The case against Tom Barak may bring confidential materials to court

Washington—Considering the breadth and particularity of the evidence, Tom Barack’s defense lawyer has done a good job for them. 45-page federal indictment A lawsuit was filed against him last week.

Prosecutors claimed that Barak secretly accepted instructions from the United Arab Emirates government and used his status as an informal adviser on Trump’s White House Middle East strategy to promote policies told by UAE officials.

Experts say that in a case where a co-defendant works for the UAE’s intelligence services, and on sensitive topics like U.S. policy in the Middle East, the defense can take several interesting ways.

For example, if Barrack’s lawyers try to argue that the White House knows that he works on behalf of the UAE, Barrack’s conversations with US officials telling them who he works for may contain confidential material.

If they do, Barack’s defense lawyers may resort to a legal defense strategy called graymail.

When the defense threatens to disclose confidential government information during the trial, gray mail will occur in order to force the government to abandon the case, rather than risk exposing potentially destructive state secrets.

Barack’s lawyers did not answer CNBC’s questions about their strategy.

“It is absolutely possible for the defense to threaten to disclose confidential information to prove [Barrack] No action was taken without anyone’s knowledge,” said a former senior national security official who asked not to be named.

In order to prevent defense lawyers in national security cases from deploying gray mail, prosecutors usually adjust their strategies to avoid using classified materials as a relevant or necessary part of the defense.

Barak is a long-term ally of former President Donald Trump. He has close ties to the UAE nationals Rashid Sultan Rashid Malik Arshahi and junior employees of the colonial capital founded by Barak. Hugh Grimes was charged together.

Neither Grimes nor Barack pleaded guilty. Al Malik is still at large.

The desire to avoid confidential information may help explain a strange element of the formal prosecution against Barak: the timetable.

It appears to have been carefully designed to keep the alleged crimes within a specific time frame from April 2016 to October 2017.

After nearly continuous 18 months of communication between the three defendants, the last contact in the indictment was a text message on October 11, 2017.

These news indicate that the three co-defendants were stepping up their efforts to influence how the United States responded to the blockade of Qatar led by the UAE and Saudi Arabia.

But the success of Barack and his co-defendants may never be made public, because the indictment abruptly ended with news on October 11.

The former national security official said: “Afterwards, it seemed that they had some evidence that they did not want to surface because it might be related to these allegations.”

The prosecutor said that the entire conspiracy lasted for two years, from April 2016 to April 2018.

However, the indictment did not describe what happened during the six-month period from October 2017 to April 2018.

However, even if the prosecutors carefully plan, there are still several defense strategies that can take advantage of confidential information while remaining within the current time window.

Barak’s lawyer could argue that he did not violate the law prohibiting being a foreign agent in the United States without being registered with the Department of Justice, because someone in the Trump administration would have known that he was acting on the direction of the UAE.

As Trump’s top campaign bundler and chairman of his inaugural committee, Barack has access to major players committed to US Middle East policy. Inside the West Wing, this was led by Trump’s son-in-law Jared Kushner.

“Given Jared Kushner’s involvement in these issues and other people at the highest level, it’s hard to believe that there was no dialogue between Barak and some people at that level about what he heard from the UAE,” the former national Say. Security officer.

If Barak was discussing his work with senior White House officials on behalf of the UAE, his lawyer might argue that although Barak did not register as an agent of the UAE through official channels as required by law, he still disclosed it in a practical way. at this point.

Kushner’s spokesperson did not answer questions about whether the two men had discussed Barak’s work.

Trump administration Preference to implement foreign policy However, the use of informal back channels is well documented.

In 2018-20 Intelligence Community Inspectorate Michael Atkinson (Michael Atkinson) said: “I think the Trump administration has created new norms for communicating through behind rather than transparent official channels.”

“We have seen this in Russia and Ukraine, and some have accused it of being against China.”

Shortly after Trump was elected in 2016, Kushner tried to open a backchannel for Trump to communicate privately with Russian President Vladimir Putin.

A few months later, Kushner worked privately with the Chinese ambassador to arrange a summit between Trump and Chinese President Xi Jinping at Trump’s Palm Beach resort.

In 2019, Trump was impeached for putting pressure on the President of Ukraine to conduct a false investigation of Trump’s political opponent, then candidate Joe Biden.

With the proliferation of these unofficial channels, it is difficult for people to know exactly what the Trump administration said to overseas allies and opponents at any given time.

But Atkinson, now a partner at Crowell & Moring, said that this confusion could also be a factor in another possible defense strategy for Barack.

Barak’s lawyers “can argue that there is no harm, because the interests of the United States and the UAE are aligned on these issues. So there is no harm, no foul,” he said.

“They can even argue that what these defendants did is in the best interests of the United States,” he said.

This is the argument that Bill Coffield, Al Malik’s lawyer, presented to The Intercept in 2019. Coffield denied that his client was a spy, but declined to answer more specific questions.

Cofield said at the time that Al Malik “is a businessman who loves the UAE and the United States.” “He publicly shared his belief that the best way to build stronger bonds is through economic prosperity.”

However, Atkinson doubts whether this defense is effective.

“According to the regulations, this is not a viable defense,” he said.

“Even when the United States and other countries are pursuing the same goals, the government does not want people to participate in these types of meetings and do not know that they are acting in accordance with the requirements or directions of a certain country. Foreign governments.”