Posts

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. 

Someone Has Already Been Charged for Most of the Actions the Steele Dossier Attributes to Michael Cohen

Because of a McClatchy story claiming two new details corroborating a Steele dossier claim that Michael Cohen had a meeting with people serving the interests of Putin’s Administration, people have gotten themselves into a tizzy again about what a smoking gun it would be if the allegations in the Steele dossier were proven true.

It’s an utterly bizarre tizzy, both because the allegations in the Steele dossier not only don’t match some more damning allegations Cohen has already pled guilty to, but because Mueller has already charged other people for some of the allegations about Cohen made in the dossier. In other words, the McClatchy story has people excited about the wrong allegations, rather than focusing on the damning things Cohen (and others) have already been charged with.

Indeed, most functional allegations made in the Steele dossier have already been publicly explained in either court filings or sworn testimony. That doesn’t rule out that Cohen had a role in some of them, however. Indeed, one detail from Cohen’s SDNY plea — that among the things Trump Organization reimbursed Cohen for in January 2017 was a $50,000 payment to a tech services company — actually could confirm a detail made in the dossier. But generally, Mueller and other entities have already explained away many of the allegations made against Cohen in the dossier.

I’ve put the substantive claims the Steele dossier made about Cohen below. I’ll take each and show public reporting that explains who did something attributed to Cohen in the dossier.

Cohen met with Russian Presidential Administration Legal Department officials

The central allegation involving Cohen is that he met with people from Putin’s Presidential Administration’s legal department or, in a later version, someone acting on their behalf.

By the time that allegedly happened in August or maybe September, however, Cohen had already established a paper trail with someone more central than some anonymous lawyers. Cohen’s Mueller plea describes Cohen receiving an email on January 20, 2016 from Dmitry Peskov’s personal assistant and shortly thereafter calling her. Somehow Mueller knows that the assistant “asked detailed questions and took notes.” The day after Cohen spoke with the personal assistant, someone from Putin’s office called Felix Sater.

Given that Cohen made reservations to travel to St. Petersburg (for a possible meeting directly with Putin) on June 9, then canceled those reservations on June 14 (after Russia’s role in the DNC hack was made public), those communications about a Trump Tower deal surely tie to the hack-and-leak operation.

It’s certainly possible that, later in the summer (or in the fall, during Cohen’s known trips to London), Cohen would attempt to reschedule that meeting, though the purpose was originally and probably would remain more central to a quid pro quo trading a Trump Tower and election assistance for sanctions relief and policy considerations. But having already exchanged easily collectable communications directly with Peskov’s office (whom the dossier calls “the main protagonist” in the operation), it’s not clear how helpful using Rossotrudnichestvo would be to hide the Trump role. Furthermore, there are other known cut-outs for related matters, including Steele dossier source Sergei Millian and the Agalrovs.

Cohen aimed to contain the Paul Manafort scandal

The three Cohen reports in October all claim that Cohen got involved to tamp down scandals connecting Trump to Russia. That’s not, at all, far-fetched. After all, Cohen was Trump’s fixer and he told a bunch of lies to Congress in an effort to hide Trump’s Moscow Project.

That said, a filing explaining why Mueller might have to mention the Trump campaign in Manafort’s aborted DC trial and a filing in Alex Van der Zwaan’s prosecution show that Manafort and Rick Gates themselves — with the direct involvement of Oleg Deripaska associate Konstantin Kilimnik — worked to contain this scandal.

As Mueller laid out in numerous ways, the Manafort-Gates-Kilimnik team went on a crime spree in the fall trying to cover up their past activities with Russian-backed oligarchs.

Indeed, that a claim that Cohen managed this pushback (and its timing) appeared in the dossier is particularly tantalizing for two reasons. First, one of the things Manafort reportedly lied about after agreeing to cooperate with Mueller pertained a boat trip he took with Tom Barrack; Mueller seems to know that Kilimnik joined the two men. If that happened, then it would show that someone did indeed hold a meeting in August to contain the damage of Manafort’s burgeoning scandals, but that meeting would have been between a key Trump funder, Manafort himself, and someone suspected of ongoing ties with GRU, the agency that conducted the DNC hack.

More intriguing still, as I noted above, Kilimnik was Manafort’s go-between with Oleg Deripaska. That’s interesting because in 2016, Christopher Steele was attempting to convince DOJ’s Bruce Ohr that Deripaska could be a useful source on Russian organized crime. If Steele thought Deripaska would be a useful source for DOJ, he may well have been relying on Deripaska himself. If so, the report that Cohen (who in fact did have communications with Peskov!) was containing the damage of Manafort’s ties to Russian oligarchs might be an attempt to distract from the way that a Russian oligarch was actually working through his handler, Kilimnik, to minimize that damage himself.

Cohen aimed to contain the Carter Page scandal

It likewise seems unlikely that Cohen was the one to try to contain the Carter Page scandal. While he shouldn’t be relied on for anything, several claims in Page’s testimony to HPSCI provide an alternate explanation about who was containing the scandal tied to him.

Page denied ever speaking to Cohen.

But he did describe Keith Kellogg discussing the allegations with him. And he did describe Steve Bannon, both by himself and with the assistance of Trump’s election lawfirm, Jones Day, trying to minimize the Page scandal.

That’s consistent with a number of on-the-record claims from the campaign in the days following Page’s resignation in September. Which is to say, minimizing the Page scandal fell to the campaign itself.

The people who carried out the information operation had been paid by Russia and Trump

The three initial reports on Cohen came, in suspiciously quick succession, in October, after the number of reporters briefed on the Steele dossier started to expand.

The one other report implicating Cohen was the December 13 report, based on intelligence Steele claimed he obtained for “free.”

The report is most notable for the legal battle it caused. The allegations most clearly resemble what Adrian Chen had identified and attributed to the Internet Research Agency year earlier and there had been extensive reporting on it all through the campaign. But instead of blaming Internet Research Agency, the report blames all that on Webzilla. And Webzilla’s owner, Aleksei Gubarev was sufficiently comfortable facing the prospect of discovery to sue BuzzFeed right away (though he lost his lawsuit a few weeks back).

There’s another reference in the report to a long debunked claim made by the Russians — that a Romanian hacker was involved, presumably an allusion to Guccifer 2.0’s half-hearted claim to be Romanian.

Still, much of that last report instead presented the most inflammatory claim in the entire dossier: that Trump’s campaign had helped pay for the information operation targeting Hillary.

On its face, that claim makes zero sense. The scenario as a whole assumes that the hack was done by independent hackers coerced to work for the FSB — perhaps people like Yevgeniy Nikulin, who had already been arrested in Prague by this point. As far as Mueller has shown publicly, however, the information operation was instead done by two entities: Russians in the employ of Putin crony Yevgeniy Prigozhin’s Internet Research Agency and officers in the employ of Russia’s military intelligence agency, GRU. In indictments of both conspirators, Mueller provided details about how the money was handled.

