[00:00:01] Speaker 00: Case number 22-5328, Attorney General of the United States Appellant versus Stephen A. Winn. [00:00:08] Speaker 00: Mr. Minta for the Appellant. [00:00:10] Speaker 00: Mr. Laskin for the Appellate. [00:00:13] Speaker 00: Mr. Minta, good morning. [00:00:14] Speaker 00: Good morning. [00:00:17] Speaker 05: May I please the court, Your Honor. [00:00:18] Speaker 05: Joseph Minta on behalf of the Attorney General. [00:00:21] Speaker 05: I'd like to reserve two minutes for rebuttal. [00:00:24] Speaker 05: Foreign Agents Registration Act is a critical tool in protecting this nation from malign foreign influence. [00:00:30] Speaker 05: But the district court's unduly narrow interpretation of Section 618F, that's the government's ability to civilly enforce an act. [00:00:37] Speaker 05: The district court's interpretation should be reversed for three reasons. [00:00:41] Speaker 05: First, it's contrary to the statute's plain text. [00:00:45] Speaker 05: Second, it ignores the act's history and structure. [00:00:48] Speaker 05: And finally, it defies the act's express purpose of ensuring disclosure of foreign efforts to influence U.S. [00:00:55] Speaker 05: policy. [00:00:57] Speaker 05: Starting with the plain text, Section 618F begins with two coordinate clauses, and both sides agree these clauses should be given independent meaning. [00:01:06] Speaker 05: The way to do this is to read the first clause as applying to ongoing violations, while the second clause applies to past violations, such as wins. [00:01:15] Speaker 05: The district court's interpretation, however, fails to read the statute as a whole. [00:01:19] Speaker 01: Congress passed the... Where did you make this argument in the district court? [00:01:23] Speaker 05: Your Honor, I... [00:01:26] Speaker 05: Noted in the district court our reliance on section 618F and the district court understood that argument and that's why it reached the whole- Understood that that was your cause of action. [00:01:35] Speaker 01: Didn't understand that you were reading, at least I'm not aware of where you argued below that 1618F is actually two distinct actions, one of which covers retroactive conduct. [00:01:45] Speaker 01: and one clause which does not. [00:01:49] Speaker 01: Did you make that argument to the district court? [00:01:51] Speaker 05: Not in that level of detail, Your Honor. [00:01:52] Speaker 01: What do you mean that level of detail? [00:01:53] Speaker 01: Did you make the argument or not? [00:01:55] Speaker 01: Was the district court on notice of the argument you're presenting to us? [00:02:00] Speaker 05: We did not present the argument in that framework. [00:02:03] Speaker 05: And as the district court noted, we didn't unpack the section 618 tax. [00:02:07] Speaker 01: So the district court had no opportunity to consider the argument that you're now presenting to us. [00:02:11] Speaker 05: You know, your honor, but the district court nonetheless made a holding that the government is required to allege an ongoing violation. [00:02:17] Speaker 01: I did that without hearing. [00:02:19] Speaker 01: Sorry. [00:02:19] Speaker 01: I mean, you're talking about plain text and everything, but it wasn't plain enough to have been argued to the district court. [00:02:25] Speaker 01: And so why are you allowed to argue it now to us in the first instance? [00:02:29] Speaker 05: Two responses, Your Honor. [00:02:31] Speaker 05: First, the forfeiture doctrine doesn't apply where the district court nonetheless passed on the issue below, and there's no dispute. [00:02:36] Speaker 01: Did it pass on your argument that the second clause of this is meant to be retroactive? [00:02:42] Speaker 01: It held that we had to allege an ongoing violation, and our position is that the second clause... On the next question again, did it pass on the argument that you're making now that the second clause operates retroactively? [00:02:55] Speaker 05: It did not make an excessive holding on. [00:02:57] Speaker 01: Because it wasn't presented to it. [00:02:58] Speaker 05: That's correct, Your Honor. [00:02:59] Speaker 01: You can't argue it before it's because a district court passed upon it. [00:03:02] Speaker 01: This report wasn't presented with it and didn't consider it. [00:03:05] Speaker 01: So what is your other argument for why we should consider it? [00:03:07] Speaker 05: Forfeiture only applies to new claims on it, not new arguments in support of a consistent claim. [00:03:12] Speaker 05: And our consistent claim has always been that we should be required to register. [00:03:16] Speaker 05: and that the attorney general is empowered to bring this civil suit to require him to use our sections. [00:03:21] Speaker 01: I mean, your arguments got more sophisticated than that given our McGoff decision. [00:03:25] Speaker 01: And so your argument below, as I understand it, was civil versus criminal. [00:03:32] Speaker 01: But your argument here now is entirely different, and that is that 618F is a two-parter that, and that there's just a distinct statutory authority apart from [00:03:45] Speaker 01: the civil authority itself, the civil criminal distinction, there's this specific authority to reach retroactively to require