political propaganda" was an unconstitutional stigma, noting the statutory definition ["includes materials that are completely accurate and merit the highest respect"](https://supreme.justia.com/cases/federal/us/481/465/), and that any public misconception about the label did not equate to a First Amendment violation. Congress later heeded the optics by [amending FARA in 1995 to replace "political propaganda" with the more neutral term "informational materials"](https://scholarship.law.edu/cgi/viewcontent.cgi?article=3738&context=lawreview), reducing the pejorative connotation. **Compelled Disclosures and NAACP v. Alabama Analogy:** Another constitutional dimension is whether FARA's registration requirement unduly infringes on the right to anonymous speech or association. Some have analogized FARA to laws requiring donor disclosure or membership lists, which the Supreme Court has struck down when they harm First Amendment associational privacy (e.g., _NAACP v. Alabama_, where forced disclosure of NAACP's members was disallowed). In _Americans for Prosperity Foundation v. Bonta_ (2021), the Supreme Court invalidated a California mandate that charities disclose major donors to the state, applying exacting scrutiny and finding the law overbroad in chilling association. FARA could be seen in a similar light: it compels individuals to publicly identify themselves (and a host of detailed activities/contacts) as foreign agents, which could deter associations. However, there are key distinctions: FARA targets those actively engaged in influencing public discourse or policy on behalf of foreign powers, an area where the government's interest (guarding against foreign stealth influence) is arguably at its zenith. Moreover, historically, courts have been more willing to uphold disclosure in the context of lobbying and electioneering (see _Buckley v. Valeo_ upholding campaign finance disclosures) than in purely private association. To date, no court has struck down FARA on First Amendment grounds, but the issue remains one to watch, especially if enforcement extends to journalists or NGOs whose missions overlap with foreign entities. From an originalist or conservative vantage, one could argue that the Founders were deeply concerned about foreign influence ([[George Washington]]'s Farewell Address famously warned of "the insidious wiles of foreign influence"). FARA's disclosure mandate can be seen as aligned with that original concern: ensuring the republic knows when foreign powers seek to sway its decisions. Originalist jurists might point out that early Congresses passed laws like the Logan Act (1799) to curb unauthorized negotiation with foreign governments, indicating a longstanding acceptance that government can restrain or expose certain foreign-influence activities consistent with the First Amendment as originally understood (notably, the First Amendment did not prevent the Alien Friends Act of 1798, which allowed the President to expel foreign agents deemed dangerous -- a far more drastic measure than FARA's disclosures). Thus, an originalist defense of FARA would emphasize that requiring transparency does not equal suppressing speech, and the statute operates in a realm (foreign relations and national security) where the federal government has heightened authority. ### Due Process: Vagueness and Fair Notice Because FARA carries criminal penalties, the **void-for-vagueness doctrine** requires that its terms be clear enough that an ordinary person can understand what is prohibited (or required) and that it not encourage arbitrary enforcement. FARA's breadth and somewhat archaic language have prompted vagueness challenges. Phrases like "at the request of", "control", "political propaganda" (in older version), and even the scienter "willfully" could be attacked as insufficiently precise. A present concern is the scenario of public officials being charged under 18 U.S.C. § 219 for acting as foreign agents. As one commentator noted, ["219 [incorporating FARA] creates the possibility that any Member of Congress who advocates for any legislation at the 'request' of a foreign leader could be committing a felony"](https://www.briberymatters.com/post/are-the-menendez-and-cuellar-fara-charges-unconstitutional), because members cannot register as foreign agents at all. For example, if the Israeli Prime Minister or Ukrainian President personally asks a U.S. senator to support a bill beneficial to their country, does the mere act of advocacy following that "request" make the senator a criminal agent of a foreign principal? The statute, read literally, suggests yes -- [no quid pro quo or corruption needed](https://www.briberymatters.com/post/are-the-menendez-and-cuellar-fara-charges-unconstitutional). This literal breadth led [[Tom Firestone]] (a former federal prosecutor) to observe that ["FARA is extremely broad and includes simply acting at the 'request' of a foreign principal with no requirement of a bribe, quid pro quo, or violation of official duty"](https://www.briberymatters.com/post/are-the-menendez-and-cuellar-fara-charges-unconstitutional), a state of affairs he calls "astonishing". Such a low threshold could be void for vagueness or at least prone to arbitrary enforcement: almost any diplomat-to-legislator communication involves requests or suggestions. The [[Robert Menendez]] case tested some of these arguments. [[Robert Menendez]]'s team