[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
ENHANCING THE FOREIGN AGENTS REGISTRATION ACT OF 1938
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
__________
TUESDAY, APRIL 5, 2022
__________
Serial No. 117-62
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
48-304 WASHINGTON : 2022
COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chair
MADELEINE DEAN, Pennsylvania, Vice-Chair
ZOE LOFGREN, California JIM JORDAN, Ohio, Ranking Member
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
STEVE COHEN, Tennessee LOUIE GOHMERT, Texas
HENRY C. ``HANK'' JOHNSON, Jr., DARRELL ISSA, California
Georgia KEN BUCK, Colorado
THEODORE E. DEUTCH, Florida MATT GAETZ, Florida
KAREN BASS, California MIKE JOHNSON, Louisiana
HAKEEM S. JEFFRIES, New York ANDY BIGGS, Arizona
DAVID N. CICILLINE, Rhode Island TOM McCLINTOCK, California
ERIC SWALWELL, California W. GREG STEUBE, Florida
TED LIEU, California TOM TIFFANY, Wisconsin
JAMIE RASKIN, Maryland THOMAS MASSIE, Kentucky
PRAMILA JAYAPAL, Washington CHIP ROY, Texas
VAL BUTLER DEMINGS, Florida DAN BISHOP, North Carolina
J. LUIS CORREA, California MICHELLE FISCHBACH, Minnesota
MARY GAY SCANLON, Pennsylvania VICTORIA SPARTZ, Indiana
SYLVIA R. GARCIA, Texas SCOTT FITZGERALD, Wisconsin
JOE NEGUSE, Colorado CLIFF BENTZ, Oregon
LUCY McBATH, Georgia BURGESS OWENS, Utah
GREG STANTON, Arizona
VERONICA ESCOBAR, Texas
MONDAIRE JONES, New York
DEBORAH ROSS, North Carolina
CORI BUSH, Missouri
AMY RUTKIN, Majority Staff Director & Chief of Staff
CHRISTOPHER HIXON, Minority Staff Director
------
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS,
AND CIVIL LIBERTIES
STEVE COHEN, Tennessee, Chair
DEBORAH ROSS, North Carolina, Vice-Chair
JAMIE RASKIN, Maryland MIKE JOHNSON, Louisiana, Ranking
HENRY C. ``HANK'' JOHNSON, Jr., Member
Georgia TOM McCLINTOCK, California
SYLVIA R. GARCIA, Texas CHIP ROY, Texas
CORI BUSH, Missouri MICHELLE FISCHBACH, Minnesota
SHEILA JACKSON LEE, Texas BURGESS OWENS, Utah
JAMES PARK, Chief Counsel
C O N T E N T S
----------
Tuesday, April 5, 2022
Page
OPENING STATEMENTS
The Honorable Steve Cohen, Chair of the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties from the State
of Tennessee................................................... 2
The Honorable Mike Johnson, Ranking Member of the Subcommittee on
the Constitution, Civil Rights, and Civil Liberties from the
State of Louisiana............................................. 3
The Honorable Jerrold Nadler, Chair of the Committee on the
Judiciary from the State of New York........................... 5
The Honorable Jim Jordan, Ranking Member of the Committee on the
Judiciary from the State of Ohio............................... 7
WITNESSES
Dr. Jacob R. Straus, Specialist on the Congress, Congressional
Research Service
Oral Testimony................................................. 9
Prepared Testimony............................................. 11
Mr. Dylan Hedtler-Gaudette, Government Affairs Manager, Project
On Government Oversight
Oral Testimony................................................. 26
Prepared Testimony............................................. 28
Supplemental Material.......................................... 34
Mr. Jonathan Turley, J.B. and Maurice C. Shapiro Professor of
Public Interest Law; Director, Environmental Law Advocacy
Center; Executive Director, Project for Older Prisoners; The
George Washington University Law School
Oral Testimony................................................. 71
Prepared Testimony............................................. 73
Mr. Nick Robinson, Senior Legal Advisor, U.S. Program,
International Center for Not-For-Profit Law
Oral Testimony................................................. 83
Prepared Testimony............................................. 85
APPENDIX
A letter from Martin Antonio Sabelli, President, National
Association of Criminal Defense Lawyers, submitted by the
Honorable Steve Cohen, Chair of the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties from the State
of Tennessee, for the record................................... 108
ENHANCING THE FOREIGN AGENTS REGISTRATION ACT OF 1938
----------
Tuesday, April 5, 2022
U.S. House of Representatives
Subcommittee on the Constitution, Civil Rights,
and Civil Liberties
Committee on the Judiciary
Washington, DC
The Subcommittee met, pursuant to call, at 10:04 a.m., in
Room 2141, Rayburn House Office Building, Hon. Steve Cohen
[Chair of the Subcommittee] presiding.
Members present: Representatives Nadler, Cohen, Raskin,
Ross, Johnson of Georgia, Garcia, Jackson Lee, Jordan, and
Johnson of Louisiana.
Staff present: John Doty, Senior Advisor and Deputy Staff
Director; David Greengrass, Senior Counsel; Moh Sharma,
Director of Member Services and Outreach & Policy Advisor;
Jordan Dashow, Professional Staff Member; Cierra Fontenot,
Chief Clerk; Gabriel Barnett, Staff Assistant; Merrick Nelson,
Digital Director; James Park, Chief Counsel for Constitution;
Matt Morgan, Counsel for Constitution; Agbeko Petty, Counsel
for Constitution; Will Emmons, Professional Staff Member/
Legislative Aide for Constitution; Katy Rother, Minority Deputy
General Counsel and Parliamentarian; Betsy Ferguson, Minority
Senior Counsel; Caroline Nabity, Minority Senior Counsel; James
Lesinski, Minority Senior Counsel; and Kiley Bidelman, Minority
Clerk.
Mr. Cohen. [Presiding.] The Committee on Judiciary,
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties, will come to order.
Without objection, the Chair is authorized to declare
recesses of the Subcommittee at any time.
Welcome to today's hearing on enhancing the Foreign Agents
Registration Act of 1938.
I remind Members we have an email address if you want to
have exhibits, motions, et cetera, at our hearing today. If you
would like to submit those materials, send them to the address
there, and we will distribute them.
Finally, I would ask all Members and Witnesses to mute your
microphones when you are not speaking. This will prevent
feedback and other technical issues. Obviously, you may unmute
yourself anytime you seek recognition; otherwise, you will not
be able to gain recognition.
I will recognize myself for an opening statement.
At an historical moment when America once again finds
itself in a global struggle against anti-democratic adversaries
abroad, it is right that the Subcommittee examine one of the
tools that Congress intended to protect us from undue influence
in our nation's policymaking process--the Foreign Agents
Registration Act of 1938.
Congress passed, and President Franklin Roosevelt signed,
FARA, as it is known, into law in response to concern about
Nazi Germany's efforts to spread propaganda and influence
political discourse in the United States in the years leading
up to the Second World War. So, Russia is not unique in this;
they are much like Nazi Germany. Congress later amended the
statute in the 1960s and 1990s to confront new circumstances.
Indeed, the last time any component of the House Judiciary
Committee held a hearing specifically focused on FARA was in
1991.
Under FARA, ``an agent of a foreign principal'' that is
engaged in certain activities on behalf of that country within
the United States--such as political activities, acting as an
information service, or representing interests before any U.S.
government agency or official--must file a registration
statement with the Department of Justice within 10 days of
becoming an agent and file supplements detailing their
activities with the Department of Justice every six months.
Registrants are also required to disclose copies of
information/materials that the registrant believes will be, or
intends to be, disseminated or circulated among two or more
persons on the foreign principal's behalf. Registrants must
also label those materials to indicate they are being
disseminated by an agent of a foreign principal and to keep
records of the registrant's activities for three years
following the end of their agent status.
FARA defines the term ``agent of a foreign principal'' and
``foreign principal'' very broadly. For example, foreign
principal means not just a foreign government or a foreign
political party, but includes any person outside the United
States, unless the person is a U.S. citizen or an entity
organized under U.S. law that has its principal places of
business in the United States.
Finally, FARA contains a number of exemptions, including
one for those who are registered under the Lobbying Disclosure
Act, or the LDA, in connection with the agent's representation
of foreign principals who are not a foreign government or a
political party.
For decades, the Department of Justice initiated few FARA
enforcement actions, pursuing only a handful of prosecutions
under the act's criminal provisions and a few attempts at
seeking objective relief, the only civil remedy currently
available under the act.
Since 2017, the Department of Justice has admirably
increased the resources and intentions devoted to enforcing
this law, including hiring additional staff dedicated to civil
enforcement. The result has been a 50 percent increase in
registrations today compared to 2016.
Some high-profile FARA-related charges included those
against former Trump Campaign Manager Paul Manafort for failing
to register under FARA for his work in representing former
Ukrainian President and Soviet Russia's friend, Victor
Yanukovych, and Ukraine's pro-Russia Party of Regions as well,
as well as charges against former National Security Advisor
Michael Flynn for making materially false statements of
documents that he filed, pursuant to FARA, for his work in
representing the Turkish government.
