Lawfare Daily: The Proposed New FARA Regulations, with DOJ Official Jennifer Gellie

[Intro]

Jennifer Gellie: For us, it's really irrelevant what the content is. What's relevant is, is there an agency relationship with someone or something abroad? And are you engaged in conduct that FARA intends for the American public to know about based on that agency relationship?

Scott Anderson: It's the Lawfare Podcast. I'm Lawfare Senior Editor Scott R. Anderson with Lawfare contributing editor Brandon Van Grack and Jennifer Gellie, chief of the Counterintelligence and Export Control Section in the National Security Division of the U.S. Department of Justice,.

Jennifer Gellie: It really just goes back to the plain language in the statute itself, which says you can be engaged in political activity as long as you're not serving predominantly a foreign interest. And that's what all of these factors are aimed at doing is helping individuals who think they might have an obligation try to figure out, is what I'm doing predominantly domestic or is it predominantly foreign?

Scott Anderson: Today, we're discussing the proposed new regulations the Justice Department has rolled out for implementing FARA, the Foreign Agents Registration Act.

[Main Podcast]

Brandon Van Grack: So, Jenny, as chief of the Counterintelligence and Export Control Section, which is a mouthful, you say CES and that's what we're going to do going forward. Again, a lot of words there, Counterintelligence and Export Control Section. So there are a lot of things we could talk about, but what we're going to focus on is the Foreign Agents Registration Act, which is FARA. So we're starting with two acronyms, but hopefully that will fade.

And so, in particular, to talk about it now is not just because there's been sort of an influx in folks on enforcement, but because the Department of Justice and you have just proposed new regulations. And for anyone that is tracking those proposals are getting a lot of press and a lot of attention focus in terms of some of the changes connected to them.

And so before we jump in, I think it would be helpful to talk a little bit and sort of set the groundwork of what is FARA, what has changed, and then we're going to, we're going to talk about some of those proposed regulations. So, maybe just to start, I think it'd be helpful for, for listeners to hear a little bit about your background and, and with a particular focus on FARA.

Jennifer Gellie: Great. Thank you, Brandon, and thank you for pronouncing FARA correctly. One of my pet peeves is ‘fah-ra’. It is FARA and that goes back decades. But as for myself, I started out my legal career with over six years as a big law associate focusing on corporate litigation. During that time, I detailed out to the Middlesex DA's office where I was able to rack up a dozen criminal trials.

And confirm I had the prosecution bug, which led me to pivot and come into CES as a line prosecutor, doing the breadth of CES's work. So I did export and sanctions cases, cyber cases, counterintelligence, and of course foreign malign influence, which is where FARA comes in. I really focused on counterintelligence.

I did the Kevin Mallory espionage trial. Mariam Thompson, I charged with Espionage Act violations for passing source details to a person affiliated with Hezbollah. And then, ultimately, I promoted up and took over for Brandon as the deputy chief for Counter Foreign Malign Influence. And in that role, I was also the FARA Unit Chief.

So I've been really thinking about FARA issues for many years now and I'm passionate about the FARA space. Starting in 2023, I became the acting chief of CES and for a while the executive deputy chief performing the duties of chief. But now as I sit here today, I am the chief without any modifiers of CES.

Brandon Van Grack: And so, you know, your time at CES, it's going to take a while for the listeners to get adjusted to what CES means. So I'm going to say one more time, counterintelligence and export control. So during your time, it, it intersects with really this focus on FARA.

Before we get to sort of maybe the, how that sort of focus has come, maybe just to talk about the origin story. So I wonder if you could sort of talk to the listeners about sort of what is FARA? How did it begin? And then we can talk maybe, you know, what it looks like today.

Jennifer Gellie: Of course, so foreign influence is not a new concept, and I'm gonna read a quote. And it comes from George Washington in his 1796 farewell address, when he says, against the insidious wiles of foreign influence, I conjure you to believe me, fellow citizens. The jealousy of a free people ought to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of republican government.

So there's always been foreign influence, right? There's diplomacy, that's foreign influence. We expect countries to do that. What we have become increasingly focused on in the National Security Division is the malign flavor of foreign influence. And we have the statute FARA that actually goes back a long way to 1938. And again, foreign influence wasn't new even in 1938.

But in 1938, Congress was really concerned about Nazi and communist influence campaigns in the United States in the lead up to World War II. And so they passed the statute, the Foreign Agents Registration Act, FARA, which is a transparency statute at its core. So what the statute really wants folks to do is just go ahead and register to provide transparency as to the activities of foreign agents in the United States on behalf of what we call foreign principals under FARA.

And foreign principals are defined in the statute. It's what you would expect. It's foreign governments, foreign political parties, but then it's also broader than that. It's also any person abroad, who's not domiciled in the United States. And it's also foreign companies. And so FARA kind of broadens in certain places and narrows in others, but it's very broad on the definition of foreign principal.

And so what the statute requires is if you are acting as an agent of one of those types of foreign principals, you file a registration statement with the FARA unit which sits in CES. And in that statement, it's about eleven-and-a-half-page form. You can do it online now, fara.gov if you think maybe you need to register.

You describe the nature of your relationship with the foreign principal. You describe all of your activities on behalf of the foreign principal. We're going to find out about the sources of payment to the agent in the United States. We're going to find out about all the disbursements that agent is making for their foreign principal, down to the level of detail of, I spent 12 dollars on an Uber up to Capitol Hill to talk to a congressional staff.

We're also going to find out all of the events and meetings with government officials. They're going to have to label anything we call informational materials, any content that goes out into the world on behalf of that foreign principal. So if there's an op-ed in the newspaper, a blog post, they go on a podcast, they have to have that conspicuous statement saying they work for a foreign principal.

We also find out about their campaign contributions and that requirement actually goes back six months before they even register. So on the day you register, you have to go back in time and let us know which politicians campaigns you've been contributing to.

And the key thing here is the statute itself is actually not prohibiting any activity or speech. The statute is viewpoint neutral. So the agent can say or do whatever they want. They just have to register and disclose what they're doing and then again label that content. And we're getting those supplemental filings every six months.

Because what FARA wants is for listeners, readers of content to be able to assess that content with full information. And part of that full information being that there's kind of a voice behind the voice when an agent is speaking on behalf of a foreign principal.

Brandon Van Grack: You know, I'll say the George Washington quote is very popular in the National Security Division of the Justice Department.

Jennifer Gellie: It's a good quote.

Scott Anderson: So, before we go on and talk about the FARA unit itself, let's talk a little bit about the trajectory FARA has been on, because it's a statute that's been around for the better part of a century at this point.

And I think it's fair to say for a couple decades there had kind of faded into the background a lot. Not something people heard a lot about. There were a lot of discussions about lapses in compliance, lapses in enforcement, for extended period.