hinted at vagueness, though they focused more on Speech or Debate. The court did not directly rule on vagueness, but the fact pattern (alleged bribes in exchange for advocacy) was egregious enough that it likely mooted the "mere request" issue -- [[Robert Menendez]] wasn't charged just for taking a meeting; he was charged for a corrupt agreement. But consider a hypothetical less corrupt case: if a member of Congress, out of genuine policy alignment, cooperates with a foreign embassy's request to champion a resolution (with no personal gain), could that be prosecuted? In theory yes, under a maximalist reading, but such a prosecution would raise serious constitutional doubts. The lack of any requirement in §219/FARA that the foreign influence be the primary or decisive factor in the official's action, or that the official act with bad intent, [leaves much to prosecutorial discretion](https://www.briberymatters.com/post/are-the-menendez-and-cuellar-fara-charges-unconstitutional). Vagueness doctrine frowns on statutes that delegate too much interpretive leeway to prosecutors, especially if they can target political opponents. Another vagueness angle is for private actors: FARA does not clearly define how much "direction" or "request" is needed to constitute acting as an agent. Nor does it clarify what it means to act "in the interests of" a foreign principal -- is it enough that the foreign entity benefited, or must the agent have the purpose to serve the foreign interest? The statute says ["believes will, or intends to, in any way influence"](https://www.briberymatters.com/post/are-the-menendez-and-cuellar-fara-charges-unconstitutional) U.S. opinions or policy, which could sweep in activity not actually coordinated with a foreign power. The enforcement history shows [[DOJ]] tends to proceed where evidence of actual coordination exists (to avoid vagueness issues), but the text itself could be applied broadly. The Knight Institute's amicus in the [[Sue Mi Terry]] case argued for a [narrow construction of FARA to avoid these problems](https://www.aclu.org/press-releases/aclu-and-knight-institute-urge-court-to-construe-foreign-agent-registration-act-narrowly) -- essentially urging the court to require a tight nexus (actual control or formal agency) so that people have clearer notice of when the law applies. So far, FARA has withstood vagueness challenges in court. One reason is that courts can rely on narrowing interpretations or scienter requirements to save a statute. The willfulness element provides some protection: even if "request" is broad, the government must prove the defendant knew their conduct was unlawful, which mitigates the lack of clarity to a degree. Additionally, the [[DOJ]]'s advisory opinions and decades of practice give content to fuzzy terms -- in ambiguous situations, persons can seek [[DOJ]]'s guidance, undercutting a claim of no fair notice. However, as FARA is applied in novel contexts (like members of Congress, journalists, digital influencers), the likelihood of a successful vagueness or overbreadth claim increases. ### Originalist and Conservative Critiques or Defenses From a conservative or originalist perspective, FARA garners both support and criticism. **Support/Defense:** Many conservatives embrace FARA's underlying goal: putting "America First" by exposing and deterring foreign government meddling in our political process. They point out that the principle of sovereignty allows -- even obliges -- a nation to insist that foreign powers be transparent when trying to influence its policies. Historically, the Founders would not have countenanced secret foreign agents operating with impunity; they enacted laws like the Alien Enemies Act and had intense suspicion of foreign agents (e.g., Citizen Genet's scandal in 1793). Thus, an originalist could argue that FARA's basic concept is consistent with the original public understanding of the First Amendment, which did not protect covert speech on behalf of hostile foreign powers. Furthermore, FARA does not ban any viewpoint -- a foreign agent advocating for a pro-American policy must register just as one advocating an anti-American policy -- so it is content-neutral. Conservative legal scholars often favor disclosure in campaign finance (as Justice [[Antonin Scalia]] once wrote, "requiring people to stand up in public for their political acts fosters civic courage"). By analogy, requiring foreign agents to stand up and be counted can be seen as fostering informed debate and protecting the republic. **Critiques:** On the other hand, a conservative critique (often overlapping with libertarian views) is wary of FARA's potential for abuse by the government. They stress that any law with criminal penalties that hinges on ill-defined terms like "political activities" or treats innocent conduct (like meeting with a foreign official) as criminal absent registration can be a trap for the unwary and a tool for targeting political enemies. The recent use of §219 against lawmakers raised alarm bells: A blog on "Bribery Matters" questioned whether prosecutors could wield this statute to go after members of Congress merely for policy positions and mused that ["in an era of increasing concern on both sides of the aisle about weaponization of criminal justice, Congress should act to either repeal or clarify this vague and potentially dangerous