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DOJ Flips the Lawfare on Its Head in Russian Troll Case

In part because Judge Dabney Friedrich has only recently attempted to impose some control on the case, the prosecution against the Russian troll company Concord Management waddles slowly towards a scheduled trial date of April 6, 2020. As it has throughout this process, Concord continues to make trollish arguments to gum up the prosecution. Of particular note, it continues its efforts to use the prosecution to obtain as much information as it can, including information about intelligence the government has on Concord as well as on the victims.

Don’t get me wrong. That is their right, and one of the dangers of indicting corporate entities for this kind of crime.

But the government just gave Concord a bit of its own medicine. On Tuesday, it moved to obtain an early trial subpoena to serve on Concord. It seeks information on Concord’s communications with the Internet Research Agency, other shell companies, and a list of co-conspirators. Perhaps most concerning, for Concord’s sometime owner Yevgeniy Prigozhin, it asks for his calendar from January 2014 through February 2018, a calendar that — if it’s accurate — likely includes Vladimir Putin.

Calendar entries for Yevgeniy Prigozhin for the time period January 1, 2014 to February 1, 2018.

The motion uses precisely the legal fact that allowed Concord to respond to this indictment with no risk to any biological person against it, arguing that because it is a corporation it has no Fifth Amendment privilege.

Moreover, even though it is a defendant, Concord cannot avoid responding to a trial subpoena requesting the production of records under the Fifth Amendment because corporations have no privilege against self-incrimination. Braswell v. United States, 487 U.S. 99, 102 (1988).

Understand, the government almost certainly has versions of all the things it asks for on the list. But assuming Friedrich approves the subpoena, Concord will be required to submit its own version of these documents, which the government might be able to prove to be false (adding to Concord’s legal jeopardy and putting Concord’s American lawyers on the hook). It’s also likely the government is forcing Concord to do its own parallel construction.

It’s a subtle move, but one that may shift how this proceeds going forward.

Bill Barr’s DOJ Engaged in Conspiracy to Defraud the US on Trump’s July 25 Meeting

Yesterday, I wrote a long post showing that DOJ could not have followed their most basic investigative protocols when it got the whistleblower complaint in late August. Had they done so, one of the first steps would have been to see what material FBI already had on all the people named in the complaint. And because a profile of Lev Parnas and Igor Fruman was cited 4 times in the complaint (though their names did not appear in the complaint itself), the original assessment of the complaint should have discovered all the things DOJ already knew about their influence operation, which at that point would have included:

  • Parnas and Fruman were funded by a big transfer from an attorney specializing in helping foreigners launder money
  • They were using that money to provide straw donations to Republicans, most notably a $325,000 donation to a Trump SuperPAC
  • Those donations tied to meetings with the recipients and actions on Ukraine shortly thereafter
  • Parnas was involved in Rudy Giuliani’s disinformation campaign on Ukraine

This table shows what DOJ probably learned by when. Once one part of DOJ got new information on the grifters, that information would have become available to anyone doing a search on their name in FBI databases.

Thus, had DOJ done what it does in virtually all its other assessments of tips (particularly those that have a national security component), line investigators would have discovered that the July 25 call was obviously a part of the influence operation — including Parnas and Fruman, but also Rudy by that point — already under Full Investigation in SDNY.

DOJ explained how it managed to do so by claiming, falsely, that there was no firsthand knowledge reflected in the complaint itself, and so rather than using the complaint (which included that reference to Parnas and Fruman), they used the call transcript, which did not mention the Ukrainian grifters. Because it mentioned Rudy, queries on his name would still have made it clear that the call was part of an influence operation, though it’s possible and defensible that (as happened with the Trump Russian investigation, at least at first) DOJ did not do the same kind of back door searches they would do on everyone else because Rudy was a politically sensitive person.

But it turns out that’s not the only way DOJ affirmatively prevented people from connecting the dots in a national security issue.

Yesterday, MoJo reported on another way that DOJ prevented anyone from connecting the dots. Under a Memorandum of Understanding in place with the FEC, DOJ should have shared campaign finance related complaints with the FEC so they can assess whether the complaint merits civil penalties.

But under a 1978 memorandum of understanding between the department and the FEC—which, like Justice is authorized to penalize campaign finance violations—the complaint should have been passed onto the FEC even if the department declined to launch a criminal investigation, so the election watchdog can determine whether a civil penalty is called for.

Earlier this month, Klobuchar set out to uncover whether the Justice Department had honored this agreement, sending two letters to the FEC inquiring whether it had received any such referral. On October 18, the commission’s Democratic chair, Ellen Weintraub, confirmed to Klobuchar that the FEC had not been notified. “The refusal to inform the FEC and refer the matter regarding the President’s call to the FEC as required to do, as the Justice Department is required, undermines our campaign finance system and is unacceptable in a democracy,” Klobuchar said in Tuesday statement.

FEC, of course, already had the original and supplemental CLC complaint about Parnas and Fruman, so they might have connected the profile showing their work for Rudy, included in the whistleblower complaint, with the President’s demand that Volodymyr Zelensky cooperate with Rudy’s antics on the call.

By not referring the complaint, then, DOJ prevented FEC from connecting the dots, just as treating the call record instead of the complaint itself as the referral prevented Public Integrity investigators assessing the complaint from doing so.

Again: this kind of dot-connecting is what FBI and the rest of our investigative apparatus have been refocused on doing since 9/11, specifically to ensure that any threats to the United States will be identified as quickly as possible. But when such dot-connecting would have knowably implicated powerful Republicans, including the President, it magically didn’t happen in this case.

Unless DOJ can come up with a good explanation for why they failed to share the unclassified part of the complaint with FEC (I’m waiting for DOJ to say that once Matthew Petersen resigned on August 26, just as DOJ was assessing the complaint, the MOU lapsed), then the failure to do so constitutes a willful attempt to thwart FEC from doing its job, something Ellen Weintraub lays out clearly in her letter to Amy Klobuchar. As far as she knows, the MOU remains intact, and therefore DOJ was obliged to share the complaint.

As the Commission explained earlier this year, the MOU3 between the FEC and the DOJ remains active. Though some DOJ-published materials state that DOJ no longer considers the agreement to reflect its current policy,4 it has not renegotiated the agreement with the Commission.5 Indeed, the Commission confirmed in its May response to oversight queries from the Committee on House Administration that the Commission continues to rely on the MOU:

In 1977, the Commission and DOJ entered into a Memorandum of Understanding (MOU) relating to their respective law enforcement jurisdiction and responsibilities. The MOU remains the primary guidance/procedural agreement used by the Commission to assist in collaboration and consultation efforts (including referrals) between the Commission and DOJ.6

The Commission has taken no action to change its position that the MOU is the primary guidance and procedural agreement used by the Commission to assist in collaboration and consultation efforts (including referrals) between the Commission and DOJ.

It turns out that deliberately undermining FEC’s ability to do its job is a crime, one of the same crimes that Parnas and Fruman got charged with, the same crime that Bill Barr’s DOJ is vigorously prosecuting against the Russian trolls (though which a recent decision from Dabney Friedrich may put at risk): Conspiracy to Defraud the US.

