Understanding FARA through General Flynn’s Very Late Paperwork


79 years ago today, the Foreign Agents Registration Act (FARA), which serves to inform the government and people of the United States of foreign sources of influence on U.S. laws and policy, came into being. Given the nation’s renewed focus on external influence on our politics, former National Security Advisor Michael Flynn’s status—or lack thereof—as a foreign agent pursuant with FARA is particularly relevant on the anniversary of the law.

In the period of time between former National Security Advisor Michael Flynn’s lobbying efforts on behalf of the Turkish government and March 7, 2017, when his firm filed as a foreign agent, General Flynn was not in compliance with the requirements of Foreign Agents Registration Act (FARA). Shortly after reports of the filing, White House Press Secretary Sean Spicer noted that it is not illegal to work as a foreign agent, as long as the correct paperwork is in order.

On this point, Spicer is correct. Presumably, he sought to clarify the connotation of  “foreign agent,” a term which is also used in the context of the Foreign Intelligence Surveillance Act (FISA), though with different meaning. The reports regarding Flynn, however, were more concerned with retroactive nature of the registration, which according to those same reports, came after pressure from the Department of Justice (DOJ). In short, there were some irregularities with the paperwork.


FARA in the making

Compliance with the law is the first step to considering an official’s relationships to foreign entities and evaluating their decision-making, which is why the case of General Flynn is interesting beyond a punctilious insistence on timely paperwork.

To contextualize Flynn's filings within the world of FARA, we turned to the history of the law and the registration data to get a better sense of FARA's purpose and enforcement.

FARA came into being in 1938, after a special congressional committee studying the influence of Nazi and Communist propaganda recommended its creation. The committee grew concerned after finding an “extensive underground propaganda apparatus using American firms and citizens.” However, after amendments to the law in 1966, the focus shifted from foreign propaganda to identifying foreign sources of influence within the American decision-making process. The DOJ writes, “The purpose of FARA is to ensure that the U.S. Government and the people of the United States are informed of the source of information (propaganda) and the identity of persons attempting to influence U.S. public opinion, policy, and laws.”

Along came the Lobbying Disclosure Act

Another significant legislative moment in the history of the law came with the passing of the Lobbying Disclosure Act (LDA) in 1995. Critically, lobbyists who are registered under the LDA are exempt from FARA registration, so long as they are lobbying on behalf of foreign commercial interests, rather than foreign governments or foreign political parties.

According to an internal audit of the DOJ’s enforcement of FARA, officials in the National Security Division of the DOJ believe the FARA disclosure requirements to be more rigorous than those of LDA. As such, it recommends agents working on behalf of either commercial and political foreign interests register under FARA. Given the trends in the FARA registration data, there is reason to believe that the passage of LDA, along with the introduction of a registration fee in 1993, has affected FARA registration.


In fact, registration under LDA is precisely the reason cited by Flynn’s lawyer, Robert K. Kelner, for their retroactive FARA filing. In Flynn’s initial registration statement, Kelner notes that the Flynn Intel Group had publicly disclosed its involvement with Inovo BV in September 2016. However, Senate’s data on LDA registration notes that they received the filing on November 9, 2016, the day after the presidential election.


Excerpt from Robert K. Kelner’s letter, submitted along with the Flynn Intel Group’s FARA registration.

The LDA filing and Kelner’s letter is interesting because it provides the reason for Flynn’s delayed compliance with FARA. Kelner writes, “Flynn Intel Group concluded that because its client was a foreign corporation and the services provided included lobbying activities, it could file under the LDA.”

LDA disclosures are required to occur within 45 days of the time that a firm is hired by a particular client, or hired for a second contract. According to the contract submitted with Flynn’s FARA registration, Flynn Intel Group’s contract with Inovo BV, became effective on August 15, 2016 (though it was signed on August 8). It seems there are a few irregularities with the LDA paperwork as well.

At this point, it is worth revisiting the purpose of laws such as FARA and LDA. What does missing or delayed paperwork amount to?

What's the purpose?

In the internal audit conducted by the DOJ Inspector General’s Office, they found that there were differing understandings of the law between FBI counterintelligence agents, prosecutors, and NSD officials. Most critically, the report notes, “We believe these differing understandings are indicative of the lack of a comprehensive Department enforcement strategy on FARA, which the Department should develop and integrate with its overall national security efforts.”  

According to the audit, DOJ only prosecuted seven cases between 1966 and 2015, two of which were dismissed. While criminal prosecutions are a possible outcome in the enforcement of the law, the report notes that “Some investigators believed that NSD has a clear preference toward pursuing registration for alleged FARA violators rather than seeking prosecution.” All of which to say, some within the DOJ believe that the purpose of FARA is to ensure timely and appropriate public disclosure.  

Flynn was by no means the first administration official to have previously served as a foreign agent. Both Bush and Obama administrations had a small number of individuals who we could confirm as having served as a foreign agent. Of those confirmed, several had high-level roles as Assistants to the President. For example, former Chief of Staff William Daley registered as a foreign agent due to his lobbying work with Mayer, Brown & Platt in the mid-1990s. None of the individuals identified had registered retroactively, though retroactive registrations are not entirely without precedent in the dataset overall.

Conversations around Flynn’s lobbying disclosures have largely focused on appropriate disclosure. Laws like FARA and LDA enforce disclosure requirements and act on behalf of the public’s right to know. Perhaps the more pressing question is whether an agent’s previous work would preclude them from making decisions in the best interests of the United States.

A matter of foreign influence

Flynn Intel Group’s work on behalf of Inovo focused on research about Fethullah Gullen, a Turkish Islamic Cleric.


An excerpt from Robert K. Kelner’s letter to DOJ on behalf of General Michael Flynn.

The Government of Turkey, as noted in Kelner’s letter, has been seeking the extradition of Gullen, who they believe had involvement in the 2016 Turkish coup attempt. It is worth noting that though lobby efforts on behalf of many countries have gone down, Turkey, in recent years, has increased its lobbying efforts.

Tiny Countries 1

It goes without saying that U.S. relations with Turkey remain a critical aspect of American foreign policy in the war on terrorism, particularly in Syria and Iraq. FARA compliance is necessary to allow the public to evaluate the influence of foreign governments on the decisions of American policymakers and political actors critically. This is especially true in the case of Turkey, which has a complex and, at times, tumultuous relationship with the United States.