WASHINGTON (CN) – The top Justice Department official tasked with tracking foreign agents testified Monday that Greg Craig, former Obama White House counsel who went on to work with Paul Manafort in Ukraine, failed to disclose contact with U.S. journalists – obstructing her ability to determine if he worked on behalf of the Ukrainian government.
“In my analysis if you are involved in the strategy … then that would be registerable activity,” Heather Hunt said after a volley of questions from the federal prosecutor.
The questions focused on whether Craig had told Hunt in an October 2013 meeting that he had communicated with both Manafort – then working as a lobbyist for the former Ukrainian president overseeing the media rollout for the release of a report on the prosecution of a political rival – and New York Times reporter David Sanger.
Chief of the FARA Unit from 2002 to 2019, Hunt took on the newly created role of senior counsel for FARA Administration in March.
The criminal trial is one of several high-profile cases stemming from former special counsel Robert Mueller’s investigation that involve failure to register under the Foreign Agent Registration Act, or FARA.
Craig denies his work as the lead Skadden Arps partner investigating the trial of former Ukrainian Prime Minister Yulia Tymoshenko extended past rule-of-law consulting to include public relations – including outreach to western media outlets.
Often repeating the prosecutor’s questions verbatim, Hunt delivered the majority of her testimony in an even tone with little background to color her recollection.
But her final answers seemed to make clear the FARA Unit was left in the dark while investigating Craig’s media contact in the lead up and aftermath of the release of the Skadden report on the Tymoshenko trial.
Hunt repeatedly stated FARA is “content neutral” and looks solely at whether a U.S. actor is working under the “order, request, direction or control” of a foreign principal.
“The content of the report in my analysis is not important,” Hunt said, adding, “What matters is there is some message, no matter what the message is.”
Under her leadership, the FARA Unit made two inquiries to Skadden from 2012 to 2013.
An initial letter dispatched on Dec. 22, 2012 – just weeks after the report released – requested information on the nature of the firm’s activities for the Ukrainian Ministry of Justice and a copy of its contract.
The contract specified Skadden would not engage in any work for Ukraine that could trigger a need to register under FARA. But Hunt testified that carried little weight.
“Planned activity doesn’t always go as planned,” she said. “So we’re looking at what actually did happen.”
The second letter sent in April 2013 informed the firm more information was needed to determine a registration requirement, including if Skadden delivered the report to U.S. media or agreed to interviews.
“This basically goes to the heart of the statute really,” Hunt said, later adding press contact is key to influencing American public opinion of a foreign government.
The second FARA letter also asked Skadden to disclose the name of the private citizen funding the majority of the Tymoshenko investigation.
Listed in the Skadden contract with the Ministry of Justice was a payment of 35,000 hryvnia – equivalent to $12,000 – for an operation based in Kyiv that ran approximately six months.
The contract estimated Skadden’s team of attorneys would commit 900 hours of work to the investigation and final report on whether the Tymoshenko trial was fair under western standards of law.
Hunt reviewed the contract from the witness stand through narrow glasses and recalled the small sum drew cause for further inquiry from her team.
Last week, Cliff Sloan, a top Skadden partner who co-wrote the report with Craig, testified it is common practice for law firms to maintain the privacy of third-party financiers.
“There was certainly no mystery about it,” Sloan testified Friday, saying Skadden made clear its client was the Ministry of Justice.
But Hunt said Monday the firm’s refusal to disclose the payment information made it challenging to determine “who was behind this whole effort.”
In a final response in June 2013 to the second FARA inquiry, Craig refused to reveal the identity of the private citizen – a Ukrainian oligarch who paid Skadden more than $4 million for the Tymoshenko investigation.
He acknowledged the firm made contact with reporters from The New York Times, The Los Angeles Times and the National Law Journal, providing a copy of the report after the Ukrainian government made it public and statements to correct misinformation on the report’s conclusions.
The FARA Unit then issued its determination: Craig and his Skadden colleagues on the Tymoshenko investigation must register as foreign agents of Ukraine.
In the meeting with Craig that followed that decision, with Sloan and Skadden general counsel Lawrence Spiegel also at the table, Hunt did not take notes.
But from the witness stand earlier Monday, Spiegel gave his account of the October 2013 meeting that unfolded in D.C. during a government shutdown.
Arriving at the federal building that housed the FARA Unit, Spiegel testified, was like entering a bank vault.
The lights were off in the building and there were no security personnel about.
Craig spoke for 95% of the discussion talking about “the notion that at heart we weren’t the agents of the Ukrainians,” Spiegel recalled from the witness stand. He said that prior to the meeting he had said something to Craig regarding FARA registration “to the effect of ‘why does it matter?’”
Craig said there would be consequences, Spiegel testified, barring him and other members of the Skadden team that worked in Ukraine from government work for years.
“He was very strongly advocating that we were right and they got it wrong,” Spiegel added.
But Hunt testified the FARA Unit reversed its decision that Skadden must register – following the meeting with Craig and Spiegel in Washington – believing that Craig contacted U.S. media to correct misinformation without independent from Ukraine.
She repeated that testimony statement throughout the afternoon, under cross-examination by defense attorney William Taylor, of Zuckerman Spaeder.
Taylor drew her attention to The Los Angeles Times article that Hunt said sparked the second FARA inquiry.
With the headline “Ukraine lawmakers brawl; report finds Tymoshenko trial flawed,” the article quotes a press release from the Ukranian Ministry of Justice that stated the report found Tymoshenko’s claims of political persecution “groundless.”
Taylor said this misrepresented the report findings. He further noted the National Law Journal put out an “erroneous” article and asked the witness if she read it.
“The content of the report was not important to my analysis; I don’t ever make a decision based on what is reported in the press,” Hunt testified.
Taylor prodded Hunt for more than two hours, asking if she had authority to enforce a response to FARA inquiries, if she caught The New York Times article stated Craig spoke to Sanger before the report was released, if she recognized that no media outlets reported Craig was operating under direction from Ukraine. She maintained her stance.
“I based my decision on what Mr. Craig told us,” Hunt said
On redirect, McCullough asked Hunt to review the letter Craig sent on the day following his meeting with the FARA Unit in October 2013 which summarized the discussion with Hunt per her request.
In it, Craig wrote, “In responding to U.S. news reports – some of which were directly attributable to Ukraine – the law firm did not consult with Ukraine.”
“This statement is critical and it’s why I changed my mind,” Hunt said.
McCullough then asked if at any time during the FARA inquiry Craig indicated he had informed Sanger that Ukraine wanted the reporter to have an exclusive story on the Skadden report, that he delivered a hard copy of the report to the journalist’s home in Washington and agreed to an interview with David Herszenhorn, a second New York Times reporter, for the article published Dec. 12, 2012.
To all the questions, Hunt answered “No.” McCullough then asked, “Is that something that would have been important to your decision?” and Hunt answered, “Yes.”
In the defense’s final question, Taylor asked, “Would it matter to you, Ms. Hunt, why he spoke to David Sanger and David Herszenhorn?”
Hunt said yes, noting the FARA Unit took no issue with Craig contacting the press with concerns about misinformation but would take a different view if the move was under the “order, request, direction or control of a foreign government.”
She concluded: “One would require registration, the other would not.”