“I think the Trump administration sort of created new norms in terms of the communications through back, rather than transparent and official channels,” said Michael Atkinson, inspector general of the Intelligence Community from 2018-20.
“We saw that with Russia and Ukraine, and there were allegations that it was done with China.”
Shortly after Trump was elected in 2016, Kushner tried to open a backchannel for Trump to communicate privately with Russian President Vladimir Putin.
A few months later, Kushner privately worked with China’s ambassador to arrange a summit meeting for Trump and Chinese President Xi Jinping at Trump’s Palm Beach resort.
In 2019, Trump was impeached for pressuring the president of Ukraine to open a sham investigation into Trump’s political rival, then-candidate Joe Biden.
The prevalence of these unofficial channels made it difficult to know exactly what the Trump administration was saying to allies and adversaries overseas at any given time.
But this confusion could also factor into another possible defense strategy for Barrack, said Atkinson, now a partner at Crowell Moring.
Barrack’s lawyers “could argue that there was no harm, because the interests of the United States and the UAE were aligned in these matters. So no harm, no foul,” he said.
“They could even try to argue that what these defendants were doing was in the best interests of the United States,” he said.
This is the argument that Al Malik’s lawyer, Bill Coffield made to The Intercept in 2019. Coffield denied that his client was a spy, but declined to answer more specific questions.
Al Malik “is a businessman who loves the UAE and the U.S.,” Coffield said at the time. “He has openly shared his beliefs that the best way to forge a stronger bond is through economic prosperity.”
Atkinson, however, is skeptical that this defense would work.
“This is not a viable defense under the statute,” he said.
“Even in cases where the United States and a foreign country are pursuing the same objectives, the government doesn’t want people sitting in those types of meetings, and not knowing that they’re acting at the behest, or the direction, of a foreign government.”