Of all the collateral damage inflicted on ancillary players in the special counsel’s probe into Russian meddling in the 2016 U.S. presidential elections, none is as strange – or capricious – as the Justice Department’s crusade against well-connected Democratic lawyer Gregory B. Craig. News reports and informed sources suggest that the Justice Department is on the verge of prosecuting Craig, one of Washington’s most celebrated lawyers, on charges of lying to department officials in 2013 and thereby evading a legal duty to register as an agent for the Ukrainian government under the Foreign Agents Registration Act (FARA).
But the Justice Department’s leadership should take a hard look at the case before it’s too late to avert a grave injustice. A prosecution would also risk a humiliating defeat for the department if and when a jury sees evidence that Craig told no lies and committed no crime. (Disclosure: Greg Craig is a friend of mine.)
DOJ officials and Craig’s former law firm have fueled media reports battering his reputation by portraying him as having violated FARA and lied to the Justice Department to avoid registering. But those reports were based on incomplete information. This article explores dozens of previously undisclosed emails and other documentary evidence that support Craig’s claim of innocence and the analysis and comments about his side of the story by his lawyers, William W. Taylor III and William J. Murphy.
In a statement responding to questions from me, Taylor and Murphy revealed Tuesday that there seems to be disagreement within the Justice Department about whether Craig should be prosecuted.
“The National Security Division of the Department of Justice referred the investigation of this matter to the United States Attorney for the Southern District of New York in March, 2018,” their statement said. “After we made a full presentation to that office and it decided not to proceed with a prosecution, we learned in January, 2019 that the NSD had referred the case to the D.C. United States Attorney to bring the charges that the SDNY had rejected.”
A spokesman for the Southern District office declined to comment for this article.
The core of the claims by some Justice Department officials that Craig violated FARA is their interpretation of his contacts with two New York Times reporters in December 2012, just before the Ukrainian government’s release of a 186-page report that Craig and his then-law firm, Skadden, Arps, Slate, Meagher & Flom, had prepared for the Ukrainian government.
One irony, stressed by a Craig friend well-connected in legal circles who requested anonymity, is that at the same time that Attorney General Bill Barr is being criticized for jumping to the conclusion that President Trump did not engage in obstruction of justice, “the DOJ would authorize the prosecution of a prominent Democratic lawyer with a sterling reputation for honesty and integrity in a case that is, by any measure, exceedingly weak.”
The report was described from its inception by Craig, who has moved in and out of high-level positions during Democratic administrations, and his former law firm as an independent professional evaluation of Ukraine’s controversial prosecution, trial, and conviction of Yulia Tymoshenko on corruption charges in 2011. She is a former prime minister and was a political rival of Viktor Yanukovych, the country’s pro-Russian president at the time.
Justice Department officials have not claimed that Craig’s and Skadden’s work on the Tymoshenko report itself made them Ukrainian agents or required registering under FARA. They have claimed that Craig and Skadden violated FARA by joining in a campaign by a public relations team for Ukraine to promote the Tymoshenko report, in particular by providing an exclusive, advance copy and Craig’s comments about it to the Times.
Craig’s lawyers told me that the relevant documents show clearly that the reason he contacted and commented to the Times and a few other media outlets was not to promote Ukraine’s spin on the Tymoshenko report, but rather to preempt “mischaracterizations of the Report emanating from Ukraine pursuant to a media campaign orchestrated by the Yanukovych regime, Mr. Manafort, and the public relations firm engaged by Ukraine to minimize the report’s criticisms of the Tymoshenko prosecution.”
The Justice Department investigation of Craig and Skadden has proceeded under a media spotlight in part because of reports by officials that Paul Manafort had a hand in the hiring of Craig in 2012 and that Manafort and his colleague Rick Gates discussed the Tymoshenko report with Craig and other Skadden lawyers while it was being prepared.
Manafort, the former Trump campaign chairman, was convicted of multiple crimes related to his highly lucrative work for Ukraine and Yanukovych. The Craig investigation was initiated by the office of Special Counsel Robert Mueller and spun off to the U.S. Attorney’s Office in New York City a year ago. More recently, the National Security Division has requested that the D.C. U.S. Attorney bring the charges.
