Brian D. Smith

Brian D. Smith

Brian Smith provides strategic and legal advice on matters that require substantial political, reputational, or government relations considerations.  He represents companies and individuals in high-profile or high-risk investigations, particularly congressional investigations, criminal investigations with political implications, and investigations related to political law compliance.  He has significant experience in crisis management, where he advises clients facing combined legal, political, and media relations risks.  His practice also includes the development and execution of government relations initiatives, including securing the U.S. government’s political support on behalf of U.S. companies facing international legal issues.

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Congressional Investigations and the Rules of the 116th Congress

By Robert Kelner, Brian D. Smith and Muftiah M. McCartin on Posted in Congressional Investigations
With Congress heavily engaged in launching and pursuing new congressional investigations, particularly since the Democratic takeover of the House of Representatives, many of our clients have questions regarding the rules that govern congressional investigations. While many aspects of congressional investigations are not subject to any rules at all, the House, Senate, and their respective committees … Continue Reading

New Department of Justice FARA Opinion May Narrow the “LDA Exemption”

By Robert Kelner and Brian D. Smith on Posted in Foreign Agents Registration Act
The Department of Justice’s FARA Unit appears to have signaled a significant narrowing in the scope of a major FARA exemption that is especially important to private sector companies, including U.S. subsidiaries of foreign corporations.  The apparent narrowing of FARA’s exemption for those who register under the Lobbying Disclosure Act (“LDA”) appeared in an advisory … Continue Reading

Congressional Investigations After the Midterm Elections

By Brian D. Smith on Posted in Congressional Investigations
Brian Smith delivered the following remarks during Covington’s post-election conference call with clients on November 8, 2018. “Restoring the Constitution’s checks and balances to the Trump administration.”  That’s what Democratic leader Nancy Pelosi promised in her speech after the elections. Congressional oversight and investigations thrive in divided government, and Democratic leaders are already promising a … Continue Reading

Are You Ready For Your Congressional Investigation?

By Brian D. Smith on Posted in Congressional Investigations
If the current polls and predictions are accurate, the Democratic party is poised to take control of the House of Representatives next year, for the first time since 2010.  Congressional investigations thrive in divided government, and Democratic leaders in Congress are already promising a new wave of investigations. My new article in Law360 examines the … Continue Reading

New Wave of Trade Lobbying Presents FARA Registration Concerns

By Robert Kelner and Brian D. Smith on Posted in Foreign Agents Registration Act
Washington is awash with lobbyists seeking to address new steel and aluminum tariffs, and other potential tariffs, on behalf of both foreign and domestic clients.  Lobbying on trade issues in some circumstances may trigger Foreign Agents Registration Act (“FARA”) obligations.  The connection between trade lobbying and FARA was the subject of close scrutiny several decades … Continue Reading

The Foreign Agents Registration Act (“FARA”): A Guide for the Perplexed

By Robert Kelner and Brian D. Smith on Posted in Foreign Agents Registration Act
Eighty years ago, Congress enacted the Foreign Agents Registration Act (“FARA”), requiring “foreign agents” to register with the Attorney General. As amended over the years, it applies broadly to anyone who acts on behalf of a “foreign principal” to, among other things, influence U.S. policy or public opinion. Until recently, it was a backwater of … Continue Reading

House of Representatives Seeks to Strengthen Subpoena Enforcement Dramatically

By Brian D. Smith, Muftiah M. McCartin and Richard A. Hertling on Posted in Congressional Investigations
In late October, the House of Representatives quietly approved a bill that would dramatically strengthen Congress’s procedures for enforcing congressional subpoenas.  In adopting the bill, the bipartisan leadership of the House Judiciary Committee highlighted the challenges that Congress faces in obtaining materials from executive branch agencies.  Significant portions of the bill, however, apply to all … Continue Reading

Grassley Legislation Would (Re)Impose FARA Obligations on Private Sector Entities

By Brian D. Smith on Posted in Foreign Agents Registration Act
With the Foreign Agents Registration Act in the news and public awareness of this formerly obscure statute at an all-time high, Senator Charles Grassley (R-Iowa) introduced legislation last week to revise the statute significantly, including reversing a decision Congress made in 1995 to remove most private sector reporting from FARA and place it instead under … Continue Reading