So we’ve already got explanations for how the information operation was funded: by Prigozhin and the Russian state, using a range of money laundering techniques to hide Russia’s role. We even have evidence that — contrary to the claim about information warriors’ loyalty to Sergei Ivanov — Prighozhin’s employees even sucked up to him in one of their dry runs getting Americans to perform IRL actions.

Cohen arranged deniable cash payments to hackers working in Europe against the Clinton campaign

As noted, the December report involving Cohen made the most incendiary claim of all: that the Trump organization planned to pay for some of the hackers that targeted Hillary.

In spite of the fact that Mueller has already explained how the two main groups of participants in the information operation got funded, this allegation gets more interesting given details laid out in Cohen’s SDNY plea. Several of his SDNY crimes, after all, involving making deniable payments, in that case to Stormy Daniels and Karen McDougal.

That shows Cohen’s modus operandi for paying off Trump’s illicit debts. Mind you, it shows that he didn’t use cash. He laundered the funds using more sophisticated money laundering. But it does show that Cohen was the guy who did that kind of thing.

Which makes this detail included — but not explained — in the same plea document intriguing.

Cohen paid some tech company $50,000 in connection with the campaign.

That’s not a whole lot of money, in any case. And if it went to pay off part of the information operation, it would have to have involved some part of the operation not yet publicly identified. Even the one known instance of Trump supporters reaching out to hackers in Europe — Peter Smith’s reported consultation of Weev — is known to have been paid for by other means (in that case, Smith’s own fundraising).

Still, it’s certainly possible that that $50,000 went to some still unidentified entity that played a role in the information operation that, for some reason, didn’t get paid for by Putin’s cronies or the Russian state.

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.


18 October

Speaking separately to the same compatriot in mid-October 2016, a Kremlin insider with direct access to the leadership confirmed that a key role in the secret TRUMP campaign/Kremlin was being played by the Republican candidates personal lawyer Michael COHEN. [redacted line]

19 October

1. Speaking in confidence to a longstanding compatriot friend in mid-October 2016, a Kremlin insider highlighted the importance of Republican presidential candidate Donald TRUMP’s lawyer, Michael COHEN, in the ongoing secret liaison relationship between the New York tycoon’s campaign and the Russian leadership. COHEN’s role had grown following the departure of Paul MANNAFORT as campaign manager in August 2016. Prior to that MANNAFORT had led for the TRUMP side.

2. According to the Kremlin insider, COHEN now was heavily engaged in a cover up and damage limitation operation in the attempt to prevent the full details of relationship with Russia being exposed. In pursuit of this aim, COHEN had met secretly with several Russian Presidential Administration (PA) Legal Department officials in an EU country in August 2016. The immediate issues had been to contain further scandals involving MANNAFORT’s commercial and political role in Russia/Ukraine and to limit the damage arising from exposure of former TRUMP foreign policy advisor, Carter PAGE’s secret meetings with Russian leadership figures in Moscow the previous month. The overall objective had been to “to sweep it all under the carpet and make sure no connections could be fully established or proven”

3. Things had become even “hotter” since August on the TRUMP-Russia track. According to the Kremlin insider, this had meant that direct contact between the TRUMP team and Russia had been farmed out by the Kremlin to trusted agents of influence working in pro-government policy institutes like that of Law and Comparative Jurisprudence. COHEN however continued to lead for the TRUMP team.

[snip]

The Kremlin insider was unsure of the identities of the PA officials with whom COHEN met secretly in August, or the exact date/s and locations of the meeting/s. There were significant internal security barriers being erected in the PA as the TRUMP issue became more controversial and damaging. However s/he continued to try to obtain these.

20 October

1. Speaking to a compatriot and friend on 19 October 2016, a Kremlin insider provided further details of reported clandestine meeting/s between Republican presidential candidate, Donald lawyer Michael COHEN and Kremlin representatives in August 2016. Although the communication between them had to be cryptic for security reasons, the Kremlin insider clearly indicated to his/her friend that the reported contact/s took place in Prague, Czech Republic.

2. Continuing on this theme, the Kremlin insider highlighted the importance of the Russian parastatal organisation, Rossotrudnichestvo, in this contact between TRUMP campaign representative/3 and Kremlin officials. Rossotrudnichestvo was being used as cover for this relationship and its office in Prague may well have been used to host the COHEN Russian Presidential Administration (PA) meeting/s. It was considered a “plausibly deniable” vehicle for this, whilst remaining entirely under Kremlin control.

3. The Kremlin insider went on to identify leading pro-PUTIN Duma figure, Konstantin KOSACHEV (Head of the Foreign Relations Committee) as an important figure in the TRUMP campaign-Kremlin liaison operation. KOSACHEV, also “plausibly deniable” being part of the Russian legislature rather than executive, had facilitated the contact in Prague and by implication, may have attended the meeting/s with COHEN there in August.

Company Comment

We reported previously, in our Company Intelligence Report 2016/135 of 19 October 2016 from the same source, that COHEN met officials from the PA Legal Department clandestinely in an EU country in August 2016. This was in order to clean up the mess left behind by western media revelations of TRUMP ex-campaign manager corrupt relationship with the former pro-Russian YANUKOVYCH regime in Ukraine and TRUMP foreign policy advisor, Carter secret meetings in Moscow with senior regime figures in July 2016. According to the Kremlin advisor, these meeting/s were originally scheduled for COHEN in Moscow but shifted to what was considered an operationally “soft” EU country when it was judged too compromising for him to travel to the Russian capital.

13 December

1. We reported previously (2016/135 and /136) on secret meeting/s held in Prague, Czech Republic in August 2016 between then Republican presidential candidate Donald TRUMP’s representative, Michael COHEN and his interlocutors from the Kremlin working under cover of Russian ‘NGO’ Rossotrudnichestvo.

2. [two lines redacted] provided further details of these meeting/s and associated anti- CLINTON/Democratic Party operations. COHEN had been accompanied to Prague by 3 colleagues and the timing of the visit was either in the last week of August or the first week of September. One of their main Russian interlocutors was Oleg SOLODUKHIN operating under Rossotrudnichestvo cover. According to [redacted] the agenda comprised questions on how deniable cash payments were to be made to hackers who had worked in Europe under Kremlin direction against the CLINTON campaign and various contingencies for covering up these operations and Moscow’s secret liaison with the TRUMP team more generally.

3. [redacted] reported that over the period March-September 2016 a company called XBT/Webzilla and its affiliates had been using botnets and porn traffic to transmit viruses, plant bugs, steal data and conduct “altering operations” against the Democratic Party leadership. Entities linked to one Aleksei GUBAROV were involved and he and another hacking expert, both recruited under duress by the FSB, Seva KAPSUGOVICH, were significant players in this operation. In Prague, COHEN agreed contingency plans for various scenarios to protect the Operation, but in particular what was to be done in the event that Hillary CLINTON won the presidency. It was important in this event that all cash payments owed were made quickly and discreetly and that cyber and other operators were stood down/able to go effectively to ground to cover their traces. (We reported earlier that the involvement of political operatives Paul MANAFORT and Carter PAGE in the secret TRUMP-Kremlin liaison had been exposed in the media in the run-up to Prague and that damage limitation of these also was discussed by COHEN with the Kremlin representatives).

