Last month, Arnold & Porter's FARA attorneys attended ACI's 3rd National Forum on the Foreign Agents Registration Act (FARA). The message from DOJ was clear: the crackdown on "foreign agents" we have seen in recent years is far from over. DOJ made good on its messaging late last week when officials announced that they had charged Pierre Girgis, a Manhattan resident and dual citizen of Egypt and the United States, with acting and conspiring to act in the United States as an unregistered agent of the Arab Republic of Egypt, in violation of 18 U.S.C. § 951.
FARA and Section 951 address related conduct, but there are several important distinctions between the two statutes. FARA requires the registration of certain agents of foreign principals (which can be foreign governments, entities, or individuals), while Section 951 prohibits agents of foreign governments from acting in the United States without first notifying the Attorney General. FARA's criminal provisions have an express willfulness requirement; Section 951's do not. And FARA applies to four defined categories of covered activity, whereas Section 951 encompasses all activity by "an individual who agrees to operate within the United States subject to the direction or control of a foreign government or official," with exclusions for a foreign government's duly accredited diplomatic or consular officers and other publicly acknowledged officials, employees of such foreign officers and officials, and "any person engaged in a legal commercial transaction."
Here, DOJ alleges that Girgis operated at the direction and control of multiple officials of the Egyptian government in an effort to further the interests of the Egyptian government in the United States. Specifically, the indictment alleges that Girgis "tracked and obtained information regarding political opponents of Egyptian president Abdel Fattah el-Sisi" and "leveraged his connections with local U.S. law enforcement officers to collect non-public information at the direction of Egyptian officials, arranged benefits for Egyptian officials who were visiting Manhattan, and coordinated meetings between U.S. and Egyptian law enforcement in the United States, including by arranging for Egyptian officials to attend police trainings."
Importantly for purposes of Section 951, the indictment alleges that Girgis was working as an official source for the Egyptian government. As Jay Bratt, the Chief of the Counterintelligence and Export Control Section of DOJ's National Security Division, explained at the recent ACI FARA Forum, when DOJ decides whether to charge a case under Section 951 or FARA, it focuses on the identity of the foreign principal and the nature of the alleged agency relationship. Bratt noted that when a foreign agent takes direction from a high-ranking government official or intelligence officer, charges under Section 951 may be appropriate. In this case, the allegations portray Girgis as taking direction from and serving as a source for multiple Egyptian government agencies.
The Girgis indictment is also the latest in a series of cases where DOJ has pursued foreign agency charges against individuals with foreign citizenship (including dual citizens). In June 2021, UAE national Rashid Al Malik was charged alongside former Trump advisor Thomas Barrack (a dual citizen of the United States and Lebanon) and a third defendant (a US citizen who worked for Barrack) with violating Section 951 for unregistered work on behalf of the UAE, as well as obstruction of justice and making false statements to federal law enforcement. Likewise, in 2018, Nisar Ahmed Chaudhry, a Pakistani national living in Maryland, was charged with and pleaded guilty to violating FARA in connection with working on behalf of the Pakistani government to engage with DC-area think tanks and organize roundtable discussions to influence US foreign policy favorably to Pakistan.
Our FARA team provides proactive advice to clients about their registration obligations and represents clients in responding to requests for information from the FARA Unit, filing initial and supplemental registration forms, preparing for inspections by the FARA Unit and FBI, and navigating criminal investigations. For questions about FARA, Section 951, and related matters, please reach out to the authors or any of their colleagues in Arnold & Porter's White Collar Defense & Investigations practice group.
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