registration. [00:03:56] Speaker 01: These are fuzzy lines. [00:03:58] Speaker 01: I know. [00:03:59] Speaker 01: How is that not a new claim? [00:04:01] Speaker 05: So our claim has always been the consistent single claim that the attorney general is empowered to bring this suit and that it is no defense to that suit. [00:04:13] Speaker 01: My claim has always been my client's not guilty. [00:04:15] Speaker 01: And then you can argue anything. [00:04:16] Speaker 01: You never argued to the district court below. [00:04:18] Speaker 01: And we don't do it at that level, 30,000 foot level. [00:04:22] Speaker 01: I think about how the district court just we're going to feel fan bagged here. [00:04:26] Speaker 01: If, you know, you're coming here with a I think would you characterize as a plain language argument that court never had a chance to hear. [00:04:35] Speaker 05: I think that that's very similar to the situation that arose in this court's decision in Shady Carey. [00:04:41] Speaker 05: where the claim was framed as the State Department discriminated against me. [00:04:46] Speaker 05: And the appellant was allowed to raise additional arguments in support of that particular claim. [00:04:51] Speaker 05: In particular, an argument focused on a recent Supreme Court decision that was before the District Court and the District Court acknowledged. [00:04:58] Speaker 05: But the appellant made a different argument in support of his discrimination claim and argued under a different framework in the District Court. [00:05:05] Speaker 01: Based on intervening Supreme Court precedent? [00:05:07] Speaker 05: No, the Supreme Court precedent was already on the books at that point. [00:05:10] Speaker 05: He argued that the framework that he used in the district court was simply inapplicable on appeal. [00:05:16] Speaker 05: And this court declined to find forfeiture under those circumstances, characterizing it as new argument rather than a new claim. [00:05:25] Speaker 05: And once you reach the merits of that argument, I think that it's clear that the district court's interpretation is contrary to the purpose of FARA, which is ensuring disclosure of foreign efforts to influence US policy. [00:05:37] Speaker 02: The ongoing interest is in assessing advocacy that might have been engaged in by Mr. Wynn when he was an agent, to the extent that that information remains publicly available, that it would also be important to the government to have the context for that information. [00:06:03] Speaker 05: Yes, your honor. [00:06:04] Speaker 05: And so the public for any policy decisions that the government ultimately makes, whether that happens now or down the road, the public needs to understand the factors that went into that decision. [00:06:14] Speaker 05: And that includes all of the disclosure requirements that Farah requires when foreign agents are trying to influence US policy. [00:06:21] Speaker 02: And under Mr. Wynn's reading, the government could have prosecuted him criminally at the time when it chose instead to bring [00:06:30] Speaker 02: Civil Superinjunction, is that right? [00:06:32] Speaker 05: So the criminal provisions have an additional element of willfulness. [00:06:36] Speaker 05: If the government could prove willfulness beyond a reasonable doubt, I believe that both sides agree we were within the five year statute of limitations that they passed that out. [00:06:44] Speaker 05: The civil provision does not require willfulness. [00:06:46] Speaker 05: And that's why it's an important additional tool for the government to have to enforce the statute in instances either where willfulness can't be proved beyond a reasonable doubt or simply where the government [00:06:57] Speaker 05: feels that the less severe enforcement option of a civil suit is the more appropriate way to address the non-compliant. [00:07:02] Speaker 02: And I take it, you know, here there's no statute of limitations either for the criminal or the civil, but I take it there's no sort of residual statute of limitations available for civil nondisclosure. [00:07:15] Speaker 02: a violation the way there is for the criminal? [00:07:18] Speaker 05: No, Your Honor. [00:07:19] Speaker 05: There is a default civil statute where the government is seeking damages, but not where the government is seeking equitable or injunctive relief. [00:07:26] Speaker 05: That's all that we're seeking here. [00:07:28] Speaker 05: I think that's important to note that Section 618F isn't designed to be punitive. [00:07:32] Speaker 05: It's designed to ensure compliance and make sure that the public has the information that it needs. [00:07:37] Speaker 05: And you can see that even in the history affair that we set out in our brief where [00:07:41] Speaker 05: In 1950, Congress amended it in order to essentially reject the argument that Wynn is now making in the civil context, but in the criminal context. [00:07:51] Speaker 05: It was only later when Congress added Section 618F, and it did so with that history in mind, writing it to address, again, both current and former agents in the ways that we've explained in our brief. [00:08:03] Speaker 05: Finally, I also want to point to several structural features of FAERA that support our argument. [00:08:09] Speaker 