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July 16 was a busy day for the Southern District of New York. Around 12:30 p.m. ET, a New York jury informed the court that it had reached a verdict in the criminal prosecution of New Jersey’s senior senator and the former chair of the Senate Foreign Relations Committee, Robert Menendez (D-N.J.), and his co-defendants. Twelve U.S. citizens who had dedicated nine weeks of their lives to fulfilling their civic duty found the senator guilty of elevating foreign countries’ interests—particularly those of Egypt and Qatar. Then, in the same federal district just hours after the jury’s verdict, a judge unsealed an indictment charging Sue Mi Terry, a senior fellow for Korea Studies at the Council on Foreign Relations and former CIA analyst, with failing to register under the Foreign Agent Registration Act (FARA) while acting as an agent for South Korea in the United States. Friend and foe alike, it seems like everyone is eager to get into Uncle Sam’s ear.
In his farewell address, President George Washington imparted on the young nation three warnings that could endanger the nascent republic’s democratic experiment. Among them was an injunction against “[t]he insidious wiles of foreign influence.” Those insidious wiles, while not new, have undergone a modern transformation. Heightened global interconnectedness, as well as a calculated desire to both avoid kinetic confrontation amidst increased great-power tensions and economize on open and free societies’ vulnerabilities, have given countries added incentives to invest in and pursue malign foreign influence campaigns. Recognizing this ballooning threat, Congress created the Foreign Malign Influence Center (FMIC) under the direction of the Office of the Director of National Intelligence in 2019 and began operating in 2022. While the FMIC, is tasked by statute with monitoring and assessing influence campaigns of any foreign country determined by its director to be “appropriate,” Congress specified three “covered foreign countries”: Russia, Iran, North Korea, and China. While all of these nations pose serious threats to U.S. security and policymaking autonomy and thus merit particular scrutiny, the events of July 16 demonstrate that unusual suspects and challenging allies likewise warrant attention.
The Department of Justice’s FARA Unit has aggressively ramped up enforcement of the law in recent years; however, fully addressing the threat presented by the modern foreign influence landscape in a society like the United States, with its open discourse and democratic institutions, requires embracing some of those would-be vulnerabilities as strengths. Prosecutors should be empowered to take full advantage of the U.S. Code and its breadth beyond FARA to put the courts to work and prospective foreign agents, principals, and governments—including U.S. allies—on notice that even if some U.S. citizens and officials can be bought, they and their benefactors will pay a high price.
FARA
In establishing the FMIC, Congress formally defined foreign malign influence in 50 U.S.C. § 3059(e)(2) as “any hostile effort undertaken by, at the direction of, or on behalf of or with the substantial support of, the government of a covered foreign country with the objective of influencing, through overt or covert means…policies or activities of the United States Government or State or local governments…or [U.S.] public opinion.” This, however, is only a recent incarnation of Congress’s recognition of the danger posed by foreign influence. In 1938, Congress enacted FARA to combat the Axis powers’ lobbying and foreign propaganda activities, amending it in 1966 to focus more on agents acting at the behest of foreign principals. The act is codified in Subchapter II of 22 U.S.C. Ch. 11. Under FARA, individuals in the United States who, regardless of citizenship, qualify as “foreign agents” by engaging in certain political, advocacy, or representative work on behalf of foreign entities—including foreign governments—must register with the Department of Justice. Such registration, as the U.S. Court of Appeals for the D.C. Circuit recently recognized, is aimed to protect U.S. national security and foreign relations. To enforce FARA, the government can, under 22 U.S.C. § 618(f), seek injunctions preventing an individual from continuing to act as a foreign agent or compel them to comply with the act. The government can also criminally prosecute willful FARA violations—a high bar in terms of burden of proof—under 22 U.S.C. § 618(a), as the U.S. Attorney’s Office for the Southern District of New York opted to do in Terry’s case. FARA violations under § 618(a) can be fined up to $10,000, imprisoned for a maximum of five years, or both—with some exceptions. Non-U.S. citizens convicted of a violation or of a conspiracy to violate FARA are also subject to removal under § 618(c).
To the Justice Department’s credit, its FARA Unit has stepped up its enforcement of the act after first signaling its intent to do so in 2022. FARA, however, is an imperfect statute, as evidenced by the multiple proposed reforms Congress has considered in the last five years alone. It is also far from the only option prosecutors have in employing the criminal justice system to punish and deter would-be malign foreign influencers and the agents they seek to cultivate.