There’s zero chance, of course, that Bill Barr will charge his top aides with thwarting the ability of the FEC to connect the dots on a referral that directly ties to another complaint already in their hands. But we should be clear that DOJ appears to be engaged in undermining the proper functioning of the campaign finance system in the same way Russian trolls and Parnas and Fruman have been accused of doing.

The Disinformation Campaign Targeting Mueller and the Delayed Briefing to SSCI on Russian Election Interference

A lot of people are reporting and misreporting details from this Mueller filing revealing that it had been the target of disinformation efforts starting in October.

1000 non-sensitive files leaked along with the file structure Mueller provided it with

To substantiate an argument that Concord Management should not be able to share with Yevgeniy Prigozhin the sensitive discovery that the government has shared with their trollish lawyers, Mueller revealed that on October 22, someone posted 1000 files turned over in discovery along with a bunch of other crap, partially nested within the file structure of the files turned over in discovery.

On October 22, 2018, the newly created Twitter account @HackingRedstone published the following tweet: “We’ve got access to the Special Counsel Mueller’s probe database as we hacked Russian server with info from the Russian troll case Concord LLC v. Mueller. You can view all the files Mueller had about the IRA and Russian collusion. Enjoy the reading!”1 The tweet also included a link to a webpage located on an online file-sharing portal. This webpage contained file folders with names and folder structures that are unique to the names and structures of materials (including tracking numbers assigned by the Special Counsel’s Office) produced by the government in discovery.2 The FBI’s initial review of the over 300,000 files from the website has found that the unique “hashtag” values of over 1,000 files on the website matched the hashtag values of files produced in discovery.3 Furthermore, the FBI’s ongoing review has found no evidence that U.S. government servers, including servers used by the Special Counsel’s Office, fell victim to any computer intrusion involving the discovery files.

1 On that same date, a reporter contacted the Special Counsel’s Office to advise that the reporter had received a direct message on Twitter from an individual who stated that they had received discovery material by hacking into a Russian legal company that had obtained discovery material from Reed Smith. The individual further stated that he or she was able to view and download the files from the Russian legal company’s database through a remote server.

2 For example, the file-sharing website contains a folder labeled “001-W773.” Within that folder was a folder labeled “Yahoo.” Within that folder was a folder labeled “return.” Within the “return” folder were several folders with the names of email addresses. In discovery in this case, the government produced a zip file named “Yahoo 773.” Within that zip file were search warrant returns for Yahoo email accounts. The names of the email accounts contained in that zip file were identical to the names of the email address folders within the “return” subfolder on the webpage. The webpage contained numerous other examples of similarities between the structure of the discovery and the names and structures of the file folders on the webpage. The file names and structure of the material produced by the government in discovery are not a matter of public record. At the same time, some folders contained within the Redstone Hacking release have naming conventions that do not appear in the government’s discovery production but appear to have been applied in the course of uploading the government’s production. For example, the “001- W773” folder appears within a folder labeled “REL001,” which is not a folder found within the government’s production. The naming convention of folder “REL001” suggests that the contents of the folder came from a production managed on Relativity, a software platform for managing document review. Neither the Special Counsel’s Office nor the U.S. Attorney’s Office used Relativity to produce discovery in this case. [my emphasis]

It sounds like Mueller’s office found out about it when being contacted by the journalist who had been alerted to the content on Twitter.

But before Mueller asked Concord’s trollish lawyers about it, the defense attorneys — citing media contacts they themselves had received — contacted prosecutors to offer a bullshit excuse about where the files came from.

On October 23, 2018, the day after the tweet quoted above, defense counsel contacted the government to advise that defense counsel had received media inquiries from journalists claiming they had been offered “hacked discovery materials from our case.” Defense counsel advised that the vendor hired by the defense reported no unauthorized access to the non-sensitive discovery. Defense counsel concluded, “I think it is a scam peddling the stuff that was hacked and dumped many years ago by Shaltai Boltai,” referencing a purported hack of Concord’s computer systems that occurred in approximately 2014. That hypothesis is not consistent with the fact that actual discovery materials from this case existed on the site, and that many of the file names and file structures on the webpage reflected file names and file structures from the discovery production in this case.

Without any hint of accusation against the defense attorneys (though this motion is accompanied by an ex parte one, so who knows if they offered further explanation there), Mueller notes any sharing of this information for disinformation purposes would violate the protective order in the case.

As stated previously, these facts establish a use of the non-sensitive discovery in this case in a manner inconsistent with the terms of the protective order. The order states that discovery may be used by defense counsel “solely in connection with the defense of this criminal case, and for no other purpose, and in connection with no other proceeding, without further order of this Court,” Dkt. No. 42-1, ¶ 1, and that “authorized persons shall not copy or reproduce the materials except in order to provide copies of the materials for use in connection with this case by defense counsel and authorized persons,” id. ¶ 3. The use of the file names and file structure of the discovery to create a webpage intended to discredit the investigation in this case described above shows that the discovery was reproduced for a purpose other than the defense of the case.

Update: Thursday evening, Mueller submitted another version of this clarifying that the @HackingRedstone tweets alerting journalists to the document dump were DMs, and so not public (or visible to the defense). The first public tweet publicizing the dump came on October 30, so even closer to the election.

Shortly after the government filed, defense counsel drew the government’s attention to the following sentence, which appears on page nine of the filing: “On October 22, 2018, the newly created Twitter account @HackingRedstone published the following tweet: ‘We’ve got access to the Special Counsel Mueller’s probe database as we hacked Russian server with info from the Russian troll case Concord LLC v. Mueller. You can view all the files Mueller had about the IRA and Russian collusion. Enjoy the reading!’” Defense counsel pointed out that this sentence could be read to suggest that the Twitter account broadcast a publicly-available “tweet” on October 22. In fact, the Twitter account @HackingRedstone began sending multiple private direct messages to members of the media promoting a link to the online file-sharing webpage using Twitter on October 22. The content of those direct messages was consistent with, but more expansive than, the quoted tweet to the general public, which was issued on October 30. By separate filing, the government will move to file under seal the text of the direct messages. The online file sharing webpage was publicly accessible at least starting on October 22.

I’m not sure it makes the defense response any more or less suspect. But it does tie the disinformation even more closely with the election.

The Mueller disinformation was part of a month-long election season campaign

This thread, from one of the journalists who was offered the information, put it all in context back on November 7, the day after the election.

The thread shows how the release of the Mueller-related files was part of a month-long effort to seed a claim that the Internet Research Agency had succeeded in affecting the election.

Update: This story provides more background.

Other signs of the ongoing investigation into Yevgeniy Prigozhin’s trolls

Given how the Mueller disinformation functioned as part of that month-long, election oriented campaign, I’m more interested in this passage from the Mueller investigation than that the investigation had been targeted. Mueller argues that they shouldn’t have to share the sensitive discovery with Yevgeniy Prigozhin because the sensitive discovery mentions uncharged individuals who are still trying to fuck with our elections.

First, the sensitive discovery identifies uncharged individuals and entities that the government believes are continuing to engage in operations that interfere with lawful U.S. government functions like those activities charged in the indictment.

