On Lobbying and SDNs: The Technical Rebuttal

I realized that my post about two lobbyists being criminally indicted was a bit tongue in cheek (and maybe a little biased), but there have been some questions about the ability to lobby for an SDN. This question stems from the notion that lobbying for someone is in effect an extension of providing legal services and that it should be allowed. Because I do not believe that lobbying qualifies as a legal service, I do not believe that any of the authorizations would permit it. Chalk it up to my background at OFAC and being a sanctions zealot. Arguments can be made the other way. However, as Erich Ferrari points out, not including lobbying as an authorized service does present a moral dilemma that places OFAC on the defensive, something I’ll address in a separate post. My differences with the contention that lobbying should be allowed not only stem from the technical definition of the regulations, but also from the definition of lobbying and characterizing the services and requirements behind the act. This brings up two questions that need to be answered. First, what is lobbying? Second, does it fit into legal services? After that we can figure out if Israel and Turner have a credible legal defense for lobbying for Mugabe (spoiler alert: the answer is no regardless of how questions #1 and 2 come out). So, what is lobbying? If we take a look at Webster’s we find this definition: v. lob·bied, lob·by·ing, lob·bies v.intr. To try to influence the thinking of legislators or other public officials for or against a specific cause v.tr. 1. To try to influence public officials on behalf of or against (proposed legislation, for example): lobbied the bill through Congress; lobbied the bill to a negative vote. 2. To try to influence (an official) to take a desired action. Nowhere in the definition of lobbying is it alluded to that lobbying itself is a legal service. In fact, lobbying is an act of free speech denoting an action of when the member of the public or a constituent approaches a figure in authority to convince him or her of a specific course of action. In the United States, anyone may lobby congress, their community leaders and even the random guy giving away free newspapers on the corner (listed in degrading level of effects that is…). Thus, you do not need to have a law degree and be licensed to practice law in the state that you are lobbying in. Construing that it does is simply making a statement that lawyers are allowed special privileges that exceed general first amendment rights. However, because much of what we know as lobbying involves regulations and legislation, many of the lobbyist you see around D.C. are in fact lawyers. The second question then becomes: Does lobbying to have sanctions listed constitute as legal services as defined in 31 CFR 541.507? As I generally did when I was at OFAC, we’ll walk through this passage by passage to make sure we don’t miss anything and relate all the possible legal services to lobbying if applicable: The core paragraph of 541.507 states this: (a) The provision of the following legal services to or on behalf of persons whose property or interests in property are blocked pursuant to § 541.201(a) is authorized, provided that all receipts of payment of professional fees and reimbursement of incurred expenses must be specifically licensed: Hint, there is some foreshadowing for the Israel-Turner case in the above passage. But for the most part, it is clear that legal services for the passages we will look...

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Dear world: This is why you don’t lobby for SDNs

I know I remember seeing this happening a while back, but it looks like DOJ is pressing criminal charges against two lobbyists for Mugabe. Call it a post-election IEEPA party. Perhaps if your job is to explain to the authorities why a certain set of regulations should be lifted, it might be a good idea to read the regs in the first place. Everything being equal, this case is notable as it is a criminal complaint and not a civil one. I guess if the trial starts going poorly for these guys, I’m sure there is one country that will give them safe harbor…at least for the next five...

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Mugabe Wins Election – Sanctions Probably Aren’t Going Away

Looks like good ole Bobby Mugabe is set to see 39 years of ruling Zimbawe after elections this Sunday. Call me surprised. I guess when you have been running the entire state apparatus for over three decades on essentially a one party system, a fair election a free election does not make. I guess we can call it progress anyways. Their military didn’t coerce anyone into voting for the guy sans mustache. Given that the entire purpose of Executive Order 13469 is to use sanctions to bring about democracy, I wouldn’t be surprised if this program hung around for a bit longer. The Zimbabwe program is perhaps one of the most far reaching list based programs that OFAC administers. On the outset, it looks like a simple list of entities and individuals. But as you begin to dig deeper into the SDNs you realize that not only has almost every major bank in Zimbabwe been designated, but a lot of the SDN companies are involved in all economic trade. For instance, Minerals Marketing Corporation takes a cut in almost all imports and exports of materials, meaning even a simple transaction can have an SDN interest. Obviously, processing this payment could very well be providing a service to an SDN. Our advice, keep this one on the filter and keep up the enhanced due...

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