What the Tom Barrack trial could mean for the future of foreign lobbying prosecutions

From: POLITICO Influence - Friday Sep 16,2022 11:21 pm

Sep 16, 2022

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With Daniel Lippman

FARA-ISH FRIDAY: Jury selection is set to begin on Monday in the trial of former Trump campaign adviser and real estate investor Tom Barrack and his aide Matthew Grimes , who were charged last year with acting as unregistered foreign agents of the United Arab Emirates.

— Both men have pleaded not guilty to the charges, which accuse Barrack, Grimes and Rashid Al-Malik, an alleged intermediary who remains at large, of working to influence Donald Trump both during his presidential campaign and once he was sworn into office. Barrack, who chaired Trump’s inaugural committee in 2017, is also accused of lying to investigators.

— The trial will amount to the latest major legal test for the Justice Department’s aggressive new posture in cracking down on foreign influence efforts in the U.S., which has included an increasing reliance on a decades-old statute known as Section 951 — traditionally used to target espionage — to prosecute foreign influence efforts in the U.S. “The difference here is that the case is being used in a non-espionage context, which is a relatively rare way to use this particular law,” Robert Kelner, who advises clients on FARA at Covington & Burling, told PI.

— DOJ has brought several high-profile cases over the past half-decade using Section 951 — which unlike criminal prosecutions for violating FARA does not require prosecutors to prove willful intent — and other FARA specialists told PI that regardless of how the trial shakes out, it stands to have a ripple effect on how DOJ pursues foreign influence cases.

— For one, the department’s track record in such prosecutions has been mixed. Russian gun activist Maria Butina pleaded guilty to violating the statute in 2018 for seeking to infiltrate conservative circles on Moscow’s behalf. But after Bijan Rafiekian, the business partner of former Trump national security adviser Michael Flynn , was convicted by a jury on similar charges in 2019, a federal judge threw the conviction out months later and a federal judge this spring ordered a new trial for the Iranian-born businessman. Greg Craig, the former Obama White House counsel, was acquitted in 2019 on a charge stemming from foreign lobbying work.

— Some FARA experts warned that another defeat in a high-profile case like Barrack’s could have a chilling effect on DOJ’s renewed push to crack down on illegal foreign lobbying. Kelner predicted that an acquittal “would definitely cause the Department of Justice to tap the brakes with respect to both FARA and 951 cases.”

— Caplin & Drysdale’s Matthew Sanderson, who co-chairs the American Bar Association’s FARA Task Force, agreed that it would change the department’s calculus on continuing to charge cases under Section 951. “I think it will affect the posture of the department and going after unpaid influence activities,” he said in an interview. “I think it will shut down — at least for a time — the department using 951 to go after basically shuttling between capitals” and more informal influence campaigns like the ones Barrack is alleged to have carried out.

— Sanderson said that he wouldn’t expect DOJ’s more aggressive posture toward more routine FARA cases. But “they started to pull this other tool, 951, out of their bag for other instances,” he said. “And this trial, I think, will in large part determine whether they're able to continue using this other tool.”

— Still, “every investigation has its own factual ecosystem,” said David Laufman, a partner at Wiggin and Dana who previously oversaw FARA enforcement at DOJ. Laufman, who also co-chairs the ABA FARA Task Force, warned against “trying to extrapolate too much from this case about what procedures about future enforcement activity by the Justice Department,” though he said a loss for DOJ would amount to a “major disappointment.”

— Others, meanwhile, told PI that the so-called regulated community stands to benefit regardless of how the trial ends due to the lack of existing case law on the issue and existing FARA regulations that are mismatched with how influence campaigns have evolved.

Happy Friday and welcome to PI. On Monday, Influence will look at what FARA experts will be keeping an eye on during the Barrack trial. If you’ve got thoughts, send them my way: coprysko@politico.com. And be sure to follow me on Twitter: @caitlinoprysko.

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ANNALS OF DARK MONEY: “A new ‘dark money’ group bankrolling provocative ads mocking progressive policies and politicians in battleground states ahead of 2022 midterms is connected to officials in former President Donald Trump’s administration who now work with the America First Legal Foundation,” OpenSecrets’ Anna Massoglia reports.

— “The group, Citizens for Sanity , has paid for billboards emblazoned with messages like ‘Protect Pregnant Men from Climate Discrimination’ and ‘Real progressives support violent criminals in their hour of need’ in states across the country – including Massachusetts, Colorado, Arizona, Nevada, Pennsylvania, California, Michigan, Texas, Illinois and Georgia." The ads have been criticized as liberal and LGBTQ outlets. And "while many of the billboards mock progressive views generally, some of the group’s ads take aim at specific candidates.”