While the Department of Justice's increased efforts at FARA
enforcement have clearly reinvigorated the act, there main
areas where the act itself could be strengthened and better
targeted. I note, also, the Department is currently engaged in
the preliminary stages of a FARA-related rulemaking process.
Since 2016, many Members of Congress have introduced FARA-
related measures, focused mostly on enhancing enforcement. Our
own distinguished Subcommittee Ranking Member and outstanding
servant to his community, for which he got a great deal of
money recently, Mike Johnson, the Ranking Member, sponsored a
bill a few years ago that contained some ideas of what we might
be able to support.
The Subcommittee should consider enforcement enhancement
measures like eliminating or curtailing FARA's LDA exemption,
the lobbyist exemption providing for civil penalties to
encourage more civil enforcement by the Department of Justice
and updated standards for making FARA materials publicly
available.
H.R. 1, the For the People Act of 2021, which passed the
House, amends FARA to provide civil penalties and additional
resources to the Department of Justice to enforce the act,
among many other portions of the law.
Importantly, FARA is a transparency measure. It does not,
and cannot constitutionally, prohibit speech, even by foreign
principals, and shouldn't. In taking this balanced approach,
Congress recognized that in meeting our desire to confront
foreign influence in our political process, we should not erode
our own constitutional values. Registration and notice are okay
in transparency.
In keeping with this loyalty to our own values as we seek
to enhance FARA, we should keep in mind some potential
unintended consequences of stronger enforcement and ask whether
a sharper targeting of FARA may be necessary to achieve the
act's aims without compromising our civil liberties or
diverting attention away from FARA's primary concerns.
I thank our Witnesses for being here. I look forward to
their testimony.
I would now like to recognize the distinguished Ranking
Member from the city of Shreveport, home of the Independence
Bowl, Mr. Johnson, for his opening statement.
Mr. Johnson of Louisiana. Thank you for that, Mr. Chair.
I do want to thank our Witnesses for being here this
morning.
The Foreign Agents Registration Act, or FARA for folks
watching at home, as mentioned, is a decades old law that has
been pushed to the forefront of politics in the courts in
recent years. The point of FARA is simple. If you engage in
certain activities on behalf of a foreign principal, you are
supposed to register with the Department of Justice. The
purpose of this law is very simple. We need to inform the
American public when people working for foreign companies or
governments intend to influence our government, the U.S.
government officials, or the American people.
It is a very important statute that ensures transparency in
our system, and as such, violations of FARA carry stiff
penalties, up to a $250,000 fine for each violation and up to
five years in prison.
For decades, FARA was only known to DC insiders really. The
Department of Justice focused on promoting voluntary compliance
with the law, rather than prosecuting violations. One
Washington, DC, lawyer who represents clients in FARA matters
remarked that, before 2016, FARA was, ``a backwater of American
law--and a very still backwater at that,'' with just seven
prosecutions between the years 1966 and 2016, just seven cases.
That all changed after 2016, and a lot of people scratch
their heads and wonder why. Well, desperate to find any law
that President Trump and his aides could have broken during the
2016 election, Special Counsel Robert Mueller and his team
turned to FARA. They dusted it off. He and politically-biased
FBI officials sought to push FARA to its limits. Why? To
advance their partisan investigations and take down anybody
related to President Trump.
The FBI used to fail to register under FARA during
investigations to pressure George Papadopoulos, Michael Flynn,
Paul Manafort, and Carter Page. On April 28th, 2020, the FBI
and the DOJ even used a failure to register under FARA to
justify a raid on Rudy Giuliani's apartment and his law offices
in New York City.
Of course, now that President Trump has left office, the
FBI again has little interest in enforcing FARA. If that is not
evidence of political bias in the depths of government, I don't
know what it is, especially since there is ample evidence now
that, during the Obama administration--listen to this; hey,
everybody turn on the news--Hunter Biden attempted to influence
his father, then-Vice President Joe Biden, by promoting the
interests of foreign companies. Full stop. This evidence can be
found in Hunter Biden's laptop, which we now know the FBI has
had in its possession since December 2019, nearly two and a
half years, but has seemingly done nothing with it at all.
My colleague, Congressman Matt Gaetz, also introduced the
laptop into the Congressional Record of the House Judiciary
Committee, this Committee, just last week. I certainly hope the
majority staff doesn't delay the sharing of its contents with
the American people.
Everybody has a right to know that the son of the Vice
President used his political influence to benefit, among many
other companies, CEFC China Energy Company, a Chinese
conglomerate whose chair had links to the Chinese Communist
Party. It wasn't as if Hunter had no idea, he was potentially
breaking the law over his dealings with the Chinese
corporation. Listen to this: On May 1st, 2017, he texted his
friend and business associate, Tony Bobulinski, writing, ``We
don't want to have to register as foreign agents.''
He goes on to suggest that they set up a shell corporation
to, presumably, shield their involvement and allow the Chinese
company to do business with the U.S. government without raising
flags. Mr. Bobulinski has since publicly stated that then-Vice
President Joe Biden knew exactly what Hunter's business
dealings with China were, as he discussed them with him
directly.
An email from Hunter's laptop, dated May 13th, 2017, even
contains a discussion of, quote, ``remuneration packages'' for
a deal with CEFC China Energy Company, including equity splits
of, quote, ``20 for H,'' and, ``10 held by H for the Big Guy.''
According to Bobulinski, the ``Big Guy'' is a nickname Hunter
commonly used to refer to his father. The laptop also has
evidence of possible FARA violations from Hunter Biden's
involvements in Ukraine, Kazakhstan, and Sri Lanka, just to
name a few.
In summation, Hunter Biden appears to have arranged
meetings with U.S. officials and engaged in other
representational activities on behalf of his foreign business
connections. Based on my reading of FARA, and anybody else who
looks this up, failing to register such behavior is clearly a
violation of the law.
However, the DOJ and FBI have so far failed to utilize the
same hard-ball tactics they used against President Trump's
aides to get answers from the current President's son. To date,
zero charges have been filed and FARA has not been used as a
pretext to conduct any pre-dawn raid of Hunter Biden's
residence, as was done to Mr. Giuliani.
Once again, the political bias of our country's top law
enforcement bodies is rearing its head. The double standard
continues to erode the American people's faith in our
institutions, and this is a dangerous, dangerous road to be on.
Mr. Chair, I look forward to further discussing this issue
with our Witnesses today, and I yield back.
Mr. Cohen. Thank you, Mr. Johnson.
I want to mention that they also prosecuted Mr. Greg Craig,
who was a favorite on the Democratic side.
I want you to know, because of your testimony, I have
instructed Mr. Greengrass to get us the computer after he gets
us the unredacted Mueller report, the final information on the
Kennedy assassination, and as much as he can get on the death
of Marilyn Monroe.
Mr. Johnson of Louisiana. Listen, with respect, Mr. Chair,
you can mock that, but this has been duly entered into the
record of this Committee. There is no reason to delay it, and
the American people are demanding to know the contents of that
laptop. I think this Committee has an obligation under the law,
and the rules of the Committee, to get that done.
Mr. Cohen. I agree with you. We are going to get those
other three things, too.
Mr. Nadler, you are recognized.
Chair Nadler. Thank you, Mr. Chair.
I, too, wish to thank our Witnesses for appearing today.
Today's hearing on the Foreign Agents Registration Act of
1938, often referred to by its acronym FARA, is an important
opportunity for Members to learn about the origins and
development of the act and to consider potential enhancements.
Although FARA has been on the books for decades, the statute
remains relatively obscure to Members in the public.
As Chair Cohen noted, it has been over 30 years since the
House Judiciary Committee last held a hearing on FARA. Then-
Representative Dan Glickman, who was invited to testify at that
hearing, remarked at the time that FARA is, ``either widely
misunderstood, ignored, poorly written, not enforced, or all of
the above.''
While I would add that FARA is an important tool for
government transparency and would note that the Justice
Department has taken steps to improve enforcement of the act in
recent years, the gist of Representative Glickman's statement,
arguably, still applies today.
Passed by Congress in 1938 to combat the influence of Nazi
propaganda, FARA is a public disclosure law that generally
requires an ``agent of a foreign principal'' engaged in certain
covered activities on behalf of a foreign principal to register
with the Department of Justice.
In the 1960s, Congress amended FARA to reorient the statute
away from exposing sources of foreign propaganda towards
concerns regarding efforts by foreign interests to influence
U.S. policy through lobbying.
For decades, however, FARA went relatively underenforced by
the Justice Department. A 2016 Office of Inspector General
report noted that the Department brought only seven criminal
FARA cases between 1966 and 2015.
The Justice Department has recently stepped up FARA
enforcement since the 2016 presidential election and the
Special Counsel's prosecution of several individuals, including
former Trump Campaign Manager Paul Manafort and former National
Security Advisor Michael Flynn for charges related to FARA
violations stemming from political activities they engaged in
on behalf of foreign governments.
This increased enforcement appears to have had an effect.
According to one Justice Department official's post to the
website Just Security, the number of FARA registrants has
increased by 50 percent since 2016.
This past December, the Department also published an
Advance Notice of Proposed Rulemaking seeking public comment on
potential changes to modernize FARA's implementing regulations,
including clarifying the scope of certain exemptions and
updated various definitions. I applaud the Justice Department's
recent efforts to increase FARA enforcement.
