On January 30th, John Allen, former president of the Brookings Institution and retired four-star general, had FARA charges against him dropped, according to a statement given to the New York Times. Today at the FARA Files, we examine why the DOJ made the call and what it says about the trajectory of foreign influence regulation more broadly.
The crux of the DOJ’s decision to not charge Mr. Allen comes from the revelation that his trip to Qatar, intended to break a diplomatic blockade against the country by its Arab neighbors, was cleared by the Trump Administration’s National Security Council (NSC). Fair enough. But if the NSC gave the go-ahead for Allen, why was there no communication between the Council and DOJ? The head of DOJ, the Attorney General, is a permanent member of the NSC; furthermore, the FARA Unit within the DOJ falls under the National Security Division (pdf. 57, footnote 203). Wouldn’t national security officials want to have some level of communication between these two institutions?
If this kerfuffle had been just a one-off, it may be nothing more than a case of someone dropping the ball. But it is no one-off, and the affidavit included in the official search warrant – from an FBI official, no less – makes no mention of reaching out to the NSC for its own input on the matter. The document refers to the NSC eight times, including information detailing emails between Allen and NSC officials, not the least of which being National Security Advisor H.R. McMaster. Did those emails not give the impression of a working relationship between Allen and the NSC? It would be odd, and alarming, if the NSC would communicate with a private citizen concerning such sensitive material without having cleared said individual’s involvement.
The Allen case shows that despite DOJ’s renewed vigor in enforcing FARA and foreign influence more broadly, as evidenced by the jump in cases since 2017, the Government still struggles to stick the landing on high profile cases. In 2019, a jury acquitted Gregory Craig, a high-profile Democratic lawyer, on FARA charges that he intentionally mislead the DOJ on his work with Ukraine’s government. The following year, another jury acquitted Thomas Barrack, an adviser and confidant to former President Trump, for violating a foreign agent law similar to FARA.
The Federal Government has a reputation for almost always winning its criminal cases. Data from the Pew Research Center reinforces this reputation. For fiscal year 2018, 90% of federal criminal cases ended in a guilty plea, and 86% of cases that went to trial ended in a conviction, “Put another way, only 320 out of 79,704 total federal defendants – fewer than 1% — went to trial and won their cases.”
Placing this larger data set alongside the DOJ’s foreign influence cases for a comparison is tricky for several reasons. First, the number of statutes that address foreign influence are numerous and often have overlapping jurisprudence. Second, the Justice Department’s records for federal convictions do not spell out national security or foreign influence crimes as standalone categories (see Tables 3A, 3B, and 3D). Third, defendants in these cases are often lawyers themselves or are employed at firms experienced in the legal system and thus benefit from that background when faced with federal charges. Finally, specifically regarding FARA, there is a dual-mandate for the FARA Unit to encourage compliance and to enforce legal penalties for those who do not register (PDF 57); this means that officials often ask those not in compliance to file, or, in lieu of pressing criminal charges, may pursue civil action against relevant parties.
With these limitations in mind, we can approximate the conviction rate for criminal foreign influence cases. Using the DOJ’s list of “recent” FARA cases, since 2007, in conjunction with related foreign agent cases of Thomas Barrack, John Allen, Gregory Craig, Maria Butina, and Rudy Giuliani, and removing cases centering on individuals not in the U.S. (and therefore not really prosecutable), there are seventeen cases we can examine. We find that eight cases ended in guilty pleas, three were convicted at trial, three had FARA charges dropped, two were acquitted at trial, and one entered into a settlement agreement.
This translates to 47% of cases ending in a guilty plea (barely half the national average of federal cases) and 40% of cases going to trial ending in acquittal. Keeping in mind the very small sample size, it does seem that the federal government struggles to win these cases relative to other federal cases.
Another way to look at this conviction rate is to acknowledge that this body of law is too vague for substantive enforcement and, subsequently, that bringing charges in this arena is not always about winning in court, but instead to send a message.
While many American commentators may see the messaging through a partisan lens (and there is probably some merit to that perspective), the federal government is also responding to the growing dynamic of a multipolar world. The specter of great power rivalry has revived domestic concerns about foreign influence, but the vagueness of these laws makes enforcement and compliance difficult. Bringing FARA and FARA-related charges may signal a level of prioritization meant to put foreign actors on guard, and arguably signal to Congress that there is a willingness to enforce these laws but a lack of guidance on how to do so. Until Congress steps in with actionable reform that the President can sign into law, the federal agencies responsible for foreign influence regulation are bound to bark louder than they can bite.
Check back soon for another edition of the FARA Files.
