Matthew Sanderson Comments on FARA in ProPublica

Jacobi Niv had paid Larry King a few thousand dollars apiece to narrate half a dozen videos for companies or projects in Israel, where King is still a big name. But what Niv wanted King to tape on March 27, 2019, wasn’t the usual infomercial. It was more like a disinfomercial.

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“This is something that the Department of Justice would certainly be interested in, particularly given the department’s emphasis on combating Chinese influence within the United States,” said Matthew Sanderson, a Washington, D.C.-based attorney who specializes in the Foreign Agents Registration Act. “Who was calling the shots and who is behind the interview?”

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Niv is not registered as a foreign agent. Given the circumstances of the video, it is “likely” that he should be, and possibly King as well, said Sanderson, the Foreign Agents Registration Act attorney. The act would apply if the request, direction or funding for the video came from a foreign source, he said. The maximum penalty for a willful violation is five years in prison, or a $250,000 fine, or both.

Since U.S. media are exempt from registering, King’s exposure to FARA might rest on whether he was “acting in his capacity as a member of the news media, or is he doing an infomercial where he’s paid specifically to do the interview,” Sanderson said. “The substance of some of his questions and the structure of the interview itself could undercut his claim to be exempt.” Given his age, King could also argue he was “doing something at the behest of a longtime business partner who he regularly knows and trusts … and that he didn’t know about the origins of any money or request.”

That excuse might not help Niv, Sanderson said. “If you’re an international businessman, to say that you accepted money in an outside-the-norm type of transaction or message, and you didn’t do any investigative work to determine what the actual purpose of the task was — just accepting money, sight unseen — typically the (Justice) Department hasn’t accepted that type of argument,” Sanderson said. “…Ignorance and naivete are not free passes here.”

Foreign agents are required to file with the Justice Department the message they’re distributing — in this case, the transcript and video link — at the time it is distributed. The video itself should include a disclaimer identifying it as informational material distributed on behalf of a foreign principal.

“One of the issues here is should people have been on notice that this was distributed on behalf of the foreign government,” Sanderson said.

Matthew Sanderson is a Member of the Political Law Group at Caplin & Drysdale, Chartered.

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