EDNY Notes that Tom Barrack Won’t Explain the Tactical Advantage of Waiting to Charge Him

I continue to follow Tom Barrack’s prosecution with interest, not least because it is the single example of a case that arose out of the Mueller investigation, was largely completed while Trump remained in office, yet was only charged after Merrick Garland took over.

As I noted last month, Barrack filed a motion to dismiss based, in significant part, on the two year delay between the time he interviewed with the FBI and when he was charged.

The government has submitted an omnibus response to Barrack’s filing as well as one from his alleged co-conspirator, Matthew Grimes (whose motion to dismiss focused more closely on the Foreign Agent statute under which they were charged).

The motion shoots down Barrack’s claims that the delays — and the treatment of his interview just like all other non-custodial FBI interviews — will make it harder for him to defend against the false statement charges, noting in part that he had a room full of lawyers with him making their own record of what he said.

Barrack claims that because of the purported delay, he is unable to obtain (1) “critical proof to establish what he was asked and how he answered” questions when he was interviewed in 2019; and (2) evidence of records from others of communications he may have had. Id. Neither has merit.

First, Barrack was represented by multiple attorneys who took notes during the 2019 interview, presumably with the intent of creating the “critical proof to establish what he was asked and how he answered” of which defendant claims he has been deprived. Barrack Mot. at 38. Barrack fails to articulate how these notes would have been more helpful to the defendant if the charges were brought earlier. And Barrack identifies no other proof that he could have gathered regarding his statements at his interview, had he been indicted earlier. As a result, Barrack not only fails to establish a substantial, actual, non-speculative prejudice, but fails to establish any prejudice at all. See Birney, 686 F.2d at 105-06.

More coyly, however, DOJ notes that Barrack has not tried to obtain any records from the Trump administration that might undermine the charges against him nor has he identified any witnesses who would have testified in his favor two years ago who cannot now.

Second, Barrack does not provide a single concrete example of attempts that he has made to obtain documents or offer examples about how these attempts have been thwarted by the passage of time. See Barrack Mot. at 38. He does not specify what documents he could have obtained, from whom he would have obtained them, or make any claims that this evidence would have been admissible. He merely speculates that the evidence could have helped his defense.


Finally, Barrack makes a general claim about a loss of memories, without identifying a single witness who is now unavailable due to loss of memory. See Barrack Mot. at 39. “Faded memories or unavailable witnesses are inherent in any delay, even if justifiable.


Even were Barrack to provide the names of witnesses with failing memories, this in and of itself would still be insufficient.


He must also show that the witness would have testified, withstood cross-examination, and that the jury would have found the witness credible.” (citations omitted)); see also United States v. Valona, 834 F.2d 1334, 1339 (7th Cir. 1987) (noting that prejudice analysis must consider whether the missing witness “would have withstood cross-examination,” whether the jury would have found him a “credible witness,” and whether the testimony, when compared to other trial evidence “would affect the trial outcome” (internal quotation marks and citations omitted)).

Here, Barrack has not alleged that anyone would have been available to testify in the first instance, much less that he or she would have voluntarily agreed to testify at his trial in a way that would help, rather than hurt, Barrack.

There are, surely, witnesses who would have testified in favor of Barrack if they expected their own testimony would be immune from consequences or that they’d be receiving a pardon. Paul Manafort, for example, is a key witness to Barrack’s actions.

The government’s filing reveals more details about the circumstances of his interview in 2019 at which he allegedly lied. After he was alerted to the investigation, he asked for the interview and then — the government claims — he told a number of blatant lies about his own conduct.