01: In particular, the fact that several- I'm trying to hear textual argument under 618f. [00:08:13] Speaker 01: And that is, I'm struggling with how you read what you call the second, we'll call it the second clause as applying retroactively because it uses the same present tense verbs as the first clause. [00:08:30] Speaker 05: Yes, Your Honor. [00:08:31] Speaker 05: There are numerous statutes that are phrased in the present tense, but nonetheless apply to past completed conduct. [00:08:37] Speaker 01: You can look at the SECs and- Well, then you would say you're covered by the first clause and the second clause. [00:08:42] Speaker 05: I think that in a vacuum, you could make that argument. [00:08:45] Speaker 05: I think when you look at the two remedies that Section 618F includes, that further supports our distinction. [00:08:51] Speaker 05: The first set of remedies discusses either enjoining [00:08:55] Speaker 05: the failure to register or enjoining the agent from continuing to lobby. [00:09:01] Speaker 05: The second set of remedies only discusses an order for compliance. [00:09:04] Speaker 05: And that makes sense when you're only dealing with past conduct and there's no further activities by the agent. [00:09:09] Speaker 01: Oh no, that makes perfect sense if you're dealing with ongoing conduct. [00:09:12] Speaker 05: I think the first clause has already covered that. [00:09:14] Speaker 01: Well, no, I think they're different. [00:09:16] Speaker 01: I mean, the first is, so the first clause covers acts. [00:09:20] Speaker 01: The second clause covers omissions. [00:09:22] Speaker 01: That can be present tense and even anticipated in the first clause. [00:09:28] Speaker 01: The first clause applies to persons. [00:09:31] Speaker 01: The second clause applies to agent of a foreign principle. [00:09:35] Speaker 01: So they have different subjects and they have different scopes that they cover, but they are all present tense. [00:09:40] Speaker 01: There's no language here at all that suggests, brought to activity in particular, given our McGough holding that you are no longer an agent of a foreign principle [00:09:52] Speaker 01: once your service in that position terminates. [00:09:57] Speaker 01: There'd be no way then to have the second clause, which requires you to be an agent of a foreign principle. [00:10:03] Speaker 01: That way you're only allowed to enjoin an agent of a foreign principle to fill out a form under this clause. [00:10:11] Speaker 01: And we held him agaff that once the relationship ends, [00:10:15] Speaker 01: you are no longer an agent of a foreign government. [00:10:17] Speaker 01: So there's different purposes for the clauses. [00:10:21] Speaker 01: They have different subjects and the injunctive relief targets the named person, the named subject, which isn't gonna cover folks once they've stopped being an agent of. [00:10:32] Speaker 01: a foreign government, at least under McGough. [00:10:35] Speaker 01: I mean, we're stuck with that as a panel. [00:10:38] Speaker 05: I agree, Your Honor, that McGough is biting on this panel. [00:10:41] Speaker 05: But I think the operative point of analysis is that the time Wynn violated Farah, he was then acting as an agent. [00:10:47] Speaker 05: And our position is that triggered the Attorney General's enforcement power. [00:10:53] Speaker 05: And a foreign agent isn't then empowered to cut off that enforcement power by later activity. [00:11:00] Speaker 01: When you say, [00:11:02] Speaker 01: that there's the different remedies. [00:11:04] Speaker 01: And one of the remedies is to enjoin clients, order someone to comply. [00:11:09] Speaker 01: Who is the object that can be ordered? [00:11:14] Speaker 05: It's the person that was acting. [00:11:15] Speaker 01: No, it doesn't use the word person. [00:11:17] Speaker 01: It says for the purposes of enjoining someone to comply, the omission clause. [00:11:22] Speaker 01: It says you may enjoin an agent of a foreign principle. [00:11:25] Speaker 01: Yes. [00:11:26] Speaker 01: Okay. [00:11:27] Speaker 01: And at the time you're trying to seek, you were asking a court to enjoin right now, someone who is not at the time of the injunction, an agent of a foreign principle. [00:11:37] Speaker 05: At the time of their non-compliance, they were an agent. [00:11:40] Speaker 01: Yeah, but we're talking about the remedy here and the injunction, as you said, the remedies track the structure and the only object, the only person who's an object or entity is [00:11:50] Speaker 01: this agent of a foreign government. [00:11:51] Speaker 01: There's simply no one to, it doesn't say you can enjoin a person. [00:11:57] Speaker 01: You use person in the first clause. [00:11:58] Speaker 01: It does not use person in the second. [00:12:00] Speaker 01: So there's no capacity to enjoin a person to comply with filing forms or registration forms, only an agent. [00:12:09] Speaker 01: And you don't have an agent. [00:12:10] Speaker 05: Your honor, we have an agent at the time that Wynn was non-compliant. [00:12:15] Speaker 05: We agree with McGough holding that that obligation has ended, but we are asking the court to order him to comply with his delinquent obligation to register at