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Concord Consulting Aims to Make Russian Bots Legal

Remember when they used to say, “they hate us for our freedoms” in the wake of 9/11? The company of Putin’s buddy Yevgeniy Prigozhin is doing the opposite — having a field day with the due process rights his company, Concord Consulting, gets under US law after being charged in the Internet Research Agency indictment.

As I noted, Concord unexpectedly decided to contest its indictment for using Prigozhin’s troll factory to interfere in the 2016 election. Last week it pled not guilty.

In that post, I suggested that the risk posed by the Concord not guilty plea could be deferred, for now, by arguing over a protection order and ensuring that sensitive data be shared under CIA.

[N]either will happen immediately — Mueller’s team will push for a protection order and CIPA process before turning over the requested discovery and defendants almost never get a Bill of Particulars — effectively, Concord signaled its intention to impose real costs on the US government’s use of our criminal justice system to embarrass Russia. They made it clear that one of Putin’s closes allies will be demanding the intelligence behind an indictment naming him and two of his companies. Which is going to pose real discomfort for Mueller’s team (which might explain a bit of their delay here).

Let me clear: Concord is entirely within its right to begin demanding such evidence. That’s the risk of using our criminal justice system, affording due process, in charging a Russian corporate person who can challenge any charges without risking their freedom. I imagine Mueller’s team didn’t sufficiently account for this possibility when charging it this way. And if there are any other known Russian corporations involved in this operation (or fronts, such as the one Joseph Mifsud worked behind), I would imagine Mueller’s team is rethinking their approach to including those fronts. This could be problematic to the extent that proving any “collusion” between Trump’s people and Russians would most easily be demonstrated via conspiracy charges involving Russian entities.

If and when Mueller dismisses the indictment against Concord (but not its 13 paid trolls), it would be an embarrassing PR moment. But the contest thus far only posed a legal risk to any further indictments that relied on corporate entities, which the rest of the Internet Research Agency one does not.

Concord’s latest challenge may pose a greater threat. It requests the judge in the case (which here would be Magistrate Michael Harvey, though Trump appointee Dabney Friedrich is the District judge on the case) to review the grand jury instructions to make sure the prosecutors explained the mens rea required behind the conspiracy to defraud the US charge in the case. It is, as the motion argues, a fairly modest request (the government will argue, rightly, that it asks for grand jury information it is not entitled to, but Concord is asking just for the judge to review it). It’s basically asking the judge to make sure prosecutors explained to the grand jury that they had to find that IRA knew that it was violating US law.

As I noted here, ConFraudUs provides Mueller’s team with a way to argue the abuse of weak parts in our electoral system violates the law, and charging a conspiracy sets up a way to drop in American defendants at a later date. And, as Lawfare laid out in this good legal review of ConFraudUs, ConFraudUs has been used in the electoral context in the past.

Notably for present purposes, §371 has been deployed in the context of election law specifically. The Justice Department’s manual on federal prosecution of election offenses explicitly contemplates bringing charges of conspiracy to defraud based on campaign finance offenses. It explains the theory as follows:

To perform [its] duties, the FEC must receive accurate information from the candidates and political committees that are required to file reports under the Act. A scheme to infuse patently illegal funds into a federal campaign, such as by using conduits or other means calculated to conceal the illegal source of the contribution, thus disrupts and impedes the FEC in the performance of its statutory duties.

Several federal circuit courts have heard cases brought under §371 based on this theory and have not found fault with its application to behavior that may also violate the Federal Election Campaign Act (FECA).

But Concord is arguing the use of ConFraudUs in this case departs from the approach DOJ has previously used to keep foreign influence out of elections (citing cases of Chinese influence peddling under Clinton).

The Court is well aware that heretofore investigations of alleged improper foreign involvement in American elections have been handled by the United States Department of Justice (“DOJ”); specifically the Campaign Finance Task Force created by former Attorney General Reno in 1997, and where the Court worked as a prosecutor from September 1997 to August 1998. Former Attorney General Reno refused to bow to massive political pressure to appoint a special counsel, and instead the Task Force methodically investigated and prosecuted cases through 2000.1 Throughout all of that activity, the DOJ never brought any case like the instant Indictment, that is, an alleged conspiracy by a foreign corporation to “interfere” in a Presidential election by allegedly funding free speech. The obvious reason for this is that no such crime exists in the federal criminal code.

