Today, Tom Barrack joined a growing list of Donald Trump’s affiliates to be indicted for acting as an agent of a foreign nation. Barrack was indicted under a law criminalizing acting as an agent of a foreign government without notifying the U.S. Attorney General. Previously, former Trump campaign chairman Paul Manafort, his deputy Rick Gates, and former Trump National Security Adviser Michael Flynn were charged under a cousin to that law, the Foreign Agents Registration Act. Barrack’s indictment highlights the Department of Justice’s increasing use of laws criminalizing acting as a foreign agent. It also spotlights the need to reform these laws to reduce foreign influence and improve national security.
Foreign Agents Registration Act
The Foreign Agents Registration Act (FARA) is the best-known statute dealing with criminalization of working as an agent for a foreign government. Congress passed FARA in 1938 amid great fear of overt and secret Nazi influence on U.S. soil. The law requires foreign agents to make regular disclosures to the Department of Justice (DoJ) about their relationship with the foreign principal. The agent must also disclose their activities, receipts, and any disbursements that support their activities on behalf of the foreign entity. Any willful violator may be subject to fines of up to $5,000 and up to 5 years in prison, or subject to deportation if they are an alien. Between 1966 and 2015, the DoJ brought only seven criminal FARA cases, and achieved only three convictions. Since the 2016 election, DoJ has sought to ramp up FARA prosecutions. The Department’s own website notes 10 prosecutions since 2016. The Department has also issued several advisory opinions including strict interpretations for registration of foreign agents, including work by law firms and media firms.
Congress and the Department of Justice have failed in their efforts to make it easier to bring FARA prosecutions. The law was last amended in 1966—which means its definition of foreign propaganda has not been updated since the Internet age. Only minor procedural reforms were made in 2007. In 2016, the DoJ’s Office of the Inspector General conducted an audit and made 14 recommendations to improve enforcement and administration of FARA, which the Department accepted. However, the Department needs additional resources from Congress to better administer and enforce the law. Since 2016, 40 bills proposing reforms to FARA have been introduced in Congress. Congress has failed to act on a single one.
How To Fix FARA
FARA and its cousins present a tremendous opportunity for reduction of foreign influence within the United States. Besides prosecution and enforcement, FARA allows transparency over the amount of money and web of activities that underlie foreign influence campaigns in the United States. FARA filings would be a tremendous tool in the hands of prosecutors and journalists alike as they seek to combat foreign influence and disinformation. Congress and the DoJ also have wide discretion over who must register with FARA, which makes it a tool for regulation of otherwise legal, but problematic, activities. For example, the First Amendment makes it difficult for the United States to ban media outlets that are overtly sponsored by foreign states—even if they are spewing extremist or disruptive propaganda. However, Congress or the Attorney General can determine these outlets to be “propaganda vehicles” under the terms of FARA, and require them to register under FARA. Registration would enable the DoJ to closely monitor their activities. Failure to register could make them criminals.
Congress must act quickly to reform FARA so that it can be better used as a tool to stop illegal foreign influence. Congress must work to clarify FARA’s broad language, tighten its many exceptions, compel production of records from registrants, and update the Act’s definition to cover the digital age. Congress must also properly fund the DoJ so that it can better prosecute and enforce FARA. Adding civil penalties to FARA for late registrations and other infractions could self-fund prosecutions. DoJ must also spread awareness about FARA so that journalists can report on registrations and the information that foreign agents disclose to the Department, and so that Americans can report to the DoJ about suspected foreign agents that have not properly registered. FARA and its cousins present excellent tools for the United States to combat foreign influence. Congress must empower the Department of Justice—and all Americans—to use them.