To be sure, we knew the investigation into Prigozhin’s trolls was ongoing. On October 19, just days before these files got dropped, DOJ unsealed an EDVA complaint, which had been filed under seal on September 28, against Prigozhin’s accountant, Alekseevna Khusyaynova. Along with showing Prigozhin’s trolls responding to the original Internet Research Agency indictment last February, it showed IRA’s ongoing troll efforts through at least June of last year.

Then, in December, Concord insinuated that Mueller prosecutor Rush Atkinson had obtained information via the firewall counsel and taken an investigative step on that information back on August 30.

On August 23, 2018, in connection with a request (“Concord’s Request”) made pursuant to the Protective Order entered by the Court, Dkt. No. 42-1, Concord provided confidential information to Firewall Counsel. The Court was made aware of the nature of this information in the sealed portion of Concord’s Motion for Leave to Respond to the Government’s Supplemental Briefing Relating to Defendant’s Motion to Dismiss the Indictment, filed on October 22, 2018. Dkt. No. 70-4 (Concord’s “Motion for Leave”). Seven days after Concord’s Request, on August 30, 2018, Assistant Special Counsel L. Rush Atkinson took investigative action on the exact same information Concord provided to Firewall Counsel. Undersigned counsel learned about this on October 4, 2018, based on discovery provided by the Special Counsel’s Office. Immediately upon identifying this remarkable coincidence, on October 5, 2018, undersigned counsel requested an explanation from the Special Counsel’s Office, copying Firewall Counsel on the e-mail.

[snip]

Having received no further explanation or information from the government, undersigned counsel raised this issue with the Court in a filing made on October 22, 2018 in connection with the then-pending Motion to Dismiss. In response to questions from the Court, Firewall Counsel denied having any communication with the Special Counsel’s Office.

This was a bid to obtain live grand jury investigative information, one that failed earlier this month after Mueller explained under seal how his prosecutors had obtained this information and Dabney Friedrich denied the request.

What this filing, in conjunction with Josh Russell’s explanatory Twitter thread, reveals is that the Mueller disinformation effort was part of a disinformation campaign targeted at the election.

Dan Coats doesn’t want to share the report on Russian election tampering with SSCI

And I find that interesting because of a disturbing exchange in a very disturbing Global Threats hearing the other day. After getting both Director of National Intelligence Dan Coats and FBI Director Christopher Wray to offer excuses for White House decisions to given security risks like Jared Kushner security clearance, Martin Heinrich then asked Coats why ODNI had not shared the report on election tampering even with the Senate Intelligence Committee.

Heinrich: Director Coats, I want to come back to you for a moment. Your office issued a statement recently announcing that you had submitted the intelligence community’s report assessing the threats to the 2018 mid-term elections to the President and to appropriate Executive Agencies. Our committee has not seen this report. And despite committee requests following the election that the ODNI brief the committee on any identified threats, it took ODNI two months to get a simple oral briefing and no written assessment has yet been provided. Can you explain to me why we haven’t been kept more fully and currently informed about those Russian activities in the 2018–

Chairman Richard Burr interrupts to say that, in fact, he and Vice Chair Mark Warner have seen the report.

Burr: Before you respond, let me just acknowledge to the members that the Vice Chairman and I have both been briefed on the report and it’s my understanding that the report at some point will be available.

Coats then gives a lame excuse about the deadlines, 45 days, then 45 days.

Coats: The process that we’re going through are two 45 day periods, one for the IC to assess whether there was anything that resulted in a change of the vote or anything with machines, uh, what the influence efforts were and so forth. So we collected all of that, and the second 45 days — which we then provided to the Chairman and Vice Chairman. And the second 45 days is with DHS looking, and DOJ, looking at whether there’s information enough there to take — to determine what kind of response they might take. We’re waiting for that final information to come in.

After Coats dodges his question about sharing the report with the Committee, Heinrich then turns to Burr to figure out when they’re going to get the information. Burr at least hints that the Executive might try to withhold this report, but it hasn’t gotten to that yet.

Heinrich: So the rest of us can look forward — so the rest of us can then look forward to reading the report?

Coats: I think we will be informing the Chairman and the Vice Chairman of that, of their decisions.

Heinrich: That’s not what I asked. Will the rest of the Committee have access to that report, Mr. Chairman?

[pause]

Heinrich: Chairman Burr?

Burr; Well, let me say to members we’re sort of in unchartered ground. But I make the same commitment I always do, that anything that the Vice Chairman and myself are exposed to, we’ll make every request to open the aperture so that all members will be able to read I think it’s vitally important, especially on this one, we’re not to a point where we’ve been denied or we’re not to a point that negotiations need to start. So it’s my hope that, once the final 45-day window is up that is a report that will be made available, probably to members only.

Coming as it did in a hearing where it became clear that Trump’s spooks are helpless in keeping Trump from pursuing policies that damage the country, this exchange got very little attention. But it should!

The Executive Branch by law has to report certain things to the Intelligence Committees. This report was mandated by Executive Order under threat of legislation mandating it.

And while Coats’ comment about DOJ, “looking at whether there’s information enough there to take — to determine what kind of response they might take,” suggests part of the sensitivity about this report stems from a delay to provide DOJ time to decide whether they’ll take prosecutorial action against what they saw in the election, the suggestion that only members of the committee (not staffers and not other members of Congress) will ever get the final report, as well as the suggestion that Coats might even fight that, put this report on a level of sensitivity that matches covert actions, the most sensitive information that get shared with Congress.

Maybe the Russians did have an effect on the election?

In any case, going back to the Mueller disinformation effort, that feels like very familiar dick-wagging, an effort to make key entities in the US feel vulnerable to Russian compromise. Mueller sounds pretty sure it was not a successful compromise (that is, the data came from Concord’s lawyers, not Mueller).

But if the disinformation was part an effort to boast that Putin’s allies had successfully tampered with the vote — particularly if Russia really succeeded in doing so — it might explain why this report is being treated with the sensitivity of the torture or illegal spying program.

Update: I’ve corrected this to note that in the end the Intelligence Authorization did not mandate this report, as was originally intended; Trump staved that requirement off with an Executive Order. Still, that still makes this look like an attempt to avoid admitting to Congress that your buddy Putin continues to tamper in US elections.

As I disclosed last 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. 

Will the Press Recognize They Also Deserve a Scolding for Parroting Eric Dubelier’s Nude Selfie Stunt?

According to Google, there are almost 4 million results for a search on “nude selfie Mueller.” All the top results report on a recent filing from Concord Management objecting to Robert Mueller’s request to submit an ex parte filing explaining why Concord should not be able to share the unclassified but sensitive information obtained in discovery with their boss, Yevgeniy Prigozhin. None of the reports I read considered why and how Mueller’s team would have obtained a nude selfie along with the rest of the vast amounts of social media data it obtained as part of its effort to investigate how trolls paid by Prigozhin operated (one explanation might be that Prigozhin employees sent a nude selfie of themselves via a US-based provider which then got turned over as part of a content request, which contributed to the process of identifying the employees).

