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DOJ announced it will place a former Mueller prosecutor in charge of #FARA enforcement and shift "from treating FARA as an administrative obligation... to one that is increasingly an enforcement priority.” MY THOUGHTS IN THREAD:
The announcement is the prosecutorial equivalent of a ribbon cutting. DOJ has built its staff and signaled more aggression on FARA the past 18 months, but this is the grand opening of a new FARA enforcement era.
DOJ’s FARA Unit has been led by good and competent lawyers, but they (purposely) have not acted like traditional prosecutors and haven’t been perceived that way. Appointment of Van Grack—an accomplished prosecutor—is a bigger sea change than it might seem.
Representations involving Russian, Chinese, Persian Gulf interests are all likely to receive more scrutiny in the near term.
DOJ’s shift to criminal prosecutions may be easier said than done. To be criminal, a FARA violation must be “willful” (i.e. done with knowledge that the conduct was unlawful). That’s a high standard to establish beyond reasonable doubt.
In fact, DOJ has already acknowledged “[t]he high burden of proving willfulness, difficulties in proving ‘direction and control’ by a foreign principal, and exemptions available under the statute make criminal prosecution for FARA violations challenging.“
This shift matters to the regulated community because it’s a signal that lobbying, law, and public affairs firms are now on notice that they need new + better Client Intake processes. Firms will need to know their clients and monitor representations.
