Between 1966 and 2016, there were only seven prosecutions brought under the statute, none of which resulted in a conviction. However, that has since changed.

Prosecutors have brought more FARA prosecutions in the last several years than they had pursued in the preceding half century. In-house lawyers have scrambled to bone up on this famously vague criminal statute, at a time when the nation’s tiny bar of experienced FARA lawyers can still hold its meetings in the back of a mini-van.

While cases related to Special Counsel Robert Mueller’s investigation are the most salient examples, the renewed focus on foreign agents actually began prior to the Mueller investigation and has continued long after the Special Counsel closed up shop. A significant uptick in audits of registered foreign agents by the FARA Unit (the Department of Justice office that administers FARA), followed by significant staffing changes in the FARA Unit, and then noticeably more aggressive interpretations of the statute in advisory opinions and informal advice from the FARA Unit, all have signaled a sea change.

Notable FARA prosecutions in recent years include those of Michael Flynn, Elliot Broidy, Paul Manafort, and Rick Gates.

There’s a related federal statute that also has seen an uptick in prosecutions recently: 18 U.S.C. § 951, which makes it a crime for persons acting as an agent of a foreign government to do so without prior notification to the Attorney General. Per the DOJ:

18 U.S.C. § 951 requires agents operating under the control of foreign governments or foreign officials, other than diplomats, to notify the Attorney General before acting. There is a limited exception for those engaged in legal commercial transactions. Registration under FARA serves as the requisite notification.

One notable § 951 prosecution was Tom Barrack, a longtime friend of and former fundraiser for Donald Trump, who was acquitted in November 2022.

The statutes are similar, though not identical. While both are aimed at restricting malign foreign influence, FARA’s focus is primarily disclosure, while § 951 outright prohibits certain conduct on behalf of foreign governments. Their scope is different as well:

FARA applies to defined categories of conduct—generally, “political activities” and other attempts to influence the public or government officials—but covers a broad set of foreign principals, including foreign governments, political parties, individuals, and entities of any type. Section 951 is essentially the inverse: it is not limited to any particular type of conduct, but applies only to activities on behalf of a government principal (not foreign individuals or nongovernmental entities).

While the DOJ’s prosecution of Barrack was unsuccessful, the agency scored a win in the same court last Tuesday when a federal jury in Brooklyn returned guilty verdicts against three defendants in connection with People’s Republic of China’s “Operation Fox Hunt.” The DOJ’s press release following the convictions reads, in part:

Earlier today, a federal jury in Brooklyn returned guilty verdicts against three defendants on multiple counts of a superseding indictment charging them with acting and conspiring to act in the United States as illegal agents of the People’s Republic of China (PRC) without prior notification to the Attorney General.  Defendant Michael McMahon was convicted of acting as an illegal agent of the PRC, conspiracy to commit interstate stalking and interstate stalking.  Defendant Zhu Yong, also known as “Jason Zhu”, was convicted of conspiracy to act as an illegal agent of the PRC, acting as an illegal agent of the PRC, conspiracy to commit interstate stalking and interstate stalking.  Defendant Zheng Congying was convicted of conspiracy to commit interstate stalking and interstate stalking.  Defendants McMahon and Zhu knowingly acted at the direction of PRC government officials to conduct surveillance and engage in a campaign to harass, stalk, and coerce certain residents of the United States to return to the PRC as part of a global and extralegal repatriation effort known as “Operation Fox Hunt.”  Defendant Zheng engaged in interstate stalking of the same victims, leaving a threatening note at their residence.  Today’s verdict followed a three-week trial before United States District Judge Pamela K. Chen.  When sentenced, McMahon faces up to 20 years in prison, Zhu faces up to 25 years in prison, and Zheng faces up to 10 years in prison.

The release sets out the underlying facts as follows:

As proven at trial, between approximately 2016 and 2019, the defendants participated in an international campaign with members of the PRC government as part of “Operation Fox Hunt” to threaten, harass, surveil, and intimidate John Doe #1 and his family, to force John Doe #1 and his wife, Jane Doe #1, to return to the PRC.  In or around 2015, the PRC government caused the International Criminal Police Organization (also known as “Interpol”), an inter-governmental law enforcement organization, to issue “Red Notices” for John Doe #1 and Jane Doe #1 alleging that both persons were wanted by the PRC government on corruption-related charges.

Zhu hired McMahon, a retired NYPD sergeant working as a private investigator, who obtained detailed information about John Doe #1, his wife, and his daughter from a law enforcement database and other government databases, then reported back to Zhu and others, including a PRC police officer, what he had learned.  McMahon also conducted surveillance outside the New Jersey home of John Doe #1’s sister-in-law and provided Zhu and PRC officials with detailed reports of what he had observed.  The operation was supervised and directed by several PRC officials, including co-conspirators Hu Ji, a PRC police officer with the Wuhan Public Security Bureau, and Tu Lan, a PRC prosecutor with the Wuhan Procuratorate.

