For any FARA violation that is not “willful,” the Department of Justice is authorized by law to seek a civil court order “enjoining [a] person from continuing to act as an agent” or “requiring compliance” with the statute. The threshold for a civil action is “sufficient credible evidence of a significant violation for which the civil injunctive remedy is judged appropriate in light of all the circumstances because time is of the essence or for some other reason.” The Department does not have statutory authority to impose civil fines, but on at least one occasion it has agreed to the payment of a civil fine as part of a settlement.
You can find a narrative historical overview of FARA’s enforcement history in the Department of Justice Criminal Resource Manual. For your reference, provided below are summaries of selected civil enforcement efforts involving FARA. Summaries of prior criminal enforcement cases are available here.
SUMMARIES OF SELECTED CIVIL ENFORCEMENT EFFORTS (1980-Present)
Steve Wynn (2022)—DOJ sued casino mogul and Trump associate Steve Wynn to compel him to register under FARA as an agent of the People’s Republic of China. In October 2022, the D.C. District Court dismissed the DOJ’s suit, ruling that based on precedent, the Department could not retroactively require registration after the alleged foreign agent relationship with China had ended.
RM Broadcasting (2019)—RM Broadcasting, a Florida broadcasting company involved in the U.S. distribution of the Russian radio channel Sputnik, was ordered by a federal district court to register under FARA. The case was initiated by RM Broadcasting itself, which filed a civil suit to secure a declaratory judgment that FARA did not apply to the company. The Department of Justice responded to the suit by filing a counterclaim for injunctive relieve to require RM Broadcasting to register. The district court rejected RM Broadcasting’s claim that it did not “broadcast[ ] any radio programs” because that representation conflicted with terms of the company’s Services Agreement, which obligated it to broadcast radio programs without edits and subjected the company to the control of a Russian state-owned enterprise. This case was the first time in nearly two decades that the Department used its statutory authority to file for a court-ordered civil injunction.
- Skadden, Arps, Slate Meagher & Flom (2019)—Skadden, a prominent law firm, reached a settlement with the Department of Justice in 2019. The firm acknowledged in the settlement agreement that it should have registered under FARA for its work on behalf of the Government of Ukraine related to a “white paper” evaluating the criminal trial of a Ukrainian political dissident. The agreement also, among other things, required Skadden to file a late FARA registration, disgorge $4.6 million to the U.S. Treasury, and implement “formal, robust procedures” to ensure FARA compliance. Skadden filed a late registration with the Department of Justice in 2019.
- Young & Rubicam (1991)—Young & Rubicam, an advertising agency, was registered under FARA in connection with its advertising activities on behalf of the Jamaica Tourist Board to promote tourism. The Department of Justice filed a civil complaint against the firm for failing to report on its FARA filings an $894,626 disbursement to Ad Ventures, Ltd., a firm with no fixed address and a Cayman Islands bank account.
- Mitchell Block, Environmental Defense Fund, The State of New York, Biograph Theater Corporation, New York Library Association, and Environmental Task Force (1983)—Several plaintiffs, who were distributors and potential exhibitors of films, filed a civil action in 1983 to enjoin the Department from applying FARA’s provisions to three films distributed by the National Film Board of Canada, an agency of the Canadian Government. The District Court dismissed the complaint for lack of standing. The District Court’s position as to the plaintiffs’ standing was reversed by the D.C. Circuit Court, but the Circuit Court also disagreed with the plaintiffs’ statutory and constitutional challenges to FARA, ultimately directing the lower court to enter judgment in the government’s favor.
- Barry Keene (1983)—The New York office of the National Film Board of Canada, an agency of the Canadian Government, was registered under FARA and any materials it distributed were labeled as “political propaganda” by the Department of Justice. California State Senator Barry Keene wanted to exhibit three National Film Board of Canada films but did not want to be regarded publicly as a disseminator of foreign political propaganda. Mr. Keene sued in 1983, seeking to enjoin the Department from applying FARA and its labeling requirements to the films. The District Court granted the preliminary injunction against the application of FARA’s labeling requirement to Mr. Keene and then made the injunction permanent. The U.S. Supreme Court, which ultimately heard the case on appeal, issued an opinion in 1987 holding 5-3 that FARA and its labeling requirements were constitutional on the basis that FARA did not prohibit Mr. Keene from distributing the films and that the labeling requirement was not harmful to Mr. Keene’s First Amendment rights because the “political propaganda” label was “neutral, evenhanded, and without pejorative connotation.”
- William “Billy” Carter (1980)—The Department of Justice pursued a civil action against William “Billy” Carter, the brother of President Jimmy Carter, who rendered services to the Libyan Government in 1978 and 1979. Mr. Carter received substantial payments, all-expenses-paid trips, and other personal items as compensation. Mr. Carter signed a consent agreement that required him to file a FARA registration statement and reports detailing his relationship with the Libyan Government. The U.S. Senate Intelligence Committee also conducted its own investigation of Mr. Carter.
