Washington’s unregistered foreign agents, who in the past have tread the gray areas between legal and illegal with impunity, should be nervous about special counsel Robert Mueller’s investigation.
Most Americans focus on the former FBI director’s probe into possible collusion between Donald Trump’s presidential campaign and the Russians in 2016. Yet many of Mueller’s indictments, to date, revolve around a rarely enforced law that requires the lawyers, lobbyists and public relations specialists hired by foreign powers to register with the Justice Department.
For decades, the department didn’t waste too many resources on catching violators of the Foreign Agents Registration Act, or FARA. Those days however appear to be over.
Just look at Mueller’s latest indictment of Alex Van Der Zwaan, a former lawyer with Skadden Arps. He pleaded guilty to lying to the FBI about his past communications with a former Trump campaign adviser, Rick Gates. But these communications revolved not around Russian meddling in U.S. politics, but around work Van Der Zwaan’s law firm did on behalf of Victor Yanukovych, the former pro-Russian president of Ukraine. The law firm produced a paper defending Yanukovych’s decision to prosecute and jail another former Ukrainian president, Yulia Tymoshenko.
In October, Mueller charged Gates and former Trump campaign chairman Paul Manafort with a host of crimes. These ranged from making false statements to laundering money. But the heart of that indictment was the failure of Manafort and Gates to register as foreign agents on behalf of Yanukovych.
Even the plea agreement for Michael Flynn, the retired general who was Trump’s first national security adviser, is connected to this crackdown on foreign agents. It acknowledged that he failed to register as an agent of Turkey in 2016 when his firm was paid more than $500,000 by a Turkish businessman connected to the country’s president.
So far it’s unclear what any of this has to do with Russian collusion. Mueller’s mandate is wide and he has a lot of discretion to go after criminal activity where he finds it. We also don’t yet know what Flynn or another former Trump campaign aide, George Papadopoulos, are telling Mueller’s prosecutors.
On thing though is clear: the unofficial policy of treating FARA violations with a slap on the wrist is coming to an end. Let’s start with a little history. According to a 2016 report from Justice Department’s inspector general, the United States only brought seven FARA criminal violations between 1965 and 2015. The report says that FBI agents complained that the Justice Department’s National Security Division “was generally slow” and “reluctant to approve FARA charges.” When a violation was discovered, the penalty was often no more than a requirement to register as a foreign agent retroactively.
What’s more, passage in 1995 of the Lobbying Disclosure Act gave many foreign agents an option to file under this less stringent legislation for their work on behalf of foreign think tanks and corporations. This is the loophole that was first used by Flynn, who filed under the law in 2016 for his firm’s work on behalf of Turkish businessman, Ekin Alptekin.
The Justice Department’s inspector general, Michael Horowitz, in testimony before Congress last July credited the Lobbying Disclosure Act as one reason why there has been a decline in FARA registrations since the mid-1990s.
And while Mueller’s indictments so far have focused on Russian nationals and U.S. officials close to the Trump campaign, many Democrats are also vulnerable to a crackdown on FARA violations. Former White House general counsel for President Barack Obama, Greg Craig, was one of the lawyers at Skadden who helped prepare the paper that whitewashed Yanukovych’s prosecution of Tymoshenko.
The Podesta Group, run by Tony Podesta — brother of Hillary Clinton’s campaign chairman, John Podesta — worked with Manafort to represent the former Ukrainian president through a bogus think tank known as the European Centre for a Modern Ukraine. Podesta resigned at the end of October, after Mueller’s indictments of Manafort and Gates.
None of this speaks to the other charges against Manafort and Gates, including money laundering and wire fraud. Nor does Mueller’s focus on FARA preclude potentially more serious indictments down the road for conspiracy with Russia to receive the emails stolen from leading Democrats. John Podesta was the most prominent victim of Russian hacking during the election.
Mueller’s focus on FARA, however, does signal a new era for foreign lobbying in Washington. For more than half a century, lobbyists for foreign interests could obscure their advocacy with little risk. Now a former FBI director whose bureau took little interest in this matter has made it a centerpiece of the most important U.S. political investigation since Watergate.
Eli Lake is a Bloomberg View columnist.