Partner Josh Rosenstein Comments on Al Jazeera’s Case Against Order to Register as a Foreign Agent

Josh Rosenstein shares his thoughts on Al Jazeera’s case against an order to register as a foreign agent.

“I think it would be extraordinarily difficult to challenge DOJ’s decision on the grounds that there was political influence somewhere along the line, by enemies of this foreign regime,” said Josh Rosenstein, a government ethics lawyer at Sandler Reiff Lamb Rosenstein and Birkenstock . “Lobbyists and foreign agents make (subject to FEC regulations) political contributions all the time. They lobby for certain outcomes. The process may be unseemly, but it doesn’t make the resultant decision unlawful. If there were allegations of actual bribery involved, then perhaps it would be a stronger basis to challenge the decision.”

“In order to pull this off,” Rosenstein added, “the outlet would likely have to sue DOJ directly … for a declaratory judgment that DOJ’s conclusion was incorrect and that the outlet is exempt from registration or otherwise not subject to FARA. That’s going to be a fact-specific inquiry for the court, and will turn on the court’s interpretation of the same evidence that one presumes DOJ had reviewed prior to issuing the determination notice:  the level of any editorial control by any foreign government; the corporate ownership structure of the outlet; whether there’s any policy that the outlet’s viewpoint has to match any policies of a foreign country, and so on.”

He said Al Jazeera could also also informally appeal internally to the Attorney General’s office asking the department to reconsider, since FARA permits the AG to issue his own exemptions in certain cases.

“That’s something that’s often done, but it’s usually done prior to a public determination letter being released,” Rosenstein said. “One can surmise that the AG’s office was already aware of this and declined to hold it up.”

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