Nearly a decade after his release from prison, having served nearly four years on corruption charges, disgraced lobbyist Jack Abramoff may be heading back behind bars, this time as the first person ever charged and convicted for criminal violations of the Lobbying Disclosure Act (“LDA”).  Yesterday the Justice Department announced that notorious lobbyist Jack Abramoff will plead guilty in what is believed to be the first ever criminal prosecution for failure to register under the LDA.

Although the LDA provides for criminal penalties for any person who “knowingly and corruptly fails to comply with any provision of [the Act],” 2 U.S.C. § 1606(b), until now DOJ had never identified an instance of failure to register that was so “knowing and corrupt” as to rise to the level of a criminal violation.  Indeed, even the LDA’s civil penalty—providing for civil penalties up to $200,000 for “knowingly” failing to either (1) remedy a defective filing within 60 days of receiving notice from the Clerk of the House and the Secretary of the Senate, or (2) otherwise comply with the Act—is rarely invoked.

Abramoff’s charges stem from an FBI sting operation in which an undercover agent posing as a business person seeking to fund lobbying efforts agreed to retain Abramoff for lobbying activities including lobbying contacts.  After being retained, and later contacting a member of Congress on behalf of his new client, the Information alleges that Abramoff failed to register.

The LDA requires “a lobbyist” to register with the Clerk of the House and the Secretary of the Senate within 45 days of the earlier of the date of their first lobbying contact, or the date on which the lobbyist was “retained to make a lobbying contact.”  2 U.S.C. § 1603(a).  A “lobbyist” is an individual who is employed or retained by a client for compensation for “services that include more than one lobbying contact,” and engages in “lobbying activities” for 20% or more of the time spent on services for that client over a 3 month period.  Id. § 1602(10).

A “lobbying contact” is any communication with a covered official—including all members of Congress and their staff—regarding legislation, nominations, rules, regulations, Executive Orders, or any other “program, policy, or position of the United States Government.”  Id. § 1602(8)(A).  “Lobbying activities” includes both “lobbying contacts, and efforts in support of such contacts, including preparation and planning activities, research and other background work that is intended, at the time it is performed, for use in contacts, and coordination with the lobbying activities of others.”  Id. § 1602(7).

To be fair to prosecutors, these rules can be so complex that a “knowing and corrupt” violation is difficult to commit.  Many businesses (and their lawyers) routinely scrutinize whether their employees or consultants have triggered LDA registration by making “more than one lobbying contact” and engaging in “lobbying activities” for 20% or more of their time.

The charging documents in this case seem unconcerned with the definitions of “lobbying contact” and “lobbying activities,” instead focusing on Abramoff’s blatant obligation to register once retained to undertake these functions.  While the rules are complicated and arcane to many businesses and lobbyists, prosecutors in this case were clearly convinced that Abramoff, of all people, should know better: the information charging him for violating the Act specifically points out that Abramoff “was aware of the obligations to register as a lobbyist in part because Congress amended provisions of the Lobbying Disclosure Act in 2007 in part as a reaction to Abramoff’s past conduct as a lobbyist.”