In terms of practical measures to be taken, it was agreed by the two sides in Prague to stand down various “Romanian hackers” (presumably based in their homeland or neighboring eastern Europe) and that other operatives should head for a bolt-hole in Plovdiv, Bulgaria where they should “lay low”. On payments, IVANOV’s associate said that the operatives involved had been paid by both TRUMP’s team and the Kremlin, though their orders and ultimately loyalty lay with IVANOV, as Head of the PA and thus ultimately responsible for the operation, and his designator successor/s after he was dismissed by president PUTIN in connection with the anti-CLINTON operation in mid August.

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. 

Yevgeniy Prigozhin Continues to Troll Both Online and in the Courts

xkcd comic used under Creative Commons license — available online at https://imgs.xkcd.com/comics/free_speech.png

The trolls are engaging in lawfare again.

For some time, I’ve been fascinated by the way, particularly in the wake of the 2016 election tampering, Russians have engaged in lawfare to score political points against the US. There were the multiple lawsuits pertaining to the Steele dossier. There was Concord Management’s unexpected defense in the Internet Research Agency indictment. Last week, Yevgeniy Prigozhin’s trolls struck again, this time suing Facebook for deleting the account of Federal Agency of News on April 3, 2018.

I’m a bit mystified by this suit. It may be a moonshot bid to learn more about Mueller’s investigation and insinuate that Facebook is an agent of the US government. More likely, it may be as much about pressuring Facebook in Russia as it is about winning reinstatement on Facebook.

Another Prigozhin attempt to use lawfare to embarrass the US government (and their willing partner Facebook!)

As with Concord’s defense, Prigozhin has hired legit American lawyers for the lawfare. But unlike Concord’s defense, it’s not clear how seriously to take this effort. The suit complains, in significant part, that Facebook has deprived FAN of its First Amendment rights.

FAN’s publications and posts on Facebook were the exercise of its constitutionally protected freedom of speech to inform the general public of historical and current events in politics, entertainment and other areas of public interest.

Facebook violated FAN’s First Amendment rights by deleting the contents of FAN’s Facebook Page and blocking FAN’s access to its Facebook account.

Facebook took action against FAN in an effort to silence and deter FAN’s free speech.

Facebook violated FAN’s First Amendment rights solely on account of its and its members’ national origin.

As xkcd famously explained once, that’s not the way the First Amendment works. It only prevents the government from limiting speech. Facebook is a private company, and it can boot whatever users it sees fit. But FAN may be trying to do two things. First, by treating Facebook’s terms of service as a contract, it claims it fulfilled its side of the relationship, but Facebook nevertheless deleted its account.

FAN complied with the terms of the Contract by properly registering with Facebook, paying any fees that were due and complying with all applicable terms of service.

At no time did FAN violate the terms of the contract.

Despite its contractual obligation to provide FAN with access to Facebook. Facebook breached the contract by removing FAN’s Facebook account and blocking FAN’s content without a legitimate reason.

Then, by tying Facebook’s efforts to crack down on Russian trolls to US government efforts to respond to Russia’s 2016 operation, I suspect it is trying to argue that Facebook deleted FAN’s account as an agent of the US government, thereby amounting to a First Amendment violation. The very first section of the complaint’s Background description details, “Facebook and the United States Government Target Russian Websites.” Among other details to substantiate that effort, it cites:

  • The January 2017 Intelligence Community Assessment that described “a close Putin ally with ties to Russian intelligence” funding the Internet Research Agency
  • Former Facebook CISO Alex Stamos’ statements, which went overboard in trying to assure people they were hunting down all Russian influence operations, “even those with very weak signals of a connection and not associated with any known organized effort”
  • Mark Zuckerberg’s comments that Facebook was “actively working with the U.S. government on its ongoing investigations into Russian interference”

As the lawsuit lays out, when Facebook removed FAN’s account in April, both Stamos and Zuck said they were doing so solely because FAN was controlled by the Internet Research Association.

All that said, it’s still highly unlikely this will work. I’m not sure if any of the CA-specific complaints will either, but like I said, this is a moonshot.

Prigozhin’s corporate laundromat

To make the argument at all, of course, FAN has to dismiss the presumed and explicit reasons Facebook banned them, starting with the accusation that they’re tied to IRA. In part, that involves claiming that IRA was disbanded in 2016.

Upon information and belief, the IRA was liquidated on or about December 28, 2016.

It also describes the new digs FAN got in 2015, after cohabiting with IRA for a year.

At the time of FAN’s incorporation and until in or about the middle of 2015, FAN and the IRA were located in the same building at 55A Savushkina Street, Saint Petersburg, the Russian Federation, 197183.

In or about the beginning of 2015, FAN searched for new premises that would be more convenient for its business with regard to a larger space for the office premises. On July 1, 2015, FAN moved to a business center at 23J Krasnogvardeiskiy Lane, Saint Petersburg, 197342.

But it also involves denying claims made in the complaint against Elena Alekseevna Khusyaynova that was filed in September but not unsealed until October, events that post-dated Facebook’s banning of FAN by over five months. In that complaint, FBI Agent David Holt had alleged that FAN was one of the entities that helped obscure Project Lakhta’s disinformation efforts.

Beginning in or around mid-2014 and continuing to the present, Project Lakhta obscured its conduct by operating through a number of Russian entities, including Internet Research Agency LLC (“IRA”), Internet Research LLC, MediaSintez LLC, GlavSet LLC, MixInfo LLC, Azimut LLC, NovInfo LLC, Nevskiy News LLC (a/k/a “NevNov”), Economy Today LLC, National News LLC, Federal News Agency LLC (a/k/a “FAN”), and International News Agency (a/k/a “MAN”).

The complaint claims FAN has nothing to do with these efforts, in part by denying (correctly, by all public accounts) that Lakhta is a legal entity.

FAN has no knowledge of “Project Lakhta”. There is no known business or other organization in the Russian Federation that operates under such name. To the extent it is some sort of informal organization, FAN is unaware of its membership, goals or methods of operation.

FAN is not an entity within “Project Lakhta” and has no relationship with “Project Lakhta”, the IRA or GlavSet. To the contrary, FAN is a news gathering and dissemination organization. In that capacity, FAN gathers news from conventional sources and adheres to journalistic standards in its operations.

Denying any tie to IRA and Lakhta, however, also involves making claims about Khusyaynova that directly conflict with the claims in the complaint. Khusyaynova, the lawsuit claims, is FAN’s accountant, but that’s the only place she works.

Ms. Khusyaynova has been FAN’s chief accountant since at least August 2, 2016. As such, Ms. Khusyaynova has been involved in FAN’s day-to-day accounting operations, including the purchase of office equipment and furniture and payments for advertising or other business contracts as assigned by Mr. Zubarev in his capacity as the General Director of FAN.

