Support The Bulwark and subscribe today.
  Join Now

Thomas Barrack’s Indictment Is Even Worse Than It Looks

It’s called “consciousness of guilt.”
July 27, 2021
Thomas Barrack’s Indictment Is Even Worse Than It Looks
Thomas Barrack arrives for a court appearance at the U.S. District Court of Eastern District of New York on July 26, 2021. (Michael M. Santiago/Getty Images)

“Behind every great fortune,” wrote Balzac, “lies a great crime.”

On Monday, Tom Barrack, the business titan and Trump confidante, pleaded not guilty in New York to his indictment for failing to register as a foreign agent and repeatedly lying to the FBI about it. Last Friday, Barrack had been released from three days in jail on a record-setting $250 million bail.

That was what the judge decided was needed to ensure Barrack’s future court appearances. Barrack holds a “great fortune” and dual citizenship, and has had access to an overseas residence in southern France and to chartered jets. (He also owns a home in Aspen and a polo ranch and winery in Southern California.)

Barrack now joins several other close political associates of Donald Trump who have been indicted—among them, his former campaign chair and deputy chair, his former campaign CEO, his primary non-campaign political operative, his former national security advisor, and his former personal lawyer. Each of these individuals was convicted.

Barrack stands accused of being an agent of the United Arab Emirates without registering with the attorney general. That would violate 18 USC §951, what prosecutors sometimes call the “espionage-lite” statute—“lite” because Barrack didn’t pass to foreign adversaries classified information or the names of double agents. He merely—allegedly—earned $1.5 billion for his company by being the UAE’s unregistered “pitchman” inside the Trump campaign and administration from 2016 to 2018.

Some legal analysts have minimized the main charge against Barrack saying that by simply registering, he could have avoided the violation.

But this excuse misses the point. The way that our government uses, or the citizenry perceives, information from a person completely changes when they know that a foreign country is controlling and directing the individual. Reporting reduces the agent’s ability to influence U.S. foreign policy priorities and public opinion in favor of that country.

That influence is what Barrack is alleged to have monetized, just as did former General Michael Flynn. Flynn, while on Turkey’s payroll, wrote a November 2016, election-eve op-ed pitching that country’s image and need for American support. He was still being paid by Turkey months later when he became Trump’s National Security Advisor.

Federal district court judge Emmet Sullivan was referring to that misconduct when he excoriated Flynn in court: “Arguably you sold your country out. I’m not hiding my disgust.”

Like Flynn, Barrack had immediate access to Donald Trump. Just a month after Barrack chaired Trump’s January 2017 inaugural, Barrack’s investment firm internally circulated a confidential planning memo describing how to cash in: “The key is to strategically cultivate domestic and international relations while avoiding any appearance of lobbying.”

Barrack’s company says the memo was never implemented. But even if this defense is true, it wasn’t for lack of trying. In December 2017, the Trump administration endorsed an arrangement brokered by Barrack to sell nuclear power technology to the UAE’s ally, Saudi Arabia. Congress blocked the deal.

In Barrack’s July 2021 indictment, he was also charged with lying to the FBI during its probe of their activities. Barrack allegedly denied that:

  • UAE officials asked him to do anything;
  • He had nothing to do with facilitating phone calls between UAE Crown Prince Mohamed bin Zayed and President-elect Trump after the 2016 election;
  • That he was given an encrypted phone to communicate with the Crown Prince.

If proven, the fact that Barrack lied to the FBI about Emirati officials exploiting his access—and about having acceded—is powerful evidence of what prosecutors call “consciousness of guilt.”

Barrack, a lawyer who should have known better, had a strong motive to avoid registering. He would have far more influence, and therefore more earning capacity, as a PR agent for the UAE by not officially acknowledging he was getting paid to heap praise on his principal.

Influencing public opinion was central to what Barrack was peddling. The indictment says that he accepted and used talking points from UAE officials for multiple television appearances and for an October 2016 Fortune magazine op-ed that praised the UAE. If Barrack had acknowledged that he was the country’s paid agent, Fortune might never have run the piece. Barrack would have had no public influence to sell.

Even more gravely, the indictment also charges that Barrack passed along to foreign officials information about meetings at the White House, and that he helped shape a pro-UAE speech by candidate Trump.

Think about it: A paid agent for another country with as much daily access to the White House—and ability to steer the president’s thinking—as the agent’s foreign handlers desired.

Only the best people.

Dennis Aftergut

Dennis Aftergut is a former assistant U.S. attorney and former Supreme Court advocate.