At a time when we see democracy literally under Russian
attack abroad in Ukraine, and foreign government attempts to
influence or undermine the democracy at home, it is important
to shine a light on efforts by foreign governments to shape
U.S. policymaking.
I also think it is important to keep in mind, as we
consider proposals to enhance FARA's transparency mechanisms,
that while hidden efforts by foreign governments to influence
U.S. policymaking and the public have a corrupting effect on
our democracy, the underlying activities FARA regulates are
constitutionally protected.
That is why Congress, even as war clouds began to gather
over Europe in the 1930s, chose transparency as the means to
combat foreign influence in our democracy. It is also why I am
opposed to proposals to grant the Justice Department the
authority to issue Civil Investigative Demands, also known as
CIDs, in the FARA context. My fear is that such type of
administrative subpoena authority, which, by definition, lacks
judicial involvement, may be used as an end run around Fourth
Amendment protections and potentially erode other
constitutional rights.
While CID authority always raises civil liberties concerns,
this authority is particularly troubling in the FARA context
because the statute regulates constitutionally protected
activities. Moreover, because FARA lacks robust civil
penalties, most recent FARA proceedings have been criminal in
nature. As of the publication of the 2016 OIG report, the
Department had not sought civil injunctive relief under FARA
since 1991.
These factors, which are particular to the FARA context,
taken together, heighten the risk that granting CID authority
will erode civil liberties over time. Indeed, as we will hear
from one of our Witnesses today, as it is, nonprofit
organizations across the political spectrum have raised
concerns of FARA's sweeping scope, which may create unintended
consequences and burden constitutionally-protected activities
Congress, arguably, sought to exempt from the statute. It may
permit future administrations too much discretion to use FARA's
breadth to selectively investigate or prosecute organizations
whose viewpoints the government disfavors. Any discussion of
how to enhance FARA's enforcement and public transparency
mechanisms would not be complete without also considering the
potential consequences and concerns raised by the nonprofit
sector.
Lastly, I would like to express my desire for today's
discussion to remain focused on legal and policy
considerations. We have already heard from Members who they
think should be investigated for FARA violations. We are not
here today to discuss the details of any potential case or
individual. Instead, it is my hope that, amidst the potential
temptation to score partisan political points, it is not lost
on us that there appears to be general bipartisan support for
FARA, and that there may be areas of bipartisan agreement on
how to improve the act. I look forward to hearing from our
Witnesses on potential avenues for reform.
With that, I thank Chair Cohen for holding a hearing on
this important subject, and I yield back the balance of my
time.
Mr. Cohen. Thank you, Mr. Nadler.
I now recognize the Ranking Member of the Committee, Mr.
Jordan from Ohio, for as much time as he now consumes.
Mr. Jordan. Thank you, Mr. Chair.
On October 22nd, 2020, just two weeks before the most
important election we have, election for President of the
United States, then-candidate Biden said, regarding his son's
dealings with foreign companies, ``Nothing was unethical. My
son has not made money from Chinese business interests.'' Now,
there are 4.8 million reasons why that statement was not
accurate.
How do we know? How do we know that statement was not
accurate? The Washington Post told us so last week. Not Mike
Johnson, not President Trump, not Republicans--The Washington
Post told us this last week. They did two stories last
Wednesday, one at 11:00 a.m. and one at 11:04 a.m., two eight-
page stories four minutes apart, confirming what we already
knew: The laptop was real; the eyewitness was real; the emails
were real. The only thing fake 18 months ago in the runup to
the Presidential election was the news. I find that amazing--
two eight-page stories four minutes apart saying the laptop is
accurate; all the emails are accurate, saying this from The
Washington Post, when for 18 months they said, ``No, no, no, it
was Russian disinformation.''
When we think about what happened in the runup to the most
important election we have, big media, big tech, and Democrats
all colluded to bury that story, something I think the American
people would have liked to have known a little something about,
as they went to the polls to elect the Commander-in-Chief.
Oh, they were joined--it wasn't just big tech, big media,
and Democrats telling us something that wasn't true--they were
joined by 51 former intelligence officials who told us it was
Russian disinformation.
Now, think about this. This is funny how this story has
changed. First, it wasn't his laptop. Then, it was, ``Oh, yeah,
it was his laptop, but it was Russian disinformation.'' Then,
it was, ``No, it wasn't Russian disinformation, but Joe Biden
wasn't involved.'' Now, it was, ``Oh, yeah, Joe was involved,
but he did nothing wrong.'' It is amazing how that has all
changed in 18 months.
So, I look forward to hearing from our Witnesses and
figuring out what we can do with the Foreign Agents
Registration Act of 1938. It probably does need some changes,
something done to it. The title of today's hearing is
``Enhancing FARA, the Foreign Agents Registration Act of
1938.'' How about we just figure out a way to apply it
consistently?
As the Ranking Member said in his opening statement, this
has been used--just about anyone who was involved in the Trump
campaign had it used against them to get information and do a
prosecution, do the whole Mueller investigation, which found
out there was no collusion. We have obviously had collusion
here.
Maybe it does need to be applied at least in a consistent
fashion to Hunter Biden. We know Hunter Biden took millions of
dollars from the wife of the mayor of Moscow. We know he took
millions of dollars from energy companies in Ukraine, and
millions of dollars from companies in China with ties to the
Chinese Communist Party, including, as the Ranking Member
mentioned, CEFC, which paid him $4.8 million in one year's
time.
Should Hunter Biden have registered under this act? Why
didn't he register under this act? Why is the Department of
Justice being inconsistent? At least that is what it seems,
when, as the Ranking Member said, ``only seven people were
prosecuted between 1966 and 2016,'' and then, shazam, they
started using it against everyone associated with President
Trump's campaign, it seemed.
So, this is important. The Chair of the Committee just said
we are not here today to discuss individuals, but I do think
the American people would like to know the truth about this
story and why it was kept from them--kept from we, the people--
prior to, as I said before, the most important election we have
in this nation. That is important information, and I hope we
can begin to dig into that.
This Committee should dig into that. We should be all about
making sure the American people get the truth, and not have, as
I said before, big tech, big media, Democrats, and 51 former
intel officials, tell us something in the runup to the election
that was not accurate.
With that, I yield back.
Mr. Cohen. Thank you, Mr. Jordan.
Our Witnesses are here. We welcome you and thank you for
participating.
I will introduce each of the Witnesses before their
testimony. Therefore, you might remember who they are.
You get five minutes. There is a light system in front of
you. Green means you are on, and you have somewhere between one
and four minutes. Then, it turns yellow. That means you are
down to your last minute. When it turns red, that means you
should be finished.
Your full testimony will be entered into record, although
five minutes is what you are limited to in testimonial.
I will give verbal notice on the minutes remaining today as
well.
Before proceeding with the testimony, I would like to
remind all our witnesses that you are under oath to tell the
truth, and if you don't, you will be, could be cited with a
violation of section 1001 of title 18 of the U.S. Code.
Our first Witness is Mr. Jacob Straus. ``Doctor'' it says
there. I guess he is a doctor. He is a specialist on the
Congress and the government in the Finance Division of the
Congressional Research Service, one of our most esteemed
branches. He works on lobbying; ethics; commemorations,
including monuments and memorials, and congressional advisory
commissions. Dr. Straus received his M.A. and Ph.D. in
political science from the University of Florida and his B.A.
from the University of Maryland.
Dr. Straus, you are recognized for five minutes.
STATEMENT OF JACOB R. STRAUS
Dr. Straus. Chair Cohen, Ranking Member Johnson, and
Members of the Subcommittee, on behalf of the Congressional
Research Service, thank you for the opportunity to appear
today.
My testimony focuses on two areas: The history of the
Foreign Agents Registration Act, or FARA, and legislative
proposals to amend the law.
Concern over foreign influence in American politics dates
to the Revolutionary War and the Continental Congress' alliance
with France. President George Washington addressed foreign
influence in his 1796 farewell address writing that, ``history
and experience prove that foreign influence is one of the most
baneful foes of republican government.''
In the early days of the Republic, several incidents
brought concerns about foreign influence to prominence. In
1808, for example, the House of Representatives authorized an
investigation into allegations that General of the Army James
Wilkinson was a Spanish agent. General Wilkinson was,
ultimately, acquitted, but governmental interest in the
potential influence of foreign governments and actors on
American public policy remained for much of the next century.
The idea of regulating foreign influence dates to at least
the early 1900s, when the first pieces of legislation aimed at
directly addressing the real or perceived possibility of
foreign influence in American politics were introduced. These
measures, generally, would have required the registration of
individuals or groups seeking to influence public policy or
promote propaganda.
With the rise of Nazism in the 1930s in Germany, concern
about foreign propaganda influence grew. In 1934, the House
created the Special Committee on Un-American Activities to
investigate foreign propaganda and influence. Chaired by future
Speaker of the House John McCormack, the Special Committee
investigated the scope of foreign influence activities in the
United States and the spread of subversive propaganda that
originated from foreign countries.
In 1937, Representative McCormack introduced the bill that
would become FARA, and on June 8, 1938, President Franklin D.
