On March 3rd, Sander Reiff Lamb Rosenstein & Birkenstock released detailed comments in response to the Justice Department’s recent proposed changes to the Foreign Agents Registration Act (FARA), including the removal of the word “directly” from the regulations implementing the exemptions at 22 U.S.C §613(d)(1) and (d)(2), several of the proposed changes around technical aspects of FARA’s labeling requirement and Rule 2 opinion process, among others. The full response, authored by Joshua Rosenstein, Joe Birkenstock, Erin Tibe, and Christina Bustos can be found here.
The comments were highlighted by the press shortly after their release in the Friday, March 7th edition of Politico Influence, specifically those related to the replacement of FARA’s current commercial exemption, which protects activity in furtherance of bona fide trade or commerce that does not predominantly serve a foreign interest, with a new “totality of circumstances” test to determine whether an agent’s activity predominantly benefits a foreign or domestic interest:
“‘Rather than providing the actual ‘test,’ however, the proposed language simply lists a set of non-exhaustive factors that may or may not be among those the Department would turn to,’ the law firm Sandler Reiff Lamb Rosenstein & Birkenstock wrote in its comment.
‘If changed in this way the test would no longer operate as any workable test at all, but instead would become more of an invitation for the Department to apply whichever factors it wants, whenever it wants, thus raising — instead of removing — the specter of weaponization of the Act,’ the firm said.”
Partners Neil Reiff and Joe Birkenstock have been recognized on Washingtonian‘s 2024 list of Top Lawyers in Washington, D.C. for their exceptional work in the areas of campaign finance and election law. This recognition reflects their significant contributions to the field and underscores their expertise and leadership in navigating the complexities of federal and state election regulations, political law compliance, and the evolving landscape of campaign finance.
On November 4th, John Hardin “Jack” Young was quoted in a Business Insider article addressing the flurry of pre-election lawsuits leading up to the 2024 presidential election, making this cycle one of the most litigated in U.S. history:
“‘Probably the most discouraging part of this whole litigation experiment is that it has little or no connection to democracy and credible elections,’ said John Hardin Young, an election law expert and senior counsel at the Washington, DC, law firm Sandler Reiff Lamb Rosenstein & Birkenstock.
‘It’s gamesmanship,’ said Young, who said litigation has ‘become a part of the political strategy.’
‘It’s, in a way, a prelude to postelection challenges where the political message has been mangled together with the litigation,’ he added.”
On October 21st, John Hardin Young was quoted in a TIME Magazine article discussing the legal implications of Elon Musk’s $1 million prize for swing state voters who sign a petition in support of the First and Second Amendments:
“John Hardin Young, an adjunct professor of election law at William and Mary School of Law, argues that Musk is ‘vote buying’ in a targeted manner. He says Musk is supporting Trump under the guise of ‘supporting these petitions for First and Second amendment rights and registering to vote.’”
“’We all agree that registering to vote is important to democracy,’ Young says. ‘[But] the prize is available only to registered voters in the seven swing states because they could and probably will affect the outcome of the presidential election. That, in and of itself, is strong evidence that Musk’s intent is to influence the race.’”
On September 6th, Partner and FARA expert Josh Rosenstein was quoted in The Washington Post regarding a lobbying campaign to reduce U.S. support for Ukraine, framed as a defense of religious freedom. The article, titled “D.C. lobbyists battle over future of the Orthodox Church in Ukraine,” highlights Robert Amsterdam’s efforts, funded by Russian-linked interests, to challenge Ukraine’s law banning Russian-affiliated churches. Amsterdam initially did not register under the Foreign Agents Registration Act (FARA) citing a religious exemption, but Rosenstein notes this exemption may not apply.
“’The exemption generally does not apply unless your activities are purely religious and do not also involve what the law calls political activities. The definition of political activity includes any attempt to influence the U.S. government with reference to U.S. policy or to influence any segment of the U.S. public with reference to the public or political interests of any foreign nation,’ said Joshua Ian Rosenstein, a partner at the Sandler Reiff law firm, which specializes in FARA and other lobbying-registration questions. ‘I think they would have an uphill battle demonstrating it is purely religious and nonpolitical as defined by the law.’”
“Rosenstein said the validity of these exemption claims would depend largely on the specifics of the engagement, such as the ‘content and messaging of the lobbying activities’ and the extent to which the activities are directed by a foreign government. ‘All of those are factual questions,’ he said.”
