Yevgeniy Prigozhin’s Paid Trolls Prove His Legal Challenge to His Indictment To Be False

I have long argued that the most visible error that Robert Mueller’s team has made thus far in their investigation of Russian involvement in the 2016 election was in charging Concord Management as part of the Internet Research Agency indictment. Doing so effectively charged Vladimir Putin’s crony, Yevgeniy Prigozhin, in both his natural and corporate form, giving him a way to defend against the charges without having to show up in person in the US to do so. On April 11, almost two months after first being indicted (and after Prigozhin assumed an official role in management of Concord so he could claim he needed to be personally involved in any defense of the company), some American lawyers from Reed Smith showed up to start defending Concord against the charges.

By paying money to have lawyers defend his corporate self against trolling accusations, Prigozhin got the opportunity to do several things:

  • Obtain discovery about what the government knew of his companies’ efforts and communications with (among others) Vladimir Putin
  • Challenge Robert Mueller’s authority as Special Counsel
  • Dispute Mueller’s theory that online trolls operated by foreigners should be subject to regulation under campaign finance law and DOJ’s Foreign Agents Registration Act (as well as laws prohibiting visa fraud)

Thus far, Prigozhin’s efforts have done no real damage. Mueller found a way to limit what Prigozhin could look at by requiring his lawyers keep most discovery here in the US. And he beat back Prigozhin’s first challenge to his authority in Judge Dabney Friedrich’s District Court; Concord has submitted an amicus brief in Roger Stone aide Andrew Miller’s challenge to Mueller’s authority under the same theory, but it won’t get a chance to appeal Friedrich’s decision itself unless the case actually goes to trial.

Prigozhin’s third challenge, to Mueller’s theory of the case, poses more of a problem. While Special Counsel has lots of case law to argue that when charging ConFraudUS you don’t need to prove the underlying crimes (here, that Prigozhin’s trolls committed campaign finance, FARA, and visa fraud violations), Prigozhin’s lawyers nevertheless have argued — starting formally in a brief filed on July 15 — that those poor Russian trolls sowing division in the US had no way of knowing they were supposed to register with the FEC and DOJ before doing so, and so could not be accused of fraudulently hiding their Russian nationality, location, and funding. Effectively, the brief argued over and over and over — some form of the word “willful” shows up 99 times in the filing, “mens rea” shows up 33 times, “knowingly” shows up 58 times — that these poor Russian trolls just can’t be shown to have willfully violated America’s laws against unregistered foreign influence peddling because they had no way to know about those laws.

No case has specifically addressed whether a willfulness mens rea is required in a § 371 defraud conspiracy case like this one. But that is only because of the novelty of this Indictment. In circumstances where, as here, complex regulations are implicated against a foreign national with no presence in the United States, and the threat of punishing innocent conduct is extant, courts frequently have expressed the need for a heightened mens rea requirement. And even in those cases favored by the Special Counsel in his prior briefing, which he erroneously believes serve to relax the standard for criminal intent—requiring only some vague proof that Concord knew “on some level” the existence of some unspecified “regulatory apparatus” governing foreign nationals who participate in some fashion in United States elections (Hr’g Tr. 9:17–22)— the concerns over the proof of mens rea are evident, just as they should be in any conspiracy case. It is simply impossible for any person, whether a foreign national or a U.S. citizen, to have any knowledge of, let alone understand, the Special Counsel’s imaginary “on some level” mens rea standard. Further, none of the cases relied upon by the Special Counsel provide any reason not to impose a willfulness requirement in this case.

As Mueller’s August 15 response emphasized, the trolls focused their challenge to this indictment on Brett Kavanaugh well before he was confirmed.

