DOJ Argues Steve Wynn Foreign Lobbying Suit Should Be Reinstated

(Bloomberg) -- A US Justice Department attorney tried to persuade an appeals court that casino magnate Steve Wynn should have registered as a foreign agent when he alerted the Trump administration that China wanted to extradite a wealthy exile.

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A three-judge panel for the US Court of Appeals for the DC Circuit heard arguments Tuesday in the government’s appeal of District Judge James Boasberg’s decision to toss civil claims against Wynn. Boasberg reasoned that the Foreign Agent Registration Act only applies to ongoing violations and years had passed since the founder of Wynn Resorts Ltd. was required to file a statement.

“The district court’s interpretation is contrary to the purpose of FARA,” which is meant to protect the US from foreign influence, argued Joseph Minta, a government attorney, noting that it’s in the public’s interest to be aware of that information even if the conduct happened in the past.

Robert Luskin, an attorney for Wynn, pushed the panel to accept the lower court’s ruling, arguing that it was bound by a previous DC Circuit decision regarding the interpretation of FARA.

The government has said that the ruling Boasberg relied upon doesn’t apply to Wynn’s civil case since it only addressed FARA in a criminal context.

Justice Department attorneys have cautioned that the lower court decision would encourage “gamesmanship” by individuals who would be less likely to register as foreign agents if they know there will be no civil repercussions if they stop acting on behalf of non-US actors. Agents could conduct “their activities clandestinely” or cease “once a government investigation begins,” according to the government.

The case dates back to allegations that in 2017 Wynn informed President Donald Trump and others in the administration that China wanted the US to extradite Guo Wengui, a wealthy exile who was critical of the Chinese government. In May 2022, the Justice Department filed suit against Wynn, making it the first FARA case in three decades.

Wynn’s attorneys have denied that their client lobbied on China’s behalf.

In court Tuesday, Minta argued that part of the statute should be interpreted to capture past conduct. But DC Circuit Judge Patricia Millett, an Obama-appointee, grilled Minta about bringing a new argument to the panel that wasn’t presented to Boasberg. The lower court would be “sandbagged” in this situation since it wasn’t able to hear this argument, said Millett. Millett also questioned the government’s interpretation of the statute. “There is no language at all suggesting retro-activity,” she added.

DC Circuit Judge Cornelia Pillard, who was also appointed by Barack Obama, suggested in her questioning that requiring an individual to register years after lobbying could provide important context since it would be part of the permanent record.

The case is Attorney General of the United States v. Stephen Wynn, 22-5328, US Court of Appeals for the District of Columbia Circuit.

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