A recent criminal complaint filed in the Eastern District of New York (EDNY) is of special interest to me for two reasons. First, I worked in the EDNY for about nine years, initially as part of the Clerk's Office staff and, following law school, as a judicial law clerk. Second, the case involves an alleged violation of the Foreign Agents Registration Act (FARA), a statute that historically was rarely enforced as a criminal matter but quickly morphed into an effective prosecutorial tool during the Special Counsel's investigation of alleged Russian inference in American elections, and ended up as a key charge against Paul J. Manafort, Jr. in the prosecution brought against him in the District of Columbia (FARA was not charged in the case brought in the Eastern District of Virginia). The new FARA case in EDNY, however, appears to be a rare prosecution in recent years that is not associated in some way with the Special Counsel's Russia investigation (see cases against Skadden Arps (2019), Elena Alekseevna Khusyaynova (2018), Samuel Patten (2018), Rick Gates (2018)).
The new case, United States v. Kaveh Lotfolah Afrasiabi, 1:21-mj-50 (Criminal Complaint unsealed Jan. 19, 2021) nevertheless supports the notion that FARA-based prosecutions usually have some political component. Specifically, the Afrasiabi case follows closely on the heels of the fallout from the assassination of Iranian General Qasem Soleimani by a U.S. drone near the airport in Baghdad, Iraq earlier this month. Prior to the EDNY charges, Mr. Afrasiab, a permanent U.S. resident residing in Massachusetts, was a well-known authority on Iran and international political affairs. He published several books, frequently authored articles that appeared in major U.S. periodicals, and was often seen on U.S. news programs. About two weeks after the Soleimani assassination, however, the U.S. government charged Afrasiabi with being a “secret employee” Iran who had failed to register as a foreign agent despite advocating pro-Iran views and receiving health insurance and financial support from the Iranian government. What appears to have most angered government officials, however, is an email Afrasiabi allegedly sent (apparently openly and transparently) to Iran's UN representatives which suggested that the Iranian government suspend nuclear inspections in retaliation for the assassination.
I have no opinion with regard to the legality or wisdom of the U.S. drone strike or with regard Afrasiabi's relationship to Iran (of which he always remained a citizen), but I submit that the Afrasiabi prosecution is not the type of case that Congress envisioned when FARA was enacted and which has historically been enforced as a civil matter. Indeed, before the Special Counsel's Russia investigation, there had been less than ten defendants sentenced for criminal violations of FARA over the last 50 years. This was unsurprising, as DOJ itself recently found that “the focus of the FARA Registration Unit's enforcement efforts is encouraging voluntary compliance, rather than pursuing criminal or civil charges.” Office of the Inspector General, U.S. Department of Justice, Audit of the National Security Division's Enforcement and Administration of the Foreign Agents Registration Act (Audit Div. Sept. 2016). FARA was implemented in 1938 mainly to address German and, thereafter, Cold-war era espionage and political propaganda. FARA enforcement was further muddied in 1995 by the passage of the Lobbying Disclosure Act (LDA), which removed certain lobbyist from FARA's purview. It seems clear that the statute was simply not intended to muzzle prominent (or even notorious) scholars or political commentators such as Mr. Afrasiabi and punish them for expressing unpopular views, even if those views pertain to sensitive geopolitical matters (a UN expert on extrajudicial killings has concluded that the Soleimani strike was “unlawful”) or potential international legal proceedings (an Interpol arrest warrant was issued to former President Trump following the Soleimani assassination).
The Afrasiabi case remains in its nascent stages and it will be interesting to see what charges are included in an actual indictment and to which judge the case is ultimately assigned (a specific judge is not assigned at the complaint stage of a criminal case). It appears, however, that DOJ's FARA Unit (now led by a former assistant Special Counsel and Manafort trial team member from the Virginia case) has moved beyond investigations of purported Russian election interference and intends to bring FARA into a new—and more aggressive—era of enforcement activity.
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