that time. [00:12:25] Speaker 05: And I think that that's important given the structure of... I apologize, I see my time. [00:12:29] Speaker 02: Although let me just ask about that, looking sort of more broadly at the way the provisions of the Act fit together. [00:12:35] Speaker 02: In 615, the agent is obligated to keep records for three years following the termination of the agency. [00:12:43] Speaker 02: And it just seems that that is another indication in the statute that the reporting requirement is not meant to survive indefinitely. [00:12:51] Speaker 02: Because if you've turned over or dispensed with the records that you would need to file 10 years down the road, [00:13:03] Speaker 02: It just seems to me to support the notion that Congress wasn't contemplating an indefinite obligation to. [00:13:10] Speaker 05: Your honor, what we're ultimately seeking here is an equitable remedy. [00:13:14] Speaker 05: If, because of the passage of time or any other factor, it would be impossible or unduly burdensome to comply with the injunction, then the court could take that into account in crafting the remedy. [00:13:25] Speaker 05: But none of that applies here, where we brought suit even within the criminal statute of limitations that this court set out in McGoff. [00:13:32] Speaker 05: And the last point that I want to make is, [00:13:34] Speaker 05: Many agents of a foreign power act only for a short period of time. [00:13:38] Speaker 05: And in those instances, there simply isn't an opportunity to bring these kinds of lawsuits while they're still acting. [00:13:45] Speaker 05: But consistent with the purpose of the statute, this court should read section 618F to also empower the attorney general to bring civil suit to ensure those agents compliance with the statute as well. [00:13:56] Speaker 02: It does seem potentially dysfunctional. [00:13:58] Speaker 02: And the relevant circumstances or typical circumstances may have changed, given the internet and how information has a much longer half-life than it did at the time, for example, with McGough. [00:14:10] Speaker 02: I mean, it struck me that McGough talks about needing this statute to protect against subversive activities, whereas now it seems more like the government's interest is in providing context for advocacy information that [00:14:26] Speaker 02: may be out there still that endures things that Mr. Nguyen may have said that people might be taking into account now. [00:14:35] Speaker 02: That's kind of a new problem. [00:14:37] Speaker 05: I think that it's a different version of the same kinds of national security interests. [00:14:45] Speaker 02: For sure. [00:14:46] Speaker 02: But it just seems like that. [00:14:47] Speaker 02: And I guess one question that I have for the government is how we don't have cases under this statute very often. [00:14:54] Speaker 02: is this provision used very frequently, I assume. [00:14:59] Speaker 05: The criminal provisions are being used more frequently in the last several years. [00:15:04] Speaker 05: In particular, there's been a number of high profile prosecutions along those lines. [00:15:07] Speaker 05: This is, as the district court noted, one of the first civil actions involving section 618F. [00:15:14] Speaker 05: But the government does recognize foreign malign influence as a national security threat and is working to use these and similar statutes in order to combat the new problem that you framed it. [00:15:26] Speaker 02: And I don't know if this is something that you have information about or feel is appropriate to share. [00:15:30] Speaker 02: the government could bring an indictment and then resolve it if the defendant is willing to provide the information. [00:15:40] Speaker 02: I mean, there's something perverse about the availability, the longer availability of a criminal claim when the core interest in the statute is in the disclosure. [00:15:48] Speaker 05: Exactly, Your Honor. [00:15:50] Speaker 05: It's backwards from a normal statute to have the civil remedy be much narrower than the criminal remedy, but that's the implication of the district court's holding here. [00:15:59] Speaker 05: Well, and perhaps of our holding. [00:16:02] Speaker 00: I have some questions. [00:16:03] Speaker 00: Can you go back to 618F and could you give us an example of what would fit the language or otherwise is in violation? [00:16:14] Speaker 00: As Judge Follett said, the first one is commission, the second one is omission. [00:16:19] Speaker 00: What's left or otherwise is in violation? [00:16:23] Speaker 05: I think otherwise is in violation is intended as a catch all in order to ensure that all past violations as we read the statute that's part of the second clause which applies to past violations and it ensures that any past violation affair, whether it's a failure to register or a deficient registration statement. [00:16:40] Speaker 05: or a failure to maintain books and records or a failure to file a supplemental registration statement. [00:16:45] Speaker 05: All of those different kinds of fair violations need to be able to be remedied by civil injunctive actions as well as criminal prosecution. [00:16:52] Speaker 05: And so that or otherwise language ensures that it all