Roosevelt signed it into law. As enacted, FARA sought, as
described by the Department of Justice, to, ``combat the spread
of hidden foreign influence in American politics.''
Specifically, FARA responded to foreign influence concerns
by creating a system designed ``to identify agents of foreign
principals who might engage in subversive acts or in spreading
foreign propaganda, and to require them to make public record
of the nature of their employment.''
Over the years, Congress has substantially amended FARA on
several occasions, most notably, in 1942, 1966, and in 1995.
Today, the Department of Justice administers FARA. The law, as
amended, generally focuses on individuals conducting advocacy
or public relations work on behalf of foreign principals within
the United States. These agents of a foreign principal are
required to register with DOJ and provide information about
their business and foreign principals they represent. For each
foreign principal, a foreign agent must periodically disclose
to DOJ copies of contracts, details of the financial
relationship, advocacy and public relations activities, and
informational materials.
In recent years, various Members of Congress have
introduced a number of measures to amend FARA. A CRS review of
these bills identified several trends. Broadly, these bills
proposed to provide civil investigative demand authority to
DOJ; change the penalties that could be imposed for
noncompliance; repeal or modify exemptions to FARA; modify the
administration of FARA by DOJ; amend FARA registration and
disclosure requirements, and public access to documents; alter
the requirements for labeling of informational materials;
restrict certain former officials, including Members of
Congress, from acting as foreign agents, and require reporting
to Congress and the DOJ on FARA implementation, administration,
and enforcement.
In closing, the Foreign Agents Registration Act is more
than 80 years old and primarily focuses on foreign agents
engaged in advocacy activities in the United States.
Congressional proposals recently introduced to amend FARA
include a range of options. CRS is available to discuss these
provisions further.
Thank you again for the opportunity to testify. I look
forward to your questions.
[The statement of Dr. Straus follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Doctor.
Our next Witness will be Mr. Dylan Hedtler-Gaudette. He is
the Government Affairs Manager at the Project on Government
Oversight. In this role, he advocates for more accountable and
transparent Federal government through advancement of good
government policy reforms. He focuses on issues ranging from
lobbying and ethics reform to judicial accountability and
congressional oversight. He received his M.S. degree from
Northeastern University and his B.A. from the University of
Southern Maine.
Mr. Hedtler-Gaudette, you are recognized for five minutes.
STATEMENT OF DYLAN HEDTLER-GAUDETTE
Mr. Hedtler-Gaudette. Thank you, Chair Cohen, Ranking
Member Johnson, and Members of the Committee.
My name is Dylan Hedtler-Gaudette, and I am the government
affairs manager at the Project on Government Oversight. I am
privileged to be here today.
I want to first start by commending the Committee for
holding a hearing on the Foreign Agents Registration Act and
ways to improve it. Making much-needed and long-overdue reforms
to this law will not only help the Federal government keep a
closer eye on the activities of foreign lobbyists and those who
advocate on behalf of foreign interests, but it will also
demonstrate to the American people that nobody is above the
law, which includes politically well-connected K Street
operatives.
Shining a bright light onto the sources and activities of
foreign lobbying is essential to protecting the integrity of
the U.S. political and policymaking processes. The Foreign
Agents Registration Act is designed to do just this by
requiring robust disclosure and reporting requirements on the
part of those who advocate on behalf of foreign interests.
We, as a nation, have been concerned with the potentially
corrupting impact of undue foreign influence in domestic
affairs since the dawn of the Republic, and today is no
different, with the exception of the fact that today's foreign
actors have evermore access to more sophisticated and more
effective ways of influencing and shaping U.S. policy toward
their own ends, which includes having access to a willing
cottage industry of mercenary lobbying firms and influence
peddlers.
There are a number of flaws in the Foreign Agents
Registration Act framework, and I wanted to highlight just a
couple of them with you today, and I would like to offer some
proposals. I would encourage the Committee to refer to my
written testimony, as well as to a supplemental report I have
attached to that testimony, to see a more complete range of
proposals.
First and foremost, the Department of Justice has not, and
continues to not, sufficiently prioritize the enforcement and
administration of this law. Back in 2014, the Project on
Government Oversight published a comprehensive report in which
we laid out a wide number of issues with the Foreign Agents
Registration Act. One of our key findings was a systemic
pattern of lax enforcement and an overall lack of interest at
the highest levels of leadership at the Department of Justice.
In 2016, the Inspector General of the Department of Justice had
its own report in which they found very similar things.
Unfortunately, not much has changed in the intervening
years. One way to remedy this problem is to create a dedicated,
standalone office that is responsible for enforcing and
administering the Foreign Agents Registration Act. Right now,
those responsibilities are in the hands of an underresourced
subcomponent of a subcomponent within the National Security
Division, and this simply isn't working.
One other issue we see with the Foreign Agents Registration
Act is registration itself. There are a large number of people
operating here in DC who should be registered under the Foreign
Agents Registration Act, but they aren't. One of the key
reasons for this is the existence of a large loophole, the LDA
exemption. The LDA exemption allows lobbyists who should
otherwise be registered under FARA to avoid doing so by simply
registering under the far less restrictive Lobbying Disclosure
Act. One keyway Congress can strengthen the law is by closing
this loophole.
One other issue we see with the Foreign Agents Registration
Act is its overreliance on criminal prosecution as the primary
enforcement mechanism. We encourage Congress to create civil
monetary penalties as another option in the toolbox that will
enhance enforcement of this law at the Department of Justice.
Lastly, I want to raise the issue of the outdated and
anachronistic way that the Department of Justice makes
available to the public the documents and materials that are
filed by registrants. We are 22 years into the 21st century,
and it is long overdue for the Department of Justice to
overhaul and modernize the way it makes these materials
available to the public, which must include adherence to, and
compliance with, the latest guidelines and standards related to
digital accessibility.
Since I began my testimony with bedrock principles, I want
to end in the same way.
Mr. Cohen. You have a full minute to go.
Mr. Hedtler-Gaudette. What's that?
Mr. Cohen. You have about a minute left.
Mr. Hedtler-Gaudette. One minute left or five minutes done?
Okay. Okay.
Since I began my testimony with bedrock principles, I want
it to end that way, too. We must strengthen the Foreign Agents
Registration Act because there are weaknesses in the law that
undercut its primary purpose, which is to shed light on the
activities of foreign agents. We must also strengthen the law
because it is critical to demonstrate to the American people
that the rule of law is real and that nobody is above the law,
and that includes the wealthy, the well-connected, and the
powerful.
Thank you for inviting me to testify today, and I look
forward to answering your questions.
[The statement of Mr. Hedtler-Gaudette follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, sir.
Our next Witness is Jonathan Turley. He is the Maurice C.
Shapiro and J.B. Professor of Public Interest Law and Director
of the Environmental Law Advocacy Center; Executive Director,
Project for Older Prisoners, at GW Law School. He has written
more than three dozen academic articles that have appeared in a
variety of leading law journals and served as counsel in
several notable cases over the last two decades. He has served
as a consultant at Homeland Security on constitutional issues
and is a frequent Witness before this Committee and others in
the House and the Senate, particularly on some tort reform
legislation. He received his J.D. from Northwestern, not
Northeastern, and his B.A. from the University of Chicago.
You are recognized for five minutes.
STATEMENT OF JONATHAN TURLEY
Mr. Turley. Thank you, Chair Cohen, Ranking Member Johnson,
and Members of the Subcommittee. It is a great honor to appear
before you today to talk about the reforms on FARA.
It is also a particular honor to appear with my esteemed
fellow Witnesses. I have tremendous respect for all three of
these Witnesses. I commend the majority in calling them here
today. We have a great deal of shared views in terms of FARA,
its possible reforms, and its potential dangers that Chair
Nadler discussed earlier.
I come to this as someone from the free speech community
that has a rather robust view of free speech. I have been
called a free speech purist. That used to be a compliment. I
have a certain resistance to registration systems because of
the dangers the Chair Nadler apply laid out.
FARA, for that reason, has been a subject of great concern
in the civil liberties community for a long time. The concern
is not with the degree of prosecutions. The degree of
prosecutions remains relatively low. The concern is that it can
be used to secure warrant, conduct searches, seize material,
including confidential material, under a statute that is
ambiguously worded and, also, in my view, inconsistently
applied.
As the Members of this Committee know, FARA has been
replicated in some countries, like Russia, which cite to our
own law as a justification for their crackdown on NGOs,
journalists, and dissenters. That level of abuse is capable in
any country, including our own. Indeed, FARA has been used for
abusive applications in the past.
We should not forget that FARA was created in the 1930s as
something of an anti-free-speech measure. The motivations were
good. It was intended to combat fascist propaganda, but it was
designed to stigmatize people that had views that were called
un-American. That type of origin, obviously, raises a lasting
concern among the civil liberties community.
Now, in terms of its actual use, as has already been
pointed out, it has been rather modest. Indeed, even in World
War II, we only had a couple of dozen figures that were
prosecuted. We only had eight individuals that were prosecuted
between 2016--I'm sorry--1966 and 2015. On the civil
enforcement side, we only had 17. That has gone largely dormant
since then.
We have an uptick, a shift towards criminal prosecutions.
