More On The Partisan Administration Of Justice In The U.S.: The Case Of Tom Barrack

December 28, 2022 Francis Menton @ Manhattan Contrarian

Every day it seems that more and more information comes out showing our federal law enforcement agencies — the FBI and the Department of Justice — to be partisan enforcers working on taxpayer money for the exclusive benefit of the Democratic Party. In the most recent two weeks, it’s the Twitter Files, with the FBI caught red-handed pressuring the social media giant to suppress completely legal and First Amendment-protected (but disfavored) speech unfavorable to Joe Biden’s election (e.g., the Hunter Biden laptop story), or to the authoritarian dreams of our public health establishment (Covid-19). And this is only the latest episode in the long-running sordid story. 

For large numbers of prior examples, see my posts from July 2, 2021 (“Justice In This Country Is Not Dispensed Impartially Between Democrats And Republicans”) and February 18, 2020 (“How Confident Are You That ‘Justice In This Country Is Dispensed Impartially?’). Those posts cover numerous instances of disparate treatment between Republicans and Democrats, including the cases of Republicans Ted Stevens, Joe Bruno, Bob McDonnell, and Dean Skelos, versus, on the other side, the likes of Hunter Biden and James Clinesmith.

And now along comes a new instance that may top them all. The defendant in question is named Tom Barrack. Have you heard of him? He is a successful LA-based businessman with interests in real estate and private equity. He is of Lebanese descent, and apparently speaks Arabic. In the course of raising money for his various investment vehicles, he has had substantial dealings with government officials in Arabic-speaking countries, notably the UAE. Along the way he met Donald Trump, and they became friends. In late 2016 and early 2017, Barrack made the mistake of chairing President Trump’s inauguration committee.

It appears that the FBI began investigating Barrack even while Trump was President. For what “crime”? Good question. But they didn’t proceed to indictment until Biden had been installed in office and Merrick Garland made Attorney General. Here is a copy of the indictment, with a date of July 16, 2021. There are seven counts. The first two allege violations of 18 U.S.C. Section 951(a). That rarely-invoked section requires “notification to the attorney general” by any person acting as an “agent of a foreign government.” There is a good reason why this section is rarely invoked. It is the most minor and ambiguous of “crimes.” If some government official in the UK asks you to deliver a Christmas card to someone in the U.S., does that require registration with the Attorney General?

The other five counts in the indictment are the usual FBI “process crimes” — allegations of “lying to the FBI.”

And in the next step, for this most minor and ambiguous of crimes, the government demanded a bond of $250 million for the release of Barrack from jail pending trial. You may recognize the number of $250 million as being the same number as the bond the government demanded for the release of Sam Bankman-Fried pending trial. Well, there are a couple of differences. First, SBF stole one or maybe a few billion real dollars from his customers, whereas Barrack was accused of a minor, ambiguous, and rarely-charged crime. The second big difference is that SBF’s supposed $250 million bond is almost wholly notional. According to The New York Times here on December 23, no money changed hands as to SBF’s supposed bond, which is secured only by his parents’ house in Palo Alto (undoubtedly worth several million dollars, but nothing close to $250 mil), the signatures of the parents (two law professors), and the signatures of two other individuals whose names have not been publicly disclosed.

Here is a picture of the Bankman-Fried family manse from the New York Post:

Barrack’s bond was required to be secured by well more than $250 million in real value of publicly-traded securities and real estate.

Barrack’s case actually went to trial starting in late September. I’ll give you just a couple of highlights. First, the government called Rex Tillerson, former CEO of Exxon Mobil, who then became Trump’s first Secretary of State from February 2017 to March 2018. The gist of Tillerson’s direct testimony was that Barrack was having frequent communications with representatives of the UAE, sometimes followed by direct conversations with President Trump where messages from the UAE would be conveyed to the President, circumventing the State Department. Nefarious!

But then on cross, Tillerson was asked about his own activities during the time that he was CEO of Exxon Mobil. It turned out that he regularly met with dozens of government leaders around the world, because they were the people who made decisions important to Exxon. At page 1521 of the transcript, he lists some of the countries where he met with the leaders: Nigeria, Angola, Libya, China, Vietnam, Australia. Elsewhere he specifically mentions meeting with Vladimir Putin of Russia. And then it turned out that after his meetings with foreign leaders, Tillerson had done multiple briefings for past presidents. From page 1514 of the transcript:

Q. Were you surprised . . . that [President Trump] wanted to ask you for a briefing on foreign affairs?

A. No. I had done several briefings with past presidents.

But had Tillerson registered as an agent of any of these foreign governments? Of course not. From page 1539:

Q Now just to be clear, over all those years, when you were dealing with officials in all of those countries, you never provided notification to the U.S. government that you were acting as an agent of a foreign country, did you?

A. No.

The process “crimes” charged against Barrack were even more ridiculous. There were five counts of some variation of “lying to the FBI,” all in formal interviews, without any recording having been made. Instead the FBI had only a set of handwritten notes from the interviews to support the charges — and for some reason (we can guess) failed to call as a witness the guy who made the notes. Instead they called another agent present at the interviews. Law360 has a report of the cross of that agent from October 13, 2022 (behind paywall, but you can read it by signing up for a “free trial”). A key allegation was that Barrack had downloaded a secure app for communicating with his UAE “handler,” but then lied about it to the FBI. Oh, but that statement appeared nowhere in the FBI’s handwritten notes, nor in the first draft of its so-called “302” report of the meeting, but only in a revised version of the 302 prepared several weeks later. From Law360:

Noting there were two drafts of the Barrack 302, Jackson asked why neither the first draft nor the interview notes contained any mention of Barrack's response to the inquiry about the app. "If the statement about downloading a messaging app wasn't in the notes, wasn't in the first 302, who was the first person [to say] that you should put in an additional statement?" he asked. "I was ... because it was a blatant lie," Morgan said, explaining she included the response based on her own recollection of the meeting. "And this first occurred to you in July [2019], weeks after the interview?" Jackson asked. Morgan said it was always her intention to include it in the report.

Two associates of a big law firm who accompanied Barrack to his FBI interview prepared a lengthy multi-page memo of the event that also contained no mention of the alleged false statement. Do you think that an FBI agent might be willing to make up a false statement in order to try to nail a hated associate of ex-President Trump?

The bottom line is that a jury in the Eastern District of New York (Brooklyn) acquitted Barrack on all charges on November 4. I apologize for taking so long to get to this detailed write-up. Congratulations to my ex-colleagues at Willkie Farr for this great victory against the forces of oppression, and to Mr. Barrack for being willing to put his faith in a jury to do the right thing.

One more thing: Please, MC readers, do not say anything to an agent of the FBI or Justice Department under any circumstances.