Concord repeatedly invokes (at 1, 7, 17, 19, 20, 23-24, 27, 31, 32) Judge Kavanaugh’s majority opinion in Bluman v. Federal Election Comm’n, 800 F. Supp. 2d 281 (D.D.C. 2011), sum aff’d, 565 U.S. 1104 (2012), and his concurring opinion in United States v. Moore, 612 F.3d 698 (D.C. Cir. 2010), but neither addresses Section 371. Bluman—a civil case—assessed the constitutionality of the ban on non-citizens’ political expenditures and cautioned that, when the government “seek[s] criminal penalties for violations of th[at] provision” (which requires a defendant “act ‘willfully’”), the government must prove the defendant’s “knowledge of the law.” 800 F. Supp. 2d at 292 (citation omitted; emphasis added). Similarly, Moore concerned a violation of Section 1001, which “proscribes only those false statements that are ‘knowingly and willfully’ made.’” 612 F.3d at 702 (Kavanaugh, J., concurring) (emphasis added). Accordingly, Judge Kavanaugh opined, the government must prove that “the defendant knew his conduct was a crime.” Id. at 704. Because Count One need not allege a violation of a substantive offense other than Section 371 and that statute does not contain an express “willful” element, Bluman and Moore contribute nothing to Concord’s mens rea argument.

Kavanaugh, Kavanaugh, Kavanaugh, Kavanaugh, Kavanaugh, Kavanaugh, Kavanaugh, Kavanaugh, Kavanaugh, the troll lawyers have been chanting since 6 days after he was nominated. And while Mueller’s team argued that those past Kavanaugh opinions did not address ConFraudUS, the newest Supreme Court Justice clearly believes any legal limits on foreign influence peddling must be clearly conveyed to those foreigners doing their influence peddling. Kavanaugh’s elevation, then, presented the real possibility that by charging Concord, Mueller might make it easier for foreigners to tamper in our election than for Americans.

Moreover, it looked like Trump appointee Dabney Friedrich (who gave the challenge to Mueller’s authority far more consideration than she should have) was sympathetic to the troll challenge to the indictment.  Not only did Friedrich seem sympathetic to the Concord challenge in a hearing on Monday, on Thursday she ordered Mueller’s team to be more specific about whether the trolls had to — and knew they had to — register with the FEC and DOJ.

Specifically, should the Court assume for purposes of this motion that neither Concord nor its co-conspirators knowingly or unknowingly violated any provision, civil or criminal, of FECA or FARA by failing to report expenditures or by failing to register as a foreign agent?

That is the genius (and I suspect, the entire point) of the complaint against Prigozhin’s accountant, Elena Alekseevna Khusyaynova, who oversees the funding of all these trolls, which was unsealed yesterday.

It provides proof that Prigozhin and Concord continued to engage in ConFraudUS long after receiving notice, in the form of that February 16 indictment, that the US considered engaging in such trolling without registration a crime.

Among the overt acts of the conspiracy, for example, the complaint describes Khusyaynova:

  • Requesting payment from Concord for trolling expenses on February 21, February 28, March 6, April 6, May 8, May 10, June 1, June 4, June 9, and July 10, 2018
  • Submitting a 107 million ruble budget in March to cover April’s expenditures, a 111 million ruble budget in April to cover May’s expenditures, and a 114 million budget for June in June (the complaint calculates these budgets to amount to over $5.25 million, though not all of that got spent in the US)
  • Following up with a Concord employee on April 11 and 12 to make sure one of Concord’s laundering vehicles, Almira LLC, paid its part of the budget for March expenditures
  • Spending $60,000 in Facebook ads and $6,000 in Instagram ads between January and June of this year
  • Spending $18,000 for “bloggers” and “developing accounts” on Twitter between January and June

In other words, the complaint shows that even after Concord got indicted for spending all this money to influence American politics, even after it hired lawyers to claim it didn’t know spending all that money was illegal, it continued to spend the money without registering with FEC or DOJ. The very same day Prigozhin’s lawyers filed their attorney appearances in court in DC, his accountant in St. Petersburg was laundering more money to pay for trolling.

But the true genius of the complaint comes in the evidence of trolling it cites. As noted, the complaint cites two trolls tweeting about the February 16 indictment of their own trolling.

@JemiSHaaaZzz (this was an RT): Dear @realDonaldTrump: The DOJ indicted 13 Russian nationals at the Internet Research Agency for violating federal criminal law to help your campaign and hurt other campaigns. Still think this Russia thing is a hoax and a witch hunt? Because a lot of witches just got indicted.


