Thursday, October 18, 2018

Is It Possible To Be Guilty Without Violating The Law?

In the comments section to Did James Baker Really Skate? Mike Sylwester (h/t) and I had an interesting discussion regarding the Mueller/Weissman theory of prosecution for "conspiracy to defraud the government." To the best of my knowledge this theory has never been tested on appeal: defendants in the cases in which this theory has been used have--again to the best of my knowledge--pled guilty to other charges. Now, it appears that this theory is about to be put to the test in Mueller's "Russian bot case" against Concord Management and Consulting in the Southern District of New York. Judge Dabney Friedrich has issued a three-page order in which she requires that the Government answer her questions about their theory of prosecution. The judge's doubts about this theory of "conspiracy to defraud the government" can be read in the full order here. However, the gist of the problem and of the judge's objection to the Government's theory (in slightly, but only slightly, simplified form) is as follows.

According to the Government, Concord engaged in various social media activities related to US politics but failed to register as an agent of a foreign power under the Foreign Agents Registration Act (FARA). However, the judge points out that in previous hearings the Government has also maintained that to make its case it will not have to prove that Concord actually violated any regulatory law (such as FARA) but only that Concord engaged in "deceptive acts" that "interfered with the regulatory functions" of the government "in a way that precluded [the government] from ascertaining whether those substantive statutes were violated." In other words, the Government is maintaining that it needn't prove that Concord actually was acting as an agent of a foreign power, but that it was "deceptive"--and thus engaged in a conspiracy--because they didn't register with the government so that the government could make that determination.

Judge Friedrich's objection to this theory thus comes down to this: how can a failure to register be "deceptive" if the Government is unable to show a duty to register in the first place? To which I say, Good question!

The real explanation to all this is one that, unlike the Mueller/Weissman theory, won't make your head hurt. The explanation is that Mueller/Weissman never imagined that the Russian defendants would hire competent US attorneys and contest the bogus case. They thought this prosecution would be a freebee.


  1. Both Mueller and Weissman have a track record of dubious major prosecutions that have been overturned upon appeal, which is prima facia evidence of ethical defects at best and overt malfeasance at worst. It's bad enough that these individuals are using the power of the law in order to subvert a democratic presidential election, but to do so with impunity and a corrupt vigor is beyond the pale for normal human decency. No society can endure when it's leadership ignores such conduct. Rosenstein has an opportunity to redeem himself if he is willing to step up and publicly expose the expansive and monstrous corruption that has infected DC and it's seminal institutions. Rather than plea bargain down and facilitate an historic coverup, he should go in the exact opposite direction and lead a modern Restoration. This may well be a turning point in history. Very few are accorded the honor of doing the right thing at the right time.

  2. The Moon of Alabama website has published an article titled Mueller Indictment - The "Russian Influence" Is A Commercial Marketing Scheme. The article explains the history and business of the Russian defendant.

    Yevgeni Prigozhin owns a company, Concord Catering, that caters food to schools and military institutions. The company was subjected to complaints on the Internet. To dispute those complaints, Prigozhin hired some people to write Internet comments praising his company.

    This experience gave Prigozhin the idea of establishing an company -- the Internet Research Agency (IRA) -- that would sell the service of influencing the public about various issues. Among its activities, IRA creates webpages to attract readers with particular interests. For example, IRA has created Facebook pages that attracted people who like Trump or Clinton or cute puppies -- and so forth and so on.

    Among the Russian companies that Robert Mueller indicted for meddling in our 2016 election was Concord -- the company that caters food to schools and military institutions in Russia. The relationship of Concord to IRA is that both companies are owned by Prigozhin. However, Concord has nothing at all to do with providing Facebook pages that attract various readers in the USA.

    Mueller's indictment of Concord is a disgraceful fiasco. He is disgracing not only himself, his stupid investigation and the FBI, he is disgracing the USA.

