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Hearing Postponed by Order of Sen. Grassley: Oversight of the Justice Department’s (Non) Enforcement of the Foreign Agents Registration Act: Lessons from the Obama Administration and Current Compliance Practices Full Committee Date: Wednesday, July 19, 2017, Time 10:00 AM“. https://www.judiciary.senate.gov/meetings/oversight-of-the-justice-departments-non-enforcement-of-the-foreign-agents-registration-act-lessons-from-the-obama-administration-and-current-compliance-practices

From the Office of Inspector General-US Justice Dept:

Foreign Agents Registration Act-FARA

“FARA was enacted in 1938 in response to recommendations of a special congressional committee investigating anti-American activities in the United States. The committee studied the rise of propaganda activity by European fascist and communist governments to determine whether the United States needed a new means to protect its citizens from political propaganda from foreign sources. A significant finding of the committee’s study was that the Nazi German government had established an extensive underground propaganda apparatus using American firms and citizens….

The Lobbying Disclosure Act and FARA

FARA Unit staff believed that the passage of the Lobbying Disclosure Act (LDA) in 1995 contributed to the steep decline in FARA registrations in the years that followed. We were told that because the LDA allowed agents representing foreign commercial interests to register as lobbyists under LDA, rather than as foreign agents under FARA, FARA is now largely limited to those who represent foreign governmental and political party interests.

In the FARA Unit’s judgment, registration and disclosure requirements under the LDA are less stringent and result in less transparency than FARA, specifically with respect to funds transacted and activities performed. In addition, unlike FARA, lobbyists with income or expenses below certain thresholds are not required to register under LDA. If a lobbyist representing a foreign commercial interest does not meet LDA thresholds, that lobbyist may have no obligation to register under either statute, because the activity serves a commercial rather than foreign governmental or political interest. Moreover, the LDA is administered by the Congress and, according to the FARA Unit, the LDA staffs who reside in the U.S. Senate and U.S. House of Representatives do not perform inspections of registrants, as the FARA Unit does for FARA registrants. FARA Unit staff also expressed concern that because of the LDA amendments to FARA, foreign governmental and commercial interests, which are not always as distinct from one another as in the United States, could use LDA as a loophole to avoid FARA registration and disclosure, even though they are acting under the direction and control of a foreign government.

NSD officials believe that Congress should act and once again require those who lobby for foreign commercial interests to register under FARA. We agree with the concern that foreign governmental and commercial interests overseas may not always be distinct and we recommend that NSD perform a formal assessment of the LDA exemption, along with the other current FARA exemptions and determine whether a formal effort to seek legislative change is warranted. . . .

Conclusion

We found that FARA registrants are frequently late in submitting required documentation and are often unresponsive to FARA Unit requests to update their information. Because timely and complete disclosure of foreign agent political and quasi-political activities are central to the act, we believe the FARA Unit should be more proactive and assess whether additional tools may be available to assist it in its efforts to identify and monitor these foreign agents. With regard to proposed criminal FARA charges, investigators and prosecutors believe that a greater effort should be made by NSD officials to improve communication, transparency, and responsiveness regarding approval decisions. We believe that there may well be room for the Department to make use of the civil injunctive provision in FARA in appropriate cases. To help address this we believe that the Department should develop a comprehensive enforcement strategy for FARA that fits within its overall national security effort. There also are a number of areas where the Department should consider whether to seek administrative or legislative changes to enhance its efforts to enforce FARA and achieve the purposes for which it was enacted into law….” Excerpted from “Office of the Inspector General U.S. Department of Justice, Audit of the National Security Division’s Enforcement and Administration of the Foreign Agents Registration Act Audit Division 16-24 September 2016 ” Read the entire document here: https://oig.justice.gov/reports/2016/a1624.pdf

“The United States Department of Justice National Security Division (NSD) is the division of the DOJ that handles all national security functions of the Department. Created by the 2005 USA PATRIOT Act reauthorization….” https://en.wikipedia.org/wiki/United_States_Department_of_Justice_National_Security_Division

Wednesday Senate Hearing “Witnesses:
Panel I
* Mr. Adam Hickey Deputy Assistant Attorney General
 National Security Division
 U.S. Department Of Justice
Washington, Dc
* Mr. E.W. “Bill” Priestap Assistant Director
 Counterintelligence Division
 Federal Bureau Of Investigations
Washington, DC
* The Honorable Michael Horowitz Inspector General 
U.S. Department Of Justice 
Washington, DC
Panel II
* Mr. William BrowderChief Executive Officer
 Hermitage Capital Management
London, United Kingdom
* Mr. Glenn R. Simpson Fusion Gps
 Washington, Dc” 
https://www.judiciary.senate.gov/meetings/oversight-of-the-justice-departments-non-enforcement-of-the-foreign-agents-registration-act-lessons-from-the-obama-administration-and-current-compliance-practices
 [Statements will probably be added.]