And then over the last 10 years or so, somewhat even maybe a little longer, particularly over the last 10 years, it's seeing this renaissance in a way. Talk to us about what that is. Why is this statute becoming more relevant? What's driving that? And how is that manifested? How does that impact how Justice Department is approaching FARA?

Jennifer Gellie: Sure, and so there's two pieces to that. So number one is how has FARA, the statute, evolved over time? And then number two, how has enforcement focus evolved over time? So right now as to the statute, originally, like I said, the purpose of the statute or the impetus in 1938 was Nazi and communist propagandists and that was the terminology being used. And it focused on political propaganda.

The current scope as we sit here today after a couple revisions is actually much broader than that. We no longer talk about political propaganda. We're looking at any attempt to influence U.S. government decision making or American public opinion. And instead of saying propaganda, we talk about informational materials. So again, that's podcasts, that's op-eds, that's tweets, that's any type of content you're putting out for the foreign principal.

So that's evolved over time, and that's part of what has allowed FARA to withstand the test of decades, is that it has kept a pace, for the most part, with changes in the way foreign agents are disseminating information and the way they're operating. Now as far as enforcement focus, I would say 2016, 2017 was a really pivotal point in time, and a couple things happened.

So first, in September of 2016, the Department of Justice's Office of Inspector General released a report, finding that NSD lacked a comprehensive enforcement strategy when it came to FARA. And we can talk later about sort of some changes I would envision moving forward if Congress were so inclined. Some of those things had to do with just how the statute is itself that we can't really control at the Department of Justice. But other things were enforcement focuses, structural changes we were able to make.

And the second thing that happened in that time period that led us to pivot on how we really looked at enforcement of the statute was that following the 2016 election, the intelligence community came out publicly and said that foreign actors had been emboldened to attempt to meddle in our democratic elections. And so those two things happening kind of close in time led the department to take a really keen editing eye to how we enforce both on the criminal and the civil side of things.

And in the early days, even before we structurally changed how we looked at it, we saw the department bringing several high profile foreign malign influence prosecutions using both FARA and then a second tool in our toolkit, 18 U.S.C. section 951, which sounds very similar because it also talks about foreign agents. But that statute makes it a crime to act as the agent of a foreign government in the United States without prior notice to the Attorney General.

So you saw in 2017, 2018, 2019, a series of pretty high profile prosecutions in a space where there really hadn't been those types of prosecutions. It's probably about 2010. So as that was going on, we also looked at, okay, well, how can we change how we supervise, both the civil enforcement—which, you know, with FARA we want 99 percent of the action to be on the administrative side because what we really want is for folks to comply, to register, for that transparency to be there for the American people. But we restructured on that side and the criminal side.

And so the biggest thing we did is we broke the FARA portfolio out of CES's counterintelligence portfolio. And so this meant we now had a criminal prosecutor, and it feels weird to talk about Brandon in front of his face, but Brandon was the inaugural—

Brandon Van Grack: I’ll stop looking at you.

Jennifer Gellie: deputy chief. So we now had a criminal prosecutor focus on nothing but foreign malign influence investigations, rather than having to split that focus in a deputy chief that also had espionage and economic espionage and a pretty sprawling portfolio. At the same time, we changed how the FARA unit. was supervised on the civil administrative side.

And so that same deputy chief wore a second hat and was the FARA unit chief. Because again, the FARA unit sits within CES. And it was sort of helpful to have one person looking holistically at the entire problem set rather than stove-piping the civil and criminal sides of the enforcement house.

And so we've continued that model. We're now, you know, three unit chiefs in, and I'm biased because I was one of those unit chiefs along the way. I think it works. I do think that holistic approach has really helped increase the communication between the civil and the criminal in appropriate ways. Obviously, there's always some walling as far as parallel proceedings, but I think it really has led to better communication and better communication has led to better enforcement.

Scott Anderson: So let's build out a little bit about the structural element, because this idea about how we are going to structure the leadership of this unit, assign responsibilities, often trickles down to the bureaucracy. What does the FARA unit look like today? Like, how big is it? And what are those people doing? Like, what is the investigative strategy, the regulatory strategy?

Because it's a unique role to be in the Justice Department, an agency defined as criminal prosecution being the main bread and butter, but you're serving this regulatory role. So who are you pulling in and how does it integrate with other federal agencies?

Jennifer Gellie: Yeah, so it is a small but mighty unit and not enough people do a lot of great work. So right now the FARA unit again continues to sit within CES reporting up through a FARA unit chief who is also a deputy section chief. It consists of attorneys, administrative staff who help process the actual registrations coming in on fara.gov. And then the real engine of the FARA unit are the analysts.

The analysts are the ones who are going to have the most day-to-day engagement with FARA registrants. They are looking at every single filing. They're flagging delinquencies and deficiencies. The analysts are flagging registrants for inspections of books and records, because we don't have compulsory civil process. But the one compulsory tool we have is that the statute does say, if you are a FARA registrant and we want to inspect your books and records, you shall make those available for inspection.

So the analysts are looking through the documents provided as part of those inspections. And they're helping registrants get back into compliance where there is an issue. And currently we have six attorneys in the FARA unit. We have five analysts and then a six where we're backfilling. We had a beloved analyst who just retired, miss her dearly already. But six analysts when we're full force. And then we have three administrative professionals who help keep the trains moving on time as well.

Scott Anderson: Curiosity, one thing we've seen in the last few years is a lot of talk about Congress getting involved in the FARA game to some extent. We've seen congressional committees make very public referrals at times to the FARA unit, the Justice Department, kind of pursue their own investigations in some cases saying certain groups, organizations might have taken foreign funding in ways that are appropriate or inappropriate.

How does that integrate with what the unit does as well as other agencies? Like what is, what are the sorts of engagements? Are there other agencies you coordinate with regularly, like the State Department, who obviously has an equity in this? And do they feed into this regulatory and enforcement regime in a kind of unique way? Do they have parallel units that you work with a lot?

Jennifer Gellie: Sure. So starting with Congress, we are required to do semiannual reports to Congress. So as far as the information going in that direction, every six month reporting period, we're doing a semiannual report. One of the things I revamped during my time as FARA unit chief is they are now electronic. We used to have to make these beautiful bound copies and it wasn't clear to me that a lot of people were actually reading the physical copies.

Because the most helpful change we've done in recent years is the actual semiannual report. Now it's digital. It lives on fara.gov so that Congress and anyone in the American public can read the report. We hyperlink to the actual FARA registration statements. So if you're scrolling through all of the registrants during that six month period and you want to actually look at what they were up to, you can just click on that link. It'll take you straight into our database and you can look at what they've been doing.

Now as far as referrals from Congress, I will say the FARA unit is going to look at any inbound referral. And so it doesn't just have to come from Congress. Congress is sort of treated fairly similarly to any other referral, so something comes in the door and someone says, hey, I've seen this information. I think there might be a FARA registration obligation here.