As the Chief Accountant, Ms. Khusyaynova’s duties are akin to those of a bookkeeper in the United States. She is not an officer of FAN, does not exercise discretionary authority over the editorial content of FAN’s publications and is not aware of what stories are going to be published or not published.

To the best of FAN’s knowledge, Ms. Khusyaynova’s sole employment is with FAN. In fact, she has explicitly stated that FAN is her sole employer and that she does not provide any services to any other entity and denies any involvement with “Project Lakhta”.

FAN has no reason to believe that Ms. Khusyaynova or any of its employees were providing services to another entity, much less to an entity under the umbrella of “Project Lakhta”.

And it’s not just Khusyaynova about whom FAN must make claims that dispute those made by the US government. The complaint does the same of Aleksandra Yurievna Krylova, who was accused in the IRA indictment of planning and carrying out an intelligence gathering trip to the US in 2014.

Defendant ALEKSANDRA YURYEVNA KRYLOVA (Крылова Александра Юрьевна) worked for the ORGANIZATION from at least in or around September 2013 to at least in or around November 2014. By approximately April 2014, KRYLOVA served as director and was the ORGANIZATION’s third-highest ranking employee. In 2014, KRYLOVA traveled to the United States under false pretenses for the purpose of collecting intelligence to inform the ORGANIZATION’s operations.

[snip]

Only KRYLOVA and BOGACHEVA received visas, and from approximately June 4, 2014 through June 26, 2014, KRYLOVA and BOGACHEVA traveled in and around the United States, including stops in Nevada, California, New Mexico, Colorado, Illinois, Michigan, Louisiana, Texas, and New York to gather intelligence. After the trip, KRYLOVA and BURCHIK exchanged an intelligence report regarding the trip.

Here, the lawsuit has a bit more difficulty just dismissing ties. It admits that Krylova was the founder and first director of FAN, but in that passage of the lawsuit declines to mention when that was.

The founder and first General Director of FAN was Aleksandra Yurievna Krylova. The Special Counsel has alleged that Krylova was an employee of the IRA from in or around September 2013 to in or around November 2014. FAN has no knowledge of this allegation and therefore does not know if it is accurate or not.

But as the lawsuit admits elsewhere, FAN was incorporated on May 22, 2014.

On May 22, 2014, FAN was incorporated in order to satisfy public needs of Russian and foreign legal entities and individuals by way of gathering, transmitting and supplying domestic and international news reports and other publications of public interest.

So at the time Krylova traveled to the US (while hiding her true purpose, thereby committing visa fraud), she had just recently formed FAN.

All this is no big deal, the lawsuit suggests, because FAN doesn’t know anything about it and besides it has been a long time.

Anna Vitalyevna Botneva succeeded Krylova as General Director of FAN, on November 17, 2014, and on December 24, 2014, Krylova sold 100% of the company’s shares to Botneva.

[snip]

At the time of Ms. Krylova’s indictment, she had no connection with FAN for more than three years.

At the time of Krylova’s indictment, of course, she also had had no connection with IRA for the same length of time.

FAN is silent about how long Botneva ran the show and how long she remained the sole shareholder. What it does make clear is that Evgeniy Lvovich Zubarev — the guy who’s being fronted as a plaintiff and the one who presumably would be asked to claim to have ignorance of IRA’s ties to FAN and Khusyaynova’s day job — became the sole shareholder last year.

Since August 2, 2016, Evgeniy Lvovich Zubarev has been the General Director of FAN, and since April 5, 2017, he has been the sole shareholder of the company.

In preparation of the Concord Management challenge of the IRA indictment, Prigozhin got himself named the director, which would give him the opportunity to claim to need to review discovery. This feels like the opposite: the creation of a figurehead who can claim to be dumb and dissociated from Prigozhin’s other efforts.

I highly doubt this well get very far (in part, because FAN would have to provide better proof than it has provided that these things are true).

A set-up to claim Facebook is conducting influence operations in Russia

Which finally brings us to where I think this is going. A First Amendment claim here in the US is unlikely to get anywhere, though it does give Russian propagandists an opportunity to claim Russia is being deplatformed by American social media along with the Nazis and terrorists.

But how Russia will use this argument within Russia is another matter. The lawsuit describes its injury, in part, in terms of a loss of access in Russia.

As of October 2018, FAN is ranked among the Top 35 most visited websites in Russia by LiveInternet, one of the largest Russian internet blogging platforms; among the Top 20 by Mail.ru, a Russian internet company which reaches approximately 86% of Russian internet users per month; and among the Top 25 by Rambler, a Russian search engine and one of the biggest Russian web portals.

Many of FAN’s subscribers are also Facebook users who for at least the past four years were able to access FAN through Facebook and who did, in fact, access FAN through Facebook.

That is, FAN is making an argument that it has lost Russian readers, not just American ones, because of Facebook’s actions.

And, in the last line of the introduction, the lawsuit uses language that (I could imagine) Russia might use in the future to accuse Facebook of conducting its own influence operations.

Facebook seeks to dictate news content based upon its own political view point thereby attempting to influence the public media coverage of internal political events in the Russian Federation.

After laying out a claim that Facebook was acting as an agent of the US government in cutting off trolls, it ends with a suggestion that Facebook’s real goal here is to influence “internal political events” within Russia.

That, I suspect, is the real purpose of this effort, setting up a future attack against Facebook operating in Russia.

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.

No, Mueller Probably Didn’t Subpoena Trump, Yet

Nelson Cunningham, who has far better legal qualifications than I do but who, as far as I’ve seen, has written very little on the Mueller investigation has taken Politico’s very good reporting on a second appeal involving the Mueller inquiry and started a parlor game among people convinced this means Trump got a subpoena. Jay Sekulow has already denied the report.

Cunningham bases his argument on the following observations, along with the observation that the initial court filings came the day after Rudy Giuliani announced he had completed writing a challenge to an as yet unserved subpoena:

  • The parties and the judges have moved with unusual alacrity. Parties normally have 30 days to appeal a lower court action. The witness here appealed just five days after losing in the district court – and three days later filed a motion before the appellate court to stay the district court’s order. That’s fast.
  • The appeals court itself responded with remarkable speed, too. One day after getting the witness’s motion, the court gave the special counsel just three days to respond – blindingly short as appellate proceedings go. The special counsel’s papers were filed October 1.
  • At this point an unspecified procedural flaw seems to have emerged, and on October 3, the appeals court dismissed the appeal. Just two days later, the lower court judge cured the flaw, the witness re-appealed, and by October 10 the witness was once again before appellate court. Thanks to very quick action of all the judges, less than one week was lost due to a flaw that, in other cases, could have taken weeks or months to resolve.
  • Back before the D.C. Circuit, this case’s very special handling continued. On October 10, the day the case returned to the court, the parties filed a motion for expedited handling, and within two days, the judges had granted their motion and set an accelerated briefing schedule. The witness was given just 11 days to file briefs; the special counsel (presumably) just two weeks to respond; and reply papers one week later, on November 14 (for those paying attention, that’s 8 days after the midterm elections). Oral arguments are set for December 14.