18 U.S.C. § 951
Whereas FARA covers a broad range of activity but requires a highly calculated level of conduct, 18 U.S.C. § 951 is more narrowly tailored but has a much lower threshold of intentionality. Specifically, the statute requires individuals who agree “to operate within the United States subject to the direction or control of a foreign government or official,” to notify the Justice Department of their status as agents of a foreign government. Failure to do so is subject to a fine, up to 10 years imprisonment, or both. It is worth highlighting that whereas FARA is concerned with the influence of foreign principals, a term encompassing not only foreign governments but also foreign political parties, individuals, business entities, and organizations, § 951 is limited to government benefactors. Additionally, in contrast to FARA, which is constructed as a disclosure statute that does not outright criminalize underlying conduct, § 951 directly prohibits individuals from engaging in certain undisclosed actions on behalf of foreign governments. In so doing, § 951’s criminalization of such conduct underscores the range of activities foreign governments undertake beyond traditional espionage in seeking to gain influential and informational leverage vis-à-vis the United States.
Though not as high profile as the developments in lower Manhattan, § 951 also saw some action on July 16. In United States v. Liang, a federal judge in the District of Massachusetts rejected the argument that § 951 unconstitutionally penalized the defendant, a Chinese-American charged under the statute, for communicating with Chinese officials, thereby violating his First Amendment rights. According to Judge Indira Talwani, § 951’s targeted nature “does not inherently criminalize pro-foreign government sentiment or regulate in any way the content of any speech or expressive act” and “leaves open ample channels of information between U.S. citizens and representatives of foreign governments.” Furthermore, the importance of the government interest it serves—national security—“satisfies the criteria for a reasonable restriction on the manner of speech.” Judge Talwani also rejected the claim that the statute’s definition of “agent” was unconstitutionally vague, helpfully explaining that the defendant’s argument would have been more apt had he been charged under FARA. As such, the ruling highlighted the statutes’ distinct benefits and scope, as well as how prosecutors may apply it to distinct and nuanced fact patterns to most effectively undercut foreign governments’ efforts to cultivate and deploy agents in the United States.
The ruling also aligns with other recent decisions concerning § 951, which has survived several attempts by defendants to limit its reach. A few days before Judge Talwani’s Liang decision, the U.S. Court of Appeals for the Third Circuit affirmed the finding that a defendant’s conduct fell outside the statute’s exceptions, listed in § 951(d). In United States v. Chaoqun, the court, upon de novo review, agreed with the district court’s ruling that the defendant’s purchase and transmission of background reports on U.S. scientists to China’s Ministry of State Security did not qualify as “a legal commercial transaction” under § 951(d)(4), finding that “[a]ny argument [the defendant] could have made to the jury would [] have been legally insufficient to support” such a defense. Thus, while the Justice Department’s enforcement of § 951 has hit some speed bumps, including the 2023 high-profile prosecution and subsequent non-prosecution of accused-Turkish foreign agent Bijan Rafiekian, the statute remains a powerful implement in prosecutors’ toolkit for cracking down on foreign malign influence.
18 U.S.C. § 219
Sen. Menendez, however, was charged with violating neither FARA—the reform of which he has staunchly opposed—nor § 951. Rather, his case marked the first prosecution and conviction under a separate but related provision of federal criminal law, 18 U.S.C. § 219. After first enacting § 219 in 1966, Congress amended the statute several times. Nevertheless, the law’s core focus—prohibiting public officials, defined as any “officer or employee or person acting for or on behalf of the United States, or any department, agency, or branch of Government thereof, including [DC], in any official function,” from being or acting as an agent under FARA—has remained. This purpose is crucial to understanding the largely unrealized value of § 219: Like § 951, and unlike FARA, the statute prohibits specific conduct rather than criminalizing the failure of required conduct. As such, whereas under FARA, a private citizen could engage in certain activities on behalf of a foreign principal upon registering with the Justice Department, public officials are barred from acting as foreign agents at all. However, like FARA, and unlike § 951, § 219 targets agents of foreign principals, as opposed to just foreign governments, thus encompassing a broader range of potential activity.
Regardless of the fact that it has taken nearly six decades for the first prosecution and conviction under § 219 to come to fruition, Menendez must not be the last. A certain Supreme Court decision notwithstanding and especially in light of the Justice Department’s revered up FARA enforcement against private citizens, public officials should not get a free pass when leveraging the authority they were entrusted with to procure spoils unattainable on a civil servant’s salary. If anything, they should be held to an even higher standard than that pressed upon the people they are charged with representing.
