On the day Paul Manafort was indicted in 2017, his defense lawyer Kevin Downing stepped out of the courthouse in Washington and declared the case “ridiculous.”
Downing said the special counsel’s office was advancing a “very novel theory” to charge Manafort with failing to disclose his past lobbying work for Ukraine. Since the mid-1960s, Downing said, the U.S. government had pursued only a half dozen criminal cases under the law he called “FARA”—the Foreign Agents Registration Act.
For many, Manafort’s case served as an introduction to a previously obscure law requiring the disclosure of foreign influence campaigns in the United States. It also put the influence industry on notice, sending a flood of new registrations—some retroactive—into a Justice Department that is enforcing FARA with new vigor.
On Wednesday, U.S. District Judge Amy Berman Jackson of the District of Columbia used forceful language to recognize FARA’s newly elevated status, saying the disclosure law was not merely a “pesky regulation” as she sentenced Manafort.
Jackson underscored the government’s interest in bringing lobbying for foreign governments to light. And she dismissed the notion that Manafort’s admitted violation of the law amounted to just a procedural slipup. Her sentence, coming days after a separate sentencing in a financial fraud case in Virginia, elevated Manafort’s prison term to seven-and-a-half years.
By failing to register his work for former Ukrainian President Viktor Yanukovych, Manafort “was hiding the truth” of who he represented, Jackson said. She also said it was “antithetical to the very American values” Manafort had said he championed.
“When people don’t have the facts, democracy can’t work,” she said. Manafort had effectively lied to Congress and the American public by failing to properly disclose his work for Ukraine.
Jackson said Manafort was “not a spy” but a lobbyist. And lobbying is not illegal—even when arrangements with foreign countries involve representing “odious” or “tyrannical” regimes and figures, she said. But it was Manafort’s failure to disclose his lucrative Ukraine work that was landing him in prison.
But by failing to disclose his lobbying, Jackson said Manafort “was lying to members of Congress and the American public.”
Complaints Over Prosecution
Downing reiterated his view Wednesday that the Justice Department had traditionally taken a light touch toward FARA, with a “communicative style” that prioritized bringing lobbyists into compliance with the law. But in the time Manafort has faced charges from the special counsel, the Justice Department has pivoted toward enforcement.
In January, Skadden, Arps, Slate, Meagher & Flom reached a civil settlement with the Justice Department resolving claims that it failed to register as a foreign agent in connection with its own past work for Ukraine.
The firm retroactively registered and paid more than $4.6 million to the U.S. government, representing the amount it received to conduct a purportedly independent analysis of the Ukrainian government’s prosecution of Yulia Tymoshenko, a former prime minister and political rival of the country’s Russia-aligned president at the time, Viktor Yanukovych.
Former Skadden partner and White House counsel Gregory Craig is facing questions about his unregistered foreign-lobbying work. His lawyer, William Taylor of Zuckerman Spaeder, has said Craig was not required to register under FARA.
The Justice Department’s enforcement of foreign influence laws appears to be ratcheting up.
In recent remarks in New Orleans, Assistant Attorney General John Demers, the head of the Justice Department’s national security division, said he was overhauling the FARA unit to more aggressively pursue undisclosed lobbying for foreign governments. Demers said he is naming Brandon Van Grack, a former special counsel prosecutor and a deputy chief in the national security division’s counterespionage unit, as the new head of the FARA unit.
“It appears the department is also making other staffing changes within the FARA unit, presumably to reorient it toward enforcement,” lawyers at Covington & Burling wrote in a recent client alert about Demers’ comments. “In his remarks, Demers appeared to emphasize the department’s intention to pursue unregistered foreign agents.”
Van Grack was involved in some of the special counsel’s highest-profile prosecutions, including the financial fraud case against Manafort in Virginia. On Wednesday, he appeared in court for Manafort’s sentencing while special counsel prosecutor Andrew Weissmann argued the longtime political operative had no excuse for failing to register as a foreign agent.
Weissmann underlined the cost of Manafort’s misconduct. FARA filings, he said, provided details such as “when, where, what and how much is being spent” on foreign influence efforts in the United States. Manafort, he said, avoided filing under FARA to maintain the appearance that foreign leaders enlisted for his lobbying campaign, among others, were acting independently when they were, in fact, “handsomely paid.”
The failure to file, Weissman said, deprived the American public and Manafort’s lobbying targets the information they were entitled to under FARA. He described Manafort’s conduct as “corrosive to faith in the political process.”
“Secrecy,” Weissmann said, “was integral to what Manafort wanted to do for Ukraine.”