We are always going to assign that to an analyst/attorney duo to kick the tires to say, see, are there other articles out there about this conduct? Do we think this person should get a letter from the FARA unit? Do we think this person is willfully violating the statute? And I'll pause to explain those two things.

So we have sort of two tracks, two parallel tracks we can proceed on with an inbound referral. On the civil side, like I said, we don't have compulsory legal process, so we can't cut a civil subpoena, a civil investigative demand. So what we have is the letter of inquiry.

And so that's a letter that's going to come out from Evan Turgeon as FARA Unit Chief that says, hello, we saw this article in the paper. It says that you were going door to door on Capitol Hill talking about this issue of interest to the kingdom of Narnia. We think maybe you have an obligation to register for Narnia. Here's what FARA is, here's why we think maybe it's possible you have an obligation.

And then it's voluntary. So the recipient of that letter can choose how much information to send back to us and to engage with us. Most people do engage with us. So we start that conversation. But if a referral comes in and it looks like the person who's doing some sort of FARA registrable conduct is already aware of the obligation, and is choosing not to comply with the law, then it's rising to that level of willfulness.

And that's the difference between civil FARA and criminal FARA. To charge a criminal FARA case, there is a heightened, intent standard for FARA. It is the highest intent we're going to be looking at as criminal prosecutors, which is you know you are violating some sort of legal obligation. So if it comes in and it looks like there's that willfulness, you're not getting a letter from the FARA unit.

We're gonna go convene a grand jury with one of the criminal prosecutors in CES, and we're gonna start cutting grand jury subpoenas. And you may not know we're doing that for a period of time when we're investigating behind the scenes. And so those are sort of the two tracks. But any referral that comes in the door, from Congress, from a sister agency, we're going to look at it and see what's going on there and figure out if that's something we should be enforcing either civilly or criminally.

Brandon Van Grack: You know, I don't know how, how well you could answer this question, but can you talk about what it is, the standard for if you read an article or receive a referral from Congress, when you would open an investigation. So, for example, if we read in the paper tomorrow an allegation that an individual is, you know, they say the words FARA in there and they sort of, A, you know, there's an allegation.

Is an article by itself alone? Do you sort of need sort of additional, you know, open source or independent research to open one? Like, ultimately, how do you think about the standards you use to sort of open an investigation?

Jennifer Gellie: On the criminal side, I take it you're asking? Or on either side?

Brandon Van Grack: I'd say both, but really on the civil side, because you open far more investigations on the civil side than on the criminal side.

Jennifer Gellie: Yeah, so on the civil side, that is going to be a lower bar, right? We're talking about a statute that is a transparency statute. We want to find the people who should be registering. I would say if it's credible reporting, it's from an outlet that is a known outlet, that's likely going to be enough to send a letter.

Sometimes it might be from a source we're not as familiar with and we might want the analysts to do a little bit of their own research and see if there's other reporting out there in the world that seems to corroborate what we're seeing. But I think rightfully so, the standard for engaging in that noncompulsory communication letter is pretty low. Because, you know, we want to make sure we are sweeping up all the conduct that the American people is entitled to know about of foreign agents in our country.

Scott Anderson: So there's an obvious background concern for all of this activity that you're looking at and that is the First Amendment, right? The much cherished, you know, foundational idea that a lot of political speech and political engagement participation is constitutionally protected. And when we approach the First Amendment, it's not often just a question of, does this cross the line to violate the First Amendment, there's always that concern about chilling.

Are we doing something that, even if it's not a hard line, is going to have the effect of making people feel like they can't engage in as much First Amendment? And sometimes that has legal implications that can be constitutionally prohibited, even if it's not a strict violation of the First Amendment. And even where it isn't, that's often a value that informs how we approach policy questions.

How does the FARA unit approach this in engaging these questions? Is it a matter of civil versus criminal enforcement? Is it a matter of how they approach these letters of inquiry? I mean, what is the, the, the input into the balancing test about the strategy for enforcement investigating these things to make sure you don't go too far in chilling what might be legitimate and valid speech because of people concerned about regulatory burden, you know, the potential reputational costs, FARA registrations concerns. It seems, strikes me as a difficult calculus. I'd be curious to think about how you'll approach it.

Jennifer Gellie: I guess it's probably, this is probably going to be unsatisfying that I don't accept the premise that there is that First Amendment issue, right? And again, it goes back to my earlier conversation about explaining how FARA registration works.

We are viewpoint neutral, right? And so we are not stopping anyone from saying or doing anything. You can absolutely say anything you want, engage in any of the First Amendment protected speech you want. For us, it's that sunlight is sanitizing, right? We just want there to be a full context. We don't want secret voices behind the voice when the American people or policymakers are hearing from somebody.

So you absolutely can express any opinion, you can hold any event, you can put out any written conduct. You just have to label it. And that's why FARA has withstood First Amendment challenges along the way, because we actually aren't chilling speech. We aren't telling anybody not to say anything. And I will tell you, we don't look at whether to send a letter based on whether we like the speech or not.

We are sending out letters of inquiry to all walks of life, all types of ideologies, because for us, it's really irrelevant what the content is. What's relevant is, is there an agency relationship with someone or something abroad? And are you engaged in conduct that FARA intends for the American public to know about based on that agency relationship?

Scott Anderson: So it's a fair point to say there's no subject matter, no content sort of restriction. But I think a lot of people in engaging FARA still see it as a burdensome question. There is, of course, regulatory costs entailed. There's a question, do we register, do we not? And then there is often a perceived at least stigma or risk of stigma of saying, I am a foreign agent, even if what you are doing is simply accepting funding for certain activities that may or may not, you may not view as acting for a foreign agent.

But if you were to be, you know, you may fit within the broadest scope of how one could interpret the statute or the regulations and you say, well, I want to register. But if I say I'm a foreign agent, that's going to cause all sorts of other problems with other people I engage with or the government.

And then there's the concern of saying, well, because there is the stigma, of course, some people would prefer not to. But then if you roll the dice too much, then you may be subjecting yourself to certainly civil remedies, certainly a letter of inquiry, which may be bad for funders and other people, maybe even criminal prosecution at some point.

Because of course, the willful line, it’s a little bit in the eye of the beholder and it all depends on prosecutorial discretion and what you convince the grand jury of. How does that factor into this equation? I mean, I mean, those strike me as those are the considerations that a lot of groups and outside private actors weigh when they weigh this question. Does that enter into this equation of this approach at all?

Jennifer Gellie: So from the department side, it doesn't sort of weigh on how we enforce the statute, but I am a realist. I live in the real world. I've heard from many registrants and the FARA bar that there is this perceived stigma. I wish that were not the case. We can't let that change how we enforce. When there is an obligation, there's an obligation.

From my perspective, there really should be no stigma of the people who register because they are following the law. They are doing exactly what they are supposed to do under the law. And the bigger stigma, as you sort of referenced at the end of your question, is recognizing that you probably have that obligation and choosing not to comply with it.

