Special counsel Robert Mueller is churning in uncharted legal waters as he tries to nail a Russian firm for bankrolling Moscow’s deceptive social media invasion into the 2016 election.
It is not only Concord Management and Consulting LLC’s attorney saying this. Defense attorney Eric Dubelier said in court that Mr. Mueller created a “make-believe crime” and that the “real Justice Department” would never have brought such an indictment.
U.S. District Judge Dabney L. Friedrich also is expressing doubts about Mr. Mueller’s unique prosecutorial adventure, though she is not saying she will dismiss the charges, as Mr. Dubelier has requested.
A review of the transcript of an Oct. 15 hearing shows the judge’s reservations. She said of Mr. Mueller’s team, “They’ve got a heavy burden at trial to prove that knowledge.” She was referring to awareness that Concord knowingly defrauded the Federal Election Commission, the Justice Department and the State Department.
“I will give you, Mr. Dubelier, this is an unprecedented case, for sure,” the judge said.
The attorney had argued that there is no specific federal law against interfering in a U.S. election. He said there are no previous prosecutions on defrauding the FEC by using fake social media personas.
“And I agree, at trial, if this case survives, they’re going to have to show that Concord and others conspired and had the specific intent to defraud,” Judge Friedrich said.
When prosecutor Jonathan I. Kravis argued that Concord is aware that the U.S. enforces election regulations, Judge Friedrich said, “It’s hard to see how not revealing identities at political rallies and not revealing identities on social media, how that is evidence of intent to interfere with a U.S. government function as opposed to confuse voters.”
Mr. Mueller brought the indictment in February against Concord, as well as a Russian trolling farm company and various Russian operatives.
The indictment is one of two against Russian entities that together stand as Mr. Mueller’s showcase prosecution in the Justice Department’s 27-month investigation into supposed Trump-Russia collusion. He has yet to charge a Trump associate with election interference.
In July, he brought charges against 12 Russian intelligence officers accused of hacking the Hillary Clinton campaign and Democratic Party computers. The Russians stole thousands of emails and, to influence the election against Mrs. Clinton, released them through WikiLeaks and two fake outlets.
The Concord indictment charges the firm’s chief, Yevgeny Prigozhin, a Vladimir Putin confidant, with paying trolling farm operatives to assume fake American identities and spread falsehoods on social media to support Donald Trump for president.
The indictment’s major charge is conspiracy to defraud the United States by circumventing federal requirements to disclose “foreign involvement in certain domestic activities.”
Mr. Dubelier’s argument: There is no evidence in the indictment of willful intent; that is, that Concord knew the functions of the FEC and violated them. Proving willful intent is required under federal conspiracy to defraud law, or Section 371.
“There is no law or regulation requiring that any such speech be accurate or truthful or that any U.S. or foreign person truthfully or accurately identify herself or himself when engaging in such speech,” he said. “When it comes to political speech, one is free to pretend to be whomever he or she wants to be and to say whatever he or she wants to say.”
He said that what Mr. Mueller wants the judge to do, in effect, is regulate the internet. This would mean that any American who conceals his or her identity and puts out disputed information could face federal criminal charges.
“If this goes to ‘You have to tell the truth on the internet in a political campaign,’ every politician in the United States would be in prison,” Mr. Dubelier said.
The FEC law bans foreign contributions to U.S. federal campaigns, and it restricts the roles that foreigners can play for candidates. But it does not forbid foreigners from engaging in political debates.
The indictment alleges that fraud occurred when Concord bought computer server space in the U.S. to hide the trolls’ home base in Russia.
“So what?” Mr. Dubelier said. “People do that every day. That’s not illegal. It’s not illegal. There’s no law that says you can’t do that. … They want to be able to regulate what people say on the internet.”
Conservatives have criticized Mr. Mueller for hiring a number of lawyers who have contributed to Democratic candidates and the party.
Mr. Dubelier blasted Mr. Mueller for veering away from Justice Department standards to find a way to bring charges.
“That’s why in this case this special counsel made up a crime to fit the facts that they have,” he said. “And that’s the fundamental danger with the entire special counsel concept, that they operate outside the parameters of the Department of Justice in a way that is absolutely inconsistent with the consistent behavior of the Department of Justice in these cases for the past 30 years.”
Mr. Kravis is a white-collar crime specialist who works for the U.S. attorney in the District of Columbia and was brought onto the Mueller team to handle the Concord case.
He defended the indictment by telling the judge that to prove a conspiracy to defraud the U.S., there doesn’t need to be an underlying law.
“What there does have to be is deceptive conduct that is engaged in with a purpose of interfering with a lawful government function,” he said.
“The deceptive activity that’s alleged in the indictment does not merely include a failure to report,” the defense attorney said. “It also includes the use of a computer infrastructure to hide the source of the posts. It includes the use of false social media accounts, false email accounts, the use of false American personas, the use of false organizations. All of that is deceptive activity.”
Judge Friedrich has not ruled on the motion to dismiss. She has sided with Mr. Mueller on other issues such as restricting the sharing of prosecution evidence with Russian defendants to ensure the information doesn’t end up with the Kremlin.