There are some positive signs that Menendez was indeed only the beginning of a coming wave of § 219 prosecutions, or, at the very least, investigations. Just as the trial of the embattled New Jersey senator was about to get underway in May 2024, the U.S. Attorney’s Office for the Southern District of Texas charged Rep. Henry Cuellar (D-Texas) under the statute, alleging, among other things, that the congressman acted as an agent of Azerbaijan by taking certain legislative actions in exchange for payments and lavish gifts. Menendez however, also portends the fights prosecutorial teams looking to bring § 219 prosecutions will have to contend with, chief among them being the scope of the U.S. Constitution’s Speech or Debate clause. The clause, found in Article I, §6, cl. 1, provides members of Congress a kind of immunity, proscribing the questioning of senators and representatives “for any Speech or Debate in either House…in any other Place.” While the judge overseeing the case, Judge Sidney H. Stein, rejected the defense’s motion to dismiss the case on Speech or Debate grounds and did ultimately allow some evidence concerning Menendez’s legislative activity, he found that “the ineluctable application” of the Supreme Court’s 1979 decision in United States v. Helstoski precluded references to a Congress member’s past legislative acts. The prosecutors in the case thus found themselves in a bit of a Catch-22 of having to convince the jury that the senator acted as a public official “in the interest of” Egypt and Qatar while being barred from showing the jury evidence of that precise conduct.
If the Justice Department’s newfound appetite for § 219 charges against members of Congress continues to gain momentum, federal prosecutors are likely to repeatedly find themselves having to withstand the same strict Speech or Debate clause limits underlying Judge Stein’s evidentiary ruling, particularly given its consistency with the thereafter announced Supreme Court’s rejection of the government’s jury instruction alternative in Trump v. United States. The clause is also likely to make a formidable appearance on appeal, which Sen. Menendez has already indicated he will be pursuing. Regardless and as evidenced in this case, one benefit of § 219’s construction is that it adopts FARA’s broad conception of what counts as acting as an agent of a foreign principal, thus granting prosecutors important wiggle room on the kinds of conduct they can point to as evidence—as Menendez demonstrated.
Although the weight of statutory maximums is contested, it is nevertheless worth briefly noting that the maximum prison sentence a public official convicted under § 219 could receive is two years. It is not uncommon, however, for maximum sentences for white-collar crimes to lengthen overtime on account of public pressure for the law and the officers who enforce it to be “tougher” on such violations. Take, for instance, the federal wire fraud statute, 18 U.S.C. § 1343, which Menendez was also convicted of violating. When it was first enacted, the law carried a maximum five-year sentence. Today, that maximum is 20 years—or 30 if the violation involves benefits disbursed in connection with a presidentially declared major disaster or emergency or affects a financial institution. Time will tell whether public pressure provides enough incentive for Congress to increase § 219’s the penalty ceiling—although that would require a Congress willing to hold its own members to greater account.
Good, Old-Fashioned Bribery
In sharp contrast to § 219’s novel prosecution, the bribery charges of which Sen. Menendez and his co-defendants, two New Jersey businessmen, were likewise convicted are a tale as old as time—or at least 3,400 years.
Still, a considerable hurdle stands in the way of capitalizing on federal bribery statutes as a tool against foreign governments and other entities seeking to subvert the sovereignty of U.S. decision-making and the opinions of the American public: the Supreme Court. In McDonnell v. United States, decided in 2016, the Supreme Court complicated efforts to tactically utilize federal criminal law to circumscribe subversive influence efforts by severely narrowing what counted as an “official act” under all federal bribery statutes. In a unanimous decision, the Court found that, to count as an “official act” for the purposes of criminal prosecution, conduct must consist of a “decision or action on a question, matter, cause, suit, proceeding, or controversy” that specifically involves exercising “formal governmental power.” As such, arranging a meeting, contacting another official, or hosting an event, without more, would be insufficient. McDonnell’s restrictiveness was amplified in Menendez given Judge Stein’s aforementioned Speech or Debate order, which essentially required prosecutors to prove beyond a reasonable doubt that the senator engaged in official acts without being able to offer evidence of the precise acts McDonnell calls for. Nevertheless, prosecutors were able to lean heavily on McDonnell’s finding that, under the federal bribery statute, 18 U.S.C. § 201 , a public official does not actually have to make a decision or take a particular action; rather, it is sufficient that they simply agree—implicitly or explicitly—to do so. Indeed, an official does not even have to intend to perform the official act: they just need to agree to do so. As such, a jury could find the existence of an agreement based on evidence showing that a “public official received a thing of value knowing that it was given with the expectation that the official would perform an ‘official act’ in return.” Prosecutors could also argue that, under McDonnell, official acts included those another official was pressured to perform by the defendant, as well as those the defendant knew or intended another official to take on the basis of the defendant’s advice.
