To read a lot of media coverage, and to listen to her lawyer, you would think Mariia Butina, the Russian national accused of conspiring to influence U.S. policy as an agent of the Russian Federation, was charged with violating the Foreign Agents Registration Act.
NPR’s “All Things Considered” reported that Butina is “charged with failing to register under the Foreign Agents Registration Act.” The Blaze said Butina is charged “with conspiracy to operate as an unlisted foreign agent in the U.S., a violation of the Foreign Agents Registration Act.” And according to Radio Free Europe, Butina was accused of “failing to register under the decades-old Foreign Agents Registration Act.”
Her lawyer has repeatedly described the charges against her in similar terms.
In fact, Butina is not charged under FARA. Last week, a federal grand jury charged her with acting as an agent of the Russian Federation without notifying the attorney general under 18 U.S.C. §951. On its face, that sounds like a FARA violation—and the fact that some publications, including Lawfare, have accurately described Butina as accused of being an “unregistered foreign agent” may contribute to the conflation of the two laws. But Section 951 is actually a different statute: FARA’s criminal provision is codified as 22 U.S.C. §618.
This isn’t the first instance of confusion over foreign agents and agents of foreign powers. Last year, as media accounts described former national security adviser Michael Flynn’s undisclosed contacts with Russian officials and his business relationship with the government of Turkey, Lawfare’s Susan Hennessey and Quinta Jurecic clarified the distinction between being a “foreign agent” for the purposes of the Foreign Intelligence Surveillance Act and being an “agent of a foreign principal” under FARA.
The two statutes relevant here, Section 951 and FARA, both criminalize acting in the United States as a foreign agent without advising the government of one’s activities. But there are important differences.
FARA, enacted in 1938, imposes a broad set of duties on foreign persons or organizations doing political, public relations or financial work on behalf of foreign governments, foreign people or other foreign organizations. Those obligations include a specific and ongoing registration requirement with the Department of Justice and disclosures of informational materials that advance the foreign principal’s interests. Failure to comply with those requirements, including by willfully omitting or lying about material facts, carries a penalty of up to five years imprisonment and a $10,000 fine.
Section 951, which was enacted in an overhaul of the U.S. criminal code in June 1948 and amended to its current form in 1983, has a much simpler set of elements. To violate it, a person must act:
- In the United States;
- As an agent of a foreign government, other than as a diplomatic or consular officer or attaché; and
- Without prior notification to the attorney general. (The Code of Federal Regulations describes the appropriate means of notification.)
Note that Section 951 does not require that the activity be political. On the other hand, under Section 951 the person has to act as an agent of a government, not of some other entity. And the statute does not specify the mode of notification to the attorney general. So the elements of the offense are at once more and less forgiving than the elements of a FARA violation. Those who violate Section 951 may face up to 10 years in prison.
It’s not just journalists who confuse the two statutes. The Justice Department’s inspector general wrote in a 2016 report on FARA enforcement that there have been misunderstandings of the laws between FBI counterintelligence investigators and prosecutors in the Justice Department’s National Security Division:
In discussions with several Federal Bureau of Investigation (FBI) counterintelligence agents and Assistant United States Attorneys (AUSA), as well as NSD officials, we found differing understandings between field agents and prosecutors and NSD officials about the intent of FARA as well as what constitutes a “FARA case.” The primary difference stemmed from the belief of investigators that investigations conducted pursuant to a separate criminal provision, 18 U.S.C. § 951 (Section 951), were FARA cases. However, NSD officials stated that unlike FARA and the [Lobbying Disclosure Act], Section 951 can be aimed at political or non-political activities of agents under the control of foreign governments. Although registration under FARA can serve as the required notification to the Attorney General under Section 951, the criminal activity targeted is different. According to NSD officials, who must approve both FARA and Section 951 cases, a true FARA case can only be brought pursuant to 22 U.S.C. § 611, et seq. (emphasis added).
This month, Butina’s defense attorney, Robert Driscoll, conflated the statutes in court in front of two federal judges. Last Wednesday, he said at Butina’s pretrial detention hearing that his client was merely accused of a regulatory filing infraction. Assistant U.S. Attorney Erik Kenerson took issue with that characterization. He highlighted the greater penalties under Section 951 and describing the elements of the crime until Magistrate Judge Deborah Robinson interrupted to say that she didn’t need to be reminded of the charges described in the complaint and indictment.
Despite that exchange, Driscoll has repeated the FARA line to news outlets in the week since the detention hearing. On Sunday, Fox News quoted him as saying: “She’s being held without bond in a D.C. jail on a FARA registration charge.” Two days earlier, Driscoll told CNN’s Anderson Cooper: “The government has brought a case under the Foreign Agent Registration Act, which by the way, no one is ever prosecuted under.” (The claim that nobody has been prosecuted under FARA is also false. Among other cases, the fourth charge pending against Paul Manafort in the District of Columbia is for filing false and misleading FARA statements. And in February, Manafort associate Richard Gates pleaded guilty to conspiring to violate FARA.)
At a status conference on Wednesday, the prosecution cited Driscoll’s statements to the press as violating a local court rule, saying he mischaracterized the case as a FARA violation. Again, a prosecutor clarified the nature of the Section 951 charge against Butina. Yet later in that same hearing, Driscoll once again spoke of the charges as registration errors. It’s a “foreign-agent registration case,” he said.
Asked for comment, Driscoll said: “The allegations of the indictment are essentially that her only illegal act was not registering.”
For its part, the Justice Department’s National Security Division—which approves all FARA and Section 951 charges—takes the difference between the two crimes seriously. Section 951 charges are not about unregistered lobbyists. Those charged in recent years under the statute include 10 Russian spies ousted in 2010 and Russian spy Evgeny Buryakov. Indeed, NSD described Section 951 to the inspector general as “espionage lite” because defendants typically engage in “espionage-like or clandestine behavior or an otherwise provable connection to an intelligence service, or information gathering or procurement-type activity on behalf of a foreign government” (emphasis added).
Perhaps the best way to think of the difference is that FARA is a cousin of the Lobbying Disclosure Act, while under Section 951, Butina faces a softened version of the espionage laws.