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DC Circuit affirms dismissal of foreign agent suit against former Wynn Resorts head

The Justice Department sued billionaire Steve Wynn after he joined failed efforts to remove Chinese dissident Guo Wengui from the United States. As part of the plan, Wynn lobbied former President Donald Trump on behalf of the Chinese government.

WASHINGTON (CN) — A D.C. Circuit panel on Friday affirmed the dismissal of a suit against casino and hotel magnate Steve Wynn in which the Justice Department had sought to force him to register as a foreign agent of China. 

The government in 2017 asserted that Wynn, a billionaire who oversaw the construction and operation of iconic Las Vegas casinos including The Mirage, Treasure Island and the Bellagio, had lobbied former president Donald Trump to return Chinese dissident Guo Wengui to China. 

The three-judge panel, made up of U.S. Circuit judges Karen Henderson, Patricia Millett and Cornelia Pillard — a George H.W. Bush appointee and two Barack Obama appointees, respectively — found that even if Wynn had acted as a foreign agent, he had long since stopped. 

The panel found that the central question in the case was whether the Foreign Agent Registration Act placed a “continuing obligation” on Wynn despite the fact his work on behalf of China ended in 2017. And “under McGoff, which binds this panel, the answer is plainly ‘no,’” Millet wrote in the court's opinion, citing the 1987 D.C. Circuit case United States v. McGoff. 

In that case, a panel headed by former U.S. Circuit Judge Kenneth Starr found that the five-year statue of limitations under the FARA begins on the last day the individual acted on behalf of a foreign power.

In its case against Wynn, the Justice Department said that in May 2017, Elliot Broidy, former finance chair of the Republican National Committee, met with a group of individuals to discuss lobbying Trump to cancel Wengui’s visa or otherwise remove him from the country.

The group included Malaysian businessman Low Taek Jho, Fugees rapper Pras Michel, Hawaiian businesswoman Nickie Mali Lum Davis and Sun Lijun, the former vice minister for public security in China who is now facing a death sentence for corruption.

The following month, Broidy enlisted Wynn to help in the effort. Wynn began reaching out to Trump and multiple administration officials to push for Wengui’s removal.

Wynn was unsuccessful — and in October 2017, he informed Sun that he had done his best and would no longer participate. 

Brodie in 2020 was charged with conspiring to act as an unregistered foreign agent for his part in the scheme. Trump pardoned him on the last day of his presidency.

Davis pleaded guilty for her part in the plan, while Michel was convicted over both the scheme and his efforts to help Jho gain access to several U.S. officials, including former President Barack Obama.

In May 2018, the Justice Department sent Wynn a letter advising him to register as a foreign agent. Wynn refused and disputed the requirement over the next four years. 

Finally, in 2022, the Justice Department sued Wynn in an effort to force him to register. However, a federal judge ultimately found that since Wynn’s efforts ended in October 2017, he was no longer required to register.

The Justice Department has argued that McGoff should not apply in this case because it was a civil matter — not a criminal one. It argued it only wanted to compel Wynn and was not seeking Wynn’s prosecution. 

The government pointed to U.S. Code Section 618(f) to argue that the statue covers imminent, ongoing and past violations of the FARA and allows for injunctions to compel compliance for past violations. 

On Friday, though, Millett and other judges found little evidence to support the Justice Department’s reading. 

“None of the three forms of Section 618(f) injunctive relief applies to Wynn’s situation,” Millett wrote. “Under McGoff, Wynn (1) is not engaged in any FARA-prohibited ‘acts’ because he is not acting as a foreign agent, (2) is not ‘continuing to act as an agent of [a] foreign principal’ because he ceased any such activity seven years ago and (3) is in ‘compliance’ with Section 612(a) because, under McGoff, he is under no present duty to register, as any such duty expired October 2017.” 

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