Trump Appointee Dabney Friedrich Continues to Trounce the Trolls’ Hopes of Discrediting Mueller

Dabney Friedrich, the Trump appointee presiding over the Concord Management challenge to its indictment, just released her opinion rejecting their attempt to argue they can’t be indicted for conspiring to illegally tamper in our elections. The indictment effectively argued that Yevgeniy Prigozhin’s trolls deceptive tactics — including not just failing to register as foreigners trying to influence US politics, but also social media users hiding they were foreign — prevented the US government from ensuring foreigners don’t participate in our elections.

The key passage in the opinion is this one, which upholds the government’s contention that it doesn’t have to prove that Concord broke the underlying laws protecting elections. It only has to prove that Concord conspired to undermine lawful government functions.

Concord is correct that the indictment must identify the lawful government functions at issue with some specificity. And it does. See Indictment ¶¶ 9, 25–27. A defraud-clause conspiracy need not, however, allege an agreement to violate some statutory or regulatory provision independent of § 371.

With this passage, a Trump judge affirms the underlying theory behind all of Mueller’s interlocking conspiracies.

But I think what Friedrich did with Concord’s claim that, because trolling on social media involves First Amendment concerns, the bar for willingness is raised higher is as important. She dismissed this claim by treating Concord’s trolling as fraud, not just lying.

Concord’s remaining argument—that the indictment implicates protected speech—fares no better. There is no doubt that speech is of “primary importance . . . to the integrity of the election process,” Citizens United, 558 U.S. 310, 334 (2010), or that political speech “occupies the highest rung of the hierarchy of First Amendment values,” Janus v. Am. Fed’n of State, Cnty. and Mun. Emps., Counsel 31, 138 S. Ct. 2448, 2476 (2018) (internal quotation marks omitted). However, the indictment does not focus on the defendants’ speech, or its content, but on a course of deceptive conduct. See, e.g., Indictment ¶¶ 4–7, 30, 32, 36, 39, 41, 43, 48, 51. Although the Supreme Court made clear in United States v. Alvarez that “false statements” are not automatically unprotected, 567 U.S. 709, 717–22 (2012) (plurality opinion), it distinguished such statements from “fraud,” which involves “legally cognizable harm,” id. at 719, and remains one of the few historical categories of unprotected speech, id. at 717. Indeed, the Court approved of statutes prohibiting false statements to government officials, perjury, impersonating an officer, and pretending to speak on behalf of the government because such statutes “implicate fraud or speech integral to criminal conduct.” Id. at 721. Consistent with these principles, the Fifth Circuit in United States v. Daly rejected a claim that a conspiracy to defraud the United States by impeding and impairing the lawful functions of the IRS implicated the First Amendment. 756 F.2d 1076, 1082 (5th Cir. 1985).

The same is true here. The conspiracy to defraud does not implicate the First Amendment merely because it involved deceptive statements like claiming to represent U.S. entities, claiming to be U.S. persons, and providing false statements on visa applications. 9

9 Even if the indictment did implicate protected speech, the United States’ “compelling interest . . . in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process,” Bluman, 800 F. Supp. 2d at 288, might well sustain the charge against Concord.

Friedrich puts the government on notice that it will have to prove Concord knew it was interfering with government functions (which will be much easier with evidence laid out in the Elena Alekseevna Khusyaynova complaint, at least going forward).

Although the § 371 conspiracy alleged does not require willfulness, the parties’ disagreement may be narrower than it first appears. The government concedes that § 371 requires the specific intent to carry out the unlawful object of the agreement—in this case, the obstruction of lawful government functions. Gov’t’s Opp’n at 16 (“Because Concord is charged with conspiring to defraud the United States, . . . the requisite mental state is the intent of impairing, obstructing, or defeating the lawful function of any department of government through deception.” (internal quotation marks omitted)). Further, the government agrees that to form the intent to impair or obstruct a government function, one must first be aware of that function. See Hr’g Tr. at 40 (“[Y]ou can’t act with an intent to impair a lawful government function if you don’t know about the lawful government function.”). Thus, Concord is correct—and the government does not dispute—that the government “must, at a minimum, show that Concord knew what ‘lawful governmental functions’ it was allegedly impeding or obstructing.” Def.’s Mot. to Dismiss at 22; Def.’s Reply at 5. Here, as alleged in the indictment, the government must show that Concord knew that it was impairing the “lawful functions” of FEC, DOJ, or DOS “in administering federal requirements for disclosure of foreign involvement in certain domestic activities.” Indictment ¶ 9. But Concord goes too far in asserting that the Special Counsel must also show that Concord knew with specificity “how the relevant laws described those functions.” Def.’s Mot. to Dismiss at 22; Def.’s Reply at 5. A general knowledge that U.S. agencies are tasked with collecting the kinds of information the defendants agreed to withhold and conceal would suffice. Concord will have further opportunities—with jury instructions and in trial and post-trial motions, if any—to ensure that the government proves enough knowledge to support a specific intent to thwart at least one of the three government functions alleged in the indictment.