comes within the attorney general's civil enforcement. [00:16:59] Speaker 00: So you can't think of a discreet otherwise violation. [00:17:03] Speaker 05: So I think the first part of the second clause does cover most of the issues because it says fail to comply with any provisions of the sub-chapter of the regulations. [00:17:15] Speaker 05: And I think that that would pretty much be all the violations. [00:17:18] Speaker 05: But Congress wanted to make sure that it had this catch-all provision to cover its basis. [00:17:26] Speaker 00: Okay. [00:17:27] Speaker 00: And then I have two questions that I know we're not dealing with whether or not Mr. Nguyen was [00:17:32] Speaker 00: a foreign agent. [00:17:34] Speaker 00: But do you take the position, or does the department take the position that a quid pro quo is necessary? [00:17:43] Speaker 05: Your Honor, no. [00:17:44] Speaker 05: There's a variety of decisions on the level of control that a foreign principal needs to have over the agent. [00:17:51] Speaker 05: And this is something that was raised in Wynn's motion to dismiss as a separate ground that we hadn't adequately alleged that. [00:17:58] Speaker 05: But we do not believe a quid pro quo is necessary for foreign agents. [00:18:02] Speaker 00: And then the final question. [00:18:04] Speaker 00: Do you know the status of the legislation that is trying to fix the McGough problem? [00:18:13] Speaker 05: I'm aware that the legislation has been introduced. [00:18:15] Speaker 05: I'm not aware of any further steps that have been taken with respect to that legislation. [00:18:20] Speaker 02: Thank you. [00:18:20] Speaker 02: And one assumes the government would want to add a statute of limitations for the civil violation to that legislation if it's going to proceed. [00:18:29] Speaker 05: I believe that the legislation includes an explicit criminal statute of limitations. [00:18:34] Speaker 05: I don't believe, as drafted currently, it includes that civil limitation. [00:18:40] Speaker 00: We'll give you a couple minutes to reply. [00:18:41] Speaker 00: Thank you. [00:18:42] Speaker 00: Mr. Luskin. [00:18:49] Speaker 04: Good morning. [00:18:50] Speaker 04: May I please record? [00:18:51] Speaker 04: Uh, as Judge Boat, Chief Judge Boat were coachingly recognized, the case presents a single issue, and that is whether an individual under this court's precedent in McLaughlin has no present obligation to register under Vera, uh, may nevertheless be compelled to register retroactively, uh, under 618-L. [00:19:10] Speaker 00: Mr. Luskin, can you get either closer to the mic or raise the podium? [00:19:14] Speaker 00: I'm so hard of hearing, and I apologize, but I want to hear what you have to say. [00:19:18] Speaker 04: Don't apologize, because I'm having trouble hearing you, too. [00:19:22] Speaker 04: And as Chief Judge Bogleberg ruled, that question is squarely controlled by McGoff, because McGoff decided that Section 612A, the registration provision, [00:19:37] Speaker 04: The obligation to register terminates when an agency relationship terminates. [00:19:42] Speaker 04: And reading 618F, he concluded, therefore, as the court did in McGough, that because there is no present obligation to register, the injunctive provisions of 618F can apply. [00:19:55] Speaker 02: Mr. Luskin, can you respond to the apparent anomaly that I was raising when Mr. Mendoza was standing there about [00:20:06] Speaker 02: the government having a longer time window for criminal prosecution than for civilly seeking the record? [00:20:16] Speaker 04: Well, I guess I wouldn't regard it as an anomaly, Your Honor, because it seems to me that because their criminal provisions and criminal penalties are intended to be more serious with McGoff regarded as a howitzer, [00:20:34] Speaker 04: It makes sense that under those circumstances where the harm is greater, that the government should have a greater opportunity to rectify them and to deter them through the criminal counsel. [00:20:45] Speaker 04: So I guess I don't see that as well. [00:20:48] Speaker 04: It makes sense to me that the civil remedies, which are all framed in the present tense, all intended by their terms to bring an individual into compliance with the statute, should have a shorter term. [00:21:02] Speaker 02: That's odd, given that there isn't any [00:21:04] Speaker 02: and say violation here, the crime is in service of incentivizing covered people to comply more than stopping some harm to the public. [00:21:21] Speaker 02: I mean, it's very bound up with the primary interest, which is that the government and the public should be aware who's paying. [00:21:30] Speaker 04: No, that's certainly correct, Your Honor, but it does seem to me that the public interest, once an individual has ceased to act as an agent, is significantly attenuated. [00:21:41] Speaker 04: The interests of Barrow, to the extent that they [00:21:45] Speaker 04: are all revolved around contemporaneous disclosure with a 10-day registration requirement with an obligation, for example, when it involves congressional testimony that the committee be notified in advance. [00:21:58] Speaker 04: All of the obligations revolve around contemporaneous disclosure. [00:22:01] Speaker 02: