Appeals court mulls whether to revive Wynn FARA case

From: POLITICO Influence - Tuesday Nov 14,2023 11:03 pm

Nov 14, 2023

Presented by CTIA Wireless Foundation

With help from Daniel Lippman

FARA TUESDAY: A federal appeals court this morning wrestled with whether to revive the Justice Department’s bid to force casino magnate Steve Wynn to register as a foreign agent of the Chinese government, after the department’s previous effort to do so was tossed because of decades-old legal precedent that bars DOJ from requiring foreign agents to retroactively register once they are no longer performing that work.

— DOJ sued the GOP megadonor and Donald Trump ally last year in an effort to force Wynn to register as a foreign agent for seeking to persuade the Trump administration to extradite the billionaire Chinese fugitive Guo Wengui in 2017.

— A U.S. District Court judge dismissed the case last October in a ruling that could deal a major blow to U.S. efforts to expose foreign influence campaigns, arguing that because Wynn’s alleged relationship with Beijing had concluded, his hands were tied by a 1987 ruling from the D.C. Circuit Court that a foreign agent’s obligation to register “expires when the agent ceases activities on behalf of the foreign principal.”

— Today, DOJ attorney Joseph Minta sought to convince a three-judge panel in the D.C. Circuit Court of Appeals that Congress did in fact intend for the Justice Department to have the ability to compel retroactive FARA registration when it was writing and updating the World War II-era law, but members of the panel appeared divided as to how to proceed.

— Circuit Court Judge Patricia Millett, a Barack Obama appointee, grilled Minta on DOJ’s assertion that a plain text reading of the avenues for civil relief for FARA violations indicates it applies even to those who are no longer acting as foreign agents. “There’s no language here at all that suggests retroactivity,” Millett said, particularly given the so-called McGoff precedent.

— “For the purposes of enjoining someone to comply” with FARA’s disclosure requirements, “it says you may enjoin an agent of a foreign principal,” Millett added. “You are asking a court to enjoin — right now — someone who is not, at the time of the injunction, an agent of a foreign principal.”

— An attorney for Wynn sought to poke holes in Minta’s textual analysis of the statute as well. “I think that the language … is very clear, over and over and over again through the repeated use of the present tense,” Robert Luskin argued, describing the text as an “indicator of the intention that it be applied presently and prospectively, but not retroactively.”

— Judge Cornelia Pillard also pointed to FARA’s requirement that foreign agents retain records relating to their activities for at least three years after ceasing to act as a foreign agent, which appears “to support the notion that Congress wasn’t contemplating an indefinite obligation” to register, she said.

— Beyond the textual analysis of the law, Minta argued that upholding the lower court’s dismissal of the Wynn case takes away a key tool for shedding light on foreign influence efforts, a contention that appeared to gain traction with two of the other judges on the panel.

— “The District Court’s interpretation is contrary to the purpose of FARA, which is ensuring disclosure of foreign efforts to influence U.S. policy,” Minta told the panel.

— “It does seem potentially dysfunctional” for a foreign agent’s disclosure obligations to cut off once that relationship has ended, noted Pillard, who also pressed Minta on the value of learning more about Wynn’s alleged activity on China’s behalf after the fact. “Typical circumstances may have changed” with regard to FARA’s utility, she added, “given the internet and how information has a much longer half-life than it did at the time” of the McGoff ruling.

— Pillard, who is also an Obama appointee, zeroed in on how the existing precedent creates a longer statute of limitations for criminal FARA prosecutions, arguing that “there’s something perverse” about that “when the core interest in the statute is in the disclosure.”

— Wynn’s lawyer pushed back on that line of thinking. “The public interest, once an individual has ceased to act as an agent is significantly attenuated,” Luskin argued, pointing out that much of FARA’s disclosure regime “revolves around contemporaneous disclosure.”

— The remaining jurist in today’s oral arguments gave even fewer indications as to how she’s leaning in the case. Judge Karen Henderson, a George H.W. Bush appointee, spoke up just a few times during the session.

— But she appeared very interested in the progress of a potential escape hatch for the court, asking Minta about the status of legislation introduced over the summer to close the Wynn loophole — potentially tipping her hand by referring to the bipartisan bill as one “trying to fix the McGoff problem.”

