WASHINGTON (AP) — FBI agents and federal prosecutors disagree over the intent of a foreign lobbying disclosure law, creating confusion within the Justice Department and complicating enforcement, according to a government watchdog report released Wednesday.
The report from the department's inspector general found that prosecutors and agents are at odds on how best to enforce the Foreign Agents Registration Act and on what constitutes a prosecutable case. The 1938 law, known as FARA, requires lobbyists to register if they represent foreign leaders or their political parties, and to disclose details about their work, including how much money they spend and receive.
The law is enforced by a unit within the Justice Department's National Security Division, but few criminal prosecutions are brought and the number of registrations has dropped significantly in the last few decades.
Investigators interviewed for the report said Justice Department prosecutors were slow in reviewing possible cases and reluctant to approve charges, while prosecutors said the primary purpose of the law was to ensure proper registration and public disclosure — and not to pursue criminal charges.
Though willful failure to register under FARA can carry up to five years in prison, only seven criminal cases have been brought in the last 50 years. Justice Department prosecutors say they face a high legal burden in proving that a violation was willful and that lobbyists are under the "direction and control" of a foreign government. They also say their powers are limited because they can't compel lobbying firms or others to turn over documents, and are pursuing authority to do so from Congress.
Prosecutors say investigators interviewed for the report appeared to confuse FARA, primarily a disclosure statute, with a related law that punishes espionage-like behavior on behalf of foreign governments or individuals. They say that that confusion "can lead to undue weight being given to criminal prosecution as the measure of FARA enforcement."
The inspector general made 14 recommendations, including that the Justice Department improve its oversight of FARA registrations and update its training for investigators or prosecutors. In a written response, the department said it had begun carrying out the recommendations and agreed with the importance of having a comprehensive FARA strategy and a better system for tracking cases.
"The National Security Division appreciates the time and effort taken by the Office of the Inspector General to conduct its audit," spokesman Marc Raimondi said in a statement. "We agree with the report's recommendations and in fact had already taken steps relating to several of the IG's observations prior to the audit. We continue to take additional steps now and look forward to maintaining a productive dialogue with FARA stakeholders on how to ensure the program remains able to continue fulfilling its role in helping protect our national security."
FARA was enacted in 1938 as a counter to German propaganda agents in the U.S. The number of registrations peaked in 1987 with a high of 916, but began to fall sharply in the mid-1990s, with only 360 active registrations at the end of 2014, according to the report.
Justice Department officials say they think the decline may be tied to filing fees first imposed in 1993 as well as the passage of the Lobbying Disclosure Act, which imposes less stringent requirements and carved out an exemption to the law, according to the report. The review found 62 percent of registrations were submitted late, though the Justice Department says that more than half of the filings classified as late were filed within 30 days of the filing deadline.
"All of this added up to our overall conclusion that the Justice Department lacks a comprehensive FARA enforcement strategy — and that such a strategy should be developed and integrated with the DOJ's overall national security efforts," Deputy Inspector General Rob Storch said in a podcast interview posted on the inspector general's website.
The Associated Press reported last month that a firm run by Donald Trump's campaign chairman Paul Manafort directly orchestrated a covert Washington lobbying operation on behalf of Ukraine's ruling political party. However, Manafort and his deputy, Rick Gates, never disclosed the work under FARA. Manafort and Gates said the registration was not necessary, but Manafort resigned his position with the Trump campaign.
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