I suspect the subpoena — if that’s what this is — is either for a White House figure (John Kelly or Don McGahn might be possibilities), a lawyer (Trump Organization lawyers Alan Garten and Alan Futerfas both had non-privileged conversations about the pushback on the June 9 meeting, as did Agalarov lawyer Scott Balber), or a journalist (Chuck Johnson and Lee Stranahan have denied having been contacted by Mueller; Hannity would be another possibility).

I’ve laid out the underlying timeline, below. There are three dockets involved in the mystery challenge: 18-gj-41-BAH, which is sealed, and 18-3068 and 18-3071 before the DC Circuit. For point of comparison, I’ve included Andrew Miller’s appeal of a grand jury subpoena in the timeline (which Cunningham doesn’t mention at all), in italics, as well; those docket numbers are 18-gj-34-BAH and 18-3052. I’ve also included some key public reports that Cunningham doesn’t mention that provide key context.

Miller’s docket easily disproves one of Cunningham’s arguments: that the appeal itself was very quick. Miller, like the mystery challenger, both filed their appeal within days (suggesting that timing came from Beryl Howell, not the appellants). With Miller, there was a pause to litigate the issue of Concord Management’s status, but that pause was litigated on the same accelerated schedule as the jurisdictional issue for the mystery appellant. With the mystery appellant, there appeared to be some slam dunk procedural issue for why the Circuit did not yet have jurisdiction. It was suggested to me that the mystery person may not have taken the legal step of being held in contempt before appealing, as Miller did, which would explain the quick jurisdictional response for the mystery challenger.

Miller’s docket also shows that the results of motion to expedite aren’t that dramatic. With no expedited schedule, Miller’s initial schedule (including the Concord litigation) provided him 24 days for his opening brief, gave Mueller 16 days to respond, and Miller 5 days to reply, with 41 days for the Circuit to consider the appeal or a total of 85 days after the filing. As Cunningham notes, the mystery appellant got just 11 days to file the initial brief, Mueller got two weeks to respond, and the mystery appellant got 7 days to reply. The Circuit gave themselves a month to consider the appeal, or a total of 65 days from second appeal. But that works out to be 81 days from the initial September 24 appeal, about the same amount of time as Miller’s appeal. The expedited time here mostly came out of the appellant’s time for the initial brief and the Circuit consideration (which might be a fair outcome given the appeal without jurisdiction); Mueller’s schedule remains roughly similar. It has been suggested that the mystery appellant’s decision to appeal in spite of that procedural flaw may have provided more urgency for the appeal (for example, if Howell had not stayed contempt for the mystery appellant, then the risk of jailing would be greater than it would be for Miller, for whom she stayed the contempt).

Finally, Cunningham doesn’t consider something else in the public record. On October 11, right in the middle of this litigation, CNN revealed that Mueller had given Trump — and Trump was working on — a set of questions pertaining to conspiracy. The other day, Bloomberg reported that Trump had finished answers to that question, but was withholding them pending the outcome of the election. It’s possible that the White House would voluntarily answer questions on conspiracy while litigating a subpoena for testimony on obstruction. Perhaps they would adopt that approach if their subpoena challenge pertains exclusively to actions Trump took as President, and if that were the case, that might explain the real reason Rudy was stalling on returning the answers, to see if the subpoena challenge worked. If that were the case, though, he would have to invent new reasons to explain the delay from November 6 past December 14, when the case will be heard (and he has promised to appeal any subpoena to SCOTUS). Alternately, Rudy could be stalling on the answers to await the appeal and using the election as his excuse just to avoid making this appeal public before the election.

One other thing that might support Cunningham’s argument that he doesn’t raise is Brett Kavanaugh’s confirmation on October 6. Having confirmed Kavanaugh might explain the decision to ask for en banc consideration of what is probably a slam dunk procedural issue, in hopes of short circuiting the route to SCOTUS. But everyone in this investigation, including Yevgeniy Prigozhin’s team, have tailored their actions to Kavanaugh’s presence on SCOTUS since even before he was confirmed.

Still, I think all that less likely than other explanations, not least because this White House has never kept things like this secret, nor would they if they could use it to argue that Trump needs a good electoral turnout to keep him safe, legally.

I’m at least as intrigued by the way the timeline overlaps with Don McGahn’s last big press push, around the same time as the initial filing before Beryl Howell. A lawyer like McGahn would also have reason to want to avoid the jurisdictional step of being held in contempt (indeed, if he had been held in contempt, it might explain one reason for the urgency of the appeal). It’s also one possible explanation for why someone would skip that step — another being that whoever is making this challenge is even less well-lawyered than Miller. Finally, if it were McGahn appealing a grand jury subpoena, Katsas’ recusal would be a no-brainer (though he has said he would recuse more generally).

There are, still, plenty of other possibilities, though. And Cunningham’s case is nowhere near as strong as suggested once you compare it with what happened with the relatively anonymous, powerless Andrew Miller challenge in the very same matter.

Timeline

6/13/2018: Date filed (18-gj-34-BAH) [For more on Miller’s stalling, since May 10, on this subpoena, see this post]

7/6/2018: Report that Emmet Flood had been contesting Mueller request for John Kelly testimony for a month

8/10/2018: Date of judgment (18-gj-34-BAH)

8/14/2018: Notice of appeal (18-3052)

8/15/2018: Clerks order to file initial submissions on 8/30/2018 (18-3052)

8/16/2018: Per curium order setting briefing Appellant 9/7/2018, Appellee 9/23/2018, Reply 9/28/2018  (18-3052)

8/15/2018: Rudy Giuliani states, “we’re pretty much finished with our memorandum opposing a subpoena”

8/16/2018: Date filed (18-gj-41-BAH)

8/18/2018: NYT story describing third Don McGahn interview claiming unprecedented cooperation for a White House Counsel

8/30/2018 : Statement of issues (18-3052)

8/30/2018: Motion to extend time to file to 9/10/2018  (18-3052)

9/10/2018: Motion to extend time to file to 9/11/2018  (18-3052)

9/12/2018: Appellant brief submitted; Length of Brief: 10,869 Words (18-3052)

9/19/2018: Date of judgment (18-gj-41-BAH)

9/24/2018: Notice  of appeal  (18-3068)

9/27/2018: Motion to stay underlying appeal  (18-3068)

9/28/2018: Per curium order directing response from Mueller (18-3068)

9/28/2018: Appellee brief submitted  (18-3052)

10/01/2018: Mueller response in opposition (18-3068)

10/01/2018: Appellant response  (18-3068)

10/03/2018: Per curium order dismissing case for lack of jurisdiction  (18-3068)

10/05/2018: Date of order  (18-gj-41-BAH)