SENATE LOBBYING DISCLOSURE DATA BASE: https://www.senate.gov/legislative/Public_Disclosure/LDA_reports.htm
FARA DATA BASE: https://www.fara.gov/quick-search.html

“September 7, 2016
DOJ OIG Releases Report on the DOJ’s Enforcement of the Foreign Agents Registration Act

The Department of Justice (DOJ) Office of the Inspector General (OIG) announced today the release of a report examining the DOJ National Security Division’s (NSD) enforcement of the Foreign Agents Registration Act of 1938 (FARA). The DOJ OIG concluded that the DOJ lacks a comprehensive FARA enforcement strategy, and that such a strategy should be developed and integrated with the DOJ’s overall national security efforts. The OIG initiated this review in response to a requirement by the U.S. House of Representatives Committee on Appropriations that the OIG review the DOJ’s enforcement of FARA.

FARA requires persons acting as agents of foreign principals—which includes foreign governments, political parties, and individuals—in a political or quasi-political capacity to make periodic public disclosure of their relationship with the foreign principal, as well as activities, receipts, and disbursements in support of those activities. A willful failure to register as an agent of a foreign principal may result in criminal prosecution and a sentence of a fine and up to 5 years in prison. The DOJ can also seek to enjoin a party from acting as an agent of a foreign principal in violation of FARA.

The specific findings in today’s report include:

• The number of FARA registrations has declined in the last two decades, and prosecutions and other enforcement actions are rare. The number of FARA registrations peaked in the 1980’s, with a high of 916 registrants in 1987, and began to fall sharply in the 1990’s. The DOJ has not performed an analysis on the decline, but NSD officials speculated that the imposition of FARA registration fees in 1993 and the passage of the Lobbying Disclosure Act, which carved out a significant exemption to FARA in 1995, were likely factors. Between 1966 and 2015, the DOJ only brought seven criminal FARA cases, and it has not sought civil injunctive relief under FARA since 1991. . . . NSD needs to improve its controls and oversight of FARA registrations, particularly its efforts to ensure the timely submission of required documents and its inspections of registered foreign agents. We found that 62 percent of initial registrations were untimely, and that 50 percent of registrants filed at least one supplemental statement late. We also found that several inspection recommendations issued by NSD’s FARA unit remained unresolved, and we believe that NSD can further improve its monitoring efforts by developing a policy to ensure appropriate resolution of recommendations identified in its inspection reports.

• NSD has developed several proposals for legislative changes to FARA that could improve enforcement efforts. For example, NSD officials told us they have difficulty compelling the production of information from persons who may be agents, and therefore are pursuing civil investigative demand authority from Congress to help enhance the NSD’s ability to assess the need for potential agents to register. While we concur that CID could be a useful tool for NSD, there are important competing considerations at stake, and we believe that any expansion of such authority must also include appropriate controls and oversight to ensure it is used appropriately. . . .” Read entire summary here: https://oig.justice.gov/press/2016/2016-09-07.pdf

Recommendations from “Office of the Inspector General U.S. Department of Justice, Audit of the National Security Division’s Enforcement and Administration of the Foreign Agents Registration Act Audit Division 16-24 September 2016” https://oig.justice.gov/reports/2016/a1624.pdf
“We recommend that the National Security Division:

1. Consider the value of making FARA advisory opinions publicly available as an informational resource.

2. Update its current training for investigators and prosecutors to include information about the time it takes and the process used by NSD to approve or deny these types of cases for prosecution.

3. Explore with the FBI the feasibility of distinct classification codes for FARA and Section 951 in its record keeping system.

4. Develop a comprehensive strategy for the enforcement and administration of FARA that includes the agencies that perform FARA investigations and prosecutions and that is integrated with the Department’s overall national security efforts.

5. Ensure that it timely informs investigators and prosecutors regarding the reasons for decisions not to approve FARA prosecutions.

6. Establish a comprehensive system for tracking the FARA cases received for review, including whether cases are approved for further criminal or civil action, and the timeline for approval or denial“. https://oig.justice.gov/reports/2016/a1624.pdf