On July 15, 2024, the U.S. Attorney for the Southern District of New York secured a criminal indictment charging Sue Mi Terry, a policy expert on Korean affairs and a former official with the Central Intelligence Agency and National Security Council, with failing to register under the Foreign Agents Registration Act (FARA) and conspiring to violate FARA. The indictment alleges that after leaving government service, over the course of a decade, Terry supposedly worked at the direction of individuals in the Republic of Korea's (i.e., South Korea's) National Intelligence Service (ROK NIS), accepting gifts and "think tank" public policy program funding in exchange for advocating for ROK policy positions in the U.S. media, facilitating contacts between ROK NIS and U.S. officials through think tank events, and disclosing to ROK NIS nonpublic information that Terry learned from U.S. government officials. The prosecution is the latest example of the Department of Justice's (DOJ) robust enforcement of potential FARA violations, and a stark reminder of FARA's reach far beyond traditional lobbying activity.
The indictment does not actually charge Terry with espionage. Nor does it charge her under 18 U.S.C. § 951 — sometimes referred to as "espionage-lite" — for acting as an undisclosed foreign agent at a foreign government's direction. Instead, DOJ charged Terry only with failing to register as a foreign agent under FARA and for conspiring to fail to register.
As we have written, Section 951 and FARA "share the broad goal of limiting covert foreign malign influence in the United States, but they take different tacks to accomplish this goal." FARA is essentially a "sunshine" law that promotes transparency and does not actually prohibit acting as a foreign agent. It merely requires U.S. agents of foreign principals (including private commercial entities) to register with DOJ's FARA Unit before undertaking efforts to influence U.S. officials or the American public about U.S. policy or foreign interests. FARA defines "agency" more expansively than Section 951's focus on a foreign government's "direction or control," because FARA "extends to persons acting at the foreign principal's 'request' (a statutory term that has yet to be fully defined by the courts.)" This looser definition of "agency" may partly explain DOJ's decision to charge Terry under FARA rather than Section 951.
Criminal prosecution for failing to register under FARA requires proof that the defendant "willfully" failed to do so. In Bryan v. United States, 524 U.S. 184 (1998), the Supreme Court held that, for most criminal statutes, proving "willfulness" requires proving that a defendant acted at least with a "bad purpose" and the knowledge that his or her conduct was illegal — although not necessarily knowledge that the conduct violates the specific criminal statute at hand. Courts also routinely instruct juries that "good faith" is a defense to willfulness.
DOJ's FARA Unit encourages voluntary registrations, even belated ones, and typically pursues legal proceedings only after giving potential registrants advanced notice that DOJ believes that they must register, such as through notices of deficiency and non-compliance. It is not apparent from the indictment whether DOJ affirmatively encouraged Terry to register; if it did not, this would be more consistent with a traditional espionage investigation than one solely animated by FARA's pro-transparency policy.
Ultimately, the indictment reinforces several important lessons for foreign governments, businesses, and other entities and individuals doing business in the United States. First, FARA covers a broad range of efforts to shape U.S. policy and public opinion, and not just traditional lobbying activities. For example, the indictment features allegations about the use of think tank meetings and other private forums to promote ROK goals and engagement between ROK NIS officials and U.S. private sector leaders. Second, FARA applies to agents for foreign principals from any country, including longstanding U.S. allies such as South Korea — not just nations that are openly hostile to the United States. Finally, the case reinforces the increasingly robust state of FARA enforcement and the need for U.S. operations by commercial, academic, nonprofit, and other institutions with foreign funding or other foreign control to integrate FARA into their organizational compliance programs.
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