It doesn’t actually prove that use of ConFraudUs in this case would be improper (indeed, after complaining that Janet Reno didn’t appoint a special counsel to investigate funding of Clinton, the motion spends a page complaining about a special counsel in this case). Rather, it argues that the indictment couldn’t charge ConFraudUs because none of the Russians involved knew they had to register with the government before engaging in online trolling (they note they’re going to make similar challenges with respect to other charges in the future).

But violations of the relevant federal campaign laws and foreign agent registration requirements administered by the DOJ and the FEC require the defendant to have acted “willfully,” a word that does not appear anywhere in Count One of the Indictment. See 52 U.S.C. § 30109(d) and 22 U.S.C. § 618(a).

[snip]

Count One of the Indictment appears to be facially invalid because it fails to charge an essential element of the offense of conspiracy to defraud the United States by impairing, obstructing and defeating the functions of the FEC and the DOJ, that is, that the Defendant acted willfully, in this case meaning that Defendant was aware of the FEC and FARA requirements, agreed to violate those requirements, and ultimately acted with intent to violate those requirements.

There’s a two-fold risk here, if Concord is successful (and they could be).

First, there’s a risk that such a ruling would in effect provide foreign corporations more ability to engage in improper election speech than domestic ones. Particularly as social media companies move to require more transparency in online advertising, a foreign company could continue to violate those requirements simply by pleading dumb. Certainly Congress could mandate some kind of transparency on foreign companies and with that require private companies to administer such things. but it wouldn’t be a quick fix.

There’s a more immediate risk, however. The filing claims that this indictment is, “a case that has absolutely nothing to do with any links or coordination between any candidate and the Russian Government.” While it is true that Rod Rosenstein emphasized there was no allegation in the current indictment that any American knowingly conspired with these Russians, there are actually three Trump campaign staffers described in a way in the indictment that may reflect they’re still under investigation. And in its last filing, Concord demanded the communications behind one event — an American holding a sign in front of the White House — that leads me to believe Concord knows that the involvement of this US person is more complex than alleged in the indictment.

With respect to ¶ 12b, identify the “real U.S. person,” identify the specific Defendant or conspirator who communicated with the “real U.S. person,” provide the dates and times of any such communications, identify the Defendant or conspirator who stated “is a leader here and our boss . . . our funder,” and clarify whether it is alleged that any such communications were made on behalf of Defendant Concord.

That is, while Rosenstein said that thus far there are no Americans in this indictment, that doesn’t mean Mueller didn’t have plans to add some at a later date.

But if Concord can get this conspiracy charge thrown out before then, it’s going to undercut any effort to claim the conspiracy that will be critical to substantiating the collusion charge even if Mueller presents clear evidence of an agreement to carry out this trolling.

That doesn’t mean he won’t be able to prove a conspiracy involving a more obvious agreement — such as the Agalarovs offering dirt in exchange for sanction relief (though that would invoke the bribery rules that SCOTUS has significantly reined in).

But for now, the IRA indictment is a test case in a legal theory that will make it fairly easy to show that Republicans engaged in a conspiracy to tamper with the election. Because Mueller named a corporate person, he provided a way for the Russians to otherwise undercut a theory that seems central to the effort to hold Trump and the Russians accountable.

Again, Mueller can likely prove ConFraudUs with other players in the larger conspiracy. But this filing poses an immediate threat of undermining the logic of such an approach before he can charge it.

With the Upcoming Concord Consulting Not Guilty Plea, Russians Continue to Win the Lawfare Hockey Title

Last year, I observed how effective the mostly-Russian (with some assistance from Republicans) lawfare surrounding the Steele dossier had been. Between the Webzilla and Alfa Bank suits against Steele dossier actors (the latter advised by top Republican lawyers at Kirkland & Ellis), they forced out information that would embarrass Democrats and assist Republican efforts to undermine the Russian investigation. Further, the many suits were far more costly than the initial oppo research had been.