— “Citizens for Sanity insists it is ‘not an ideological organization,’ claiming it aims to ‘return common sense to America’ and fight ‘anti-critical thinking ideologies that have permeated every sector of our country and threaten the very freedoms that are foundational to the American Dream.’”

— “But Federal Communications Commission records reviewed by OpenSecrets reveal that the group’s board includes three former Trump administration officials involved in the America First Legal Foundation, a group founded by former Trump White House official Stephen Miller and aimed at using the legal system to challenge President Joe Biden’s agenda.”

TENSIONS SIMMER OVER FOREIGN POLICY AT HERITAGE: Tensions are brewing inside the Heritage Foundation ’s policy shop over an increased perception of putting partisanship before policy, according to a pair of pieces that came out Thursday that point in particular to Heritage’s opposition to the bipartisan Ukrainian aid bill passed earlier this year — legislation Heritage scholars supported.

— The Dispatch’s Audrey Fahlberg and Charlotte Lawson report that “interviews with more than a dozen current and former employees reveal restrictive workplace practices to keep scholars in line with positions favored by Heritage’s lobbying arm,” Heritage Action.

— “With Heritage Action’s growing influence has come a wave of staff turnover from the rank-and-file to senior leadership. Fifty-one employees have departed the Heritage Foundation and 73 new employees have joined since January 1, a Heritage spokesperson confirmed. There are 275 staff members on the foundation’s payroll and 30 at Heritage Action as of Tuesday.”

— “Several former employees cited Heritage’s departure from its foundational commitments—without the knowledge or consent of the scholars hired to translate them into policy positions—as their reason for leaving. Others pointed to one-on-one confrontations with the members of the leadership team over the organization’s ideological trajectory” and contended that “scholars are increasingly being cut out of the deliberation process.”

— Some scholars “detailed limitations on their intellectual freedom beginning in the Trump era,” long before new Heritage Foundation President Kevin Roberts took over at the end of last year.

— In his column Thursday, The Washington Post’s Josh Rogin writes that “some former staffers told me Roberts has prioritized political messaging over policy formation. As Heritage becomes beholden to the MAGA movement’s political whims, these analysts allege, the organization is now following the mob rather than leading it, rendering serious policy work irrelevant.”

— Roberts defended the organization’s positioning, telling The Dispatch that “more than any other organization on the right in the United States today, we have a clear understanding of where everyday conservative Americans are.” He told Rogin that “he is trying to position Heritage to be relevant to both sides of the conservative foreign policy world.”

FLYING IN: The steady stream of trade groups heading to the Hill this month continues next week, with the Transportation Intermediaries Association set to meet with more than 200 members of Congress over three days next week. TIA members are set to meet with most lawmakers on the House and Senate transportation committees, including Sens. Amy Klobuchar (D-Minn.) and Roger Wicker (R-Miss.) and Reps. Seth Moulton (D-Mass.) and Mike Gallagher (R-Wis.).

— The group is pushing for supply chain functionality and sustainability and will be calling on the Federal Motor Carrier Safety Administration to increase enforcement against so-called double brokering.

SPOTTED at a 16th anniversary celebration for Monument Advocacy at the firm’s headquarters, per a PI tipster: House Majority Leader Steny Hoyer, Rep. Derek Kilmer (D-Wash.), Rep. Anthony Brown (D-Md.), Rep. Steven Horsford (D-Nev.), Rep. Marilyn Strickland (D-Wash.), Bruce Andrews of Intel, Diana Birkett Rakow of Alaska Airlines, Bill Bailey of Disney, Nick Rossi of Apple, Dan Chistenson of PepsiCo, Andy Blocker of Invesco, Stacey Hutchinson of Powdr, Jason Oxman of the Information Technology Industry Council, Alexandra Givens of the Center for Democracy & Technology, Liz Hyman of the XR Association, Desiree Filippone of the United States Olympic & Paralympic Committee, Matt Haller of the International Franchise Association, Rhonda Bentz of the Consumer Brands Association, Steve Elmendorf of Subject Matter, Joe Pounder of Bullpen Strategy Group, James Min and Mark Bednar of House Minority Leader Kevin McCarthy’s office, Jordan Evich of Rep. Jaime Herrera Beutler’s (R-Wash.) office, JP Dowd of Sen. Patrick Leahy’s (D-Vt.) office and Tim Kurth of the House Energy & Commerce Committee.

A message from the National Confectioners Association:

Jobs Report

— Laura Patton is now head of U.S. government affairs at Springer Nature Group. She was most recently a legislative analyst at the RAND Corporation and is a David Obey alum.

— SkyWater Technology has hired Brian Lenihan as vice president of government affairs. He’s a Trump Commerce Department and National Institute of Standards and Technology alum.