Well, they revolve around prompt, you know, knowing at the time, of course, because that's when the person's [00:22:07] Speaker 02: Advocacy is going to have the most audience. [00:22:11] Speaker 02: But when it then becomes part of a permanent record and people say, oh, Mr. Wen, he was very involved in business in China, let's look what he had to say. [00:22:21] Speaker 02: His statements are still, no doubt, available on the internet. [00:22:26] Speaker 04: Of course, I'm not saying that there's no interest here. [00:22:30] Speaker 04: And obviously, and I guess this goes to the issue that the government has raised about there being some sort of loophole here. [00:22:37] Speaker 04: I think an individual who is acting as an agent is really engaging in a legal suicide act or the act of self-immolation approaches him. [00:22:51] Speaker 04: And he would say, well, I'm very sorry. [00:22:53] Speaker 04: I'm terminating my relationship, or I terminated it last week. [00:22:58] Speaker 04: So you guys can take a hike. [00:23:01] Speaker 04: I think an individual does that once, and the government prosecutes, and no one in their right mind would ever dare to go back again. [00:23:13] Speaker 02: To the 618F issue, I mean, the district court did pass on [00:23:19] Speaker 02: the meaning of 618F at least in some extent, and you take it to not be adequate preservation that the court referred to it as creating a cause of action. [00:23:31] Speaker 04: And you know, I can't do, I'm sorry, I can't do any better in framing what happened in the district court than to quote Judge Boasberg. [00:23:40] Speaker 04: at page 199 of the Joint Appendix, and he says, if an interpretation of 618F exists, it would allow the government to compel Wynn to register today, notwithstanding McGough's interpretation of the registration obligation at 612A, the government does not provide it here. [00:23:58] Speaker 04: In fact, it does not engage at all with the text of that provision, or of 612A for that matter, beyond insisting that 618F is the basis for distinguishing McGough. [00:24:09] Speaker 04: I don't think the record could be any clearer that the government certainly asserted that it had a right to enforce injunctive provisions against Mr. Wynn, but it completely stepped away and passed on the interpretation that it pushes here, which is the 618F contains a present obligation [00:24:33] Speaker 04: or to enforce a requirement that has since lapsed under McGough. [00:24:39] Speaker 04: That was nowhere raised or implied or suggested in the district court. [00:24:44] Speaker 02: And I'd love to hear your thoughts on the same question that Judge Henderson asked of Mr. Minto, which is the relationship between, I mean, assuming that it is before us, which I'm not reporting to take a position on that by asking the question. [00:25:00] Speaker 02: your view about when the second clause would be triggered and the first clause would not already cover the situation. [00:25:11] Speaker 04: Well, I have trouble, like Mr. Minda, seeing the otherwise clause as anything other than a catch-all provision. [00:25:18] Speaker 04: And we see that in other statutes, like the general obstruction provision of 1512. [00:25:23] Speaker 04: But I do want to address the government's general view of 618F, which is the only way. [00:25:28] Speaker 04: But the only way to read that rationally is that it includes two clauses. [00:25:33] Speaker 04: And one of them addresses present contact, and one addresses the past. [00:25:37] Speaker 04: In fact, there are two clauses here. [00:25:40] Speaker 04: The first one of which addresses persons, which is a universe of individuals who have not yet but may have an obligation to register, or under section 615, it includes officers and directors of corporations or other entities that are acting as agents. [00:25:58] Speaker 04: And the second clause addresses [00:26:00] Speaker 04: which includes all of the ongoing obligations of an individual who has registered to supplement the registration to retain records. [00:26:11] Speaker 04: The statute is addressing by its terms two classes of individuals who are subject to the requirements of FERA, and it does it in an explicit term. [00:26:22] Speaker 04: And to suggest that somehow that distinction is meaningless or doesn't exist and must be explained instead by a past-present dichotomy just simply fights the plain language of the provision. [00:26:35] Speaker 04: And obviously, I'm sorry. [00:26:39] Speaker 01: Pillard mentioned 615. [00:26:43] Speaker 01: And it talks about the obligation of an agent of a foreign principle to maintain records for three years after the termination of the relationship. [00:26:53] Speaker 01: So it refers expressly to someone even in the post-termination period of at least up to three years as still an agent of a foreign government. [00:27:08] Speaker 01: Does that not suggest that the agent, at least as to enforcing sort of record requirements like this, those omissions that an agent can commit do not themselves, it can be enforced civilly, do not terminate at the time the relationship itself terminates. [00:27:27] Speaker 01: Because 615's plain language. [00:27:28] Speaker 04: I think that's right. [00:27:29] Speaker 