(Bloomberg) -- Colony Capital founder Tom Barrack asked a U.S. judge to throw out charges that he illegally acted as an agent of a foreign government.
Barrack, a longtime friend of former President Donald Trump, on Monday filed a motion to dismiss the criminal case in federal court in Brooklyn, New York, arguing prosecutors had no proof that he agreed to act as an agent of the United Arab Emirates in trying to influence U.S. policy. Barrack and his assistant, Matthew Grimes, pleaded not guilty to the charges in July. Grimes also moved to dismiss the case on Monday.
“Mr. Barrack was never an agent of the UAE, nor did he commit obstruction or make any false statements,” defense lawyer Daniel Petrocelli said in Monday's filing. “There is no basis whatsoever for the charges against Mr. Barrack, and this indictment should be dismissed in its entirety.”
Barrack and Grimes were indicted last year along with a third defendant, UAE national Rashid Alshahhi, who remains at large. Barrack was released on a $250 million bail package, one of the largest in recent memory, while Grimes posted a $5 million bond. Alshahhi was originally charged by the U.S. in a sealed criminal complaint in 2019.
‘Colony's Agent'
Prosecutors allege Barrack and Grimes engaged in a years-long scheme to try to shape the Trump administration's foreign policy in directions favored by the UAE, in part by developing a “back-channel line of communication” to U.S. officials. The UAE also “tasked” the men with trying to mold and influence public opinion through media appearances, prosecutors say.
But Petrocelli said there's no proof Barrack reached any agreement with UAE officials or received anything of value in return for acting on their behalf. Without such an agreement, prosecutors were criminalizing “core First Amendment activity” by his client, the defense lawyer said.
“Mr. Barrack stands accused of crimes for voicing long-held views about the Middle East and communicating with its leaders,” Petrocelli said.
Grimes likewise argued that the government had no proof that he agreed to act for the UAE, pointing out that he was an employee of Colony during the period covered by the indictment. He “was Colony's agent, not an agent of the UAE,” defense lawyer Abbe Lowell said, and his activities fall under the definition of legal commercial transactions.
“Mr. Barrack directed Mr. Grimes' activity and Colony paid Mr. Grimes' salary,” Lowell said. “Consistent with this reality, the indictment does not allege—and could not allege—that Mr. Grimes ever took direction from, or was controlled by, the UAE.”
Favorable Evidence
Barrack's lawyers also said they had received some “highly exculpatory evidence just disclosed by the government,” including two witnesses interviewed by federal investigators who “directly refuted” the allegations. According to Monday's filing, this evidence “irrefutably demonstrates Mr. Barrack was not an agent of the UAE.”
The description of that evidence was among several sections redacted from the 40-page motion under a protective order covering information the government deems sensitive. Petrocelli on Monday asked U.S. District Judge Brian Cogan for permission to file release an unredacted motion to dismiss that would make evidence favorable to Barrack public.
“By unsealing the indictment in this case, the government has already chosen to disclose dozens of otherwise private text messages and internal government documents in an attempt to wrongly portray Mr. Barrack as a foreign agent,” Petrocelli said. “It should not now be allowed to assert confidentiality regarding evidence of a similar character that strongly discredits those allegations. The public has a right to know the full story.”
Both Barrack and Grimes suggested politics may have played a role in their indictment.
Barrack's lawyers raised questions about the timing of the charges against him, suggesting prosecutors waited until Trump was out of office. The indictment accused Barrack of lying about some of his activities in a June 2019 interview with Federal Bureau of Investigation agents and obstructing justice. Barrack's lawyers said the government could have charged those crimes then instead of waiting another two years.
‘Divisive Political Figures'
“The lengthy delay has also prejudiced Mr. Barrack's ability to identify, preserve, and secure documentary evidence and obtain evidence from witnesses whose memories have faded,” they wrote. “The government has provided no explanation for its delay, and the specter that the government intentionally delayed bringing this case for political reasons or tactical advantage hangs heavily over this case.”
In a second filing on Monday, Grimes asked to review information about the grand jury that indicted him to determine if bias may have played a role.
“This is undoubtedly a high-profile, politically charged case involving divisive political figures that garner significant media attention and evoke strong feelings of hate or adoration,” Lowell said..
“To eliminate those grand jurors who would indict Mr. Grimes based upon prejudice rather than the merits of the prosecution's case, it would not have been difficult to voir dire all potential grand jurors. Given the individuals involved and the nature of the charges being sought, specific questions should have and could easily have been asked to elicit conscious and unconscious prejudices of the jurors concerning political affiliation, politics, and foreign influences.”
Middle East Co-Investors
Barrack also disclosed his connections to foreign leaders in June 2017 when he considered joining the Trump administration. He submitted an application, known as a Form SF-86, required for background investigations of people seeking sensitive national security positions, his lawyers wrote.
“This application spanned hundreds of pages and disclosed Mr. Barrack's contacts with foreign leaders and officials throughout the world, including the very UAE individuals referenced in the indictment,” according to the filing. “Mr. Barrack was extensively interviewed by U.S. State Department investigators about these contacts and interactions.”
Barrack stepped down as chairman of Colony Capital in March and formed a new venture, Falcon Peak Partners. The indictment came just as he had inked the first in a series of deals he planned to pursue in the hospitality, leisure and entertainment industries. He had said sovereign wealth funds and family offices in the Middle East would be co-investors.
Cogan has directed the trial to begin on Sept. 7 with jury selection. Prosecutors have until Feb. 28 to respond to Barrack's motion.
The case is U.S. v. Al Malik Alshahhi, 21-cr-00371, U.S. District Court, Eastern District of New York (Brooklyn).
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