But it’s not clear Concord will sustain this legal challenge that long.

While regulation of elections for Americans is less onerous than it is for foreigners, the notion that trolling is fraud may be useful for other kinds of people tampering in elections.

32 replies
  1. Alan says:

    Trolling is fraud?  How do you conclude that?  The opinion cited “deceptive statements like claiming to represent U.S. entities, claiming to be U.S. persons, and providing false statements on visa applications”, not trolling.

    • cat herder says:

      How do you conclude from anything in this post that anybody is affirming that “trolling is fraud”?

      • fvtown says:

        I think the user is confused because EW said Friedrich treated Concord’s “trolling as fraud”, with no implications to 1A (not that trolling IS fraud).

      • cat herder says:

        Just to clarify. It seems you are using “trolling is fraud” as shorthand for “ALL trolling is fraud”, which isn’t supported by anything here. It’s not as catchy, but an accurate description (if that’s something you are interested in) would be: “engaging in activities such as deceptive statements claiming to represent U.S. entities, claiming to be U.S. persons, and providing false statements on visa applications, in order to engage in trolling intended to influence the U.S. political process, is fraud.”

    • bmaz says:

      Um, please read the opinion, and pay particular attention to the language on page 31 which, inter alia, says:

      As Concord acknowledges, this Court must follow Supreme Court precedent, which has long applied § 371 to conspiracies to defraud the United States by impairing its lawful government functions. See Dennis, 384 U.S. at 861; Hammerschmidt, 265 U.S. at 188; see also Tanner, 483 U.S. at 128 (“[W]e have stated repeatedly that the fraud covered by [§ 371] reaches any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.” (internal quotation marks omitted)). Because the theory of fraud in this case falls squarely within the scope of § 371 as interpreted by the Supreme Court, this Court will not dismiss the indictment.

      There is your fraud for you!

  2. Taxidermist says:

    According to The Daily Beast:
    Last month, the sources claim, the White House asked organizations including the Justice Department, the FBI, and the Department of Homeland Security to find a legal way to expel Turkish cleric Fethullah Gulen.

    Given all the media of Michael Flynn’s failed kidnapping attempt this seems extremely risky, or crazy. Even for these idiots. Am I missing something?

    • Trip says:

      They are trying to give a pound of flesh to Turkey, so they’ll stop talking about the bloody murder of Khashoggi, and then Trump can continue the bloodfest with more arms deals to the Prince.

  3. Semanticleo says:

    Why isn’t Tom Maguire haunting the thread with his sophistic justification for all things Trump?

    He still guards Scooter Libby as though his personal credibility languishes in disrepair.

    • Avattoir says:

      I have a kinda almost soft spot for TM. He served many times as a useful foil for debate & illustration purposes.

      IAE, he wasn’t nearly the Resident most Evil even at his own website. There was a woman named “Sylvia” who flitted between his site and a far more decidedly toxic fascist one. In his visits to emptywheel, Tom was, uhm, good enough to try to repackage some of the less cracked of her potted notions sufficient to avoid getting banned at fearless leader’s prior digs at The Next Hurrah and FDL. That didn’t just allow our the sleuthing hostess to point at defective foundations and hazardous hot-wiring, but more than once provided an opportunity for her to expand on how she hacked her path thru some of the weedier parts of Dick’s and Mini-Dick’s Folly.

      AND (bonus for me at least) Tom’s treks to emptywheel constituted something like an open invitation to visit HIS site and tilt at some of his slithier toves, in hopes of provoking his Jabberwock.

    • emptywheel says:

      I’m with Avattoir. Tom is sufficiently rigorous and good faith that I welcome his contributions. There are far too many bubbles on the left, and they are only slightly less unhealthy on the left than they are on the right.