04: And I think that, [00:27:31] Speaker 04: the government could inaction under 618F to enforce the ongoing obligations under 615. [00:27:39] Speaker 01: If you want to enforce the, let's say the person has complied with everything, the relationship terminates and they go, I'm not keeping these records for three years. [00:27:50] Speaker 01: What capacity does the government have to enforce that other than a criminal prosecution? [00:27:55] Speaker 04: Well, I think under 6.15, because the obligation is ongoing, then 6.18f by its terms, through the use of the present tense, can be used to enforce it under those circumstances. [00:28:10] Speaker 01: It would just be a failure to comply by an agent. [00:28:13] Speaker 04: That's right. [00:28:14] Speaker 01: 618's ability to enforce, to require an agent of a foreign government to comply with disclosure obligations continues for three years. [00:28:30] Speaker 04: No, 615 only speaks to the retention of books and records. [00:28:35] Speaker 04: I think McGough resolved the question of whether or not the registration obligation endures, and it does not. [00:28:43] Speaker 01: But you're saying that other obligations, like this three-year record retention obligation, could be enforced civilly through an injunction after the relationship is terminated? [00:28:57] Speaker 04: I'm saying yes. [00:28:57] Speaker 04: Obviously, that isn't the issue presented here. [00:29:01] Speaker 01: OK. [00:29:01] Speaker 01: But if that were the violation... But that's right, because that... [00:29:05] Speaker 01: either. [00:29:07] Speaker 01: So if there can be an injunctive action after someone has ceased being serving, terminating the relationship with the foreign principal, but you're saying there still can be a civil action at least to enforce this records requirement, [00:29:23] Speaker 04: I think what I'm saying is that there has to be an ongoing obligation to be enforced. [00:29:30] Speaker 04: And in the case of 615, there is an ongoing obligation related. [00:29:35] Speaker 01: What about the obligation to file supplements to your initial registration statement? [00:29:39] Speaker 01: McGough only dealt with the initial registration statement. [00:29:43] Speaker 04: I think that's bound up within 612 and covered by McGough. [00:29:49] Speaker 04: Because? [00:29:50] Speaker 04: Because he has no current obligation to register as an agent. [00:29:54] Speaker 01: Okay, so all you're saying is that 615 can be enforced after the relationship has been terminated. [00:30:00] Speaker 01: Is there any statute of limitations on that? [00:30:02] Speaker 01: Can it be enforced civilly? [00:30:03] Speaker 01: What would be the statute of limitations for that? [00:30:08] Speaker 04: It's a question not presented, but I would think it would only be governed by the issue of latches. [00:30:14] Speaker 01: Well, that just doesn't apply to the government. [00:30:16] Speaker 04: That's right. [00:30:17] Speaker 04: That's their position. [00:30:19] Speaker 01: So there'd be no time limit on enforcing 615's record requirement. [00:30:27] Speaker 04: Well, it would be three years, Your Honor, because I think under this reading of 618F, which is to say 618F can be used to enforce a present continuing obligation, at the end of the three-year period, that obligation ceases. [00:30:41] Speaker 04: But just in the same way, in a parallel fashion, that the obligation to register under 612 ceased when an agent ceased to be an agent of a principal. [00:30:51] Speaker 04: So if the government were to come in five years later, say we'd like to enforce the obligation to keep records for three years, I think at that point, a defendant would be absolutely correct to say, no, I'm sorry, that's two years. [00:31:04] Speaker 01: It seems that there's a way of reading 615 as saying, when it comes to the particular obligation to maintain records, [00:31:12] Speaker 01: by creating records in the first place, as to that termination of the relationship does not terminate the obligation. [00:31:25] Speaker 01: And it's only as to actions such as interacting with the government on behalf of a foreign principle that that obligation terminates when the relationship terminates. [00:31:38] Speaker 04: Well, I think under 615, it covers an agent who is registered. [00:31:43] Speaker 04: And so an individual who is not registered and has no current obligation to register doesn't concomitantly have an obligation. [00:31:56] Speaker 04: I think it's also worth addressing the fact that this construction 618F is also consistent with the basic rules of equity, which is to say equity is typically reserved for addressing imminent or ongoing harms. [00:32:12] Speaker 04: And it is. [00:32:14] Speaker 01: But injunctions are used all the time to require disclosure of information that should have been disclosed all the time. [00:32:21] Speaker 01: So equity does not [00:32:23] Speaker 01: when it comes to disclosure obligations, informational disclosure obligations, it doesn't require evidence. [00:32:31] Speaker 01: I mean, FOIA, every order disclosed under FOIA is something they should have disclosed when first asked by a court. [00:32:39] Speaker 01: And, you know, disclosures under the