Rep. Gowdy Plans Deeper Oversight

By Robert Kelner, Brian D. Smith, Gabe Neville and Andrew Garrahan on Posted in Congressional Investigations
The new chairman of the House Committee on Oversight and Government Reform, Representative Trey Gowdy (R-S.C.), outlined his plans for the Committee last week.  As we expected, Mr. Gowdy said that he would pursue more methodical investigations.  Noting that hearings are “an inefficient way to gather facts,” Mr. Gowdy said that the Committee would pursue … Continue Reading

Grassley Defends Congressional Oversight; House Democrats Turn to Statutory Oversight Authority

By Robert Kelner, Brian D. Smith and Andrew Garrahan on Posted in Congressional Investigations
The Trump administration’s efforts to curtail congressional oversight of executive branch agencies by individual Members of Congress, including ranking Democratic Members of Committees, ran into significant opposition from an unlikely source:  Senator Chuck Grassley (R-Iowa), the Republican Chairman of the Senate Judiciary Committee.  Sen. Grassley’s strong reaction is consistent with his role as perhaps Congress’s … Continue Reading

The Gowdy Era of Congressional Investigations

By Robert Kelner, Brian D. Smith, Gabe Neville and Andrew Garrahan on Posted in Congressional Investigations
With the announcement by Rep. Jason Chaffetz (R-Utah) that he plans to resign from Congress on June 30, it appears increasingly likely that Rep. Trey Gowdy (R-S.C.) will become the next Chairman of the House Committee on Oversight and Government Reform, the House’s powerful watchdog committee that has very broad investigative jurisdiction.  Although a final … Continue Reading

D.C. Circuit Dismisses Major Case Concerning Attorney-Client Privilege in Congressional Investigations

By Robert Kelner and Brian D. Smith on Posted in Congressional Investigations, Litigation
The long saga of the legal challenge by Carl Ferrer, CEO of Backpage, to a subpoena issued by the Senate’s Permanent Subcommittee on Investigations (“PSI”) appears to have reached a conclusion.  A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit this week dismissed the case as moot and additionally vacated a … Continue Reading

The Latest Twist in the Backpage Litigation and its Implications for the Attorney-Client Privilege in Congressional Investigations

By Brian D. Smith on Posted in Congressional Investigations
Litigation by the Senate Permanent Subcommittee on Investigations to enforce a subpoena for documents from Carl Ferrer, the CEO of Backpage, an online forum accused of contributing to sex trafficking, has taken another interesting twist, with the D.C. District Court ruling that Backpage cannot assert the attorney-client privilege to protect certain documents.  It is rare … Continue Reading

Supreme Court Refuses to Stay Senate Subpoena, Highlights the Difficulties Inherent in Challenging a Congressional Subpoena

By Brian D. Smith on Posted in Congressional Investigations
The Supreme Court today refused to block a subpoena by the Senate Permanent Subcommittee on Investigations of the online forum Backpage and its CEO Carl Ferrer.  As we previously reported, Ferrer lost at the District Court in his effort to block the Senate subpoena, arguing primarily that the subpoena abridged his First Amendment rights.  Ferrer … Continue Reading

The Senate’s District Court Win in the Backpage Subpoena Fight Could Have Significant Implications for Congressional Investigations

By Brian D. Smith, Robert Kelner and Derek Lawlor on Posted in Congressional Investigations
Last week, the U.S. District Court for the District of Columbia ruled in favor of the Senate Permanent Subcommittee on Investigations in a rare case that has the potential to contribute significantly to the case law concerning congressional investigations. It is uncommon for a federal court to have an opportunity to rule on a congressional … Continue Reading

New Insights on FARA Enforcement Emerge from DOJ Letter to Sen. Grassley

By Zachary G. Parks and Brian D. Smith on Posted in Foreign Agents Registration Act
In a recent letter to Sen. Chuck Grassley (R-Iowa), the Department of Justice offered a rare public glimpse into the enforcement activities of the small unit in the Department that enforces the Foreign Agents Registration Act.  Some of the details highlighted in the letter are consistent with observations that we have shared in this blog; … Continue Reading