10/05/2018: Petition for re-hearing en banc  (18-3068)

10/6/2018: Brett Kavanaugh confirmed

10/09/2018: Appellant brief submitted (18-3052)

10/09/2018: Notice of appeal (18-3071)

10/10/2018: Appeal docketed (18-3071)

10/10/2018: Joint motion to expedite  (18-3071)

10/11/2018: Report that Trump preparing answers to Mueller’s questions about conspiracy with Russia

10/12/2018: Per curium order granting motion to expedite Appellant 10/23/2018, Appellee 11/07/2018, Reply 11/14/2018:  (18-3071)

10/22/2018: Hearing scheduled for 12/14/201 (18-3071)

10/22/2018: Appellant brief submitted; Length of Brief: 12904 words (18-3071)

10/24/2018: Per curium order denying re-hearing en banc (with Greg Katsas recused) (18-3068)

10/29/2018: Rudy Giuliani states legal team has prepared written responses to several dozen questions from Special Counsel Robert Mueller but say they won’t submit them until after next week’s elections and only if they reach a broader agreement with Mueller on terms for the questioning

11/8/2018: Hearing scheduled (85 days after filing)

12/14/2018: Hearing scheduled (65 days after filing) (18-3071)

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.

Spy versus Spy: The Two Alleged Agents of Foreign Powers Sitting in the Alexandria Jail, Part Two (Mariia)

In this post, I laid out the difference between two laws criminalizing foreign agents of influence, 22 USC 611 et seq. (FARA) and 18 USC 951. Paul Manafort is charged with the former; Rick Gates, Mike Flynn, and Sam Patten have also all pled guilty to FARA related crimes; Mariia Butina is accused of the latter.

I think, particularly as Mueller’s investigation begins to put real teeth in FARA (and as nation-state spying hides under new kinds of cover and funding arrangements), the border between the two crimes will become increasingly tenuous. A comparison of Butina and Manafort shows some of the ways that’s clear.

Butina’s lawyer pitches her actions as lobbying

In response to her charges, her attorney Robert Driscoll has repeatedly denied she’s an agent of Russia, not by denying she did what Aleksandr Torshin instructed her to, but by claiming that hers is just a regulatory filing case.

“This is not an espionage case, this is not a spy case, this is a regulatory filing case,” in which Butina didn’t file the correct paperwork with the Justice Department, Driscoll told Robnson in arguing why she should be freed pending trial.

“She’s not an agent of the Russian Federation,” Driscoll told reporters after the hearing.

In a bid to overturn Magistrate Deborah Robinson’s decision to deny Butina bail, Driscoll minimizes the Russian’s activities as “going to dinners among intellectuals and foreign policy wonks to discuss U.S.-Russia relations, attending two National Prayer Breakfasts, and booking hotel rooms at the Washington Hilton, if true, is anything but an ‘obvious’ danger to the public.” He argues, “the allegations do not involve spying, tradecraft, classified information, or any other hallmarks of an espionage case.” To rebut any claim of covert operation, Driscoll points to the fact that one of the actions in her indictment — a dinner hosted by her unindicted co-conspirator, George O’Neill, just after the National Prayer Breakfast — was hosted by O’Neill and written up in the press (one of two stories he cited was written by O’Neill).

She is accused of arranging dinners to promote better relations between Russia and the United States although the very dinner that is listed as a predicate act for her alleged crimes was written about in Time Magazine and the American Conservative—hardly covert activity—and, in actuality, was initiated, organized, and directed by an American citizen, not the Russian government.3

He argues that the government charged Butina with section 951 as a tactical move, to make it easier to prosecute political activity (I’m not a lawyer, but I’m virtually certain he mis-states what the materials say about exempting political activity, not least because, per other materials, section 611 can be a subset of a section 951 violation).

To distract from the frailty of its charges, the government reprises that Ms. Butina is charged under section 951 and not FARA. However, that charging decision alone contradicts the Justice Department’s own policies, and perhaps was made as an attempt to aggrandize her conduct and mischaracterize her innocent political interest as nefarious.

That is, the Department of Justice (“DOJ”) Criminal Resource Manual makes a distinction between section 951 and a FARA violation. It describes FARA under section 611 et seq. as requiring an agent of a foreign principal engaged in political activities to register. See U.S. Dep’t of Justice, United States Attorneys’ Manual 9-90.700 and 9-90.701; and see Criminal Resource Manual at 2062. It also discusses other federal statutes like section 951, which is “aimed at persons loosely called foreign agents” but specifically exempts section 951 from applying to “foreign agents engaged in political activities.” Id. In plain English, DOJ further notes among frequently asked questions that section 951 is only “aimed at foreign government controlled agents engaged in non-political activities.”5

The government’s April, 2018 search warrant sought evidence of a potential violation under FARA.

[snip]

[A]lthough such allegations are unfounded and untrue, and although the government’s searches revealed no hidden transmitters, wads of cash, counterfeit passports, and plane tickets back to Moscow, the government still decided to paper a case against Ms. Butina under section 951. This decision shows that the government desired to overcharge and inflate her conduct for tactical advantages versus act with restraint or, at a minimum, be consistent with the DOJ and National Security Division’s own publicized understanding of appropriate charges.

And Driscoll doesn’t even concede she violated FARA.

[F]or reasons only it is aware, the government has charged Ms. Butina under 18 U.S.C. § 951 rather than the Foreign Agent Registration Act (“FARA”), 22 U.S.C. § 611 et seq., which generally carries civil penalties and much less severe criminal penalties (for circumstances far more egregious than the facts alleged here). Much like a FARA case, the government does not allege that Ms. Butina undertook any independently illegal activities in the United States. The only thing that made her alleged conduct illegal, if true, is that she did not notify the Attorney General prior to undertaking it.

[snip]

At bottom, the government’s case appears to be a novel attempt to stretch 18 U.S.C. § 951 to cover the activities of a foreign national student under the theory that her communications (about non-classified public source material) with contacts in her home country made her an “agent” of that country. The serious charges against her should be viewed in that context, which makes this case distinctly different from a typical section 951, “espionage-like or clandestine behavior” case.4

The lobbying included in Butina’s alleged crimes

To some extent, Driscoll is right: the government’s description of the allegations against Butina does focus closely on activity that might fall under FARA’s political activities (though, as noted, he cites a DOJ statement that suggests sections 611 and 951 are mutually exclusive, when by my understanding sections 611 can be a part of 951).

Many of the activities Butina is alleged to have done involve things that might be classified as lobbying. In her arrest affidavit, DOJ describes how Butina, with help from Paul Erickson, identified a network of influential Americans, including the NRA, to whom she could pitch closer relations with Russia. George O’Neill helped Butina set up a series of “friendship and dialogue” dinners. A number of her activities, such a publishing an article in The National Interest, are precisely the kinds of things FARA attempts to provide transparency on. This is where Driscoll gets his claim that Butina only “arrang[ed] dinners to promote better relations between Russia and the United States.”