@JohnCopper16: Russians indicted today: 13 Illegal immigrants crossing Mexican border indicted today: 0 Anyway, I hope that all those Internet Research Agency f*ckers will be sent to gitmo.

@JohnCopper16: We didn’t vote for Trump because of a couple of hashtags shilled by the Russians. We voted for Trump because he convinced us to vote for Trump. And we are ready to vote for Trump again in 2020!

Prigozhin has paid 7 months of legal fees arguing that he had no idea that this was a crime, even while paying $5 million, part of which paid his own trolls to describe being indicted for “violating federal criminal law” and asking to be sent to Gitmo for that crime.

And his trolls continued to claim they had knowledge of American campaign law, as when on March 14, almost a month after the indictment, @TheTrainGuy13 reposted a pro-Trump tweet noting that voter fraud is a felony.

The complaint even cites @KaniJJackson tweeting about a Net Neutrality vote on May 17, well after Reed Smith had told the court they were representing Concord to make claims that Prigozhin had no idea unregistered political trolling was illegal.

Ted Cruz voted to repeal #NetNeutrality. Let’s save it and repeal him instead.

Here’s the list of GOP senators who broke party lines and voted to save #NetNeutrality: Susan Collins John N Kennedy Lisa Murkowski Thank you!

Since July, Prigozhin’s Reed Smith lawyers have spent 326 pages briefing their claim that their poor foreign client and his trolls had no way of knowing that the United States expected him and his trolls to register before tampering in US politics. Even while they were doing that, in a complaint filed in sealed form three weeks ago, on September 28, DOJ had compiled proof that even after receiving official notice of the fact that the US considered that a crime on February 16, even after Prigozhin showed on April 11 his knowledge that the US considered that a crime by hiring attorneys to argue he couldn’t have known, he and his accountant and his trolls continued trolling.

As persuasive as Reed Smith lawyers have been in arguing Prigozhin couldn’t have known this was illegal, his trolls have laid out far better proof that he knew he was breaking the law.

As I disclosed July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

39 replies
  1. Pete says:

    I had always heard that “ignorance of the law is no excuse”. Now I realize that, especially because IANAL, that is almost certainly NOT a legal “term” and almost certainly bunk. I assume others have heard that sing-song before and just wanted to throw it out here for a good stomping.


    Though I suppose it gets essentially “applied” to lesser folk for all types of crimes.

  2. bmaz says:

    Dabney Friedrich is the newer and prettier version of TS Ellis. Lotta noise, but there is, as you say, no real damage here.

  3. BobCon says:

    I assume prosecutors aren’t going to bring many more charges against Russian trolls than they need to establish the larger framework of the conspiracy.

    But they must have a ton of more evidence that would be useful to the public policy case of Russian trolling and GOP cooperation. If the House goes to the Democrats (fingers crossed) how accessible will that evidence be? What’s the timeframe for it to come out?

    I assume there is a legitimate argument for DOJ higherups to block release while active investigations are going on, but when does a fuller accounting of Mueller’s knowledge of the troll campaign go public?

    And for that matter, does Mueller’s team have the ability to aid other investigators in public investigations – for instance, if they can’t hand over information directly, can they tell investigators people at Facebook to question, date ranges of information to look for, corporate shells to investigate, and so on?

  4. Yogarhythms says:

    iANAL, “as persuasive as Reed Smith lawyers have been.” Reed Smith aligation that clients behavior since February 2018 indictment is not criminal behavior because client’s presumed innocent and since no conviction on first indictment further indictments are frivolous also. Bobby thinks there are criminal violations of statute Reed Smith not so much. Bobby’s arguably right but I’m not convinced yet. What am I not seeing?

  5. TravisV says:

    Possibly one of the best things I’ve read this year:

    “I’ve spoken to this about 1,000 times, but unbiased commentary is hard to find considering we’re all wired for bias. Chuck Ross is unquestionably biased against the investigation. Marcy Wheeler is unquestionably a progressive and not a fan of Trump. Sean Hannity is undoubtedly a propagandist.

