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Enforcement Edge
December 19, 2022

FARA vs. 18 U.S.C. § 951: Distinguishing Between Two Criminal Statutes Addressing Foreign Influence

Enforcement Edge: Shining Light on Government Enforcement

As noted in our post summarizing last week’s National Forum on the Foreign Agents Registration Act (FARA), much of the discussion at the conference focused on DOJ’s recent (and, by the looks of it, here-to-stay) enforcement push relating to foreign influence. While FARA often gets top billing among statutes in this space, another law has also figured prominently in recent prosecutions and in last week’s conversations among practitioners and with DOJ officials. That statute is 18 U.S.C. § 951, which has been the basis for high-profile DOJ actions against former Trump campaign advisor Tom Barrack, among others (Barrack was acquitted by a jury last month). In this post, we draw on recent developments to sketch out the key similarities and differences between these two provisions—a topic on which one of this post’s authors, Amy Jeffress, presented at the conference.

FARA and Section 951 may share the broad goal of limiting covert foreign malign influence in the United States, but they take different tacks to accomplish this goal. FARA is structured as a disclosure statute: it does not prohibit underlying conduct, but rather requires US agents of foreign principals to register with the FARA Unit, and to provide complete and truthful information when doing so. DOJ officials at the conference noted that they view FARA primarily as a civil administrative scheme, whose criminal penalties kick in to combat willful noncompliance. Section 951, on the other hand, is a more traditional criminal statute that directly prohibits taking certain undisclosed actions on behalf of foreign governments.

The scope of the conduct regulated by these two statutes is also different. FARA applies to defined categories of conduct—generally, “political activities” and other attempts to influence the public or government officials—but covers a broad set of foreign principals, including foreign governments, political parties, individuals, and entities of any type. Section 951 is essentially the inverse: it is not limited to any particular type of conduct, but applies only to activities on behalf of a government principal (not foreign individuals or nongovernmental entities). In addition, as DOJ speakers at last week’s conference acknowledged, FARA’s definition of agency is broader than Section 951’s: Section 951 defines an “agent of a foreign government” as a person “subject to the direction or control” of the foreign principal, whereas FARA extends to persons acting at the foreign principal’s “request” (a statutory term that has yet to be fully defined by the courts). One DOJ speaker noted that FARA’s definition of agency is more expansive than the common-law or Restatement  definitions, as well as Section 951’s. Like FARA, Section 951 is not violated when the agent makes complete and truthful prior notification to DOJ, which can be accomplished through FARA registration.

Some recent Section 951 cases highlight its reputation as “espionage lite,” as they address conduct that is not intended to influence the public (FARA’s bailiwick) but rather is directed at helping the foreign government principal in another way, such as gathering information or making connections. The case against Barrack—one of the highest-profile Section 951 cases in recent memory—involved allegations that he not only advocated for the United Arab Emirates, but also provided Emirati officials with information and advice relating to their relationship with the US. Other Section 951 cases have involved, for example, allegations that a police officer and an employee of a large social-media company (separately) used their positions to gather information for foreign governments about US-based individuals seen as dissidents in those countries (China and Saudi Arabia, respectively).

While FARA cases can involve activity directed by any foreign person or entity, most of the cases to which DOJ has devoted prosecution resources in recent years have had foreign governments or government-related individuals as the alleged principals. For example, the cases involving former Republican National Committee finance chair Elliott Broidy and hip-hop star Pras Michel related to alleged activities on behalf of the Chinese government (Broidy pleaded guilty to conspiracy to violate FARA, and Michel awaits trial). Likewise, the case of Paul Manafort, who was pardoned by President Trump after pleading guilty in 2018, related to his representation of pro-Russia Ukrainian officials.

Despite the differences between these two statutes, trends in their enforcement have notable parallels. First, both have seen significant increases in enforcement in recent years. Second, while the statutes are principal-neutral (meaning that the principal’s country or viewpoint are not relevant to an act’s lawfulness or the need to register), DOJ tends to concentrate its enforcement resources on cases where it perceives a particular need to combat foreign influence, such as those involving Russia, China and the Gulf states, as well as cases involving what one DOJ official called “transnational repression”—efforts by an authoritarian regime to target perceived dissidents on US soil. Additionally, prosecutions under FARA or Section 951 often involve several other charges. For example, it is not uncommon to see false statements, conspiracy and obstruction charges that overlap with the alleged FARA/951 conduct or relate to attempts to cover it up.

We here at Enforcement Edge will continue to monitor and report back on DOJ’s ongoing enforcement push regarding both FARA and Section 951.

© Arnold & Porter Kaye Scholer LLP 2022 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.