Government and Sunshine Act. [00:32:42] Speaker 01: No, that's correct, Your Honor, but what I am saying... Those are all, I mean, so I don't understand that theory that injunctive relief requires. [00:32:50] Speaker 01: imminent harm. [00:32:51] Speaker 01: The harm is that right now I'm injured by the fact that information wasn't disclosed. [00:32:56] Speaker 04: Well, it's a past harm, Your Honor, and I think that the language of 618-F is very clear. [00:33:04] Speaker 04: over and over and over again through the repeated use of the present tense, which the Supreme Court in Carr quoting Walney called a kind of striking indicator of the intention that it be applied presently and prospectively, but not retroactively, that that's an indication that in adding 618F, Congress intended to address the issue of ongoing prospective harm. [00:33:29] Speaker 01: The injunction for [00:33:31] Speaker 01: failures is for an order requiring compliance with any appropriate provision of this relevant statute. [00:33:39] Speaker 01: And you agree that that would encompass a 615 injunction for past failure to maintain rights? [00:33:48] Speaker 04: That's right, Your Honor, but the last sentence which talks about the scope of the court's authority to issue an order refers back to the preceding clauses, all of which are framed in the present tense. [00:34:02] Speaker 04: But you just said you agreed it would cover past tense violation like 6 15 F. No, your honor, I think that I'm saying that it covers only ongoing obligations. [00:34:16] Speaker 04: It does not address historic. [00:34:20] Speaker 01: So if it's the 364th day of the third year, or it's almost to be three years, it's a day before three years under 615F, and no records have been maintained for preceding two years and 364 days, then you would agree that you can get an injunction under 618 to require compliance to that. [00:34:41] Speaker 04: For one day? [00:34:43] Speaker 01: Well, to require compliance. [00:34:45] Speaker 04: It would require compliance because there is an ongoing obligation, which an agent... That injunction would continue after. [00:34:52] Speaker 04: Pardon? [00:34:54] Speaker 01: That injunction would continue until compliance occurs, right? [00:34:59] Speaker 04: Under those circumstances, I think I would argue that since the statute itself only requires retention of those records for three years, [00:35:07] Speaker 04: that the court's authority would be limited to enforcing the terms of the statute, which is what 618 says on its face. [00:35:14] Speaker 04: For one day? [00:35:15] Speaker 00: For one day. [00:35:16] Speaker 04: Okay. [00:35:20] Speaker 00: If there are no more questions, thank you. [00:35:22] Speaker 03: Thank you. [00:35:25] Speaker 00: Mr. Minter, why don't you take two minutes? [00:35:30] Speaker 05: Thank you, Your Honor. [00:35:31] Speaker 05: I just want to briefly pick up on the discussion of other obligations, Farah, that continue beyond the termination of agency. [00:35:39] Speaker 05: We talked a lot about Section 615 and the preservation of books and records, but there's another important obligation, perhaps more important, which is that agents are required to file a closeout filing within 30 days after terminating their agency. [00:35:52] Speaker 05: And that disclosure is particularly important because it lets the people know how the agency has been wrapped up and that those activities are no longer ongoing. [00:36:02] Speaker 05: Under Wynne's reported reading of the statute, that obligation would only be enforceable criminally. [00:36:07] Speaker 05: The civil enforcement provision that Congress [00:36:10] Speaker 05: intended to be the less severe option is simply unavailable. [00:36:14] Speaker 05: But I think it also goes to your honor's point about the definition of agency, that the statute uses agents of foreign principle at various points to talk about people that were agents of foreign principle at one time, but have incurred subsequent obligations. [00:36:31] Speaker 02: Is that enough? [00:36:32] Speaker 02: What does that get you? [00:36:33] Speaker 05: So I think that it responds to the concern about the subject of the second clause being agent of a foreign principle and that that shouldn't be a burden or a hindrance to reading that clause to nonetheless apply to past violations such as Mr. Wins. [00:36:48] Speaker 05: I think that together that gets at both the broader purpose of the statute of ensuring this information is out there and the narrower purpose of Section 618F, which is providing the government an option short of criminal prosecution to enforce these kinds of obligations. [00:37:04] Speaker 05: I also want to highlight both with respect to the claim that these kinds of injunctions would only be available for one day. [00:37:11] Speaker 05: Many agents of a foreign power principle act for short periods of time. [00:37:15] Speaker 05: And to simply write off the Attorney General's civil enforcement provision [00:37:18] Speaker 05: in those circumstances, I think is contrary to the purpose that Congress had when it enacted Section 618F. [00:37:25] Speaker 05: We would urge the court to reverse. [00:37:27] Speaker 00: All right. [00:37:28] Speaker 00: Thank you.