Recent revelations have confirmed that former Trump national security advisor Michael Flynn lobbied for foreign interests while he was working on the campaign without registering as a foreign agent with the Department of Justice (DOJ) as required by the Foreign Agents Registration Act. This is only the latest example that shows a formal review of the effectiveness FARA is overdue.
The Project On Government Oversight (POGO) included several proposed fixes to FARA in our 2017 Baker’s Dozen of Suggested Congressional Oversight Priorities and Legislative Reforms based on our foreign lobbying investigation.
Flynn spent only 24 days in the White House before being forced to resign when it came to light he withheld information about his connections to the Russian government.
Before joining the administration, Flynn had been hired by a Dutch firm in August 2016 to promote Turkish interests in the wake of a failed military coup. He had filed reports on his activities and those of his company, Flynn Intel Group Inc., under the Lobbying Disclosure Act (LDA), but not under FARA. It wasn’t until after he left the Trump administration that he and his firm informed the DOJ of his work.
The White House has claimed that Trump was not aware of Flynn’s foreign lobbying work, though The New York Times reported that Flynn contacted White House lawyers before and after the inauguration to find out if he should register his activities with the DOJ. And Flynn’s lobbying work for Turkey was also widely reported back in November.
In addition to Flynn’s failure to register his foreign lobbying work with the DOJ, he also did not alert the Pentagon about his activities. Under Pentagon rules, former military officers must request permission from the Defense Department before accepting any kind of foreign employment. An Army spokeswoman told The Washington Post that there was no record of Flynn requesting permission from the Department.
Flynn cited an “uncertain standard” as the reason he filed his activities under the far less strict LDA instead of FARA. An exemption under FARA does allow some foreign lobbyists to register under the LDA but only if they are representing foreign commercial interests and not a foreign government or political party. However, if the “principal beneficiary” of the work is a foreign government, the lobbyist must register under FARA even if that foreign government isn’t the actual client. Exactly what that means is not well defined in the law or regulations, so Flynn is correct in saying there is an “uncertain standard.”
An additional complication is that foreign governmental and commercial interests are not always as distinct from one another as they are in the United States. And unlike FARA requirements, the LDA allows those with lobbying income or expenses below a certain threshold to forgo registering. So if a lobbyist representing foreign commercial interests falls below the LDA threshold, they are exempt from registering under either statute.
This loophole was spotlighted by President Trump’s Executive Order requiring all appointees to sign an ethics pledge. The order imposed a lifetime ban against administration officials leaving office to conduct any lobbying that would require them to register under FARA. Flynn reportedly never signed the pledge, which raises questions about who else in Trump’s administration hasn’t signed it.
And Flynn isn’t the only Trump connection who has possibly run afoul of FARA. A recent Associated Press story revealed that Paul Manafort, formerly President Trump’s campaign manager, secretly worked on a plan to “greatly benefit the Putin Government.” The AP reported that Manafort first proposed this plan in 2005 and worked with a close Putin ally until 2009. Manafort did not disclose these activities to the DOJ.
Last year, a DOJ Inspector General (IG) audit of FARA enforcement found that the lack of compliance with the law is “unacceptable.”
The FARA enforcement unit within the DOJ has a “limited staff” with a range of responsibilities. These do include regular reviews of LDA filings to determine if there are lobbyists who should be filing under FARA, but clearly there are some falling through the cracks. The office relies primarily on “voluntary compliance” with the law and rarely pursues criminal or civil charges when law breaking occurs. Perhaps most frustratingly, the DOJ IG found that not all of the parties involved in enforcing the law agree on its intent and what makes a FARA case prosecutable.
It is long past time for FARA reform. POGO offered several recommendations that could improve enforcement of the law including encouraging the Department to use the enforcement tools they already have, incorporating civil fines into the laws, and performing a formal assessment of the LDA and other exemptions to determine whether legislative changes are warranted.