— Abby Jagoda is returning to Innovating Commerce Serving Communities as vice president of public policy. Prior to ICSC, she was vice president and head of government and community affairs at Unibail-Rodamco-Westfield.

— Jillian Froment is joining the American Council of Life Insurers as executive vice president and general counsel. Froment was previously director of the Ohio Department of Insurance and is an independent director at Harford Mutual Insurance Group.

— Shade Vaughn is now chief marketing and business development officer at Akin Gump Strauss Hauer & Feld. He most recently was chief growth and communications officer at Paul Hastings.

— Sarah Matthews is now a senior adviser with Merrimack Potomac + Charles. She previously was comms director for the House Select Committee on the Climate Crisis Republicans and is a Trump White House alum.

— Bruce Miller is joining BSA | The Software Alliance as senior director of legislative strategy. He most recently was director of federal legislative affairs at Kyndryl, and is a Hill veteran.

— Anna Chu has been hired as executive director of We The Action. She most recently was vice president for strategy and policy at the National Women’s Law Center.

— Rahkendra Ice and Lucy Coady are joining Evergreen Strategy Group as directors. Ice previously was deputy director of communications and digital media at Girl Up. Coady previously was director of the No Kid Hungry Campaign at Share Our Strength.

— Julie Andreeff Jensen and David Sutphen are launching Jasper Advisors, a new strategic advisory firm. Jensen previously was senior vice president for the Washington Commanders. Sutphen previously was chief strategy and engagement officer at 2U.

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New Joint Fundraisers

Lehman for Kentucky (Citizens for Matthew Lehman, Kentucky State Democratic Central Executive Committee)
Pfaff Victory Fund (Pfaff for Congress, Democratic Party of Wisconsin Federal)
SANCHEZ VOTER ACTION VICTORY FUND (Stand With Sanchez, California Democratic Party)

New PACs

Big Sky Voters PAC (Super PAC)
Citizens for Responsible Leadership PAC (Super PAC)
Glaukos iPAC (PAC)
Strong Democrat PAC (PAC)

New Lobbying Registrations

Alva Elliott Partners, LLC: Good Day Farm, LLC
Alva Elliott Partners, LLC: Tower 19 On Behalf Of Ansys, Inc.
Alva Elliott Partners, LLC: Tower 19 On Behalf Of Astranis Space Technologies Corp.
Alva Elliott Partners, LLC: Tower 19 On Behalf Of Lattice Semiconductor
Capitol Counsel LLC: Pharmapotheca A, Inc.
Cfm Strategic Communications (Conkling Fiskum & Mccormick): City Of Ferndale
Cfm Strategic Communications (Conkling Fiskum & Mccormick): City Of Lynden
Commonwealth Strategic Partners, LLC: People For The Ethical Treatment Of Animals (Peta)
Eichstaedt Law Office, Pllc: Burns Paiute Tribe
Holland & Knight LLP: Bristow Group, Inc.
James Edwards: Centripetal Networks, Inc.
K&L Gates, LLP: Rondo Energy Inc.
Kountoupes Denham Carr & Reid, LLC: Invesco Holding Company (US), Inc.
O'Neill And Associates: Bay State Cruise Company
Osa Consulting LLC: Rogue Space Systems Corporation
Scofes & Associates Consulting Inc: US Worldmeds LLC
Strategies 360: Hawaii Land Trust
Winning Strategies Washington: Mintz Levin (On Behalf Of Fulgent Genetics, Inc.)

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New Lobbying Terminations

Liebman & Associates, Inc.: Freyr Battery, Kspjv, LLC
Liebman & Associates, Inc.: Global Clean Energy Holdings, Inc.
Mike Davis, LLC: Keller Postman LLC
O'Neill And Associates: Pellet Fuels Institute (Pfi)
O'Neill And Associates: Silent Falcon Uas Technologies
Riiid Labs Inc.: Riiid Labs Inc.
Turntide Technologies: Turntide Technologies

A message from the National Confectioners Association:

In 2017, America’s leading chocolate and candy companies joined forces in a landmark agreement to help consumers manage their sugar intake. In a commitment to Partnership for a Healthier America, these companies set an ambitious goal to provide more transparency, create more portion guidance options in innovative packaging and educate consumers about how unique products like chocolate and candy can be an occasional treat in a balanced lifestyle. The companies exceeded their commitment, empowering consumers to make informed choices and driving directional alignment within the broader confectionery industry. In fact, 85% of chocolate and candy sold today comes in packaging that contains 200 calories or less per pack – whether that’s individually wrapped products or multipacks that contain smaller packages inside. Learn more at AlwaysATreat.com.