  4. Trip says:

    Carrie Johnson‏Verified account @johnson_carrie

    Lawyers for accused Russian agent Maria Butina ask judge to dismiss that charge, arguing the US has “failed to provide her with notice of what conduct is criminal and what conduct is not.” 1/x
    Butina team says govt doesn’t allege she was an agent of Russia in the traditional sens but rather she ran afoul of law bc “she shared her memorable American happenings and naive, youthful optimism…with others.” 2/x
    “If fantasizing about a future career in diplomacy & jabbering about personal events and peacebuilding aspirations w others like a friend & mentor who happens to be an officer from some foreign govt agency…makes one a foreign agent,” then lots of people are breaking the law.

    Basically, Butina’s lawyers argue the statute, acting within the US as an agent of a foreign govt, is unconstitutional bc it is too broad and captures all sorts of First Amendment protected activity.

    Wow. Laying it on super thick: The Grand Illusion (I looked up Styx songs)

    • Trip says:

      Maria Butina:

      Joint Motion to Continue Status Conference
      The United States of America, by and through its attorney, the United States Attorney for the District of Columbia, and defendant Mariia Butina, also known as Maria Butina, through her counsel, Robert Driscoll and Alfred Carry, Esqs., respectfully request that the Court continue the status conference in this matter (including the motions-briefing schedule), presently set for December 6, 2018, for approximately two weeks. In support of this motion, the parties state that they continue to engage, as they did prior to yesterday’s defense filing, in negotiations regarding
      a potential resolution of this matter and that those negotiations would be potentially hindered by simultaneously engaging in motions practice.

      • bmaz says:

        Again, relax. What are they in discussions over? Nobody knows. Where could it lead? Nobody knows. But lawyers do this all the time, even by stipulation.

        Could it be substantial plea or dismissal cooperation negotiations? Sure. It could be also hundred other things too, including that none of the attorneys want the court to start setting deadlines on them with a major holiday in the way.

        The fact that it is by stipulation though is significant. They are talking and both believe it is going somewhere, to some end. That is all you can really tell.

  5. Avattoir says:

    If Dabney Coleman could be “Buffalo Bill”, can Dabney Friedrich be ‘Pensacola Pat’?

    (If you’re a white baby J-fearing Whitaker Christian, you’re supposed to forgive me. If not, you know I don’t need it.)

      • dpa says:

        Marcy advised last week it was not time to panic, give it another week.  I’m getting nervous.

        If indictments do come down, I’ve been wondering who will make the public announcement?   For previous one’s it’s been Rosenstein.   Whitaker?

        • earlofhuntingdon says:

          Standard instructions for every hitchhiker: Bring your towel, Don’t Panic:

          “It is said that despite its many glaring (and occasionally fatal) inaccuracies, the Hitchhiker’s Guide to the Galaxy itself has outsold the Encyclopedia Galactica because it is slightly cheaper, and because it has the words ‘DON’T PANIC’ in large, friendly letters on the cover.

          Arthur C. Clarke said Douglas Adams’ use of “don’t panic” was perhaps the best advice that could be given to humanity.” [Links removed.]

          Marcy learns only from the best.

        • bmaz says:

          If they do, I would think it would still be Rosenstein. Even with a non-recused AG, this stuff usually flows through the DAG. Although certainly not unheard of for an AG to appear at such a presser.

        • Tracy Lynn says:

          I say “crack me up” or “cracks me up” all the time! I use this phrase all the time and I have been since I was a teen in the 1970s. I had NO idea it is Brit speak.

    • skua says:

      So Mueller is no longer stringing the investigation out just to stay on the pay-roll?

      And Mueller is no longer just chasing up inconsequential “process crimes” and crimes “from long ago”?

      And Trump actually is trying to obstruct justice?

      And Mueller and Trump are no longer working together to round up all the paedophile pizzagate deep state elite?

      And conspiracy to defraud the USA government is being prosecuted?

      And it is no longer a witch-hunt lynching by 14 angry Democrats run amok?

      And the investigation didn’t get triggered by the Steele dossier?

      Thanks for the update.


  6. Eureka says:

    This would also make a beautiful coda for the Ratfucker Era:

    “While regulation of elections for Americans is less onerous than it is for foreigners, the notion that trolling is fraud may be useful for other kinds of people tampering in elections.”

    I can hope.

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