Plea Agreement Hints at Justice Department’s Expanded Reading of the Foreign Agents Registration Act

In recent months, we have highlighted trends of increased enforcement and increasingly aggressive interpretation of the Foreign Agents Registration Act by the Department of Justice.  These trends are evidenced in the Justice Department’s announcement last week that the President of the Pakistan American League, Nasir Adhem Chaudhry of Maryland, had agreed to plead guilty for failure to register under FARA.  The case is unusual in several respects.

FARA prosecutions themselves are few and far between.  In 2016, the Justice Department’s Office of Inspector General reported that, over the last 50 years, the Justice Department had brought only seven criminal FARA cases.  Any FARA prosecution itself is therefore inherently notable.  Moreover, while criminal penalties have always been possible, the FARA Unit has typically adopted a “voluntary compliance” posture, often seeking to resolve matters through the filing of late registrations and reports.  The fact that FARA charges were filed at all therefore suggests a continued shift away from voluntary compliance and towards criminal prosecutions.

The case is also notable because the plea agreement’s stipulated facts focus primarily on Mr. Chaudhry’s “information gathering” role for the Government of Pakistan, stating that Mr. Chaudhry engaged in activities “to obtain and manage information on … the status of the United States Government’s policies regarding Pakistan, and its views of, and intentions towards, Pakistan.”  For example, he allegedly made contacts at think tanks “to obtain in-depth information regarding the United States government’s policies towards Pakistan.”  This heavy focus on information gathering is curious because information gathering for a foreign principal, without more, has not in the past necessarily been viewed by the Department of Justice as triggering FARA registration.  Rather, FARA registration can be required by, among other things, engaging in activities that are intended to influence the U.S. Government or a section of the public with respect to U.S. domestic or foreign policies.  In addition, acting as a “political consultant” might trigger FARA, but DOJ had previously interpreted this provision narrowly, telling Congress in 1989 that the term “political consultant” requires more than “merely advising the foreign principal,” and instead requires such things as “arranging meetings with U.S. Government officials on its behalf or accompanying the principal to such meetings.”  Thus, many of the key facts listed in the stipulation — which emphasize Mr. Chaudhry’s information gathering and, to a lesser degree, his political consulting roles — do not obviously support a FARA charge as the statute has previously been interpreted.

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