SUMMARIES OF SELECTED CIVIL ENFORCEMENT EFFORTS (1960-1979)
- American-Chilean Council, Martin Liebman, Inc, and Martin Liebman (1979)—The Department of Justice pursued a civil action against the American-Chilean Council, a U.S. nonprofit organization, for “willfully failing to disclose their true foreign principal, the Chilean (Pinochet) Government, on whose behalf they had been deeply involved in lobbying for military sales and assistance.” The Council had initially registered under FARA as an agent of a Chilean nonprofit organization. The Council was permanently enjoined from acting on behalf of any foreign principal until the organization: (1) filed a FARA registration statement; (2) published “ads in Washington, D.C. and New York City newspapers … to notify the public of the action and offer to supply, without charge, to parties outside of Washington, D.C. who had received or seen material from the American-Chilean Council” a copy of their FARA registration statement; (3) notified “each individual or entity on its mailing list of [the enforcement] action by mailing a copy of the judgment or equivalent notice to any party outside of Washington, D.C.” A public relations firm that had previously performed work for the Government of Chile was also enjoined from acting as a FARA “agent” for a period of one year.
- The Lewis Company, Ltd. and Bud Lewis (1978)—The Lewis Company, a FARA registrant, failed to file in a timely fashion any of the 25 Supplemental Statements it was required to submit. The Department of Justice brought a civil action but ultimately resolved the matter by accepting a consent decree that required the Company to file the past-due Supplemental Statements and institute a FARA compliance program.
- Irish Northern Aid Committee (1977)—The Irish Northern Aid Committee (“INAC”), a U.S. nonprofit association, registered and reported its representation of an Irish nonprofit called the Northern Aid Committee under FARA after receiving a directive to do so from the Department of Justice. (The Department successfully sued INAC earlier in 1972 to require it to produce books and records, which was a ruling that was later affirmed.) The Department subsequently obtained substantial uncontroverted evidence that it believed constituted an admission that INAC was acting as an “agent” of the Irish Republican Army. Consequently, the Department instructed INAC to also list the Irish Republican Army as a “foreign principal” and correct other deficiencies in INAC’s FARA filings. When INAC failed to follow the Department’s instructions, the government filed a civil suit to enjoin INAC to correct its public filings and stop violating FARA. The civil suit was successful, with the U.S. District Court holding that INAC’s evidence made the group’s “agent” status clear and that INAC was required to comply with the Department’s instructions. The Circuit Court affirmed the District Court’s holding.
- Casey, Lane & Mittendorf, South Africa Foundation, John Mahoney, Phillip McKnight, and John Chettle (1977)—In a civil action, the Department of Justice alleged that Casey, Lane & Mittendorf, a U.S. law firm, and other defendants willfully filed false and misleading FARA filings in connection with its representation of the South African Sugar Association and the South Africa Foundation. The Department alleged that the firm concealed from required FARA filings the provision of money and free overseas travel to certain members of the United States House of Representatives and congressional aides. The Department resolved the matter by accepting a consent decree: (1) requiring Mr. Mahoney and the Foundation to stop violating FARA; and (2) requiring Casey, Lane & Mittendorf to file amended Supplemental Statements that would include the previously omitted activities. The charges against other defendants were dropped.
- Horatio Daniel Lofredo, Olga Talamante and Argentine Commission for Human Rights (1977)—The Department of Justice brought a civil action against two individuals for failing to register for work on behalf of the Information Bureau of the Argentine Commission for Human Rights, which included dissemination of political propaganda and other activities intended to influence U.S. policies toward the Government of Argentina. The matter was resolved through a consent order that barred the individuals “from all future violations of the Foreign Agents Registration Act” and required them to “notify in writing all persons whom the defendants contacted concerning military aid appropriations for Argentina of the true nature of their relationship to the Argentina Commission for Human Rights.”
- Irish People, Inc. (1976)—The Department of Justice brought a civil action against the New York publisher of The Irish People weekly newspaper to require it to register under FARA as an “agent” of the Irish Northern Aid Committee, which was itself registered as a FARA “agent” for the Irish Republican Army. The defendant raised several counterclaims and affirmative defenses, seeking documents from the Department, and the District Court in 1980 ruled that documents to which the government had asserted a claim of state secrets should be produced to the defendant. The D.C. Circuit reversed on this procedural matter. The District Court ultimately ordered the defendant to register in 1984. However, the D.C. Circuit Court again reversed the lower court in 1986, finding that the available evidence, including overlapping personnel with INAC, financial support from INAC, shared offices and telephones with INAC, and “a coincidence of editorial views” with INAC, was insufficient to establish that the publisher was an “agent” and remanded the case back to the District Court. Prior to the remanded proceedings, the publisher and INAC entered into a settlement agreement with the Department that required increased disclosure.
- Trinidad & Tobago Industrial Development Corporation, Trinidad & Tobago Tourist Board, and Clyde Namsoo (1976)—The Department of Justice filed a civil action against the Trinidad & Tobago Industrial Development Corporation and other defendants alleging failure to timely submit required FARA filings and failure to label political propaganda. The District Court granted the Department’s motion for summary judgment, permanently enjoining the Corporation from acting on behalf of its foreign principals until it complied with FARA. The Corporation appealed the decision, but the District Court’s decision on summary judgment was upheld by the Circuit Court.
