UPDATED: Dabney Friedrich: Mueller's Dossier Violated Rules Of Criminal Procedure

Judge Dabney Friedrich, the trial judge in the SDNY who is handling the Concord Management ‘Russian troll farm’ trial has administered a spanking to Robert Mueller--as well as to AG Bill Barr. In effect, Judge Friedrich's ruling that was released today holds that Mueller--and Barr--must refrain from making any statements that suggest that Concord Management (Concord) acted in concert with the Russian government in its alleged “information warfare” campaign on social media and at political rallies to sow discord among U.S. voters in advance of the 2016 presidential election. The significance of this ruling is that the Concord case is a major part of the contention in the Mueller Dossier that the Russian government interfered in the 2016 election. In other words, the judge's ruling, in effect, orders the government to stop stating--or at least to stop citing the Concord case in support of--that counter factual assertion. Here are the details.

Back in February, 2018, Team Mueller persuaded a grand jury to indict Concord--a Russian company--and others with conspiring to defraud the United States by impairing the lawful functions of the Federal Election Commission, the Department of Justice, and the Department of State. (You may recognize in that prosecutive theory the hand of Andrew Weissmann.) All lawyers involved in federal criminal cases are required to abide by the rules that govern criminal cases in the federal courts. Local Criminal Rule 57.7 imposes a general duty on lawyers in criminal cases

“not to release or authorize the release of information or opinion which a reasonable person would expect to be disseminated by means of public communication . . . if there is a reasonable likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice.” Local Crim. R. 57.7(b)(1). The rule prohibits lawyers associated with the prosecution or defense from publishing, between the time of the indictment and the commencement of trial, “[a]ny opinion as to the accused’s guilt or innocence or as to the merits of the case or the evidence in the case.”

Of course, at the time of the indictment Team Mueller thought this case was a freebie--the defendants were located in Russia and would never--so Team Mueller supposed--oppose the indictment. They never expected Concord to even respond--much less to launch a vigourous defense through US attorneys. But that's what happened. And so it came as another in a series of rude surprises for Team Mueller that, on April 25, 2019, in response to the public release by DoJ--authorized by AG Barr--of the Mueller Dossier, Concord's lawyers filed a motion arguing that the Attorney General and Special Counsel had violated Local Rule 57.7 by releasing to the public via the Mueller Dossier information that was not contained in the indictment. Concord’s contention was that Mueller's Dossier improperly suggested that there was some link between Concord and the Russian government--an assertion that did not appear in the indictment. Not only that, but the Dossier went on to express an opinion about Concord's guilt and the evidence against Concord. In violation of Rule 57.7.


Judge Friedrich, in her ruling on Concord's motion, agreed that Team Mueller and DoJ had, in fact, violated Rule 57.7. Here's why.

The Mueller Dossier described efforts by the Russian government to interfere with the 2016 presidential election. But the indictment, which alleges that private Russian entities and individuals conducted an “information warfare” campaign designed to sow discord among U.S. voters, does not link the defendants to the Russian government. Save for a single allegation that Concord had several “government contracts” (with no further elaboration), the indictment alleges only private conduct by private actors.

In other words, the government's indictment says nothing about Russian government interference in the 2016 election. Presumably the government would have included factual assertions in that regard if they felt able to do so. But they didn't. Nevertheless, the government--Team Mueller and DoJ--turned around and published a Dossier in which they do make such allegations, in violation of Rule 57.7. While Judge Friedrich didn't address the substance of those Dossier allegations, the implication is there for anyone with an ounce of sense to see. Draw your own conclusion--but if the allegation wasn't made in the indictment, then there probably was no evidence to support it. So what does that suggest about the Dossier?

So, to remedy this situation, Judge Friedrich ordered the parties

“to abide moving forward by Local Criminal Rule 57.7(b)” and ordered the government “to refrain from making or authorizing any public statement that links the alleged conspiracy in the indictment to the Russian government or its agencies.”  

That's obviously aimed at the government--Mueller and Barr. In effect, this means that the government must stop claiming that the Russian government interfered in the 2016 election if that claim is based on the Concord case. And that will definitely cramp the style of any government connected partisans of the Russia Hoax.

My advice to the GOP reps who will be questioning Mueller on July 17 is to prepare pointed questions regarding the Concord case. Try to bait him into making statements that might violate the judge's order.

UPDATE: Adam Mill has a nice write-up at The Federalist: DOJ Attorney Says Russian Government Had Nothing To Do With Troll Farms. Money quote:

In the subsequent order, Judge Freidrich wrote:  “On May 29, 2019, following the Court’s hearing, the Special Counsel held a press conference…[in which he] carefully distinguished between the efforts by ‘Russian intelligence officers who were part of the Russian military’ and the efforts of” Concord. This, the Judge found, made the criminal contempt proceedings she contemplated against Mueller’s team “unnecessary and excessive under the circumstances.” 

A narrow escape it was indeed. Freidrich found that both the release of the Mueller report and Barr’s statements boosting the report violated DC Rule 57.7 prohibiting lawyers from trying cases in the press. Judge Freidrich rejected the government’s argument that the Mueller report did not smear Concord with unproven links to the Russian government. 

“By attributing [the conduct] to ‘Russia’-as opposed to Russian individuals or entities—the report suggests that [Concord’s internet activities] were undertaken on behalf of, if not at the direction of the Russian government,” she wrote. Remember, the government has now denied in court that it even alleged Concord worked for the Russian government to post political messages on the internet. 

The government, Freidrich found, “violated a standing court rule” by making these public pronouncements that intruded upon the question to be tried in her courtroom. To save Mueller’s team from “criminal contempt,” Freidrich exercised her discretion to decline to “initiate criminal contempt proceedings in response to the government’s Rule 57.7 violation.” 

With the benefit of these newly unsealed documents from Judge Freidrich’s court, we now can see that Mueller’s May 29, 2019 press conference, held the day after the hearing on Concord’s contempt motion, must have been a desperate but successful effort to avoid the wrath of a judge whose authority Mueller insulted by “concluding” the guilt of defendants yet to be tried. And in that desperate effort, the U.S. government threw overboard the key assumption that the Russian government (as opposed to freelancing Russians) was behind the dubious internet troll case.

IMO, this doesn't bode well for the government's case.