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By Elie Honig

Dear Listener,

Thomas Barrack is in a tough spot. 

The former chair of the Trump 2016 Inaugural Committee finds himself on the wrong side of an indictment for crimes that are serious, layered, and seemingly supported by dead-bang evidence. The question now is whether he’ll take on the long odds the come with contesting any federal indictment (never mind one as ironclad as this one) or if he’ll try to save his own hide, even at the expense of others around him.

The indictment first charges that Barrack acted as an unregistered foreign lobbyist in the United States. To be clear: it’s not a crime to lobby the United States government on behalf of a foreign national or country — you just have to formally register with DOJ first. (Here are the official registration forms; they’re actually not mega-complex). 

“Oh, so what?” a skeptic might ask, “He didn’t fill out some paperwork. That’s a crime?” Indeed it is, and it should be. I’m no more a fan of administrative crimes than the next guy, but this is more than just some filing oversight. The idea behind the law is that it’s a national security threat if a person has the ear of our government officials and tries to influence our domestic and foreign policy, while secretly (without disclosing the required forms, that is) working for a foreign government. Not to de-glamorize James Bond, but that’s essentially what a “secret agent” is. Put it this way: imagine if we didn’t have any such laws. We’d have no idea whether the folks lobbying our president, Congress, and other policymakers were secretly working to sway United States policy in favor of foreign countries — including our adversaries. 

The Barrack indictment points up a perfect example. Barrack didn’t just lobby members of Congress or some deputy undersecretary of a federal agency; he had direct access to the President of the United States. As the indictment puts it, “BARRACK would be the only channel to the Candidate for the United Arab Emirates.” (The “Candidate” referenced here is Donald Trump, during his 2016 run; Barrack’s lobbying on behalf of UAE continued during the transition period, and after Trump took office).

And Barrack didn’t just lobby our most powerful government officials — he did it successfully. For example, he got specific language inserted into Trump’s policy speeches that was favorable to the UAE, to the delight of his partners in crime. According to the indictment, after Barrack got some friendly language inserted into a Trump policy speech, Barrack’s co-defendant and conduit to the UAE, Rashid Sultan Rashid Al Malik Alshahhi, emailed that it was “amazing” and that “everybody here are happy with the results.” Another time, after Barrack shilled for the UAE on a national television show, he emailed “I nailed it… for the home team” and Alshahhi gushed that their foreign benefactors were “extremely impressed and happy,” along with other gushy compliments. (By the way: no, Barrack did not register with DOJ as a foreign lobbyist).

This is the rare federal case where prosecutors apparently don’t need to rely on testimony from a cooperating witness, with all the complexity and baggage that can bring. Rather, prosecutors base their case largely on Barrack’s own words, as memorialized in emails and texts with Alshahhi and others. It’s one thing for a defense lawyer to cross-examine a cooperating witness, to argue to a jury that the cooperator is a criminal, crooked, biased — but that’s a tough sell when it comes to a defendant’s own words, in writing.

Making matters worse for Barrack, he allegedly lied to the FBI, which earned him an obstruction of justice charge plus four counts of making false statements to federal authorities. Barrack seemingly lied about the basics: he denied coordinating with UAE through Alshahhi (which is directly contradicted by many of Barrack’s own emails and texts), and he denied having a dedicated phone line to communicate with UAE officials, which presumably is proven by the existence of precisely such a phone line. These charges carry their own penalties and can result in prison time even in the unlikely event Barrack beats the foreign lobbying charges (or, if both sets of charges are proven, the obstruction charges will lead to a higher overall sentence). And Barrack’s lies to the FBI are admissible evidence of what prosecutors call “consciousness of guilt” — the notion that a person lies because he has something to hide, some guilty knowledge. Take my word for it: this can be devastating in front of a jury.

So what will Barrack do now? He has stated publicly that “I am innocent and will prove that in court.” That suggests he’s not interested in cooperating but, then again, plenty of defendants start off full of defiant bluster but end up begging prosecutors to let them cooperate. Reality has a way of setting in slowly, particularly for billionaires who have pretty much done as they pleased for the first seven decades of their lives.

The decision to cooperate (or not) is uniquely personal, complex, and difficult. As a prosecutor, I was surprised many times when people who I never expected to cooperate did come on board, and when people who I thought would come running in the door instead hunkered down and fought us. So the best we can do for now is to consider the incentives. Barrack is 74 years old. He’s looking down the barrel of an indictment that lays out compelling evidence of his guilt. If he’s convicted, either at trial or by guilty plea without cooperation, he almost certainly will go to federal prison for several years. He’s got plenty of money, and he doesn’t need Trump, or anyone else that we know of, for anything in particular.   

If he does cooperate, Barrack would make for one hell of an interesting initial proffer (the meeting where the cooperator or his attorney gives a broad overview of the cooperator’s knowledge). There’s no indication that Trump did anything illegal connected directly to the indictment now pending against Barrack — though it’s fair to question just how much Trump knew, and just how sloppy the administration was in permitting a person like Barrack to have such close access to, and influence over, the president.

Federal cooperation generally is all-or-nothing. That certainly is the longstanding practice at my old office, the Southern District of New York, and it also is the prevailing norm across the river at the Eastern District of New York, which is handling the Barrack case. A cooperator must provide information relating to the pending indictment, of course, but also about any other criminal conduct beyond the indictment, committed by the cooperator or by any other person. Recall that Barrack was the chair of the Trump 2016 Inaugural Committee, which was once under investigation by the SDNY for all manner of bizarre financial shenanigans. That investigation, which once seemed promising, fizzled out (or perhaps was snuffed out) during the Trump administration. Prosecutors might have a few questions for Barrack about that particular organization and its finances.

Late last week, prosecutors — who initially had opposed Barrack’s release from prison on bail, pending further proceedings — changed course and agreed to let him out upon posting of a massive security bond and other protective measures. This could be nothing; it could simply indicate that prosecutors were satisfied that Barrack’s mega-bond ensured that he wouldn’t flee. Or, this could reflect an accommodation by prosecutors as part of a tentative understanding aimed at cooperation. I did this a few times as a prosecutor: consented to bail, where ordinarily I would not have done so, to facilitate cooperation. This is not common, but it does happen.

Ultimately, it will be up to Barrack. Will he become yet another Trumpworld denizen to bite the dust while the boss remains untouched? Or will he take others down with him?

Stay Informed,

Elie