DOJ Claims a Key Witness against Tom Barrack Was Being Paid $15,000 a Month as Part of His Defense Team

With the exception of the epic conflicts that Jan 6 lawyer John Pierce has accumulated by representing dozens of Jan 6 defendants, most of the conflicts that come up in prosecutions are waivable. Prosecutors ask the defendant to be alerted to the conflict to ensure it doesn’t provide a way for the defendant to blow up the case later. Or, in the case of John Durham, he uses claimed conflicts to float a bunch of conspiracy theories that elicit death threats.

But a conflict notice in Tom Barrack’s case is something else. EDNY explains, first of all, that Colony Capital is paying for Barrack’s defense as part of an employment agreement finalized in October. That part is another waivable conflict, not that surprising.

Where things get more interesting, EDNY reveals that Barrack’s former Executive Secretary, who played a key role in some of the charged conduct, and who provided materials to the government in the period leading up to the June 2019 interview where (EDNY alleges) Barrack lied to cover up his relationship with the Emirates, was on the payroll of his defense team until April 29. She was being paid $15,000 a month.

For example, the Witness played a role with Barrack in the planning and execution of the Presidential Inauguration of President Trump, including an event (the Chairman’s Global Dinner) that is specifically mentioned in the Indictment. The Witness also assisted Barrack in the preparation of materials submitted as part of his background investigation when Barrack was being considered for a potential appointment in the Trump Administration during the relevant time period. The government anticipates that these events and materials will be presented to the jury at trial.

Prior to the unsealing of the Indictment in this case, an attorney at Paul Hastings LLP (and one of Barrack’s attorneys at that time) (the “Paul Hastings Attorney”), advised the government that he also represented the Witness, and requested the opportunity to voluntarily provide certain requested materials to the government. On or about May 2, 2019, the Paul Hastings Attorney produced records to the government, and in a letter indicated that the Witness was his “client,” though in the same letter, he also indicated that he was “Counsel to Thomas J. Barrack, Jr.” It is the government’s understanding that the Paul Hastings Attorney’s representation of the Witness was paid for by Barrack.

On or about July 16, 2021, the Indictment in this matter was unsealed and Barrack was arrested. Several weeks later, in early August 2021, Barrack’s then-counsel, Paul Hastings LLP (who, as noted above, also represented the Witness in this investigation), hired the Witness as a litigation consultant. 3 Paul Hastings hired the Witness as a litigation consultant notwithstanding that the Witness has no legal education, is not a lawyer, and has never previously worked as a litigation consultant. When [O’Melveny & Myers] became the defendant’s counsel, OMM also hired the Witness as a litigation consultant. It is the government’s understanding that the Witness was paid approximately $15,000 a month for the Witness’ services and that the only matter the Witness was working on for OMM is the instant case. OMM has included the payments for the Witness in invoices submitted to Company A as legal costs. Company A raised concerns to OMM about whether the Witness’ costs were reasonable and appropriate under the terms of the Advanced Fees Agreement but ultimately, after speaking with OMM, agreed to pay the Witness’ costs. OMM first advised the government that it had retained the Witness as a litigation consultant on or about March 31, 2022, a few days prior to a scheduled interview of the Witness by the government.

2 A potential conflict already compounded by the fact that Company A is a current client of OMM.

3 The Witness was no longer working with Barrack or at his company by this time, and instead was working at an unrelated business venture.

Particularly given that Barrack’s lawyer involved this person in an effort to stave off indictment in 2019 that the government claims was an attempt to obstruct the investigation, I’m wonder what she was being paid $15,000 a month to not remember … and whether that will change now that Colony has stopped paying those bills?

Update:  Pronoun changed per John Paul Jones’ note of the footnote referring to the person as “her.”

The timing of this all suggests what kind of more valuable information this witness might have. EDNY says OMM first told them she was part of the defense team on March 31, days before EDNY was to interview her.

Ten days earlier, OMM had included this question in an agenda for a status hearing on March 22:

Defense counsel respectfully request that the Court inquire of the government whether it presently intends to present a superseding indictment to the grand jury before trial and if so, any information the government can provide as to the timing of the superseder.

The answer EDNY provided was yes, they reserve the right to supersede the indictment and it might happen in June. Then on April 5, EDNY responded to a bunch of Barrack’s complaints about discovery by suggesting that several of Barrack’s not-yet charged co-conspirators (Bannon is the most obvious) might still be charged.

Additionally, the investigation related to this case is ongoing (we note that one of the charged defendants is a fugitive and the indictment alleges conduct by several unindicted co-conspirators).

In other words, at around the time that EDNY would have been arranging an interview with the former Executive Secretary as part of an investigation into Barrack’s not-yet charged co-conspirators, OMM figured out that EDNY might supersede this indictment.

