Greg Craig’s acquittal is rightly being construed as a defeat for the Department of Justice’s efforts to deter foreign influence through enforcement of the Foreign Agent Registration Act, but not for the right reasons.
The charge of which Craig was acquitted — namely, lying and misleading investigators — was not directly about FARA and has no immediate bearing on efforts to enforce that law. Judge Amy Berman Jackson had dismissed the FARA-related charges earlier in the trial, leaving the jury with only the question of whether Craig lied to or misled investigators to consider.
Nevertheless, the case as a whole, along with the recent history of efforts to prosecute FARA violations, suggests an urgent need to re-examine FARA, as well as to consider whether we have the statutory tools we need to fight foreign influence.
Americans received a crash course in foreign influence following the 2016 election, but the public still fails to grasp the magnitude and extent of foreign influence peddling across the globe. In addition to the baleful influence of the Kremlin on U.S. politics, and Viktor Yanukovych’s pro-Russia Ukraine regime with which Craig was involved, there is a long and complicated history of corruption and infiltration of American politics on the part of Gulf powers.
The Saudis, the UAE and Israel, for example, all attempt to influence U.S. policies and shape public opinion, and American participation in these foreign-based campaigns is increasing in scope and magnitude as well. The Saudis, for example, lobbied heavily to defeat the bill which authorized U.S. 9/11 victims to sue the Saudi government as State sponsors of terror. To achieve their aims, the Saudis pressed U.S. veterans into service to lobby in Congress on the grounds that the bill would endanger American servicemen and women abroad.
The United Arab Emirates, which is closely aligned with the Saudis, has meanwhile mounted a major campaign to force Al Jazeera — a state media company owned by rival Qatar — to register as a foreign lobbyist under FARA. The UAE has engaged Definers, Inc. as a foreign lobbyist under FARA for this purpose, a PR firm known for its opposition research and intense lobbying efforts on behalf of foreign governments, as well as for supporting right-wing causes inside the United States. There is particular irony in registered foreign agents wielding FARA compliance as a weapon in a fight between two Gulf states over matters that should not otherwise involve American lawmakers or the American public. A statute designed to combat foreign influence has thus bizarrely become a tool in the hands of would-be foreign influencers.
In addition to showing FARA enforcement up as a paper tiger, the failed Craig trial highlights the ineffectiveness of DOJ’s tools for combatting foreign influence. FARA has been dramatically under-enforced for many years. It was originally passed in the 1930s to combat Nazi and Soviet propaganda, but there have been fewer than a dozen prosecutions under the statute since then. The history of under-enforcement of FARA has many possible explanations, but the Craig trial placed one prominently on display: the vague language of the statute violates a fundamental principle of due process and creates a constitutional problem of notice.
As Judge Jackson noted in dismissing the second of the two charges against Craig, the “rule of lenity” requires that vagueness in Congress’ intent about who should fall within the scope of the statute gives the benefit of the doubt to Craig. The decision may set a precedent for other enforcement efforts under the statute and impede the Justice Department’s efforts to make FARA a true enforcement mechanism. But the lack of clarity surrounding the statute cannot be denied.
Moreover, even where the threat of prosecution has been successful at inducing increased registrations, it is not clear that FARA registration will have much impact on foreign influence campaigns. The UAE-Qatar battle, for example, is being conducted in broad daylight with FARA registration, but this has not deterred lawmakers from agreeing to take meetings with the parties in question. No one seems bothered by the foreign source of these lobbying efforts.
Foreign influence on U.S. politics has been with us since our country’s inception, and it will never go away. But lawmakers must take seriously the need to channel and control it, and to protect the pathways to American power from anti-democratic influences.
Claire Finkelstein is the Algernon Biddle Professor of Law and Professor of Philosophy and the Faculty Director of the Center for Ethics and the Rule of Law at the University of Pennsylvania. She is also a senior fellow at the Foreign Policy Research Institute.
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