The US Attorney General has filed arguments in an appeal of a 2022 federal court decision that ruled casino mogul Steve Wynn is not required to register as a foreign agent.
In a brief filed on May 12 with the US Court of Appeals for the District of Columbia Circuit, the US Attorney General asks the appeals court to overturn the lower court’s ruling.
Last May, the US Department of Justice (DOJ) sued Wynn to compel his registration under the Foreign Agent Registration Act (FARA). Wynn, the DOJ argued, had lobbied the Trump Administration on behalf of the Chinese government in 2017.
However, Wynn (through his lawyers) denied acting as an agent of the People’s Republic of China (PRC).
In a decision handed down last October, US District Judge James E. Boasberg essentially sided with Wynn, finding the government had no legal authority to force retroactive FARA registration.
Notably, Boasberg’s ruling did not determine the truth of the foreign agent allegation. Instead, he based his decision on a determination that any contact Wynn may have had with PRC ended in 2017.
With the May 12 appeal, the US government is arguing Judge Boasberg ruled in error, and the judgment should be reversed.
Wynn Dismissal Creates ‘Opportunity for Gamesmanship’
The crux of the government’s argument in Friday’s filing is that Boasberg’s ruling created an obvious “opportunity for gamesmanship.”
In other words, why would individuals acting as foreign agents, particularly in the short term, register under FARA if a civil action is off the table once the relationship ends?
From the brief’s introduction:
The opportunity for gamesmanship is obvious: In this Circuit, foreign agents are now free to ignore FARA’s registration requirements secure in the knowledge that, once they have terminated their activities on behalf of a foreign principal, no civil remedy exists.
The result, argues the AG, is the district court’s decision renders FARA’s civil enforcement mechanism “toothless.”
The district court concluded that once an individual has ceased acting as an agent of a foreign principal, no civil suit can compel his delinquent registration. This was so, the court held, despite the fact that “even agents who have since ended their agency relationship but who never registered their activities are still in possession of information that FARA says the public needs.
The district court’s conclusion, the introduction continues, was “incorrect.”
Congress long ago acted ‘to remove any doubt as to the liability of an agent to file a registration statement for the period in which he was acting as an agent and thereafter has ceased such activity.’
… The plain language of the statute authorizes civil suits, such as this one, to compel registration even when an individual has ceased acting on behalf of a foreign principal.
The district court’s decision should be reversed.
Steve Wynn Allegedly Lobbied Trump for China
At its core, FARA exists to ensure any attempted foreign influence over US public policy is transparent.
During the timeframe Wynn allegedly acted for PRC, he held the finance chair of the Republican National Committee (RNC).
According to the lawsuit, Elliot Broidy, his RNC finance chairman predecessor, first approached Wynn.
Broidy had met with Sun Lijun, China’s vice minister of public security at the time, in May 2017. Then, in June 2017, Broidy asked Wynn to lobby then-President Donald Trump on the PRC’s behalf. Allegedly, Wynn was asked to request the return of a US-based Chinese dissident to Chinese soil.
Notably, Broidy pleaded guilty to conspiring to violate FARA in October 2020.
Additionally, in September 2022, Lijun received a death sentence (with a reprieve) for corruption and bribery. In this case, reprieve means though likely spared death, he will spend his life in jail, foregoing parole.
Wynn, the appeal alleges, agreed to schlep for China to court favor for his Macau-based casinos.
Friday’s court filing reads:
Wynn conveyed the request directly to the then-president over dinner and by phone.
He had multiple discussions with the then-president and senior officials at the White House and National Security Council about organizing a meeting with Sun and other PRC government officials.
For his part, Wynn has denied ever acting as a foreign agent.
However, his lawyers argued that even if the allegations were valid, any obligation to register ended with the relationship. And according to the DOJ, Wynn ceased being a Chinese agent in late 2017.
Unfortunately for the government, Judge Boasberg accepted Wynn’s defense.
But that ruling, based on a 1987 federal appeals court decision (United States v. McGoff) which found FARAs registration obligation terminated with an agency relationship, was a mistake, says the appeal brief.
Furthermore, the DOJ argues the McGoff precedent focused on FARA’s criminal provisions, only mentioning civil matters in passing.
All Foreign Agents Must Register Under FARA, Says DOJ
The bottom line, the appeal argues, is that FARA’s civil enforcement provision allows suits against current and former agents. Additionally, the act requires as much.
As noted in the appeal, Section 612(a) of FARA states:
The obligation of an agent of a foreign principal to file a registration statement shall, after the tenth day of his becoming such agent, continue from day to day, and termination of such status shall not relieve such agent from his obligation to file a registration statement for the period during which he was an agent of a foreign principal.
That language, the filing states, makes clear “even a former agent remains obligated to register.”