As a number of outlets have observed, one of the firms named in the Internet Research Agency indictment, Concord Management and Consulting, is waging similar lawfare in response to that indictment.

Concord is the firm of Yevgeniy Prigozhin, often called Putin’s chef because he’s gotten rich of catering contracts. The indictment claims Concord provided the bulk of the funding for the IRA. It further alleges Concord funds disinformation campaigns not just targeting America, but targeting other countries and domestic Russian audiences.

Beginning as early as 2014, Defendant ORGANIZATION began operations to interfere with the U.S. political system, including the 2016 U.S. presidential election. Defendant ORGANIZATION received funding for its operations from Defendant YEVGENIY VIKTOROVICH PRIGOZHIN and companies he controlled, including Defendants CONCORD MANAGEMENT AND CONSULTING LLC and CONCORD CATERING (collectively “CONCORD”). Defendants CONCORD and PRIGOZHIN spent significant funds to further the ORGANIZATION’s operations and to pay the remaining Defendants, along with other uncharged ORGANIZATION employees, salaries and bonuses for their work at the ORGANIZATION.

[snip]

Defendants CONCORD MANAGEMENT AND CONSULTING LLC (Конкорд Менеджмент и Консалтинг) and CONCORD CATERING are related Russian entities with various Russian government contracts. CONCORD was the ORGANIZATION’s primary source of funding for its interference operations. CONCORD controlled funding, recommended personnel, and oversaw ORGANIZATION activities through reporting and interaction with ORGANIZATION management.

CONCORD funded the ORGANIZATION as part of a larger CONCORD-funded interference operation that it referred to as “Project Lakhta.” Project Lakhta had multiple components, some involving domestic audiences within the Russian Federation and others targeting foreign audiences in various countries, including the United States.

Among the details in the indictment that would require the most SIGINT (as distinct from cooperation from Facebook and domestic forensics analysis) is a paragraph describing the funding behind the operation.

To conceal its involvement, CONCORD labeled the monies paid to the ORGANIZATION for Project Lakhta as payments related to software support and development. To further conceal the source of funds, CONCORD distributed monies to the ORGANIZATION 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.

Presumably, the Mueller team named Concord and Prigozhin because doing so would support sanctions against him and his companies (indeed, Prigozhin was added to sanctions back in March). But it was also a way to put the operation within the immediate vicinity of Putin and tie it to the patronage that he uses to stay in power.

But then the corporate person of Concord Consulting unexpectedly started to contest the charges. On April 11, two lawyers from Reed Smith filed an attorney appearance for the firm. That same day, the lawyers sent Mueller’s team two letters, one asking for a Bill of Particulars and the other an expansive discovery request. Mueller’s team (having previously tried to serve Concord via the Russian government) then sent a letter to the lawyers, asking for confirmation they can receive summons for their client, which the lawyers returned it 10 days later, saying it violated Federal Rules of Criminal Procedure. The government, based on the returned summons, asked for a continuance to make sure that summons had been accepted.

Acceptance of service is ordinarily an indispensable precondition providing assurance that a defendant will submit to the jurisdiction of the court, obey its orders, and comply with any judgment. Here, proper service is disputed. It would not be an efficient use of resources to conduct proceedings against Concord clouded by the question whether Concord has been properly served. And as mentioned above, that is particularly true given the sensitive intelligence gathering, national security, and foreign affairs issues presented by defense counsel’s initial requests.

Concord’s lawyers responded by arguing the Special Counsel was ignoring local rules requiring two weeks advance notice to make a scheduling change, and further noting the government had not cited any case law supporting the argument that there might be uncertainty about whether Concord had been served.

The Special Counsel is not entitled to special rules, and is required like the Attorney General to follow the rules of the Court. See United States v. Libby, 498 F.Supp.2d 1, 10-11 (D.C.C. 2007).

The Special Counsel’s motion, filed late on a Friday afternoon, essentially seeks to usurp the scheduling authority of the Court by requesting a continuance of a proceeding scheduled in five days knowing that Defendant is ordinarily entitled to fourteen days to respond.

