A judge said DOJ can’t force alleged foreign agents to retroactively disclose their lobbying work.
Judge James Boasberg said he was bound by longstanding federal appeals court precedent.
The decision could impair the Justice Department’s ability to police covert foreign influence.
The Justice Department suffered a setback Wednesday in its recent crackdown on covert foreign influence, as a federal judge tossed a lawsuit seeking to compel the casino mogul Steve Wynn to register as an agent of China in connection with his past lobbying of the Trump administration.
In a 20-page opinion, Judge James Boasberg sided with Wynn’s argument that the Justice Department lacked the power to force the disclosure of his alleged stint as a foreign agent of China. Boasberg, an Obama appointee, appeared to have reservations about his ruling, in which he twice cited appeals court precedent that he viewed as barring the Justice Department from retroactively requiring foreign agents to register once they were no longer carrying out influence work.
It was not immediately clear if the Justice Department would appeal. But if left standing, the decision could hamstring the Justice Department in its efforts to enforce the Foreign Agents Registration Act, or FARA, a decades-old law requiring the disclosure of lobbying and other influence work for overseas powers.
“I don’t think the Justice Department can let the decision stand without it significantly impairing its ability to enforce the statute,” said Brandon Van Grack, a former top Justice Department official who once headed the unit tasked with enforcing FARA.
A Justice Department spokesperson did not immediately respond to a request for comment.
In a prepared statement, Wynn’s lawyers Reid Weingarten and Robert Luskin said they were “delighted” by the dismissal of a Justice Department lawsuit they described as “ill-conceived.”
“Mr. Wynn never acted as an agent of the Chinese government and never lobbied on its behalf. This is a claim that should never have been filed, and the Court agreed,” Weingarten and Luskin said.
After decades of light enforcement, the Justice Department has pursued high-profile prosecutions under FARA in recent years, most notably in former Special Counsel Robert Mueller III’s case against onetime Trump campaign chairman Paul Manafort. But with Wynn, the Justice Department brought a rare civil lawsuit, making the case a test of its ability to enforce FARA without the heavy hand of criminal prosecution.
Indeed, the case was a “flagship enforcement action to raise public awareness further that the Justice Department is intent on using all of the enforcement tools at its disposal to step up enforcement of FARA,” said David Laufman, a former top official in the Justice Department’s national security division.
Laufman, now a partner at the law firm Wiggin and Dana, said Wednesday’s ruling could undercut the Justice Department’s ability to threaten a civil lawsuit to pressure lobbyists and other consultants to register as foreign agents.
‘”This decision is a considerable setback in the Justice Department’s efforts to intensify FARA enforcement and will embolden individuals who long ago ended an agency relationship with a foreign principal to resist demands to register,” he told Insider.
In May, the Justice Department argued that Wynn was required to register under FARA in connection with his efforts to secure a diplomatic favor for China: the return of the Chinese dissident Guo Wengui, who fled to the United States and was seeking asylum.
The Justice Department said Wynn agreed in 2017 to lobby on behalf of China in exchange for favorable treatment of his casino business in Macau. At a dinner in June 2017, while serving as the finance chair of the Republican National Committee, Wynn made good on a promise to raise the Wengui matter with then-President Donald Trump and administration officials, the Justice Department said.
In its lawsuit, the Justice Department said the effort to enlist Wynn’s support in the Chinese lobbying campaign began in May 2017 with a meeting that included the prominent Republican fundraiser Elliott Broidy and Prakazrel Michel, a founding member of the hit 1990s hip-hop group The Refugees.
In the years since that meeting, Broidy pleaded guilty to acting as an unregistered agent of China, only to later receive a pardon from Trump. Michel, better known by his stage name Pras, is set to stand trial next year on a raft of charges related to his alleged lobbying for China and separate accusations of money laundering and campaign finance violations.
Boasberg described the group in his opinion Wednesday as an “unusual cast of characters,” and he referenced a chart-topping Fugees song.
“Perhaps embracing The Fugees’ famous line — ‘ready or not, here I come, you can’t hide,’ The Fugees, Ready or Not, on The Score (Ruffhouse Records 1996) — the PRC sought to have the Trump Administration cancel the visa of and remove from the United States an unnamed Chinese businessperson whom the PRC had charged with corruption,” Boasberg wrote, referring to Wengui.
Citing precedent from the US Court of Appeals for the DC Circuit, Boasberg said he dismissed the Justice Department’s lawsuit strictly on legal grounds and did not reach the question of whether Wynn’s conduct required registration under FARA.
“While the goals of FARA are laudable, this Court is bound to apply the statute as interpreted by the DC Circuit,” Boasberg wrote. “And that requires dismissal.”
Read the original article on Business Insider