Happy Tuesday and welcome to PI. Send tips: coprysko@politico.com. And be sure to follow me on X, the platform formerly known as Twitter: @caitlinoprysko.

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CTIA Wireless Foundation is at the forefront of social innovation powered by wireless. Its signature initiative, Catalyst, is a grant program accelerating mobile-first solutions to pressing challenges in American communities. The Catalyst 2023 Winners are using 5G to address cyberbullying, education inequities and veterans’ mental health. Learn more.

FIRST IN PI — HARRIS GETS BACKUP FROM LEFT: A coalition of left-leaning labor groups, tech watchdogs and civil society organizations is deploying a little positive reinforcement, praising Vice President Kamala Harris for her emphasis on addressing the near-term threats of the proliferation of artificial intelligence over the more abstract existential warnings being issued by groups aligned with the effective altruism movement.

— “As you astutely noted in your recent remarks at the U.S. Embassy in London, the harms are not only hypothetical or occurring in a far-off future; they are happening right now,” the Tech Oversight Project, Demand Progress, Fight For The Future, the Institute for Local Self-Reliance, the American Federation of Teachers, National Education Association, Public Citizen and Public Knowledge said in a letter to Harris yesterday.

— The groups praised Harris’ “leadership on this important issue,” and pledged “to amplify, support, and work together” with Harris “on future efforts.” The letter offers Harris cover for a new part of her policy portfolio from several key liberal groups, a constituency with whom the vice president has not often been on the same page throughout her political career.

— “We are encouraged by the imperative set in your speech to move swiftly to advance policies that make A.I. safer for communities across the globe,” the coalition wrote, praising her mentions of ways that the technology is already equipped to pose threats to vulnerable communities, like seniors, women and minorities. “These stories need to be shared, so policymakers can take action that prevents similar harms from happening in the future.”

A NEW PRIORITY FOR PRIORITIES: “Priorities USA, one of the biggest liberal super PACs, will not run a single television advertisement in the 2024 election cycle,” per The New York Times’ Rebecca Davis O’Brien.

— “Instead, the group announced Tuesday, Priorities USA is reshaping itself as a digital political strategy operation, the culmination of a yearslong transition from its supporting role in presidential campaigns to a full-service communications, research and training behemoth for Democrats up and down the ballot.”

— “The move reflects a broad shift in media consumption over the past decade, away from traditional broadcast outlets and toward a fragmented online world. It also shows the growing role played by big-money groups in shaping campaigns and American political life: Priorities USA says it will spend $75 million on digital ‘communications, research and infrastructure’ in the next year.”

— Priorities “said it was developing relationships with influencers and other ‘content creators’ to spread campaign messages on platforms like TikTok. The group has also been working on ‘contextual targeting,’ which it defined as presenting ads to voters based on what they were watching on their devices at any given moment.”

— Though “the organization is essentially without peer or competitor in its new role,” Executive Director Danielle Butterfield “likened its new focus to that of the Center for Campaign Innovation, a conservative nonprofit group — not a super PAC — that is focused on digital politics.”

NRSC HITS RICK SCOTT OPPONENT WITH FEC COMPLAINT: “The Senate Republicans’ official campaign arm in Washington is filing a complaint alleging that the Republican challenging GOP Sen. Rick Scott in 2024 used businesses he owns to make impermissible contributions to his campaign,” NBC News’ Matt Dixon reports.

— “The complaint from the National Republican Senatorial Committee is hitting Keith Gross, a Panama City, Florida, businessman and attorney who has said he would spend millions of dollars from his personal wealth to try and defeat Scott, a first-term senator and former two-term Florida governor.”

— “The basis for the complaint stems from campaign finance reports in which Gross lists debts owed to Pure Blue and 1954 Capital Partners LLC, two companies he owns. Gross lists owing $13,500 to the first for business rentals and $12,600 to the second for aircraft rental.”

— “‘Federal law prohibits corporations, such as Pure Blue Inc. and likely 1954 Capital Partners LLC, from making contributions to Federal candidates,’ the complaint said. ‘If a corporation makes its resources available to one candidate for free, it must do so for all candidates.’”