Because when we talk about willfulness, we're not only talking about understanding 100 percent that you have to register and not doing it. We're also talking about willful blindness, right? Choosing not to pay attention to inputs that are telling you from left, right, and center that you have an obligation you should be complying with.

And so for me, the real stigma is a criminal grand jury subpoena, a criminal indictment, because you have flown too close to the sun trying to avoid what you see as some sort of stigma. Or because, you know, as a agent, you think your messaging will be less effective for your foreign principal if you disclose who you're doing it for. Then you have the full stigma of a grand jury indictment and a criminal prosecution.

Brandon Van Grack: I want to pivot to talk about these, these proposed regulations. And, you know, we're in the context again, where over the last eight or nine years, there's been this real focus on enforcement. And even in the last 18 months, you have multiple members of Congress that have been charged with FARA related statutes, which maybe you can talk a little bit later.

But, so, but in this context of resources of enforcement, there have now been these proposed regulations. And we're going to jump into some of the proposals, but want to begin by asking why now? What is it that prompted you and the department to propose these regulations at this time?

Jennifer Gellie: So the number one thing is just modernization. We hadn't updated the regulations since 2003. Back then, social media was barely a twinkle in Silicon Valley's eye. And now we're in 2025. Informational materials are no longer leaflets being dropped from rooftops in a city. It's social media posts. It's immediate. It's far reaching.

Our regulations, as they currently stand, don't even have guidance on how to label social media posts. Now they will. Also, registrants now file electronically all of them on e-file at fara.gov. There's no more paper copies. The regulations don't account for that. And so we decided if we're going to modernize in those ways, we should look closely at all of the regulations to see what else needs clarifying or updating.

And we have the benefit in the FARA unit of being able to hear from the public frequently because we issue advisory opinions. So members of the public can write in if they're not sure if they have a registration obligation. And so that means we can see where confusion may lie. We can see trends in what is throwing the regulated community off. And against that backdrop, we were able to also fine tune where we thought was warranted beyond just pure modernization.

And so a couple years ago, I pulled together what we call the FARA Reform Working Group, affectionately the FROGS, which consists of both civil and criminal litigators as well as legal policy folks in NSD. It's been a really good collaboration, lots of FROG means its changed. And so that group has really pulled a very heavy oar to get us to the good spot we are in now with the regulations that we announced on January 2nd.

Brandon Van Grack: And, and so we're, before I jump into them, just one other point, which is when are, when is the deadline for folks to submit comments?

Jennifer Gellie: Comments close March 3rd, and we do want to hear from people, so I'm not on social media to any real extent. If we have something in there that's actually impossible on some sort of platform I maybe have never heard of, I'd like to hear about that. So really, please do write in and let us know if we've gotten it right.

Brandon Van Grack: Well, we'll see if we can poke some comments on this podcast. The two proposals that have, I think, received the most attention, but also, at least in my opinion, have perhaps the most far reaching consequences are two exemptions. And in particular, and I'll let you get into the nomenclature, which is one would be what's sort of referred to as the commercial exemption, and another, which I believe you like to refer to as the domestic interest exemption.

And so let's, let's, you know, those exemptions just collectively to frame are ones that are not only widely used, but perhaps arguably might be the most widely relied upon exemption, my characterization, not yours. And some of the changes are significant. And so if we can sort of walk through them, let's maybe start with a commercial exemption and give you the opportunity to explain what is that exemption and what the proposal is.

Jennifer Gellie: Great. And I'll say, I'll probably talk about commercial and domesticate briefly upfront, just because I think what has happened over the years is they kind of got mushed together in a way that doesn't accurately reflect the statutory language.

So the true commercial exemption is what we internally called D1. It's 612(d)(1). And what that says is, if someone is engaged in private, and nonpolitical activities in furtherance of the bona fide trade or commerce of a foreign principal, they don't need to register under FERA.

So you're talking about you have some sort of foreign company that hires someone in the United States to negotiate a corporate contract with another company. They want to engage in some sort of business transaction. That is clearly nonpolitical. You're not lobbying anybody in the government for anything. You're not doing a public relations campaign. And it's private because it's about business interactions. That's all fine.

And I think that's been the less confusing piece. I don't think anyone's really ever been substantively confused about what is in or out when you talk about that D1 commercial exemption. Should we move to D2?

Brandon Van Grack: Well, let's let's stay with D1 and, and because otherwise we'll again, this is where Scott will lift us up. So, and you talked about private and nonpolitical. So let's talk about it, sort of perhaps the scope of what the statute says.

Let's talk about the regulatory changes because the regulations right now, in essence, say that, as you said, you know, really focused on the private piece. What does private mean? And the focus is whether the activity directly promotes the interest of a foreign government or foreign political party. It's really trying to get at how is this activity perhaps aiding a foreign government and foreign political activity.

And the proposal, as I understand it, is to remove the word direct in particular. And so, assuming I've characterized that the right way, why? What is it about the word direct?

Jennifer Gellie: I think the word direct was confusing, folks, because really what we care about is sort of the intent to benefit the foreign principal more so than intent to benefit something domestically in the United States. And so again, a lot of this is going back to the basics of looking at what the statute actually says.

If you look at 611, for example, it says an agent is one whose activities are directly or indirectly supervised, directed, controlled, financed, subsidized by the foreign principal. It talks about they can act directly or through another person. So the statute itself envisions a lot of indirect activity. And if you go back to the legislative history and the House report on this, even there it says that someone will not be exempt under the commercial exemption where the foreign agent promotes the political and public interests of a foreign governmental principal.

No directly in there. So I think this is just removing some of that confusion because really what we care about is the benefit. Who are you trying to benefit with this activity?

Brandon Van Grack: Well, and so just to press on that for a moment, the position, I presume you would not take a position there for like a state-owned entity where like ultimately a foreign government has either the entire ownership or even a majority ownership and therefore there is inherently some benefit that accrues to the government because of its ownership of the entity.

How do you distinguish the, you know, interests, promoting the interests of a foreign government versus benefiting a foreign government? I say this because, and just to take a step back, like the position is not state owned entities cannot qualify for D1.

Jennifer Gellie: Right.

Brandon Van Grack: Yeah, and so the question is why? Like, why is it that a state owned entity where there's clearly some benefit that's accruing to a foreign government able to qualify for this, and how does that different from the notion of promoting the interest of a foreign government?

Jennifer Gellie: So if we're sticking with D1 because you're talking about nonpolitical activities in that sphere. So there we're talking about the conduct of business, right? And so we're not trying to close off our capitalist society from the rest of the world when it comes to business transactions.

So D1 again, we're talking about that really corporate space where you're negotiating some sort of contract, some sort of sale, some sort of purchase. Like, that is not the conduct we're concerned about when it comes to FARA, because the private non political.

