Among the forgotten and ignored laws revived during the Trump era such as the Logan Act and “emoluments clause," none has been used more effectively against the president’s allies than the Foreign Agents Registration Act.
In August, Special Counsel Robert Mueller got Trump’s former campaign manager, Paul Manafort, to plead guilty to violating the statute – becoming only the fourth defendant found guilty of a criminal FARA violation since 1966.
Michael Flynn, the retired three-star general who served briefly as Trump’s White House national security adviser, also appears to have violated FARA while representing Turkey, though Mueller charged him only with lying to the FBI about his conversations with the Russian ambassador. Two of Flynn’s former associates have also been charged in Virginia with FARA violations regarding their work for Turkey.
Because these activities had nothing to do with Trump or Russia, many commentators have focused on Mueller’s use of the law to squeeze potential witnesses against the president. But these cases also spotlight one of the nation’s most ambiguous and widely flouted laws. Mueller’s effort to regulate foreign influence points up how Washington often breaks the rules it makes.
The capital is awash in foreign cash – the world hub of lobbying and influence peddling, where former senior U.S. officials, or those between jobs, stand to profit from their prestige and connections. Since 1938, anyone representing a foreign government has been required to register under FARA. But the law was often ignored until 2016 when questions about Russian influence came to dominate the presidential campaign.
It was this attention, rather than a surge in foreign influence peddling, that is most responsible for the 50 percent jump in first-time FARA registrations in 2017, according to an NBC report.
“I’d like to believe everyone is always eager to be in compliance,” said Claudia Hrvatin, an attorney with King & Spalding LLP in Washington, D.C., who regularly counsels clients on compliance with FARA. “But I know that the recent uptick is due to new attention to the alleged infiltration of foreign influence in Washington.”
Even with the new scrutiny, it appears that most Beltway influencers still aren’t registering. “When you look at the numbers of primary registrants, short-form registrants, and foreign principals,” said a lawyer who works on FARA issues, “the numbers just don’t pass the smell test.”
Close to publication time, there were 429 active registrants listed on the FARA website, which is about the same number of lobbyists registered in the state of Vermont. Some represent smaller boutique interests, like the Aruba Tourism Authority; others, major Washington firms, like APCO, representing a range of foreign principals.
But those listed on the website don’t present a full picture of what’s really going on. “Lots of people think that’s the extent of foreign influence in Washington,” says one lobbyist, “but that’s just the tip of iceberg.”
Part of the reason many still fail to register is ambiguities in the law’s requirements and enforcement. Consider former Connecticut Sen. Joseph Lieberman, who recently registered for his work representing Chinese telecom giant ZTE – with two telling caveats.
First, a spokesman for Lieberman’s law firm, Kasowitz Benson Torres, told RCI that while the former vice presidential candidate registered “out of an abundance of caution,” he might not have been required to take any action because he “will not be advocating for ZTE nor seeking to persuade officials on any matter.”
Second, even though he is representing a Chinese concern, Lieberman did not register under FARA. He registered instead under the Lobbying Disclosure Act, the 1995 law that covers domestic lobbying. When the principal beneficiary of the representation is a foreign corporation, like ZTE, registration under the LDA can satisfy FARA obligations – except when it doesn’t. Those exceptions are murky.
Both Flynn’s group and Manafort’s firm had, in fact, registered under LDA, as have many other prestigious lobbying firms that work with foreigners, including the now defunct Podesta Group, run by Tony Podesta, the brother of Bill and Hillary Clinton’s close adviser John Podesta.
That Lieberman still registered under the LDA rather than FARA even after the highly publicized Flynn and Manafort cases is evidence that, despite the reported uptick in registrations, the law is not always taken seriously. Many big names don’t register at all. Henry Kissinger’s work for the Chinese government led Justice Department officials in 1997 to say that he might be in violation of FARA, without taking formal action.
Responding to RealClearInvestigatons, a spokesperson for Kissinger Associates wrote: “Dr. Kissinger and Kissinger Associates, Inc. are not required to register under the Foreign Agents Registration Act because they do not represent and have never represented foreign persons or entities.”
That’s not right, countered Randy Scheunemann, president of Orion Strategies, a lobbying firm. “The senior consultants, advice givers, like Kissinger, Brent Scowcroft, Madeleine Albright -- these are Washington’s wise men and women. They do what lobbyists do — get paid to explain Washington to their foreign clients and vice versa,” Scheunemann said. “I think they should have to register but no one does. They don’t get their hands dirty by registering.”
Scowcroft did not respond to requests for comment. A spokesman for Albright’s firm, Albright Stonebridge Group, did answer: “Since its founding, ASG has not engaged in lobbying the USG [United States Government] nor do we undertake client work that involves activities covered by FARA. As a result, we do not register under FARA.”
Why are Washington power brokers hesitant to register with FARA?
