As I explain in a forthcoming law review article, Dark Money as a Political Sovereignty Problem, the federal sentencing guidelines already make a distinction between mere foreign nationals and members of foreign governments. The article states, “[t]he federal sentencing guidelines were amended to reflect the new strictures of BCRA including sentencing enhancements for foreign money in American elections especially if the source was a foreign government.”
In the first post-McCain Feingold sentencing guidelines, in 2003, penalties listed at §2C1.8(b)(2) were enhanced if the campaign finance offense involved a foreign national (two levels) or a foreign government (four levels). Thus there is more prison time for a person working for a foreign government than one who is simply a run-of-the-mill foreign national like Bluman.
And if you’re wondering how the law defines a “government of a foreign country,” the sentencing guidelines use FARA’s definition. The term “government of a foreign country” includes “any person or group of persons exercising sovereign de facto or de jure political jurisdiction over any country, other than the United States, or over any part of such country, and includes any subdivision of any such group and any group or agency to which such sovereign de facto or de jure authority or functions are directly or indirectly delegated.”
So it actually makes a difference whether the Russian lawyer, or the Russian-American former KGB agent, or the Soviet-born financier once suspected of money laundering, or the former British tabloid reporter who now promotes a Russian pop star or even the U.S.-born translator, or anyone else who managed to fit in Donald Jr.’s office that day along with Manafort and Kushner were working for the Russian government. If any of the lot was working for the Kremlin and they’re convicted of violating the foreign contributions ban, they’ll face a stiffer sentence.