With Daniel Lippman FARA FRIDAY: Jurors today cleared real estate investor and longtime Trump friend Tom Barrack of illegally acting as a foreign agent of the United Arab Emirates, dealing the Justice Department another stinging setback in its efforts to crack down on illicit foreign influence campaigns that some foreign-lobbying experts predicted could impact how the department employs a relatively novel approach to prosecuting such efforts. — “There's no question that this is a huge defeat for the Department of Justice,” said Rob Kelner, an attorney at Covington & Burling who advises clients on FARA. Paired with a judge’s recent dismissal of a DOJ attempt to force another prominent ally of former President Donald Trump to register as a foreign agent, Barrack’s acquittal “is going to force [DOJ] to go back to the drawing board and be dramatically more selective about the cases that they choose to prosecute,” Kelner predicted. — Barely three days after deliberations began, the jury acquitted Barrack of charges of acting as an unregistered foreign agent of the UAE as well as lying to investigators and obstructing their investigation. The jury also cleared Barrack’s former assistant Matthew Grimes of charges of acting as an agent of the UAE, following a nearly seven week trial that saw testimony from two former members of Trump’s Cabinet as well as Barrack himself. — FARA experts tracking the case weren’t surprised by the verdict, noting that the case was part of a relatively new legal strategy prosecutors have leaned on in recent years and that Barrack’s case in particular was based largely on circumstantial evidence in the form of reams of texts and emails. — As regular readers will recall, Barrack and Grimes were not charged with violating FARA but rather the statute known as Section 951, which has historically been used to prosecute cases of espionage. — DOJ has increased its use of the statute to bring cases outside of that context as part of its stepped up foreign lobbying enforcement, and while prosecuting 951 cases doesn’t require willful intent to break the law as a criminal FARA charge does, both statutes are viewed as vague and outdated in comparison to modern influence campaigns, leading to their lack of use by prosecutors until recently. — “These are flawed statutes, as I think juries are often recognizing, and and I don't think it's gonna be viable for the government to continue its foreign influence fighting campaign using these statutes in the same way that it has over the last few years,” Kelner said. — Tom Spulak, a lawyer at King & Spalding who advises clients on FARA, agreed, noting that in general “it's going to be hard to prove agency relationship in a lot of situations.” That task becomes tougher in political cases versus an instance where a government employee is directed to steal documents from a federal agency — imagery similar to that invoked by Barrack’s lawyers. — “Today’s verdict will not diminish the Department’s commitment in future cases to enforcing fairly and impartially laws designed to deter covert foreign influence on U.S. policy,” a DOJ spokesperson said. — But the government may be forced to retool its approach in doing so. “I think the department has viewed 951 as kind of an extension of FARA, and a catchall to bring or to try to prosecute foreign influence efforts,” Matt Sanderson, an attorney at Caplin & Drysdale , told PI. “I think what we learned today is maybe the scope of 951 isn't much different, or does not extend past FARA, so that it might not be as valuable a prosecutorial or enforcement tool as they originally thought.” — He added that it’s also possible the FARA Unit could shift its focus — at least temporarily — to lower-hanging fruit. That might mean more cases in which, unlike Barrack, a defendant doesn’t have longstanding ties to the region they’re accused of working on behalf of, or where prosecutors can point to the direct exchange of money in return for explicit directives from a foreign government. — David Laufman, a lawyer at Wiggin & Dana who previously oversaw FARA enforcement for DOJ, cautioned against drawing broad conclusions about the future of FARA enforcement based on DOJ’s recent legal setbacks. — “I'm doubtful that either of these outcomes … are going to result in some kind of thematic shift in enforcement priority or focus,” he said, arguing that each case will be reviewed on its own merits but that it’s likely going forward foreign lobbying cases will receive even greater scrutiny internally before charges are brought. Happy Friday and welcome to PI. Four days til Election Day. Breathe in through the nose, out through the mouth. Then send K Street gossip: coprysko@politico.com . And be sure to follow me on Twitter: @caitlinoprysko . FARA FRIDAY CON'T.: One of the numerous foreign influence bills introduced this fall could be slipped into annual defense policy legislation when lawmakers reconvene after the election to finish up the NDAA. — The PAID OFF Act, which would block lobbyists representing clients in countries deemed “foreign adversaries” from availing themselves of FARA’s commerce and LDA exemptions, was included in the manager's amendment to the NDAA that the Senate will take up later this month. — A source familiar with the negotiations told PI that there’s been a push to include the measure from Sens. John Cornyn (R-Texas), Marco Rubio (R-Fla.), Sheldon Whitehouse (D-R.I.), Bill Hagerty (R-Tenn.) and Deb Fischer (R-Neb.) in the final conference version of the bill, guaranteeing the FARA measure would make it to President Joe Biden’s desk. — The effort has hit a speed bump in the House, where Judiciary Chair Jerry Nadler (D-N.Y.) is holding the measure up. Leaders from both parties on the House and Senate foreign relations committees, as well as the Senate Judiciary Committee, have all signed off on the language, according to the source, as has the top Republican on the House Judiciary Committee, Jim Jordan (R-Ohio). — That leaves Nadler, the committee’s chair, as the lone holdout in greenlighting the FARA bill. Nadler’s office did not respond to requests for comment on his concerns with the measure. MUSK’S TWITTER LAYOFFS INCLUDE PUBLIC POLICY TEAM: “Elon Musk began firing hundreds of Twitter employees on Friday, four days before the midterm elections, including key members of the teams that work on U.S. elections and content moderation on the high-profile social-media platform,” POLITICO’s Samuel Stolton, Laura Kayali, Mark Scott, Rebecca Kern and Mohar Chatterjee report. — “Half of Twitter’s public policy team was cut,” including Michele Austin , the platform’s now-former director of public policy and elections in the U.S. and Canada. “Austin tweeted that she was in charge of helping lead the 2022 U.S. midterms policy on the platform. ‘I was responsible for social impact work in both countries,’ she tweeted in a thread on Friday.” — “Since buying Twitter last week, the tech billionaire has insisted that the company’s content-moderation and disinformation policies remain in force, and has sought to placate advertisers who were skittish about his promises to restore more free-wheeling content to its news feed.” — “Friday’s layoffs, however, appear to be adding fuel to the anxieties of both users and advertisers that Twitter is gutting its ability to keep tabs on who and what shows up on its platform. And the across-the-board cuts come just as the company’s moderation systems are expected to be tested during the midterms.” CORPORATE MONEY RESUMES FLOW TO ELECTION OBJECTORS: “After suspending donations to Republicans who voted against certifying the 2020 presidential election, a collection of PACs, including those of Amazon and Caterpillar, restarted contributions ahead of midterm elections in which the GOP is favored to win House control,” Roll Call’s Kate Ackley reports. — “Most business and industry political action committees that announced pauses after the Jan. 6, 2021, attack on the Capitol had already resumed giving to all lawmakers, including the 147 lawmakers who opposed certifying electoral votes from two states after the attack, Federal Election Commission filings show.” — “In total, company and trade group PACs donated more than $2.2 million to those 147 members in September and early October alone, according to a new analysis of FEC records by Accountable.us , shared first with CQ Roll Call. Since the Jan. 6 attack, business and industry PACs’ donations to those lawmakers have totaled more than $30 million, the group said.” — “The initial PAC freezes following Jan. 6, combined with a reduced number of in-person events because of the pandemic, led to a decline in donations from such coffers earlier in the election cycle. But by this fall, the fundraising scene had returned almost to normal.”
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