WASHINGTON — FBI agents and federal prosecutors disagree over the intent of a foreign lobbying disclosure law, creating confusion within the Justice Department and complicating enforcement, according to a government watchdog report released Wednesday.
The report from the department’s inspector general found that prosecutors and agents are at odds on how best to enforce the Foreign Agents Registration Act and on what constitutes a prosecutable case. The 1938 law, known as FARA, requires lobbyists to register if they represent foreign leaders or their political parties, and to disclose details about their work, including how much money they spend and receive.
The law is enforced by a unit within the Justice Department’s National Security Division, but few criminal prosecutions are brought and the number of registrations has dropped significantly in the last few decades.
The statute, even if rarely used as a criminal tool, has made headlines recently. A lawyer for Virginia Gov. Terry McAuliffe said in June that federal investigators were looking into whether McAuliffe lobbied the U.S. government on behalf of foreign interests, and The Associated Press reported last month on a covert Washington lobbying operation on behalf of Ukraine interests directed by the firm of Donald Trump’s former campaign chairman, Paul Manafort.
Investigators interviewed for the inspector general report said Justice Department prosecutors were slow in reviewing possible cases and reluctant to approve charges, while prosecutors said the law’s primary purpose was to ensure proper registration and public disclosure — and not to pursue criminal charges.
Though willful failure to register under FARA can carry up to five years in prison, only seven criminal cases have been brought in the last 50 years.
Justice Department lawyers told the inspector general say they face a high legal burden in proving that a violation was willful and that lobbyists were operating under the “direction and control” of a foreign government. They also say their powers are limited because they can’t compel lobbying firms or others to turn over documents, and are pursuing civil investigative demand authority from Congress.
In a written response to the inspector general’s finding, the Justice Department said agents who were interviewed for the report appeared to confuse FARA — which the department considers to be primarily a disclosure statute — with a related criminal law that punishes espionage-like behavior on behalf of foreign governments or individuals.
That confusion “can lead to undue weight being given to criminal prosecution as the measure of FARA enforcement,” and insufficient recognition of the importance of administrative enforcement, such as encouraging voluntary compliance, the response said.
The inspector general made 14 recommendations, including that the Justice Department improve its oversight of FARA registrations and update its training for investigators and prosecutors. The department said it’s begun carrying out the recommendations and agreed with the importance of having a comprehensive FARA strategy and a better system for tracking cases.
“We continue to take additional steps now and look forward to maintaining a productive dialogue with FARA stakeholders on how to ensure the program remains able to continue fulfilling its role in helping protect our national security,” Justice Department spokesman Marc Raimondi said in a statement.
FARA was enacted in 1938 as a counter to German propaganda agents in the U.S. The number of registrations peaked in 1987 with a high of 916, but began to fall sharply in the mid-1990s, with only 360 active registrations at the end of 2014, according to the report.
Justice Department officials say they think the decline may be tied to filing fees first imposed in 1993 as well as the passage of the Lobbying Disclosure Act, which imposes less stringent requirements and carved out a large exemption, according to the report. The review found 62 percent of registrations were submitted late, though the Justice Department says more than half of the filings categorized as late were filed within 30 days of the filing deadline.
“All of this added up to our overall conclusion that the Justice Department lacks a comprehensive FARA enforcement strategy — and that such a strategy should be developed and integrated with the DOJ’s overall national security efforts,” Deputy Inspector General Rob Storch said in a podcast interview on the inspector general’s website.
The AP found that a firm run by Manafort directly orchestrated a covert Washington lobbying operation on behalf of Ukraine’s ruling political party but that Manafort and his deputy, Rick Gates, never disclosed the work under FARA. Manafort and Gates said the registration was not necessary, though Manafort resigned his position with the Trump campaign.
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