In other words, rather than reporting on the mention of the nude selfie as part of covering a legal case, the press instead treated it largely as Concord lawyer Eric Dubelier presumably intended, as a means of making and calling attention to a legally frivolous but politically damning insinuation about Mueller’s investigation. Tellingly, the coverage of the nude selfie claim came only after Dubelier included it in the short response filing rather than the legally more interesting initial request to amend the protective order, which complained that Mueller had turned over “irrelevant data ranging from promotional emails for airlines to personal correspondence, even including personal naked selfie photographs” (which also provides context that might explain why the selfie(s) was discoverable).

All that is useful background, in my opinion, to reports from the hearing that Judge Dabney Friedrich scheduled for today on Friday, before she permitted Mueller to submit a related filing under seal today.

By all appearances, Friedrich brought Concord’s lawyers in (when effectively all she did was schedule a follow-up hearing for March and — apparently — review Mueller’s claims about grand jury proceedings separately) to yell at them for their trollish filings.

A judge publicly slammed the defense lawyers for a Russian company criminally charged by special counsel Robert Mueller, accusing the firm’s attorneys of submitting unprofessional and inappropriate court filings attacking Mueller’s office and of unwisely peppering legal briefs with jarring quotes taken from movies like Animal House.

“I’ll say it plain and simple: knock it off,” U.S. District Court Judge Dabney Friedrich told lawyers for the Russian company, Concord Management and Consulting, at a brief court hearing in Washington Monday morning.

[snip]

A stern-faced Friedrich, the newest of President Donald Trump’s three appointees to the district court in Washington, made clear Monday that she was not amused by what she called the “clever quotes.” She also chastised Dubelier for ad hominem attacks on Mueller’s attorneys and other prosecutors in the case.

“I found your recent filings, in particular your reply brief filed Friday, unprofessional, inappropriate and ineffective,” the judge said. She suggested the submissions were an effort to bully her into granting pending defense motions to give the owners and officers of Concord greater access to materials Mueller’s office has turned over to permit the defense to prepare for trial.

Here’s the filing from Friday that appears to have caused her to finally lose patience with Dubelier’s stunts.

The issues presented by the Concord case — particularly the question about whether Prigozhin, who made himself a Director after Concord got indicted (a parallel move to one he appears to have made to set up a Facebook lawsuit), can obtain discovery without showing up in the US to get it — are legally interesting and potentially important as precedents.

But even the legal press that knows better — and especially the political journalists covering the Mueller investigation as part of their White House coverage — are playing willing tools for Dubelier’s trolling.

As I disclosed last 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. 

Putin’s Chef, Evgeniy Prigozhin, Says He Needs Discovery So He Can Figure Out if He’s Putin’s Boss or His Chef

Among the more trollish arguments in Yevgeniy Prigozhin’s latest troll argument in defense of his troll attack on the 2016 election is that Prigozhin has to get all the discovery turned over to Concord’s lawyers because only he can tell whether he’s Putin’s boss, or his chef.

[T]he documents that the government appears to contend are statements of Concord under Fed. R. Civ. P. 16(C)(i) and (ii) are primarily in Russian. While defense counsel has engaged translators to begin its review of the discovery materials, the only way to get fully accurate translations and prepare for trial is to speak to the individuals who allegedly wrote the documents. See United States v. Archbold-Manner, 577 F. Supp. 2d 291, 292-93 (D.D.C. 2008) (noting the need for translations of voluminous foreign language discovery in ruling relating to Speedy Trial Act). This is particularly true with respect to Russian, which is highly dissimilar to English and literal translations of words often result in lost meaning or context. See, e.g., https://www.state.gov/m/fsi/sls/c78549.htm (Department of State’s Foreign Service Institute School of Language Studies identifying Russian as a Category III Language “with significant linguistic and/or cultural differences from English”). Again, by way of example, certain allegedly sensitive documents contain the Russian word “шеф.” This word can be translated into the English words “chief,” “boss” or “chef”—a distinction that is critically important since international media often refers to Mr. Prigozhin as “Putin’s Chef.”

Each logical step in this paragraph is nonsense, because it’s clear the documents in question are getting translated by people who do not suffer from the “significant linguistic and cultural differences” cited by the State Department in an off-point citation. Ultimately, this argument amounts to Prigozhin claiming that only he knows whether — all this time! — has has actually been Putin’s boss, not his chef, as usually claimed.

That said, the argument is telling, because it suggests that Prigozhin has to get discovery because documents turned over in discovery directly implicate his relationship with Putin.

“The Russian national who controls the Defendant but has not personally appeared”

The main gist of this filing, however, is an attempt to revisit an earlier order in this case and force the government (the troll lawyers pretend this case is being exclusively prosecuted by Mueller and not also by lawyers from two other DOJ components) to turn over 3 million pages in discovery to Prigozhin, even though he hasn’t appeared before the court personally.

Since the entry of the Protective Order, the Special Counsel has produced nearly 4 million documents, 3.2 million of which it has designated as “sensitive.” The Special Counsel has not explained to defense counsel the reason for the designation of any particular document or category of documents, nor has he explained why—with non-classified material—defense counsel should not have access to his secret communications with the Court.

Remember, Prigozhin made himself General Manager of Concord Management after it got indicted in the same indictment in which he got indicted so he could insist that he get this discovery in his corporate form, even while dodging prosecution in his natural form (it’s sort of the reverse effect of the Trump Organization consubstantiation that is going to get Trump in trouble). As a result, Concord argues (for the second time) that Prigozhin must get discovery because he is the defendant, and not a co-defendant currently avoiding any court appearance.

Undersigned counsel has been unable to identify a single reported case where a corporate defendant was prohibited from viewing discovery,

[snip]

Second, co-defendant Mr. Prigozhin is the only person directly affiliated with Concord identified in the Indictment. As such, Concord cannot be expected to make informed decisions regarding its defense or meaningfully confer with its counsel unless it—and specifically Mr. Prigozhin—understands the evidence the Special Counsel intends to use against it at trial. Maury, 695 F.3d at 248 (recognizing that “[a]n organization has no self-knowledge of its own Undersigned counsel has been unable to identify a single reported case where a corporate defendant was prohibited from viewing discovery,

Yet the troll lawyers don’t address the issue that proved key the last time: that this an attempt for Prigozhin, who because he has not made an appearance is not bound by the protective order, to obtain discovery as a defendant without risking his neck. Indeed, it turns that scenario on its head, searching for instances where corporations have been denied discovery as opposed to where indicted co-conspirators obtain discovery without showing up in court first.

In a related filing, the government calls Prigozhin “the Russian national who controls the Defendant but has not personally appeared” and cite national security concerns about “certain facts regarding Prigozhin and other Russian nationals associated with him.” Perhaps the government needs to present details to Friedrich about just what Putin’s chef has cooked up for him.

The troll lawyers also don’t address the terms of the discovery order. Prigozhin has a means of getting the discovery he wants: he only needs to come to the United States and enter into the protective order to do that. Indeed, two of the cases Concord cites seem to support the existing protective order, which requires those who access this information to be bound by the court before they do so and prohibits discovery from being removed from the US.

