Note From Asha: The Law That Could Bring Down Rudy

Dear Listener,

In a twist of legal deja vu, FBI agents recently executed a search warrant at the home of Rudy Giuliani, former President Donald Trump’s personal lawyer. Giuliani’s comments following the search suggest that he is being investigated for violating the Foreign Agents Registration Act (FARA) based on his involvement with individuals from Ukraine in his efforts to obtain dirt on Joe and Hunter Biden prior to the 2020 election. Legal analysts and journalists have since underplayed the significance of FARA, mischaracterizing the statute as only being concerned with paperwork mistakes involving lobbying disclosures, and suggesting that there must be more serious allegations underlying the investigation. It’s possible that there may be other crimes implicated in Giuliani’s activities, but make no mistake: A FARA investigation, even standing alone, would reflect serious national security concerns, especially given Giuliani’s role as a member of Trump’s inner circle.

FARA is about more than just lobbying. FARA targets individuals who attempt to distort our democracy by secretly furthering the interests of foreign governments in our political process. (A separate law, The Lobbying Disclosure Act, specifically addresses people who are lobbying on behalf of foreign business or commercial interests.) FARA was originally created in 1938 to combat Nazi propaganda, and it has since been expanded to address foreign involvement in “political activities,” which include any attempts to influence public opinion or public officials. The goal of FARA is transparency: It allows people to promote foreign political interests, as long as they make it clear that that’s what they’re doing. Individuals can comply with the law simply by registering with the Justice Department and disclosing that they are acting at “the direction and control of a foreign principal” with regard to specified activities. Only people who willfully (meaning deliberately) fail to register under FARA  are subject to criminal prosecution. (One recent non-criminal, and non-lobbying, example of FARA is the registration in November 2017 of RT and Sputnik, two Russian media outlets, as foreign agents of Russia.)

The emphasis on foreign government activity makes FARA a valuable counterintelligence tool. That’s because individuals who conceal their relationship with foreign interests are often knowingly promoting foreign intelligence goals. Because of its overlap with intelligence activity, FARA, along with espionage, is one of the few criminal violations which are investigated by the counterintelligence, rather than criminal, division of the FBI. FARA-related charges and prosecutions over the last four years have included Paul Manafort (Ukraine), Michael Flynn (Turkey), and the 13 Russian nationals and three  Russian companies indicted in 2018 by the Justice Department for interfering in the 2016 election at the direction of President Vladimir Putin. In April 2019, the Justice Department beefed up its FARA enforcement division, a move that signals the growing threat of covert foreign influence in our democracy.

So what does FARA have to do with Rudy? Well, the Giuliani saga has more characters than a Tolstoy novel, but in a nutshell: Giuiliani’s foreign agent activities are likely related to his dealings with Dmitry Firtash, a Ukrainian oligarch with strong ties to the Kemlin who is currently fighting extradition to the U.S. on federal bribery and racketeering charges, and Andrii Derkach, another Ukrainian oligarch identified by the U.S. intelligence community as an active Russian agent. Giuliani reportedly offered to help Firtash regarding his pending case with the Justice Department in exchange for dirt on the Bidens. Giuliani also collaborated with Derkach to pass disinformation concerning the Bidens to Senator Ron Johnson, who further disseminated it through congressional hearings. Meanwhile, Giuliani was instrumental in making the case to the State Department and the White House that the U.S. Ambassador to Ukraine, Marie Yovanovich (a nemesis to Russian-linked Ukrainian interests), should be fired — a suggestion that was acted upon by Trump in April 2019. Given that the FBI’s search warrant reportedly sought, at least in part, communications related to Yovanovich’s ouster, the crux of the FARA case appears to be focusing on the question of whether Giuliani was deliberately concealing that he was acting at the behest of foreign interests in advocating for particular U.S. government actions, and whether he received something of value — in the form of campaign dirt, money, or anything else — in return.

If so, Giuliani’s case would get to the heart of what FARA is about. When individuals try to lobby members of Congress on behalf of foreign interests, without disclosing that relationship, it’s bad. We want our elected officials, and the public, to know who stands to benefit from their official actions. But even then, the effect is diluted: After all, it would require persuading a lot of lawmakers to actually effect a change in policy through legislation. By contrast, when someone like Giuliani has the ear of the President of the United States, the threat is more direct, and more dangerous. The President has almost unfettered discretion in foreign affairs — so allowing foreign interests to dictate official actions, like firing a U.S. ambassador who is implementing American foreign policy, can harm our national security. And anyone who is injecting foreign propaganda into the national discourse in order to shape public perceptions of a presidential candidate leading up to an election is interfering with a fundamental pillar of our democracy.

Giuliani hasn’t yet been charged with a crime, so we need to wait and see where the evidence leads. But even if he is indicted, and the charges “only” concern a FARA violation, the American public should take it seriously. Giuliani’s role as a middleman between foreign interests and Trump’s campaign goals is a repeat of the kind of foreign interference we saw in 2016. FARA is the best tool we have right now to expose the extent to which Giuliani may have been using his position to manipulate U.S. foreign policy decisions to benefit his client — and our adversaries.

Stay Informed,

Asha