Court Documents And Retroactive Registration Show Continued Focus On Expansive FARA Enforcement - Terrorism, Homeland Security & Defence

The U.S. Department of Justice's (DOJ) determined approach to identifying violations of the Foreign Agents Registration Act (FARA) shows no signs of slowing down. An inadvertently disclosed warrant revealed that John Allen, a retired four-star general and former president of the Brookings Institution, is under investigation for allegedly lobbying the U.S. government on behalf of Qatar without registering under FARA. The same day the Allen warrant became publicly known, The Washington Post reported that Christina Pushaw, current spokeswoman for Florida Governor Ron DeSantis, retroactively registered as an agent of former Georgian President Mikheil Saakashvili for work she performed on his behalf from 2018 to 2020. Pushaw registered after being contacted by DOJ.

These FARA enforcement activities—following DOJ's recent civil complaint against Steve Wynn—signal DOJ's firm commitment to robust FARA enforcement. These enforcement activities are also another example of the FARA Unit pursuing enforcement of FARA on an expansive agency theory involving "requests" by a foreign principal, apparently without any written agreement or direction or control. Moreover, the warrant against General Allen, who worked for the Brookings Institution throughout the alleged conduct and later served as its president, shows the FARA exposure that think tanks and other nonprofit organizations face as they navigate interactions with foreign officials.

General Allen's Conduct at the "Request" of Qatar

Allen is alleged to have secretly worked on behalf of the Qatari government to sway senior executive branch officials and members of Congress to aid Qatar in 2017, when several of its Gulf neighbors severed diplomatic relations and imposed a blockade against the country. According to the warrant affidavit—inadvertently released to the public docket of a federal district court in California—Allen both advised Qatar about how to engage the U.S. and directly lobbied senior U.S. officials on Qatar's behalf.

According to the affidavit, Richard Olson, the former U.S. Special Representative for Afghanistan and Pakistan and former U.S. Ambassador to Pakistan and the United Arab Emirates, and Imaad Zuberi, a California businessman with close ties to Qatari diplomats, allegedly recruited Allen to advise Qatari officials and use his connections in government to advocate on Qatar's behalf. Allen traveled to Qatar where he met with Qatar's Emir and the country's foreign and defense ministers. During these meetings and in subsequent communications, various Qatari officials "requested" that Allen petition senior U.S. government officials to advance Qatar's position. Allen allegedly acceded to these requests, at various points contacting then-National Security Advisor McMaster to advocate for particular statements from the administration, emailing Department of Defense officials to seek support for Qatar, and requesting meetings between McMaster and Qatar's foreign minister. Allen also met with various members of Congress with influential positions on the House Foreign Affairs Committee to advocate for Qatar.

Though the affidavit does not allege that Allen signed an employment contract or other formal agreement, Zuberi paid for Allen's travel to Qatar. Zuberi also agreed to pay Allen a $20,000 "speaking engagement" fee, though the affidavit does not indicate that the government has identified evidence that Allen was in fact paid this fee or otherwise directly compensated.

Allen purportedly never disclosed to U.S. officials that his services had been retained indirectly by a Qatari official, nor that he was compensated for his work. Moreover, after being served with a grand jury subpoena in June 2020, Allen failed to turn over documents relating his lobbying efforts (including copies of documents that the government had obtained from earlier subpoenas served on Zuberi, Olson, and others) and may have deleted many potentially incriminating emails.

Although a warrant affidavit may not contain all of the facts known to the government, it appears based on the affidavit that the Allen investigation is another high-profile instance of DOJ relying on a foreign official's "request" as the basis to allege that an individual acted as an "agent of a foreign principal" under FARA. The DOJ has long maintained that a mere request can create an agency relationship under FARA, especially when the agent is compensated for carrying out the request. However, both the DOJ and the few courts to have considered the scope of "request" have expressed some trepidation about its breadth, noting that "[t]he exact perimeters of a 'request' under [FARA] are difficult to locate." Alongside the Wynn complaint, which also relied solely on a "request" theory, the Allen affidavit underscores the DOJ's willingness to proceed despite potential legal uncertainty around the agency relationship that is the core of any FARA liability. Notably, the fact that Allen allegedly requested compensation for his work (and received first-class airfare to Doha from Zuberi) may provide a stronger basis for an agency relationship than a naked request.

Pushaw's Belated Registration

The same week that Allen's warrant affidavit was made public, Christina Pushaw, a spokeswoman for Florida Governor Ron DeSantis, retroactively registered as an agent of former Georgian President Mikheil Saakashvili for work she performed on his behalf. Aside from the timing, there is no indication that the retroactive registration is related to DOJ's investigation of Allen, but the registration offers a view into the various ways FARA may be enforced.

According to her retroactive filings and statements by her attorney, Christina Pushaw began working in the country of Georgia as a volunteer in 2018 but later was paid approximately $25,000 over two years to write op-eds, contact supporters and officials, and advocate on former Georgian President Mikheil Saakashvili's behalf in both Georgia and in the United States. Pushaw's aim was to raise Saakashvili's international profile to facilitate his return to Georgian politics. Saakashvili served as Georgia's president from 2004 until 2013, before entering Ukrainian politics in 2015. He was arrested upon returning to Georgia in 2021. Pushaw began working for Governor DeSantis in May 2021. Based on statements by her attorney, Pushaw registered after being contacted by the DOJ, suggesting that the FARA Unit may have sent her a letter of inquiry requesting information about her activities and/or a letter of determination, concluding that she had an obligation to register pursuant to FARA.

Key Takeaways

These developments underscore DOJ's continued robust FARA enforcement and serve as a reminder that:

Interaction with U.S. government officials and work on behalf of foreign governments, whether directly or indirectly, remain a core focus of DOJ's FARA enforcement efforts.
The DOJ is focused on, and intends to enforce, conduct undertaken at the "request" of a foreign entity. As with their civil enforcement action against Steve Wynn, the lack of a formal agreement is no impediment to investigation and potential prosecution.
Think tanks, foundations, non-profits, and other civil society organizations are not beyond the scope of FARA scrutiny. The same qualities that make these organizations effective advocates—their reputation, subject matter expertise, and connections to policymakers—also make them attractive targets for foreign influence. Coupled with the Department's focus on and expansive interpretation of "request," many interactions with foreign entities could potentially trigger FARA scrutiny.
- Think tanks and other non-profit organizations should be especially vigilant to the extent they receive funding from foreign sources. Both this affidavit and prior DOJ guidance indicates that the government is more likely to perceive an agency relationship when money exchanges hands.
- The materials also underscore the need for strong compliance programs. Indeed, the affidavit alleges that Allen structured some of his interactions with Zuberi and others to circumvent ethical restrictions imposed by the Brookings Institution and other companies with which he was affiliated.
The recent case against Wynn, a billionaire businessman, and investigation of Allen, a retired four-star general, demonstrate that the FARA Unit has the willingness and resources to pursue time-consuming investigations involving high-profile individuals and activity that dates back several years.
Candor and responsiveness to inquiries from the FARA Unit are critical to mitigating FARA risk. Allen increased his potential liability and scrutiny of his activities by allegedly providing false statements about his work for Qatar when questioned by law enforcement and failing to provide relevant documents in response to a subpoena. Conversely, Pushaw appears to have avoided any further consequences by retroactively registering after being contacted by the FARA Unit about her prior work.

Nicholas A. Weigel, a summer associate in Morrison Foerster's Washington D.C. office, contributed to this alert.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.