The Special Counsel’s motion is in violation of Local Criminal Rule 47(b) in that its contains no citation to points of law and authority and instead proclaims without citation to any authority that “A criminal case against an organizational defendant ordinarily requires that the defendant has been properly served with a summons in order for the court to be assured that the defendant has submitted to the jurisdiction of this court and has obligated itself to proceed in accordance with the Federal Rules of Criminal Procedure and other applicable laws that govern this criminal proceeding,”

Judge Dabney Friedrich denied the government motion, meaning there’ll be an initial appearance Wednesday.

Before looking at what Concord is trying to do with its discovery request, let’s take a step back.

The US has been charging Russian hackers and other criminals (like Viktor Bout) for years. Russia hates it. Even ignoring the number of Russian criminals we’ve imprisoned for long sentences, in cases where we don’t nab defendants while on vacation, the indictments still provide the US a forum to expose Russian intelligence activities with little cost to the US.

Charging a corporate person — one close to Putin — for a crime (information operations) that the US also engages in, the government provided Putin and his ally Prigozhin with an opening to either inflict some damage or force the government to withdraw the indictment (and think twice before indicting any other Russian corporations in other Russian investigation indictments).

Here’s some of what Concord is asking for:

Unnamed co-conspirators. When Rod Rosenstein announced this indictment, he emphasized that no Americans were named as co-conspirators in the indictment. That’s different than saying no Americans did conspire (indeed, I’ve noted that three Trump Campaign Officials described in the indictment may be under ongoing investigation). The motion for a Bill of Particulars asks for the identities of those three Trump Campaign Officials, as well as the identities of at least ten other Americans described specifically, and 100 recruited by IRA (described in ¶81). It also asks for the name of co-conspirators for an act, ¶7 of the indictment, who were required to register even though no co-conspirators are alleged to have to do so. Intriguingly, it asks not just for the identity of the real US person who held a sign in front of the White House (¶12b), but also all details surrounding the communications behind that appearance.

Related crimes the government will introduce at trial. The discovery request makes a very normal Rule 404(b) request for any “other crimes, wrongs, or acts” the government might introduce at trial. If Mueller’s team believes anyone in this indictment was involved in other parts of the operation, they might have to disclose that.

SIGINT. The request for a Bill of Particulars asks the government to identify all VPNs, PayPal accounts, Twitter accounts, and web-based emails used in the operation. It asks for the IDs of the people behind the operation and a definition of what significant funds means which would convey how much money Mueller has tracked. It asks for the specific bank accounts the indictment alleges Concord used to launder its money. It asks for specific evidence showing Prigozhin’s knowledge of the operation. It asks for all the communications behind the named events in the indictment. Showing this would provide Concord, and so Prigozhin, and so Putin, a very detailed picture of how much intelligence the US collected to draw up this indictment, which would also hint a lot about how we got it.

Details they will use to show US double standards. This includes a request for all the times since 1945 an agent of the US “engaged in operations to interfere with elections and political processes in any foreign country,” which is probably a reference to this study that shows CIA has done it more than Russia, along with a parallel request about any times Americans have been charged under the same crime, 18 USC 371, charged in the indictment. It also asks for a definition of a bunch of terms — such as “improper foreign influence,” “computer infrastructure,” “collecting intelligence,” and “began to monitor” that Russia will then use to point out where US spooks do the same. The request asks for a list of all criminal statutes that prohibit interference operations, the specific statutes behind the FECA, FARA, and visa violations alleged, as well as statutes that prohibit “impairing, obstructing and defeating the lawful governmental functions of the US … [by] interfer[ing] with US political and electoral processes. Together, those requests are designed to show that much of this stuff is either legal or spying.

The names of informants. Concord asks for this both as a general Brady request and asks for the specific name of the uncharged co-conspirator who traveled to Atlanta in 2014 in the request for a Bill of Particulars. While Prigozhin probably knows which Russians cooperated, Russia will nevertheless love to use that to punish whoever did.

While neither will happen immediately — Mueller’s team will push for a protection order and CIPA process before turning over the requested discovery and defendants almost never get a Bill of Particulars — effectively, Concord signaled its intention to impose real costs on the US government’s use of our criminal justice system to embarrass Russia. They made it clear that one of Putin’s closes allies will be demanding the intelligence behind an indictment naming him and two of his companies. Which is going to pose real discomfort for Mueller’s team (which might explain a bit of their delay here).