That is what concerns me about the changing of FARA. We are
sort of in the third incarnation of this statute. I would
encourage the Committee not to go back to its origins in terms
of speech-control mechanism, a way of stigmatizing what is
viewed as un-American speech, even if that is done under the
guise of disinformation.
If it is transparency that is being sought in lobbying, you
can achieve that with some well-reasoned reforms. In 1966, in
the sort of second incarnation of the act, the Congress sort of
moved towards that transparency model. For that reason, I have
suggested four areas that, in my view, would warrant
clarification.
That includes--and this may seem rather trite--but it
includes clarifying the purpose of FARA. It is not clear what
the purpose is. We need to understand, if this the third
incarnation, what FARA's purpose is today.
I also suggest clarifying the line between criminal and
civil enforcement. The Department of Justice has laid out
sweeping discretion. That is a difference between five years in
prison and a retroactive registering under the act. It is
considerable, and the Congress should look at it. I have
suggested clarifying key terms that I believe are, as some of
my colleagues have noted, ambiguous and dangerous.
Finally, I specifically raise the clarifying of the legal
exemption. It is still an exemption that is heavily laden with
these terms that can have wildly different applications between
different cases.
My greatest concern I started with and I will end with. I
hope this Congress does not return to the original purpose of
FARA and does not return to the use of the statute to combat
un-American statements or viewpoints.
There has been an array of statutes passed since 1938 that
allows Congress to return to a more civil administrative
approach to FARA. There is no political agenda that you will
see among the Witnesses today. We are in agreement on many of
these points. I echo the Chair's view; I think that is a
wonderful opportunity for us to come together on this statute.
[The statement of Mr. Turley follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Professor Turley.
The final Witness is Nicholas Robinson. He is a Senior
Legal Advisor at the International Center for Not-for-Profit
Law, where he manages the organization's U.S. program. Not-for-
profit law, that means you don't have to do billable hours, I
guess? That is good. That is good.
[Laughter.]
His research and expertise centers on how laws aimed at
curtailing foreign influence can impact civil society
organizations, the regulation of freedom of assembly, and civic
space in a time of rising global authoritarianism. His research
has been published in a number of academic journals, including
Duke Law Journal--but not the UNC Law Journal or the Kansas Law
Journal--and the Cornell Law Review. He is regularly quoted and
cited in leading news outlets. Prior to joining this group, he
was a lecturer and fellow at Yale University, where he taught
both human rights and professional responsible. He is a post-
doctoral fellow at Harvard Law School. So, he doesn't play
favorites. Before that, he worked in India, where he was a
clerk at the Indian Supreme Court, a professor at the Jindal
Global Law School, and a Senior Fellow at the Center for Policy
Research. He received his J.D. from Yale and B.A. from the
University of Chicago.
Mr. Robinson, you are recognized for five minutes.
You don't go to anything but the best schools.
STATEMENT OF NICK ROBINSON
Mr. Robinson. Good morning, Chair Cohen and Ranking Member
Johnson, and Members of the Subcommittee.
My name is Nick Robinson. I'm a Senior Legal Advisor at the
International Center for Not-For-Profit Law, where we work to
create an appropriate legal environment for nonprofits for the
U.S. and around the world.
Today, I want to highlight why the Foreign Agents
Registration Act needs to be better targeted. After the 2016
presidential election, there was an understandable increase in
concern about Russian and Chinese influence in U.S. politics.
In response, some policymakers, including the Justice
Department, turned to FARA as a potential answer.
To be clear, renewed focus on the act has provided needed
transparency around lobbying by foreign governments and has led
to important prosecutions. However, as enforcement has ramped
up, FARA's notoriously sweeping provisions have also
increasingly interfered with the operations of nonprofits,
businesses, religious institutions, and others, with limited or
no connection to a foreign government, and in a manner that
Congress never intended.
Civil society has been raising the alarm. Consider a recent
open letter to the Justice Department signed by the ACLU,
Americans for Prosperity, the NRDC, and other prominent
nonprofits. It warns that, ``FARA's overbreadth and vagueness
can undermine and chill First Amendment rights to speech and
association and the statute has a history of being used to
target undesirable expressive conduct.''
While the Department has in recent decades prioritized
enforcement of the act against lobbyists of foreign
governments, the act's provisions capture a dizzying array of
other Americans. For example, a U.S. nonprofit that arranges a
public speaking event in Chicago at the request of a visiting
Ukrainian pro-democracy advocate, would, arguably, be required
to register under the act.
Nor are these concerns merely hypothetical. As the Justice
Department has ramped up enforcement, it has demanded that a
U.S. church register for putting up banners at the request of
foreign congregants who came to Washington, DC, for the March
for Life rally, or the Justice Department required the National
Wildlife Federation to register because it accepted money from
the Norwegian government to work with U.S. multinational
corporations on improving sustainability of product supply
chains in certain tropical countries.
FARA's overbreadth provides the Justice Department the
power to decide who will and will not be a foreign agent, a
stigmatizing label that carries extensive reporting
requirements and other burdens. Such power is ripe for abuse.
For example, during the McCarthy Era, the Justice Department
used FARA to prosecute W.E.B. Du Bois, the renown civil rights
leader, for disseminating anti-war literature from a French
nonprofit.
This overbreadth and vagueness also creates confusion about
who needs to register. As I sometimes joke with colleagues,
FARA has become a job creation scheme for high-end D.C. law
firms. While some can afford such expert counsel, most cannot.
Importantly, having such a broadly worded act undercuts the
Justice Department's ability to enforce it. Currently, the
Department is distracted by registrants who are not their
enforcement priority, and they face the real prospect of the
act being challenged on First Amendment grounds, undermining
their ability to enforce it against anyone.
I would respectfully urge Congress to take action. While
there are many proposals to strengthen enforcement of the act,
as my colleague from POGO described, and as Professor Turley
also emphasized, the act, though, needs to be better targeted.
This should include three key pillars.
First, fix the foreign principal definition. Currently, the
act's foreign principal definition makes no distinction whether
one is an agent of the Chinese government or one's grandmother
in Canada. This simply does not make sense.
Second, clarify the agency definition. One can currently
become an agent under the act by acting at the, ``request of a
foreign principal.'' However, if I asked 10 different FARA
experts what ``request'' means, they could give me 10 different
answers.
Third, better target the act's covered activities. FARA has
had success in making visible the lobbying of foreign
governments, but its other benefits have been far less clear.
Congress should review the broad, often outdated, set of
activities that FARA currently covers to make sure that they
are tailored to the purpose Congress is trying to accomplish
with the act.
Thank you for inviting me today, and I would be happy to
answer any of your questions.
[The statement of Mr. Robinson follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Mr. Robinson.
I am just curious, the lady behind, who are you and who do
you represent?
[Inaudible response from audience member.]
You don't work with Mr. Robinson?
[Inaudible response from audience member.]
Oh, because she was nodding the whole time, and I assumed
she was part of your team. I wasn't sure.
[Laughter.]
I just didn't know if you were getting good ratings, or
whatever it was.
I appreciate your testimony on how we can improve FARA.
This is the question portion of our program where I have five
minutes, and we will go down the line.
Do you think we should even have FARA? I mean, you don't
have a great perspective on it. Do you think it is that what
maybe wasn't appropriate even in 1938-1939, but do we need FARA
at all?
Mr. Robinson. I think this is the question that Congress
should be asking.
Mr. Cohen. I am.
[Laughter.]
Mr. Robinson. Yes. Congress, as a collective body, asking.
As I said, it has been used most recently for providing
transparency around lobbyists for foreign governments. There
are some distinctions from the LDA. The LDA could potentially
be used this way or the LDA could be amended.
I think what is ironic here, when FARA was passed in 1938,
they didn't have lobbyists in mind. There weren't really
lobbyists in Washington, DC, in the same way. So, it is really
just not tailored, it is not targeted to purpose. That is what
it is used to--most people can agree today, or many people on
both sides of the aisle think it should be used for lobbyists
of foreign governments. Beyond that, it breaks down, and
there's many other tools and mechanisms that have been enacted
since to target, say, outside election interference or other
issues like that of concerns around foreign influence.
Mr. Cohen. My friend, Mr. Johnson, brought up several
Republicans who were involved in prosecutions. Mr. Greg Craig
was, too, a Democrat. He went to trial, et cetera, but were
there errors or areas where maybe he shouldn't have been? Did
it go too far in getting Mr. Craig, do you think?
Mr. Robinson. So, I'm not an expert on that case. I don't
feel comfortable talking to that case, but maybe one of my
colleagues--
Mr. Cohen. Thank you.
Well, Professor Turley, do you have any opinion on Mr.
Craig's prosecution?
Mr. Turley. Well, that's one of those cases. I was
concerned with a lot of the cases during that period because,
as I say in my testimony, if you take a look at the legal
exemption, but not just under the act itself, but, more
importantly, obviously, the exemption defined by the Department
of Justice, it is extremely ambiguous as to when you trip that
wire. I think the Craig case shows that what happened with him
could have been applied to others.
You will notice that there was also an investigation of
John Podesta. He was allowed to retroactively register. When
that happened, I have to tell you, I was looking at those cases
going, ``Well, all right. What's the distinction here? What's
the clear distinction?''
