Recent interviews with Trump attorney and former New York City Mayor Rudy Giuliani have revealed that Giuliani has continued to work with foreign clients through his consulting firm, Giuliani Partners, while serving as President Trump’s attorney. Untraditional for the position, Giuliani’s dealings have blurred the lines of government service, and have called into question whether his dealings with foreign clients need to be registered under the Foreign Agents Registration Act (FARA), in order to protect government interests.
Sandler Reiff partner Josh Rosenstein believes that Giuliani’s actions, most specifically a paid speech given on behalf of Iranian Resistance group Mujahideen-e-Khalq, serves as an example of dealings needing registration under FARA, creating potential ethics violations for Giuliani.
“Political activity is a broad term,” Rosenstein said. “It includes any actions — including speeches, PR work and media outreach — that are intended to or anticipated to influence the U.S. government or the U.S. public with regard to the formulation, adoption, or modification of the policies of the U.S., or with regard to the political or public interests, policies, or relations of a foreign political party.”
As was recommended in 2016 by the Office of the Inspector General at the Department of Justice, and recently announced by the Department, today DOJ released anonymized versions of several dozen opinions it has provided over the last few decades regarding the application of the Foreign Agents Registration Act to particular sets of circumstances. Copies of these opinions are now available here: https://www.justice.gov/nsd-fara/advisory-opinions.
To be sure: the realities of FARA’s opinion process and the limits of what DOJ was able to release necessarily limit the depth and range of the conclusions that can be drawn from these opinions. Nevertheless, both individually and as a whole, the opinions provide useful insights into how the Department has interpreted FARA itself and the regulations that implement it in a wide range of particular circumstances.
Every 10 years, the Census Bureau counts all people in the United States, regardless of their immigration status. That total is then used as the basis to figure out how many congressional seats each state gets. The 14th Amendment says congressional seats should be apportioned based on simply the number of “persons.”
However, Alabama is suing the Trump administration to force the Census Bureau not to count undocumented people as part of the tally used to determine how many seats in Congress each state gets. The plaintiffs in the suit argue that apportionment should exclude immigrants and be based on only the citizen population.
Jeffrey Wice, a Washington lawyer who has worked with Democrats on redistricting issues, said the case could go to the Supreme Court. He added that it was “fiction” that the Founding Fathers intended to exclude undocumented people from the census.
“Whoever filed the suit did not think this through,” he said.
Information released Tuesday on Michael Cohen’s activities, including his bank records, show that work he did for Swiss company, Novartis, may have triggered the Foreign Agents Registration Act (FARA) and made him criminally liable.
Rosenstein believes that given Novartis’ status as a Swiss company, public reporting and Novartis’ statements, it seems likely that Novartis would be treated as a foreign principal in this case. He continues,
“Novartis AG is a Swiss company, and from public reporting—and from Novartis’s own statements, it appears that the foreign company was directly involved in the agreement with Mr. Cohen,” he said. “Foreign corporations undertaking political activities in the US are treated as foreign principals under FARA.”
In February, the Environmental Protection Agency (EPA) reached a settlement agreement with Syngenta Seeds LLC, a California company, to resolve violations of federal pesticide regulations. The fine reached from this settlement was dramatically lower than the fine that was imposed under the Obama Administration in 2016. Observers of the EPA noted that Jeff Sands, who was a top EPA agricultural adviser at the time of the reduced fine settlement, was previously a lobbyist for Syngenta.
The EPA’s decision to dramatically reduce the fine has raised concern about the ethical land mines of an administration filled with former lobbyist and business executives.
Rosenstein commented on the ethical dilemma:
“I think the optics are not particularly great, as become an apparent pattern with this administration,” said Joshua Ian Rosenstein, a partner at Sandler Reiff Lamb Rosenstein & Birkenstock.
“There is a lot of lip service given to following ethical restrictions,” he continued, “but report after report seems to indicate that there is very little commitment to ensuring compliance. I think this feeds into an overall picture that the administration doesn’t take these issues very seriously at all.”
Last week, President Trump tapped former New York City Mayor Rudy Giuliani to join his legal team and assist in negotiating an end to Robert Mueller’s probe into 2016 election meddling. Vice News explores the possible connection between Rudy Giuliani and Robert Mueller’s investigation and explores the possibility that Guiliani may be joining the legal team to avoid being a witness for investigators.
On the topic, Rosenstein states:
“The investigation has so many moving parts that it’s hard to contemplate a way in which Giuliani would not have evidence that is relevant to Mr. Mueller’s investigation,” said Washington, D.C.-based attorney Josh Rosenstein, an expert in foreign lobbying regulation.
Last month, a pro-Saudi tabloid was distributed in the United States that raised questions about the magazine’s origins. It is speculated that the magazine, produced by American Media Inc., may have been shared with officials at the Saudi embassy in Washington three weeks before its distribution.
While sharing an advance copy with the Saudis is not legally problematic for AMI, the unusual circumstances and mystery of the magazine’s origins could present a separate issue with federal lobbying law. If the Saudis did direct or pay any company to produce such a magazine, that company would be required to register with the government under the Foreign Agents Registration Act.
“There are lots of things that warrant answers,” political law attorney Josh Rosenstein said about the pro-Saudi magazine.
The Federal Election Commission first approved bitcoin contributions for political campaigns in 2014. However, many lawmakers still question the transparency of bitcoin contributions given bitcoins pseudonymous nature. Joe Birkenstock comments on the debate:
“If the interest is in transparency, we really want to make sure we know exactly who is donating these funds and that distinction around anonymity or pseudonymity can start to make that challenging.”
You can read the article and watch the full interview here.
In “US Lawmakers Push for Crackdown on Foreign Companies”, the Financial Times explores the new Foreign Agents Registration Act (FARA) bill introduced by Rep. Johnson and Sen. Grassley. The bill would strengthen the Foreign Agents Registration Act and would heap new disclosure requirements on the staff of any non-US company meeting federal officials; on American lobbyists providing services to foreign companies; and on US businesses lobbying for their own foreign affiliates.
Joseph Birkenstock, a Sandler Reiff lawyer who advises the OFII trade group, said: “If you subject every company to FARA for the sake of addressing these rare cases, the cure is far worse than the illness.”
Since the indictment of former Trump campaign officials Paul Manafort and Richard Gates public attention to FARA has surged leading to a record number of registrations. On the recent surge, Rosenstein commented in PR Week,
The indictments of Manafort and Gates and accusations that Flynn failed to disclose his work for a foreign government have caused anxiety among agencies that work for foreign countries, said Joshua Rosenstein, attorney at Sandler Reiff Lamb Rosenstein & Birkenstock. Clients have asked Rosenstein to look at their activities and determine whether they should register as foreign agents or ensure they have not made inadvertent misrepresentations, he added.