In 2017, Donald Trump took office proclaiming that he would “drain the swamp.”
For a brief moment, he even acted as if he meant it.
Largely forgotten today after the series of lobbying scandals of the past four years, one of the president’s first executive actions was to require political appointees to sign an ethics pledge. The pledge included a lifetime ban on engaging in “any activity on behalf of any foreign government or foreign political party” that would necessitate registration under FARA, the Foreign Agents Registration Act.
Even before Trump was sworn in as president, FARA had been under the microscope following the Sept. 2016 release of an Inspector General report on the Justice Department’s enforcement of the 1938 law. That internal report faulted the department for inconsistent application of the law, noted a significant decline in FARA registrations over prior decades and called out regulators for lax enforcement. The report also made concrete recommendations for legislative and regulatory changes to improve DOJ’s FARA-related efforts.
During Trump’s term, federal prosecutors looked at FARA with renewed vigor, but certainly not in the way the president had anticipated. Instead, the flurry of foreign influence-related investigations, indictments, prosecutions and plea deals largely involved the president’s inner circle.
In a 2017 plea, for example, Trump’s short-lived first national security adviser, Michael Flynn, admitted to making false statements to the government related to calls he made to Russia and other foreign governments. Flynn also copped to making knowingly false statements to FARA regarding work his company, the Flynn Intel Group, performed for the benefit of the Turkish government.
That same year, Paul Manafort and Rick Gates, a chairman and deputy chairman of Trump’s 2016 campaign, were indicted, among other things, for willful violations of FARA for earlier work on behalf of the Brussels-based European Centre for a Modern Ukraine. They were accused of intentionally failing to register despite knowing that the center was a front for Ukraine’s pro-Russian Party of Regions.
George Papadopoulos, a foreign policy adviser to the Trump campaign, was also charged in 2017 with making false statements to the government regarding his attempts to establish connections between Russian government officials and the campaign.
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In late 2018, Bijan Rafiekian and Kamil Alptekin were charged with conspiracy and acting as unregistered agents of Ankara for their work with the Flynn Intel Group to seek the extradition of exiled Turkish cleric Fethullah Gulen, whom Turkey blames for a failed 2016 coup (a federal court in Virginia tossed out Rafiekian’s jury conviction in 2019, while Alptekin is believed to be in Turkey and remains wanted by the FBI).
And in 2020, former Republican National Committee Deputy Finance Chairman Elliot Broidy pled guilty to unregistered lobbying for Jho Low, the fugitive financier accused of master-minding a $4.5 billion fraud at Malaysia’s 1MDB sovereign wealth fund.
Others beyond the Trump orbit have also been indicted.
These include former lawyers for New York-based international law firm Skadden Arps, which agreed in 2019 to pay a $4.6 million fine and retroactively register as a foreign agent of Ukraine to settle a Justice Department investigation into its work with Manafort on behalf of the pro-Russian government of then-President Viktor Yanukovych. Lawyers Alex Van der Zwaan and Greg Craig, a former White House counsel under President Barack Obama, were embroiled in the scandal (Van der Zwaan pled guilty, while Crag was acquitted in a jury trial).
As demonstrated above, the prosecutorial focus on foreign influence was wide-ranging, aggressive — and bipartisan.
While many of these charges and pleas were not directly for FARA violations, the underpinnings of each involve foreign influence matters. Prompted by the nefarious activity uncovered by the Justice Department, Congress, the media and the general public turned their attention to the once-obscure law, fueling a slew of opinion pieces from legal experts anticipating a new era of increased FARA enforcement.
And then Trump started issuing pardons.
Flynn was among the initial recipients of the president’s largesse in November 2020, soon followed by Manafort, Papadopoulos and van der Zwaan in a raft of pardons shortly before Christmas. On his last night in office, the president also pardoned Broidy.