Let me clear: Concord is entirely within its right to begin demanding such evidence. That’s the risk of using our criminal justice system, affording due process, in charging a Russian corporate person who can challenge any charges without risking their freedom. I imagine Mueller’s team didn’t sufficiently account for this possibility when charging it this way. And if there are any other known Russian corporations involved in this operation (or fronts, such as the one Joseph Mifsud worked behind), I would imagine Mueller’s team is rethinking their approach to including those fronts. This could be problematic to the extent that proving any “collusion” between Trump’s people and Russians would most easily be demonstrated via conspiracy charges involving Russian entities.

As I said, for years, it has pissed off Russia generally and Putin in particular that the US used its criminal justice system to embarrass Russia, particularly for actions (like nation-state spying or information warfare like that alleged in this indictment) that we also engage in, including against Russia. It seems clear Putin and his buddy Prigozhin are using the incidence of the latter having had his company be named in this indictment as an opportunity to retaliate and make DOJ think twice as it continues to expand such efforts in the future.

And to a large degree, it’s quite likely to work.

What Did Mueller Achieve with the Internet Research Agency Indictment?

Back during Nunes Week, Trey Gowdy described the importance of Robert Mueller’s investigation by stating that we were only seeing half of what he was doing. The other half of his work, Gowdy said, was the counterintelligence side, the investigation into what Russia did to the US in 2016.

Friday, Rod Rosenstein rolled out the first glimpse of the other half of that investigation, an indictment of 13 Russians tied to the Internet Research Agency, the Russian troll factory. The indictment accuses IRA of 8 crimes: criminal conspiracy to defraud the United States, conspiracy to commit wire fraud and bank fraud, and five counts of aggravated identity theft.

In the wake of that indictment, the court unsealed a February 7  plea agreement with Californian Richard Pinedo, for identity theft (basically, selling bank account numbers; the information doesn’t identify the users who purchased the bank account numbers as IRA personnel who used them to set up “American” identities, but that is clearly what happened).

The 13 Russians charged in the IRA indictment — which include Yevgeniy Prigozhin, the close Putin associate who owns the company, those in charge of the operation (which was not limited to US targeting), down to a few of the analysts who did the troll work — will never be extradited to the US, though the most senior among them will surely be sanctioned. Nor will Putin in any way retaliate against them — they were doing work he approved of! Further, by criminalizing “information warfare” (as the Russians admitted they were engaged in, and as we do too, under the same name) we risk our own information warriors being indicted in other countries.

So what purpose did the indictment serve? Here are some thoughts:

Creating a paper trail

Rosenstein and Chris Wray have both said they believe investigators should speak through indictments and other official documents, not through Comeyesque press conferences. Here we have an indictment that serves as a record of what Mueller’s team has found.

We would probably have gotten it in any case, as Jeff Sessions’ DOJ has emphasized bringing more cybersecurity related indictments.

But that we did get it addresses one of the questions we’ve gotten about the Mueller investigation: whether we’ll get to read a report of what he has found.

To the extent that something is indictable, even if that indictment would name Russians or others located overseas, I guess we should expect more of the same.

Establishing bipartisan credibility for the larger investigation

The reason I keep pointing to Gowdy’s statements in support of the investigation in the last several weeks is because his actions seem to reflect one of the most partisan Republicans reacting soberly to an attack on the country, rather than just one party.

And while the details of the indictment — most notably that the trolls affirmatively supported Bernie Sanders as well as Trump — have resurfaced the old primary recriminations, for the most part, the indictment has provided a way for people from both parties to agree to the reality of the attack. Trump said Mueller did a good job with the indictment (admittedly, he may be currying favor). Trump’s National Security Advisor HR McMaster responded to the indictment by declaring the evidence that Russia interfered in the election “incontrovertible.” This indictment offers a way for even self-interested Republicans to start acknowledging the reality of what happened.

The indictment also gave Rod Rosenstein an opportunity to own this investigation with a press conference announcing it. None of the prosecutors tied to the case appeared (since I track these things, know that Jeannie Rhee, Rush Atkinson, and Ryan Dickey are on the docket), just Rosenstein. Hopefully, tying him to this non-offensive indictment will make it harder to fire Rosenstein, and thereby further protect Mueller.

