Antonia M. Apps and Adam Fee are partners and Matthew Laroche is special counsel at Milbank LLP. This post is based on their Milbank memorandum.
On July 20, 2021, the Department of Justice (“DOJ”) unsealed a 46-page indictment charging former Trump Administration Advisor Thomas Joseph Barrack and two co-defendants with acting and conspiring to act as unregistered foreign agents of the United Arab Emirates (“UAE”). [1] The Indictment alleges, among other things, that Barrack acted on UAE’s behalf to influence the foreign policy position of the United States. While media reports have sometimes described these charges as being brought under the Foreign Agents Registration Act (“FARA”), which generally requires agents of foreign principals to register with the DOJ, that is not the case. Barrack was charged under a related but distinct and more serious criminal statute (18 U.S.C. § 951) that makes it unlawful to act within the United States as “an agent of a foreign government” without prior notification of the Attorney General.
Regardless, the charges against Barrack, as well as several other recent FARA prosecutions, reinforce that there is now a real risk of civil and criminal exposure for U.S. individuals and companies assisting foreign clients. It is important that companies working with non-U.S. customers or clients understand the current enforcement environment, including the DOJ’s renewed focus on foreign agent investigations and prosecutions. Companies are now facing increased scrutiny when assisting foreign clients, and they must ensure that they have appropriate policies and procedures in place, with board oversight, in order to anticipate and address foreign agent issues.