So a state owned entity, obviously not private, but they might have a subsidiary in the United States that's incorporated in a way where, you know, they're sort of a LLC in the United States. They can certainly negotiate non political commercial contracts for their bona fide trade or commercial interests.

Brandon Van Grack: Well, and maybe to say this another way, just because a foreign government. benefits from the activity does not mean the activity is promoting the interest of a foreign government? Is that, I invite you to push back, but is that sort of a?

Jennifer Gellie: Yeah, I think the problem with FARA is it's so often it's depends, right? It's why the regulations say we don't chop on hypotheticals for our advisory opinions.

So for the most part, I largely agree with you that it depends piece is going to be, is it a merely incidental benefit? Then yes, I agree with you. Merely incidental, you happen to have a parent company in a foreign country and they're getting some profits out of what you are doing for your own domestic benefit.

Very different, and this starts to move into D2, where a state-owned entity is directing all of the conduct, telling the sub in the United States how to lobby, what to lobby on, what to do, and all of that money is going back to the parent state owned entity abroad.

Brandon Van Grack: So, so maybe let's pivot because I do think that the proposed changes for the second would, what you keep calling D2, which I understand, which I will force us to, to say the domestic interest exemption, which is another exemption here. Which, and I'll say it's, though it doesn't have the word commercial interest, it is also another exemption largely used by commercial entities.

And this one, just to set up again, you know, the first one that we just talked about, commercial exemption, is for private and nonpolitical. And this one is, in essence, for political activities. So if you are engaging in political activities, which is influence, you know, influence activity connected to policy, and I'm just doing a shorthand here, which could include lobbying, but it's broader than that. This is the exemption that you look towards.

And so could you talk about sort of the scope of the exemption as it exists and what you're proposing to change?

Jennifer Gellie: Yes, and so this is where we're really trying to disentangle the merging together of two different things that say two very different things into what used to just be called the commercial exemption. And so yes, this one I look at now, the rebranding domestic interest exemption, trademark Jenny Gellie circa 2022.

Because what we have right now that seemed to have led to a lot of confusion Among especially folks in the nonprofit sector, folks who weren't corporations is only one regulation explaining what I keep calling D2. And what 612(d)(2) says is you can still get an exemption, even if your conduct isn't private and non political, like what D1 says. You can still get this other exemption if your political activity, your lobbying, doesn't is not predominantly serving a foreign interest, or serving predominantly a foreign interest.

And that's why I'm calling it the domestic interest exemption. Because at its core, what we're saying is, is what you're trying to do really helping your domestic person, entity, more than it's helping the person or entity abroad. And if so, you can still get this exemption, right? But the current regulation, 5.304c, rolls off the tongue. For whatever reason, only dealt with one subset of conducts that might come under this exemption. It's only dealt with the state owned entity place.

And so the current regulation was trying to say, look, even if you're wholly or partially owned by a foreign government, we're still gonna say you can do things that are not serving predominantly a foreign interest where what you're doing is directly in furtherance of your own bona fide commercial, industrial, financial operations so long as what you are doing, the lobbying, is not directed by the foreign government or foreign political party. And what you're doing does not, and it has the word directly in there which confused a lot of people, it does not directly promote the public or political interests of that foreign government or foreign political party.

But that's only one small subset of this bucket of activity that can be exempted under this exemption. And so what we tried to do in the proposed regulations is give broader categories and more guidance that will cover more people, entities. Like make clear to the nonprofit sector, you too can get D2 if what you're doing is for your bona fide mission statement in the United States.

And I know you want to talk about nonprofits probably a bit more later, but we're trying to make clear that there are going to be certain things that the FARA unit is going to look at and see as sort of a de facto bar in this space. But if you are not de facto barred, we're going to kind of look holistically at what that transaction looks like, what that agency relationship looks like before we determine that you actually still have to register.

Brandon Van Grack: Scott's going to make sure that you and I don't fall into the rabbit hole too much, but I want to get into this at least one level deeper in part because it, you know, to be clear, the proposed changes really, at least would be perceived as a narrowing of the exemption, and so as currently contemplated, there are probably many entities that currently view themselves as qualifying for the exemption, and you have now articulated a view that would say, well, actually, you would not qualify if these particular factors were triggered.

And that's why this has been a particular focus of the proposals. And the way I think about it, but I invite you to change it, is some of the proposals go to what you described as the existing regulations, which is articulating how a state-owned entity or government related entity could qualify. And right now the test is focused on is a government or political party directing it, or does it directly promote? And what you have done now is listed additional factors to consider.

And then there's a second piece which is outside of the foreign government lane, a test to determine whether you're domestic or foreign interest. And so wanna go in again, Scott will make sure we don't go too too off the rails, but maybe we can talk if Scott approves, of maybe the first set of like the, the government related factors. What are those that you're articulating now?

Jennifer Gellie: Yeah, I'll start by saying I don't see it as a narrowing. I see it as a clarification because the problem with having only the one regulation we have right now on this exemption is it talked about foreign principals where it's the government or a foreign political party and was silent on two other buckets of foreign principal under the act.

There was no guidance as to what happens if your foreign principal isn't a government or political party. What if it's a foreign person or foreign corporation? And so now these factors apply across the entire spectrum of foreign principals under the act. So you're right, the first bucket is sort of the exclusions right out of the gate that are going to be similar to what is in the current regulation 5.304(c).

So what we're really looking at is the intention and then the control where a foreign principal is a foreign government or foreign political party. And so what the new regulations say is you're not going to get an exemption under the domestic interest exemption or test if what you're doing is intended to benefit a foreign government or foreign political party. Or if that foreign government or foreign political party is influencing what you are doing in the United States, so they're directing that conduct, not getting the exemption.

If the foreign government or foreign political party is the principal beneficiary because sometimes we're not going to have the direct evidence of what your intent is, but we can look at what the result of that advocacy is, and if it's really all going abroad to help this foreign entity, foreign government, then you're not going to get the exemption.

And then this really tracks what's currently in the regulation where the agent's activities directly or indirectly are supervised, directed, controlled, or financed either entirely or substantially, again by a foreign government or foreign political party, and those activities are undertaken to promote that government or political party's public or political interests.

Again, you fall back out of that exemption. And so those are going to be the ones sort of where we look at that and we think, okay, out of the gate, we don't see the exemption applying.

Brandon Van Grack: Well, and just to characterize it, whereas before the test talked about what's in the existing regulation talks about sort of direction and promotion. They're sort of now influence funding. they're sort of additional factors that you're saying these also impact our analysis as to whether an entity is covered. Is that, is that a sort of a fair characterization?

Jennifer Gellie: Exactly. And then that first one, if there's just a, the subjective intent to help. the foreign government or foreign political party. Your intent really is just to lobby on behalf of their interests.

Brandon Van Grack: So then let's talk about the second part, because I actually think the second part, you know, keep burying the lead. I think that's the one where, to, to your characterization, this is one that has not been articulated before, at least in my lifetime.