The Justice Department publicly suggested, in a detailed 38-page appendix to a January 15, 2019 “settlement agreement” with the Skadden firm, that Craig (whom the department did not identify by name) and Skadden had violated FARA in 2012 by helping a public relations team led by FTI Consulting, a London-based public relations firm hired by Ukraine, promote its spin on the Tymoshenko report. The appendix also said that Craig had later made “false and misleading” statements about the matter to department officials.
Skadden agreed with the department’s allegations against Craig -- even though it had said publicly in February 2018 that Craig had not been required to register as foreign agent. Friends of Craig say Skadden made Craig a scapegoat to extricate itself from a messy investigation that was bringing bad publicity to the law firm.
The settlement ended the federal investigation of the law firm, which was required to pay to the United States Treasury all of the $$4.7 million it received for its work on the Ukraine project.
In their statement, Craig’s lawyers stressed that this Justice Department appendix is a highly misleading and incomplete summary of the facts in the case. They also say it describes certain events and documents in ways that are unfair to Craig, while omitting exculpatory information. “If Mr. Craig is charged,” it adds, “we will demonstrate that the NSD’s stubborn insistence on prosecuting him is a misguided abuse of prosecutorial discretion.”
As Craig’s lawyers demonstrate, contemporaneous documents suggest strongly that Craig maintained his independence from Ukraine’s public relations team, which included Manafort associate Rick Gates and a London-based public relations firm. The documents show that Craig repeatedly refused to participate in the public relations campaign, which called for him to speak at planned media events to roll out the Tymoshenko report in Kiev, Brussels, Paris, Moscow and Washington.
Craig also told Manafort in a Sept. 24, 2012 email that he could not “background” journalists about the report because of his and Skadden’s need to “remain true to the mission which is to do a professional job and to prepare an independent report that has maximum integrity.”
This was consistent with Craig’s insistence from the start of the project that Skadden “is not being retained to engage – and will not engage – in political activities as defined by the Foreign Agents Registration Act,” as he put it in an April 2012 email.
FARA requires registration by people who do public relations or “political” advocacy (as well as those who lobby public officials) in the U.S. for a foreign government. Craig relied on research and advice from several other Skadden lawyers as well as his own experience on how to avoid crossing the line into the kind of promotional and public relations activities that might require registration.
Neither Paul Manafort nor the Ukrainian government was happy with the drafts of the Tymoshenko report shared with them by Craig. On Sept. 2, 2012, Manafort sent Craig a complaint from the public relations team that a near-final draft of the report was so favorable to Tymoshenko’s position -- and so contrary to the Ukrainian government’s desire for a positive portrayal of the prosecution -- as to be a “potential catastrophe.”
Yet Craig rejected numerous changes suggested by Manafort and the public relations team to make the draft more to the Ukrainian government’s liking. He also voiced his displeasure with the public relations team’s spin. In a Sept. 25, 2012 email that Craig sent to a senior member of the team after seeing the latest media plan, he wrote: “There is a lot of stuff in here that is just wrong” and that would fuel criticisms “that Skadden had been bought and paid for, and that this report was indeed a total whitewash.”
After that, the public relations team stopped sending updates of its media plan to Craig even as it continued to tell Ukraine that he would be part of the PR rollout. The documents also strongly support Craig’s position that his motive in making the media contacts for which the Justice Department has faulted him was not to promote Skadden’s Tymoshenko report to the media but to head off and correct mischaracterizations of it by Ukraine and the public relations team.
This evidence is especially relevant because FARA’s legislative history strongly suggests that if Craig’s motive for talking to reporters was to protect his own and Skadden’s reputations, he was not acting as a foreign agent -- even if his contacts with reporters had the incidental effect of drawing more attention to the portions of the report that the Ukrainian government liked.
The lengthy report as a whole mixed sharp criticisms of the Tymoshenko prosecution with criticisms of her, including that she had not “provided specific evidence of political motivation that would be sufficient to overturn her conviction under American standards.”
Ukraine’s public relations campaign mischaracterized that point by claiming, among other things, that the Tymoshenko report “concludes as groundless Yulia Tymoshenko’s claims that her prosecution was politically motivated,” in the words of a press release issued by the Ukrainian Ministry of Justice.
Far from supporting this claim, Craig contradicted it by giving the Times an on-the-record quote stressing that the Tymoshenko report did not conclude that her political motivation claim was groundless. Instead, Craig told the Times: “We leave to others the question of whether this prosecution was politically motivated.”
