D.C. Circuit Limits DOJ’s Ability to Retroactively Enforce FARA

Last week the D.C. Circuit released its long-anticipated opinion in the Attorney General v. Wynn, holding that the Department of Justice (“DOJ”) could not compel Steve Wynn to retroactively register under the Foreign Agents Registration Act (“FARA”) for prior activity on behalf of a foreign principal. The opinion is a setback for DOJ’s efforts to increase FARA enforcement. And while DOJ is likely to deploy several measures to attempt to limit the decision’s reach, it may disrupt a critical piece of DOJ’s enforcement toolbox.

FARA 101: Retroactive Enforcement

FARA requires persons who engage in certain political, public relations, or influence related activities on behalf of a non-U.S. entity to register with the DOJ. These “agents” must then make periodic disclosures about their work on behalf of and relationship to their “foreign principal.” The willful failure to register may be prosecuted criminally. Alternatively, DOJ can seek injunctive relief to compel an agent to terminate their relationship with the principal or otherwise comply with FARA.

Wynn concerned a simple, but critically important, issue for civil FARA enforcement. DOJ routinely identifies potential violations after the conduct has occurred and after the agent has terminated its relationship with the principal. While these failures to register may not rise to a criminal violation, in DOJ’s telling, requiring such agents to register advances FARA’s core purpose of informing the American public about political and quasi-political activity undertaken on behalf of non-U.S. entities. Wynn challenged whether DOJ can use FARA’s civil enforcement tools to require such persons to register.

McGoff & Retroactive Criminal Enforcement

Wynn was not the first time that the D.C. Circuit has considered retroactive FARA enforcement. In 1987, the D.C. Circuit issued United States v. McGoff, which concerned criminal prosecutions for retroactive failures to register.

In McGoff, DOJ attempted to criminally prosecute a businessman for surreptitiously acting as an agent of the South African government from 1974 to 1979. The criminal information against McGoff was filed in 1986. But FARA has a five-year statute of limitations. So whether the prosecution could proceed depended on when McGoff’s registration obligation under FARA ended. If the obligation ended in 1979, when McGoff ceased acting as the agent of the foreign government, the prosecution was time barred. If the obligation continued until he registered, the case could proceed.

After examining the statute’s text and structure, the D.C. Circuit in McGoff held that FARA’s registration obligation expired once an individual stopped acting as a foreign agent. The decision relied in no small part on the risk that the alternative interpretation would effectively eliminate FARA’s statute of limitations. In a vigorous dissent, Judge Bork noted that the majority’s interpretation would instead eliminate the government’s ability to pursue civil relief against those whose agency relationships had ended.

Wynn, McGoff, and Judge Bork’s Prediction

Judge Bork’s prediction appears to have been borne out in Wynn. To recap, DOJ alleged that Wynn had lobbied President Trump and others at the request of Chinese government officials for several months in the summer and fall of 2017. These activities ceased in October 2017. After an extended back and forth, DOJ sued Wynn in federal district court in D.C. in 2022 to compel him to register under FARA. The district court dismissed the case, holding that McGoff foreclosed retroactive registration, and DOJ appealed.

At the D.C. Circuit, the Wynn panel agreed that McGoff controlled the result in this case and affirmed the decision of the district court. As the D.C. Circuit explained, under McGoff, FARA’s registration obligation “expires” the day an individual stops acting as a foreign agent. Wynn ceased acting as a foreign agent seven years ago, and thus so did his obligation to register under FARA. The court also rejected DOJ’s arguments that FARA’s civil injunction provisions, which were not at issue in McGoff, independently authorized retroactive relief.

Looking Ahead

Wynn holds that DOJ cannot compel agents to retroactively register, at least in D.C. This decision immediately becomes a valuable tool for anyone whose prior activities fall under scrutiny by the FARA Unit. Even those currently working for a foreign principal could potentially frustrate enforcement efforts by terminating their relationship when DOJ comes knocking.

DOJ has several paths to limiting the reach of this decision. First, DOJ could move for en banc review by the full D.C. Circuit, which would have the power to overturn McGoff. The Wynn panel’s silence on the merits of the textual interpretation and policy rationale in McGoff was notable. Second, DOJ can still bring criminal prosecutions for completed conduct. But while there may be increased appetite to take some retroactive cases criminal in light of Wynn, such cases require willful violations of the statute. Third, DOJ is likely to maintain its position that Wynn only applies to cases filed in D.C., and now accelerate its existing efforts to file more civil FARA cases in other jurisdictions. Finally, DOJ will more emphatically push Congress for a legislative fix.

None of these fixes are guaranteed to work. And all will take time to implement. In the interim, DOJ may be constrained in its ability to require agents to retroactively register under FARA.