Reiterating the crime of conspiracy to defraud the United States

The most interesting of the three crimes charged in the IRA indictment is the first, the conspiracy to defraud the United States. The indictment describes the conspiracy this way:

U.S. law bans foreign nationals from making certain expenditures or financial disbursements for the purpose of influencing federal elections. U.S. law also bars agents of any foreign entity from engaging in political activities within the United States without first registering with the Attorney General. And U.S. law requires certain foreign nationals seeking entry to the United States to obtain a visa by providing truthful and accurate information to the government.

Effectively, Mueller is saying that it’s not illegal, per se, to engage in political trolling (AKA information warfare), but it is if you don’t but are legally obliged to register before you do so. That’s an important distinction, because much of what these trolls did is accepted behavior in American politics — all sides did this in 2016, including people employed by campaigns and others expressing their own political opinions. Trolling (AKA information warfare) only becomes illegal when you don’t carry out the required transparency or reporting before you do so.

The charge of a conspiracy to defraud the United States has a very important parallel elsewhere in this investigation, in the first charge in the Paul Manafort and Rick Gates indictment. The indictment explains,

It is illegal to act as an agent of a foreign principal engaged in certain United States influence activities without registering the affiliation. Specifically, a person who engages in lobbying or public relations work in the United States (hereafter collectively referred to as lobbying) for a foreign principal such as the Government of Ukraine or the Party of Regions is required to provide a detailed written registration statement to the United States Department of Justice. The filing, made under oath, must disclose the name of the foreign principal, the financial payments to the lobbyist, and the measures undertaken for the foreign principal, among other information. A person required to make such a filing must further make in all lobbying material a “conspicuous statement” that the materials are distributed on behalf of the foreign principal, among other things. The filing thus permits public awareness and evaluation of the activities of a lobbyist who acts as an agent of a foreign power or foreign political party in the United States.

The Manafort indictment then argues that by hiding that the lobbying work they were doing was on behalf of Ukraine’s Party of Regions they, “knowingly and intentionally conspired to defraud the United States by impeding impairing, obstructing, and defeating the lawful governmental functions of a government agency, namely the Department of Justice and the Department of the Treasury.” I’ll have more to say about this parallel in coming days, but suffice it to say that Mueller is alleging that Manafort is the mirror image of the troll farm, engaging in politics while hiding on whose behalf he’s doing it (he was arguably doing the same in Ukraine). [Update: see this post for more on how this might work.]

In both cases, the indictments substantiate the conspiracy by naming a variety of crimes, like money laundering and identity theft.

I suspect we’ll be seeing more of this structure going forward (and suspect it’s something the numerous appellate specialists on Mueller’s team have been spending a lot of time thinking about).

Laying out how Americans might be involved with or without “colluding”

Much has been made of Rosenstein’s line, “There is no allegation in the indictment that any American was a knowing participant in the alleged unlawful activity.” I don’t read too much into that. Rather, I think Rosenstein included it because the indictment does explicitly and implicitly describe actions many Americans and possible Americans took that were part of this conspiracy. That includes:

Illegal compensated acvitities

  • Richard Pinedo: Selling Russian trolls (and others) bank account numbers they can use to conduct identity fraud
  • Unknown persons: Providing social security numbers and fake US drivers licenses of Americans
  • Unknown persons: Selling stolen credit card information

Presumptively legal compensated activities

  • Unknown Americans: Renting servers in the US to run VPNs to hide their foreign location
  • Yahoo, Gmail, Paypal: Providing email and PayPal accounts the Russians used as the basis for social media accounts
  • Twitter, Instagram, Facebook: Providing those social media accounts
  • Twitter, Instagram, Facebook: Selling advertisements on social media
  • Unknown Trump associates: Paying for IRA rally expenses
  • Paid providers: Building a cage, acquiring a costume, and posing as Hillary in prison stunt at a FL event
  • Unknown US person: Providing posters for a Support Hillary, Save American Muslims rally
  • Unknown American: Holding a sign in front of the White House on May 29, 2016

