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Special Counsel Mueller argues to criminalize anonymous political posts on social media
A Russian company, which has been charged by the office of Special Counsel Robert Mueller with interference in the 2016 election, issued a terse ...
Thursday, October 25, 2018
by Martin Barillas

A Russian company, which has been charged by the office of Special Counsel Robert Mueller with interference in the 2016 election, issued a terse rejoinder to a prosecutor in a federal court on Thursday. The attorney for Concord Management and Consulting LLC said that Mueller “mind-bendingly” failed to prove the Russian firm had willfully intended to defraud the United States government.

Concord Management attorney Eric Dubelier, in a nine-page document filed in a Washington D.C. U.S. District court, compared Mueller’s allegations to the famed Warner Bros. cartoon figure, Tweety Bird. Dubelier argued in the filing: “The special counsel’s retort has been that he was not required to charge willfulness because he did not charge violations of [the Federal Election Campaign Act or the Foreign Agent Registration Act.] Now in mind-bending, intergalactic, whiplash fashion, he says for the first time, I did, I did, I charged violations of FECA and FARA.”

Dubelier has called on the court to dismiss the case. So far, Mueller’s team has gotten a half-dozen guilty pleas after more than a year of investigation, including one by President Trump’s former campaign manager Paul Manafort. Currently, there are no other defendants fighting charges filed by Mueller’s office. The company is charged with funding an operation to meddle in the 2016 election, and is owned by Yevgeniy Prigozhin -- a Russian businessman who is tied to the Russian government. 

Dubelier called on the court in a footnote to consider the “I did, I did” line to sound “a lot like I did, I did I taw a puddy tat. (Tweetie, 1948.)” [sic]. He wrote: “Reminiscent of the old adage, ‘give a man enough rope and he will hang himself,’ the Special Counsel just did so.” The filing comes after the prosecutors’ October 23 response to U.S. District Judge Dabney Friedrich’s request for clarification by Mueller and his team whether the conspiracy charges against Concord Management would depend on proving that the firm interfered in the 2016 election.

For their part, prosecutors say that the allegations are not only clear, but the “manifold acts of deception” allegedly made by Concord Management to defraud the U.S. government. The prosecutors say that is enough to charge conspiracy. 

On Thursday, the attorney for Concord argued that Mueller’s allegations are overly “generic.” Moreover, the attorney contended the Mueller has continued to fail at demonstrating what legal duties Concord Management has to report expenditures related to an election or whether it needed to register as a foreign agent.

Dubelier called Mueller a “revisionist,” and also referred to “the fact that the court found it necessary, after hundreds of pages of briefing and extensive oral argument, to ask the Special Counsel what the indictment actually charged alone, supports dismissal.” The attorney wrote that the “acts of deception,” alleged by Mueller -- such as the use of establishing fake personas on social media or email accounts to interfere in the election -- “[are not], and cannot, be right.” Dubelier argued that allegations of obstruction or deception depends on the duties as set out by the Federal Election Campaign Act of 1971 (FECA) and the Foreign Agents Registration Act of 1938 (FARA) and how they are implemented by the Department of Justice. The allegation also hinges on what the federal government says are the function of those laws. 

“And if an ordinary citizen does not know any of that, then the indictment must allege the conspirator knows or there is no blameworthy mental state and the indictment is defective,” the filing claims. Dubelier wrote that Mueller’s case would “criminalize innocent conduct [like] pretending to be someone else on the internet.” Dubelier wrote. The filing states that if Mueller is able to advance with the allegations, the federal government could possibly then “remove the willfulness requirement from every statute where it exists simply by indicting violations under the defraud clause of § 371 [18 U.S. Code § 371 - Conspiracy to commit offense or to defraud United States ].” This was not the intent of Congress, stated the filing.

On October 15, attorney Dubelier said in a separate hearing that Mueller’s office was prosecuting a “made-up crime” and that the “real Department of Justice” would never have charged. Urging the court to dismiss the indictment, Dubelier said that the allegations do not fit the relevant statutes, while he said it could make a criminal of anyone who posts a political message on the internet under a pseudonym. “The special counsel’s office said we interfered with an election,” said Dubelier. “There is no such crime.” He went on to say, “They don’t have the evidence to charge” a violation of the law, arguing that Mueller’s office sought to “circumvent those requirements and make up a new crime.”


Taking aim at Mueller in a hearing on October 15, Dubelier told the court:

"This is the first case ever where anyone has ever been charged with defrauding the Department of Justice for a FARA violation...The real Department of Justice has never charged that, nor have they ever charged this case, interfering with an election, never, nor have they ever charged a foreign national with making an improper campaign expenditure, neer. The real Department of Justice has never done that. They've charged campaign contribution cases, as your Honor knows, but they have never charged what they've charged here."

Dubelier argued:

"But your Honor, the most difficult part about this for me is, it's blatantly obvious why they did what they did. They don't have the evidence to charge a substantive violation of FARA or a substantive passport violation or a substantive FECA violation, because there is no evidence anywhere that any of these foreign people knew anything about any of these laws or regulations, none.

“And so the penultimate question becomes, can they look at that case and circumvent those requirements and make up a new crime that has never been charged in the history of the United States, because that's what they've done. And to let them go forward on this, that's what you would have to say, I'm going to let them do something that the real Department of Justice has never done, it's contrary to what I did, meaning you, when you were a prosecutor and you were faced with the exact same case. You charged willfully. It is contrary to all of those."

Attorney Jonathan Kravis, who is a member of Mueller’s team, argued nevertheless that the special prosecutor’s case was appropriate, alleging that Concord Management had engaged in deceptive conduct with the purpose of interfering with lawful government functions. He said that the government does is not required to prove an underlying violation in order to prosecute a conspiracy. “The acts of deception go way beyond” an alleged failure to file a report, Kravis said, arguing that there was a “coordinated, well-funded, orchestrated campaign.”

In a relevant exchange between the judge and Kravis, the judge asked if Concord Management needed to report to the Federal Elections Commission. Kravis answered that the government is not reqiured to show that any defendant or any co-conspirator had actually violated the Election Act. The judge asked Kravis for clarification, saying "don't you need to show that they had a legal duty to report?"

Kravis answered: "No, your Honor, because the deceptive activity that's alleged in the indictment does not merely include a failure to report. 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 e-mail accounts, the use of false American personas, the use of false organiztions. All of that is deceptive activity."

The judge expressed consternation at Kravis' assertion, saying: "It's hard to see how not revealing identities at political rallies and not revealing identities on social media, how tht is evidence of intent to interfere with a U.S. government function as opposed to confuse voters. 


Spero News writer Martin Barillas is a former US diplomat, who also worked as a democracy advocate and election observer in Latin America. His first novel 'Shaken Earth', is available at Amazon.

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