Butina was directed by Aleksandr Torshin

A number of the allegations would support either a FARA or 951 violation.

The affidavit makes it clear she was following the directions of Aleksandr Torshin, the Deputy Governor of Russia’s Central Bank and as such an official representative of the government.

On the night of the election, for example, she asked for orders from Torshin, “I’m going to sleep. It’s 3 am here. I am ready for further orders.” The two moved to WhatsApp out of Torshin’s concern “all our phones are being listened to.” It’s clear, too, she and Torshin were hiding the role of the Russian government behind her actions. When she sent a report on a conference to establish a dialogue with US politicians, she said it “must be presented as a private initiative, not a government undertaking.”

The government even presented proof that Butina’s actions were approved by people close to Putin himself.

On March 14, 2016, Butina wrote O’Neill that what DOJ calls a  “representative of the Russian Presidential administration” had expressed approval “for building this communication channel,” suggesting she and Torshin had direct approval from Putin. “All we needed is <<yes>> from Putin’s side,” Butina explained to O’Neill.

With one exception, Driscoll largely offers bullshit in response to the government’s evidence she operated as a Russian government agent (indeed, his recognition that Butin advertised being Torshin’s special assistant on one of her business cards confirms that she continued to work for Torshin). He includes a letter of grad school recommendation for Butina for Columbia as proof of … it’s not clear what, particularly since Torshin includes his government affiliation on the letter.

Still: Paul Manafort was operating on behalf of a foreign government while Viktor Yanukovych remained in power, yet DOJ charged him with FARA, not section 951. The bar to meet foreignness under FARA is broader than it is under section 951, but lobbying for a foreign government can be sufficient to it. Yet Butina got charged under section 951, not FARA.

Paid by an oligarch

The exception to my claim that Driscoll offers little to rebut (in court filings — his statements to the press are another issue) that Butina was directed by the Russian government is the issue of her funding, which the government notes comes from an oligarch that Butina identified to the Senate Intelligence Committee as Konstantin Nikolaev.

Her Twitter messages, chat logs, and emails refer to a known Russian businessman with deep ties to the Russian Presidential Administration. This person often travels to the United States and has also been referred to as her “funder” throughout her correspondence; he was listed in Forbes as having a real-time net worth of $1.2 billion as of 2018. Immediately prior to her first trip to the United States in late 2014, Butina engaged in a series of text messages with a different wealthy Russian businessman regarding budgets for her trip to the United States and meetings with the aforementioned “funder.”

Driscoll points to this to disclaim a tie between her and the Russian state.

[T]he Russian Federation did not pay for her travel to the United States, her tuition, her living expenses, or make any payments to her at all.

This is actually an interesting point, because while FARA requires only that a person be working as an agent of a foreign principal (which might include, for example, an oligarch), section 951 requires that the agent be working on behalf of a foreign government. Butina no doubt still qualifies, given her tie to Torshin.

But particularly when comparing Manafort and Butina, both of whom worked at the border between laundered oligarch cash and government officials, the detail is of particular interest. If Russia outsources its intelligence operations to oligarchs (the Internet Research Agency’s Yevgeniy Prigozhin is another example), will that intelligence still qualify as spying under section 951?

In any case, thus far, the allegations against Butina and Manafort are fairly similar: both were hiding the fact that their political activities were backed by, and done in the interest of, Russian or Russian-backed entities.

The evidence for covert action

One area where Butina may go further than Manafort (at least for his pre-election work) is in the means by which she was trying to hide her work.

In spite of the great deal of publicity Butina made of her own actions — with all the pictures of her and powerful Republican men — the government affidavit also described Butina trying to set up (in her words) a “back channel” of communication with influential Americans.  On October 4, 2016, Erickson emailed a friend admitting he had “been involved in security a VERY private line of communication between the Kremlin and key [Republican] leaders through, of all conduits, the [NRA]. The affidavit describes Butina telling Torshin that her Russia-USA friendship society” is “currently ‘underground’ both here and there.” When discussing the list of delegates to the 2017 National Prayer Breakfast with Erickson in late November, she said the attendees were seeking to establish a “back channel of communication.”

Manafort was trying to hide that the lobbying he paid for was done for Yanukovych’s benefit, but there’s no allegation his pre-election work aimed to set up a secret channel of communication between Yanukovych and Congress.

Of particular interest, given the parallel efforts on voter suppression from Roger Stone and the Russians, Butina floated serving as an election observer. Torshin argued that “the risk of provocation is too high and the ‘media hype’ which comes after it.” But Butina argued she’d only do it incognito.

The honey pot claim

Then there’s the specific government insinuation that Butina was engaged in a honey pot operation. It substantiates this two ways — first, by suggesting she’s not that into Erickson.

Further, in papers seized by the FBI, Butina complained about living with U.S. Person 1 and expressed disdain for continuing to cohabitate with U.S. Person 1.

It also alleges she offered sex for favors.

For example, on at least one occasion, Butina offered an individual other than U.S. Person 1 sex in exchange for a position within a special interest organization.

Driscoll pretty convincingly argues the government misinterpreted this last bit.

The only evidence the government relied on for its explosive claim was an excerpt from an innocuous three-year-old text exchange (attached as Exhibit 3) sent in Russia between Ms. Butina and DK, her longtime friend, assistant, and public relations man for The Right to Bear Arms gun rights group that she founded.

DK, who often drove Ms. Butina’s car and thus was listed on the insurance, took the car for its annual government-required inspection and insurance renewal, and upon completion, texted (according to government translators), “I don’t know what you owe me for this insurance they put me through the wringer.” Ms. Butina jokingly replied, “Sex. Thank you so much. I have nothing else at all. Not a nickel to my name.” DK responded: “Ugh . . . ( ”—that is, with a sad face emoticon.

Aside from the fact that Maria is friends with DK’s wife and child and treats DK like a brother, the reference to sex is clearly a joke.

We still haven’t seen the government response to this, but what Driscoll presents does support his claim this is a “sexist smear.”

But Driscoll’s dismissal of the other claim — that Butina disdained living with Erickson — is far less convincing.

[I]n response to her girlfriend’s own complaints about her boyfriend’s failure to call in three weeks (accompanied by an angry face emoji) that Maria responds that her own boyfriend (Mr. Erickson) has been “bugging the sh*t out of me with his mom” and that she has “a feeling that I am residing in a nursing home.” “Send a link to the dating app[,]”

Driscoll spins this as an attack on Erickson’s now late mother, but doesn’t address the central allegation that she likened living with her much older boyfriend to living in a nursing home. Nor that she started the exchange by saying “let’s go have some fun with guys!!!” because she was “Bored. So there.” Furthermore, Butina seemed concerned that her use of Tinder would become public because she logged in using Facebook.

Though he has been sharing schmaltzy videos of Butina and Erickson with ABC, Driscoll also doesn’t address the fact that as early as May, Butina was proffering to flip on Erickson in fraud charges in South Dakota, which would have the effect of putting her in a position to negotiate permanent visa status independent of him, while limiting her own legal exposure.