Partner Josh Rosenstein was recently quoted in an article published by the Hankook Daily Newspaper discussing the recent indictment of Sue Mi Terry on FARA charges.
“Josh Rosenstein, a lawyer at the U.S. Sandler [Reiff] law firm, said in an interview with our newspaper, ‘It doesn’t matter whether money was exchanged,’… ‘If you conduct activities that influence U.S. policymakers, legislators, or the public at the request of the Korean or other governments, you must register as a foreign agent'”
“Attorney Rosenstein said, ‘We should pay attention to the fact that the indictment was made at the same time as the first-trial guilty verdict of Senator Bob Menendez,’ and analyzed, ‘Researcher Terry’s case has some similarities to the Menendez case, and it is possible that the FBI, which gained confidence as the charges against Menendez were clarified, decided to indict.'”
Find the full article with additional insights from Rosenstein here.
On July 26th, Partner Joe Birkenstock appeared on Brian Tyler Cohen’s YouTube channel to discuss the complaint filed by Donald Trump with the FEC against Joe Biden and Kamala Harris. In the complaint, Trump accuses Biden and Harris of violating campaign finance laws by transferring Biden’s funds to Harris as he steps down and she assumes the Democratic nomination.
Cohen: “Is this a campaign finance violation?”
Birkenstock: “No, Brian. In one word, it’s not, and it’s made clear really by the nature of the way these presidential campaign committees have really always run under the Federal Election Campaign Act. The President and Vice President run as a joint ticket, and that has been true for Kamala Harris and Joe Biden all the way back to 2020, when they first ran for office successfully as a joint ticket. It was true then; it was true all throughout this cycle; it’s still true right now as she stands up and takes over as the party’s nominee.”
On July 26th, partner Josh Rosenstein was quoted in an American Prospect article discussing unregistered agents working for the Azerbaijani government. The article highlights Rodney Dixon, an international legal expert hired by Azerbaijan to produce a report disputing allegations of genocide against Armenians in Nagorno-Karabakh. Dixon promoted his report through media networks like the BBC and CNN and also met with U.S. congressional staff. However, he did not disclose these activities on behalf of Azerbaijan under the Foreign Agents Registration Act (FARA).
“Josh Rosenstein, a partner at Sandler Reiff Lamb Rosenstein & Birkenstock, which advises clients on FARA compliance, explained in an interview that the Department of Justice might be justified in sending a letter of inquiry to determine whether or not there is a foreign agent registration requirement for Dixon. ‘Coming to the U.S. to present a report’s findings commissioned by and promoting the interests of a foreign government, and representing the interests of that government before the U.S. government, are both regulated. So while there may be some nuance or fact that I’m not aware of, this does on its face seem to trigger the Foreign Agents Registration Act,’ said Rosenstein.”
Partner Josh Rosenstein was recently featured in a New York Post article discussing the indictment of Sue Mi Terry, a former CIA analyst, for allegedly acting as a foreign agent for South Korea.
“’The Department of Justice has become much more aggressive when they believe someone is acting as an unregistered agent,” said Joshua Rosenstein, a Washington DC-based attorney who specializes in FARA compliance cases. He is not involved in the Terry case.”
“In Terry’s case the key element is if she ‘willfully’ acted as a foreign agent and did not register with the US Attorney General’s office under FARA, according to Rosenstein.”
“’If you are engaged in any activity at the request of the Korean government, which isintended to influence the US government or US public with respect to Korean government interests, such as reaching out to Americans in the form of op-eds, and DOJ can prove that you willfully ignored FARA rules, then the prosecution has a good shot,’ Rosenstein said. Rosenstein did not rule out the possibility that prosecutors could issue superseding indictments in the case with respect to Boot’s co-authorship of the columns.”
Partner and FARA expert Josh Rosenstein was recently quoted in an article published in Politico concerning Senator Bob Menendez’s historic conviction as the first sitting lawmaker found guilty of acting as an agent of a foreign government.
“‘It’s an important win for DOJ,’ said Josh Rosenstein, a partner at Sandler Reiff Lamb Rosenstein & Birkenstock, who was not involved in the case but like other Foreign Agents Registration Act experts told PI that the verdict is sure to fuel the department’s aggression in enforcing FARA.”