Trump national security adviser
Failure to register as Turkish agent
Nov. 25, 2020
Trump 2016 campaign foreign policy adviser
Lying to the FBI about serving as an intermediary
between Trump campaign and Russian agents
Dec. 22, 2020
Alex van der Zwaan
Former Skadden Arps lawyer
Failure to register as Ukrainian agent
Dec. 22, 2020
Trump 2016 campaign chairman
Failure to register as Ukrainian agent
Dec. 23, 2020
Former member of Congress
Failure to register as agent of Islamic relief agency
designated as terrorist group
Dec. 23, 2020
Former RNC deputy finance chairman
Failure to register as agent for alleged
financial fraud mastermind
Jan. 20, 2021
At first glance these pardons, while perhaps unseemly, appear to amount to little more than political expedience: The president rewarding loyal supporters whom he viewed as having been targeted by Special Counsel Robert Mueller‘s probe into Russian influence in the 2016 election. These include van der Zwaan, who has no known ties to the Trump administration.
But buried in the pardons issued in December was that of former Republican Rep. Mark Siljander (R-Mich.). Siljander pled guilty in 2010 for serving as an unregistered agent for the Islamic American Relief Agency (IARA), in one of the rare early 2000s examples of criminal FARA enforcement. The US government at the time had designated the relief agency as a terrorist organization and accused it of funneling more than $1 million to Iraq, in violation of US sanctions.
When these pardons are viewed together, a stark reality emerges. In the course of a few months, the president’s pardons wiped clean the records of some of the most prominent foreign influence actors in recent history, and undid much of the last decade’s successful FARA enforcement activity.
So what can we expect now?
First, a Democratic-controlled government is likely to push even harder for FARA reforms that languished under Trump. Several recently introduced bills have had bipartisan support, though none passed during the last Congress.
After lawmakers deal with COVID-19 relief and vaccinations and confirm President Joe Biden’s Cabinet, it is reasonable to expect Congress – with the administration’s blessing – to focus on government integrity. Indeed, the newly convened House has made FARA reform a priority of its symbolic first introduced bill, H.R. 1.
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The bill would notably require the Comptroller General to analyze whether existing exemptions to FARA pose undue risks to electoral security.
Existing law for example allows lobbyists for certain foreign private-sector companies or individuals unaffiliated with foreign governments or political parties to register under the domestic Lobbying Disclosure Act (LDA), which has less stringent disclosure requirements than FARA. This exemption is of considerable interest to foreign corporations and their representatives in the US and routinely comes up in FARA reform negotiations.
Simply put, these issues won’t go away, and unified Democratic control is only likely to increase the scrutiny on FARA enforcement.
Second, and critically, it is reasonable to expect career prosecutors to be at least unmoved by, and possibly reinvigorated by, the outgoing president’s actions. Trump’s pardons can’t have sat well with prosecutors who dedicated months and years to ferreting out undue foreign influence (even members of the president’s own party have criticized some of his FARA-related pardons).
After all, the revamped and reawakened FARA Unit, headed by Brandon Van Grack, didn’t slow its enforcement activity in the wake of the high-profile dismissals of FARA charges against Craig or Rafiekian. Anecdotal evidence shared among lawyers who deal with FARA indicates little-to-no slowdown in activity coming out of the unit. Just this week, federal authorities arrested and charged an Iranian political scientist and author on allegations that he worked as an unregistered agent of Tehran for more than a decade.
It remains to be seen how FARA will evolve with the changing political tides, but it’s a fair bet that the trend toward greater enforcement activity will only continue.
Make no mistake, though: The president’s use of his pardon power was a setback for the years-long effort to enforce FARA more aggressively, and served to undercut a decades-long effort by the legal experts and open-government groups to give FARA the prominence many felt it deserves.
And as for that executive order Trump signed on his first day in office? He revoked it on his way out of the White House.
In the end, the president didn’t just fail to drain the swamp of foreign influence — instead, he opened the floodgates.