The criminal case against Tom Barrack, the businessman accused of acting as an unregistered agent of the United Arab Emirates, involves national security information, according to a court filing on Wednesday.
Prosecutors didn’t spell out the nature of the secret data, but said the case will involve the Classified Information Procedures Act, known as CIPA. Judges use CIPA to prevent the unnecessary disclosure of classified information, while weighing the national security cost of such a disclosure.
“It’s difficult to discern what aspect of any particular case is classified because it’s always heard in a sealed courtroom, out of the reach of the public,” said Mark Lytle, a former federal prosecutor not involved in the case. “What’s always at play is the government’s interest in protecting classified information versus the defendant’s right to seek the use of that information in their defense.”
Barrack, a longtime friend of former President Donald Trump, is accused of taking direction from senior UAE officials and unlawfully seeking to influence the foreign policy positions and appointments of the Trump campaign in 2016 and his administration. Barrack has pleaded not guilty and is free on $250 million bail.
The CIPA disclosure came in a two-page filing that spelled out several other matters that will arise at a pretrial hearing Thursday in federal court in Brooklyn, New York. Prosecutors will inform the judge in writing of the classified information before the next status conference in two months.
As the case progresses, prosecutors will explain to the judge why the government wants to protect classified information, and what must be turned over to the defendant through the pretrial exchange of information known as discovery. The law provides in some instances for the use of summaries of the information. A Justice Department manual said that intelligence officers must be able to operate covertly, and prosecutors may need to conceal their identities.
“If the court rules that the information has to be disclosed, and that’s unacceptable to the intelligence agency, it’s possible that the prosecutors may have to dismiss the case because they won’t be able to meet their disclosure obligations,” said Lytle, who’s now at Nixon Peabody LLP. “That’s why they call it graymail.”
An attorney for Barrack didn’t immediately return a call or email seeking comment. Barrack formerly ran Colony Capital Inc., a real estate and investment firm.
Barrack helped the Emiratis on several fronts, according to the indictment. He claimed credit for helping to arrange a White House meeting with the president, for blocking a Camp David meeting on the blockade of Qatar and for pushing the UAE’s preferred candidates for positions in the new administration.
He’s also accused of obstructing justice and making multiple false statements to law enforcement officials during a 2019 interview.
