Are the Menendez and Cuellar FARA Charges Unconstitutional?
One of the most significant anti-corruption developments of 2024 has been the use of a previously little used statute, 18 USC 219, to prosecute members of Congress. In July, Senator Robert Menendez was convicted of conspiring to violate 219 and in April, Texas representative Henry Cuellar was charged with conspiring to violate 219. 219 criminalizes engaging in activity that would require registration under the Foreign Agents Registration Act (“FARA”). But members of Congress are not eligible to register under FARA. So under 219 they can be prosecuted for any FARA covered activity. This would not be a problem but for the fact that FARA is extremely broad and includes simply acting at the “request” of a foreign principal with no requirement of a bribe, quid pro quo, or violation of an official duty. This raises several troubling questions: Does a member of Congress commit a crime by supporting legislation, such as a foreign aid bill, at the request of a foreign leader such as Ukrainian President Zelensky or Israeli Prime Minister Netanyahu? Does the difficulty of answering this question mean that 219 is unconstitutionally vague?
FARA and 18 U.S.C. Section 219
FARA requires individuals and entities engaged in “political activities” in the United States “for or in the interests of” a foreign principal to register as foreign agents if they act “in any…capacity at the order, request, or under the direction or control, of a foreign principal….” “Political activities” is defined as “any activity that the person engaging in believes will, or that the person intends to, in any way influence any agency or official of the Government of the United States or any section of the public within the United States with reference to formulating, adopting, or changing the domestic or foreign policies of the United States or with reference to the political or public interests, policies, or relations of a government of a foreign country or a foreign political party.”
18 U.S. 219 makes it a crime for any “public official” to “act as an agent of a foreign principal required to register under [FARA].” “Public official” is defined broadly to include any “Member of Congress…or an officer or employee or person acting for or on behalf of the United States, or any department, agency, or branch of government thereof….”
In other words, a government official can be indicted for acting at the “request” of a foreign principal regardless of whether the official has acted improperly in any way. Given its astonishing breadth and vagueness, it is not surprising that despite being passed in 1966, there were no cases under 219 for over 50 years. But that has now changed.
Menendez and Cuellar
In October 2023, Menendez was charged in a superseding indictment with conspiracy to act as an unregistered agent of Egypt in violation of 219. In April 2024, Cuellar was charged with conspiracy to act as an unregistered agent of Azerbaijan in violation of 219. Menendez challenged the 219 charge, arguing that it violates the Constitution’s Speech or Debate clause (which provides that members of Congress “shall not be questioned in any other place” for speech or debate in Congress) and “unconstitutionally interferes with the separation of powers.” As counsel wrote “FARA’s sweeping language delegates to the Executive and Judiciary the power to supervise the daily functioning of the Legislative….Yet, the separation of powers compels the Executive and Judicial Branches to respect the independence of the Legislative Branch.”[1] The court rejected this claim, noting, among other things, that “Congress here has passed a law with a certain requirement for its Members – not to act as agents of a foreign government-and has explicitly empowered the Executive Branch to enforce that prohibition….the risks that any congressional work will be impaired or of presidential abuse are significantly mitigated by the fact that Congress can always amend the statute if it so chooses.”[2]
It remains to be seen what Constitutional challenges Cuellar may bring.
Void for vagueness?
One possible challenge, which was hinted at, but not raised explicitly by Menendez, is that Section 219 is void for vagueness. The Supreme Court has held that “the void for vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”[3]
As noted above, 219 creates the possibility that any Member of Congress who advocates for any legislation at the “request” of a foreign leader could be committing a federal felony. But can that really be the case? If so, isn’t almost every Member potentially subject to criminal charges every time they take a position on any issue as a result of a persuasive presentation by a foreign advocate? Is the term “request” limited in some way so as to prevent arbitrary enforcement? For example, is there an implicit requirement in 219 that the foreign principal’s influence be the decisive influence on the Member’s vote? Or that the “request” or the resulting action be in some way improperly motivated?
The statute yields no clear answers to these questions which go to the very heart of the offense. In an era of increasing concern on both sides of the aisle about weaponization of criminal justice Congress should act to either repeal or clarify this vague and potentially dangerous statute.
Partner, Squire Patton Boggs
[3] Kolender v. Lawson, 461 U.S. 352 (1983)