Weak law helped Craig walk free in crack­down on shady lob­by­ing

The Washington Times Weekly - - Politics - BY JEFF MORDOCK

The Jus­tice De­part­ment’s ef­forts to crack down on ques­tion­able for­eign lob­by­ing prac­tices suf­fered an­other ma­jor set­back when a jury in Wash­ing­ton ac­quit­ted a one­time top Obama White House at­tor­ney.

That fol­lowed a case in July in which prose­cu­tors won a con­vic­tion against a for­mer lob­by­ing part­ner of Michael Flynn, the dis­graced for­mer Trump na­tional se­cu­rity ad­viser, but a fed­eral judge said he is con­sid­er­ing toss­ing the con­vic­tion be­cause he is not sure prose­cu­tors proved their case.

The ver­dict was a let­down for prose­cu­tors, who pushed for stricter en­force­ment of the For­eign Agents Reg­is­tra­tion Act af­ter the 2016 elec­tions as a means to en­cour­age more trans­parency from Amer­i­cans who pro­mote for­eign in­ter­ests in the U.S.

The law be­came a weapon of choice for Robert Mueller, who used it dur­ing his spe­cial coun­sel in­ves­ti­ga­tion into Rus­sian elec­tion med­dling and snared Flynn and two other Trump cam­paign fig­ures, Paul Manafort and Rick Gates. All three even­tu­ally pleaded guilty to fed­eral charges.

But the re­cent set­backs sug­gest there is a limit to the law’s use­ful­ness for fed­eral prose­cu­tors.

The for­mer Obama at­tor­ney, Greg Craig, was ac­quit­ted of ly­ing to the Jus­tice De­part­ment’s FARA unit. Weeks ear­lier, the judge in his case tossed out a charge of fail­ing to regis­ter un­der the For­eign Agents Reg­is­tra­tion Act for his work on be­half of the Ukrainian gov­ern­ment.

Judge Amy Ber­man Jack­son con­cluded that a 2013 let­ter Mr. Craig sent to FARA in­ves­ti­ga­tors was suf­fi­cient to clear him of charges un­der a law bar­ring false FARA sub­mis­sions.

“I think th­ese cases have weak­ened the cred­i­bil­ity of the FARA unit,” said Claire Finkel­stein, a Uni­ver­sity of Pennsylvan­ia law pro­fes­sor who re­searches na­tional se­cu­rity law. “Even if Greg Craig had been con­victed on the ly­ing charge, it still would have been a black eye for the FARA unit be­cause the for­eign lob­by­ing charge was dis­missed.”

Ben Free­man, di­rec­tor of the For­eign In­flu­ence Trans­parency Ini­tia­tive at the Cen­ter for In­ter­na­tional Pol­icy, said the Jus­tice De­part­ment needed a win in the Craig case.

With so many Re­pub­li­cans brought up on FARA charges, he said, the op­tics of tak­ing down Mr. Craig, a Demo­crat, would have ben­e­fited the de­part­ment.

“The Jus­tice De­part­ment re­ally needed some­one on the other side of the aisle to say, ‘We are be­ing even­handed.’ So not get­ting him does hurt them,” he said.

The For­eign Agents Reg­is­tra­tion Act was en­acted just be­fore World War II. It does not bar Amer­i­cans from work­ing with for­eign govern­ments, but it does re­quire that they be trans­par­ent about their ac­tiv­i­ties.

What sorts of ac­tiv­i­ties re­quire reg­is­tra­tion can be tough to suss out, and the law lan­guished in ob­scu­rity for years.

From 1966 to 2017, the Jus­tice De­part­ment brought just seven pros­e­cu­tions un­der the act.

Un­der the Trump ad­min­is­tra­tion, the Jus­tice De­part­ment re­vamped the FARA unit and said it would ag­gres­sively pur­sue cases.

David Lauf­man, a part­ner at Wig­gin and Dana who over­saw FARA en­force­ment while chief of the Jus­tice De­part­ment’s coun­ter­in­tel­li­gence and ex­port con­trol sec­tion, said the goal is to in­crease reg­is­tra­tion among for­eign lob­by­ists.

“The Jus­tice De­part­ment’s more ag­gres­sive en­force­ment of FARA in­cludes a great deal more than the num­ber of crim­i­nal pros­e­cu­tions brought and the suc­cess of those pros­e­cu­tions,” he said. “It fo­cuses pre­dom­i­nately on af­fect­ing com­pli­ance by en­sur­ing par­ties that need to regis­ter do, in fact, regis­ter. So it’s a mis­take to mea­sure the suc­cess of the Jus­tice De­part­ments’s over­all in­crease of FARA en­force­ment by the suc­cess or fail­ure of in­di­vid­ual crim­i­nal pros­e­cu­tions.”

Even so, it does not ap­pear reg­is­tra­tions have in­creased since the Jus­tice De­part­ment ramped up FARA en­force­ment. At the end of last year, 453 reg­is­tra­tions were ac­tive, ac­cord­ing to the Jus­tice De­part­ment’s FARA data­base. As of last Thurs­day, the de­part­ment had 458 ac­tive reg­is­trants.

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