On August 6, 2019, United States District Judge Amy Berman of the District of Columbia dismissed one of two felony counts against Gregory Craig. In her 57-page memorandum opinion, she found that an October 11, 2013 letter Craig sent to the Foreign Agents Registration Act (FARA) Unit was not part of any formal FARA filing. Hence, the prosecution could not charge him for making false submissions.
Judge Jackson rejected Craig’s defense that pursuant to jurisprudence in United States v. Safavian, 528 F.3d 957 (D.C. Cir. 2008) that he was not under a legal duty to disclose and therefore there was no concealment offense in violation of 18 U.S.C. § 1001(a)(1).
Instead the opinion explained that FARA creates the duty and puts individuals on notice of their specific disclosure obligations. Agents are required to register, disclosing their activities and who paid for them. Hence, the allegations the indictment alleging that Craig carried out a scheme to conceal his potential status as a foreign agent, by making a series of false or misleading statements and omissions allegedly obscuring the true timing and full nature of his public relations activities on behalf of Ukraine, states an offense under 18 U.S.C. § 1001(a)(a). It fulfills Circuit precedent and the Constitution’s due process clause.
The opinion observes that, after the FARA Unit informed Craig of its decision that he and his firm had to register, he embarked on an active effort to persuade the agency to change its position.
At present, Craig will face a jury trial next week on the false-statement charge that remains.
Craig is charged with helping prepare and plan media strategy on a 1986-page report commissioned by Ukraine’s Ministry of Justice through U.S. political consultant Paul Manafort and predominantly paid for through a Cyprus bank account by Ukrainian steel magnate, Viktor Pinchuk.
Craig, who was White House counsel in the Obama Administration, has denied the charges.
The dismissal of one charge illustrates why many experts have called for amending and clarifying FARA.
The current issue of the IELR will cover this case in more detail.