— “‘In sum, Gross’ campaign owes tens of thousands of dollars to corporation(s) owned and managed by Gross,’ it said.” In response, Gross called the complaint “entirely baseless. The expenses in question are completely legitimate and have been paid in accordance with FEC guidelines. This is typical swamp politics and the voters see right through it,” he told NBC.

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Jobs Report

— Matthew Lane has joined Fight for the Future as senior policy counsel. He was previously a senior director at InSight Public Affairs.

— William Crozer has been named co-head of BGR Group’s state and local advocacy practice.

— Mike Abboud has joined Targeted Victory as a managing director on the public affairs team. He most recently was national press secretary for former Speaker Kevin McCarthy’s political operation and served as press secretary at the EPA during the Trump administration.

— Sarah Selip has relaunched the boutique conservative PR firm 917 Strategies. She most recently was communications director for Rep. Ronny Jackson (R-Texas) and is a Jody Hice alum.

— Molly Drenkard is now vice president of public affairs at the National Marine Manufacturers Association. She most recently was director of corporate communications at Anheuser-Busch and is a Cathy McMorris Rodgers (R-Wash.) alum.

— Richard Whitt is returning to NetsEdge LLC as a consultant, per Morning Tech. He’s currently senior vice president of government relations and public policy at Twilio.

— Adam Bozzi is launching Anticipate Public Affairs, a strategic comms and public affairs firm. He most recently was senior adviser for the Democratic staff of the House Administration Committee and is an End Citizens United, Sen. Michael Bennet (D-Colo.) and Sen. Jack Reed (D-R.I.) alum.

— Nicholas Kowalski is launching Vantage Point Public Affairs. He previously led Twenty20 Strategies.

— Peter Colavito is joining Invest in Our Future as executive director. He previously was an adviser, working with the Service Employees International Union, Natural Resources Defense Council, the Open Society Foundations and the ACLU.

— Andrew Kilberg has been promoted to partner at Gibson Dunn.

— Lockheed Martin named Christina Mancinelli its vice president of space security, cyber and analytics within the business’ national security space unit. She was the director of national critical systems.

— Intelsat named David Broadbent its new head of government business. He was president of the space systems unit at RTX.

A message from CTIA Wireless Foundation:

Innovative social entrepreneurs are taking advantage of the power of wireless and 5G’s speed, efficiency, and versatility to create groundbreaking solutions. CTIA Wireless Foundation’s Catalyst program awards over $200,000 each year to social entrepreneurs using wireless for good. The Catalyst 2023 Winners – ReThink, Dope Nerds and Healium – are using 5G to combat online harassment, provide STEM education to underserved students and deliver veteran mental health services. CTIA Wireless Foundation is committed to supporting social entrepreneurs that may face barriers to accessing capital, and the Catalyst 2023 winners have lived experiences with the issues they are working to solve, giving them the perspective and passion needed to make a difference. CTIA Wireless Foundation is proud to support the trailblazing, mobile-first work of the 2023 Catalyst Winners. Learn more.

New Joint Fundraisers

None.

New PACs

Americans United for Liberty and Truth (Hybrid PAC)

BEEHIVE VALUES PAC (Super PAC)

Facts4Peace (Super PAC)

The Future - Today & Tomorrow (Super PAC)

SCREAMING EAGLE PAC INC. (Super PAC)

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New Lobbying REGISTRATIONS

Acorn Consulting: Blue Sky Infrastructure, LLC

Acorn Consulting: Nisource Inc.

Acorn Consulting: Southland Holdings, LLC

Acorn Consulting: Tallgrass

Becker & Poliakoff, P.A.: Clean Refineries Inc.

Becker & Poliakoff, P.A.: Emergency Sandbag Response, Inc.

Becker & Poliakoff, P.A.: Langton Associates Inc. (On Behalf Of City Of Jacksonville, Fl)

Becker & Poliakoff, P.A.: Okeechobee County, Fl

Becker & Poliakoff, P.A.: Ptubes, Inc.

Becker & Poliakoff, P.A.: Terumo Blood And Cell Technologies

Cfm Strategic Communications (Conkling Fiskum & Mccormick): Clatsop County