FARA Officials Reveal Upcoming Regulatory Changes and Enforcement Priorities for 2025

On December 6, 2024, the U.S. Department of Justice (DOJ) provided insights into Foreign Agents Registration Act (FARA) regulatory changes and focus areas for 2025. Speaking at the American Conference Institute’s National Forum on FARA, a bevy of DOJ officials—including Deputy Assistant Attorney General (DAAG) Eun Young Choi, Acting Chief of the Counterintelligence and Export Control Section (CES) Jennifer Gellie, Chief Counsel for Corporate Enforcement Ian Richardson, and Chief of the FARA Unit Evan Turgeon—previewed tightening regulations, activities of interest, and new enforcement tools. Their collective remarks suggest the multi-year trend of increased FARA enforcement will continue in 2025.

FARA by the Numbers

An overview of the year’s statistics showed that DOJ is not backing down from its FARA focus. DAAG Choi noted that 2024 was yet another year with more than 500 active FARA registrants, with 230 new foreign principals. The FARA Unit also conducted a record 26 inspections of active registrants.

DOJ now has 36 criminal prosecutors and has recently hired additional civil litigators who work on FARA investigations. This expansion has afforded the FARA Unit greater capacity to ensure the compliance of registrants, including conducting more inspections and reviewing informational materials and conspicuous statements. Chief Turgeon noted the Unit is closely scrutinizing materials submitted by registrants for lack of such conspicuous statements.

The Regulations Are (Really) Coming

At the conference, DOJ announced that the NPRM is expected to be published “next month.” The proposed rules have faced a long journey. In December 2021, DOJ issued an Advanced Notice of Proposed Rulemaking (ANPRM), seeking the public’s input on potential updates and clarifications of FARA’s regulations. At the 2023 ACI Conference, DOJ announced it would soon publish a Notice of Proposed Rulemaking (NPRM) that will include proposed changes to regulations and respond to the comments received on the ANPRM. These regulatory changes were approved by the White House regulatory review office in July 2024, but remain unpublished.

DOJ officials said the ANPRM serves as a roadmap for what to expect in the upcoming NPRM and that the new regulations will provide more context and explanation than before. Chief Turgeon and the other officials previewed that one part of the so-called commercial exemption—Section 613(d)(2)[1]—will be narrowed. The officials explained that the statute should only apply to activities that promote the interests of a U.S. entity, not of any foreign entity. The focus will be on what activity is occurring in the U.S. and whether that activity is promoting a foreign interest. As we have previously discussed, the FARA Unit has already begun implementing this approach in recent advisory opinions. The implications for any global firm working with non-U.S. companies, individuals, or nonprofits could be substantial. Modernization efforts, including provisions for social media, are also expected.

DOJ officials were clear that the NPRM is still only a proposed rule and they encouraged comments and engagement before the rule becomes final.

Focus Areas

Chief Turgeon identified Sovereign Wealth Funds (SWFs) and foreign litigation funding as enforcement priorities for the Unit.

While he said there was no regional or activity-specific focus with respect to SWFs, Chief Turgeon emphasized that when the activities of SWFs, or other State-Owned Entities, go beyond simply turning a profit and are used as vehicles to achieve the interests of their foreign principal, registration may be required.

Chief Turgeon said that the FARA Unit remains concerned about foreign litigation funders weaponizing U.S. courts to tie up U.S. businesses and deplete their resources (providing foreign competitors with an advantage). Chief Turgeon clarified that the legal exemption[2] would likely apply when the foreign principal is a party to the litigation. But, if the foreign principal is not a party, the legal exemption likely does not apply and, depending on the context of the litigation and the facts of the case, registration may be required. He added that patent litigation could become a national security concern if the intent of the litigation is for the foreign principal to obtain the intellectual property of a U.S. company through discovery or other means during litigation. In such a case, the activity may be registrable.

New Tools

Throughout the conference, DOJ officials highlighted new tools that they are deploying in investigations and prosecutions. For example, they invoked 18 U.S.C § 219 for foreign agent charges, as done in the prosecutions of former Sen. Bob Menendez and Rep. Henry Cuellar. In addition, CES now has the authority to issue grand jury subpoenas, which Chief Turgeon said it will do if there are indications of a criminal FARA violation.

The DOJ officials also highlighted new tools for resolving FARA cases. Officials pointed out that 2024 had seen the first guilty plea to a misdemeanor FARA violation and the first declination under the National Security Division’s Voluntary Self Disclosure (VSD) program. Corporate enforcement was also a focus, including for disclosures concerning conduct uncovered during or after mergers and acquisitions.

Finally, in response to the D.C. Circuit’s denial of the government’s petition for a rehearing en banc in the Attorney General v. Wynn case, DAAG Choi said Congress should add a retroactive reporting requirement to the statute. Chief Turgeon noted, however, that in ruling that DOJ could not compel businessman Steve Wynn to retroactively register under FARA for prior activity on behalf of a foreign principal, the D.C. Circuit applied D.C. Circuit precedent that is not binding in any other jurisdiction, so DOJ remains free to pursue a similar case in any other venue.

With forthcoming regulations, a new presidential administration, unresolved retroactive registration issues, and record FARA enforcement activity, 2025 is poised to be a pivotal year for FARA enforcement and compliance.

[1] 22 U.S.C. § 613(d)(2). The provisions commonly referred to as the “commercial exemption” contain two distinct exemptions. The first—Section 613(d)(1)—covers persons engaged “in private and nonpolitical activities” acting “in furtherance of the bona fide trade or commerce” of a foreign principal. This exemption is not expected to change with the new regulations. The second exemption—Section 613(d)(2)—currently applies to persons engaged in other activities, including political activities, “not serving predominantly a foreign interest,” and is expected to change with the new regulations.

[2] 22 U.S.C. § 613(g).5.