Uncompensated activities

  • Unknown Americans: Interacting with Aleksandra Krylova and Anna Bogacheva when they traveled to the US sometime between June 4 and June 26, 2014 to conduct reconnaissance and another co-conspirator that November
  • Members of the media: Accepting tips and promoting IRA events
  • A member of a real TX-based Tea Party organization: Advising the conspirators to focus on the purple states “like Colorado, Virginia & Florida”
  • Unwitting members, volunteers, and supporters of the Trump Campaign involved in local community outreach, as well as grassroots groups that supported then-candidate Trump: Distributing IRA materials through existing channels of those groups
  • Administrators of large social media groups focused on U.S. politics: Promoting IRA events
  • Trump volunteer: Providing signs for the March for Trump event and otherwise recruiting for it
  • A Florida-based political activist identified as the “Chair for the Trump Campaign” in a particular Florida county: Advising on more locations and logistics for the Florida Trump event
  • Campaign Officials 1, 2, and 3: discussing the Florida events

Later the indictment describes a database of 100 real US persons whom the trolls treated as recruiting targets, complete with profiling.

On or about August 24, 2016, Defendants and their co-conspirators updated an internal ORGANIZATION list of over 100 real U.S. persons contacted through ORGANIZATION-controlled false U.S. persona accounts and tracked to monitor recruitment efforts and requests. The list included contact information for the U.S. persons, a summary of their political views, and activities they had been asked to perform by Defendants and their co-conspirators.

Here’s the important thing about all this. While Pinedo pled guilty and faces 12-18 months even with his cooperation agreement (and even there, while the information makes it clear he knew he was dealing with foreigners, his lawyer has made it clear he didn’t know who or what he was dealing with), there are only two other known illegal roles in this conspiracy, and there’s no reason those roles would have had to be carried out by Americans. Perhaps Mueller has others cooperating, perhaps those other criminals are unknown. But as for the rest, they are (as Rosenstein made clear) not guilty of any kind of conspiracy with Russia.

DOJ just rolled out an indictment in which probably 20 Americans can recognize themselves (many of whom were likely interviewed), about as many as all the Trump officials named in one or another plea agreement so far. Yet, as far as Mueller knows, none of these people did anything but conduct business or engage in sincerely held politics. They almost certainly had far less reason to be suspicious of the trolls they were being used by than Facebook and Twitter. Those actions have been tainted now through no fault of their own.

Which is something to remember: I’ve seen Hillary supporters, in the same breath, criticize Bernie or Jill Stein supporters because their preferred candidate was treated favorably by the trolls, yet in the same breath suggesting the black and Muslim activists targeted are innocent victims.

Obviously, Hillary and her supporters are victims. But everyone is, even the Trump volunteers. Because to the extent they had honestly held beliefs, the Russian operation tainted those beliefs, it diminished the weight of their honestly held beliefs. They were used by Russian trolls, most of them without the same profit motive that led Facebook and Twitter to allow themselves to be used. And we should remember that.

Hinting at what the US has

There are, however, a few tactical things this indictment does, starting with hinting at what other evidence the US has. This indictment was relatively easy, in that Adrian Chen (in a June 2015 article that still gets too little attention), Facebook and (to a lesser extent) other social media outlets, the Daily Beast, and SSCI generally have already laid out what IRA did. The indictment slaps some criminal charges on fraudulent behavior that enabled it, and without showing much about any additional evidence Mueller collected, you’ve got a showy indictment.

There are two hints, however, of the additional evidence used (which, given that the named conspirators will never face trial, will never need to be disclosed or explained). First, in a passage about how IRA started to cover their tracks after Mueller started focusing on this activity, there’s the reference to Irina Kaverzina.

On or about September 13, 2017, KAVERZINA wrote in an email to a family member: “We had a slight crisis here at work: the FBI busted our activity (not a joke). So, I got preoccupied with covering tracks together with the colleagues.”

Kaverzina was just a low-level troll and this may be nothing more than Section 702 collected email off GMail or Yahoo, or it may be a more formal intercept. But Mueller obtained communications from at least one of the indictees. Emails from more senior people, such as Prigozhin or his more senior managers (or the IT guys buying server space in the US) would be more interesting.

