Manafort Indictment and the Foreign Agents Registration Act

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When the U.S. Department of Justice on Monday released a federal grand jury’s indictment of former Trump campaign manager Paul Manafort, as part of Special Counsel Robert S. Mueller’s probe into suspected Russian attempts to interfere in the 2016 U.S. presidential election, the charges spoke to a long-running worry among U.S. lawmakers.

Among the 12 charges, Manafort is accused of acting as a “unregistered agent of a foreign principal” and issuing “false and misleading FARA statements,” by not properly disclosing the nature of the consulting he did for a Kremlin-linked Ukrainian political party. Failure to do so would be a violation of the Foreign Agents Registration Act (FARA), a registration requirement that makes foreign agents tell the DOJ whom they’re working for, what they’re doing, and how much they’re getting paid for the gig.

Fear of foreign interference in U.S. affairs is about as old as the U.S., but this 1938 law is a response to a specific fear: Americans in the U.S. working for the Nazis.

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One of those Americans was famously suspected to be Ivy Lee. He’s often now viewed as a father of public relations, but back in the early 1930s it was one of his clients in particular that interested observers. As the publicist for the U.S. affiliate of the chemical product giant Interessen Gemeinschaft Farbenindustrie (“Farben”), which TIME described as “the great German dye trust,” he had been hired to help the European company gain a larger foothold in the U.S. in the early days of global corporations. Quickly, however, the nature of the job began to change.

“When Germany nationalizes the corporations, the distinction between state and corporation blurs,” explains Jonathan Auerbach, author of Weapons of Democracy: Propaganda, Progressivism, and American Public Opinion. “So when Farben is taken over by the German nationalist state, he’s advising Germany.”

In January 1934, Lee met briefly with Adolf Hitler and the Nazi Propaganda Ministry director Joseph Goebbels. Though the exact details of what Goebbels and Hitler wanted out of Lee are not clear, Auerbach believes what they may have been seeking from Ivy Lee was “some insight into how Americans think about Nazis” and to talk about what they could do to make Americans “think more positively about Nazis.” That July, a forerunner to the House Un-American Activities Committee (HUAC) made public testimony Lee had given about that meeting. The committee, which was originally founded to look into German influence over American public opinion, wanted to know if he was conspiring on something with the Nazis. After all, Lee got a raise so huge after Hitler came into power — from $3,000 to $25,000 — that “the committee got the impression that Mr. Lee might just as well have been retained by the Reichskanzler himself,” TIME reported in its July 23, 1934, issue.

Here’s how the magazine quoted Lee’s side of the story:

“I have told them repeatedly,” testified Mr. Lee, “that . . . the dissemination of, the organization of, German propaganda in the U. S. was just a mistake and futile. That it was bad business. That complete reliance should be placed on getting news to the American people through normal channels of publicity. … I told them that there were certain policies which Germany had [on Jews] which were bound to antagonize American public opinion and to attempt to secure favorable American opinion toward them—such attempts would be futile and, in the second place, objectionable. … In the very beginning I stipulated that there should be no dissemination whatever by me of information in the U. S. . . . I never distribute anything for clients in my name. My position is that every client of mine must tell his own story and do his own job in a responsible open way. . . .”

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According to TIME’s summary, Lee admitted Germany wasn’t the first government he had advised (he had also done work for Poland and Romania). That was not unusual, according to Auerbach. Some of the regions newly independent after World War I hired Americans, whom they saw as “the greatest publicity people, going back to P.T. Barnum,” to help gain international support. When those governments hired them, there was generally “no restriction” on what those agents could do. (For example, two other PR pioneers, Edward Bernays and Carl Byoir, helped generate public support to pressure the U.S. Senate to recognize Lithuania.) Soon enough, however, the practice began to raise eyebrows in Washington.

“The congressmen were really interested in this peculiar notion of a ‘foreign agent’ — that you can be working on behalf of a foreign government without anyone knowing it — and I think that led to the 1938 act [FARA],” argues Auerbach. “What does it mean for a private citizen to be giving information or advice to a government about your own country?”

Lee argued that, as long as there was complete transparency, the pressagents who helped smooth international relations were doing positive work. And Congress would essentially drop its investigation into his doings a few months later, when Lee died of a brain tumor on Nov. 9, 1934. But after his death, suspicions of German Americans only grew. FARA was enacted in 1938 — after the Institute of Propaganda Analysis was founded in 1937 to help intelligent citizens detect and analyze propaganda, and as the pro-Nazi German American Bund tried to gin up American support for neutrality in the European conflict that would become World War II.

As Stephen I. Vladeck, an expert in national security law and professor of law at the University of Texas School of Law, sums up the rationale for FARA at the time, “The idea from Congress was, ‘Listen, we’re not going to say you can’t come and participate in our political process, but if you’re going to lobby for policies — or pay Americans to do that on your behalf — the American people ought to know about it, and make their own decision about the wisdom or lack there of, of the policy.'”

The hope was that public relations agencies and lobbyists wouldn’t carry out something unethical if they had to publicly disclose the relationship. FARA didn’t stop people from working as foreign agents, and in fact, the 1995 Lobbying Disclosure Act became a way to get around FARA because those who met the statute’s “easier to satisfy” requirements were exempt from FARA, according to Vladeck. Nowadays, the DOJ usually gives offenders a chance to submit the paperwork belatedly in lieu of prosecuting them because it had been considered “overly harsh to prosecute people for what was ultimately a paperwork transgression,” he says.

“I think the purpose of the statute has endured,” says Vladeck. “The concern about foreign involvement in U.S. politics never went away.”



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