A student visa or tourist one?

One key distinction between Manafort and Butina stems from the fact that she’s not a citizen.

The government’s detention motion also notes that Butina “use[d] deceit in a visa application.” They describe her attendance at American University as her cover, one she chose after rejecting carrying out the operation on tourist visas.

Butina chose a student visa from a range of options for her ultimate application, but not before a lengthy discussion of the risks associated with traveling to the United States repeatedly on a tourist visa. The FBI has discovered text messages and emails between U.S. Person 1 and Butina in which Butina would routinely ask U.S. Person 1 to help complete her academic assignments, by editing papers and answering exam questions. In other words, although she attended classes and completed coursework with outside help, attending American University was Butina’s cover while she continued to work on behalf of the Russian Official.

The government also notes that Butina claimed she was no longer employed by Torshin on her visa application. It points to her visa fraud as additional support that she did not intend to register as required by the law.

Butina entered the United States with the express purpose of working as part of a covert Russian influence campaign and did not disclose that fact—not on her visa application and not to the Attorney General.

Driscoll offers a narrow (and to my mind, unconvincing) defense, arguing the government hasn’t shown proof she lied on her form, when the claim is, instead, that intercepts show she applied for a student visa over a tourist visa because of the immigration advantages it offers.

[T]he government has also failed to provide any evidence to support its claim that Maria affirmatively lied on her application for a student visa should give this Court pause.

To be clear: this doesn’t mean Americans can’t be charged under section 951. In June, for example, DOJ charged Ron Rockwell Hansen under section 951 for spying for China.

But because Butina had to find a way to get and stay in the US, she had to game out the best way to do so, and that adds to the evidence that her entire purpose for being in the US is to push Russian policies. That is, it may be easier to charge a foreigner under section 951 because it often involves lying on visa forms.

Ongoing ties with Russian intelligence

Finally, there are ties with spooks.

The government alleges that Butina had ongoing ties with the Russian intelligence agencies, including a private meal with a suspected Russian intelligence operator, Oleg Zhiganov (whom Driscoll identified, to the government’s displeasure, to Politico).

FBI surveillance observed Butina in the company of a Russian diplomat in the weeks leading up to that official’s departure from the United States in March 2018. That Russian diplomat, with whom Butina was sharing a private meal, was suspected by the United States Government of being a Russian intelligence officer.

The government also cites from pointed to a conversation where Torshin likened Butina to Anna Chapman (see below) and argued that showed that Torshin treated her a covert spy. The government further points to a document suggesting she considered a job with FSB (though remains murky about other evidence that supports the claim).

Another document uncovered during the execution of a search warrant contained a hand-written note, entitled “Maria’s ‘Russian Patriots In-Waiting’ Organization,” and asking “How to respond to FSB offer of employment?” Based on this and other evidence, the FBI believes that the defendant was likely in contact with the FSB throughout her stay in the United States.

That said, the government also alleges that Manafort has had ongoing ties with Russian intelligence, in the form of Konstantin Kiliminik. So it’s not like ties to intelligence officers by itself merits a section 951 charge.

Recruiting assets

I suspect a key feature that may distinguish Butina from Manafort is that she had two Americans, Erickson and O’Neill, working with her. There’s even the allegation that she was seeking out time with JD Gordon in the lead-up to the election, suggesting she may have been recruiting assets within the new administration, an action akin to a formal spook. That is, she seems to have been recruiting agents.

That’s different from Manafort, employing a bunch of lobbyists (even while hiding some aspects of those engagements), because Manafort was hiring established professionals (or former European government officials).

I guess one question I have is whether the awareness of the recruitment targets is different.

Flight risk

While it matters little for the distinction between FARA and section 951, Driscoll suggests the fact that Butina hasn’t fled yet — notably did not in response to a report on her work — is proof she’s not an agent.

First, in February, 2017, the Daily Beast published an article about Maria, her connection to Aleksandr Torshin, her love of guns, and her activities in the United States, essentially alleging that her purpose in the United States might be to “infiltrate” American conservative political groups.13 If the government’s fanciful theory were correct, almost 18 month ago, Maria Butina was exposed, her handler identified, and her purpose in the United States published on the internet. She did not flee, visit the Russian Embassy, or make any effort to change her status as a student.

Curiously, he doesn’t address an intercept excerpted in the government’s detention motion, suggesting that in March 2017 there was an order against arresting her.

Specifically, in March 2017, after a series of media articles were published about Butina, the following conversation ensued:

Russian Official: Good morning! How are you faring there in the rays of the new fame?[] Are your admirers asking for your autographs yet? You have upstaged Anna Chapman. She poses with toy pistols, while you are being published with real ones. There are a hell of a lot of rumors circulating here about me too! Very funny!

[snip]

Butina: It’s the other thing that is important: evidently, there is an Order not to touch us. I believe it is a good sign.

Russian Official: For now – yes, but should things shift, then we are guaranteed a spot on the list of ‘agents of influence.” . . .

But as I noted, Butina’s flight risk would remain the same regardless of whether she had been charged with FARA or section 951.

Why Maria and not Manafort (yet)?

All of which raises a series of questions about what might distinguish Butina from Manafort:

  • How important is citizenship in this? And would dual citizenship — dual Russian Federation and US — change that? The government’s reliance on Butina’s alleged visa fraud would (and in other 951 cases has) have important repercussions for any subjects of the investigation who lied but have since obtained US citizenship.
  • Does who is paying for a person’s defense matter? Driscoll won’t say who is paying his bills, but neither do we know who is funding Manafort’s (thus far) much more expensive defense. In similar cases (such as Evgeny Buryakov, one of the spies who recruited Carter Page), the government filed for a Curcio hearing to make sure a person’s lawyer wasn’t representing the interests of the people paying his bills rather than the defendant, but in so doing proved that Buryakov was not a government agent. If a close Putin ally is paying for Manafort’s defense, does that change the calculus of who he’s working for?
  • At what point would obtaining useful information on political process in the US count as collecting intelligence? Manafort knows US politics better than almost anyone — he doesn’t need to recruit a source to learn that. Butina did. Does recruiting Erickson to learn about US politics amount to collecting intelligence?
  • Is beefed up FARA enforcement the proper tool to combat foreign influence operations, or is section 951, absent more covert operations, the way to go after foreign nationals engaging in influence operations?
  • Given how these two crimes might bleed into each other, are prosecutors threatening charges under section 951 to get pleas under FARA?
  • All this analysis is based off stuff Manafort did years ago, going back over a decade. It doesn’t address the stuff he is suspected of doing in during the 2016. For example, if Manafort was reporting back on an active Presidential campaign to Oleg Deripaska via suspected Russian intelligence agent Konstantin Kilimnik, is that a FARA violation, or a section 951 one? He got charged under FARA for his historic work. But I’m not sure his election-related work doesn’t pass the bar for a section 951 charge.

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. 

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.