statute."](https://www.briberymatters.com/post/are-the-menendez-and-cuellar-fara-charges-unconstitutional) That sentiment echoes a broader conservative concern about overcriminalization -- FARA potentially criminalizes a lot of conduct that isn't inherently wrongful (it's not always wrong to agree with or even coordinate with foreign officials, especially allies, on policy goals). The "America First" doctrine, while firmly against clandestine foreign subversion, also preaches skepticism of expansive government regulation that could ensnare patriotic Americans (for instance, someone advocating a pro-Israel position because of genuine belief might resent being called a "foreign agent" because they took guidance from an Israeli diplomat). Originalists also consider whether the power claimed by FARA aligns with the Constitution's allocation of powers. The Speech or Debate Clause issue is one: an originalist judge might ask whether Congress, by empowering the Executive to police members' interactions with foreign officials, ceded too much that could intrude on legislative independence. In [[Robert Menendez]]'s case, the court [reasoned Congress has the authority to self-regulate by statute in this area](https://www.briberymatters.com/post/are-the-menendez-and-cuellar-fara-charges-unconstitutional), which is true, but the novelty of charging legislative acts under a criminal statute might not sit well with those favoring a strict separation of branches. In sum, the consensus among courts is that **FARA is constitutional but must be interpreted carefully.** It's seen as a valid exercise of Congress's power to defend the nation from foreign influence and to require transparency (a minimally invasive measure relative to outright bans). To maintain that constitutional balance, both [[DOJ]] and courts often emphasize narrowing constructions: e.g., not charging borderline cases, interpreting "agent" to imply some knowing direction, and allowing exemptions for legitimate activities. Conservative jurists have largely accepted FARA as written; for example, the late Justice [[Antonin Scalia]] joined the majority in _[[Meese v. Keene]]_ upholding the Act, and lower court judges appointed by conservative administrations have enforced FARA charges (the Fourth Circuit panel reinstating [[Bijan Rafiekian]]'s conviction included Judge [[J. Harvie Wilkinson III]], a [[Ronald Reagan]] appointee, who found the evidence sufficient and the law workable). However, as FARA enforcement expands, continued vigilance is urged. The [[ACLU]]'s warning in Dr. [[Sue Mi Terry]]'s case -- that ["over the last decade, the government has increasingly invoked FARA to stigmatize, stifle, and suppress viewpoints it doesn't like"](https://www.aclu.org/press-releases/aclu-and-knight-institute-urge-court-to-construe-foreign-agent-registration-act-narrowly) -- resonates with civil libertarians on both the left and right. An originalist might respond that the solution is to enforce FARA as written (target actual agency relationships, not mere policy agreement) and for Congress to refine the statute if it proves too broad. Indeed, the trial judge in [[Robert Menendez]]'s case noted, almost pointedly, that if the statute's reach is worrisome, ["Congress can always amend the statute if it so chooses."](https://www.briberymatters.com/post/are-the-menendez-and-cuellar-fara-charges-unconstitutional) This suggests that the judiciary will uphold FARA against constitutional attack but leaves it to the political branches to address any overbreadth. ### Due Process in Enforcement One final constitutional aspect is due process in terms of enforcement consistency. Historically, FARA was enforced sparingly, which could give rise to an argument that suddenly cracking down (without new legislation) is arbitrary. While not a strong legal defense, it is a talking point: selective revival of a dormant law can appear unfair. The [[DOJ]] has countered this by publicizing its intent (e.g., the FARA Unit's public speeches, the [[Paul Manafort]] case publicity) so that no one can claim to be blind-sided. Nonetheless, fairness dictates that [[DOJ]] apply FARA evenhandedly -- not just to one political faction. A truly "America First" application would mean going after any unregistered agent, whether pushing the interests of China, Russia, or allies like Israel or Ukraine, if the legal elements are met. In practice, recent cases have spanned a range of countries and both major U.S. political parties, though observers will no doubt scrutinize whom [[DOJ]] chooses to charge under FARA. ## Hypothetical Application to Politicians -- Charges and Defenses (Originalist "America First" Lens) **Background:** U.S. politicians present a special case under FARA. As noted, a sitting public official cannot register under FARA; instead, [18 U.S.C. § 219 makes it illegal for them to act as an agent of a foreign principal at all](https://www.briberymatters.com/post/are-the-menendez-and-cuellar-fara-charges-unconstitutional). This statute essentially extends FARA's reach into the halls of government, preventing divided loyalties. Recent indictments of Senator [[Robert Menendez]] and Rep. [[Henry Cuellar]] illustrate how these charges play out: the officials were accused of [accepting money or benefits in exchange for using their office to influence policy for a foreign government's benefit](https://www.justice.gov/nsd-fara/recent-cases). **Hypothetical Scenario:** Imagine