The Foreign Agent Registration Act (FARA) continues to get attention as the Department of Justice (DOJ) issues more advisory opinions. FARA is the U.S. statute that requires a person to register with the Department of Justice when engaged on behalf of a foreign principal in certain registrable activities aimed at influencing U.S. public opinion, policy, and laws.

Perhaps as a consequence of the current political environment, the DOJ has been taking an increasingly aggressive interpretation of the statute in its advisory opinions, particularly concerning the scope of activities that trigger registration. While these advisory opinions are not binding, they reflect the DOJ’s current views on the statute and likely approach to investigations. Below are summaries of a few advisory opinions that highlight the DOJ’s broad reading of FARA:

Advisory Opinion to Law Firm

The FARA Unit concluded in an advisory opinion on April 21, 2020, that the majority of work a U.S. law firm conducted on behalf of a foreign embassy required registration. At the request of the U.S. firm, the FARA Unit explained which conduct undertaken by the firm fell outside the parameters of the legal representation exemption and required registration under FARA.

The legal representation exemption, found under Section 3(g) of FARA, provides that a person is exempt from registration if they are “qualified to practice law” and “engage in the legal representation of a disclosed foreign principal before any court of law of the Government of the United States.” This exemption is not available to attorneys who “attempt to influence or persuade agency personnel or officials,” other than in the course of judicial proceedings, law enforcement inquiries, investigations, or agency proceedings.

In narrowly interpreting the legal representation exemption, the Unit found that the majority of the firm’s conduct would require registration, including: (1) “providing legal advice and analysis on law and policy” that “affect[ed] US-[foreign country] relations, such as . . . pending legislation, and executive decisions and policy;” (2) “attending regular meetings between Embassy officials and [foreign country]’s U.S. lobbyists where proposed legislation and legislative strategy are discussed;” (3) sharing a memo “prepared by the US firm with the foreign country’s lobbyists and public relations firm” that involves “pending legislation in the House of Representatives;” (4) drafting potential responses to media inquiries for the Embassy about litigation in which the US firm was counsel;” and (5) “providing the Embassy with written arguments against [the] passage of [a] resolution in the [US] House of Representatives.”*

The Unit also stated that the firm must not only disclose revenues or expenditures related to the registrable activities but that they are also required to disclose “all revenues and expenditures received from or spent on behalf of the [foreign government] through its Embassy” and “all activities undertaken” by the firm, even activities that did not fall within the scope of the statute.

This advisory opinion is notable for several reasons. First, the opinion covers a wide range of activities that law firms often engage in on behalf of foreign clients, and thereby provides insight into how the DOJ is likely to assess law firm representations of foreign principals in the future. Second, the DOJ found that most of the activities it considered require registration, even where the law firm’s activities were limited to providing internal guidance to its client, and notwithstanding that FARA has often been viewed as limited to public efforts to influence U.S. policy. Third, the opinion raises many interesting questions about the intersection of a disclosure statute like FARA and the attorney-client privilege, especially where the DOJ takes the position that once a law firm engages in a registrable activity on behalf of a client, the law firm is required to disclose all of its activities on behalf of the client, even those that are not subject to FARA.

Advisory Opinion to Non-Profit

In another opinion issued on March 13, 2020, the FARA Unit determined that a U.S. non-profit organization that received a grant from a foreign government entity to “serve . . . as a general contractor” on a program that focused on environmental issues was required to register under FARA.

Although the non-profit asserted that its agreement with the foreign government entity did not give the foreign government “any ability to direct or control” the organization, the FARA Unit disagreed. The Unit took the position that the non-profit was acting as an agent under the direction or control of the foreign government because “pursuant to the grant agreement” the non-profit was obligated to “engage in activities to advance the deforestation priorities of the [foreign government.]” Thus, the DOJ’s position appears to be that if a non-profit takes funds from a foreign government to carry out a pre-existing mission then the non-profit is required to register under FARA, even if the non-profit engages in similar activities on its own and through the receipt of funds from non-foreign sources.

The non-profit also argued that its interactions with the U.S. government were not inherently “political activities” because they had “nothing to do with formulating, adopting, or changing the domestic or foreign policies of the United States.” The Unit again disagreed, finding that as defined by Section 611(o) of FARA, the non-profit’s activities were “political activities” because they “directly advance[d] the product-sourcing practices that are in the political and public interests of, and are the policies of, the foreign government. . . .”

It is important for non-profits to be aware of this opinion, as they may be required to register under FARA, even if funding they receive from foreign governments is only part of the organization’s financial resources and the proposed work aligns with the non-profits existing mission.

Advisory Opinion to Firm Providing Media Relations

In a February 20, 2020, opinion, the FARA Unit advised that a firm that provides media relations to a foreign country’s U.S. ambassador” must register under FARA if the work provides “reputational benefits,” even if there is no outward interaction with the US government.

The firm provided “media relations and communications support” to the foreign county’s ambassador, as well as “related announcements about the activities of the [Foreign Country’s fund]” to support recovery efforts after a hurricane in the U.S. According to the FARA unit, such activities provided the foreign country with “obvious reputational benefits.” The firm’s work did not involve any direct interaction with the U.S. government.

The FARA Unit determined that registration was required because the firm was providing services as a “public-relations counsel” to the foreign country’s ambassador. As defined in Section 611(g), “public-relations counsel” includes any person who is engaged in “informing, advising or in any way representing a [foreign] principal in any public relations matter” that pertains to “political or public interests, policies, or relations” of the foreign principal. The Unit determined that this definition includes firms that provide “reputational benefits” to foreign countries by “advising and facilitating the [foreign country’s] interests” through various media outlets. The Unit’s interpretation of “public-relations counsel” raises the question of where the line is drawn for what activity is considered “political” and suggests that work that is categorized as “media relations” will now be encompassed within the definition of “public-relations counsel.”

While in the past many took the position that public-relations work did not trigger FARA absent a clear link to political ends (typically interactions with the U.S. government), the DOJ appears to be taking a broader interpretation where any activity on behalf of a foreign government that provides reputational benefits may require registration. This position would seem to dramatically expand the scope of FARA (assuming, of course, that the work does not fall within one of FARA’s exemptions).

Venable’s Political Law Group advises companies on all aspects of lobbying compliance. If you have a question about the Advisory Opinion, please contact an author.

*The FARA Unit found that the following conduct would qualify for the legal representation exemption: (1) evaluating the merits of initiating, defending, or undertaking particular litigation; (2) “attending meetings with the Department of Justice officials to discuss pending extradition requests filed by [the foreign government];” and (3) “participating in requests for legal assistance from the United States Government” made pursuant to a specific treaty.