Senator Robert Menendez (D-NJ) racked up 16 felony convictions on Tuesday, delivering a fatal blow to his three-decade long career in the U.S. Congress. Menendez signaled that he plans to resign from the Senate on Wednesday, but beyond the political fallout, the 14th and 15th counts of the indictment carry particular significance: those charged Menendez with using his position as the leader of the Senate Foreign Relations Committee to enter into a conspiracy to act as an agent of the Egyptian government. Menendez’s foreign-agent convictions could help buttress the Justice Department’s longstanding prosecutorial strategy of reviving a World War II-era law to deter foreign influence in the United States. In an era where misinformation — particularly from foreign actors — has profound effects on every election cycle, natural disaster, or pandemic, that may prove to be a more lasting consequence than the immediate reverberations on Capitol Hill.
What’s different about Senator Mendendez’s verdict?
Before Menendez, no U.S. senator ever had been charged or convicted under 18 USC § 219, a statute forbidding any public official from acting as a foreign agent. Menendez’s foreign-agent convictions have been widely reported, yet the historic nature of this milestone has been overshadowed by the egregious nature of the bribery scheme.
“The conduct feels to me more egregious because this is a person who’s taken an oath,” former U.S. Attorney Barbara McQuade said in a phone interview. “This is a person who’s supposed to be acting in the best interest of the United States as the chair of the Senate Foreign Relations Committee. This is someone who has incredible access to power, and we have entrusted this person to make decisions that are in the best interest of the entire United States. And instead, he was acting in the interest of a foreign government.”
In his reaction to the verdict, Manhattan U.S. Attorney Damian Williams chose to focus on the “shocking levels of corruption” in Menendez’s case.
“Hundreds of thousands of dollars of bribes, including gold, cash, and a Mercedes-Benz,” Williams said. “This wasn’t politics as usual; this was politics for profit. Because Senator Menendez has now been found guilty, his years of selling his office to the highest bidder have finally come to an end.”
The U.S. Attorney’s statement contained no reference to Egypt, foreign influence, or the unprecedented nature of what his office had just achieved. Prosecutors initially did not even file foreign-agent charges against Menendez in their first indictment against him last September, only three counts of conspiracy to commit bribery, conspiracy to commit honest services fraud, and conspiracy to commit extortion. Though the indictment itself disclosed the senator’s ties to Egypt, the images that prosecutors released of gold bars in Menendez’s home, envelopes of cash stuffed in his Senate jacket, and a Mercedes-Benz convertible gifted to his wife were presented as emblems of corruption, rather than foreign influence. Since Menendez escaped a bribery conviction in 2017, following a mistrial in an unrelated case, the 2023 charges were widely viewed as a reckoning for a senator dogged by corruption accusations.
Only much later, in March of this year, did prosecutors file a fourth superseding indictment stating that Menendez “acted as an agent of the Government of Egypt and Egyptian officials, within the United States, through political activities.”
How is the DOJ combating foreign influence?
The law that Menendez was convicted of violating on the 14th and 15th counts, 18 USC § 219, prohibits public officials from “acting as an agent of a foreign principal required to register under the Foreign Agents Registration Act (FARA) or a lobbyist required to register under Lobbying Disclosure Act of 1995 in connection with the representation of a foreign entity.”
Congress enacted FARA in 1938, in an effort to expose Nazi propaganda in the lead up to World War II. The law required anyone engaging in political or advocacy work on behalf of foreign governments to register with the Department of Justice, or face possible prosecution or civil enforcement.
FARA did not ban lobbying on behalf of foreign governments, but created a system of registration and disclosure. The Justice Department’s FARA database currently has 514 active registrants, who must cite their affiliations on databases and communications like emails, print editorials, and even social media posts.
The Justice Department lists the charge of Menendez’s conviction as a “FARA-related” statute because it differs from that law in an important respect. “Public officials cannot act as foreign agents, but it’s technically outside of FARA because the whole point is, there’s no registration because you can’t do it,” former federal prosecutor Brandon Van Grack said in a phone interview.
Van Grack led the Justice Department’s FARA Unit and brought suspected foreign-agent cases as a senior assistant to Special Counsel Robert Mueller. He noted that the statute fell under long disuse until prosecutors ratcheted up enforcement of the law after the Russian government’s attack on the 2016 presidential election. “There was a recognition that foreign influence and foreign governments potentially could create an existential threat to our democracy at its core, and so the government really looked inward to see what tools do we have to address that,” Van Grack noted. FARA is primary among those tools.
What has the DOJ’s record been on FARA?
Nearly a decade into their foreign-agent clampdown, the Justice Department has had successes and setbacks, but prosecutors have shown no sign of letting up on enforcement.