Unrelated to Menendez but relevant for the prospect of mobilizing the U.S. justice system against an increasingly all-out assault on the country’s independence from foreign influence, the Supreme Court further trammeled prospective prosecutions of foreign meddling in June when it decided Snyder v. United States along ideological lines. Writing for the majority, Justice Brett Kavanaugh explained the Court’s finding that a particular bribery statute, 18 U.S.C. § 666, only criminalized bribes, not gratuities. The case concerned the prosecution of James Snyder, the former mayor of Portage, Indiana, for, among other federal crimes, soliciting and accepting $13,000 from the truck company the city had recently awarded a contract. Snyder was convicted by a jury of accepting an illegal gratuity in violation of § 666(a)(1)(B), which prohibits state and local officials from “corruptly solicit[ing] or demand[ing]…or accept[ing] or agree[ing] to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $5,000 or more.” On appeal, Snyder argued that § 666 only covers bribes, which require a corrupt intention of being influenced in an official act, not gratuities, which have “no express [mental state] requirement.” Although the Court’s decision to ultimately adopt Snyder’s position on the scope of § 666 did not affect the fact that the statute still covers foreign efforts to bribe non-federal officials ex-ante, it did carve out a useful work-around. Specifically, post-Snyder, prospective foreign actors targeting non-federal officials who may nevertheless hold significant sway over local popular discourse and other channels of power can instead, in the language of § 666, “reward [such] an agent of…a State or local…government” for a particularly beneficial decision or action ex-post, seeking to incentivize more of the same. Even if, as legal conceived, gratuities are not intended to affect judgment, everyone enjoys a pat on the back, especially if that pat involves a payday.
Changing this reality would require either overruling McDonnell and Snyder or congressionally amending the relevant statutes—neither of which appears likely, at least in the near future. As the Menendez defense team, which is preparing an “aggressive” appeal, is well aware, the Supreme Court has signaled its appetite for granting cert to corruption cases and constricting federal bribery law in recent terms—and a Damascene conversion in the Court’s position does not appear in the cards, especially while some sitting justices are embroiled in their own ethics scandals. Concomitantly, members of Congress have little incentive to fortify federal bribery law, since that could mean painting a target on some of their own backs.
Nevertheless, prosecutors are far from hamstrung in their ability to wield federal bribery charges as an instrument of national security against foreign malign influence campaigns—regardless of whether their financiers are listed in the National Security Strategy or invited for state dinners at the White House.
Pushing Forward—Cautiously
Despite the attendant challenges of the statutory tools discussed above, strategically and vigorously wielding federal criminal law is necessary to fulfill the government’s objective of pursuing a whole-of-government approach to safeguarding U.S. democratic institutions and national interests against foreign malign influence. In turning to the criminal code as a national security implement in this arena, however, prosecutors and the federal agents who make their work possible must balance aggressively pursuing those willing to sell out their countrymen and women to sit in the lap of luxury and their benefactors with avoiding igniting a new era of xenophobic McCarthyism that brands with suspicion any and all foreign associations. Relationships with foreigners are integral to building and maintaining a society that embraces new ideas, diversity, and innovation. For public officials, especially those involved in U.S. diplomacy, relationships with foreigners could be foundations for breakthroughs on intractable geopolitical quagmires.
But relationships are not built on gold bars and designer handbags and should not come at the cost of American sovereignty and security. In his defense, Menendez leaned heavily on the potential concern that, should he be convicted, particularly under § 219, any legislator who, for their own personal or professional reasons, closely coordinates with a foreign government—be it an ally or adversary—will have to worry about being labeled a foreign agent. That worry however, dissipates when innocuous coordination turns into compensated collaboration. Even so, considering the power with which they are entrusted by the American people, is it really too much to ask public officials to think twice before ghost writing letters for foreign governments lobbying for the release of millions in aid or sending them sensitive embassy information , regardless of whether there is a cushy payout.
– Ania Zolyniak is a J.D. student at Harvard Law School. She holds an honors bachelor’s degree in Foreign Service from Georgetown University’s Walsh School of Foreign Service. Published courtesy of Lawfare.