Plus, Mueller likely obtained cooperation from one IRA employee, the unnamed person who traveled to Atlanta in November 2014 for reconnaissance. Had that person not cooperated, he or she would have been named in the indictment.

Nevertheless establishing the political stakes

I said above that none of the hundred-plus Americans who were unknowingly used by trolls should be considered anything but victims. Their chosen political views, loathsome or not, have now been tainted, and not because of anything they’ve done except perhaps show too much trust or credulity.

But there are hints that Mueller is using this indictment to set up a more important point.

For example, the indictment (perhaps because of Mueller’s mandate) focuses on political activities supporting or opposing one or another 2016 candidate. Even where topics (immigration, Muslim religion, race) are not necessarily tied to the election, they’re presented here as such. Unless Facebook’s public reports are wrong, this is a very different emphasis than what Facebook has said the IRA focused on. Which is to say that Mueller’s team are focusing on a subset of the known IRA trolling, the subset that involves the 2016 contest between Trump and Hillary.

And there are several events, in particular, that may one day serve as details in a larger conspiracy. Most interesting, for the timing and location, are the twin anti-Hillary and pro-Trump events in NYC in June and July 2016.

In or around June and July 2016, Defendants and their co-conspirators used the Facebook group “Being Patriotic,” the Twitter account @March_for_Trump, and other ORGANIZATION accounts to organize two political rallies in New York. The first rally was called “March for Trump” and held on June 25, 2016. The second rally was called “Down with Hillary” and held on July 23, 2016.

a. In or around June through July 2016, Defendants and their co-conspirators purchased advertisements on Facebook to promote the “March for Trump” and “Down with Hillary” rallies.

b. Defendants and their co-conspirators used false U.S. personas to send individualized messages to real U.S. persons to request that they participate in and help organize the rally. To assist their efforts, Defendants and their co-conspirators, through false U.S. personas, offered money to certain U.S. persons to cover rally expenses.

c. On or about June 5, 2016, Defendants and their co-conspirators, while posing as a U.S. grassroots activist, used the account @March_for_Trump to contact a volunteer for the Trump Campaign in New York. The volunteer agreed to provide signs for the “March for Trump” rally.

[snip]

On or about July 23, 2016, Defendants and their co-conspirators used the email address of a false U.S. persona, [email protected], to send out press releases to over thirty media outlets promoting the “Down With Hillary” rally at Trump Tower in New York City.

The description of a IRA-organized event at Trump Tower the day after WikiLeaks dropped the DNC emails, in particular, suggests the possibility of a great deal of coordination, coordination with people in the US.

Similarly, the extended descriptions of events in Florida may also take on added relevance in the future, particularly coming as they did in tandem with Guccifer 2.0’s release of DCCC data targeting FL. (And this, in turn, should focus even more attention on the FL congressmen like Matt Gaetz and Ron DeSantis who’re leading the pushback on Mueller’s investigation.)

Using the term “co-conspirator” 119 times

Perhaps most interesting, given the tiny nods to what other intelligence Mueller might have, are the 119 uses of the word “co-conspirators.” Almost all of these uses seem to necessarily mean unnamed IRA employees working from the same St. Petersburg location described as trolling. Several times the co-conspirators are clearly described as located in Russia. So it may be that all references to co-conspirators here are just a way to refer to the 70 other people involved in this operation at IRA. But that’s not necessarily the case.

Other uses of “co-conspirator” involve wider knowledge, perhaps an outsider’s knowledge of a go-between role Prigozhin might have had.

But others are things that might have involved a stateside co-conspirator, such as the mention of co-conspirators helping to set up the May 29, 2016 Prigozhin birthday tribute in front of the White House, co-conspirators tracking US social media use, co-conspirators engaged in identity theft, co-conspirators promoting claims of voter fraud, co-conspirators destroying data. Several of those things (such as tracking US social media use or claiming Hillary was going to steal the election) are things we know Trump associates were also doing. Others might be facilitated by someone stateside. So those uses of the term could be people not employed by IRA.

Which is to say, this indictment might be (probably is) intended to address just the activities of those employed by IRA. But that’s not necessarily the case.

Update: added the public indictment part.