Statement of Ranking Member Jerrold Nadler for the Markup of H.R. 4170, the “Disclosing Foreign Influence Act”

Jan 17, 2018 Issues: Law Enforcement, Civil Liberties

H.R. 4170, the “Disclosing Foreign Influence Act,” appears to be a good faith attempt to strengthen the Department of Justice’s ability to enforce the Foreign Agents Registration Act of 1938, or FARA.  Under FARA, an “agent of a foreign principal” must register with the Department, file any informational materials that he or she has distributed within the United States on behalf of a foreign principal, and maintain records of his or her activity.

Among other things, the bill amends FARA to eliminate an existing exemption for individuals who have already registered as lobbyists pursuant to the Lobbying Disclosure Act of 1995.  It also gives the Department of Justice the authority to issue civil investigative demands, or CID’s, which are effectively administrative subpoenas that the Department may issue to demand documents, interrogatory answers, or oral testimony from any persons with information relevant to an investigation.  The bill’s CID provision appears to be substantively similar to the CID provision in the False Claims Act.

I appreciate the work that Representative Mike Johnson has put into crafting this legislation and I share the goal of ensuring that FARA is enforced properly.  It is understandable why many public interest groups would support this bill, including many that I admire and respect.

H.R. 4170, however, is not yet ripe for markup, as it might raise several constitutional and policy questions that should give us some pause before we move forward.   I note that the House Judiciary Committee has held no legislative hearing on this bill and does not appear to have held an oversight hearing on FARA since 1991.  By bringing this bill straight to markup without a hearing, the Majority has made it very difficult to determine the extent of these concerns or whether or how any of them can or should be resolved.  A hearing on this bill is critical for Members to fulfill their obligations to legislate properly.  There are also other proposals like a bill offered by Mr. Cicilline.  We should explore various options before deciding on a course of action.  There is no good reason not to have a hearing, and proceeding without one risks unintentionally introducing new errors into current law.

Turning to the substance, H.R. 4170’s CID provision may raise Fourth Amendment and other constitutional concerns.  We have heard informally from the American Civil Liberties Union, the Center for Democracy and Technology, and the National Association of Criminal Defense Lawyers, that the use of CID’s may effectively be an end-run around the Fourth Amendment, particularly where, as in the case of FARA, criminal prosecution and sanctions may result from an investigation.

To obtain documents and other evidence in a criminal investigation, law enforcement officials must get a search warrant issued by a judge after a showing of probable cause that a crime was committed, and that items connected with a crime are likely to be found at the location specified in the warrant. The CID language in H.R. 4170, however, appears to allow law enforcement to obtain such items without any prior judicial authorization, thereby circumventing an important constitutional limit on governmental authority.

I recognize that the bill’s CID provision was largely taken from a longstanding provision in the False Claims Act and I appreciate that it includes, and even builds upon, that statute’s procedural protections for the targets of CID’s.  I note, however, that the False Claims Act carries no criminal penalties and that False Claims Act investigations are purely civil in nature.  By contrast, FARA investigations may be criminal in nature when there has been an alleged willful violation.  Thus, the constitutionality of the use of CID’s in the False Claims Act context may not be the same as their use in the FARA context.

The bill may also raise potential due process concerns, for while the bill allows a target of a CID to have counsel present during oral testimony, it does not require that a target be informed of their right to have counsel. 

In addition, although a witness may refuse to provide testimony by raising his or her privilege against self-incrimination, the bill’s CID provision allows the Attorney General to seek a court order compelling testimony in response to the raising of such privilege if it is in the public interest to do so.  And such testimony may still be used to prosecute an individual for perjury or giving a false statement, if not for the underlying FARA violation.

Finally, I note that a coalition of non-profit groups that includes the American Bar Association and the International Center for Not-for-Profit Law have expressed concern about what they believe are FARA’s overly broad and vague definitions of “agent of a foreign principal” and “foreign principal.”  They believe that strengthening enforcement of FARA without addressing these concerns, together with the threat of threat of criminal penalties, risks chilling important civil society work both in the United States and abroad. 

While I make no final judgment on the merits of these and other concerns, it is worth our effort to hear them out before proceeding to markup, and a hearing would have been beneficial to that end. 

I would ask that we postpone today’s markup until we have the opportunity to hear from and examine outside experts and interested stakeholders on the record so that we can craft legislation that can truly have strong bipartisan support.

 

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