On her first day in office, Attorney General Pam Bondi issued a significant memorandum to all Department of Justice employees regarding the Department’s criminal enforcement policies, including a notable directive related to the Foreign Agents Registration Act (“FARA”). The memorandum provides that “[r]ecourse to criminal charges under the Foreign Agents Registration Act . . . shall be limited to instances of alleged conduct similar to more traditional espionage by foreign government actors.” The memorandum further provides that the Department’s FARA Unit should instead “focus on civil enforcement, regulatory initiatives, and public guidance.” While details are few, this communication arguably contrasts with the Department’s approach over the past few years to prioritizing criminal enforcement of FARA.
The Attorney General’s directive appears to align more closely with the Department’s approach to criminal enforcement of FARA prior to Special Counsel Robert Mueller’s investigation of President Trump in 2017 and the Department’s 2019 announcement making FARA a criminal enforcement priority. Under the prior, more restrained approach, the Department generally brought criminal charges under FARA only in cases involving the most egregious offenses, such as those involving espionage and violation of trade sanctions. In that prior period, the Department focused on voluntary letters of inquiry, as well as audits of existing registrants, rather than criminal investigations and charges. Notably, the Department does not currently have authority to issue civil fines, and its civil enforcement authority is limited to enjoining a person from acting as an unregistered agent or requiring compliance through a civil injunction. Its civil enforcement tools therefore are very limited.
While the memorandum does not directly address the Department’s recent Notice of Proposed Rulemaking (“NPRM”) concerning FARA, the Attorney General’s directive could hint that the Department may take the rulemaking in a very different direction than was contemplated in the NPRM issued during the Biden Administration. Specifically, the NPRM’s proposals to regulate more tightly foreign commercial and non-government actors may be less likely to advance given the Attorney General’s recent memorandum.
If you have any questions concerning the material discussed in this client alert, please contact the members of our Election and Political Law practice.
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