United States v. Carriles, 654 F. Supp. 2d 557, 562, 570 (W.D. Tex. 2009) (rejecting the government’s proposed protective order related to sensitive but unclassified discovery which would have prevented defendant from disseminating any sensitive discovery material to prospective witnesses without first obtaining court approval, and instead allowing defendant to disclose materials necessary for trial preparation after obtaining a memorandum of understanding related to the protective order); Darden, 2017 WL 3700340, at *3 (rejecting the government’s proposed protective order that prohibited the defendants from reviewing discovery materials unless in the presence of counsel and adopting a less restrictive protective order which specified precisely which discovery materials defense counsel could review with the defendants but could not provide or leave with the defendants).

Admittedly, Judge Dabney Friedrich invited Concord to return to these issues (albeit at a slightly later stage than where we’re at). But Concord doesn’t even address that there are means for Prigozhin to access materials under the existing protective order.

There are two more interesting sub-arguments here.

Concord argues that because the US government has charged accountant Elena Khusyaynova — but not in this case — the ongoing investigation is done

First, Concord uses the fact that Eastern District of VA charged Concord accountant in a parallel case, the “ongoing investigation” the government cited to justify its secrecy has ended.

Nevertheless, the Special Counsel has publicly invoked—in the Protective Order itself and its briefing—both an “ongoing investigation” and “sensitive investigatory techniques” as grounds for preventing disclosure, neither of which should apply here.

Undersigned counsel must assume for now that the “ongoing investigation” referred to in the Protective Order is related to the criminal complaint recently unsealed in the Eastern District of Virginia. Ex. A. Because this complaint is now unsealed, and the ongoing investigation has been publicly revealed, there is no further need to protect this investigation from disclosure.

It later says that some of the documents cited in the affidavit submitted in Elena Khusyaynova’s case are “the very same documents” turned over in discovery here.

Relatedly, the government itself has described some of the “sensitive” discovery in great detail in public filings, yet has made no effort to subsequently re-categorize those very same documents as no longer sensitive. For example, in an affidavit in support of a criminal complaint filed under seal on September 28, 2018 in the Eastern District of Virginia and unsealed on October 19, 2018, an FBI Special Agent described “detailed financial documents that tracked itemized Project Lakhta expenses” allegedly transmitted between an employee of Concord and an employee of its co-defendant, Internet Research Agency. See Ex. A, Criminal Compl., United States v. Elena Khusyaynova, 1:18-mj-464 (E.D. Va.) (filed Sept. 28, 2018; unsealed Oct. 19, 2018) (“the Holt Affidavit”). The Holt Affidavit goes on to state that “[b]etween at least January 2016 and July 2018, these documents were updated and provided to Concord on approximately a monthly basis,” and provides “illustrative examples” of these documents, including identifying the individual who sent the document (the defendant identified in the complaint); describing the date on which the documents were allegedly sent and the approximate dollar value contained in the document; and even quoting from the documents. Id. ¶ 21. To the extent that these very same documents are among those designated by the Special Counsel as “sensitive,” it is impossible to understand why they cannot be shared with Concord in order to defend itself against criminal charges in this case. [my emphasis]

The argument that any investigation into Concord is complete is undermined by the other motion Concord submitted the same day they submitted this motion. It complains that Mueller prosecutor Rush Atkinson somehow took investigative action on information a week after Concord provided  the same information to the Firewall Counsel, on August 30.

On August 23, 2018, in connection with a request (“Concord’s Request”) made pursuant to the Protective Order entered by the Court, Dkt. No. 42-1, Concord provided confidential information to Firewall Counsel. The Court was made aware of the nature of this information in the sealed portion of Concord’s Motion for Leave to Respond to the Government’s Supplemental Briefing Relating to Defendant’s Motion to Dismiss the Indictment, filed on October 22, 2018. Dkt. No. 70-4 (Concord’s “Motion for Leave”). Seven days after Concord’s Request, on August 30, 2018, Assistant Special Counsel L. Rush Atkinson took investigative action on the exact same information Concord provided to Firewall Counsel. Undersigned counsel learned about this on October 4, 2018, based on discovery provided by the Special Counsel’s Office. Immediately upon identifying this remarkable coincidence, on October 5, 2018, undersigned counsel requested an explanation from the Special Counsel’s Office, copying Firewall Counsel on the e-mail. The Special Counsel’s Office responded to the email on October 7, 2018, but did not explain how it obtained the confidential information, stating instead that the trial team was unaware that undersigned counsel was in communication with Firewall Counsel and that “[n]o criminal process that has been turned over in discovery is derived from [those] communications.”

Having received no further explanation or information from the government, undersigned counsel raised this issue with the Court in a filing made on October 22, 2018 in connection with the then-pending Motion to Dismiss. In response to questions from the Court, Firewall Counsel denied having any communication with the Special Counsel’s Office.

In a footnote, Concord makes the kind of vague claim I expect to be corrected by Mueller, suggesting that its one request to Firewall Counsel hasn’t gotten a response.

Concord initially requested authorization from the Court pursuant to the Protective Order to disclose a small number of specifically identified allegedly sensitive documents to particular Russian individuals, but to date the Court had not required the Firewall Counsel to respond to that request in writing.

While it’s certainly possible Atkinson’s investigative action fed into the September 28 charges against Khusyaynova, one way or another, it suggests the parts of the Concord investigation under Mueller also remain ongoing.

Interestingly, Atkinson wasn’t on October 23 and  November 27 filings in this case, though he was on yesterday’s brief; during October and November, however, Atkinson was dealing with red-blooded American trolls like Jerome Corsi.

In any case, the complaint about Atkinson feels like a parallel construction issue to me. After all, Concord surely remains under close surveillance by the US government, and so long as Progozhin does not have a lawyer who files an appearance for him personally in this matter, he likely remains a legitimate surveillance target. So Atkinson might have means to obtain such information independent of the Firewall Counsel.

Reverse engineering the parallel construction on 3 million documents

Indeed, that’s what this entire thing feels like: an attempt to obtain the non-classified discovery from US providers to reverse engineer it to understand what surveillance the underlying investigation is conducting. As Concord describes, its lawyers are seeing millions of documents obtained via subpoena.

The Special Counsel has explicitly acknowledged that none of the discovery is classified. Moreover, the allegedly “sensitive” discovery appears to have been collected exclusively through the use of criminal subpoenas, search warrants, and orders issued pursuant to 18 U.S.C. § 2703, as opposed to any classified collection method.

It then goes on to suggest that what US tech companies turn over in response to legal process is all laid out in public. It also helpfully names a bunch of providers from which discovery has been provided: Google, Facebook, Twitter, Apple, Microsoft, Yahoo!, Instagram, WhatsApp, Paypal, and Verizon.

