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The Foreign Agents Registration Act (FARA) Unit recently announced an update to its eFile system,
"which requires registrants to submit data through a
self-guided, web-based questionnaire, rather than uploading
PDFs." This system will standardize the content of filings
submitted to the FARA Unit. Historically, registrants registered
and submitted periodic reports by filling out and uploading PDFs,
which allowed registrants great leeway in terms of completing the
forms. Naturally, some registrants provided great detail into their
activities for a foreign principal, while others provided vague,
high-level responses, or skipped answering certain questions all
together. Now, registrants will have to answer each question
presented in the electronic platform prior to submitting. Filers
are also required to submit a scanned document with a wet signature
– electronic signatures are no longer accepted. This update
only applies to persons or entities not currently registered with
the FARA Unit as an agent of a foreign principal. Until the next
phase is complete, all other FARA filings will be submitted using
the existing eFile system.
This is yet another example of the FARA Unit's ramped up
enforcement efforts. In 2016, the Department of Justice (DOJ)
signaled its renewed focus on enforcing the Foreign Agents
Registration Act of 1938 when the Office of the Inspector General
issued an audit report critical of the FARA Unit's lack of
enforcement. Then came the Mueller investigation, which resulted in
several high-profile cases, such as the (former White House Counsel
and Skadden attorney) Greg Craig and Bijan Kian trials.
The scrutiny of Craig started when federal investigators began
investigating Paul Manafort for his work on behalf of a pro-Russian
political party in Ukraine. The government argued that Craig
intentionally misled DOJ officials in terms of his work performed
for the Ukrainian government. After a three-week trial, the jury
ultimately acquitted Craig because it was dissatisfied with
evidence presented against him supporting the theory that there
were direct agreements between foreign agents and their
principals.
In late September, a federal judge threw out the conviction of
Bijan Kian, a former business partner of former national security
adviser Michael Flynn. The judge concluded that even though
prosecution had secured a guilty verdict, it had not presented
sufficient evidence to sustain charges that Kian lobbied for
Turkey.
In light of the lessons learned from recent litigation, and the
spring 2019 appointment of Brandon Van Grack as the Chief of the
FARA Unit, there is no doubt we will continue to see changes in the
way the government utilizes its FARA enforcement tools in the
future. Individuals and organizations representing foreign
principals, or contemplating such representation, should ensure
they are aware of all recent FARA developments in order to confirm
compliance.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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