Last Friday, in Attorney General of the United States v. Wynn, the U.S. Court of Appeals for the D.C. Circuit confirmed the temporally limited scope of registration obligations under the Foreign Agents Registration Act (FARA), holding that DOJ cannot compel individuals to register under FARA after the end of their alleged agency relationship with a foreign principal. The ruling affirmed the D.C. district court's 2022 dismissal of the government's lawsuit to compel the registration by casino magnate Stephen Wynn for allegedly acting as an agent of China during the early days of the Trump administration. Judge Patricia Millett's opinion for the unanimous D.C. Circuit panel explained that this civil enforcement action was governed by a 1987 D.C. Circuit precedent involving a criminal FARA prosecution, United States v. McGoff, which construed FARA as imposing registration requirements only on currently existing agency relationships. As of this post's publication date, DOJ has not yet filed a petition for rehearing en banc.
DOJ's suit arose from the same colorful series of allegations that spawned several other FARA enforcement actions over the last few years. In short, DOJ alleged that, during a May 2017 meeting with several individuals (including Grammy-winning hiphop artist Prakazrel "Pras" Michel), China's Vice Minister for Public Security sought help convincing the Trump administration to remove a particular Chinese businessperson from the United States. Attending that meeting was former Republican National Committee finance chair Elliot Broidy, who allegedly later relayed this request to the wealthy and well-connected Wynn. Wynn then allegedly raised the issue with President Trump and his advisors over the course of several months, before telling the Vice Minister in October 2017 that he was unsuccessful.
In 2019 and 2020, DOJ ultimately brought criminal charges against Broidy and Michel related to these and other alleged unregistered foreign lobbying activities. Broidy pleaded guilty in 2020 to one count of conspiracy to violate FARA, and a jury found Michel guilty of conspiracy to violate FARA and other offenses in April 2023.
As to Wynn, however, the government pursued its only civil remedy under FARA: seeking a court order compelling Wynn to register retroactively for the five-month period during which he had allegedly acted as a foreign agent — i.e., from his meeting with Broidy about the Chinese Vice Minister's request, through his report back to the Vice Minister that his efforts had failed. Judge James Boasberg of the U.S. District Court for the District of Columbia dismissed the lawsuit, finding that even though DOJ's reading of the statute was persuasive, he was bound by McGoff's holding that the FARA registration obligation ends when the agency relationship ends.
In Friday's ruling, the D.C. Circuit agreed. Like the district court, the appeals court held that McGoff "plainly" resolves Wynn's case. The Wynn panel explained that, under McGoff's construction of FARA's statute of limitations, a registration obligation ends "the day an individual stops acting as a foreign agent."
Notably, the government did not argue on appeal that the court should adopt the McGoff dissent's reading of FARA's registration-obligation provision, 22 U.S.C. § 612(a), which Judge Boasberg had cited as a persuasive interpretation. Rather than repeating its argument below that FARA required Wynn to register for past activity, DOJ focused for the first time on FARA's separate provision authorizing civil enforcement suits, 22 U.S.C. § 618(a), which allows civil enforcement when "any person is engaged in" FARA violations, "fails to comply" with FARA registration obligations, or "otherwise is in violation" of FARA. DOJ argued that this provision supports lawsuits to enforce the registration requirement even where the registration violation is entirely in the past.
The D.C. Circuit rejected DOJ's argument, holding that because Section 618(a) uses present-tense verbs (particularly "fails to comply," rather than "failed to comply"), this provision covers only "ongoing or imminent compliance failures, not discontinued ones." The D.C. Circuit further concluded that Section 618(f), which permits courts to issue orders "requiring compliance with" FARA, did not apply because Wynn was already in "compliance" with FARA, as the 2017 expiration of his alleged foreign agency relationship meant he had no present duty to register. The court also rejected the idea that McGoff's criminal analysis should not apply to Wynn's civil case, because "[w]hether the question arises in the criminal or civil context, the answer as to when the ... duty to register expires must be the same in the absence of any contrary statutory directive."
The D.C. Circuit's ruling offers some certainty to potential FARA registrants by clarifying that there is no FARA registration obligation once an agency relationship has ended and, at least in the D.C. Circuit, ensuring that DOJ cannot pursue civil enforcement to require retroactive registration. Although the holding is binding only within the District of Columbia, that is often where FARA-covered activity is focused and where most FARA enforcement cases are brought. The D.C. Circuit's analysis is therefore likely to apply to other similar situations, and would be persuasive to courts in other circuits that may consider this issue in the future. Perhaps tellingly, although the panel noted that it was bound by the D.C. Circuit's McGoff precedent, none of the panel's members echoed any of Judge Boasberg's concerns with McGoff's analysis — potentially suggesting that there may not be much appetite to revisit McGoff or reconsider whether its reasoning applies equally to civil cases.
We will continue to monitor this case here on Enforcement Edge to see if DOJ seeks further review of this novel question. Please reach out to the authors of this post or members of Arnold & Porter's White Collar Defense & Investigations group if you have any questions about this case or about FARA registration obligations more generally.
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