Greg Craig's Trial: The Foreign-Lobbying Registration Case That Isn't
Craig, a former Skadden Arps partner and Obama White House counsel, has described the prosecution as “unprecedented and unjustified”—and said he was “confident that both the judge and the jury will agree with me.” His trial is set to open Monday in Washington.
August 11, 2019 at 10:24 AM
7 minute read
The original version of this story was published on National Law Journal
In April, on the day he was indicted, Greg Craig appeared in a two-minute YouTube video to mount his defense against charges he deceived the U.S. Justice Department about his past work for Ukraine.
“This case is about whether I misled the Department of Justice to avoid having to register under the Foreign Agents Registration Act. I did not,” Craig said in the opening seconds, referring to an 80-year-old law requiring the disclosure of foreign influence in the U.S.
At the close of the video, Craig described the prosecution as “unprecedented and unjustified”—and said he was “confident that both the judge and the jury will agree with me.”
On Monday, that confidence will be tested as Craig’s trial begins in Washington.
The trial features a heavyweight in Washington legal circles, a top White House lawyer for the past two Democratic presidents who was most recently a prominent partner at the law firm Skadden, Arps, Slate, Meagher & Flom. The case against Craig is widely considered a test of the U.S. government’s increased scrutiny of Washington lobbyists and lawyers who engage with foreign governments.
The proceeding will showcase a lucrative but ultimately problematic project that Paul Manafort, the longtime Republican political consultant, helped steer toward Craig in his post-Obama White House years back in private practice. And it will provide the latest courtroom drama to arise out of the two-year investigation led by Robert Mueller, whose special counsel office referred Craig’s case to career prosecutors.
Craig was charged with withholding information from the Justice Department about a report he prepared for Ukraine in 2012 examining the Russia-backed government’s case against Yulia Tymoshenko, a former prime minister whose prosecution was widely viewed as politically motivated. Prosecutors contend Craig misled the Justice Department about his involvement in the public release of the report to avoid the perceived stigma of registering as a foreign agent and to conceal the identity of the project’s funder: the Ukrainian steel magnate Victor Pinchuk.
Craig retired last year under the scrutiny of his Ukraine work. In January, Skadden agreed to pay $4.6 million to resolve the Justice Department’s claims that the firm failed to register as a foreign agent in connection with the report. The firm registered retroactively under the Foreign Agents Registration Act, or FARA, as part of the settlement.
In charging documents in Craig’s case, prosecutors said the “purpose of FARA is to prevent covert influence by foreign principals. Proper registration under the statute allows the U.S. government and the American people to evaluate the statements and activities of individuals who are serving as agents of foreign principals.”
Craig, however, has not been charged with failing to register as a foreign agent. But FARA will nonetheless be prominently talked about in the upcoming trial, even as Craig’s judge stresses that he is charged only with misleading the Justice Department. His trial starts Monday with jury selection.
|A Focus on FARA
In the buildup to trial, Craig’s defense team has argued he lacked motive for lying to the Justice Department because he believed he was not required to register as a foreign agent. His lead defense lawyer, William Taylor of Zuckerman Spaeder, argued in a recent hearing that a “critical question” in the case is whether Craig was required to register as a foreign agent.
“No it’s not,” said U.S. District Judge Amy Berman Jackson, who’s stressed that Craig is charged only with misleading the Justice Department.
“I just don’t know how you can get to the question of whether he lied … without getting to the question that he believed the law required him to register,” Taylor replied.
Recent arguments have provided a preview of how the two sides will address that question at trial.
Of particular interest to prosecutors were Craig’s contacts with reporters in the lead-up to the release of the Tymoshenko report. Prosecutors said those interactions, including phone interviews and an email with an on-the-record quote, triggered an obligation to register under FARA.
Craig’s defense team has disputed that he made those contacts with Ukraine’s interests in mind. On Friday, one of Craig’s defense lawyers described him as an “impediment” to the media plan who took steps “contrary to Ukraine’s goals” to combat efforts to spin the report.
“Mr. Craig was not part of a media plan,” said the defense lawyer, Zuckerman Spaeder partner William Murphy.
|Who’s Testifying—And Who Isn’t?
The trial is expected to bring Rick Gates back to the witness stand. A longtime associate of Manafort’s, Gates admitted last year to financial fraud and lying to investigators as part of a plea deal requiring his cooperation with the special counsel’s office.
Gates testified against Manafort in an Alexandria, Virginia, federal court, helping Mueller’s team win a conviction against the former Trump campaign chairman on financial fraud charges tied to his past work for Ukraine. Murphy attacked Gates’ credibility on Friday.
Among the other likely witnesses are Jonathan Hawker, a public relations adviser who worked on the Ukraine project, along with Craig’s former colleagues at Skadden, including Lawrence Spiegel, the firm’s general counsel, and Cliff Sloan, who helped prepare the report. Sloan left Skadden in May for a position at Georgetown University Law Center.
Prosecutors also plan to call Heather Hunt, the longtime chief of the Justice Department team tasked with enforcing FARA. Hunt, now a senior counsel role in the FARA unit, was replaced earlier this year by Brandon Van Grack, a former member of Mueller’s team who helped prosecute Manafort.
It remains unclear whether Craig will testify in his own defense. His defense lawyers had hoped to call Arnold & Porter partner Amy Jeffress, a longtime federal prosecutor, to provide expert testimony that it would have been “reasonable” for a lawyer in Craig’s position to believe in 2012 and 2013 that there was no obligation to register as a foreign agent.
For now, Jackson has barred that testimony. But at a recent hearing, Jackson said it was possible that the planned Jeffress testimony would become admissible if, for instance, Craig took the stand and testified about his understanding of how the legal industry interpreted FARA in 2012 and 2013.
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