Partner Josh Rosenstein was recently quoted in an article in Bloomberg Law about signals that the US Justice Department may curb foreign agents registration exemptions.
“A desire to go bold is understandable when DOJ rarely gets to revise the FARA regulations, said Joshua Rosenstein, a veteran FARA lawyer at Sandler Reiff. ‘But the more those changes diverge from established practice, rather than clarifying specific nuanced questions, the higher the risk of significant opposition to those changes.'”
Partner Josh Rosenstein was recently quoted in an article by Creede Newton of Southern Poverty Law Center about how contracts between Hungarian U.S. conservative figures obtained by the group Hatewatch suggest three Hungarian right-wing ideologues should register as foreign agents under U.S. law.
“Hatewatch shared the contracts with Josh Rosenstein, a partner at D.C. law firm Sandler Reiff Lamb Rosenstein & Birkenstock, P.C., which advises clients on FARA compliance. Rosenstein said the ‘arrangements’ between BLA and the U.S. figures ‘seem to raise significant FARA concerns.'”
“Rosenstein said the FARA Unit, which oversees enforcement of the law and is housed inside the Department of Justice, has recently focused on foreign nonprofits and domestic NGOs’ relationships with foreign entities. ‘Particularly given the focus that the Department of Justice has recently and will continue to have on foreign-based nonprofits and NGOs and think tanks,’ Rosenstein said, the contracts seem ‘to fall directly in line with the Department’s enforcement priorities.'”
“The contract most likely to require FARA registration is between BLA and Matthew O’Shea, according to Rosenstein. The contract between BLA and O’Shea says O’Shea ‘shall prepare at least two articles of at least 650 words per month, in particular on Hungarian family policy and Hungarian geopolitical topics, for American and European media.’”
“Rosenstein explained there are exceptions for FARA, including those engaged in commerce, academic researchers, lawyers and diplomats. But O’Shea’s example does not appear to qualify for these exemptions, he said.”
“Rosenstein said FARA’s enforcement arm would be interested in these posts. ‘If a foreign principal asks him to do this’ even if ‘the contract had expired,’ then ‘that technically is regulated’ activity, Rosenstein explained.”
“Rosenstein said that ‘if FARA applies,’ agents who ‘disseminate propaganda’ on behalf of foreign principals must label the propaganda with a ‘prominent disclaimer,’ and a copy of the propaganda – now called ‘informational materials’ under the law – must be filed with the Justice Department.”
“Rosenstein said that contracts are usually not ‘so explicit’ as to name a political movement or ideology which the principal hopes to influence. He further wondered if this section’s removal was an attempt to circumvent FARA.”
Partner Erin Tibe recently published an article in Reuters Practical Law The Journal entitled “Setting Up a Corporate PAC.” In the article, she provides guidance on forming and operating a corporate political action committee (PAC), also known as a separate segregated fund (SSF), including registering a PAC, soliciting PAC contributions, and supporting candidates through contributions and corporate communications.
Partner Josh Rosenstein was quoted in an article about how Senator Bob Menendez’s foreign agent federal charge signals a new chapter for DOJ on foreign agent law.
“It is absolutely a signal to the public and to the advocacy community that the Department of Justice is not backing away from FARA enforcement.”
The decision to charge the sitting senator with conspiracy to act as a foreign agent may mark the beginnings of a new FARA enforcement strategy.
“If it is the case that the government will now start bringing conspiracy charges more frequently in the FARA arena, that may be the next salvo in basically the government’s attempt to enforce FARA because you do not need the same level of willfulness for conspiracy, you need an overt act.”
Partner Josh Rosenstein was quoted in an article about Senator Bob Menendez being charged with conspiracy for a public official to act as a foreign agent.
“FARA charges have often historically been brought ‘as an adjunct to other criminal allegations,’ rather than the core of prosecutors’ cases, oftentimes adding pressure on defendants to strike a plea deal.”
“It would be hard for him to say he was completely ignorant about the legal obligations under FARA.”
Partner Josh Rosenstein was quoted in a Bloomberg article about Senator Bob Menendez’s indictment as a foreign agent following his efforts to block related bills as former chair of the Senate Foreign Relations Committee.
“Just as a past scandal involving former lobbyist Jack Abramoff preceded passage of lobbying legislation, DOJ’s prosecution of Menendez could spur Congress to overcome hurdles to a FARA amendment.”
“If prosecutors are able to prove that Menendez didn’t just act on Egypt’s behalf, it would be particularly tough for Congress to ignore, given that, as cited in the indictment, he was simultaneously publicly urging DOJ to launch a FARA investigation into a Republican politician.”
“It politically becomes much more difficult for members of Congress to wash their hands of the situation.”
Partner Joe Birkenstock was quoted in an article about Republican presidential candidate Vivek Ramaswamy’s unusual commission based fundraising program.
“Campaign finance attorney and former Democratic National Committee Chief Counsel Joe Birkenstock said that while the concept of commission-based fundraising is not entirely new, he has not seen anyone execute it before involving their supporters.
‘As is not uncommon, you see ‘outsider’ candidates tend to be the ones who pursue these kind of novel strategies,” he said. “I think they’re gonna find that the juice really isn’t worth the squeeze. But it’s not something I can point to other examples having already gone wrong. I just think they’re kind of tackling a little bit of uncharted territory. And I think they need to be ready for a lot of surprises.’
‘That’s less for specific legal reasons than for kind of overall compliance strategy, and, you know, to some extent, just for optics reasons,’ he said.”
Partner Josh Rosenstein was quoted in an article in about the DOJ’s indictment of Gal Luft, which reveals possible Chinese influence in the 2016 Trump campaign. Rosenstein commented on the FARA implications of this indictment.
“Joshua Ian Rosenstein, a lawyer who works on Foreign Agent Registration Act issues, said that neither CC-1 nor Individual-1 faces as much legal exposure as Luft but that CC-1 faces more than Individual-1. It is possible that Individual-1 was not aware that the consulting work that he was doing for the think tank was ultimately being done at the direction, control or request of the Chinese entity,” Rosenstein said. “Because FARA requires proof of willfulness in order to sustain a criminal charge, from the standpoint of Individual-1, if it’s true that he was not aware of the upstream relationship with China, that’s a valid defense. I think that’s not the same for CC-1.”
Partner Josh Rosenstein was quoted in an article about the FARA implications of the PGA Golf and LIV merger.
Joshua Rosenstein, a lawyer with Sandler Reiff Lamb Rosenstein & Birkenstock who handles FARA matters for clients but does not represent LIV or PGA, said that depending on what the new golf corporate entity looks like there may be pressure for it to register under FARA, which requires lawyers, lobbyists and public relations advisers to disclose their contracts and contacts with officials.
“We do know that it appears the new entity will be at least partially funded by the Saudi public investment fund, which certainly raises the specter that the new golf league might have FARA implications,” Rosenstein said. “However, FARA does contain an exemption for commercial activities.”
Partner Josh Rosenstein was quoted in an article about the potential for more FARA registrations by Saudi-funded golf league LIV’s consultants. Rosenstein commented on Gitcho Goodwin’s initial registration.
Sandler Reiff Lamb Rosenstein & Birkenstock’s Josh Rosenstein speculated that it’s unlikely Gitcho Goodwin registered in the first place without some initial outreach from DOJ, calling it “generally rare” for a firm to do so retroactively on its own. Gitcho did not respond to a request for comment. The Justice Department declined to comment.
The compliance burdens under FARA are really heavy,” Rosenstein said, so while some registrants couch their filings with statements of doing so “out of an abundance of caution,” “prophylactic registration where the law plainly does not apply is really unusual,” he said.