An opinion by Chief Judge Beryl Howell of the U.S. District Court for the District of Columbia unsealed yesterday has generated much attention for its discussion of contributions-for-pardons allegations in a case that is still largely obscured from public view.  But the underlying offenses at issue in the case also include an alleged “secret lobbying scheme” involving efforts to lobby the White House without registering under the Lobbying Disclosure Act (“LDA”).  Even as redacted, the opinion reveals some interesting nuggets about the Department of Justice’s efforts to prosecute LDA violations, though much is unknown about this case including the facts, the parties, the history, and the relevant evidence.

This appears to be only the second public instance of DOJ conducting a criminal investigation of unregistered lobbying under the LDA, following Jack Abramoff’s guilty plea to that offense in June of this year.  The scarcity of LDA prosecutions is likely due in part to the high bar for criminal LDA prosecution generally, which requires “knowingly and corruptly” failing to comply with the Act.  The Act has civil penalties as well, which have occasionally been levied against particularly egregious violations.

But the opinion reveals another potential challenge to prosecuting LDA violations: registration is only required when the lobbyist spends twenty percent of his or her time for a particular client in any three month period on “lobbying activities” as defined in the LDA, and proving this could be challenging. As described in a footnote to Judge Howell’s opinion, “a prima facie showing of a purported violation of the LDA may be elusive because, as the government concedes,” there was insufficient evidence then available to show the allegedly unregistered lobbyists had reached the twenty percent threshold.  Moreover, the same footnote recognizes that there are nineteen exceptions from registration, including some “broad exceptions” that might apply on further fact-finding.

If this and the Abramoff case are the start of a trend towards more criminal LDA prosecutions, the opinion also reveals some of the challenges DOJ may face going forward.