Written by: Garrison Funk
On July 16, 2024, U.S. Senator Robert Menendez (D-NJ) was found guilty on 16 felony charges for his role in accepting bribes such as gold bars and luxury cars from the Egyptian Government during his time serving as the Chair for the Senate Foreign Relations Committee. Menendez was alleged to have directly facilitated U.S. aid and arms sales to Egypt, intervened in criminal investigations to benefit Egyptian interests, shared confidential staffing plans for the U.S. embassy in Cairo, and exerted pressure on a senior U.S. Department of Agriculture official to safeguard Egyptian business interests.
Of note in Menendez’ convictions were his 14th and 15th charges, brought under 18 U.S.C. § 219, which prohibits public officials from acting “as an agent of a foreign principal required to register under the Foreign Agents Registration Act of 1938 or a lobbyist required to register under the Lobbying Disclosure Act of 1995 in connection with the representation of a foreign entity.” Although prosecutors initially pursued bribery, fraud, and extortion charges, the addition of these espionage-related charges in March 2024 reflects a renewed effort by the Department of Justice to address foreign influence using existing legal tools.
The Foreign Agents Registration Act (FARA)
While Menendez is the first U.S. senator to both be charged and convicted under § 219, the law and FARA itself have existed for almost 90 years. Enacted in 1938, FARA was originally passed to expose Nazi propaganda in the United States by requiring the registration of any individual working on the behalf of a foreign government from an advocacy or political standpoint. Menendez’ prosecution is also different than most FARA cases – as a public official, Menendez’ is outright barred from acting on behalf of a foreign government, making registration violations moot.
Historically, FARA saw its most extensive use following its creation during World War II and throughout the height of the Cold War. Between 1938 and 1966, 31 criminal cases were brought against 87 individuals and organizations, resulting in 49 convictions. However, from 1967 to 2016, the number of criminal cases declined significantly, with only 8 cases leading to 6 convictions. During this period, the Department of Justice shifted its focus to civil enforcement of the Act – criminal prosecutions under FARA require proof of “willful” intent and can face challenges related to free speech protections under the First Amendment.
The DOJ’s Renewed Enforcement
Recently, the DOJ has seen a dramatic uptick in its criminal enforcement of FARA. Following a DOJ Inspector General audit of FARA’s criminal enforcement in 2016, along with the scandal of Russian interference in the 2016 Presidential election, the DOJ looked inward at its already existing devices to combat foreign influence and designated FARA as one of the primary options in its toolkit. This has been reflected in recent years: from 2017 to the present 21 criminal cases have been filed, resulting in 11 convictions with 7 more still working their way through the legal system.
While many of these recent cases have been related to Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 Presidential election, continued enforcement in the last several years show this trend is likely to continue. In addition to Menendez’ conviction, 2024 has seen former CIA analyst Sue Mi Terry and Congressman Henry Cuellar indicted on FARA charges for receiving bribes to act on behalf of the South Korean and Azerbaijani governments, respectively. Additionally, political consultants Barry Bennett and Douglas Watts have entered into Deferred Prosecution Agreements after facing criminal charges earlier this year for a scheme to covertly promote the interests of an unnamed government, reportedly Qatar.
The Future Implications of FARA
As noted by former U.S Attorney and current Just Security editor Barbara McQuade, it is “probably no coincidence” that the increase in FARA prosecutions has coincided with a rapidly growing and interconnected world, making it easier for foreign entities to recruit and influence individuals in the U.S. While Menendez’ conviction and almost Hollywood-like case underscores the grave national security concerns associated with his actions, it also represents the breaking of a glass ceiling as the first charged and convicted U.S. Senator – public officials, no matter how prominent, are not shielded from prosecution. If anything, Menendez’ conviction may lead to increased scrutiny of current public officials and members of Congress as the DOJ works to root out all forms of foreign influence, subversion, and espionage in the highest levels of government.
Sources:
18 U.S.C. § 219 (2024).
22 U.S.C. § 611-621 (2024).
Superseding Indictment, U.S. v. Menendez, at ¶ 109, 2024 WL 1096868, No. S4 23 Cr. 490 (SHS) (S.D.N.Y 2024).
Adam Klasfeld, Robert Menendez Guilty: The Significance of the First ‘Foreign Agent’ Conviction of a U.S. Senator, Just Security (July 19, 2024).
U.S. Department of Justice: Office of the Inspector General , Audit of the National Security Division’s Enforcement and Administration of the Foreign Agents Registration Act (2016).
U.S. Department of Justice , Foreign Agents Registration Act Recent Cases (last visited Aug. 4, 2024).
Criminal Enforcement: An Informational Resource in a New Era of Foreign Agents Registration Act Enforcement, Caplin & Drysdale (last visited Aug. 4, 2024).
U.S Department of Justice , U.S CONGRESSMAN HENRY CUELLAR CHARGED WITH BRIBERY AND ACTING AS A FOREIGN AGENT (2024).
U.S. Department of Justice , REPORT ON THE INVESTIGATION INTO RUSSIAN INTERFERENCE IN THE 2016 PRESIDENTIAL ELECTION (2019).
Tessa Capeloto, DOJ Charges Two Political Consultants With Violating FARA, Wiley Rein LLP (Jan. 9, 2024).