Inside the universe of think tanks – in New York City and in Washington, D.C. –hundreds of experts write, talk and engage in activities aimed at educating the American public about international politics. These experts also take positions on what U.S. policy should be and what American decision-makers should do to safeguard the nation in the future. This is a world of type-A personalities, strivers and achievers. It is super-competitive, and it contains a Super Bowl full of Sunday morning quarterbacks who — understandably and predictably — focus on what went wrong in the past and what lessons should be applied going forward. This think tank activity – in its public manifestations as well as in its private arrangements — is of huge benefit to the nation; it subjects the decisions of government officials who sit at the top of immense and powerful bureaucracies to the scrutiny of outside analysts many of whom have extensive experience in government service themselves. Top decisionmakers in the national security apparatus of the United States — from all parts of the political spectrum — welcome this activity and frequently use it to their own advantage when facing particularly challenging policy dilemmas. That activity is at risk because of the way the Department of Justice is now enforcing the Foreign Agent Registration Act (FARA).
Take the case of United States v. Sue Mi Terry, involving a former CIA analyst who reached the top echelons of this world before being cast in a lurid indictment as a “foreign agent.” As explained at length below, the Justice Department’s case against Dr. Terry is shockingly weak. If not completely wrong-headed to try to criminalize the conduct at issue (which I argue it is), the DOJ’s action is at best an overly aggressive enforcement action that is in no way worth the chilling effect it can have on scholars across this space.
To succeed in the think-tank universe, experts must be in touch with many sources for up-to-the-minute information. One must maintain close associations and good connections — with American officials as well as with foreign officials — to speak or write authoritatively about any given situation in the world. Timeliness of information is of greatest importance when appearing on television. No one wants stale information when it comes to cable news. Those skill sets, particularly when it comes to sourcing with foreign contacts, could now become grist in the mill for overly ambitious prosecutors.
I know what that’s like.
After serving in the executive branch several times — including as Assistant to President Bill Clinton and later as President Barak Obama’s White House Counsel — I became an attorney in the private sector. While working for the law firm Skadden Arps, I engaged in consultancy for the Ukrainian government, resulting in my prosecution and eventual acquittal. The Southern District of New York, the same district that now has Dr. Terry in its crosshairs, declined to indict me in 2018, when U.S. Attorney Geoffrey Berman led that office. In his memoir entitled, “Holding the Line,” Berman wrote that he found that I committed no FARA offense, but Justice Department official Ed O’Callaghan pressured him to indict me to “‘even things out’ and go after some Democrats” during the height of the Mueller investigation before the 2018 midterm elections. “DOJ’s rationale had nothing to do with evidence or law,” Berman explained.
In my case, D.C.-based prosecutors took up the case instead, but a jury saw through the gambit, in a major defeat for the Justice Department’s FARA clampdown.
A Short History of FARA
FARA defines a foreign agent as someone who “acts at the order, request or under the instruction or control of a ‘foreign principal.’” The Second Circuit, however, believes that a “foreign agent” need do nothing more than respond to a foreign principal’s request – for information, for a meeting, for an introduction – to require registration. Failure to do so can result in serious consequences including criminal prosecution, a fine, and a jail term. The ease with which an American citizen – such as a researcher or scholar working in a foreign policy think tank, someone who as part of their job routinely communicates, meets and socializes with foreign officials and representatives of foreign entities – can be deemed to be a foreign agent requiring registration under FARA will come as an unpleasant surprise to most denizens of the think-tank world in Washington, DC and New York. Why not just register out of an abundance of caution? Erring on the side of registering as a foreign agent for routine source cultivation and the like would carry an intolerable professional stigma. And, indeed, if everyone who fell into this category registered, it would likely rid FARA of its value.
Enacted in 1938 to expose Nazi propaganda, FARA has been amended many times and “revived” almost as frequently. For most of its history, the statute’s enforcement has ranged from stagnant to non-existent. That is, in part, because the definitions of “foreign agent” and “political activity” are widely recognized as being overly broad. Enforcement has been uneven, even abusive as when W.E.B. Dubois was prosecuted as an unregistered foreign agent in 1951, and later acquitted at trial.
A small office in the criminal division of the Justice Department keeps the registration statements, makes them available for public inspection and sends out letters of inquiry when the office learns of activity that might require registration. In a few egregious cases of gross misconduct, such as Paul Manafort’s activities on behalf of the Government of Ukraine between 2009 and 2015, prosecutions, trials, convictions and jail terms have resulted, but successful prosecutions for FARA violations have been few and far between, and high visibility acquittals have embarrassed the Department.
