Following an announcement last month that the White House intends to deploy the Foreign Agents Registration Act (“FARA”) to investigate persons with foreign ties that “foment political violence,” the FARA Unit of the Department of Justice (“DOJ”) quietly (and maybe inadvertently) published and then unpublished 17 new advisory opinions regarding FARA.

The publication and subsequent removal of the advisory opinions is unusual. Since the FARA Unit began publishing its advisory opinions in 2018, the FARA Unit has published new advisory opinions about once a quarter and notified the regulated community by indicating on the “advisory opinion” section of its website that new opinions have been posted. This time, however, the publication comes almost a year after the last release, and no notification or announcement accompanied the publication. Rather, the opinions were found posted in a section of the FARA Unit’s website containing various files, and they were identifiable only through key word searches directed at the website. While we expect that these opinions remain valid because they appear to have been issued to the requestors, they are no longer publicly visible, and it is not clear why they were taken down. Therefore, the extent to which they can be relied on by the regulated community is unclear.

The 17 new opinions are the first insights into DOJ’s approach to advisory opinions since President Trump took office in January 2025. Before they were taken down, the opinions notably addressed DOJ’s approach to the commonly relied on section 613(d)(2) exemption to FARA. Many of the opinions suggest that the FARA Unit is continuing to apply the new “domestic interest” approach to the 613(d)(2) exemption articulated in the 2025 Notice of Proposed Rulemaking (“NPRM”), although the status of the NPRM itself remains unclear. The advisory opinions also addressed other topics such as the scope of agency, the lawyers’ exemption, and the section 613(d)(1) exemption (also known as the commercial exemption for nonpolitical activities).

Key Takeaways from the AOs

The opinions—while they were available—indicated that DOJ is continuing to pursue a change in its interpretation of the section 613(d)(2) exemption (sometimes referred to as the commercial exemption for political activities) to FARA that is widely relied on by corporations.

Under the statute, persons engaged in FARA enumerated activities, including political activities, on behalf of any foreign principal (including foreign businesses and nonprofits) must register with DOJ unless an exemption applies. Under current regulations, any foreign corporation engaged in political activity “directly in furtherance of the bona fide commercial, industrial, or financial operations of the foreign corporation” is exempt. The current regulations also provide that the exemption is not available if the activities “directly promote” the public or political interests of a foreign government or political party.

In recent advisory opinions, and in the 2025 NPRM, however, DOJ began to take a different approach to section 613(d)(2). Specifically, DOJ’s analysis for the last few years, and prior to this most recent release, has begun to focus on whether activities, based on the totality of the circumstances, predominantly serve a foreign interest generally, rather than focusing only on foreign governmental interests. As we previously reported, this new interpretation has broad-ranging implications because it makes the exemption less clearly available to certain foreign corporations. It has been unclear whether the Trump administration would advance the rulemaking or otherwise continue this interpretation of the section 613(d)(2) exemption.

In the opinions released this month, the FARA Unit indicated that it is continuing to apply the approach of analyzing whether the underlying activities predominantly serve a domestic versus a foreign interest. There is some tension, however, throughout the opinions regarding the analytical framework for the domestic interest test. For example, in one opinion dated October 16, 2024, a U.S. and foreign nonprofit proposed an agreement for a “joint effort” to “bring success for both organizations” and proposed a “division of labor,” with the U.S. nonprofit focusing on U.S.-facing activities for a conference and the foreign nonprofit focusing on promotion and organization outside the United States. The FARA Unit concluded that registration was required for the U.S. nonprofit because the U.S. nonprofit was an “agent” of the foreign nonprofit engaged in “disburs[ing] or dispens[ing] . . . money, or other things of value for or in the interest of [a] foreign principal.” The FARA Unit indicated in a footnote that the section 613(d)(2) exemption did not apply because the “proposed activities appear to predominantly serve foreign interests” without mentioning foreign governmental or political interests.

In another, more recent opinion dated June 9, 2025, the FARA Unit reached the opposite conclusion under a fact pattern that seemed to involve a greater foreign interest, although many of the details were redacted. There, a U.S. nonprofit operated under a “shared services agreement” and had common officers and Board members with a foreign entity that appointed all the U.S. nonprofit’s management. As part of an effort to “build on the work of” the foreign entity, the U.S. nonprofit created and disseminated “downloadable digital reports recommending policy changes for online platforms and governments,” including through direct communications with U.S. government officials. The FARA Unit concluded that registration was not required, reasoning that the U.S. nonprofit could rely on the section 613(d)(2) exemption. In reaching this conclusion, the FARA Unit emphasized that the U.S. nonprofit’s activities would “directly advance” its own “objectives and focus entirely on addressing conduct and harms in the United States,” and the nonprofit would not be directed by, or “directly promote,” the public or political interests of a foreign government or foreign political party. So, this opinion seemed to put more weight on the absence of a relevant foreign governmental interest, although it remains unclear whether the Department considers the foreign governmental interest as merely one material factor or the material factor.

Notwithstanding this lack of clarity regarding the analytical approach, it remains clear that the FARA Unit is focusing on whether activities predominantly serve a foreign interest in applying the section 613(d)(2) exemption. So, foreign corporations, nonprofits, and persons that have historically relied on the exemption under the assumption that any commercial activity that does not directly promote a governmental interest is covered under the exemption may not be able to rely on the section 613(d)(2) exemption for U.S.-facing lobbying or advocacy activities under the new “domestic interest” approach. Covington will be monitoring developments, including with respect to whether these new advisory opinions are reposted in their current form or in some revised form.

If you have any questions concerning the material discussed in this client alert, please contact the following members of our Election and Political Law practice.