Mueller wades into new le­gal wa­ters ‘Heavy bur­den’ in Rus­sian firm’s case

The Washington Times Weekly - - National - BY ROWAN SCAR­BOR­OUGH

Spe­cial coun­sel Robert Mueller is churn­ing in un­charted le­gal wa­ters as he tries to nail a Rus­sian firm for bankrolling Moscow’s de­cep­tive so­cial me­dia in­va­sion into the 2016 elec­tion.

It is not only Concord Man­age­ment and Con­sult­ing LLC’s at­tor­ney say­ing this. De­fense at­tor­ney Eric Dube­lier said in court that Mr. Mueller cre­ated a “make­be­lieve crime” and that the “real Jus­tice Depart­ment” would never have brought such an in­dict­ment.

U.S. District Judge Dab­ney L. Friedrich also is ex­press­ing doubts about Mr. Mueller’s unique pros­e­cu­to­rial ad­ven­ture, though she is not say­ing she will dis­miss the charges, as Mr. Dube­lier has re­quested.

A re­view of the tran­script of an Oct. 15 hear­ing shows the judge’s reser­va­tions. She said of Mr. Mueller’s team, “They’ve got a heavy bur­den at trial to prove that knowl­edge.” She was re­fer­ring to aware­ness that Concord know­ingly de­frauded the Fed­eral Elec­tion Com­mis­sion, the Jus­tice Depart­ment and the State Depart­ment.

“I will give you, Mr. Dube­lier, this is an un­prece­dented case, for sure,” the judge said.

The at­tor­ney had ar­gued that there is no spe­cific fed­eral law against in­ter­fer­ing in a U.S. elec­tion. He said there are no pre­vi­ous pros­e­cu­tions on de­fraud­ing the FEC by us­ing fake so­cial me­dia per­sonas.

“And I agree, at trial, if this case sur­vives, they’re go­ing to have to show that Concord and oth­ers con­spired and had the spe­cific in­tent to de­fraud,” Judge Friedrich said.

When pros­e­cu­tor Jonathan I. Kravis ar­gued that Concord is aware that the U.S. en­forces elec­tion reg­u­la­tions, Judge Friedrich said, “It’s hard to see how not re­veal­ing iden­ti­ties at po­lit­i­cal ral­lies and not re­veal­ing iden­ti­ties on so­cial me­dia, how that is ev­i­dence of in­tent to in­ter­fere with a U.S. gov­ern­ment func­tion as op­posed to con­fuse vot­ers.”

Mr. Mueller brought the in­dict­ment in Fe­bru­ary against Concord, as well as a Rus­sian trolling farm com­pany and var­i­ous Rus­sian op­er­a­tives.

The in­dict­ment is one of two against Rus­sian en­ti­ties that to­gether stand as Mr. Mueller’s show­case prose­cu­tion in the Jus­tice Depart­ment’s 27-month in­ves­ti­ga­tion into sup­posed Trump-Rus­sia col­lu­sion. He has yet to charge a Trump as­so­ciate with elec­tion in­ter­fer­ence.

In July, he brought charges against 12 Rus­sian in­tel­li­gence of­fi­cers ac­cused of hack­ing the Hil­lary Clin­ton cam­paign and Demo­cratic Party com­put­ers. The Rus­sians stole thou­sands of emails and, to in­flu­ence the elec­tion against Mrs. Clin­ton, re­leased them through Wik­iLeaks and two fake out­lets.

The Concord in­dict­ment charges the firm’s chief, Yevgeny Prigozhin, a Vladimir Putin con­fi­dant, with pay­ing trolling farm op­er­a­tives to as­sume fake Amer­i­can iden­ti­ties and spread false­hoods on so­cial me­dia to sup­port Don­ald Trump for pres­i­dent.

The in­dict­ment’s ma­jor charge is con­spir­acy to de­fraud the United States by cir­cum­vent­ing fed­eral re­quire­ments to dis­close “for­eign in­volve­ment in cer­tain do­mes­tic ac­tiv­i­ties.”

Mr. Dube­lier’s ar­gu­ment: There is no ev­i­dence in the in­dict­ment of will­ful in­tent; that is, that Concord knew the func­tions of the FEC and vi­o­lated them. Prov­ing will­ful in­tent is re­quired un­der fed­eral con­spir­acy to de­fraud law, or Sec­tion 371.

