U.S. Department of Justice. Diego M. Radzinschi/ALM.

When the U.S. Justice Department revealed plans to release previously confidential guidance memos addressing the disclosure of U.S. lobbying work for foreign clients, a tiny circle of Washington lawyers last month cheered the move as an overdue step toward transparency.

For years, that niche in the Washington legal circles grumbled about the Justice Department’s practice of concealing advisory opinions on the Foreign Agents Registration Act, or FARA, a 1938 law that in certain instances requires law firms and lobby shops to disclose their advocacy for foreign clients.

Cumulatively, the lawyers argued, broad disclosure of the advisory opinions would bring clarity to the Justice Department’s approach to enforcing a loosely worded law that has left ample room for interpretation. Last week’s release of the advisory opinions, at least eight years’ worth, gave this small group of lawyers in Washington lots to talk about.

The documents were redacted to shield the name of the foreign government or company, and to keep secret the identity of any law firm or lobby shop. Here are three takeaways from the documents the Justice Department published online for the first time.

The Paul Manafort effect.

When the special counsel’s office charged former Trump campaign chairman Paul Manafort last year with failing to disclose his lobbying work for the Russia-backed government in Ukraine, the 80-year-old FARA took new prominence. On K Street, the Washington lobbying corps looked inward and assessed its own compliance with the law.

Nearly a dozen of the 49 newly released advisory opinions were issued after Manafort’s late October indictment. Two of the requests for advisory opinions were made within days of Manafort pleading not guilty in Washington federal district court.

A third request came later in November from a lobbying firm that had been asked by a foreign government to facilitate meetings between an overseas official and “private industry leaders” in the defense and cybersecurity sectors, according to the Justice Department’s advisory opinion. The Justice Department, in an opinion dated Dec. 21, said the firm did not need to register because the proposed work fell under the so-called commercial exemption for “private and nonpolitical activities in furtherance of the bona fide trade or commerce” of a foreign client.

“Not quite the Rosetta Stone.”

The advisory opinions released reflect only a sliver of the guidance the Justice Department has given on FARA. In some instances, lawyers come to the Justice Department for informal advice that does not rise to the level of asking for an advisory opinion, which clients generally request when they want more assurance about being able to conduct planned activities in the United States without registering.

Covington & Burling partner Robert Kelner said the advisory opinions fall short of drawing a clear compliance road map for law firms and lobby shops.

“In general, I would say this is not quite the Rosetta Stone for interpreting DOJ’s position on FARA that some might have hoped for,” he said. “The opinions cover a lot of ground but they do it in some cases at a fairly high level of generality, and that’s partly because we can’t see the requests they’re responding to and the correspondence that led up to the final opinion. So the opinions in some cases give us less than a complete picture.”

Former U.S. Rep. Toby Moffett, now a senior adviser at Mayer Brown, said the advisory opinions give clues, but cautioned that the memos should not be treated as “ironclad precedent to take to the bank.”

“There’s no sort of bulletproof road map here. They would be the first to admit: They’re not always entirely consistent,” Moffett said. “Some decisions that come down on, ‘Yes, you must register,’ you can look at some of them and say, ‘I didn’t understand the need to register for that.’”

The limits of the lawyer’s exemption.

It’s not just the lobbyists. In the course of representing foreign entities before agencies, lawyers have gone to the Justice Department for a sign-off on their decisions whether to register under FARA.

In May, the Justice Department determined that a Washington-based law firm would not have to register under FARA in connection with its work advising a foreign state-owned company and a foreign individual on potential Treasury Department sanctions. The law firm had written to the department’s Office of Foreign Asset Control (OFAC) in February, asking it to delay any action against the client until it had a chance to make a case for avoiding sanctions.

The Justice Department concluded on May 3 that the firm qualified for an exemption that applies to firms representing foreign clients in court or before a federal agency, so long as the work does not broaden to influencing broader U.S. policies.

Heather Hunt, chief of the Justice Department unit that oversees FARA compliance, wrote that the law firm’s February letter “appears to stop short of an attempt to influence OFAC’s policies regarding its sanctions regime beyond its specific application to [U.S. law firm]’s two clients.”

“If at any point in the future, [U.S. law firm] engages in a wider discussion or exchange with OFAC that implicates policy or political considerations, then it would not be able to avail itself of the exemption and could be required to register,” she added.

The Justice Department issued a nearly identical advisory opinion on the same day—and possibly to the same law firm—in connection with a foreign bank facing possible OFAC sanctions.

The letters offer insight into an exemption that has been “narrowed considerably” in recent years, according to a Covington & Burling report that Kelner co-wrote earlier this year.

“The intent behind this exemption appears to be to require registration by law firms when they act more as lobbyists, public relations advisors, or political consultants than as legal counselors,” the Covington report stated. “But this is a very fine line, requiring careful parsing of the language of the lawyer’s exemption.”


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