After Barrack subsequently became aware that he was being investigated by the FBI for his actions at the behest of the UAE, Barrack, through counsel, contacted the government and affirmatively requested an interview. After the government consented to the request, the interview was scheduled for June 20, 2019, at the law firm offices of Barrack’s counsel in Washington, D.C. FBI special agents traveled from New York to Washington, D.C. to attend the interview. During the interview, Barrack was represented by multiple attorneys and was advised that the interview was entirely voluntary and that he was free to end the interview at any time. During the interview, an FBI special agent took detailed, contemporaneous notes, totaling more than 50 pages. Barrack’s counsel also took contemporaneous notes during the interview, but did not electronically record or transcribe the interview, nor did Barrack ever request that the interview be so recorded or transcribed, despite being the party that requested the interview and set its date, time, and location.

During the interview, Barrack repeatedly and materially lied about the events and activities that underlie Count One and Count Two of the Indictment, including, but not limited to, making misstatements about whether Al Malik proffered policies or requests to Barrack on behalf of the UAE, whether he was ever asked to download a messaging application or acquire a dedicated telephone to communicate with UAE officials, whether he facilitated communications between President-Elect Donald Trump and UAE officials after the 2016 Presidential Election, and whether he provided any guidance or input in arranging a former U.S. official’s meeting with a senior UAE official. Indictment ¶¶ 91-92, 98-107.

As I described, these alleged lies will make the core 18 USC 951 charges far more durable. Indeed, the government makes precisely that point: if Barrack was not intentionally hiding his ties to the Emirates, then why would he tell blatant lies about it?

Although not dispositive to Barrack’s vagueness challenge, if Barrack actually believed that he had done nothing wrong, it is unclear why he allegedly lied to FBI special agents during his voluntary June 20, 2019 interview as set forth in Counts Three through Seven of the Indictment.

But the circumstances of his charges raise questions about how he learned he was under investigation and whether he had any belief that if he lied to protect himself (and Trump) — as so many other Trump associates were prosecuted for doing — he could expect impunity.

25 replies
  1. Yogarhythms says:

    “if Barrack was not intentionally hiding his ties to the Emirates, then why would he tell blatant lies about it?”
    Like goulash, when the plot begins to thicken, the littlest ingrediants are compelling.

  2. Rugger9 says:

    Is any of this corroborated by Manafort in his pre-pardon days allegedly cooperating with the government? If so, I wonder if Barrack might find it wiser to cut a deal while he can.

  3. Snarkhuntr says:

    EW – what is the FBIs justification for still refusing to record interviews, especially in high profile cases? Surely if the case is going to hinge on exactly what the suspect said, and in response to what question – having a recording of exactly what was said (and how it was said) would be far better for the adjudicator of fact than any notes, no matter how contemporaneous or detailed they might be.

    I can’t help but believe that the FBI doesn’t record interviews specifically for this reason: so they can lie, misinterpret an omit context.

    Nothing above relates directly to this case, except that it refers to their refusal to record.

    • earlofhuntingdon says:

      Yes, recording police interviews is common in other countries. As for why the Bureau does not do it, the mythology of the vaunted G-man would take a hit if interviews were commonplace. Not everyone can interview a suspect as well and as fairly as EW or bmaz, and the recordings would inevitably make their way to courtrooms. Just as inevitably, it would document holes in the Bureau’s digital and other record-keeping.

      It would be harder to sustain the practice of lying with impunity in order to elicit incriminating witness statements, another practice that is under pressure.

      Recording would work against the sense of intense isolation that law enforcement (and intelligence agencies) seek in order to create a sense of panic and submission. Even this short list demonstrates the reasons why interviews should be recorded.

      • earlofhuntingdon says:

        Plus, extorted confessions look less incriminating and less admissible when recorded and available to be played back in camera or in court.

        Once recorded, having them lost or otherwise unavailable can lead to a negative inference against the government’s case.

        • xy xy says:

          Surely an agent’s notebook has been lost, eaten by a dog and/or misplaced here and there.
          And then what?
          It must be that they must keep the Efrem Zimbalist Jr or the Jack Lord look.

    • civil says:

      Presumably the FBI chooses not to record interviews because they believe that is to their advantage. But in this case, why would Barrack and his lawyers agree to him be interviewed by the FBI without getting the FBI’s OK to record it themselves?