Craig explained that although Secretary of State Hillary Clinton and other Western leaders had criticized the prosecution as a political reprisal, his team was not able to judge the Ukrainian politics that brought Tymoshenko to trial on charges of abusing her authority in agreeing to a natural gas deal with Russia when she was prime minister.
Any prosecution of Craig might have trouble getting around this evidence – and even more trouble getting around a January 2014 decision in Craig’s favor by a senior DOJ National Security Division official, Heather H. Hunt. It culminated an exchange of questions and answers over 18 months that included eight letters and an Oct. 9, 2013 meeting, all focused on whether Skadden was required to register as a foreign agent.
Hunt’s Jan. 16, 2014 letter to Craig credited his explanation that his media comments were (in her words) “not political activities, but were meant to correct mischaracterizations of the Report attributable to the Ukrainian Ministry of Justice [and others] concerning whether the Tymoshenko prosecution was a political prosecution.”
Hunt concluded: “We ... find based upon the information you brought to our attention that your firm has no present obligation to register under FARA” and agree that “your firm in response to U.S. news inquiries did not act as an agent of the Ukraine.”
This amounted to an official, carefully considered Justice Department admission that Craig and Skadden had acted lawfully when they provided copies of the Tymoshenko report to a few reporters and spoke with them to correct mischaracterizations of the report without registering as foreign agents.
To be sure, DOJ officials have more recently claimed – especially in the appendix to the Jan. 15, 2019 Skadden settlement agreement -- that Craig misled Hunt with false statements of fact and failed to disclose important information in his letters and at the meeting.
But the documents show that the minor inaccuracies in Craig’s letters responding to Hunt’s inquiries were neither misleading nor intentional, and do not cast doubt on his explanation of his purpose in talking to reporters. As a matter of law, inaccurate statements to federal officials are criminal only if they are both intentionally and “materially” false.
For example, the Justice Department’s Jan. 15 appendix said that a June 3, 2013 letter from Craig to Hunt was “false and misleading” because (among other things) it said that “the law firm on December 12-13, 2012 provided a copy of the report to five named people including David Sanger of the Times.”
This was inaccurate, the department pointed out, because Craig had first exchanged emails with Sanger and provided Sanger an advance copy of the report on Dec. 11 – not Dec. 12. True. But this was clearly inadvertent and any judge or jury would find that this error neither falsified nor concealed any material fact.
The Dec. 12, 2012 Times article made clear that the newspaper had received a copy of the Tymoshenko report, and had spoken with Craig, before the Ukrainian government had officially released it that day. So whether Craig gave Sanger the report on Dec. 11 or 12 was of no significance.
The Justice Department appendix also called false and misleading Craig’s statement in an Oct. 10, 2013 letter to Hunt that it was only “in response to requests from the media” that Skadden provided copies of the Tymoshenko report to the Times and other media outlets. The department pointed out that Craig’s Dec. 11, 2012 email had reached out to David Sanger and offered to get him a copy of the report “if you are interested.”
True. But Craig also asked in his email, before delivering a copy of the report to Sanger: “Is this something that you are truly interested in and have time for? I have always assumed that these days your time would be taken up by selecting our new Secretary of State.”
(Speaking of misleading omissions, the Justice Department appendix selectively elided those two sentences – which indicated that Craig was not pressing Sanger to write an article at all – from the middle of its 60-word partial quotation of Craig’s Dec. 11, 2012 email to Sanger.)
Sanger then emailed Craig that he would like a copy. So Craig’s statement to Hunt that he and Skadden provided copies of the report “in response to requests from the media” was literally true. Sanger did request a copy.
The Justice Department’s appendix also said that two of Craig’s letters to Hunt omitted a long list of facts in answering her questions. These included Craig’s and Skadden’s detailed interactions with the pubic relations team and lobbyists retained by Ukraine and knowledge of the public relations team’s written plans to promote the Tymoshenko report, which included having Craig provide it to a U.S. publication before its public release.
But Hunt had not asked Craig anything about these matters. They were not part of what Craig saw as Skadden’s services to the Ukraine, and he did not bill for his efforts to head off the public relations team’s spin in brief conversations with Sanger and another Times reporter. Craig’s responses listed his media communications, with minor errors such as the one noted above about the dates of his contacts with the Times reporters.
“Are they really going to brand Mr. Craig a felon,” adds lawyer Murphy, “because of the difference between December 11 and December 12, 2012?”