Attorneys need to have some clear line. I want to echo what
Mr. Robinson said. It is not just attorneys. Nobody really
cares about us in terms of being put in a tough position. This
is impacting public interest organizations who also have to
make this decision.
When you think that the National Wildlife Federation was
told that they have to register as a foreign agent because they
are working, advocating against the burning of the rainforest,
it should be an alarm for Congress to say, ``Look, we need to
look at this, as to where these lines are, and have some
consistent, coherent approach to who has to register.''
Mr. Cohen. Thank you, Professor Turley.
Mr. Hedtler-Gaudette, you have heard Mr. Robinson's
discussion about LDAs. What is your response to those who argue
that LDA registration provides sufficient transparency for the
subset of agents of foreign principals that it covers because
they don't represent foreign governments or political parties?
Mr. Hedtler-Gaudette. I think the short answer is, no, I do
not believe that the LDA has sufficient transparency,
safeguards, and protocols in there, relative to what we should
expect of foreign agents or people lobbying on behalf of
foreign agents. I think it is perfectly appropriate to have two
different systems for people who are lobbying purely
domestically and those who are lobbying on behalf of foreign
interests. That is in many ways the system we have now.
I agree with my colleagues, though, that there is always--I
think it is always a good heuristic in policymaking to be as
clear and targeted and tight as possible, especially around key
terms here in the Foreign Agents Registration Act. I would not
say that we should simply funnel foreign agents into the LDA's
framework, because the LDA framework also has quite a few
shortcomings and weaknesses. So, I would, as I said in my
testimony--and I elaborate a little bit in my written
testimony--I would advocate that we actually close the LDA
exemption and require all foreign lobbyists to register under
the FARA framework, because it has much stronger reporting and
transparency and disclosure mechanisms in there. I think that
is appropriate. That is as it should be.
Mr. Cohen. Thank you, sir.
I will now yield to Mr. Johnson, the Ranking Member.
Mr. Johnson of Louisiana. Thank you, Mr. Chair.
Thank you all, for the Witnesses. Very much appreciate your
expertise.
Mr. Turley, I appreciated your testimony about the threats
of the Foreign Agents Registration Act being enforced as it may
have been originally intended. Many of you mentioned that.
In your written statement, you noted, quote, ``FARA began
in the 1930s to combat propaganda and was framed as a way to
curtail un-American speech.'' When I read that, I must say that
my first thought went directly to Judge Ketanji Brown Johnson.
If un-American speech was still unlawful today, I would just
note here, there is no way she could be considered as a nominee
for the U.S. Supreme Court. I mean, if you didn't see over the
weekend, she testified in her post-hearing written questions
for the record, quote, ``I do not hold a position on whether
individuals possess natural rights.'' It is unbelievable.
I mean, we can hardly imagine a more un-American position
than denying the first self-evident truth of America listed in
the Declaration, but I think she is the first SCOTUS nominee to
openly hold such a position. I digress.
Okay. Mr. Turley, as I noted earlier, during Special
Counsel Robert Mueller's probe, there were at least five
indictments of conservatives under FARA, and that represents
nearly as many FARA prosecutions in just 18 months as there
were in the previous 40 years combined. It would seem these
alleged FARA violations were used as either a pretext to
investigate those with ties to President Trump or that FARA
charges were used to pressure conservative aides in a bid to
find a connection between the Trump campaign and Russia. So, no
improper connection on the President's part was ever found,
obviously, and now, everybody knows that was all just a
complete sham.
Here is the question: Based on your research into the
issue, and your understanding of the history of FARA, is it
fair to say that the law became a highly weaponized tool of the
DOJ and FBI against the Trump campaign?
Mr. Turley. Well, I do think that the Mueller investigation
used FARA, as many prosecutors do, as a cudgel to go after some
of these individuals. It is a very handy tool. It is sort of
like 18 U.S.C. 1001. If you allege a false statement, you get
into a warrant. You were able to do a search. You are able to
secure information.
Particularly with FARA, the concern is that--at least with
18 U.S.C. 1001, you have to establish a false statement, and
that was involved in the Michael Flynn case--with FARA, these
terms are really difficult to track in terms of how they are
being interpreted. The Department of Justice itself has
withdrawn advisory opinions--well, at least one critical one--
as to the definition of some of these terms.
So, suddenly, what was interesting about the Mueller
investigation is that many of us were familiar with FARA, but,
suddenly, all the lights went on. It seemed like we went from a
dead stop to you could throw a stick and hit a FARA violation
on every corner in the city.
What really should focus the attention of Congress is not
necessarily a questioning of Mueller's investigation, but the
consistency of the application of the law, and why, suddenly,
we had this emphasis placed on the criminalization and the
prosecution under FARA.
I have to say, that was quite a change from what preceded
it. Before that happened, FARA was widely known in Washington
as largely an administrative process, and the penalty was
usually retroactive registration, like what happened with John
Podesta.
Mr. Johnson of Louisiana. Right. Okay. So, let me get to
Hunter Biden now. Have you had a chance to review the documents
contained in that laptop, or at least the publicly available
reports on those documents?
Mr. Turley. I have.
Mr. Johnson of Louisiana. As the statute currently stands,
do you believe that Hunter Biden's activities on behalf of
foreign interests, as evidenced by the documents on the laptop,
required him to register under FARA?
Mr. Turley. What I think I feel comfortable in saying is I
don't want to presuppose anyone's guilt.
Mr. Johnson of Louisiana. Sure.
Mr. Turley. I guess what I would feel comfortable in saying
is that, with Paul Manafort, if you take a look at what he pled
guilty to in 2018, there's obviously very strong similarities
in the type of activities that were described in that
indictment and what we are seeing in the laptop, including the
acknowledgment of the possible necessity of registering under
FARA. So, if you look at that indictment, that would be a
strong basis.
If I were his counsel--quite frankly, I'm a criminal
defense attorney--I think most people in my position would tell
him that we need to be prepared for a charge here, if Manafort
is the standard.
Mr. Johnson of Louisiana. The standard.
Mr. Turley. I have to say, all we have are these accounts.
We don't know what was presented in the grand jury. My
understanding is that Hunter Biden has given information to the
U.S. Attorney. So, I don't think that we can say with any great
certainty that these cases are identical or that a charge is
forthcoming. What I am saying is that, if you use the Manafort
indictment, this does not look good for Mr. Biden.
Mr. Johnson of Louisiana. We all look forward to reviewing
that record.
I yield back. I am out of time.
Mr. Cohen. Thank you, Mr. Johnson.
First, I would like to have Mr. Hank Johnson take the chair
temporarily. I have got some visitors.
I will recognize Mr. Nadler for five minutes.
Chair Nadler. Thank you, Mr. Chair.
Dr. Straus, in 1938, Congress chose to structure FARA as a
transparency and disclosure regime. While clearly concerned
about the influence of foreign propaganda at the time, was
Congress also concerned about potentially curbing First
Amendment protected activities?
Dr. Straus. Thank you, Congressman.
So, in my review of the record or my recollection of the
record, it was something that was discussed, but I would have
to get back to you as to exactly where the discussion came down
on the lines in that original passage of the law for 1938.
Certainly, based on my recollection of reading the
congressional documents, it was something that was discussed
during the hearings.
Chair Nadler. Thank you.
Mr. Hedtler-Gaudette--if I have pronounced your name
correctly--in your testimony you highlight that FARA's
registration exemption for individuals and organizations
registered under the Lobbying Disclosure Act is particularly
problematic from a public transparency perspective. Can you
further explain why it is problematic and what action Congress
should take to address it?
Mr. Hedtler-Gaudette. Yes. Thank you. Thank you, Chair
Nadler.
The Lobbying Disclosure Act is not a very strong
transparency and disclosure framework for people who are
engaged in lobbying activities. The Foreign Agents Registration
Act is a much stronger mechanism in terms of the actual
reporting it requires; what documents and materials that
someone who registers has to provide; the timely manner in
which they have to provide it.
So, my recommendation there is to close the loophole that
allows people who should, otherwise, being registering as
foreign agents--or we can call them something else, if we would
like to, people lobbying on behalf of foreign interests--they
should be lobbying under FARA because they are doing something
that is distinctly different that we have a different interest
in, and they should not be allowed to register under the less
restrictive Lobbying Disclosure Act.
I think part of the problem there is we need additional
sunlight and transparency around what could be potential undue
foreign influence. Because, at the end of the day, we have to
ensure that American policy is, first and foremost, being made
on behalf of American people. That is the bedrock guiding
principle here, the North Star, if you will, around why these
are two separate categories of activities, two separate
categories of individuals, and why they require two separate
regulatory frameworks.
Chair Nadler. Thank you.
Mr. Robinson, in your testimony, you noted that the
definition of ``agent of a foreign principal'' is overbroad, in
particular, because of how it defines the agent-principal
relationship. How does FARA's definition depart from how this
relationship is commonly understood in American law? Why is
this problematic for the nonprofit sector?
Mr. Robinson. Thank you.
That's right. So, the agency definition is very vague in
the law. It is not just vague to us. The Justice Department has
issued now over 50 advisory opinions on the agency definition.
You must have a high-end law firm to go through to try to make
sense of it.