a U.S. Senator -- call him Senator X -- who is a staunch advocate for Country Y (a foreign nation). Senator X frequently meets with Country Y's ambassador, receives talking points, and indeed coordinates his floor speeches and committee votes to align with requests from Country Y's officials. In return, let's assume (for this hypothetical) that Senator X's campaign receives substantial donations bundled by pro-Country Y lobbyists, and perhaps Senator X enjoys lavish hospitality on trips to Country Y. No formal "contract" exists between Senator X and Country Y, but there is an understanding that he will champion their interests. Under these facts, Senator X could face charges under 18 U.S.C. § 219 (for acting as an agent of a foreign principal without authorization). The government's case would be that Country Y, through its ambassador, was effectively "directing" or "requesting" X's actions on specific matters -- making X an unregistered agent. The evidence might include emails or text messages where the ambassador says "We would really appreciate your support on [Policy issue]," followed by the senator taking that exact action. If any quid pro quo is involved (e.g., donations or gifts in exchange), bribery charges would accompany the FARA charge, but even without explicit bribery, §219 could apply just based on the [pattern of coordination](https://www.briberymatters.com/post/are-the-menendez-and-cuellar-fara-charges-unconstitutional). **Potential Charges:** Beyond §219 (for the official), any associates or staff aiding the scheme could be charged under FARA itself (if they are private persons facilitating the influence) or as conspirators to violate FARA. For instance, if Senator X's chief of staff privately liaised with Country Y's embassy to draft statements, that staffer might be charged under 18 U.S.C. § 371 (conspiracy) to violate FARA. If Senator X had left office and then lobbied for Country Y without registering, he could be charged under the standard FARA provisions (22 U.S.C. § 618). An "America First" prosecutor -- prioritizing U.S. sovereignty -- would feel justified in bringing such charges: an elected official doing the bidding of a foreign government strikes at the heart of self-governance. They might invoke rhetoric of the Founders' fears of foreign intrigue. Legally, the charges reinforce the principle that U.S. officials' duty is to the United States alone, and secrecy about foreign sponsorship is intolerable. **Plausible Defenses for the Politician:** Senator X (or his legal team) would mount a vigorous defense, likely including: - **No Agency / No Agreement:** Senator X would argue that he never agreed to be an agent of Country Y -- any alignment was due to shared policy goals or constituent interests. _Merely listening to a foreign official's concerns and then acting in a way that coincides with them is not a crime_, he'd assert, absent an explicit pact or control. He might analogize to advocacy by domestic lobbyists: if a senator supports a bill after meeting an industry lobbyist, that doesn't make him the lobbyist's "agent." Why should it be different with a foreign diplomat's request, especially if it aligns with U.S. interests as Senator X sees them? Essentially, he'd contest the "direction or control" element, claiming independent judgment. - **Speech or Debate Clause:** If any of the alleged acts occurred in the course of legislative duties (voting on a bill, making a speech, introducing legislation), Senator X would invoke the Speech or Debate Clause immunity. This could bar the prosecution from using evidence of those legislative acts or perhaps quash the charge insofar as it rests on core legislative functions. In [[Robert Menendez]], the court [did not accept Speech or Debate as a shield for broad foreign-agent conduct](https://www.briberymatters.com/post/are-the-menendez-and-cuellar-fara-charges-unconstitutional), but every case depends on specifics. Senator X might argue that punishing him for a floor speech content (even if influenced by a foreign request) directly impinges on legislative freedom. The prosecution would counter that the charge is about the _agreement_ with a foreign power, not the speech itself, and thus circumvent Speech or Debate (this is a legally nuanced battle). - **Vagueness / Lack of Notice:** As discussed, Senator X could claim §219 is unconstitutionally vague as applied to him. How is he to know when accommodating a foreign ally's policy preference crosses into criminal territory? There's no obvious line -- no dollar threshold, no requirement of personal benefit in §219. An originalist judge might find merit in this: laws that potentially criminalize routine political interactions are suspect. Senator X would underscore that in 50+ years, no member of Congress was prosecuted under this law until now, implying it was not understood to reach such behavior. This defense aims either to dismiss the charge or, more likely, to sway a jury that this feels like an unfair stretching of the law (jury nullification potential, essentially). - **First Amendment (Petitioning/Political Speech):** Though a weaker argument for a sitting official (since the First Amendment does not clearly cover official acts), Senator X might raise a public defense that punishing him criminally for advocating a certain foreign policy position violates the First Amendment and the will of his voters who