- Liberian Services, Inc. (1976)—Liberian Services, Inc. filed a civil action to enjoin the Department of Justice from requiring it to register under FARA “until the plaintiff received written notice of the grounds for ‘revocation’ of an exemption it had claimed, and an opportunity, in a proceeding meeting the Constitutional standards of due process and the Administrative Procedure Act, to show compliance with the requirements for exemption from registration under Section 613(d).” The federal District Court granted the Department’s motion for summary judgment, finding that Liberian Services would receive procedural due process in a trial of the law and the facts de novo in a court, and no administrative hearing was required by the Administrative Procedure Act.
- Arab Information Center and Amin Hilmy (1976)—The Department of Justice brought a civil action against the Arab Information Center for failing to label advertisements taken out in newspapers in major U.S. cities, for failing to file “dissemination reports” in connection with these advertisements, and for refusing to allow the Department to conduct an inspection of its books and records. A separate claim against the Center’s Director, Amin Hilmy, was dismissed when the State Department granted his request for diplomatic privileges and immunities. Following this, the Center entered into a consent decree that required it to: (1) label its political propaganda and file appropriate dissemination reports; (2) maintain all books and records required by FARA; (3) have all political propaganda be authorized by the Director or Acting Director; (4) maintain and keep open for inspection all books and records required to be kept under FARA; and (5) hold semi-annual FARA training meetings.
- Covington & Burling (1975)—Covington & Burling, a U.S. law firm, registered under FARA in connection with its representation of the Republic of Guinea. The representation mostly involved negotiations and discussions with American companies, the World Bank, and U.S. agencies related to Guinea’s bauxite reserves. The Department sought to inspect Covington’s records to determine its compliance with FARA’s reporting requirements and Covington allowed “them to see approximately 95 percent of these records” but refused access to the remaining documents due to attorney-client privilege. The Department of Justice filed a motion to compel the production of books and records, asserting that no attorney-client privilege exists for FARA-registered representations. The federal District Court disagreed, ultimately holding that implicit in the law is an attorney-client privilege that allows an attorney to withhold documents sought by the Department. The Court then conducted an “in camera” review of the documents and concluded that “none of the documents held privileged would if disclosed, add measurably to the [FARA] Registration Unit’s knowledge of the activities of C&B in behalf of Guinea.”
- Daniel J. Edelman, Inc., Edelman International Corporation, DGA International, International Public Relations Company, and John Meek (1975)—The Department of Justice brought a civil action for failure to register under FARA and otherwise comply with FARA’s reporting and labeling requirements. The matter ended when the defendants consented to an injunction.
- United States-Japan Trade Council, Japan Trade Promotion Office, Noel Hemmendinger, Allen Taylor, Hisashi Okada, Tatsuro Goto, and Ejji Ishi (1975)—For the first time since the landmark 1966 amendments to FARA, the Department of Justice brought a civil injunctive action, alleging that the United States-Japan Trade Council and other defendants filed false and misleading FARA registration documents, distributed false and misleading labeling of its propaganda materials, and misrepresented a foreign principal’s identity before congressional committees. The action arose from a series of inspections by the Department of interrelated organizations the prior year. The matter was resolved with a consent decree that required the defendants to: (1) “take out an informative advertisement in The Wall Street Journal” about the action; and (2) issue “personal notification of thousands of individuals and certain federal legislators of this action,” with an offer to supply amended FARA filings that would “accurately reveal the activities” the Council and others conducted.
- Victor Rabinowitz and Leonard Boudin (1964)—Attorneys retained by the Government of Cuba to represent it “in legal matters, including litigation, involving [its] mercantile and financial interests” (but not “advice or representation involving public relations, propaganda, lobbying, or political or other non-legal matters”) filed an action against the Attorney General of the United States to seek a court’s declaration that they attorneys did not need to register under FARA. The attorneys argued that they were exempt from FARA under an exemption in place at the time (similar to the current commercial activities exemption) for “persons engaging or agreeing to engage only in private, and nonpolitical, financial, or mercantile, activities in furtherance of the bona fide trade or commerce of [a] foreign principal…” The case was ultimately heard by the U.S. Supreme Court, which concluded unanimously that the attorneys were ineligible for the exemption and therefore were required to register as “agents” of Cuba. The Court reached this conclusion because it found that legal services were not “mercantile and financial” in nature and that any activity on a foreign government’s behalf was not “private and nonpolitical.” The Department of Justice commented after the case that the “broad language of this opinion account[ed] in part for increased number of registrations” and “occasioned considerable inquiries and frequent conferences with representatives of the legal and other professions regarding the compliance with the Act.” The Supreme Court’s opinion in Rabinowitz v. Kennedy ultimately spurred Congress in 1966 to amend FARA to include provisions, such as the “activities not serving predominantly a foreign interest” exemption, that would allow more parties in positions similar to the Rabinowitz plaintiffs to avoid FARA registration.
An Informational Resource in a New Era of Foreign Agents Registration Act Enforcement.
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