Terry’s Speaking Indictment
On July 15, 2024, on the same day of Senator Bob Menendez’s conviction, the Justice Department unveiled a 31-page indictment revealing what appears to be a far weaker FARA case against Dr. Sue Mi Terry, a well-respected think-tank expert on U.S.-Korea issues. Prosecutors allege that Terry engaged in a ten-year illegal conspiracy to violate FARA by failing to register as a foreign agent while working with one of America’s closest allies in the world, the Republic of (South) Korea (ROK). This indictment not only represents an abuse of the FARA statute that will likely result in an acquittal, it also represents a grotesque example of using irrelevant information to over-charge a case with the purpose or effect of shaming, humiliating and destroying an individual who in the eyes of the law, must still be presumed to be innocent. The indictment reads like a chapter from Bourne Identity. Rule 7 of the Federal Rules of Criminal Procedure requires an indictment to be “a plain, concise, definite written statement of the essential facts constituting the offense charged.” That is not this indictment.
Instead, the Justice Department unveiled a sprawling, repetitive narrative known as a speaking indictment. Though increasingly common in high-profile cases, including Manafort’s and Menendez’s, speaking indictments risk compromising the presumption of innocence in the public eye and among potential jurors. The Terry indictment reads like an illustrated spy novel, complete with grainy and surreptitious photos with her foreign “handlers.” The indictment tells a story of intrigue and conspiracy, of deceit, corruption and betrayal likened to a tale of Benedict Arnold. It details many meetings with Korean officials and – for those in the media who like to look at pictures – includes surveillance photographs of Terry having lunch with South Korean officials at an “upscale” restaurant in Manhattan and a South Korean official purchasing an expensive handbag as a gift for Terry in a high-end outlet in the environs of Washington, D.C. (a $2,950 Bottega Veneta handbag in one instance and a $3,450 Louis Vuitton handbag in another).
Unless one believes that Terry acted as a foreign agent in exchange for such trinkets and high-end meals, many of the factual allegations are irrelevant to the core issue of the case; they appear gratuitous and prejudicial, once again with the aim or effect of besmirching Terry in her professional circle — and worse, poisoning the potential jury pool. By embedding these photographs in the indictment, prosecutors made it easy for any newspaper or TV station to spread the supposedly incriminating images. This is all before any jury has decided her guilt or innocence, and before defense counsel have an opportunity to ask a judge to exclude such information from trial. Boiled down to its essence, the indictment alleges that Terry was a “foreign agent” within the meaning of the FARA statute and failed to comply with the registration requirements of the law; she did not fill out and file the requisite government form.
The structure of this indictment is a shameless effort by the Justice Department that inflames the public, and in this respect, the SDNY prosecutors are little different from Donald J. Trump. During the early days of Trump’s criminal prosecutions, Americans learned about the purpose of gag orders issued by trial judges aimed at controlling Trump’s public comments about the case. Americans understood and accepted the idea that the court can and should take action to prevent a bullying defendant using his large bully pulpit to intimidate or influence court personnel, potential witnesses in the case, and members of the jury pool. In the Terry case, prosecutors have engaged in similar Trumpian tactics.
Beyond Spy Fiction
Popular misconceptions aside, FARA does not criminalize working for a foreign principal. There is nothing wrong with that, and numerous professions that involve such relationships have nothing to do with espionage. It is not a crime to assist a foreign government, to be paid by a foreign government, or even to take orders and instruction from a foreign government. The essence of the FARA crime is to do all that without disclosing the relationship to the Department of Justice.
None of the many acts listed in the indictment as seemingly blameworthy is actually illegal. At the heart of this case, Terry is charged with being a foreign agent and, knowing that she was a foreign agent, knowing that she was required to fill out a form telling the Justice Department that she was a foreign agent, she failed to fill out the form. That is the core misconduct alleged in this indictment.
But the indictment alleges much more than that:
The indictment alleges that Terry was “a valuable source of ‘information’ for the ROK (Republic of Korea)” as if she were giving the South Koreans classified information or top-secret documents. The truth is that the prosecutors do not allege that Terry compromised national secrets. She is accused of providing a South Korean official with “non-public government information” – an ominous sounding category that prosecutors do not explain – but there is no basis to believe that she actually engaged in espionage.
Prosecutors also allege, as though it is necessarily blameworthy or demonstrates a foreign agent relationship, that Terry received the South Korean government’s “talking points” (I’d bet many other analysts and journalists did too), that these particular talking points involved intelligence information about Kim Jong Un’s overseeing military tests and she then wrote about that information (I’d bet other analysts would readily accept such information from a major U.S. ally, and write about that information too), and that she arranged meetings for South Korean officials with U.S. counterparts (par for her profession, albeit here the former included intelligence officials).
The indictment informs the reader that Terry told the FBI she made “mistakes” and that she said “her conduct was ‘bad’” – but exactly what mistakes and which conduct is conspicuously omitted. If it turns out Terry was not referring to the criminal conduct at issue, (namely the failure to fill out the forms), the DOJ should be admonished.
