On Tuesday, September 3, the Department of Justice (“DOJ”) and the U.S. Attorney’s Office for the Eastern District of New York announced the arrest and indictment of Linda Sun (“Sun”), a former New York State (“NYS”) official who held a variety of NYS jobs between 2012 and 2023, including but not limited to work in the Governor’s office. The Indictment charges Sun with one count of failing to register as required under the Foreign Agents Registration Act (“FARA”) and one count of conspiring to violate FARA, along with six related counts, including but not limited to one count of money laundering conspiracy. As discussed below, this case appears to reflect a strategic choice by DOJ to use FARA as a simpler tool to prosecute foreign influence and highlights DOJ’s broader efforts to prosecute FARA violations.
Charging Considerations in United States v. Sun
Reading the Indictment, one might ask: could DOJ have also charged acting as an illegal agent of a foreign power (18 U.S.C. § 951 (“§ 951”))? Maybe, but there appear to be compelling reasons to leave that charge on the drafting room floor, as FARA looks simpler to explain and prove on the alleged facts, and a competing § 951 charge may have confused a trial jury.
The Indictment alleges Sun—via her NYS employments—gave a cast of consular officials for the People’s Republic of China (“PRC”) and PRC nationals a range of services, including but not limited to “blocking representatives of the Taiwanese government from having access to the NYS governor’s office”; changing “messaging . . . regarding issues of importance to the PRC[,]” in particular regarding Taiwan; obtaining documentation purporting to invite PRC officials to the United States for official NYS visits, without authorization; and arranging various meetings with NYS government officials. In exchange, Sun is alleged to have accepted multiple trips to the PRC (some of which, as alleged, err towards the lavish); employment for a relative; business considerations for Sun’s spouse in the PRC, tickets to various sports and entertainment events, and—in a detail whetting press appetites—multiple parcels of “salted ducks.”
Based on the 64-page speaking Indictment, § 951 could have been on the menu. Both § 951 and FARA require acting as an agent of some non-U.S. concern: a “foreign principal,” in the case of FARA, and a “foreign government,” in the case of § 951. Both require a “knowing” mental state. And both, in practice, require a showing that the defendant failed to register with the Attorney General of the United States as an agent, though the timing differs: § 951 requires notification prior to undertaking any action, while FARA offers a ten-day grace period. The statutes do differ at sentencing: up to ten years in prison and up to $250,000 in fines under § 951, compared to a maximum of five years and up to $10,000 under FARA.
The Indictment is full of alleged acts on behalf of PRC consular officials who undoubtedly meet § 951’s “foreign government” requirement. So why no § 951 charge?
The answer may be as simple as simplicity. Particularly if the case goes to trial, prosecutors will seek to offer jurors a simple, straightforward narrative. Defense lawyers revel in complexity and nuance: “look how complicated this is!,” the argument goes, so the jury cannot find the defendant guilty beyond a reasonable doubt.
Deferring a § 951 charge, even if provable on these allegations, sidesteps that concern. Jurors will not have to contend with two similar-sounding statutes with similar-sounding jury instructions in their deliberations. The PRC consular officials squarely qualify as “foreign principals” under FARA, so the defense will be less able to compartmentalize the evidence, less able to draw distinctions between the defendant’s multiple dialogues with consular officers and private PRC citizens. The government will instead characterize it as one long, mutually beneficial relationship between the defendant and the PRC. All of the evidence that would be admissible as direct evidence of a § 951 offense is equally admissible for a FARA offense, so adding § 951 does not simplify the order of proof. The defense will also be unable to seek an instruction to the jury that some evidence should be considered only for the FARA charge but not the § 951 charge, and vice versa: another potential source of jury confusion eliminated. Last, with the other charges alleged—the money laundering conspiracy count carries up to twenty years of imprisonment—prosecutors have no need of the additional leverage of five more years of imprisonment offered by § 951.[1]
FARA Compliance
What are the takeaways for those concerned about FARA compliance? First, DOJ remains committed to its effort to pursue FARA criminal cases—particularly relating to the PRC and Russia—consistent with recent public statements from DOJ leadership. Companies and individuals with overseas principals and/or significant ties to foreign governments, that are also interacting with federal, state or local officials in the United States, should remain vigilant to the risk that DOJ will consider entertainment, meals, travel costs, etc., not as illegal on their own but compelling evidence of an unlawful influence campaign.
Second, for U.S.-focused companies, instituting robust policies requiring disclosure of any gifts or benefits received from non-U.S. principals—particularly government officials—will help shape the narrative after the fact if unlawful foreign influence is alleged. Some of the most compelling allegations summarize the host of disclosure and ethics rules Sun is alleged to have disregarded despite receiving periodic training about these legal requirements, including but not limited to FARA. Imagine for a moment a U.S. company standing in the shoes of the NYS Governor’s office—but without the deflector shield of robust policies and trainings. Not a happy day for a U.S. company looking to assure prosecutors and investors that it is protecting itself against regulatory risks.
[1] Prosecutors could also have considered receipt of bribes by a state official (18 U.S.C. § 666), but the Supreme Court’s June 2024 holding in Snyder v. United States would require the government to prove that benefits given to Sun were agreed to before any official action.