One word that keeps on coming up in the FARA agency
definition is if you act at the request, quote, ``request''
unquote, of a foreign principal, then you can be considered an
agent of that foreign principal. Under normal ``agency''
definitions, it is at the direction and control with consent of
both parties. That is what you would find in the restatement of
``agency'' in case law.
This creates a big problem. So, for example, I was
requested today to come to Congress and appear and talk before
you. No one thinks that I'm acting as your agent today, right?
Or if I request a meeting with one of your staffers, they are
not acting as my agent, right? You see this all the time in the
nonprofit sector where, say, an organization that works in
child trafficking, one of their partners abroad requests,
right, that they may be hosting a meeting--
Chair Nadler. I hope you mean against child trafficking.
Mr. Robinson. What?
Chair Nadler. I hope you mean against child trafficking.
Mr. Robinson. Yes, against child trafficking. Yes. Thank
you. For combating child trafficking.
That if they ask request to help set up a public meeting in
the U.S. or to distribute some literature, they can be covered
by the act. This has just created a lot of confusion and
uncertainty in the nonprofit community.
I don't think the Justice Department is trying to go after
the Amnesty Internationals of the world, but the act, as it is
written, can clearly capture some of the behavior that
nonprofits frequently engage in.
Chair Nadler. Thank you very much. I yield back.
Mr. Johnson of Georgia. [Presiding.] Thank you.
The gentleman from Maryland, Mr. Raskin, is recognized for
five minutes.
Mr. Raskin. Mr. Chair, thank you very much.
Before I get into FARA, I think that fairness compels me to
answer my friend, Mr. Johnson's, amazing drive-by slam on Judge
Jackson for stating the obvious, that she will enforce the
Constitution and the Bill of Rights as written, and not invent
whatever rights she wants under the rubric of ``natural
rights'' or ``natural law''--two phrases which do not appear in
our Constitution or in Federal law. Other than Justice Thomas,
who ended up having to backtrack from this position, I am not
aware of a single Supreme Court Justice who thinks that a
judge's personal interpretation of ``natural rights'' or
``natural law'' should inform his or her interpretation of the
Constitution of the United States.
It was, in fact, the great conservative hero, Robert Bork,
who vehemently opposed this idea of even trying to import
natural law or natural rights through 14th Amendment due
process or through the Ninth Amendment.
So, I think Mr. Johnson may owe Judge Jackson an apology
for what he has just said. We put Justices on the Supreme Court
to enforce the Constitution of the United States and the laws
of land, not their own airy notions of natural law or natural
right. I would urge you to rethink that whole thing.
On FARA, I would like to come to Mr. Robinson. I want to go
back to something you said about the potentially vast coverage
of this statute. I have got a lot of constituents who are
Ukrainian Americans. If they talk to Ukrainian family who urge
them to come to Congress because of Putin's slaughter in their
country, and to urge us in Congress to support the Ukrainian
people with jets, for example, or anti-aircraft missiles, would
they, arguably, be covered under FARA, such that they would
have to register?
Mr. Robinson. Yes, I think this is the concern, that under
both the language of the act and, also, recent interpretation
by the Justice Department, because they have been interpreting
that word ``request'' so broadly, that they are covered under
the language of the act. That is just a serious problem.
It also came up, when former military personnel who served
with folks in Afghanistan, when they were trying to flee the
Taliban, were making similar kinds of requests to Congress.
They could also easily get caught up in the language of FARA as
well.
Mr. Raskin. Well, as a nation of immigrants, where people
do have family and friends all over the world, I think that is
deeply problematic and a ludicrous implication of an existing
Federal law.
On the other hand, would you agree that, if Vladimir Putin
wants to employ people from his multimillion dollar internet
research agency to work to pump his propaganda into the
American system, say, to promote his pro-Russian views, and
pays people to do that, either working on internet messages or
working on influencing TV celebrities like Tucker Carlson, that
people who are directly on the payroll or receiving consultant
money from a foreign government, people like that should have
to register?
Mr. Robinson. Yes--no, so I think this is the question. The
way that we have been advocating is to define ``foreign
principal'' as foreign government or political party, or those
operating on their behalf, and to redefine the ``agency''
definition to make it much more acting at the direction and
control, so that type of situation. So, I think those are the
types of situations where FARA could apply.
Mr. Raskin. The reason the analogy I want to draw is to our
campaign finance laws, where we don't allow Vladimir Putin or
President Xi, or Orban, or any of the authoritarians around the
world, or any political parties or governments around the
world, to put money into our political system period.
Mr. Robinson. Right.
Mr. Raskin. They are banned. At the very least, if they are
paying people to come and lobby here, or to disseminate
propaganda, disinformation, in our society, we should know
about it. That should be exposed. Do you have any problem with
that idea?
Mr. Robinson. Yes, I think that is right. I think the
challenge on the propaganda side is, how do you distinguish
kind of the BBCs of the world from the RT TVs of the world?
Right now, FARA doesn't do a good job of that, and I think that
is--
Mr. Raskin. Yes, but why do you need to distinguish it? If
BBC is actually paying people to work as reporters here, that
should be disclosed. So, what is the problem with that?
Mr. Robinson. Right, and I think, right now, the FCC has
just adopted regulations requiring that kind of disclosure. So,
I think the question is, what tool should Congress be using for
that disclosure?
Mr. Johnson of Georgia. The gentleman's time has expired.
Mr. Raskin. Thank you, Mr. Chair.
Mr. Johnson of Georgia. I will now go to the gentlewoman
from North Carolina, Ms. Ross, for five minutes.
Ms. Ross. Thank you very much, Mr. Chair, and thank you for
being in the room to help out our Subcommittee.
I also want to thank all the panelists for joining us
today.
The Foreign Agents Registration Act is an important tool
used to combat foreign influence in the United States. The law
promotes government transparency by requiring certain foreign
agents of foreign principals who are engaged in political
activities to publicly disclose their relationship with foreign
principals. The law does not prohibit attempts by agents of a
foreign principal to shape political discourse in the United
States, but is intended to shed light on who is engaged in such
efforts on behalf of foreign principals. By doing so, FARA
promotes transparency in the policymaking process by allowing
the public to consider the source and the allegiance of the
messenger when evaluating the message.
This Committee has not held a hearing on FARA since 1991,
when the world's geopolitical and technological landscape was
dramatically different than it is today. There is bipartisan
interest in reforming the law to enhance its transparency
mechanisms. It is time that we consider new proposals to modify
the law to strengthen its impact and ensure that it is serving
its intended purpose.
My first question is for Mr. Hedtler-Gaudette. The
effectiveness of FARA is, ultimately, premised on the notion
that shedding light on the activities of certain agents of a
foreign principal seeking to influence the United States will
make the government more accountable to the American public.
Based on your organization's research, are the registration
statements, supplements, and informational materials filed with
the Justice Department accurate, timely filed, and easily
accessible to the public?
Mr. Hedtler-Gaudette. Thank you, Congresswoman.
I think in response to your question, I think the short
answer is, no, not really. The Department of Justice has come a
long way in recent years, though.
As a quick anecdote, back when we published our report in
2014, a couple of our staff members, they spent just like about
every day at the FARA unit, which, by the way, it was only open
between 12:00 and 4:00 each day. They spent every day there
trying to comb through a document that had been filed by a FARA
registrant.
At the time--this was 2012; we are talking only 10 years
ago, not that long ago--the FARA unit didn't even have a
scanner. So, it could not make these things that had been filed
with the FARA unit, they could not have them in electronic
format, which I think just tells you about the lack of sort of
emphasis and prioritization and lack of resources around
enforcement.
Now, things have changed a little bit since then and they
have gotten a little bit better. They are not yet where they
need to be. I mentioned in my opening statement that we are 22
years into the 21st century, but the Department of Justice, at
least in the FARA context, has not caught up, and not even come
close to catching up. They need to standardize. They need to
standardize, and then, they need to harmonize the way things
are filed, the way things are posted, the way things are made
available to people like me.
By the way, I'm blind, in case you all didn't know. So, I
have to use a screen reader to read things on the computer. If
you are simply scanning a physical document, all you are
scanning is an image. A screen reader cannot read an image. So,
what you have is you have a whole crop of people, blind folks
and others, completely locked out of the process of being able
to access these documents. That is just a small example of how
the Department of Justice has not caught up to modern standards
around this kind of thing. That hurts and undermines public
accessibility broadly.
So, that is a long way of answering your question,
Congresswoman, saying we are in need of a comprehensive
overhaul and modernization effort at the Department of Justice
when it comes to these documents and making them actually
transparent and available to the public.
Ms. Ross. Is there anything specific that Congress can do?
Or do you think this is merely just oversight of what an
administrative agency does?
Mr. Hedtler-Gaudette. Yes, I think, unfortunately--and this
is not specific to the Department of Justice; this is true
across the Federal government in all agencies--without prodding
and without being required to do so, they will not do things to
make their informational materials more accessible, and they
won't do it proactively.
So, I think Congress is in a position where you all have to
force the issue in some way here. We have seen that it has
taken this long to get to where we are, and where we are is not
sufficient. Without congressional action, I fear we will still
be waiting another 10 years for the Department of Justice to
catch up to where it needs to be.