It's not, sort of, we haven't seen this articulated, which is a, a set of standards, regardless of whether you're a foreign government, a foreign individual, a foreign company. This is focused solely on is this a domestic interest or is it serving a foreign interest? And so could you talk about those factors?

Jennifer Gellie: Right. So what you see now in the proposed regulations is what I would call a non exhaustive list, but just guidance from us on the types of things we're going to be looking at to get to the crux of that domestic versus foreign interest question. So we're looking at, is there already transparency as to the relationship in the activity? Or the people you're speaking to is the messaging you're putting out very clear as to its origin.

And this ties into tours and bureaus, which we can talk about separately in a bit. For a company, do the activities benefit its own corporate bottom line in the United States as much, if not more than the foreign parent companies interests are bottom line?

For a nonprofit, we're going to look at the influence the foreign entity has over the operations or the priority setting of that nonprofit. Is there funding coming more from overseas sources than domestic sources? Is it just one country? Is it many countries paying in? So we're looking at sort of what is their mission statement and what is motivating what they're doing?

Are the policies being lobbied on by the entity applicable to the U.S. operations and interests, whether that's a corporation or a non profit, more so than the foreign operations and interests? And then finally, is the foreign principal influencing the activities?

So again, we're looking at that control. Are they getting all of their marching orders from that foreign principal? Do they feel under the agency relationship that they have to do what the foreign principal is telling them to do as far as their engagement in the United States?

Brandon Van Grack: Considering this, these factors you're discussing don't currently exist in the regulations and I don't believe there's an advisory opinion that sort of directly, I think, addresses them.

What do you say to, again, I think the focus is actually on individuals and companies, not foreign governments. Like, you know, what is the response or what would you say to those that it, you know, for the first time the Justice Department is saying, now you're on notice, like sort of what is, you know, is that the intent. Or sort of what is the sort of what are you expecting the response to be, I suppose?

Jennifer Gellie: So I'd start by saying the obligation is already there under the statute. Nothing has changed about the statutory language, and none of this negates the existence of the Lobbying Disclosure Act exemption. If I could get rid of that by regulation, I would, but that is in the statute itself.

Scott Anderson: Well, let's just drill down and explain what that is, because I think probably most listeners aren't going to know what that is.

Jennifer Gellie: Yeah, and so the Lobbying Disclosure Act is a separate statute. I will not claim that I am a subject matter expert on that statute. But within FARA itself, Congress added an exemption where you are lobbying not for a foreign government and not for a foreign political party, so for an individual or a company, you can file a LDA, they call it, Lobbying Disclosure Act filing, which is about a two page filing, instead of registering under FERA.

And that will count, that will satisfy your obligation of sort of disclosure in that space. And so I would say companies who have been relying on what before was called the commercial exemption, which now we're calling the domestic interest exemption and haven't been registering, they still can register under the LDA and have that exemption under FARA.

So there may be a venn diagram of organizations that haven't registered under FARA because they got, they thought they got that old D2 exemption. And they also haven't registered under the Lobbying Disclosure Act because under that act you don't have to register if you're not spending a certain percentage of your time on lobbying or if you're not making a certain amount of money or dispersing a certain amount of money.

So maybe they will have to reassess. And I leave that to their counsel to look at, whether they now need to file under the Lobbying Disclosure Act, because, to be clear, to get that Lobbying Disclosure Act exemption to FARA, you do have to actually register under the LDA. You have to have registered somewhere. And so, this isn't changing anything about the interplay between FARA and the Lobbying Disclosure Act.

And again, it really just goes back to the plain language in the statute itself, which says, you can be engaged in political activity as long as you're not serving predominantly a foreign interest. And that's what all of these factors are aimed at doing is helping individuals who think they might have an obligation try to figure out is what I'm doing predominantly domestic or is it predominantly foreign?

Brandon Van Grack: So you mentioned nonprofits and I want to just spend a moment on those because as you noted, you know, the exemptions we just talked about that the proposed regulations would codify under the regulations that nonprofits, in fact, can qualify for these exemptions and it just, want to give you a moment to sort of explain the why and exactly how it impacts nonprofits.

Jennifer Gellie: Yeah, so I've actually always been surprised that nonprofits weren't already reading that 612(d)(2), now domestic interest exemption as covering them as well. Because to me, the language was always very clear. There's nothing in that wording in the statute that says you have to be a company. We always thought, and our advisory opinions reflected, that the FARA unit always believed that a nonprofit absolutely could pass this domestic interest test.

And so now the regulations just make that crystal clear to the extent, and we know from people writing in, folks were confused. It now really just crystallizes in black and white that yes, you too, nonprofits can avail yourselves of this exemption.

Brandon Van Grack: And so, and to be, to be very clear on that, the point is, regardless of what happens with these regulations and the timing with them, the Justice Department's view, as reflected in advisory opinions, is that nonprofits do qualify or can qualify for that domestic interest exemption.

Jennifer Gellie: Absolutely. If what they are doing is for their own bona fide domestic mission purpose for being, they absolutely can qualify for that exemption. And that is already the case.

Brandon Van Grack: And so maybe one other piece in terms of a proposed change with this with respect to tourism and sort of articulating a view that activity focused on promoting tourism does not come within the purview of, of, or does not require registration. Maybe just spending a minute talking about what that means and the why.

Jennifer Gellie: Yeah, so going back to my comments about the factors we're going to look at if you don't have a state-owned entity or something that looks de facto excluded from the exemption, one of the things I said is we're going to look at is the relationship already very transparent? Is the conduct already very transparent so that the listener already knows what's going on?

And with the tourism bureaus, that transparency is really baked in, right? So if I'm seeing an advertisement on TV that says, come visit Narnia. It's a beautiful place to vacation. It's a beautiful place for your conferences, sponsored by Narnia Tourism. Everybody knows that is the government of Narnia, right? And so the transparency is already there.

We don't see a national security concern there because everybody is understanding what that continent is, where it's coming from. And so it's just really not a good use of resources for the FARA unit to be enforcing those registrations.

And so we have made clear in the regulations that we don't view that as being the type of conduct we expect to be registered under FARA moving forward. And so we will lose some registrations out of that. And that's okay. You know, resources are better spent in other places.

Brandon Van Grack: In terms of tourism, it, you know, it seems like some of the principles you articulated, like transparency, you know, could apply to other activity, like, for example, like investment attraction. I'm wondering, like, do those same principles apply because they're not specifically articulated or carved out in the in the regulation?

Jennifer Gellie: Investment's a bit different, right? A lobbyist representing the Narnian government in meetings with congressional staffers trying to divert U.S. dollars into a Narnian infrastructure project, that's outside that narrowly tailored regulation as to pure tourism activity. Because I think that really is hard to argue that's not promoting the public and political interest of that foreign government.

