Robert Kelner was quoted in a Global Investigations Review article about the Department of Justice’s inability to secure a unanimous verdict in the Linda Sun foreign agent trial and the broader challenges prosecutors face when pursuing criminal FARA violations.
Robert noted that the most successful FARA cases typically involve clear payments from foreign officials for very specific lobbying or influence activities, explaining that the absence of such evidence in Sun’s case made it difficult to distinguish between her routine governmental duties and conduct that could be construed as acting on behalf of a foreign power.
Robert said, “It’s difficult to prosecute a FARA case without a very clear violation. But in my view, that’s appropriate. This is a criminal statute, and it shouldn’t be easy to convict in a case that is unclear.”
The DOJ often looks for “something flashy” to prop up FARA cases, but egregious details don’t always do the trick, Robert said. In Sun’s case, he said, prosecutors emphasized her link to New York governor Kathy Hochul and former governor Andrew Cuomo, and the lavish benefits she received from Chinese officials while working for New York state.
“There were these embarrassing facts that made it a more media-friendly case, like the ducks,” he said.
“You can kind of see how prosecutors looked at the case and said, ‘that’s a really evocative fact, that will grab the attention of the jury,” Robert said. “But this jury showed that it’s not that easy.”
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