Although they openly represent foreign interests, many nonetheless see FARA as a black mark that might damage their chances of entering, or re-entering, government. “It can be a challenge if you come up for a Senate-confirmed position and are forced to answer questions about some bad actors you did work for,” said one lobbyist, who spoke on condition of anonymity, as did many of the sources for this story.
While staunch American allies including Canada, Great Britain and France have registered foreign agents representing them, so too do many nations with more complicated relations and public images, such as Qatar and Saudi Arabia. The two Gulf Cooperation Council states have moved their local conflict to Washington, where the two are entangled in a competition to shape U.S. Middle East policy to their advantage, and the detriment of the other.
Saudi Arabia is a traditional Beltway giant, employing more than a dozen firms, including some of the biggest names in lobbying, to represent its various interests. However, Riyadh has come under special scrutiny of late, with several lobbyists dropping their wealthy client after the murder of Jamal Khashoggi, a Saudi national and Washington Post contributor.
The Washington Post warned two other contributors, lobbyists Carter Eskew, managing director of the Glover Park Group, and BGR Group Chairman Ed Rogers, that they had to stop representing Saudi Arabia or forfeit their relationship with the Post. Both firms dropped Saudi Arabia. So did the Harbour Group, losing its $80,000 a month contract.
Saudi Arabia continues to enjoy the nearly unqualified support of President Trump, however, despite the widespread view that Crown Prince Mohammed bin Salman ordered Khashoggi’s death. The president’s son-in-law, Jared Kushner, is reportedly in regular contact with bin Salman.
While Qatar also exercises influence in major government agencies – hosting the U.S. Air Force’s Central Command at Al Udeid airbase since 2003 has earned it support at the Pentagon – it has also proven to be more innovative than its Saudi rival. The tiny energy-rich emirate retains dozens of registered lobbyists, but also employs instruments that fall outside FARA’s scrutiny — like partnering with think tanks, universities, and media organizations — to shape the policy debate in its favor, and against Riyadh.
In 2008, the Brookings Institution opened a center in Doha, Qatar’s capital (where Georgetown University has a campus), cementing a relationship earning the venerable Washington think tank tens of millions of dollars, including a $14.8 million donation in 2013. Brookings officials have said that the financial relationship has no impact on the independence of its scholars. But it does retool the emirate’s image as a progressive and Western-oriented Arab state.
“It’s not like Brookings and Georgetown are directly shilling for Qatar,” said a political consultant who works with Middle Eastern states. “But are they shaping U.S. public opinion? Absolutely. These guys fund Hamas, but American parents sending their kids off for a year in Doha believe the Qataris are on the side of the angels.”
As a Qatari official explained in a 2008 diplomatic cable released by WikiLeaks, Doha’s charm offensive is a tactic to leverage opinion. "We have no military, so think of the conferences as our aircraft carriers,” said the official, referring to the international policy conferences hosted by the emirate, most famously the Doha Forum.
A delegation of congressional Democrats was hosted at the most recent Doha Forum, which included senior political officials from around the world. The week-long event was widely covered, and the forum paid for some of it. BuzzFeed was one of the Doha Forum’s “media partners.” According to BuzzFeed spokesman Matt Mittenthal, the news outfit was paid to brand coverage of the event with the conference badge, and the conference paid for journalists’ travel and lodging. The Doha Forum was given no editorial approval or control, Mittenthal wrote in an email.
In bringing more attention to FARA, the special counsel has unintentionally shown that the law is neither strong nor supple enough to regulate the number and nature of foreign agents who influence Washington policy.
“The number of firms that have registered may now be in the low 400s,” says one lobbyist who registers with the DOJ. “But there are also numerous other entities — media outlets, think tanks — that behave like foreign agents and don’t file any forms. The DOJ should make a concerted effort to ensure FARA compliance isn’t restricted to K Street firms.”
However, the resources devoted to enforcing it are already strained. The FARA office, said one lawyer who deals with the unit on a regular basis, “consists of about nine people, at last count. They’re overwhelmed.”
Further, the DOJ has offered little legal guidance, leaving lawyers and their clients wondering whether they are obliged to register for certain activities. “Only recently did the DOJ make advisory opinions available, about 60 of them,” said a lawyer who handles FARA clients. “They’re heavily redacted and they really don’t help at all.”
It is because FARA has been so rarely enforced in the past that many lobbyists wonder whether the point of the Mueller prosecutions is to encourage compliance -- or, instead, to turn a statute designed to encourage transparency into a prosecutorial instrument used against political adversaries.
“The test case,” said one lobbyist, “is Tony Podesta, and whether or not he’ll be charged for doing what Manafort did.”
Podesta worked with Manafort on the same public relations campaign for a Ukrainian political party that Mueller used to bring his FARA charge against the former Trump adviser. After Manafort’s arrest, Podesta dissolved his firm and was reportedly under scrutiny for possible FARA violations. Some reporting says Mueller offered Podesta immunity for testifying against Manafort. Elsewhere it's reported that he has referred the case to federal prosecutors in New York. The status of any allegation or possible probe remains unclear, and will ultimately depend on prosecutorial discretion.