With respect to “sensitive investigatory techniques,” the discovery produced to date comes from legal process issued to various companies, including email providers, internet service providers, financial institutions, and other sources. See Government’s Mot. For a Protective Order Under Federal Rule of Criminal Procedure 16(d)(1) at 2, Dkt. 24. But any person anywhere in the world connected to the Internet already knows that law enforcement agencies can and do gather evidence from these types of companies through legal process in criminal matters, and specifically what can be gathered through those various processes is widely known and is not in need of protection. For example, Google explains in detail on its website precisely what information it will disclose in response to legal process in the form of a subpoena, court order, or search warrant. See https://support.google.com/transparencyreport/answer/ 7381738?hl=en. Google specifically publicizes that in response to a subpoena for Gmail data, it can be compelled to disclose subscriber registration information (e.g., name, account creation information, associated email addresses, phone number), and sign-in IP addresses and associated time stamps. Id. In response to a court order for Gmail data, Google may provide “non-content information (such as non-content email header information)” and in response to a search warrant Google can be compelled to produce email content, in addition to the data produced in response to a subpoena or court order. Id. Facebook publishes similar information, explaining that in response to a subpoena, it may disclose “basic subscriber records,” which may include name, length of service, credit card information, email addresses, and recent login/logout IP addresses. See https://www.facebook.com/safety/groups/law/guidelines/. In response to a court order, Facebook may disclose message headers and IP addresses, as well as basic subscriber records. Id. In response to a search warrant, Facebook may disclose stored contents of the account, including messages, photos, videos, timeline posts, and location information. Id.

Twitter, Apple, Microsoft, Yahoo!, Instagram, and WhatsApp, all publish similarly detailed information about the types of data available to law enforcement through subpoenas, court orders, and search warrants. See https://help.twitter.com/en/rules-and-policies/twitter-lawenforcement-support (explanation from Twitter that obtaining non-public information requires valid legal process like a subpoena, court order, or other legal process and that requests for the contents of communications require a valid search warrant or equivalent); https:// www.apple.com/privacy/government-information-requests/ (explanation from Apple, Inc. of what government and law enforcement agencies can obtain through legal process); https:// www.microsoft.com/en-us/corporate-responsibility/lerr (explanation from Microsoft that a subpoena is required for non-content data, and a warrant or court order is required for content data); https://r.search.yahoo.com/_ylt=A0geK.OJvA5cPPUAkCJXNyoA;_ylu= X3oDMTEyaDM4Z2dkBGNvbG8DYmYxBHBvcwMxBHZ0aWQDQjQ4NTNfMQRzZWMDc3I-/RV=2/ RE=1544498442/RO=10/RU=https%3a%2f%2fwww.eff.org%2ffiles%2ffilenode%2fsocial_net work%2fyahoo_sn_leg-doj.pdf/RK=2/RS=sXU4pB1SMj3WwjZBx3ltlU4S6v w- (explanation from Yahoo of precisely what data may be disclosed in response to a subpoena, 2703(d) order, or Search Warrant); https://faq.whatsapp.com/en/android/26000050/?category=5245250 (explanation from WhatsApp detailing what information is available through various forms of legal process); https://help.instagram.com/494561080557017 (explanation from Instagram describing the information it will disclose in response to subpoenas, search warrants, and court orders). Financial institutions and internet service providers also openly describe what information is available to law enforcement through various legal process. See, e.g., https://www.paypal.com/us/webapps/mpp/law-enforcement (explanation from PayPal describing the type of data it collects and when that data is made available to law enforcement as required by law); https://www.verizon.com/about/portal/transparency-report/faqs/ (explanation from Verizon of the types of information it is required to disclose when properly requested by law enforcement or court order).

Thus, if it is the so-called “manner of collection” of the discovery that the Special Counsel seeks to protect—that is, the fact that law enforcement agencies can collect a certain type of data—that fact is widely known and does not justify the burdens the Protective Order imposes on Concord’s right to present a defense.3

Concord goes on to dismiss the concerns of exposing “witnesses.”

3 To the extent that the government argues that limiting access to discovery will ensure the safety of witnesses, there is no valid basis for such argument. Specifically, even in cases where there is such a risk (and undersigned counsel knows of no such risk here), there must be more than “broad allegations of harm, unsubstantiated by specific examples or articulated reasoning.” Johnson, 314 F. Supp. 3d at 251. In those instances, courts are still willing to allow a defendant to review the evidence, subject to certain parameters. See, e.g., id., at 254 (requiring government redaction of discovery materials); Darden, 2017 WL 3700340, at *3 (adopting less-restrictive measure to ensure witness safety). If the government has a legitimate concern about witness safety, the burden is on it to specifically articulate the concern, identify precisely the documents that would lead to the identification of a witness, and redact that information or propose an alternative means of restricting disclosure.

The FBI hides a great deal of detail about precisely what it can obtain from providers by deeming service providers witnesses, and this feels like the same.

Still, even the public record in past dockets reveals that discovery from providers can be vastly more extensive than the public imagines.

Which is, I imagine, what Concord is trying to provide Putin’s chef.

The troll lawyers implicitly troll Judge Freidrich’s past rulings

Don’t get me wrong. What kind of protective order Friedrich sustains against Concord so long as it insists co-defendant Prigozhin is the only one at Concord who can handle that discovery is an interesting legal question.

That said, Concord’s signature style might start wearing on Friedrich’s patience given claims that seemingly defy her decision on the last major challenge to the Mueller prosecution.

In this first-of-its-kind prosecution of a make-believe crime, the Office of Special Counsel maintains that it can unilaterally—and for secret reasons disclosed only to the Court— categorize millions of pages of non-classified documents as “sensitive,” and prohibit defense counsel from sharing this information with Defendant Concord for purposes of preparing for trial. This, apparently only because the Defendant and its officers and employees are Russian as opposed to American. The Special Counsel’s unique argument appears rooted in the maxim, “Happy the short-sighted who see no further than what they can touch.”1

Maillart, Ella K., The Cruel Way (1947).

Friedrich has already ruled that this is not a made-up crime.

In Concord’s view, that omission is dispositive: the indictment cannot accuse Concord of conspiring to obstruct lawful government functions “without any identified or recognized statutory offense” because a conspiracy conviction cannot be “based strictly on lawful conduct” even if that conduct is “concealed from the government.” Id. (emphasis omitted).

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. 3

[Citations of 5 cases demonstrating the point]

Put simply, conspiracies to defraud the government by interfering with its agencies’ lawful functions are illegal because § 371 makes them illegal, not because they happen to overlap with substantive prohibitions found in other statutes.

Similarly, as part of a complaint that the prosecutors haven’t had to bear any burden of this protective order, Concord says they should have to redact Personally Identifiable Information rather than deeming materials including it “sensitive.”

But rather than impose on the government the burden of identifying the materials that actually contain PII, so that the specific documents or information can be redacted or restricted, the Special Counsel has used the Protective Order to designate the entirety of various data productions to completely restrict Concord’s ability to view the vast majority of discovery regardless of whether specific documents contain PII.

This is another issue that Friedrich has already ruled against the defense on, ruling against their request to make Mueller strip the PII.

Friedrich already seemed predisposed to honor the government’s security concerns, which they just teed up again. If she feels like she’s the one being trolled, as opposed to Democratic voters or Special Counsel lawyers, she may not look too kindly on this request.

As I disclosed in 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. 

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.

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.

[snip]

@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. 

In What May Be a Second Bid to Go after Yevgeniy Prigozhin and Vladimir Putin, DOJ Charges Prigozhin’s Troll Accountant

The Eastern District of VA just charged the accountant for Yevgeniy Prigozhin’s influence operation Project Lakhta, Elena Alekseevna Khusyaynova, with conspiring to defraud the US, the same charge that Prigozhin company laywers lawyers are aggressively fighting in DC right now. On top of everything else, this charge may be an effort to get a second bid at laying out the crimes behind Prigozhin’s influence operation, first laid out on Mueller’s Internet Research Agency indictment, in a sustainable way.

