DC District Court Holds DOJ Cannot Compel Retroactive FARA Registration

• Published date: 20 October 2022
• Subject Matter: Finance and Banking, Government, Public Sector, Financial Services, Constitutional & Administrative Law
• Law Firm: Arnold & Porter
• Author: Mr Elliot S. Rosenwald, Amy Jeffress and Murad Hussain

On October 12, 2022, in a much-watched Foreign Agents Registration Act (FARA) suit, the US District Court for the District of Columbia dismissed the Department of Justice's attempt to force casino magnate Stephen Wynn to register retroactively as an agent of the People's Republic of China (PRC). In rejecting DOJ's first affirmative civil FARA suit in over 30 years, the court held that it was bound to dismiss the case under DC Circuit precedent establishing that FARA's registration obligation ends when the agency relationship terminates. In addition to providing important analysis of the limits of FARA's registration regime (and highlighting counterarguments to DC Circuit precedent on the topic), Judge James Boasberg's opinion is an interesting read, and not just because it twice quotes lyrics of The Fugees, the '90s hip-hop group whose member Prakazrel Michel was allegedly involved in a relevant meeting.

In the suit, DOJ alleged that in 2017 the PRC's Vice Minister for Public Security held a meeting with Elliott Broidy, a former finance chair of the Republican National Committee, seeking to have the Trump Administration cancel the visa of a Chinese businessperson who faced corruption charges in China. Broidy then allegedly went to Wynn'then the RNC's finance chair'on the Vice Minister's behalf, believing that Wynn was well placed to secure the visa cancellation. The suit further asserted that Wynn eventually was put in touch with the Vice Minister directly and ultimately conveyed the Vice Minister's request at a dinner with President Trump in June 2017, as well as in subsequent meetings with White House officials. Within a few months, Wynn allegedly came to see that he was unlikely to be successful, so he notified the Vice Minister and stopped his efforts.

A few months later, DOJ advised Wynn that his activities placed him under an obligation to register as a Chinese agent. Wynn disputed that he had any such obligation, and for four years DOJ and Wynn's counsel argued back and forth about whether registration was required. Ultimately, on April 13, 2022, DOJ filed suit to compel Wynn to register as having been a Chinese agent during the time that he had been acting on the PRC's behalf. (Broidy and another participant in the original meeting have pleaded guilty to related criminal offenses. Michel awaits trial.)

Declining to address the "meaty constitutional issues" that Wynn raised, Judge Boasberg viewed the case as hinging simply on when FARA's...