‘Espionage Lite’ or Deal Making? Prosecutors Struggle to Draw a Line.

https://www.nytimes.com/2022/11/07/nyregion/trump-advisor-thomas-barrack-aquitted-trial.html

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The federal trial of Thomas J. Barrack Jr., a businessman and adviser to former President Donald J. Trump, hinged on a single, deceptively simple question: What makes someone an agent of a foreign government?

Is it enough merely to ask intelligence officials from a foreign country for guidance on campaign speeches, cable news interviews, or magazine editorials? What about pushing the president’s advisers for policies favored by a foreign government?

Prosecutors in Brooklyn argued that Mr. Barrack did those things, giving the United Arab Emirates access to the highest reaches of American power in an arrangement they said bordered on espionage. They failed to convince the jury. After an administration that was marked by commingling of business and political interests and that favored backdoor channels for foreign relations, prosecutors could not draw a clear line between intelligence operations and international deal making.

“The jury likely saw Barrack as more of a free agent than a foreign agent,” said Michael Atkinson, the former inspector general for the U.S. intelligence community, who is now a lawyer in private practice.

“In a nontraditional espionage case, like this, it’s not always clear who controls or directs the other,” Mr. Atkinson said. “It could be that the Emiratis, generally, thought they were controlling Barrack, and he could think he was directing or controlling the Emiratis.”

Mr. Barrack, 75, was acquitted on all nine criminal counts he faced. The charges included acting as an agent of a foreign government without notifying the attorney general, a charge the Justice Department has referred to as “espionage lite,” a violation of Section 951 of the U.S. criminal code, which has its roots in the Espionage Act of 1917.

Espionage includes stealing and transmitting government secrets, the stuff of cloak-and-dagger novels. It also includes gathering information on industries, economies and popular sentiment and, increasingly, influencing governments by manipulating public opinion — and directly.

In recent years, prosecutors have used Section 951 against defendants whose activities occupied a broad range of that spectrum, including a ring of embedded Russian spies; an airline employee smuggling packages for Chinese military officials; and a dual U.S.-Iranian citizen who admitted to spying on a dissident group for Iran.

Maria Butina, who infiltrated high-level Republican circles at the direction of Russian officials, pleaded guilty in 2018 to conspiracy to act as a foreign agent. This year, prosecutors in Manhattan used 951 to charge a woman who led an “I Love Russia” propaganda campaign in the United States, communicating directly with Vladimir Putin and arranging meetings for Russian officials to lobby U.S. business and government leaders.

Section 951 defines an agent as someone who “agrees to operate within the United States subject to the direction or control of a foreign government or official,” with exceptions for legal commercial transactions.

Historically, most cases brought by the Justice Department under 951 and its predecessor had fairly obvious elements of espionage: a German-born man who culled public records on American manufacturing for the Nazi government; and an Arabic-language newspaper publisher in Illinois who gathered information on Iraqi dissidents for Saddam Hussein’s regime.

In more recent cases, including Mr. Barrack’s, the misconduct charged under 951 more closely resembles lobbying, business dealings or even management consulting. Defendants have offered advice, arranged meetings and sought competitive advantage for countries or businesses.

“In the past, 951 was used to go after spies, and usually there wasn’t very much ambiguity,” said Robert Kelner, a lawyer and an expert on election and government ethics law. Prosecutors, he said, “are now using the statute in this very fuzzy context of influence.”

Mr. Barrack’s acquittal should prompt “a reassessment,” Mr. Kelner said. “It shows that the Department of Justice had it right before, when they chose to use the statute only in very serious cases.”

The changing use of the law reflects the Justice Department’s concerns about foreign interference. Rather than leaks and moles, cases like Mr. Barrack’s are about the integrity of administrations; transparency in policy, media and business dealings; and the gray area of soft power foreign-influence campaigns.

The issue was particularly fraught in the Trump era. The ex-president had business interests in Russia, envisioning a hotel in Moscow, and Russia interfered in America’s 2016 election on his behalf. During the campaign and transition, Mr. Trump and his associates had extensive contacts with Russian nationals or their intermediaries.

The case against Mr. Barrack, which was brought by the U.S. attorney’s office in Brooklyn, grew out of the investigation by the special counsel, Robert S. Mueller III, of Mr. Trump and Russian interference in the 2016 election.

“The idea of influencing the body politic is a form of intelligence operation,” said Chris Costa, a career intelligence officer who now runs the Spy Museum in Washington. “You know what it means to be a spy. What’s less discernible is this idea of foreign influence.”

“It’s more than classic espionage,” Mr. Costa said. “It’s not ‘hands in the safe,’ stealing America’s secrets: It’s trying to influence an outcome in the American system.”

In a sign of the Justice Department’s concerns, in 2017 the F.B.I. set up a foreign-influence task force, aimed at rooting out efforts by foreign powers to subvert or manipulate American elections and public sentiment. But for prosecutors, such cases can be hard to sell to judges and juries.

In 2018, prosecutors in Virginia charged Bijan Kian, a former business partner of Mr. Trump’s former national security adviser, Michael Flynn, with acting as an agent of Turkey.

Mr. Kian was convicted, but a judge overturned the verdict because of concerns that there was insufficient evidence and that the government had used an overly broad interpretation of 951. Mr. Kian was granted a new trial this year.

Unlike Mr. Barrack, Mr. Kian was also charged with violations of the Foreign Agents Registration Act — a lobbying-related charge that is frequently conflated with 951.

While the foreign agents act is essentially limited to political lobbying, 951 covers a far broader range of activities, experts and legal observers said. In another sense, though, 951 is narrower: While lobbyists can represent basically any entity, 951 specifies that the direction comes from only a foreign government or official. There is also an unresolved question about whether 951 requires an explicit agreement to act as an agent, and to what degree the foreign power has to direct the agent.

“A fundamental question, in addition to the amount of deception or concealment, is agency,” said David Aaron, a former prosecutor with the Justice Department’s National Security Division. “You have to agree to act at the direction and control” of a foreign power, “and then you have to do something that they tell you to.”

At Mr. Barrack’s trial, jurors saw hundreds of text messages and emails that prosecutors said showed Mr. Barrack working at the direction of Emirati intelligence officials.

Mr. Barrack and his assistant, Matthew Grimes, who was acquitted alongside him, shared drafts of editorials, position papers and speeches with Emirati officials, soliciting their feedback and crafting language favorable to the Gulf state. One prosecutor, in his closing argument last week, said Mr. Barrack was acting as a “mouthpiece for a foreign government.”

Lawyers for Mr. Barrack and Mr. Grimes said the communications were part of normal business transactions. Mr. Barrack, they argued, had ample reason as a financier to court the Emirati leaders who ran cash-flush sovereign wealth funds: He was raising money.

“It is not enough that a foreign official made requests and a defendant sometimes acted to fulfill them,” Mr. Barrack’s lawyers wrote in a pretrial motion. Mr. Grimes’s lawyers questioned 951 itself, calling it “unconstitutionally vague.”

In his closing arguments, one of Mr. Barrack’s lawyers, Randall Jackson, laughed at the notion that the men brokered “some sort of supersecret spy agreement” during a lunch and a bike ride with Emirati officials.

Mr. Jackson also questioned the government’s use of an Instagram post of another Emirati official with Mr. Barrack at a holiday celebration.

“You don’t invite your spy handler to the Christmas party,” Mr. Jackson said.