In a memorandum published on February 5, 2025, newly confirmed Attorney General Pam Bondi announced sweeping standards for the Department of Justice’s (DOJ’s) exercise of prosecutorial discretion and charging decisions. The memorandum also sets forth changes to certain DOJ enforcement priorities, including, but not limited to, the Foreign Agents Registration Act (FARA). In particular, it deprioritizes enforcement of FARA and other foreign influence laws. The announcement comes just weeks after the DOJ issued a Notice of Proposed Rulemaking (NPRM) proposing various revisions to the regulations expanding the application of FARA (which was discussed in Skadden’s January 2025 client alert “Department of Justice Proposes Amendments to Regulations Implementing Foreign Agents Registration Act”).
Notably, the memorandum limits the use of criminal charges under FARA and 18 U.S.C. § 951 (a statute closely related to FARA) to “instances of alleged conduct similar to more traditional espionage by foreign government actors.” The memorandum further scales back FARA enforcement by dismantling the Foreign Influence Task Force and directing the Counterintelligence and Export Control Section, which houses the FARA Unit, to focus on civil enforcement, regulatory initiatives and public guidance.
The enforcement shift toward traditional espionage contrasts with the expansion of FARA in recent years, including through the DOJ’s focus on less traditional means of potential foreign influence, such as sovereign wealth fund and foreign investment activity in the U.S. The reversion to traditional espionage is also a departure from the DOJ’s broad application in recent years of FARA to prominent business individuals with concurrent ties to U.S. presidential administrations and foreign governments.
While the memorandum’s impact on the NPRM remains to be seen, it seems unlikely that Attorney General Bondi will read the proposed changes as advancing the DOJ’s new enforcement priorities, especially since the NPRM’s most significant changes pertain to expanding FARA’s application to certain commercial activity. Much will turn on how the memorandum is implemented within the DOJ. For instance, it is possible that the DOJ will use the NPRM as an opportunity to conform FARA’s regulations to Attorney General Bondi’s vision of the statute. If that is the case, the DOJ may be more receptive to comments that align FARA’s regulations to the memorandum’s priorities.
FARA civil enforcement is currently limited to injunctive relief. However, recent bills proposed in Congress would provide more enforcement tools to the DOJ, including the ability to issue civil investigative demands and impose civil penalties without proving a willful violation. Given its emphasis on civil enforcement, this memorandum may revive congressional efforts to expand civil enforcement tools under FARA. Absent such changes, and without facts of traditional espionage, the DOJ will be limited to seeking a court order for an injunction when bringing a civil complaint under FARA.
We will continue to monitor the DOJ’s FARA guidance and implementation (see our February 7, 2025, client alert “Attorney General Issues New Policy on Prosecutorial Discretion and Enforcement Priorities”), as well as the status of the NPRM. Please contact us with any questions.
This memorandum is provided by Skadden, Arps, Slate, Meagher & Flom LLP and its affiliates for educational and informational purposes only and is not intended and should not be construed as legal advice. This memorandum is considered advertising under applicable state laws.