November 22, 2022 – Earlier this month, Thomas Barrack, a wealthy Lebanese-American financier who once advised former President Donald Trump, was cleared of all charges against him. Acquittals are rare in the white-collar world. The result is also notable for another reason: it highlights how difficult it can be to persuade a jury to convict Trump of the crimes he is currently being investigated for.
The Department of Justice (DOJ) only files charges when admissible evidence is likely to be sufficient to obtain and maintain a conviction. Prosecutors should have maximum confidence before indicting Trump, not because he is a former president, but because the consequences of a failed prosecution after a lengthy trial could be destabilizing for the country.
The main allegations against Barrack were that he acted as an agent of the United Arab Emirates (UAE) without properly notifying the Attorney General. Prosecutors claimed that as Trump’s campaign leader during the 2016 election, Barrack began using his access to Trump and his inner circle to further UAE political goals without revealing his true allegiance.
If that sounds unconvincing as a basis for prosecution, prosecutors may have thought they had an appeal. Earlier this year, they filed a substitute lawsuit alleging that Barrack’s company Colony Capital (now DigitalBridge Group) received nearly US$374 million in capital commitments from UAE sovereign wealth funds while Barrack worked to protect the UAE’s interests support financially. Selling one’s services to a foreign country involves corruption and treason, appropriate conduct for law enforcement when there is an applicable law. Helping a foreign country alone is unlikely and may even seem innocent.
However, at the trial, Barrack outdid the government by taking the stand and testifying for nearly five days. Witty, graceful and statesmanlike, Barrack dismissed prosecutors’ attempts to paint him as a hitman, noting that he does not always have the UAE’s interests in mind. Most notably, he has sided with Qatar against the UAE during a major diplomatic crisis. Barrack bluntly explained that his involvement in Middle East affairs stemmed from his deep belief as a Lebanese-American that closer American ties with the Gulf countries would promote political stability in the region and be mutually beneficial – a philosophy that underpins his relationship preceded by the UAE.
Three pending criminal investigations against Trump are known. The lesson of the Barrack trial is that a defendant with a strong personality can dominate and win a case with less than overwhelming jury appeal. Yet the evidence in each of the Trump investigations appears to suffer from the same weakness. With one important exception, Trump’s known behavior falls short of what would naturally compel a jury to convict, even if it were illegal. For example, he has not done or threatened significant harm, nor has he used “corrupt” means, such as fabricating false evidence or manipulating witnesses, to achieve his ends.
The Georgia case
In 2021, the Atlanta District Attorney launched an investigation focused on Trump’s attempts to rig the results of the 2020 Georgia presidential election. According to a recorded phone call, Trump urged Georgia’s Secretary of State Brad Raffensperger to “find 11,780 votes” (the minimum number Trump needed to defeat Biden in the state). Trump also told Raffensperger that he would be taking “a huge risk” if he didn’t cooperate, and hinted that Raffensperger could face criminal prosecution.
Under Georgian law, Trump’s behavior could constitute criminal solicitation of voter fraud or willful interference with the performance of official duties. But as is so often the case, Trump did not continue his outrageous speeches. As far as we know, despite his executive powers, he never punished Raffensperger for failing to comply with his orders. Nor did he take any other steps to rig the results of the state elections — such as invoking the DOJ’s powers to monitor elections. The whole affair bespeaks a characteristic lack of seriousness that is part of Trump’s strategy to evade legal accountability.
The Case of the Secret Documents
In August of this year, the DOJ executed a search warrant in Mar-a-Lago and seized classified and top secret national defense information in Trump’s unauthorized possession. This case also poses problems for a prosecutor. The potential charges against Trump raise worrisome national security concerns but do not hint at the personal guilt a jury would need to find for a criminal conviction of a felony. In 2015, for example, former General David Petraeus was allowed to plead guilty to a misdemeanor for leaking classified information to his biographer and making false statements to federal investigators.
According to recent reports, based on the evidence to date, the DOJ has tentatively concluded that Trump appropriated sensitive government documents for purely selfish reasons, in order to retain what he believed to some extent to be his property. Unless new evidence emerges that dramatically changes that conclusion — evidence, for example, that Trump intended to use, sell, or share the documents with other parties — it seems unlikely that the case would become more attractive to a criminal trial jury and therefore chargeable.
The January 6 investigation
Finally, the DOJ investigated the circumstances surrounding the riot that threatened the Capitol on January 6, 2021. Trump’s status in the investigation is unknown. But his criminal exposure in this case raises the most important questions of all.
On the one hand, the January 6 Committee (the Committee) has presented evidence that Trump encouraged right-wing attorneys to prevent the constitutional transfer of power. John Eastman devised an illegal plan to nominate Trumpian “electors” in place of those chosen by the states, and Jeffrey Clark proposed using the DOJ to pressure state officials to choose the impostors. In neither case did the plans go anywhere, and the armchair fantasies of Trump, Eastman and Clark are unlikely to impress the jury. When Justice Department leadership told Trump in late December 2020 that they were stepping down instead of serving under Clark, a chastised Trump turned to Clark and said, “The bureaucracy will eat you alive.” Not exactly a call to action.
On the other hand, Trump fatefully stepped out of character by fomenting a riotous and deadly riot in the Capitol on January 6. At one of the committee’s hearings, Vice Chair Rep. Liz Cheney summed it up: Trump “rathered the mob, rallied the mob, and lit the flame of this attack.” As testimonies before the committee showed, the security service informed Trump that thousands of his supporters were armed for the Jan. 6 Ellipse rally. Still, he urged security forces to “march them to the Capitol from here,” noting, “You’re not here to hurt me.” The riot was a desperate man’s last chance to corrupt the vote count . If Vice President Pence had yielded to the pressure of events that day, Trump might have succeeded.
At this point, parallels to the Barrack case, or indeed to any prosecution in the country’s history, begin to falter.
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