On her first day in office, new U.S. Attorney General Pamela Bondi issued a wide-ranging formal Memorandum that includes an important section related to FARA:
Shifting Resources in the National Security Division. To free resources to address more pressing priorities, and end risks of further weaponization and abuses of prosecutorial discretion, the Foreign Influence Task Force shall be disbanded. Recourse to criminal charges under the Foreign Agents Registration Act (FARA) and 18 U.S.C. § 951 shall be limited to instances of alleged conduct similar to more traditional espionage by foreign government actors. With respect to FARA and § 951, the Counterintelligence and Export Control Section, including the FARA Unit, shall focus on civil enforcement, regulatory initiatives, and public guidance.
These constraints are a marked departure from the Department of Justice's prior posture, under which FARA was a stated enforcement priority.
The Memorandum notably stipulates that criminal charges may not be brought under FARA or its "sister statute" at 18 U.S.C. § 951 unless the alleged conduct is "similar to more traditional espionage by foreign government actors." While it is not entirely certain what actions would qualify as "similar to more traditional espionage," this passage does appear to limit the ability of Department prosecutors to criminally charge those involved in commercial activity, public-relations work, and policy advocacy on behalf of foreign businesses and nonprofits. It is unclear whether those working on behalf of foreign governments and/or foreign political parties could be charged for failing to register for similar activities.
The Memorandum also directs the Department of Justice to "focus on civil enforcement, regulatory initiatives, and public guidance" with regard to FARA. Directionally, this seems to be a return of FARA enforcement to its "pre-Mueller" era, when the outcome of most enforcement processes was voluntary retroactive registration. The Department's civil enforcement authority is limited to seeking a civil court order "enjoining [a] person from continuing to act as an agent" or "requiring compliance" with the statute. (The Department does not have authority to impose civil fines, but it has previously secured settlements that include the payment of fines or the disgorgement of prior fees earned.) The Memorandum's approval of "regulatory initiatives" presumably allows the Department's multiyear rulemaking effort to continue moving forward, but its mandated focus on foreign government actors likely means that the Department's more controversial proposals that would require FARA registration from agents of private businesses and NGOs are now off the table.
The Memorandum should not be read as ending all FARA enforcement. The Department will likely continue to send Letters of Inquiry and conduct inspections. The Memorandum also does not purport to override any prior interpretation or application of the statute. Its restrictions on criminal charges are couched as a resource-preservation effort and as a reset of constraints on the discretion of line prosecutors in this area. This means the Attorney General could have a free hand to rescind the Memorandum in the future or to criminally charge any conduct that she decides is a willful violation of the statute.
This article is designed to give general information on the developments covered, not to serve as legal advice related to specific situations or as a legal opinion. Counsel should be consulted for legal advice.