So we're only carving out the promotion of bona fide recreational or business travel to clarify our view that that is eligible for that D1 commercial exemption. Once you get into broader advocacy for U.S. investment in industry in a foreign jurisdiction, and again, that's just going to be too closely aligned with the public and political interest to get that exemption.

Brandon Van Grack: So, and, and maybe to say it a different way, because again, I do think some of the principles like transparency, like there's some analogous. But maybe to put this a different way, it was intentional on your end to specifically carve out tourism and not talk about other activities that at least I think you could speculate are analogous, if not, you know, I think we wouldn't say identical, but analogous to the point is the intent was not to, to shoehorn those in as well.

Jennifer Gellie: That was very much intentional. I do think that conduct is the type of conduct FARA is trying to sweep up so that the American public has that understanding of what's happening in any six month period in our country.

Scott Anderson: So we've gone through a lot of the things that did change in these proposed regulations or will change if they're enacted in their current form. But there are a few things that didn't change, things that were discussed, things that people have advocated for, and two kind of jump out when one reads both this proposed notice, as well as kind of the commentary around and around FARA for the last few years.

One is the definition of agency, you know, the concept of agency in the statute, what it means to be an agent for another actor. That's something that you all don't really try and provide a more precise definition of, at least directly. Talk to us about that decision. Why isn't that something that's worked to define?

Obviously, there are, you know, that's a legal concept that there are contexts in which judges and others do try and come up with a more defined definition. But that's not evident in these recs, at least in a, in a concise kind of like one stop shopping format. What led to that decision not to pursue a more precise definition there?

Jennifer Gellie: First of all, I'm not sure that historically people have been all that confused about agency under FARA. Like I said, we get advisory opinion requests and we bucket them. You can go to our website, for the last several years we post redacted versions of those.

Most of the time when someone writes in, they're saying, we actually think there is an agency relationship. We absolutely recognize we are an agent of this thing. What we're trying to figure out is, is the conduct we're going to do in the United States something that has to be registered under FARA. So I don't think there's been a lot of confusion on that.

Because FARA is so fact specific and we have quite a lot of verbs when it comes to agency so it's not just the common law definition, right, of control. It's direction, control order, or request. And request is quite a broad verb. There's a big risk in trying to write regulations that you're going to accidentally carve something out that we really do think the American people is entitled to know under the statute.

So I think it's two things. I'm not sure there's been that much confusion. And separately, it is such a fact intensive inquiry that if you are on the bubble, we would encourage that person to write into us an advisory opinion and we can work through it based on those facts together.

Scott Anderson: So, another term that comes up a lot in the FARA context that people think about and worry about the definition, worry about what it means, is the idea of a political consultant being someone that can trigger FARA obligations. But can mean a lot of different things, a lot of different contexts, at least in a kind of colloquial usage.

And there aren't any proposed regulations that would clarify the meaning of that in this current batch, in the current proposed notice. Even though I think a lot of people who look at advisory opinions seem to see a little bit more of an operational definition in there. There's guidance in the advisory opinions that didn't make its way into these proposed regulations.

What was the decision-making process behind that? Why wasn't there an effort, as there were in so many other contexts, to take this useful body of knowledge that's in the advisory opinions and boil it down to a regulatory change to make it clear to people?

Jennifer Gellie: I think there's a real risk that any attempt to narrow this definition in black and white in a regulation could in effect nullify political consultant as a separate prong under the statute by creating a situation in which the regulation would say, well, you always have to be both a political consultant and engage in political activities. But Congress wrote the statute in a way where those are separate provisions, right? So presumably intended to be somewhat separate provisions.

Now as you've sort of noted, we do follow the legislative history, and we do have advisory opinions characterized by this topic on the website that folks go and look at, where we do say it needs to be something more than just interpreting U.S. law or policy for your foreign principal, but it may be something short of providing that advice and also being the one to directly engage in the advocacy.

So there's something in between those two things, right? I can easily envision a fact pattern where, for example, a political consultant is writing talking points or a white paper for their foreign principal client, knowing that those are to be used by the foreign principal's lobbying team, even though the political consultant him or herself isn't going to go do the lobbying on the Hill.

That's still conduct FARA's intended to shine a light on. We actually want to know that the political consultant is part of that team and is providing that guidance for the advocacy.

Scott Anderson: So, we mentioned Congress earlier in terms of their engagement in the referral side, their own kind of investigation or monitoring of the stuff and oversight to some extent.

But of course, Congress has also been involved on the legislative side. We've seen proposals about changes to FARA, discussions about amendments and reform. You mentioned a few possibilities already in our conversation. Tell us about what that looks like.

You know, do you think, A, I guess, is, are there live items we should be watching, statute wise in Congress regarding FARA that you think are good or bad to the extent you can comment on them and talk about them? And are there other things that you hope Congress thinks about or does look at that would be particularly valuable from your perspective, from the Justice Department's perspective, that should be on the radar but aren't currently?

Jennifer Gellie: Yeah, so I won't go through specific pending proposals largely because I didn't bring my special chart that tracks all of those. But I will say it warms my fair nerd heart to see so much interest on the Hill in this space, and I don't see that changing anytime soon, which is great.

So, I think the department's been pretty consistent in the things we've been flagging over the years across multiple administrations as to what we think would be helpful in really bolstering fair enforcement. And so I'm going to give my, like, top four hit list now.

The number one thing for me would be civil penalties. And the much smarter than me people have explained why a fine is different than a penalty, and I should say penalty. But I think, you know, the big thing right now is, we have these noncompulsory letters of inquiry. We start engaging with a registrant, a putative registrant.

If they decide to tell us, I'm just not going to comply, we can bring them to court. We can initiate an injunctive action against them. At the end of the day, even if the court agrees with us, they are only out the same 305 dollar registration fee and their attorney's fees, right? So they're not really materially worse off from having evaded compliance for a period of time.

I think having some sort of sliding scale civil penalties would be really helpful for the delinquent registrant, so the people who just blow their deadlines consistently. For the folks who have deficiencies in there that the analysts are flagging but aren't fixing the deficiencies. And then for the people who really just refuse to comply and not register in the first place. So I think having some mechanism where we could go to a court and say, hey, we think this level of penalty is appropriate and get that order and go and enforce that would really help with our enforcement regime on the civil side.

And so staying on that civil administrative train track. The other thing that would be helpful are civil investigative demands because right now there's kind of this huge hole in between the totally voluntary, noncompulsory letter like, hey, we're over here. We think maybe an obligation. And a convening a grand jury and starting to cut criminal grand jury subpoenas.

Most other similar agencies have this thing in the middle, which is a civil investigative demand, which says, hey, you really do have to give us these books, these records, talk to us. But we're keeping you on the civil administrative enforcement side because we don't yet think you're willfully refusing to register. So I think that would be helpful.