    • emptywheel says:

      They’re recording more interviews.

      There’s a still sealed 302 of Manafort’s that is likely about Barrack. But he’s such a liar it’s not clear it would be useful to the Feds.

      • notyouraveragenormal says:

        For the interviewee, is there not a strong incentive to lawyer up and then have your lawyers make “contemporaneous” notes of the FBI interview that you *wanted* to have? Or would disclosure of the same blow your attorney-client privilege? And/or is there a presumption that the FBI is truthful and accurate in its documenting of interviews?

        • timbo says:

          That’s about the quickest way I ever heard of to get a possible wiretap and other types of warrants issued on a lawyer/law office(s), eventually leading to disbarment and/or conviction for obstructing justice, etc.

      • snarkhuntr says:

        That doesn’t really answer the underlying question though. Given the ubiquity of high-quality recording equipment, as well as the FBI’s generally thorough and planned approach to investigations – the only rational conclusion that can be drawn is that the FBI does not record interviews because it believes an objective recording would be less useful to it than notes taken by its investigators. Since notes cannot be a more accurate record of events than an actual recording, the FBI must believe that the inaccuracy benefits it in some way.

        Given how many of these cases seem to come down to some variant of a ‘lying to federal agent’ charge, courts should start drawing adverse inferences when the FBI relies solely on its agents notes (contemporaneously or otherwise) unless it can show cause as to why it failed to record the interview.

        • vvv says:

          As EofH says, “”Recording would work against the sense of intense isolation that law enforcement (and intelligence agencies) seek in order to create a sense of panic and submission.”

          As well, (and somewhat opposite – it depends on context and conduct) many witnesses get intimidated when the officialness of the procedure is emphasized by being recorded. It’s my understanding that there is a feeling more information can be elicited in a more informal setting of an interview with notes, whether true or not.

          I’ve even seen witnesses object to note-taking, as though they don’t realize an interview summary can be written immediately after – or they feel such a summary is more attackable than contemporaneous notes.

          That doesn’t explain the Barrak interview, but perhaps both sides saw value in the non-existent casualness, and the opportunity to deny the accuracy of notes, vs. recordings.

  4. Alan Charbonneau says:

    It will prove interesting if the manner in which Barrack found out becomes public. Any chance of that happening?

  5. Paulie S Flooperhausen says:

    Does anyone grasp the significance of Tom Barrack?

    Barrack’s firm was paid $1.2 BILLION by the UAE and Saudis to lobby the trump administration.

    If you don’t think trump demanded a massive cut for EXPLICIT policy decisions, you don’t know trump. I would bet every single thing I own that Kushner handled the money hiding part of this, and that trump got hundreds of millions in cash.

    And yet, reading between the lines, Garland isn’t squeezing him nearly enough to get him to turn state’s evidence on trump’s corruption.

    Barrack is key to scandals that would be the biggest in US history, and ending trump.

  6. Molly Pitcher says:

    I know this is SDNY, but I thought it was important to see. From IG mercurial_era:

    “Former federal prosecutor calls on Manhattan DA to resign over reports he quashed Trump fraud case.”

    mercurial_era A former federal prosecutor from the storied Southern District of New York (SDNY) is calling on newly-elected Manhattan District Attorney Alvin Bragg to resign over reports he personally quashed the high-profile criminal fraud investigation into Donald Trump, leading the case’s two top prosecutors to resign in frustration.

    Richard Signorelli, who served as an Asst. U.S. Attorney at SDNY on Monday called Bragg “not competent” and said he “is a threat to our public safety.”

    Bragg, who also once served as an Asst. U.S. Attorney at SDNY, took office January 1.

    He “has violated the public trust and should resign,” says Signorelli, who adds that “Trump is the priority case.”

    On Tuesday Signorelli doubled down, slamming U.S. Attorney General Merrick Garland and Deputy AG Lisa Monaco.

