When the Trump Administration announced in February that the U.S. Department of Justice would deprioritize the Foreign Agents Registration Act (FARA), many organizations with foreign relationships breathed a sigh of relief. It seemed that years of aggressive interpretations and stepped up enforcement of the notoriously vague statute might be a thing of the past. But a series of recent developments suggest any sense of relief was premature.
A major announcement from the White House last week signals DOJ will continue to deploy FARA as a tool for investigating those with foreign ties, particularly within the nonprofit and philanthropic communities. The announcement comes on the heels of DOJ's FARA Unit quietly releasing a series of advisory opinions suggesting a significant shift in the way it interprets a heavily relied-upon exemption to FARA. Taken together, these developments should put businesses, nonprofits, and donors with foreign relationships on notice that DOJ is still prepared to flex its FARA muscles.
The White House About-Face on FARA
The most recent signal of renewed interest in FARA came as President Trump announced new measures designed to counter domestic terrorism and organized political violence. A National Security Presidential Memorandum directs the FBI’s National Joint Terrorism Task Force and its field offices (“JTTFs”) to investigate and prosecute groups that “foment political violence,” taking particular aim at nonprofits and other “institutional and individual funders” that “are responsible for, sponsor, or otherwise aid and abet” political violence and intimidation. It also specifically empowers the JTTFs to investigate “non-governmental organizations and American citizens residing abroad or with close ties to foreign governments, agents, citizens, foundations, or influence networks engaged in violations of the Foreign Agents Registration Act…by funding, creating, or supporting entities that engage in activities that support or encourage domestic terrorism.”
The announcement does not name specific targets, but its clear focus on the philanthropic community should put organizations, their donors, and their leadership on notice. For those with foreign relationships, the memo also sends a clear message: criminal enforcement of FARA is back on the table.
A Quiet Release of Aggressive DOJ Opinions
Meanwhile, DOJ’s FARA Unit has quietly issued a series of advisory opinions that suggest it is pursuing an aggressive new interpretation of an exemption to FARA registration widely relied on by businesses and nonprofits. The cache of advice – which was not published with other advisory opinions posted to the FARA Unit’s website and was located by Venable only through targeted keyword searches on DOJ’s website – show a change in the way the FARA Unit is analyzing the so-called “commercial exemption” under Section 613(d)(2) of the Act.
Generally speaking, FARA requires those engaged in certain political or quasi-political activities on behalf of a foreign government, political party, business, organization, or individual to register with DOJ and disclose the details of their work publicly unless one of several exemptions apply. What has long been known as the “commercial exemption” includes two distinct carveouts:
- Section 613(d)(1) exempts private, nonpolitical activities carried out in furtherance of a foreign principal’s bona fide trade or commerce not conducted on behalf of a foreign government or political party.
- Section 613(d)(2) extends the exemption to political activities—such as lobbying—provided the activity does not serve predominantly a foreign interest. DOJ regulations clarify that Section 613(d)(2) covers political activities conducted on behalf of a foreign corporation, provided those activities further bona fide commercial interests and are not “directed by” and do not “directly promote the interests of” a foreign government or political party.
Historically, DOJ’s analysis of the latter focused on whether foreign governmental influence or direction was present. But in recent years, the FARA Unit has sought to rebrand the carveout as the “domestic interest exemption” and with the new name, rethink how it is applied. The rebrand culminated when, in late 2024, DOJ released a long-awaited Notice of Proposed Rulemaking that proposed a dramatic change in its interpretation of Section 613(d)(2). Rather than focusing solely on foreign government direction or influence, the FARA Unit proposed to ask a different threshold question: Do the activities, based on the totality of the circumstances, advance U.S. interests or do they predominantly serve a foreign entity, whether public or private? Though on their face these alternatives seem binary, it is rarely clear when a foreign government intererst “predominates” a domestic one. Moreover, the new test would likely extend registration to those working with private foreign interests, redrawing registration lines that businesses and organizations have relied on for decades.
Ultimately, the advent of the second Trump administration seemed to stall the rollout of this test, as DOJ seemed to have little interest in moving forward with the rulemaking. But the recent drop of opinions suggest the FARA Unit is applying this analysis even without the imprimatur of adopted regulations:
- A U.S. nonprofit was ordered to register for overseas activities related to an international conference co-hosted with a foreign nonprofit. Despite no ties to a foreign government, the Department found the exemption unavailable because the activities would predominantly serve the foreign nonprofit’s interests.
- A U.S. individual advocating for environmental and clean energy initiatives on behalf of a foreign organization was required to register. The Department noted the activities “would only incidentally serve domestic interests.”
- The Department denied an exemption for advocacy on behalf of a foreign intergovernmental organization, reasoning: “No particular domestic impacts have been identified, and the efforts predominantly serve the interest of [IGO 1], a foreign one.”
- In contrast, a U.S. nonprofit and U.S. individual were allowed to rely on the exemption because their advocacy “directly advance[d] [U.S. Entity’s] objectives and focus[ed] entirely on addressing conduct and harms in the United States,” even though a foreign principal might benefit indirectly.
- The Department approved the exemption where joint commercial ventures between U.S. and foreign companies were found to balance foreign and domestic benefits: “Here, the two proposed joint ventures would collectively serve [U.S. Company] and [Foreign Company] about equally… Moreover, the joint ventures involve the establishment of manufacturing facilities in the United States.”
In each example, the Department treated the presence of a domestic interest as a threshold test in analyzing the commercial exemption. Where no clear domestic interest was identified—or where it was only incidentally served—FARA registration was required.
Given the evidence that DOJ is moving forward with the new interpretation, those working with foreign corporations, nonprofits, investors, or donors can no longer assume that Section 613(d)(2) will exempt their lobbying or advocacy efforts. These entities may instead need to consider registration under the Lobbying Disclosure Act (LDA) to avoid the burdens of FARA registration. And U.S. groups engaged in cross-border ventures may need to carefully document how their activities advance domestic—not just joint or foreign—objectives.
The Bottom Line: FARA Enforcement Remains a Live Concern
The White House’s announcement that it will use FARA to investigate groups it suspects of encouraging or funding domestic political violence and the release of these opinions suggest that the Administration and DOJ officials in the FARA Unit are aligned on aggressively interpreting and enforcing FARA. Companies and nonprofits should not assume the law has gone dormant and prepare for the executive branch to use FARA as a lever to investigate those with foreign relationships, and potentially extend the law beyond traditional national security threats to include a broader range of unregistered foreign influence activities.