Number three would be what we're now calling the McGoff fix. So there's an opinion from 1987 that I think was very wrongly decided. We've recently briefed this in the D.C. Circuit. What the case was actually looking at was should FARA have a criminal statute of limitations?

And no one disagrees that crimes should always have a statute of limitations with a few exceptions. And we agree in NSD that a five year statute of limitations for FARA makes a lot of sense.

So the McGoff majority in trying to arrive at a five year statute of limitations along the way sort of did some damage to the civil enforcement side. Because what this statute actually says under section 612(a) is that once you become an agent of a foreign principal, you have an obligation to file a registration statement. After the 10th day of becoming an agent continue from day to day, that obligation continues, and termination of such status shall not relieve such agent from his obligation to file a registration statement. Right?

But somehow the court looks at that and looks at what comes next. It says, so they continue to have an obligation to file a registration statement for the period during which he was an agent. And what the court does is they take that period from which he was an agent and they decide what that actually means. And they have it go back to something way earlier in that paragraph. What they think it actually means is once you stop being an agent, We can no longer enforce the statute.

And that just simply cannot be the answer or what Congress intended because the fact of the matter is a lot of the time we're only learning about conduct once it's happened. Because someone on the Hill has someone come and lobby them or we see an article in the newspaper and by the time we get there with a letter or a subpoena that agency may have terminated. But the American public still doesn't have the transparency of having heard what the conduct was, how much was paid for the conduct, what was actually going on.

And so we have tried through appeal in D.C. to see if we can get the D. C. Circuit to revisit the McGoff opinion. They have declined. And so really we are left with Congress. If the statute means what we think it means, we maybe need to go in and add some words to clarify. And I don't think it would take a lot to fix that, but a few words would need to be added in section 618, which talks about bringing a civil action. So that would be wish list number three.

And then fourth and final, because you know why I have three things on a list and we have four things on the list. I already talked about it a little bit in the context of the regulations. I do not think the Lobbying Disclosure Act exemption should exist in FARA. We saw a lot of registrations funneled off to the LDA after its passage. You saw a big dip in the number of active registrants.

You do not get the same transparency with the filings under the LDA that you get under FARA. You are not finding out about all of the contracts. They are not uploading all of the all of the blog posts, all of the content they're putting out into the world. And often times the description of what they're even doing on the LDA filings don't really tell you what they've been hired to do.

So, my fourth thing for Congress would be, you know, we've learned over the past couple decades what it looks like to have this exemption in place. It has led to less transparency. We probably shouldn't have that exemption anymore.

Brandon Van Grack: So, to wrap, wrap things up, maybe one more substantive question, other than to encourage folks to comment before March 3rd on the proposed regs, I know that that's important to you in the department to hear from folks on it. And there's, there's even aspects including labeling that we didn't even get into. But really encourage folks to, to, it's not one of the more voluminous proposed regs, actually, it's digestible and so we would encourage folks to review it and see if they want to comment.

But the last question I'd like to ask you, aside from the regs, is to talk about 2025, separate from the regs, which is what is your enforcement focus? What is the Justice Department, what is the FARA unit focused on for 2025?

Jennifer Gellie: So I think before we kind of get to what 2025 looks like, you need to really look at it through the lens of what 2024 looked like, because I don't see the upward trajectory with FARA enforcement changing anytime soon.

And last year we saw four new and significant criminal matters under FARA and related statutes. We saw CES tapping into previously unused tools in the toolkit last year. For example, the first FARA misdemeanor plea, the first FARA deferred prosecution agreement. We also saw the first criminal conviction under a related statute called 18 U.S.C. section 219. That statute makes it illegal to be a government official, so that includes me sitting here today, it includes members of Congress, while also acting as a foreign agent as defined by FERA.

And the first conviction was in the Senator Robert Menendez case in the Southern District of New York. We also charged Representative Henry Cuellar with the same statute, so now we have seen this conduct implicating both chambers of Congress. Different foreign principals involved, both governmental and corporate actors. We saw a state-owned gas company as a foreign principal, a foreign bank, a foreign government that wasn't necessarily an adversary state.

And I think you could expect that focus on corporate actors in this space moving into 2025, because we are seeing more conduct by corporations. And I will note the registration obligation lies with the agent in the United States. However, if a foreign corporate actor has a meeting of the minds with that agent, that that agent is not to register because the advocacy won't be as effective if there's transparency or for whatever reason. That corporate actor abroad now has conspiracy liability as well. So you should expect that we're looking at corporations in this space as well.

And then, unfortunately, an area that we've seen as a real growth area is something I view as a sub flavor of foreign malign influence and that we call transnational repression. And we define that as efforts by foreign governments to project their power beyond their own borders to surveil and suppress, their critics and dissidents abroad, including through oppression of diaspora and exiled communities within the United States.

And some of those efforts are physical acts, including harassment, familial intimidation, assault, and even attempted abductions and assassinations. We found 18 U.S.C. 951 to be a very effective tool in that space. So again, that's when you're acting as an agent of a foreign government without prior notice to the attorney general. We saw use of 951 in the Shujun Wang trial this past year.

Wang was someone who held himself out as a pro-democracy activist and part of the Chinese diaspora community while actively, covertly collecting and reporting sensitive information about other advocacy group members to Chinese intelligence services. And he was convicted of acting and conspiring to act as an illegal agent this past summer.

But we've also used tools that are not in the normal national security toolkit in this space. For example, in the Bai et al case out of Eastern District of New York, we charged 34 Chinese Ministry of State Security officers with conspiracy to transmit interstate threats and conspiracy to commit interstate harassment. There, that group of uniformed police officers, basically, were creating thousands of fake online personas and social media accounts to target Chinese dissidents through online harassment threats.

So again, I'm saddened that this seems to be a continued growth area, but it is one the department is really actively looking at. We had a conference in December, the first of its kind in the space where we brought together both federal and state law enforcement as well as international partners and federal prosecutors to make sure all the right people are talking to each other.

And on Friday, if you go to justice.gov, we've actually launched a TNR, transnational repression website that will have descriptions of the cases in this space. We are working to translate our press releases into the diaspora community languages because we really do want to make sure that victim communities know where to come and feel comfortable reaching out to us.

Scott Anderson: Well, there's been an incredibly informative conversation. Jennifer Gellie, thank you for joining us here today on the Lawfare Podcast.

Jennifer Gellie: Thank you. It's been great to be here.

Scott Anderson: The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad-free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter through our website at lawfaremedia.org/support. You'll also get access to special events and other content available only to our supporters.

Please rate and review us wherever you get your podcasts. Look out for our other podcasts, including Rational Security, Chatter, Allies, and The Aftermath, our latest Lawfare Presents podcast series on the government's response to January 6th. Also be sure to check out our written work at lawfaremedia.org.

This podcast is edited by Jen Patja, and your audio engineer this episode was Cara Shillenn of Goat Rodeo. Our theme song is from Alibi Music. As always, thank you for listening.