By Kevin Bogardus - 10/28/11 10:00 AM EDT
The Justice Department has amped up enforcement of a law that governs advocacy in the United States on behalf of foreign governments and political interests.
Others who advise clients on the foreign lobbying law agree that enforcement has increased.
“They have dramatically ramped that up,” said Rob Kelner, who leads the political law practice at Covington & Burling.
In an update sent to clients last week, Covington & Burling said it seems that Justice “is continuing to expand its enforcement activities of this often-overlooked statute, this time targeting those that the department believes should have registered under the statute for doing work on behalf of a foreign entity.”
Covington’s memo said Justice will typically “cite news articles or other public information that appears to suggest a connection between the letter’s target and an entity abroad.”
Kelner said a “wave of audits” under FARA began about two years ago.
“No one who I talk to had seen a FARA audit in many, many years,” Kelner said.
A spokesman for the Justice Department said the agency has and will continue to be “proactive” in enforcing compliance with FARA.
“The Justice Department’s Foreign Agents Registration Act (FARA) Unit has been and continues to be proactive in its efforts to ensure compliance with the requirements of FARA and to determine whether persons or entities should be registered under FARA,” said Dean Boyd, a Justice spokesman, in an email.
FARA is a much broader law than the better-known Lobbying Disclosure Act (LDA).
Any attempt to influence U.S. policy of behalf of a foreign government, political interest or foreign government majority-owned company requires registration under FARA. That goes beyond traditional lobbying and often means public relations, strategic consulting and legal work for foreign interests are disclosed to Justice.
The FARA Unit has seen a surge of missing and late documents flow into its office this year. In 2011, more than a dozen law firms, PR shops and tourism offices have filed supplemental reports and contracts that detailed work they completed years ago.
In January, Elizabeth Tesolin Hamilton, a consultant, filed six supplemental reports all on the same day, according to Justice records. Hamilton was representing Development Economic Western Switzerland, which wanted to attract investment to Europe.
In July, Brown Lloyd James filed 11 supplemental reports describing the global PR firm’s foreign client work dating back to 2006. The firm also begin filing several new contracts this summer with Justice. The new documents detailed advocacy on behalf of clients like ones with ties to Libya, Syria and Qatar.
Justice “has been very engaged in the entire process, which is very helpful to a small firm like ours,” Brown Lloyd James said in a statement. “We have had ongoing contact with them for a number of years, but most of our recent contact came after we conducted an internal audit and hired legal counsel to assist us in cleaning up and updating our registrations. As we prepared a set of registrations and clarifications, we found [Justice] to be aggressive and helpful in ensuring we completed the filings properly and on time.”
Also in July, the law firm Maggs & McDermott filed three supplemental reports on the same day. The firm was helping the Iraqi prime minister’s office with litigation claims made against the former regime of Saddam Hussein for state-sponsored terrorism.
Timothy Mills, managing partner of the law firm’s Washington office, declined to comment.
Others confirmed they had been contacted by Justice.
In March, the Monitor Group, a Cambridge, Mass.-based consulting group, hired Covington & Burling to begin an internal investigation into whether or not it should have filed forms with the Justice Department’s FARA Unit for its work on behalf of Libya and other foreign governments.
“The investigation was well under way by the time that Justice contacted the firm about FARA. Shortly thereafter, the firm got in touch with Justice and told them about their investigation,” said Larry Kamer, a spokesman for Monitor Group.
Monitor Group has subsequently filed several documents with Justice detailing its foreign client work.
Justice said it does not comment on any contact it may have with other firms regarding FARA.
“As a matter of longstanding policy, the FARA Unit does not publicly confirm or deny contacts with any particular entity or person in connection with potential FARA obligations,” said Boyd with Justice.
There have been several high-profile FARA cases in recent years.
In August, two men were charged with violating FARA by not registering as agents of Pakistan’s Inter-Services Intelligence Agency. According to Justice, the two were helping to run a think tank that supported Kashmir’s independence from India.
In 2010, former Rep. Mark Deli Siljander (R-Mich.) was convicted on a FARA-related charge after not registering his work on behalf of the Islamic American Relief Agency in Columbia, Mo.
Kelner said Justice uses FARA as “a convenient tool in espionage and terrorism cases.”
Violating FARA is a serious issue. If convicted, one could face up to five years in jail or $10,000 in fines.
Audits under FARA can be intense. While some material may be protected under the attorney-client privilege, firms can see their financial records and computers opened up to Justice investigators.
“They can come in pretty much at any time they want and look at your books and documents that are FARA-related. They can check your emails,” Kelner said. “It can be very intrusive.”
Attorneys did not know why Justice is becoming more aggressive in its enforcement of FARA.
“I believe that journalists have become more interested in the FARA filings and that may have prompted the office to become more active,” said Daniel Waltz, a partner with Patton Boggs.
Others suggested it might fit in with the White House’s narrative of crusading against K Street.
Sandler noted the enforcement of the LDA falls under the more independent U.S. attorney in Washington, D.C., while Justice is typically more responsive to an administration’s legal goals.
“The whole crackdown on lobbyists by the administration may have something to do with this. This is the one lobbying law that they can enforce directly,” Sandler said.