News and Magazine

  • A judge said DOJ can’t force alleged foreign agents to retroactively disclose their lobbying work.
  • Judge James Boasberg said he was bound by longstanding federal appeals court precedent.
  • The decision could impair the Justice Department’s ability to police covert foreign influence.

The Justice Department suffered a setback Wednesday in its recent crackdown on covert foreign influence, as a federal judge tossed a lawsuit seeking to compel the casino mogul Steve Wynn to register as an agent of China in connection with his past lobbying of the Trump administration.

In a 20-page opinion, Judge James Boasberg sided with Wynn’s argument that the Justice Department lacked the power to force the disclosure of his alleged stint as a foreign agent of China. Boasberg, an Obama appointee, appeared to have reservations about his ruling, in which he twice cited appeals court precedent that he viewed as barring the Justice Department from retroactively requiring foreign agents to register once they were no longer carrying out influence work.

It was not immediately clear if the Justice Department would appeal. But if left standing, the decision could hamstring the Justice Department in its efforts to enforce the Foreign Agents Registration Act, or FARA, a decades-old law requiring the disclosure of lobbying and other influence work for overseas powers.

“I don’t think the Justice Department can let the decision stand without it significantly impairing its ability to enforce the statute,” said Brandon Van Grack, a former top Justice Department official who once headed the unit tasked with enforcing FARA.

After decades of light enforcement, the Justice Department has pursued high-profile prosecutions under FARA in recent years, most notably in former Special Counsel Robert Mueller III’s case against onetime Trump campaign chairman Paul Manafort. But with Wynn, the Justice Department brought a rare civil lawsuit, making the case a test of its ability to enforce FARA without the heavy hand of criminal prosecution.

Indeed, the case was a “flagship enforcement action to raise public awareness further that the Justice Department is intent on using all of the enforcement tools at its disposal to step up enforcement of FARA,” said David Laufman, a former top official in the Justice Department’s national security division.

Laufman, now a partner at the law firm Wiggin and Dana, said Wednesday’s ruling could undercut the Justice Department’s ability to threaten a civil lawsuit to pressure lobbyists and other consultants to register as foreign agents.

‘”This decision is a considerable setback in the Justice Department’s efforts to intensify FARA enforcement and will embolden individuals who long ago ended an agency relationship with a foreign principal to resist demands to register,” he told Insider.

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