“There is no law or reg­u­la­tion re­quir­ing that any such speech be ac­cu­rate or truth­ful or that any U.S. or for­eign per­son truth­fully or ac­cu­rately iden­tify her­self or him­self when en­gag­ing in such speech,” he said. “When it comes to po­lit­i­cal speech, one is free to pre­tend to be whomever he or she wants to be and to say what­ever he or she wants to say.”

He said that what Mr. Mueller wants the judge to do, in ef­fect, is reg­u­late the in­ter­net. This would mean that any Amer­i­can who con­ceals his or her iden­tity and puts out dis­puted in­for­ma­tion could face fed­eral crim­i­nal charges.

“If this goes to ‘You have to tell the truth on the in­ter­net in a po­lit­i­cal cam­paign,’ ev­ery politi­cian in the United States would be in prison,” Mr. Dube­lier said.

The FEC law bans for­eign con­tri­bu­tions to U.S. fed­eral cam­paigns, and it re­stricts the roles that for­eign­ers can play for can­di­dates. But it does not for­bid for­eign­ers from en­gag­ing in po­lit­i­cal de­bates.

The in­dict­ment al­leges that fraud oc­curred when Concord bought com­puter server space in the U.S. to hide the trolls’ home base in Rus­sia.

“So what?” Mr. Dube­lier said. “Peo­ple do that ev­ery day. That’s not il­le­gal. It’s not il­le­gal. There’s no law that says you can’t do that. … They want to be able to reg­u­late what peo­ple say on the in­ter­net.”

Con­ser­va­tives have crit­i­cized Mr. Mueller for hir­ing a num­ber of lawyers who have con­trib­uted to Demo­cratic can­di­dates and the party. Mr. Dube­lier blasted Mr. Mueller for veer­ing away from Jus­tice Depart­ment stan­dards to find a way to bring charges.

“That’s why in this case this spe­cial coun­sel made up a crime to fit the facts that they have,” he said. “And that’s the fun­da­men­tal dan­ger with the en­tire spe­cial coun­sel con­cept, that they op­er­ate out­side the pa­ram­e­ters of the Depart­ment of Jus­tice in a way that is ab­so­lutely in­con­sis­tent with the con­sis­tent be­hav­ior of the Depart­ment of Jus­tice in these cases for

“When it comes to po­lit­i­cal speech, one is free to pre­tend to be whomever he or she wants to be and to say what­ever he or she wants to say.” — Eric Dublier, Robert Mueller’s de­fense at­tor­ney

the past 30 years.”

Mr. Kravis is a white-col­lar crime spe­cial­ist who works for the U.S. at­tor­ney in the District of Columbia and was brought onto the Mueller team to han­dle the Concord case.

He de­fended the in­dict­ment by telling the judge that to prove a con­spir­acy to de­fraud the U.S., there doesn’t need to be an un­der­ly­ing law.

“What there does have to be is de­cep­tive con­duct that is en­gaged in with a pur­pose of in­ter­fer­ing with a law­ful gov­ern­ment func­tion,” he said.

“The de­cep­tive ac­tiv­ity that’s al­leged in the in­dict­ment does not merely in­clude a fail­ure to re­port,” the de­fense at­tor­ney said. “It also in­cludes the use of a com­puter in­fras­truc­ture to hide the source of the posts. It in­cludes the use of false so­cial me­dia ac­counts, false email ac­counts, the use of false Amer­i­can per­sonas, the use of false or­ga­ni­za­tions. All of that is de­cep­tive ac­tiv­ity.”

Judge Friedrich has not ruled on the mo­tion to dis­miss. She has sided with Mr. Mueller on other is­sues such as re­strict­ing the shar­ing of prose­cu­tion ev­i­dence with Rus­sian de­fen­dants to en­sure the in­for­ma­tion doesn’t end up with the Krem­lin.

AS­SO­CI­ATED PRESS

Spe­cial coun­sel Robert Mueller brought an in­dict­ment in Fe­bru­ary against Concord Man­age­ment and Con­sult­ing LLC of Rus­sia.

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