POGO Report on FARA Misses the Larger Point

By Brian D. Smith and Robert Kelner on Posted in Foreign Agents Registration Act
Last week, the Project on Government Oversight (POGO) released a report on the Foreign Agents Registration Act with an attention-grabbing title:  “Loopholes, Filing Failures, and Lax Enforcement: How the Foreign Agents Registration Act Falls Short.”  The tone of the title was echoed in several news reports, including in The Hill (“Foreign lobbying enforcement ‘lax’”) and … Continue Reading

FARA Again in the Spotlight: New York Times Examines Foreign Funding and Think Tanks

By Robert Kelner and Brian D. Smith on Posted in Foreign Agents Registration Act
This weekend, the New York Times ran a lengthy investigative report on foreign government donations to U.S. think tanks.  The story alleged that the foreign governments bought influence and paid for advocacy by some of the nation’s most respected research institutions.  The article outlined contributions from Norway, UAE, Qatar, Japan, and others to think tanks … Continue Reading

Lobbyists Can Now Sit on Some Federal Advisory Committees: Here’s How to Find Out Where

By Zachary G. Parks and Brian D. Smith on Posted in Government Ethics, Lobbying Compliance
In a significant reversal by the Obama administration, lobbyists will now be permitted to serve on federal advisory committees, boards, and commissions after more than four years of sitting on the advisory committee sidelines.  In guidance published in the Federal Register today, the Office of Management and Budget (“OMB”) quietly revised, in large part, the … Continue Reading

Two More Public Relations Firms Trip Over the Foreign Agents Registration Act

By Robert Kelner and Brian D. Smith on Posted in Enforcement, Foreign Agents Registration Act, Lobbying Compliance
Two public relations firms have filed documents with the Department of Justice revealing that they provided public relations and media services in the United States for the government of Ecuador without being registered under the Foreign Agents Registration Act (FARA), as that law requires.  These firms are the latest in a long string of law … Continue Reading

Is Lobbying Reform Looking More Likely?

By Brian D. Smith and Andrew Garrahan on Posted in Lobbying Compliance
In the past week, the Association of Government Relations Professionals (formerly the American League of Lobbyists) announced its endorsement of tougher disclosure requirements for lobbyists, and Senators Michael Bennet (D-CO) and Jon Tester (D-MT) introduced the Close the Revolving Door Act of 2014, which would permanently ban former Members of Congress from becoming lobbyists.  This … Continue Reading

2013 GAO Lobbying Disclosure Report Shows Challenges in Compliance, Recordkeeping

By Brian D. Smith, Zachary G. Parks and Andrew Garrahan on Posted in Enforcement, Lobbying Compliance
Last week, the Government Accountability Office (GAO) released its 2013 report on compliance with the Lobbying Disclosure Act of 1995 (LDA), summarizing the audits of 104 lobbyist reports and information from the U.S. Attorney’s Office for the District of Columbia. We see several trends in this year’s report.  First, registrants are reporting more difficulties complying … Continue Reading

Covington Releases New Data on FARA Audits Conducted by the Department of Justice

By Brian D. Smith on Posted in Enforcement, Foreign Agents Registration Act, Lobbying Compliance
Covington & Burling LLP today released new data showing that the Department of Justice has maintained an increased level of Foreign Agents Registration Act audits,and settled into a consistent pattern of conducting 15 audits of FARA registrants each fiscal year. In each of the last four years, the Department of Justice’s FARA office has conducted 15 audits of FARA registrants, we reported at Covington’s … Continue Reading

Update #2: Appeals Court Reinstates Legal Challenge to Ban on Lobbyists Serving on Advisory Committees

By Brian D. Smith on Posted in Government Ethics, Litigation, Lobbying Compliance
On January 17, 2014, the D.C. Circuit Court of Appeals reinstated a legal challenge to President Obama’s ban on lobbyists serving on advisory boards and commissions in federal agencies.  The appellate decision overturned a lower court judgment, issued in September 2012, that dismissed the claims of several lobbyists who alleged that the ban violated their … Continue Reading
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