elected him to take those positions. He might frame it as the [[DOJ]] criminalizing a policy viewpoint (e.g., "Senator prosecuted for being pro-[Country Y]"). This is more of a rhetorical defense, but it could resonate with a jury if they sense partisanship or selective enforcement. - **Selective Enforcement:** If Senator X is from Party A and can show that senators from Party B also frequently take cues from foreign allies but haven't been charged, he might argue the prosecution is selective. For example, he could point to numerous instances of U.S. politicians coordinating with, say, Israel or European allies on policy. Without an illicit quid pro quo, those have never been prosecuted. Why him, why now, and why Country Y? This ties into the vagueness argument: the law's breadth allows picking and choosing targets, and here the government may be weaponizing it. While hard to win legally, raising this could at least cast doubt on the propriety of the prosecution. From an "America First, originalist" perspective, one can see two sides: **Pro-charge** -- the statute is there to prevent even the appearance of foreign puppetry in our government; a true America First stance means no tolerated foreign control over our officials, so the charges are valid to set an example. **Pro-defense** -- originalism values the structure of the Constitution, which shields legislators in their policymaking and expects Congress to handle member discipline. If every interaction with a foreign official can become a crime, that might deter healthy diplomacy and give the Executive too much power over Congress (imagine a president's [[DOJ]] threatening opposition lawmakers who correspond with foreign envoys). Also, foreign policy often requires collaboration with allies; an originalist might note that early Congressmen certainly talked with foreign emissaries -- criminalizing that might overshoot. The conservative critique highlighted by [[Tom Firestone]] is that §219 has ["astonishing breadth"](https://www.briberymatters.com/post/are-the-menendez-and-cuellar-fara-charges-unconstitutional) and perhaps Congress never anticipated using it in scenarios short of clear treachery. An America First originalist might thus urge reforming the law to require proof of a quid pro quo or some tangible arrangement, rather than mere requests, to convict an official. **Likely Outcome:** In a hypothetical like Senator X's, if there were indeed significant benefits (money/gifts) flowing and clear evidence of action-at-request, [[DOJ]] would likely secure a conviction, as in [[Robert Menendez]]'s bribery-linked case (jurors dislike corruption). If it were truly just policy coordination without personal gain, [[DOJ]] might hesitate to charge in the first place; but if they did, a jury might be uncomfortable criminalizing it and an acquittal could result (a la [[Tom Barrack]], where jurors [did not see "nefarious" intent](https://www.reuters.com/legal/trump-ally-barrack-acquitted-acting-uae-foreign-agent-2022-11-04/)). The statute's vagueness in that context could indirectly lead to an acquittal due to reasonable doubt. In any event, this hypothetical underscores the importance of _clarity and restraint_ in applying FARA to politicians. An originalist approach would likely call for a narrow application -- punishing plainly wrongful conduct (secret payoffs, explicit agreements to serve a foreign government) but not ordinary interactions or parallel advocacy. The courts, so far, seem to be walking this line: upholding charges where there is clear evidence of a conspiracy with foreign principals (e.g., hiding money, secret agreements), but one can imagine judicial discomfort if a case ever approached the "mere request" scenario without more. The ideal "America First" resolution might be Congress amending FARA/§219 to clarify that only knowing and _significantly guided_ influence (especially accompanied by reward) is criminal -- thus aligning the statute with common sense and constitutional limits. Until then, the existing law stands, and both prosecutors and officials must navigate its broad language carefully. **Sources:** The analysis above is informed by the [FARA statute (22 U.S.C. §§ 611--621)](https://www.govinfo.gov/content/pkg/USCODE-2014-title22/html/USCODE-2014-title22-chap11.htm), [[[DOJ]] regulations and guidance](https://www.justice.gov/archives/usam/criminal-resource-manual-2062-foreign-agents-registration-act-enforcement), recent court cases including _[[Meese v. Keene]]_, 481 U.S. 465 (1987), the [Fourth Circuit's decision in _U.S. v. Rafiekian_](https://www.fara.us/flynn-associate-fara-conviction-overturned), and a host of [recent enforcement examples documented by [[DOJ]] and news outlets](https://www.justice.gov/nsd-fara/recent-cases). Conservative commentary (e.g., [[Tom Firestone]]'s critique) provides insight into [originalist concerns with applying FARA to lawmakers](https://www.briberymatters.com/post/are-the-menendez-and-cuellar-fara-charges-unconstitutional), while civil liberties groups highlight [First Amendment issues with FARA's broad scope](https://www.aclu.org/press-releases/aclu-and-knight-institute-urge-court-to-construe-foreign-agent-registration-act-narrowly). All these sources collectively paint a picture of a statute that is powerful and necessary for transparency, yet one that must be executed with precision to remain within constitutional bounds.