Khusyaynova may be named, but the real target is Prigozhin

The affadvit against Khusyaynova not only incorporates the IRA indictment by reference, it repeats the introductory paragraph on Concord Consulting (the entity that’s challenging the Mueller indictment), changing only the name (replacing ORGANIZATION, referring to Internet Research Agency, with Project Lakhta, and lumping both Concord entities into one).

Defendants Concord Management and Consulting LLC and Concord Catering (collectively, “Concord”) are related Russian entities with various Russian government contracts. Concord was the primary source of funding for Project Lakhta operations. Concord controlled funding, recommended personnel, and oversaw Project Lakhta activities through reporting and interaction with the management of the various Project Lakhta entities.

It also repeats a paragraph from the IRA indictment on how Lakhta laundered money through a bunch of bank accounts.

To conceal the nature of Project Lakhta activities, since at least January 2016 the Conspiracy labeled the funds paid by Concord to Project Lakhta as payments related to software support and development. Moreover, since at least January 2016, Concord distributed funds to Project Lakhta through approximately fourteen bank accounts held in the names of Concord affiliates, including Glavnaya Liniya LLC, Merkuriy LLC, Obshchepit LLC, Potentsial LLC, RSP LLC, ASP LLC, MTTs LLC, Kompleksservis LLC, SPb Kulinariya LLC, Almira LLC, Pishchevik LLC, Galant LLC, Rayteks LLC, and Standart LLC.

The complaint against Khusyaynova focuses closely on Prigozhin, even calling him “Putin’s Chef” (not something that appeared in the IRA indictment). It also presents the same theory of the case as laid out in the IRA indictment: that by obscuring their foreign identity, the trolls prevent DOJ from administration FARA and the FEC from administering FECA.

In other words, while Khusyaynova may be named, the focus in this complaint is on Prigozhin’s use of money laundering to move Concord’s money into a troll operation targeting the US.

Prigozhin continues to fund influence operations affecting US politics

The complaint then lays out the influence operations conducted under the larger Lakhta umbrella, including IRA but also GlavSet, Federal News Agency, and others, describing how Khusyaynova funded it all. Of significant note, it describes how she paid for advertising on social media sites.

In addition to administrative expenses, such as office rent, utility payments, and garbage disposal, the budget identified IT expenses, such as “registration of domain names” and the purchase of “proxy servers,” and social media marketing expenses, such as expenses for “purchasing posts for social networks,” “[a]dvertisement on Facebook,” [a]dvertisement on VKontakte,” “[a]dvertisement on Instagram,” “[p]romoting news postings on social networks,” and social media optimization software (such as Twidium and Novapress) (preliminary translation of Russian text). The budgets also contained a section on “USA, EU” activities, which included itemized expenditures for “Instragram,” “Facebook advertisement” and “Activists” (preliminary translation of Russian text).

Having laid out that Khusyaynova was funneling money from Concord to pay for these things, the affidavit lays out how this funding engaged in US politics.

Its description of the trolling makes it clear that the trolls are still being instructed to take a view that benefits Trump, down to attacking Mueller.

Special prosecutor Mueller is a puppet of the establishment. List scandals that took place when Mueller headed the FBI. Direct attention to the listed examples. State the following: It is a fact that the Special Prosecutor who leads the investigation against Trump represents the establishment: a politician with proven connections to the U.S. Democratic Party who says things that should either remove him from his position or disband the entire investigation commission. Summarize with a statement that Mueller is a very dependent and highly politicized figure; therefore, there will be no honest and open results from the investigation. Emphasize that the work of this commission is damaging to the country and is aimed to declare impeachment of Trump. Emphasize that it cannot be allowed, no matter what.

Another of the trolls posted this image:

Though other trolls called to take to the streets and protest if Trump fires Mueller. Several of the trolls even RTed…

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.

Or tweeted on both sides of the Mueller indictment of the IRA.

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.

We didn’t vote for Trump because of a couple of hastags 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!

And one of the key allegations involves the effort to provide advertising in support of this flash mob against Trump, including collaborating with Move On and Code Pink. Another of the key allegations describes @CovfefeNationUS’ efforts to raise money targeting (among others) Tammy Baldwin, Claire McCaskill, Nancy Pelosi, Maxine Waters, and Elizabeth Warren.

All of this, of course, is political influence peddling. By citing paid influence peddling, including some that extended beyond the time of the IRA indictment (meaning Concord was on notice that they needed to register) you make it clear this is paid foreign tampering.

This complaint re-situates the charges against Concord in sustainable way

I said, above, that this complaint may be designed to make the charges against Prigozhin sustainable. It comes — with its preliminary translation of Russian passages suggesting some haste — on the heels of a legal challenge by Concord’s US lawyer — of the ConFraudUs theory in this case. Concord has argued that because the indictment doesn’t allege it knew it had to register under FECA and FARA, the conspiracy itself is unsustainable.

Earlier this week, there was a hearing on that challenge in which Trump appointee Dabney Friedrich showed some sympathy for Concord’s argument.

Mueller alleges Concord Management, along with other defendants named in the indictment, conspired to impede the ability of the Justice Department to enforce the Foreign Agents Registration Act — which requires people who are lobbying in the U.S. on behalf of foreign individuals or entities disclose that lobbying — and the ability of the FEC to administer its ban on foreign expenditures in elections, under the Federal Election Campaign Act (FECA) .

Concord Management is arguing that Mueller has not shown in the indictment that the Russians knew about their legal obligations under those regulations, which according to Dubelier is required to bring criminal charges under the law, and is using the conspiracy charge as a workaround.

“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,” Dubelier said at the hearing.

Prosecutors argued that to bring the conspiracy count, all they need to show is that defendants had some knowledge that the government regulated those areas and that they took actions to impede that enforcement through acts of deception.

“It doesn’t matter if they knew it was the FEC or the DOJ or some other agency,” Mueller prosecutor Jonathan Kravis argued Monday. “They know that there is a lawful government function here, and they are acting with a purpose of interfering with it.”

Kravis pointed to the Russian trolls’ alleged move to disguise not just their identities, but the origin of the computer networks they used to influence the election on social media.

Then today, the judge in that case, Friedrich, asked for more briefing from Mueller’s team.

By issuing this complaint, the government does several things.

First, because this is just a complaint, Prigozhin isn’t going to be able to challenge it; his employee, Khusyaynova, would first have to be indicted, and then would have to show up in person to contest the charges, which isn’t going to happen.

But also, because this complaint focuses on the accountant’s role, it focuses much more closely (though not exclusively) on the laundering of the money, and not the laundering of the Russian origin of the voices engaging in politics.

In addition, because the conduct charged in the indictment continued after Concord was indicted in February 2018, they can no longer claim (as they are in the challenge to Mueller) that they didn’t have the knowledge and intent they were breaking the law. In the Concord challenge they argue,

In the absence of allegations specifically showing that Concord intended to interfere, or entered a conspiracy to interfere, with a lawful function relating to a U.S. election in a deceitful and dishonest manner, there is no basis for a § 371 defraud conspiracy charge whether elections were interfered with or not.