What’s more, despite alleging that South Korea “repeatedly rewarded Ms. Terry for her services,” those rewards seem relatively meager for a professional of her stature. Over a ten-year period, Terry allegedly received gifts of two expensive handbags and a coat, and one of her think tanks received $37,000 from the South Koreans to pay for a public policy program that involved congressional staffers, think tank scholars, US government officials and South Korean officials. Prosecutors have not claimed that any of the $37,000 went into Dr. Terry’s pocket. That plus an alleged $500 payment for an op-ed (perhaps the most incriminating evidence against her, because it is abnormal for payment for such work to be organized by a foreign official) is the sum total of the benefits Terry is alleged to have received by virtue of her serving as a foreign agent for the South Koreans for ten years.
Although the indictment alleges that Terry engaged in a conspiracy for ten years — from 2013 to 2023, prosecutors do not allege that she received anything of significant value until November 13, 2019, some six years after the alleged conspiracy came into being, when she received the handbag and a coat as a gift from her South Korean contact. But wait, there’s more. She is also alleged to have had dinner and drinks paid for by ROK officials in August 2020, seven years into the alleged conspiracy. The now-widely published photographs of Terry and alleged South Korean operatives are all dated 2020 or later.
Precious little coverage of Terry’s indictment treated the timeline and allegations with skepticism, reflecting an unholy alliance between the media and the Justice Department when it comes to reporting allegations of crime brought against individuals presumed to be innocent until found guilty by a jury. Too frequently, DOJ includes superfluous and irrelevant information in an indictment with no apparent purpose other than to hurt the defendant – and, whatever the outcome of the case might be, the result is todestroy that person’s life. Too frequently the news media are uncritical in reporting the DOJ’s allegations – some of which have nothing to do with the alleged criminal conduct – and write headlines that obliterate the defendant’s private life and public reputation. That is what happened here: “Sue Mi Terry Accused of Spying for South Korea” (USA Today); “Alleged Korean spy Sue Mi Terry held Washington ‘happy hour’ for agents, wrote propaganda with husband: indictment” (New York Post); “New Yorker and ex-CIA analyst arrested for working as South Korean spy” (New York Daily News).
At this moment in the life of a criminal case, the defendant is utterly defenseless to the variety of colorful attacks that prosecutors launch by way of the indictment, and whatever the merits of the case itself may or may not be, the defendant’s family life is forever disrupted, her public reputation and employment destroyed. The stigma lasts forever. The court in this case should do something about it.
As to the FARA issues, Terry will have many defenses, but it will take time for the case to go to trial.
At the outset, the prosecution will have to establish that she is not covered by an exemption to FARA which provides that persons engaged “only in activities in furtherance of bona fide … scholastic [or] academic pursuits …” are exempted from registering. They will also have to show that she was not engaged in “defense of a foreign government vital to U.S. defense,” another legal challenge to the indictment that could result in instant dismissal. It is beyond dispute that South Korea is a foreign government unquestionably “vital to U.S. defense.”
The prosecution will have to prove that Terry actually engaged in activities that did in fact make her a foreign agent for the South Koreans. That she responded to various requests from South Korean officials – as alleged in the indictment — seems indisputable, but she frequently spoke and wrote critically of South Korean government policies. That fact should shed some light as to whether she was truly acting as an obedient agent of the South Korean government.
The prosecution will also have to show that she knew that she should register under FARA and knowingly chose not to do so. The indictment points out that Terry clearly knew that she had not registered under FARA but prosecutors will need to establish that she knew she should register and intentionally did not do so. It is noteworthy that, according to the indictment, she met with the FBI on two occasions to discuss her relationship with the South Koreans, once in 2014 and once in 2023. This suggests that the FBI had her in their sights for many years but may have never informed her that she should register. (Indeed, a section of the indictment appears to list all “repeated reminders of FARA obligations” that Terry received, but none from the FBI in these meetings about her relationships with the South Korean intelligence officials). There is also no indication that the FBI notified the FARA office in DOJ about her activities, that a Letter of Inquiry was ever issued by the FARA office – which is the usual enforcement path – or that she was given an opportunity to self-correct her alleged failure to register (another ordinary step).
I have met Dr. Terry only once in my life. But over the years, I have seen her speak in think tank programs, and I have read her articles in Foreign Affairs. She is a true and proven expert about a region of the world that poses great danger to the security of the American people. She seems knowledgeable, professional and highly motivated, but her wisdom may be lost to us in the future. So too for other experts now chilled by the DOJ’s actions. This indictment will change Terry’s life forever. She may emerge from the case with an acquittal — I hope that is what happens if this indictment is basically all the DOJ has to allege — but no matter what the outcome might be, irreversible damage has been done to this person’s life. She will never fully recover. I know this to be true.