Which is probably one of the reasons they were paying her $15,000 a month to consult on this case: to find out whether EDNY was onto other, more damning Barrack actions. Money well spent!

Meanwhile, somewhere along the way, Colony Capitol — which is itself represented by OMM — balked at paying $15,000 for her costs, but kept paying anyway.

A month after informing EDNY that she worked for them, on April 29 (so about two weeks ago) OMM told EDNY that she no longer does.

Presumably, whatever “cooperation” she gave to EDNY in 2019 was a limited hangout, designed to protect more damaging information. That information is probably related to the substance of the crimes that EDNY was investigating when they tried to get her interview in March.

31 replies
  1. Silly but True says:

    If the government’s argument has its way, the first litigation consultant could never have gotten their first job as a litigation consultant.

    • Peterr says:

      Alternatively, this would be a foolproof way to hide a payoff to keep someone silent. Just make them a “consultant” regardless of their qualifications.

      The key question is “what expertise does this consultant bring to the case at hand?” The conundrum is how to be able to probe this without forcing the defense to disclose their legal strategy.

      • Silly but True says:

        Admittedly “Tom Barrack’s Electioneering and Foreign Lobbying Portfolios” is a pretty esoteric subject to specialize in, but they probably bought the world’s leading expert.

      • Rugger9 says:

        Perhaps there is a more legal definition, but in business terms a consultant’s expertise is whatever the client wants it to be. If said client is an ISO shop there will be a job description but those are at the discretion of the client. Thus can be hidden all sorts of unsavory things and significant others (for now).

        • Silly but True says:

          Of course, this Barrack case is likely fraud, and there is room to commit fraud or nepotism under guise of “consultant,” but DoJ is also being disingenuous here.

          A common area is adding a specialized technical subject matter expert. For example, if Medicare fraud case, the team might add a medical coding technician as consultant who has no legal education, is not a lawyer, or even ever served as a litigation consultant in past.

          Likewise for a tax fraud case, a forensic accountant might serve as litigation consultant. Or a real estate loan or tax property tax case might include a real estate developer or appraiser as consultant.

          Unless the team is drowning, a random litigation consultant is probably not going to be a lawyer or law school graduate, but rather has some expertise to assist counsel with some specialized technical esoterica related to the case.

        • Peterr says:

          I would love the judge to examine, in camera, what expertise the client says the consultant offered them and how they went about discerning that expertise. From where I sit, the only thing he offers is to keep his mouth shut.

        • Rugger9 says:

          I’m not disagreeing with you on your point, what I’m saying is there is no external objective standard for what skills a consultant must have. That appears to make pretty much everything legal if framed appropriately by someone who has every reason to do that. Unless there is a law or standard (such as NSPE) questioning the legality may not work as well, but IANAL.

        • Peterr says:

          The standard must vary from case to case, as the details of the case dictate who may or may not be needed to appropriately help the lawyers make their case.

          But make no mistake: a consultant has to offer *something* to the lawyers, and the courts have to figure out a way to discern between “here’s someone who can help us explain our case” and “here’s a witness we’d like to pay off so they don’t tank our case.”

        • timbo says:

          There are, however, some laws about what one cannot get paid to do (or not do) when it comes to criminal investigtions.

  2. Peterr says:

    Paul Hastings hired the Witness as a litigation consultant notwithstanding that the Witness has no legal education, is not a lawyer, and has never previously worked as a litigation consultant.

    I’m sure the DOJ would love to see the contract/hiring letter that describes the kind of consultation he would provide, as well as any indication that the witness actually provided any assistance, such as calendar notices that show the witness was present at legal strategy meetings. This mess would be fraught with privilege claims, as the DOJ can’t ask for work product that bears on the defense’s legal strategy. But could they ask the judge to appoint a special master to receive this information and review it?

    • TooLoose LeTruck says:

      I dunno, Peterr…

      “notwithstanding that the Witness has no legal education, is not a lawyer, and has never previously worked as a litigation consultant…”

      A complete lack of any qualifications for a complicated job that pays $15,000/mo seems pretty much the norm for Trumpworld…

      Comes across a little too much like ‘Opposite Day’ from Calvin and Hobbes…

      Perhaps we’re all just stuck living in a comic strip these days and haven’t realized it yet?

      • jhinx says:

        My favorite Calvin quote [paraphrased] is, “Why bother learning when ignorance is instantaneous?”

        • TooLoose LeTruck says:

          Sounds like a good campaign slogan for someone like MTG… Boebert… hell, any number of Republicans running for office…

  3. John Paul Jones says:

    “He or she was being paid”.

    Footnote on P3: “any information from the Witness that is derived from her employment as a litigation consultant.”

    Could this whole rigamarole simply be a tactic to cause delay?