  3. Unknown and Mike, I couldn't agree more with both of you. I would add that not only do Mueller and Weissman have track records of abusive/unethical prosecutions but James Comey as a prosecutor in the SDNY was in on the ground floor of the abusive use of "process crimes" that has morphed into these attempts to push beyond all reasonable interpretations of criminal statutes--which, by their nature should be clear to all. Again, Rosenstein in his oversight of the Special Prosecutor should have manned up. It's one thing to give Mueller a long leash, but there are ethical limits and red lines that Rosenstein should not allow the SC to cross.

  4. Previous Asst. US Attorney, now private federal appeals attorney and author Sidney Powell details in her book "Licensed To Lie" the Mueller/Weissman theory of prosecution for "conspiracy to defraud the government." that was alleged in the Exxon and other high profile federal prosecutions that were overturned by courts of appeal and the SCOTUS.

  5. I read Powell's book maybe a year ago. I was prepared to be shocked, because I'd been reading about these abuses for years, but I was still shocked. Enron and Arthur Andersen. The conspiracy theory was used in the Enron case, but I don't believe anyone was actually convicted for conspiracy--only stuff like securities fraud, insider trading, etc. The use of the conspiracy counts, probably for plea bargaining purposes, was itself abusive and unethical. That's why this Concord case is important, because the judge apparently will make a ruling on that whole theory of prosecution, and these defendants will appeal, I believe. I doubt that the Government will if the judge rules against them, but we'll see.

    The other case that Powell discusses, and which is truly shocking and very instructive re WDC politics, is the Ted Stevens case.

  6. Both Mueller and Fitzgerald resorted to the "process crime" of lying to the FBI. I think it is time to remove this tool from the hands of abusive prosecutors. Lying to police investigators is not a separate crime, although it is not recommended; nor should lying to FBI agents be a separate crime. Especially since the FBI interview may not be recorded.

  7. Hidell24, thanks for the comment. We need to be clear on several matters.

    People speak loosely about "lying to the FBI" as a crime in and of itself. There is actually no such criminal statute "on the books." When people speak of this they're referring to 18 USC 1001, which is titled "Statements or entries generally" but which could be described accurately as "False Statements to the Government of the United States." Of course, the FBI is an agency of the Executive Branch of the USG. What 1001 (as amended in 1996) provides is that, in any matter involving any Branch of the USG, it's a criminal offense to (I abbreviate):

    (1) falsify or conceals a material fact;
    (2) make any false statement or representation; or
    (3) make or use any false writing or document knowing that it contains any materially false statement.

    So, broadly speaking, you can get whacked for lying to the USG--including the FBI.

    Traditionally, prosecutors were loathe to use this statute when the acts involved interviews conducted by the FBI. It's easy enough to see why: truth, falsity, knowledge, concealment, are all subject to a lot of interpretation and subjective recollection. The FBI is in the business of obtaining information, so if every/any inaccurate statement leaves a person open to criminal prosecution, every citizen is well advised to say nothing to the FBI--leaving the FBI in the lurch as far as obtaining information. I say the old policy was a good policy, a smart policy. Absent any other provable offense or harm caused, 1001 should not be used. The Government is better off turning a blind eye to inaccuracies, even if it suspects they were deliberate: no harm, no foul.

    In the last two decades, that policy has been turned on its head, especially in high profile cases. Ambitious agents and prosecutors have increasingly turned to 1001 for a number of uses. One of course is for a real prosecution. Another is to induce a guilty plea. A subject who denies guilt may be threatened with prosecution under 1001 to induce him to plea to a substantive offense, based on disagreement about the accuracy of statements he may have made. To me, this is seriously abusive. But it happens a lot.

    How to remedy this is difficult to say. Repeal is probably not the right approach. Aggressive oversight by judges would be one way, but how can that be enforced? Ethical watchdogs exercising oversight on prosecutors? Good luck with that. It's a real problem.