In April 2017, Tu Lan and Hu Ji transported John Doe #1’s then-82-year-old father from the PRC to the New Jersey home of John Doe #1’s sister-in-law to attempt to convince John Doe #1 to return to the PRC.  The testimony established that John Doe #1’s father was brought by a PRC doctor and charged co-conspirator, Li Minjun, and that while John Doe #1’s father was in the United States, his daughter was threatened with jailing in the PRC.  A co-conspirator conducted surveillance of the home during the visit, wearing night-vision goggles provided by the PRC doctor and PRC prosecutor.  McMahon tailed John Doe #1 from the meeting with his elderly father, back to his home, and provided John Doe #1’s address—which was previously unknown—to the PRC operatives.

In October 2016 and April 2017, McMahon emailed himself a China Daily News article titled “Interpol Launches Global Dragnet for 100 Chinese Fugitives,” which stated, “Amid the nation’s intensifying antigraft campaign, arrest warrants were issued by Interpol China for former State employees and others suspected of a wide range of corrupt practices.  China Daily was authorized by the Chinese justice authorities to publish the information below.”  The article provided a list of photographs and identifying information about Operation Fox Hunt targets by the PRC government, including those of John Doe #1 and Jane Doe #1.

On September 4, 2018, Zheng drove to the New Jersey residence of John Doe #1 and Jane Doe #1 and pounded on the front door.  He and a coconspirator attempted to force open the door to the residence, then left a note that stated “If you are willing to go back to the mainland and spend 10 years in prison, your wife and children will be all right.  That’s the end of this matter!”

If that plotline sounds familiar, it should. As we’ve reported here at RedState, the DOJ has issued multiple indictments and several high-profile arrests in relation to efforts on behalf of the PRC to harass and intimidate Chinese dissidents here in the U.S. Of special note, many of these activities were conducted out of Chinese “police stations” located here in the U.S.

Those previously announced arrests and indictments all involved Chinese actors, most of whom reside outside the U.S. Last Tuesday’s conviction, however, included a highly decorated former NYPD Sergeant and licensed private investigator, 55-year-old Michael McMahon, who insists the DOJ is scapegoating him for his unwitting role in the Chinese scheme.

The decorated former NYPD sergeant who has worked as a licensed private investigator in New Jersey for two decades said he was blindsided when they voted to convict him and two others Tuesday of stalking a New Jersey couple on behalf of the communist country.

“I feel that everything I did was right,” McMahon, 55, told The Post in an exclusive interview at his suburban New Jersey home. “I feel betrayed by the Department of Justice.”

…

McMahon was hired in fall 2016 by what he believed was a translation company from New Jersey to do surveillance on a luxury Short Hills, NJ, home occupied by a relative of Xu Jin and Liu Fang, and to use public records to find companies and other assets registered to the couple.

He was told that he was locating assets for a civil court case.

Xu and Liu, he was told, had stolen money from a construction company and the people who hired him wanted to find where the cash had gone.

What he was not told was that Xu was a former official in Wuhan, who had fled China amid allegations of corruption.

It seemed like a routine job for a licensed private investigator who had been one of the NYPD’s most distinguished officers until his retirement in 2003 in the wake of an injury caused by a violent pursuit.

McMahon said that when he conducted surveillance, he did what he has done on hundreds of jobs: He registered with the local police, letting them know his whereabouts, the license plate of his vehicle and the identities of the other private investigators he was working with.

The jury returned a verdict against McMahon for “Acting as an Agent of a Foreign Government Without Notification to the Attorney General (a violation of § 951), as well as Interstate Stalking and Conspiracy to Engage in Interstate Stalking (presumably for the surveillance he conducted). Not sitting through the trial and being privy to the evidence presented to the jury, it’s difficult to reconcile the competing narratives here. What does seem odd is for McMahon to have registered with the police and alerted them to his activities if his intent was to knowingly violate federal law. McMahon told The Post:

I didn’t harass or stalk anyone, and if I had been asked to do so, or if I had suspected that my clients worked for the Chinese Communist Party, I would have contacted the FBI right away and not proceeded with the job.

The Post spoke with Nicholas Eftimiades, an expert on Chinese intelligence and senior fellow at the Atlantic Council, for its story.

Eftiamides said he believed McMahon’s case, the first brought by the Department of Justice in the anti-Operation Fox Hunt, was flawed.

“I don’t know how anyone could come to the conclusion that McMahon was knowingly working on behalf of the Chinese government,” Eftimiades told The Post.

“This is the first Fox Hunt trial we’ve had and there are so many questions that just don’t make sense. It seemed they were compelled to push this case, and there’s a lot behind the scenes that we don’t know. I hope it all gets reviewed.”

McMahon has vowed to fight the conviction, though whether there are strong grounds (legally) for appeal is unclear.

What does seem clear is that his prosecution and conviction beg the question of when or if similar charges might be aimed at, say, a certain son-of-a-president who seemingly was paid by foreign entities to lobby the US government, as well as other family members who received payments from foreign entities for no discernable service or expertise. Given the DOJ’s recent ratcheting up of such prosecutions — and focus on activities undertaken on behalf of the PRC — one would think such charges are coming…any day now. (Though I wouldn’t advise holding one’s breath on that.)