… And go on to cite the newest Justice on the Supreme Court insisting that you can’t charge foreigners unless you can be sure they know their conduct is against the law.

[W]e caution the government that seeking criminal penalties for violations of [law regulating foreign nationals’ political contributions or expenditures] will require proof of defendant’s knowledge of the law. There are many aliens in this country who no doubt are unaware of the statutory ban on foreign expenditures

Imagine how easy it will be to respond to this claim, regarding conduct that continued for four months after the initial indictment for the same conduct.

The result compelled by these overarching constitutional principles with respect to a § 371 defraud conspiracy is plain enough: where an indictment purports to charge in a complex and technical regulatory environment like U.S. elections and likewise threatens to sweep in core political speech as part of the offense, the indictment must spell out how and why the targeted individual or entity knew it was violating the law.

Finally, because this complaint focuses on a different named defendant, is charged out of a different office with no visible overlap in team, and encompasses a more recent time period (showing that the government continues to collect solid information on Prigozhin’s operation), there’s no double jeopardy issue and Friedrich can’t touch this case.

I don’t know whether Mueller will just dismiss Concord from the other indictment, and be done with that nuisance once and for all, or whether this is just designed to ensure that the allegations, and the tie to Putin, remain intact regardless of what happens in DC. But it does seem like a hasty bid to solidify the charges in a way that hews closer to past legal precedent.

Update: This post has been updated since initial posting.

Yevgeniy Prigozhin Doubles Down on Lawfare as Intelligence Collection

I realize that the Concord Management defense in the Mueller indictment is intended to be nuisance lawfare. As noted, Mueller even moved four DOJ attorneys onto the team to manage with an onslaught of such nuisance filings.

But I am rather fascinated by the fight over the protective order.

As I noted, back on June 13, Mueller’s team objected to Concord’s demands that they get to share information with Yevgeniy Prigozhin without first requiring him to come to the US to get the intelligence. In a typically snotty response, Concord not only demanded that they get to share the information, but specifically requested they not receive all the personal identifying information in discovery; they just want the more substantive stuff showing informants and networks of communication. I took it as a concession that Prigozhin didn’t need the PII, because he already stole it, so the only thing new he would need is the stuff with intelligence value.

The two sides have just submitted a draft protective order with a brief laying out their disagreements. As this passage makes clear, the key dispute is whether Reed Smith can share sensitive information with nationals of the US and individual officers of Concord, and whether Reed Smith can share sensitive information with a co-defendant who refuses to show up before the court.

As Reed Smith has already made clear, there are only two people at Concord they want to share information with. One is Prigozhin, a co-defendant.

Finally, during the June 15, 2018 hearing, the Court asked defense counsel for information regarding the number of officers and employees of Defendant Concord. Concord has two statutory officers as required under Russian law, a General Manager and a Chief Accountant. The General Manager is co-defendant Yevgeniy Prigozhin, who has decision making authority. The Chief Accountant is not responsible for the day-to-day activities of the company and does not have decision-making authority. Undersigned defense counsel has represented to the Special Counsel’s Office, at present defense counsel needs to disclose discovery materials to only two individuals at Concord, Mr. Prigozhin, and the Head of the Legal Department (who is not a co-defendant and does not have decision making authority).

It’s the two other details that give up the game though. First, the defense not only wants to share information with someone who won’t show up to face his charges, but they also want to explicitly avoid being bound by the jurisdiction of the court.

That is, Reed Smith is saying they want to share information with the Head of Concord’s Legal Department and Prigozhin without either having to be bound by the jurisdiction of the court, which would make the order virtually unenforceable.

And then Reed Smith wants to dodge jurisdiction of the court themselves, by refusing to babysit those who won’t be bound by jurisdiction of the court when they review sensitive material. They deem that “onerous.”

Reed Smith has made a show of agreeing that none of this stuff will leave the country. They’re just refusing to sign a document that will prevent, say, the unnamed Head of the Legal Department from sticking stuff in his socks and taking it back to Prigozhin (who’s not going to show up to the US to read any of this), and with him, Putin.

Honestly, I think the question of whether Prigozhin can be prohibited from helping to defend his corporation without showing up to the US to be arrested will be an interesting legal fight.

Here’s the thing: First, I don’t think Dabney Friedrich is dumb enough to fall for the two little moves at the end, and I assume she’ll guard her own authority enough not to invite some Russian lawyer to abuse her authority.

Moreover, given that her interim protective order limited all review of sensitive materials to the defense counsel, see seems inclined to side with Mueller’s team.

 

Mueller Frees Up the Troll Team

In the background of the celebrating over the Carpenter SCOTUS decision — which held that the government generally needs a warrant to access historical cell phone location — there were a few developments in the Mueller investigation:

  • The George Papadopoulos parties moved towards sentencing, either on September 7 or in October. If Mueller told Papadopoulos his wife Simon’s Mangiante seeming coordination of the Stefan Halper smear with Sam Clovis (and his lawyer, Victoria Toensing) and Carter Page got him in trouble, we got no sign of that.
  • Amy Berman Jackson dismissed a Paul Manafort attempt to limit the criminal penalties of his Foreign Agent Registration Act violations; this isn’t very sexy, but if the well-argued opinion stands, it will serve as a precedent in DC for other sleazy influence peddlers.
  • After ABJ made sure Rick Gates ask Mueller if he really didn’t mind Gates going on a trip without his GPS ankle bracelet, Gates got permission to travel — with the jewelry.
  • Kimba Wood accepted Special Master Barbara Jones’ recommendations, which among other things held that just 7 of the files reviewed so far pertain to the privilege of anyone, presumably including Trump,  to whom Michael Cohen was providing legal services. So Cohen and Trump just paid upwards of $150,000 to hide the advice Cohen has gotten from lawyers and seven more documents — that is, for no really good reason.
  • In two separate filings, four DOJ lawyers filed notices of appearance in the Internet Research Agency/Concord Management case.

It’s the latter that I find most interesting. Mueller has added a team of four lawyers:

  • Deborah A. Curtis
  • Jonathan Kravis
  • Kathryn Rakoczy
  • Heather Alpino

To a team with three (plus Michael Dreeben):

  • Jeannie Sclafani Rhee
  • Rush Atkinson
  • Ryan Kao Dickey

Devlin Barrett (he of the likely impressive link map) reported that Mueller did this to prepare for the moment when his office shuts down and the Concord Management nuisance defense drags on for years.

People familiar with the staffing decision said the new prosecutors are not joining Mueller’s team, but rather are being added to the case so that they could someday take responsibility for it when the special counsel ceases operation. The case those prosecutors are joining could drag on for years because the indictment charges a number of Russians who will probably never see the inside of a U.S. courtroom. Russia does not extradite its citizens.

The development suggests Mueller is contemplating the end of his work and farming out any potentially outstanding prosecutions to other parts of the Justice Department.

Except this doesn’t make sense. Not only are Concord and the judge, Dabney Friedrich, pushing for a quick trial, but Atkinson and Dickey are themselves DOJ employees, so could manage any residual duties.

Far more likely, Mueller is ensuring one of his A Teams — including Dickey, DOJ’s best cyber prosecutor — will be able to move on to more important tasks on the central matters before him.