    • Peterr says:

      It would be interesting to compare the Witness’ employment agreement with similar agreements at the same firm for litigation consultants on other cases. Similarly, comparing documentation about how the Witness was selected to be a consultant in this case vs how other consultants were vetted before being brought on board would be interesting.

    • Savage Librarian says:

      “OMM first advised the government that it had retained the Witness as a litigation consultant on or about March 31, 2022, a few days prior to a scheduled interview of the Witness by the government.”

      So, some background to support one WAG:

      Alexandra Preate had an interview with the J6 meeting on 4/5/22. Maybe she spoke with somebody at DOJ too. Both her twin sister and her father are lawyers and heavily invested in politics in PA. So maybe her legal bona fides are by proximity.

      Socially, she is friends with Kellyanne Conway and Rebekah Mercer. She has also been called Bannon’s consigliere by the media. And she is alleged to have been the person who told Roger Stone, “well done” after a Wikileaks drop in 2016 and was listed on his witness list for his trial, but was not called to the stand.

      Frank Scavo served 60 days in prison for his involvement in J6. He was represented by Ernie Preate, Alexandra’s father (who served a year in Federal prison after committing mail fraud while he was AG in PA.)

  4. WilliamOckham says:

    This seems odd:

    On or about July 16, 2021, the Indictment in this matter was unsealed and Barrack was arrested. Several weeks later, in early August 2021…

    “Early August” isn’t what most people would describe as “several weeks later” from July 16.

    • skua says:

      If several = “3 or more” then Friday 6 August would be 3 weeks.
      Where would early August end? I asked Google and it gets fuzzy.
      1 -10 early, 11-20 mid, and 21 to end as late, was presented often by punters/commentators lacking any obvious qualifications.

      Is the more common alternative “a few weeks later” considered too casual in tone by DoJ?
      But “… some three weeks later, in early August” seems both natural and professional.

      Though if this was written at 3:30 AM to meet a 9 AM deadline then accuracy alone would be a high enough expectation.

  5. rosalind says:

    am immediately reminded of Keith Schiller, Trump’s personal fixer, who after getting installed as the White House Director of Oval Office Operations and hand delivering James Comey’s letter of firing, suddenly needed to no longer be in that position. The RNC then stepped in and put his security firm on a $15K monthly retainer to keep quiet about where all the bodies were buried. The payments stopped in January 2021.

    • Eureka says:

      That was my first thought, 15k/m is the universal Trumpworld figure*. Besides Schiller, Kimberly Guifoyle and Eric’s wife Lara Trump also got that sum through some Parscale shenanigans IIRC SV Date’s reporting. That’s also how much they tried to contract Omarosa’s silence for, too.

      *That, and everything else is “300 million dollars” (TT Moscow, etc).

    • Savage Librarian says:

      Interestingly, both Ivanka Trump and Alexandra Preate had interviews with the J6 committee on April 5, 2022, and both attended this Lebanese American Chamber of Commerce party. Ivanka has the more obvious connection to Tom Barrack. And she did help with Trump’s Inauguration preparations. But would she settle for only $15,000 a month? Maybe.

      “The Lebanese American Chamber of Commerce honored outgoing assistant secretary for public affairs for the Department of the Treasury, Tony Sayegh, with a photo of him at the Trump Hotel D.C. …” [June 2019?]
      “SPOTTED last night at Tony Sayegh’s farewell party at the Trump Hotel: Treasury Secretary Steven Mnuchin, Ivanka Trump, Larry Kudlow, Steve Moore, Raj Shah, Morgan Ortagus, Sean Spicer, Monica Crowley, Alexandra Preate, Catharine O’Neill, Wes Battle, Drew Maloney, Sergio Gor, Sen. Josh Hawley (R-Mo.), Grover Norquist, Connor Hickey, Paul Horvath, Brian Morgenstern, Adele Malpass and Marshall Billingslea.”

  6. christopher rocco says:

    Uninformed, non lawyerly question: how can a witness against the defendant work for the team defending that defendant?

  7. I Never Lie and am Always Right says:

    I smell something putrid. Is it just the trash, or is it obstruction of justice?

  8. Al Ostello says:

    I know they have a long list to keep track of Trump’s “false or misleading claims total 30573 over 4 years”.

    Anyone tabulating all the crimes Trump has been accused of, and then compare it to any human who has ever lived?

  9. anon_15MAY2022 says:

    https ://www. omelvenymyersethics .org/2021/08/omelveny-friend-thomas-barrack-arrested_9.html

    [Welcome to emptywheel. Please use a more differentiated username when you comment next as we have multiple community members with usernames based on a variant of “anon” or “Anon.” Because your comment has used an email address which matches 11 other comments posted to date, consider this a Second Request (see comment from 2018). The link you have shared has also been disabled with blank spaces to prevent accidental clickthrough by community members, who should be aware the link has not been vetted – use with caution. /~Rayne]

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