California State Attorney General Jerry Brown is currently facing a scandal over alleged prohibited trips taken to Cuba in 2000.

According to the allegations being leveled at Brown, he was involved in a July 2000 trip to Cuba in violation of the Cuban Assets Control Regulations (“CACR”); commonly referred to as the Cuban Embargo. During that time Brown was the Mayor of Oakland and took the trip to officially formalize Oakland’s sister-city status with Santiago de Cuba. Brown is alleged to have spent substantial time with Fidel Castro on that trip.

It was known at the time of the trip that Brown was visiting Cuba, however, new reports are coming out which allege that Brown’s entire trip was set up by a former CIA agent who became a double agent for Cuba before defecting to the island.

According to a recent new story, Phillip Agee, a CIA expert on Latin America in the 1960s, divulged the names of hundred of American agents before fleeing the United States in the mid-1970s; many in America’s intelligence community believe information he divulged led to at least one murder. After setting up in Havana, Agee reinvented himself as a travel agent, and eventually came to count Jerry Brown as a client. According to these same reports, Agee was candid about his ambitions for his travel agency stating that he would like to see more Americans ignore the travel restrictions imposed by the CACR and advised clients to use European bank accounts to be avoid detection by U.S. authorities. The reports go on to allege that Brown when referring to Agee stated that, “he’s “a very good travel agent…got everything done…he’s quite a guy.”

At the time of Brown’s trip, Agee’s travel agency was not on the the United States Department of the Treasury Office of Foreign Assets Control’s (“OFAC”) list of authorized Cuban travel and remittance service providers. As readers of this blog know, no travel to Cuba is authorized without specific or general license authorization from OFAC and even then that travel must only use authorized travel service providers. Furthermore, no U.S. person, including U.S. citizens wherever situated, are permitted to operate a business engaging in services akin to those of travel agent which offers those services to Cuba unless specifically license by OFAC to do so; that law is codified at 31 CFR 515.572(a)(1).

In all, the reports allege that Brown traveled to the home of Elian Gonzalez’s family with Castro, had lunch with the dictator twice, joined Communist officials in the VIP box at a Castro speech, and took his return trip to the Havana Airport in the Cuban presidential limousine, chatting with Castro during the ride. While the reports do not indicate whether or not Brown’s trip was authorized pursuant to a specific license, it is not entirely clear whether the travel fo a city official would be licensable. Specific license authorization can be granted by OFAC for travel to Cuba for trips by U.S. government officials on official business. However, there is no indication that such regulation applies to city or state government officials. This does not mean that there is no way Brown had obtained a license to travel to Cuba. Surely, specific license authorizations are granted on a case by case basis and OFAC is within their discretion to have granted Brown a license to travel to Cuba. What is important here is that regardless of whether a license application was provided here or not is the fact that OFAC probably would not have granted such an authorization had they known Brown was going to use an unlicensed Cuba travel service provider, nor would they have approved of the nature of the nature of the meetings with Castro.

The good news for Brown here is that OFAC investigations are subject to a 5 year statute of limitations, so as long as he has not engaged in other violations in relation to that trip he should be out of trouble (legally, not politically) for any indiscretions on that trip. Although I’m not a Californian and won’t be voting in that election, if I was I wouldn’t hold Brown’s trip to Cuba against him. The CACR is so complex and confusing that it is hard to determine what activities are authorized and mistakes are made even when the travel to Cuba is authorized.

The author of this blog is Erich Ferrari, an attorney specializing in OFAC litigation. If you have any questions please contact him at 202-280-6370 at 202-351-6161 or ferrari@ferrari-legal.com.