Skadden Arps Skadden, Arps, Slate, Meagher & Flom Washington, D.C., offices. June 19, 2015. Photo: Diego M. Radzinschi/NLJ.

Federal prosecutors and defense lawyers for Greg Craig clashed in court this week as the two sides seek to shape the contours of his approaching trial, where the former Obama White House counsel intends to contest charges he misled the U.S. Justice Department about his work for Ukraine as a prominent partner at the firm Skadden, Arps, Slate, Meagher & Flom.

In court filings, Craig's defense team at Zuckerman Spaeder have pushed to exclude evidence  they argue is irrelevant to charges that he deceived the Justice Department in 2013 as it scrutinized whether he should register as a foreign agent for his work for Ukraine.

The charges against Craig are tied to his communication with the Justice Department unit tasked with enforcing the Foreign Agents Registration Act, a more than 80-year-old law requiring advocates working for foreign governments or other overseas interests to disclose their activities in the U.S. Hundreds of pages of new records released this week offered a glimpse inside the firm, and at how both sides are approaching the case.

Among the pieces of evidence Craig's defense lawyers want to shut out from the August trial are statements he made in an interview with Special Counsel Robert Mueller III's office in 2017, along with details about how Skadden was be paid for its work on a purportedly independent report on the Ukrainian government's prosecution of Yulia Tymoshenko, a former prime minister and political rival of the country's president at the time, Viktor Yanukovych.

Craig's defense lawyers said his statements to Mueller's team in 2017 “have no legitimate place in a prosecution about alleged concealment of material facts from the FARA Unit in 2013.” Prosecutors have claimed that, in the 2017 interview, Craig repeated “false and misleading statements” he'd previously made to the Justice Department's FARA unit about his role in the public rollout of the report on Tymoshenko's prosecution.

Craig, who retired last year amid scrutiny over his Ukraine work, has consistently denied that he misled the Justice Department. His defense team, led by Zuckerman Spaeder partner William Taylor, repeated Monday Craig's insistence he was truthful with the FARA unit in 2013 and again with the special counsel's office in 2017.

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“If the government persists in its effort to try an uncharged false statement case in addition to the case actually charged, there will be significant factual disputes about the 2017 statements. Those disputes will confuse the jury, waste time, and unfairly prejudice Mr. Craig,” Craig's attorneys said in court papers.

In a separate filing, also filed Monday, Craig's defense lawyers pushed to shut out evidence about what they described as the “byzantine process” in which the Russia-backed government of Ukraine approved a payment to Skadden. A prominent Ukrainian businessman, the steel magnate Victor Pinchuk, had confidentially bankrolled the law firm's work on the Tymoshenko report, paying about $4.15 million in fees and expenses. When Skadden requested more money to complete the report, the Ukrainian government's Ministry of Justice paid an additional $500,000, according to Craig's filing.

Craig's defense lawyers said they had no objection to prosecutors raising at trial the amount Skadden was paid, along with how the fees and expenses were split between Pinchuk and the Ukrainian government. But they said prosecutors should not be allowed to present the “voluminous correspondence” related to the Ukrainian government's portion of payments, which the defense lawyers said would invite “a separate mini-trial on issues related to those fees.”

“Such a diversion will confuse the issues and mislead the jury, and create a significant and undue waste of time and unfair prejudice,” Craig's defense team argued.

Prosecutors have alleged that Craig misled the Justice Department, in part, to avoid the stigma of registering as a foreign agent. But Craig has been charged only with making false and misleading statements, not with violating the Foreign Agents Registration Act.

In one of Monday's filings, Craig's defense lawyers raised concern that the longtime head of the Justice Department's FARA unit, Heather Hunt, would address whether Craig should have registered as a foreign agent. Any such testimony would mislead the jury, Craig's defense team said.

“Ms. Hunt cannot testify that Mr. Craig was required to register under FARA; that is a legal conclusion that no witness, fact or expert, may address at trial,” Craig's lawyers wrote.

Prosecutors, meanwhile, have made moves to limit what Craig's defense lawyers can tell jurors. And they raised similar concerns about the trial focusing on whether Craig violated FARA rather than the actual charges.

Amy Jeffress Amy Jeffress (File: 2013) Photo: Diego M. Radzinschi/NLJ

In a filing Monday, prosecutors said Craig should not be allowed to call Arnold & Porter Kaye Scholer partner Amy Jeffress as an expert witness in his defense.

Jeffress, a former federal prosecutor who counsels clients on FARA, was named this month as an expert witness who would “opine that it would have been reasonable for a knowledgeable practitioner in the field in or around 2012 and 2013″ to believe there was no need to register as a foreign agent in connection with the type of report Craig prepared for Ukraine, “regardless of how the foreign entity intended to use the report or did in fact use it.”

Prosecutors contend Jeffress' opinion has “no bearing on whether [Craig] made false statements and omitted material facts in 2013 when the FARA Unit inquired about his activities.”

“Admitting Ms. Jeffress' opinion on that matter risks confusing the jury about the issue it will be charged to decide—whether [Craig] made false statements and omissions—and misleading it into believing it must decide whether he had a registration obligation; indeed, Ms. Jeffress' testimony risks turning the case into a mini-trial on FARA registration obligations.”

Out of an “abundance of caution,” prosecutors also argued that Craig's defense team should be barred from suggesting that the charges against him reflect a selective enforcement of FARA. That restriction, prosecutors said, should exclude “evidence or arguments” related to the investigation of Craig conducted by the U.S. attorney's office in Manhattan.

Craig's defense lawyers have said he was charged in Washington only after the U.S. Attorney's Office for the Southern District of New York declined to bring a case.

Prosecutors said it was unclear whether Craig planned to make that defense at trial but said his defense lawyers, in a June 20 email, accused the Justice Department of an “outrageous abuse of prosecutorial discretion.”

 

Read more:

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Greg Craig's Lawyers Bash 'Vague, Cryptic and Confusing' Charges

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