Mr. Johnson of Georgia. The gentlelady's time has expired.
Ms. Ross. Thank you so much, and I yield back.
Mr. Johnson of Georgia. I thank the gentlelady.
I will now recognize myself for five minutes.
Thank you to the Witnesses for your appearance today.
Always great to see, Professor Turley. I will start with
you with my questions.
Since we have been talking, or you guys have been talking,
about the Hunter Biden laptop controversy, you did have an
opportunity to read The Washington Post articles about the
laptop, is that correct?
Mr. Turley. Yes, sir.
Mr. Johnson of Georgia. You would not disagree with me that
The Washington Post article found that the verifiable emails on
the hard drive were just a small fraction of the data on the
hard drive, is that correct?
Mr. Turley. Yes, sir.
Mr. Johnson of Georgia. The vast majority of the data could
not be verified that was on the hard drive, isn't that correct?
Mr. Turley. I'm not too sure if that is correct with regard
to the grand jury.
Mr. Johnson of Georgia. Well, I will take judicial notice
myself of the fact that it was a part of the story.
[Laughter.]
Sloppy handling of the hard drive was one of the reasons
why they could not verify the vast majority of the data. They
found, isn't it correct that they found that data was
repeatedly accessed and copied by people other than Hunter
Biden over a three-year period?
Mr. Turley. Yes, I'm not too sure if that's been clearly
established. I think the--
Mr. Johnson of Georgia. Well, yes, that's what, again, the
article reports. I don't think there is anything that would
refute that at this time.
The bottom line, though, even in the 129,000 emails, or
however many it was that could be verified as authentic on the
Hunter Biden hard drive, not a scintilla of evidence of
criminal wrongdoing has been talked about today by my friends
on the other side of the aisle, isn't that correct?
Mr. Turley. I'm not too sure what has been discussed, but
in terms of criminality--
Mr. Johnson of Georgia. Well, I--
Mr. Turley. --I think there are legitimate questions in the
laptop.
Mr. Johnson of Georgia. So, the FBI has the laptop and is
looking at those, including whether or not Hunter Biden should
have registered as a foreign agent.
So, thank you, Professor Turley.
Mr. Robinson, FARA contains several exemptions to the
registration for agents of a foreign principal engaged in
certain activities which are specified under 22 U.S.C. 613,
correct?
Mr. Robinson. That's correct.
Mr. Johnson of Georgia. What are some of the examples of
these exempted activities?
Mr. Robinson. So, probably the most frequently cited
exemption is for private and nonpolitical activities for bona
fide trade or commerce. This is a really important exception,
the commercial, because the act actually requires registration
if you distribute anything of value in the United States on the
behalf of a foreign principal. So, if there wasn't this
exemption, it would stop almost all cross-border activity,
commercial activity. There's not a similar exemption for
nonprofits. So, there's a host of exemptions or a set of
exemptions, but, unfortunately, they don't capture very common
activity by both nonprofits and the public at large.
Mr. Johnson of Georgia. So, you believe that the exemptions
are not adequate to address current realities?
Mr. Robinson. That's correct.
Mr. Johnson of Georgia. Have you seen any evidence that
Hunter Biden unlawfully failed to register as a foreign agent
in the laptop contents?
Mr. Robinson. I have not seen the laptop contents.
Mr. Johnson of Georgia. Just fishing, I guess.
[Laughter.]
Mr. Johnson of Louisiana. You're blessed.
Mr. Johnson of Georgia. Pardon me. I'm sorry.
How would you respond to those who may argue that the need
to disclose foreign influence on U.S. policymaking outweighs
the burdens to nonprofits that you have outlined here today?
Mr. Robinson. Well, I think you can have both, in the sense
that the act needs to be better targeted, right? I don't think
anyone is questioning that a lobbyist for the Saudi government
or the Chinese government should need to register or have some
sort of disclosure.
The problem is when it starts catching up congregants at
churches who are printing out banners for March for Life
rallies or for climate change rallies. That is the situation we
are in right now.
So, the act needs to be much better targeted to develop the
purpose.
Mr. Johnson of Georgia. Thank you.
Mr. Hedtler-Gaudette, you stated in your written testimony
that strengthening FARA helps to secure the rule of law. What
do you mean by that?
Mr. Hedtler-Gaudette. Thank you, Chair Johnson.
What I mean by that is, when we see so few FARA violations
being--I don't want to say prosecuted because we have concerns
about overuse of criminal prosecution--but, we see so few
people who violate this law being held accountable in a
meaningful way, what that does is it sends a message, and it
not only sends a message, but it actualizes the message that
laws are not necessarily always laws and not everyone is held
accountable to those laws in an evenhanded way. That
fundamentally undermines the rule of law.
The rule of law is predicated on the idea that we are all
subject to them, and we are all subject to them because, to use
a term that is particularly applicable here, justice is
supposed to be blind. If we are unevenly and selectively
applying laws, including this law, then we are not delivering
on the promise of the rule of law in a rule-of-law society.
Mr. Johnson of Georgia. Thank you. My time has expired.
We will now move to the gentlelady from Texas,
Representative Jackson Lee, for five minutes.
Ms. Jackson Lee. Mr. Chair, thank you.
To the Witnesses, I appreciate very much the testimony that
you have given here today.
Let me thank and specifically pose questions to Professor
Turley. First, I think we have been seeing each other any
number of years, as you have come before this Committee, and
your scholarship is well respected.
We have come to a point that is so different from when I
came here--that the divide now is so intense, that we use laws
to try to probe divisively. This seems to draw some moment of
conclusion of the unity behind the fact that there is a purpose
in trying to deal with the foreign agent's registration.
Can you go back again, just very briefly, to its origins of
speech? Then, I would pose a question of, how do we protect
against that now?
Second, my friends on the other side seem to be consumed
with the son of the President. I would hope that you would
respond that should not be the purpose of this legislation, to
pull and condemn and indict individuals. That should not be the
point of our reform because this is going to be a lasting
legacy, if you will, of reform.
So, let me pose that question to you.
Mr. Turley. Thank you, Congresswoman. It's wonderful to see
you again.
Yes, I believe that you framed the question exactly right
in terms of the origins of FARA. It did begin as a tool to
stigmatize speech that was deemed as un-American. That is a
legacy of this act that I hope Congress will not return to.
As has been already noted, there is a public interest in
transparency, and it is hard to argue against that. It is also
important to remember that, since 1938, we have a lot of new
laws--not particularly new. We have a lot of laws since that
time that force transparency. You don't need FARA to get
transparency in higher education or in elections. You don't
need it in most proceedings. For example, when I came here
today, I was asked to identify any foreign interest that I
might represent.
So, I think that this is a really important time to
reevaluate what we are trying to achieve in FARA, and possibly
sort of reframe it to achieve whatever those purposes are.
I certainly agree with you, Congresswoman, that we should
not be viewing this as a weapon to use against political
opponents. This is a very powerful law, and it can do great
harm.
You only have to look at what Russia has done, and they
point to us; they point to our law and say that they modeled
their FARA on what we do. We have to be aware of that, that
this is something that can be easily used for the worst
purposes.
Ms. Jackson Lee. I like that framework.
My time is running, but let me, Dylan, Mr. Hedtler-
Gaudette, let me try to suggest that we are in different times.
We have social media. We are sometimes getting such
politicizing of propaganda with Russia.
Let me put on every record that I am before of my disdain
for Vladimir Putin in terms of the murderous behavior and
terrorist behavior that he is engaging in, and, of course,
perpetrating lies about Ukraine and what is going on to the
Russian people, and really around the world.
With social media joining in, in some instances, who happen
to support that, do we need additional definitions--because
this is such an ancient law, if you will--to update, because
some of that behavior may be the behavior of a foreign agent
that is trying to impact the people in the United States?
Mr. Hedtler-Gaudette. Thank you, Congresswoman.
I think, yes, we do need to update that. As has been
pointed out many times today, this law dates back to 1938 and
hasn't been substantially reformed since 1995. A lot of things
have changed since then, including, as you point out, the
advent of social media.
I would also want to pause to flag that there has been an
effort right here in the House of Representatives. There is a
bipartisan bill by Representative Spanberger and Representative
Katko that would do just this. It would try to contemplate
social media content and try to construct the sort of framework
around it that we need to reflect modern-day realities,
including that it needs to be conspicuously labeled as being on
behalf of a foreign agent, if it is, in fact, that.
I think you are absolutely correct that we do need to
update, yes, the Foreign Agents Registration Act framework
around what kind of content is an informational material and if
it should be reported and labeled as such.
Ms. Jackson Lee. If anyone quickly wants to answer?
I note the gentleman's indulgence. He has just gaveled me.
I would like others to provide answers in writing. I
appreciate that very much if they cannot provide it at this
time.
I thank you, Mr. Chair, and I do yield back.
Mr. Johnson of Georgia. I thank the gentlelady.
This concludes today's hearing. I want to thank all the
Witnesses for appearing today.
Without objection, all Members will have five legislative
days to submit additional written questions for the Witnesses
or additional materials for the record.
With that, the hearing is adjourned.
[Whereupon, at 11:30 a.m., the Subcommittee was adjourned.]
APPENDIX
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