The State of FARA Following Attorney General Bondi’s Reprioritization of DOJ Resources

On her first day in office, Attorney General Pam Bondi published several memorandums laying out the reprioritization of US Department of Justice (DOJ) efforts and funding, including the memorandum General Policy Regarding Charging, Plea Negotiations, and Sentencing. The memorandum, among other changes, directs DOJ’s National Security Division to deprioritize criminal enforcement of the Foreign Agents Registration Act (FARA).

The memorandum instructs DOJ to resort to criminal enforcement for “alleged conduct similar to more traditional espionage by foreign government actors” and directs DOJ to enforce FARA through “civil enforcement, regulatory initiatives, and public guidance.” As part of implementing this change, the memorandum also disbands the Corporate Enforcement Unit.

IMPLICATIONS OF THE NEW POLICY

This decision marks a reversal of the recent trend of increased criminal enforcement of FARA that had occurred under the Biden administration as well as the first Trump administration. For decades after FARA was passed just prior to World War II criminal enforcement of FARA had been extraordinarily rare, until this last decade wherein criminal FARA enforcement has been used as a tool to ensure compliance and combat undisclosed foreign influence, which has included several recent high-profile cases.

Additionally, this policy follows the recent publication of a Notice of Proposed Rulemaking that had proposed making significant amendments to FARA. While this rulemaking process is covered by President Trump’s regulatory freeze memorandum, the memorandum does permit DOJ to enforce FARA through “regulatory initiatives,” so it remains to be seen whether this administration will continue implementing the proposed changes, which signaled potentially greater enforcement in certain areas.

What’s more, at a time when President Trump and members of his cabinet have discussed an increased focus on combatting American adversaries, it is notable that DOJ has decided to downgrade criminal FARA enforcement. Despite the reprioritization policy, the memorandum explicitly notes that these policies are not meant to be one-size-fits-all and there may be circumstances where criminal FARA enforcement is appropriate even outside of traditional espionage activities—especially when related to countries that could be considered potential adversaries.

RISKS OF NONCOMPLIANCE WITH FARA

There are two primary consequences for noncompliance with FARA. Noncompliant organizations or individuals face the (albeit limited) risk of civil enforcement. Civil FARA enforcement has generally been limited to seeking injunctive relief to force compliance with FARA regulations as the statute does not provide for civil penalties and a federal court ruled last year in Attorney General of the United States v. Wynn, 104 F.4th 348 (D.C. Cir. 2024), that the government can obtain a civil injunction to require FARA registration only if the alleged agency relationship is ongoing. DOJ has in limited cases sought and obtained payment of a civil fine as part of a settlement. As criminal enforcement likely decreases, civil enforcement may increase and we may see more attempts to recover fines as part of settlements.

Second, even if criminal enforcement of FARA temporarily decreases, violations of FARA remain criminal violations with criminal liability, and what constitutes traditional espionage by foreign actors is unclear. If this or future administrations take a different approach toward FARA, past violations could present potential criminal liability given the five-year statute of limitations.

Ultimately, while this policy may mark the potential end of an era of significant criminal FARA enforcement, FARA remains an important aspect of compliance for individuals and organizations representing interests of foreign states. How this policy will be implemented in practice remains to be seen.

TAKEAWAYS

• Organizations and individuals should continue to comply with FARA even with a temporary decreased risk of present criminal enforcement.
• Changes to this policy could be made quickly and without warning, and registered organizations should remain vigilant and monitor trends to track how this policy is implemented.
• Organizations and individuals that represent countries that are not traditionally US allies or that have conflicts with the Trump administration may face additional scrutiny in their FARA compliance.

STAY INFORMED

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