Does The New York Times have to register with the government under the Foreign Agents Registration Act?
The act has been in the news lately in connection with the wide-ranging probe by special counsel Robert Mueller into foreign interference in the 2016 presidential election.
Mueller’s indictment of President Trump’s campaign manager, Paul Manafort, charges Manafort with misleading the Justice Department about his activities for Ukrainian clients. The indictment states, "It is illegal to act as an agent of a foreign principal engaged in certain United States influence activities without registering the affiliation."
And legal papers filed by Mueller in connection with a guilty plea by Trump’s national security adviser, Michael Flynn, charge Flynn with making "materially false statements and omissions" in a 2017 filing he made under the Foreign Agents Registration Act that disclosed work he did about Turkey.
The law Mueller is relying on includes an exemption for "any news or press service or association organized under the law of the United States or of any state." You might think that would let the Times off the hook. Yet that exemption also requires that the news organization’s "officers and directors, if any, are citizens of the United States." That is a test that the Times fails; the CEO and president of the New York Times Co., Mark Thompson, who is a member of its board of directors, is not an American citizen, Thompson disclosed in a November 2017 interview with Ken Doctor of Harvard’s Nieman Lab.
Without that news exemption, the law casts a wide net that takes in "any person" — a "person" for this purpose, according to the law can include a corporation or organization — who "engages within the United States in political activities for or in the interests of" a foreign principal.
You might think the "foreign principal" has to be an actual foreign government such as Turkey or Ukraine. But again, the law casts a wide net — it defines foreign principal as not only a foreign government or foreign political party but also "a person outside of the United States," or a foreign partnership or corporation. Under the terms of the law, in other words, Carlos Slim Helu is a foreign principal.
According to the 2017 Times Company proxy statement, Slim, who is based in Mexico, owned 17.3 percent of the Times Company’s Class A stock. That is more than the Ochs-Sulzberger family, whose holdings "represented approximately 11 percent of the company’s total outstanding equity (i.e., Class A stock and Class B stock of the company)."
Does the Times engage "in political activities"?
Well, just the other day an official Times Twitter account was urging readers to call U.S. senators and tell them to reject the tax bill. That action sure seems to fit the act’s broad definition of political activities, as does the Times’ routine publication of editorials expressing an institutional position on matters such as economic sanctions on Iran and Cuba, taxes and tariffs, and approval of proposed mergers in the telecommunications industry.
Are the Times’ political activities in Slim’s "interests"? Slim’s interests are so vast that it’s hard to say precisely. Bloomberg places him 7th on the world’s billionaire’s list, with total net worth of about $61 billion. A substantial portion of that comes from cellphone businesses operating in Mexico and other countries. Maybe he’d like to get into the business of selling cellphone service in Cuba.
He owns Telekom Austria in partnership with OBIB, Austria’s sovereign wealth fund; OBIB is also a huge player in developing Iran’s oil and gas business. The North American Free Trade Agreement, President Trump’s proposed border "wall," and treatment of legal and illegal Mexican immigrants already in America could all have huge implications for the business interests of a Mexican billionaire.
Little is publicly known about any communications between Slim and Times Company management.
If the whole thing seems far-fetched, consider that in October 2016, Trump himself accused Slim of trying to influence the election. "The largest shareholder in Times is Carlos Slim. Now Carlos Slim, as you know, comes from Mexico," Trump said then. "Reporters of The New York Times, they’re not journalists, they’re corporate lobbyists for Carlos Slim." Back then, a spokesman for Slim denied that Slim gets involved in American politics, and Times publisher Arthur Sulzberger Jr. said Slim "has never sought to influence what we report."
It may seem like "whataboutism" to raise Mexican meddling in the context of Mueller’s probe of Russian influence. But Turkey and Ukraine aren’t Russia, either. The Times could probably make a strong First Amendment freedom of the press case against the constitutionality of the Foreign Agents Registration Act. But the same First Amendment also is supposed to protect the speech and petition rights of all Americans.
The Foreign Agents Registration Act was passed in 1938 amid anxiety about German influence as World War II loomed. Nearly 80 years later, perhaps it’s time for Congress to revisit the law with an eye toward narrowing its scope or even repealing it altogether. That could even be one policy agenda item on which Flynn, Manafort, and the Times could all agree.
Ira Stoll is editor of FutureOfCapitalism.com and author of "JFK, Conservative." Read more reports from Ira Stoll — Click Here Now.
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