More On FARA And Scott Ritter

Back in the day—eighteen years ago—when I was still working, the policy of the DoJ with regard to FARA registration was not to prosecute as a first resort. The policy was to request a given person or organization to register as foreign agents, which could be the beginning of a long dialogue. Not that many people were registered in that way. It was kind of an honor among thieves system. There has always been a bit of a First Amendment problem with FARA, although as far as I know it’s never been tested. It originally came into being in response to what the US believed to be Nazi propaganda—you can read all about it at Wikipedia.

Following the end of the war in 1945, enforcement of FARA declined significantly: Only two indictments were brought between 1945 and 1955, followed by nine "failure to file" indictments between 1955 and 1962.

As revised in 1966 the Act stated that

an individual or organization could not be placed in the FARA database unless the government proved that they were acting "at the order, request, or under the direction or control, of a foreign principal" and proved that the alleged foreign agent engaged "in political activities for or in the interests of such foreign principal,"

The difficulty, of course, is to determine whether someone or some organization is acting as an agent—i.e., acting under direction or control, doing or saying what they’re told to do or say—or acting or speaking out of conviction. Receiving payment is evidence, but hardly conclusive. This is also why there’s a sort of “journalistic” exception in FARA for publications that are “persons” for purposes of US law. I don’t know whether that applies to Russian publications that Ritter has written for, and I don’t know whether Ritter has received payment from Russian sources.

More recently a “civil injunctive” remedy has been added which formalized DoJ policy more or less as I described it above. That remedy was designed

to allow the Department of Justice to warn individuals and entities of possible violations of the Act, ensuring more voluntary compliance while making it clear when the law has been violated. This has resulted in a shift from the law's initial focus on criminal prosecution, as the number of successful civil cases and administrative resolutions increased since that time.

But the difficulty of proof remains as regards persons like Ritter who have been actively engaged in viewpoint publication for many years. Payment is only evidence, and it’s not conclusive. Payments can typically be traced, but the real test, which is harder to prove, is establishing direction or control: is the person a true agent, or a free agent expressing his views. In Ritter’s case he has a long history of expressing his views and suffering consequences as a result.

Has Ritter ever been warned that he was considered to be in violation of FARA? I don’t know, but it strikes me that DoJ should have proceeded with such a warning before getting to this stage, the search warrant stage, which presumes active criminal investigation. Going forward, it seems to me that Ritter could have a strong 1A defense, given that his views have for years had a consistency over a range of issues that would be difficult to prove derived from the “direction or control” of the Russian government. In other words, Ritter strikes me as being sincere in his views, rather than an agent for anyone else. The type of proof required—to prove that Ritter is simply a mouthpiece—would likely depend on evidence gathered from a FISA warrant of some sort: texts, emails, conversations. Absent such proof, DoJ could run into 1A problems against the argument that they are engaged in simply suppressing speech that is unpopular with the current regime, and that FARA is used in this way invidiously and disparately, rather that evenhandedly.

We shall see.