Multiple FARA cases stemming from the Mueller investigation related to foreign influence operations involving Russia, Turkey, and a pro-Kremlin faction in Ukraine.
In 2017, Trump’s former National Security Advisor Michael Flynn pleaded guilty to lying to the FBI, including about his ties to the Turkish government. Flynn accepted $500,000 through his intelligence firm from what he once agreed were agents of Recep Tayyip Erdogan’s government, in return for a smear campaign against one of Erodgan’s top enemies. That campaign included a 2016 Election Day editorial in The Hill denouncing Erdogan’s political enemy Fethullah Gulen, a Turkish-born cleric living in Pennsylvania. Flynn acknowledged the editorial had been partially ghostwritten under the “supervision and direction” of Turkish officials.
Flynn ultimately withdrew his guilty plea after former Attorney General Bill Barr dropped the charges against him, in a move that prompted a wave of protests by former Justice Department officials calling for Barr’s resignation.
Two of Flynn’s allegedly Turkish government-tied handlers, Bijan Rafiekian and Ekim Alptekin, were indicted on similar allegations. Only Rafiekian stood trial, and though he was convicted by a federal jury, the trial judge overturned that verdict. After protracted appellate wrangling, federal prosecutors dropped charges against both men in a significant setback for the DOJ’s foreign lobbying crackdown.
Mueller’s team did, however, notch multiple FARA convictions against Trump’s former campaign director Paul Manafort, his deputy Rick Gates, and lobbyist Sam Patten, all over their undisclosed ties to political factions in Ukraine. The special counsel’s foreign-agent charges against 13 Russian nationals and entities linked to the Kremlin’s attack on the 2016 presidential election ultimately could not be brought to trial, as the defendants were unable to be extradited.
Outside the context of the Mueller investigation, two of the Justice Department’s FARA cases ended in acquittals of prominent political figures: ex-Obama White House counsel Gregory Craig and former Trump inaugural committee chair Tom Barrack.
How might Menendez’s conviction affect the DOJ’s FARA crackdown?
In the wake of high-profile acquittals and vacated convictions, the Justice Department’s FARA enforcement has come under increasing scrutiny, and Menendez’s conviction could shield it from that criticism.
Andy Wright, a Just Security editor who advises on FARA issues as a partner at the law firm K&L Gates, said that FARA “covers a lot of activities that transcend people’s intuition,” including prohibiting certain types of money transfers, public relations campaigns, and “anything else that reaches the American public” on behalf of a foreign principal.
“DOJ has articulated an interest in more aggressive enforcement and has put resources to that task, and it has taken more aggressive enforcement actions, some of which have been so aggressive that they’ve had legal failure,” added Wright, who has advocated FARA reform.
For McQuade, also a Just Security editor, prosecutors succeeded in Menendez’s case by avoiding First Amendment issues that helped other criminal defendants escape FARA charges. “To me, it strikes me as a more appealing case from a jury perspective, and maybe in some ways, a little easier to make out, because it doesn’t involve that blurry line of free expression here,” she said in an interview. “The evidence as reported was this real quid pro quo: If you do this favor for me — write this letter [or do] this official act — we will give you some sort of thing of value.” In Menendez’s case, for example, writing op-eds or writing reports on behalf of a foreign government were not the kind of conduct that prosecutors put on trial. By contrast, Barrack persuaded a federal jury in 2022 that he praised the United Arab Emirates in media interviews because of his personal convictions and analysis about U.S. interests and foreign policy objectives, not because he had been acting as an agent of the UAE.
McQuade added that it’s “probably no coincidence” that the upspike in foreign-agent prosecutions falls at a time that the world becomes more connected. “The internet has made it easier for foreign entities to exercise influence in our country,” she noted. “It used to be that we were separated by oceans, and so we didn’t worry so much about what other countries were doing to us unless they were going to come over and drop bombs on us. We were pretty safe from foreign influence,” she explained. But now, “foreign actors, whether they’re nation states or individual groups, can climb into our homes and into our government right through our computers.”
That’s why McQuade believes the United States government will continue to lean on FARA as an accountability tool for “foreign actors who are trying to use cut-outs and puppets to advance their agendas.”
On the day of Menendez’s conviction, the same U.S. Attorney’s office that prosecuted him unveiled its latest foreign-agent indictment against Sue Mi Terry, a former CIA analyst and senior fellow on the Council on Foreign Relations. Prosecutors accuse Terry, the wife of Washington Post columnist Max Boot, of secretly working with South Korean intelligence officials in return for luxury handbags, expensive meals at Michelin-starred restaurants, and $37,000 in an account she controlled at a think tank where she worked at the time.
Referring to that case, ex-DOJ FARA chief Van Grack said it “reinforce[s] the fact that the Department is still very aggressively pursuing these cases.”