    That’s why we focus on content. Pure objectivity in analysis is a myth. But nonetheless she develops theories, gives her take on things, and that can be responded to outside of a consideration of who authored it (if you find her worth reading — we can dismiss others based on their track record, like an Alex Jones or Louise Mensch).”

    • emptywheel says:

      I’m trying to figure out whether he’s primarily motivated by money, by the opportunity to be a world class asshole and get paid (which I’ve been told is consistent with his personality), or whether he’s just a true believer — in law or Donald Trump I don’t know.

      • bmaz says:

        That’s pretty funny for a man that learned the art of misconduct and evidence hiding under Harry Connick Sr. in New Orleans.

        • pseudonymous in nc says:

          I think he’s a true believer that the law should protect the people who pay him, and for the past two decades that’s been people accused of white-collar crimes, which is somewhat more lucrative than being one of Connick’s heavies or an AUSA.

          And yeah, I saw that dissent by RBG.

  6. Keith McClary says:

    As I read it, The Order is not about the evidence as such, it is about the government’s claim that they don’t need provide any evidence.

  7. Procopius says:

    I’m so glad to have found this post. I’ve been looking for up-to-date information about this hilarious misstep by the Mueller team, and emptywheel is the most credible source I know of.

    • orionATL says:

      i wouldn’t laugh too hard if i were you until i was sure i had read and understood both major arguments in the ew post.

      as an aside, can you rule out a osc trap having been set?

  8. pseudonymous in nc says:

    Two quick additional thoughts, one not so novel, one slightly more so:

    1. While Dubelier and Seikaly are clearly smart biglaw lawyers, their approach on behalf of Concord feels indebted to the same DC background forces as the ones that delivered Angry, Drunk and Compromised to the Supreme Court. It was political from the outset.

    2. If the feds have this deep a reach into the accounts receivable of the troll farm over the past eight months, what do they know about how this case has been litigated by the other side? Only one (corporate) entity has a claim to attorney-client privilege here. It would be terribly embarrassing if Dubelier’s retainer was included in one of Ms Khusyaynova’s spreadsheets, wouldn’t it?

  9. earlofhuntingdon says:

    Trump’s brain in a nutshell, with room left over for both houses of Congress:

    So Pat Robertson on Judas: “Well, 30 pieces of silver; wouldn’t want to jeopardize that for one itinerant preacher.”

    Trump’s excuse is as brazen as Saudi Arabia’s, possibly because they come from the brains of the same nutcases.

    Sadly, the quote comes close to the attitude of the powers that be – indigenous and occupying – that led one man and many more to Calvary.  “Let’s not rock the boat over a little mayhem and murder,” is an old excuse, one that Trump’s thinkers are giving surprising new, unapologetic legs.

  10. earlofhuntingdon says:

    Bmaz rightly excoriates Jonathan Turley’s – “craven, ignorant, asinine, bullshit” – for his tweet about a bar complaint supposedly being filed against Dr. Christine Blasey Ford’s lawyers, purportedly for keeping relevant information from their client about the willingness of SJC to send its staffers to come to her in California to take her testimony.

    Shaky on all fronts.  It is especially shaky in that it gives credence to the supposed offer from the SJC – whether and on what terms they would do it, and how they would handle testimony she would have given in private to the SJC’s Republican staffers – and the manifestly incomplete facts such a complaint would be based on.

    What should not be surprising but is are the archconservative “followers” of Turley, praising the move.  They are orgasmic about the idea of “locking her up.”  Never mind who.  It’s a useful phrase for a basket of feelings that can be directed at the target of the day, a virtual feast to consume during the right’s daily two minutes of hate.  Dangerous and pathetic, whether Turley’s followers are bots or the elect.

    • orionATL says:

      it seems to me to be not only shaky in general, but, with respect to second-guessing an attorney’s protection of his client’s interest without knowing what that attorney knew or feared, frivolous and politically-motivated – possibly intended as a fishing expedition to get attny-client info to further the rightwing attack on ford.

      these guys are relentless. the way to attack them is not to reply in court and then wait for the law to reveal itself in the fullness of time, but to publicly and loudly attack whatever might be their obvious malign motives in addition to publicly identifying their confederates. this smells something like another judicial watch conspiracy to abuse the law to harm a political target – not that doing so is unamerican or anything :)

  11. cat herder says:

    LOL, at the two obvious up-is-down comments above from Team Prigozhin. Still doing what you’re accused of isn’t a real smart way to prove you didn’t do it.

