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FARA Files: Rise in High-profile Convictions Raise Questions About Reform


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On March 23, 2022, Paul Manafort tried to fly out of the U.S. from Miami International Airport. He was denied exit because his passport had been revoked due to criminal convictions involving financial crimes, witness tampering, and violations of the Foreign Agents Registration Act (FARA). The decision to bring FARA charges against Manafort, who briefly served as Donald Trump’s campaign manager during the 2016 election, was part of a (p.2) effort by the Justice Department to take FARA violations more seriously.

Yet, this decision to clamp down on foreign agent activities in the United States has opened the door to FARA reform (p.5). It has also drawn attention to the foreign activities of individuals close to high-ranking elected officials, including the current president’s son, Hunter Biden, and the former president’s closest advisors, such as Michael Flynn. Russia’s recent major escalation of its war against Ukraine, and the West’s swift financial response, have also revealed possible holes under FARA’s current framework.

This increased push to enforce the FARA regulations, combined with the added scrutiny over loopholes in the statute, and the “jumble” (p.42) of advisory opinions raises questions of efficacy and practicality. How can FARA regulators ensure enforcement is rigorous and fair without being heavy-handed? The recent high-profile convictions of Manafort and Flynn, and the specter of possible FARA violations from Hunter Biden, place a heavy burden of tact and clarity on the Justice Department.

Between 1966 and 2015, only seven FARA cases were brought by DOJ, and two of those were dismissed without charges. Since then, DOJ has been on a comparative sprint, extracting at least ten guilty verdicts over FARA violations since 2017. But that hasn’t come without hiccups.

For his work with the Turkish government over the extradition of a political opposition leader, Michael Flynn’s associate, Bijan Rafiekian, was convicted of failing to register as a foreign agent and of conspiracy to make false statements in a FARA filing. Both convictions overturned and then reinstated after two different judges interpreted the statutes and evidentiary standards in opposing ways.

In July 2021, the American Bar Association released a report detailing reform proposals for perceived flaws in the current FARA regulation and its administration, ranging from adjusting terminology, reducing filing costs, and updating enforcement tools. But many of these reforms require acts of Congress, which is notoriously sluggish on bureaucratic reforms.

In the meantime, FARA-related incidents involving high-profile individuals will continue to grace headlines and news chyrons, bringing increasing urgency to the reform efforts.

This is perhaps best highlighted by the recent New York Times article about the ongoing investigation into Hunter Biden’s tax history and potential FARA violations, given his “extensive work with foreign businesses.” At the time of publishing, DOJ officials are divided over whether any violations were made.

The ultimate test for any republic is how it handles potential, and actual, criminal acts by its most powerful and privileged of citizens, and FARA’s current fuzziness makes that test harder to pass.