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The case in opposition to Tom Barrack might convey labeled data to courtroom

Tom Barrack, chairman of Colony NorthStar Inc., speaks during a Bloomberg Television interview at the Milken Institute Global Conference in Beverly Hills, California, the United States, on Tuesday, May 1, 2018.

Patrick T. Fallon | Bloomberg | Getty Images

WASHINGTON – Tom Barrack’s attorneys did their job for them, given the breadth and specificity of the evidence in the 45-page federal indictment filed against him last week.

Prosecutors allege that Barrack secretly took orders from the United Arab Emirates government and used his status as Trump’s informal White House advisor on Middle East strategy to enforce policies told by Emirati officials.

In a case involving a co-defendant who worked for UAE intelligence and a sensitive issue such as US Middle East politics, there are, according to experts, several unusual avenues the defense could take.

For example, if Barrack’s lawyers argue that the White House knew he was working on behalf of the United Arab Emirates, the conversations Barrack had with US officials telling them who he worked for could be classified.

If so, chances are Barrack’s defenders are using a legal defense tactic called Graymail.

Graymail happens when the defense threatens to divulge government secret information during a trial in hopes of forcing the government to drop the case instead of risking exposing potentially harmful state secrets or agents.

Barrack’s lawyers did not respond to questions from CNBC about their strategy.

“It is entirely possible that the defense is threatening to divulge classified information in order to produce evidence [Barrack] did not act without the knowledge of anyone, “said a former top national security official who was granted anonymity to discuss how classified information is used.

To prevent defense lawyers from using graymail in national security cases, prosecutors typically tailor their strategy to avoid making classified information a relevant or necessary part of the defense.

Barrack, a longtime ally of former President Donald Trump, was charged along with Rashid Sultan Rashid Al Malik Alshahhi, an Emirati citizen with close ties to the royal family, and Matthew Grimes, a junior employee at Colony Capital, which founded Barrack.

Grimes and Barrack have pleaded not guilty. Al Malik is still at large.

Thomas Barrack, a billionaire friend of Donald Trump who ran the former President’s Inaugural Fund, stands next to his co-defendant and former employee Matthew Grimes and attorney Matt Herrington during their indictment at the Brooklyn Federal Courthouse in Brooklyn, New York, United States. July 26, 2021 in this court sketch.

Jane Rosenberg | Reuters

Odd timeline

The desire to avoid classified information could help explain a strange element of the formal indictment against Barrack: the timeline.

It appears to be carefully designed to keep suspected crimes within a certain time frame from April 2016 to October 2017.

After 18 months of almost constant communication between the three defendants, the last contact in the indictment is an SMS dated October 11, 2017.

The news suggests that at this point the three co-defendants were stepping up their efforts to influence the US response to a UAE-Saudi-led blockade of Qatar.

But whether Barrack and his co-defendants were successful may never be publicly known, as the indictment ends abruptly with the October 11 news.

“It seems like they have some evidence afterward that they don’t want to surface because it may be relevant to these charges,” said the former National Security official.

According to the public prosecutor’s office, the entire conspiracy lasted two years, from April 2016 to April 2018.

However, the indictment does not describe what happened in the six months between October 2017 and April 2018.

However, even with careful planning by the prosecutor, several defense strategies could still fall back on classified information while staying within the current time window.

Back channels

Barrack’s attorneys could argue that he did not break the law prohibiting acting as a foreign agent in the United States without registering with the Justice Department because people in the Trump administration could know he was acting on orders from the UAE.

As Trump’s top campaign bundle and chairman of his inauguration committee, Barrack had access to key players in US Middle East politics. In the west wing, this was spearheaded by Trump’s son-in-law, Jared Kushner.

“Given Jared Kushner’s involvement in these and other high-level issues, it’s hard to believe that there was no conversation between Barrack and some people at that level about what he heard from the Emiratis,” said the former national Security guard.

If Barrack discussed his work on behalf of the UAE with senior White House officials, his attorneys could argue that while Barrack did not officially register as a UAE agent as required by law, he did provide practical disclosures.

A spokesman for Kushner didn’t respond to questions about whether the two had ever discussed Barrack’s work.

However, the Trump administration’s preference to conduct foreign policy through informal back channels is well documented.

“I think the Trump administration has created new norms for communicating through backward, rather than through, transparent and official channels,” said Michael Atkinson, inspector general of the intelligence community for 2018-20.

“We saw it with Russia and Ukraine, and there were allegations that it was done with China.”

Shortly after Trump’s election in 2016, Kushner tried to open a return channel for Trump to communicate privately with Russian President Vladimir Putin.

A few months later, Kushner worked privately with China’s ambassador to arrange a summit meeting for Trump and Chinese President Xi Jinping at Trump’s Palm Beach Resort.

In 2019, Trump was charged with pressuring the President of Ukraine to open a mock investigation into Trump’s political rival, then-candidate Joe Biden.

The proliferation of these unofficial channels made it difficult to know exactly what the Trump administration was saying to allies and opponents overseas at all times.

But that confusion could feed into another possible defense strategy for Barrack, said Atkinson, now a partner at Crowell & Moring.

Barrack’s attorneys “could argue that it did no harm because the interests of the United States and the United Arab Emirates coincide on these matters. So no harm, no foul,” he said.

“You might even try to argue that what these defendants did was in the best interests of the United States,” he said.

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

Al Malik “is a businessman who loves the United Arab Emirates and the US,” Coffield said at the time. “He has openly shared his belief that the best way to forge stronger bonds is through economic prosperity.”

However, Atkinson is skeptical that this defense would work.

“This is not a viable defense under the law,” he said.

“Even in cases where the United States and a foreign country are pursuing the same goals, the government does not want people to sit in such meetings and not know that they are at the behest or direction of a foreign government.”

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