    • orionATL says:

      this is very interesting, trip. it is good to have more background on this guy in order to get a better bead on him. con artist he certainly is. plus he seems a bit like carter page type, goofy and irresponsible. just the kind of guy people let do what he wants because they sense that troublesome goofiness. so he gets away with far more than he should and then skates.

      but all that notwithstanding, he knew about the emails and he has a lawyer with russian connections. those count for something in terms of investigating.

      in any event, at the very least, we now know “joseph misfud lives!” (at least as of may).

      • Trip says:

        Don’t you love how the defense of a lot of them is “They’re too stupid to be involved in a conspiracy”?

        • orionATL says:

          yeah, that is their secret strength, their camoflage – “he too goofy and disorganized to do anything” (except make off with the cash, scot free, and disappear until his next act.)

  12. Trip says:

    How is it that the Trump cult sees George Soros as the scary subversive bogeyman behind every event in history, while Sheldon Adelson, the Kochs and Mercers, et al get away with directing policy and screwing the populous right out in the open, with nary a mention?

    • orionATL says:

      george soros is a rightwing boogeyman, just as hillary clinton was a rightwing boogeywoman. both serve as something to hate, to externalize the inchoate inner anger.

      it is no accident that both despots, trump and orban of hungary, encourage demonization of soros. soros represents caring and concern for one’s society and fellow man. the rightwing represents resentfulness at what others may tske awsy frombthem or may be given, by society.

      • Trip says:

        I get the strategy of projection and all that. But how do the followers reconcile the money forces behind Trump and the GOP? Are they oblivious to it? Do they actually believe that those billionaires vs Soros really, really care about them and are doing anything to make their lives better, instead of only their own? It’s so incomprehensible to me.

        • orionATL says:

          therein lies the abominable genius of “fake news”. you tell fables and lies that emotionally arouse your loyal followers in ways useful to you. at the same time, you train them not to believe any outside criticism of those fables and lies. “fake news” is trump’s calculated innoculant against critical thinking.

          though i don’t know for sure, i suspect that many of the trump loyalists have the same mindset as cult followers (or extremely loyal sports fans).

          it would be interesting to compare the psych profiles of trump, orban, erfogan, duturte loyalists with those of cultists like jim jones fans or branch dravidians, or any really off-the-wall evangelical group or political group like the freedom party nuts or the god-and-guns nuts (got one in my extended family).

  13. Rapier says:

    How can the charges in the complaint against  Khusyaynova make their way into the Concord case?  Presenting them in filings to the  court does not make them proven facts that can be used in judgement right?

  14. Ed says:

    “No man has any natural authority over his fellow men.” ~ Jean-Jacques Rousseau

    Mueller is no exception.

  15. Trip says:

    Jared Kushner on Trump, Mideast policy (Full interview) | CITIZEN by CNN


    I made it to the 4 minute mark. Between the softball questions and Jared’s new vocal-fry rather than his typical screech, and sounding like a recent grad puffing a resume in a first interview, this task is for a better soul than I.

    If anyone can stomach it, let me know if Jared was asked about any financial entanglements with MbS and if he shared US intelligence with him.

    • Eureka says:

      My mouse was hovering, Trip, but it was over when you noted the vocal fry.  So I will wait with you for another source/read out on this.

  16. pseudonymous in nc says:

    So Khusyaynova gave a video interview through RIA FAN, which is another Prigozhin operation based in the same building as the troll factory and tried the bullshitty “USA Really” social media thing earlier in the year.

    • Eureka says:

      I’d never heard of “USA Really,” but when I just searched it (ddg), a snippet indicates an October 1, 2018 post from their eponymous dot com:

      USA Really’s Got Money for Ya, USA Really’s Got FB Trouble, and Trump’s Got Environment Trouble Oct 1, 2018 3:09 pm 172 Welcome back everyone from what I hope was a nice weekend for you all.

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