    “By not prosecuting this career criminal, you enable him,” he charged:

    The Daily Beast reports the two prosecutors who were brought in to lead the Trump investigation, Carey Dunne and Mark Pomerantz, “resigned after an unnecessary, month-long pause in the team’s interactions with a special grand jury, The New York Times reported last week. ”

    “The duo had grown frustrated that the newly elected DA—Alvin Bragg Jr.—wouldn’t read memos about the case for weeks at a time, and seemed to ditch plans to eventually indict former President Donald Trump himself, according to The Washington Post.”

    The Daily Beast adds, “not only did Dunne and Pomerantz write resignation letters, they wrote so extensively about the slow-moving probe that the DA’s office would not turn over copies of their letters.” It calls Pomerantz “a cunning investigator who gained recognition in 1999 for successfully prosecuting John Gotti’s son, John A. Gotti, who followed in his father’s footsteps and eventually became the head of the Gambino crime family.”

      • Valley girl says:

        Yep, ignore him. I figured that out a while back. He’s done more than his share of EW/ Marcy bashing in the past. Certainly so on twitter.

      • Scott Johnson says:

        Not knowing anything about him, why not?

        The news of the two prosecutors resigning abruptly kind of got stepped on by the attack on Ukraine, and there’s been lots of bad faith actors spinning it in all sorts of ways, much of it unkind to Bragg. On the other hand, Bragg probably has pissed off lots of people in law enforcement for reasons unrelated to the Trump case (many cops have the attitude that the DA should prosecute whoever they arrest, no questions ask, and that refusal to prosecute minor offenses like resisting arrest, like quite a few liberal DAs around the country have been doing, constitutes dereliction of duty).

        I’ve seen several explanations for this:

        * Bragg is just as corrupt as his predecessor Cyrus Vance (who previously let Trump skate on several occasions).
        * Bragg is not corrupt, but his predecessor essentially sandbagged the case in some fashion (similar to how Barr is accused of sandbagging the Mueller investigation), in particular bringing weak-sauce charges against Trump’s accountant Weisselberg, who has so far refused to flip. (Whether stronger charges could be brought against Weisselberg, or potentially could have been brought by Vance but are now foreclosed by some action he did or did not take, I’m not sure).
        * Both Bragg and Vance are (in the current case) not corrupt, but without Weisselberg’s cooperation, the NYDA has no criminal case against Trump. (For many white collar crimes, it is my understanding that the prosecution must explicitly prove mens rea, and absent either discoverable evidence or eyewitness testimony that Trump knew what was going on and did it anyway, that element of the case is missing. Trump never writes anything down, and the one witness who he would have confided in is not singing).

        My expectation that the civil case against the Trump Foundation is on firmer ground–there, the mere existence of fraudulent books is enough for the government to win, without having to prove intent; but criminal fraud convictions of this sort are harder to get.

        Of course, were someone to be caught shoplifting–observed pocketing merchandise and then detained with said unpaid merchandise still in their possession; that would be enough for a conviction, and pleas such as “I forgot it was in my pocket, your honor!” would make no difference: conviction for the crime of shoplifting only requires that it be proven the defendant took merchandise from a store without payment; no proof he intended to do so is necessary. Why white-collar crooks aren’t subjected to the same standard–“you signed a fraudulent return, it doesn’t matter what you were thinking”–is an interesting question.

  7. DirtyDirty says:

    Many years ago, we lived across the street from one of Barrack’s big estates. Barrack rented a small house next door to us to house his security team. All Russians. Big guys, very nice and neighborly, unlike their boss. But we have always wondered, why Russians?

  8. CD54 says:

    Barrack sounds like he had a “deal” lined up and locked in with Trump.

    And then even with his room full of lawyers got “everything’d Trump touches dies’d.”

    Somebody in that obscenely compensated gaggle, including Barrack, hosed one Tom Barrack.

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