Law & the Courts

Mueller’s Tough Week in Court

Robert Mueller on Captiol Hill in 2013 (Yuri Gripas/Reuters)
Judges in Virginia and Washington have the special counsel reeling.

Well sure, we filed an indictment. And yeah, we took a victory lap in the big bells-n-whistles Main Justice press conference. But that doesn’t mean we, like, intended to have a trial . . .

That seems to be the Justice Department’s position on its mid-February publicity stunt, the indictment of 13 Russians and three Russian businesses for interfering in the 2016 election.

Let’s back up.

The courts were not kind last week to the Justice Department’s gamesmanship on the Russia probe, also known as the Mueller investigation, an investigation in which the cases prosecutors want to try are not about Russia, and the case about Russia prosecutors don’t want to try.

Judge Ellis and the Manafort Case in Virginia

First, in the Eastern District of Virginia, where Paul Manafort is facing one of the two indictments against him, Judge T. S. Ellis hammered Mueller’s prosecutors over the issues we have been hammering for a year:

(a) In appointing Mueller on May 17, 2017, Deputy Attorney General Rod Rosenstein failed to comply with federal regulations that control special-counsel investigations; and

(b) The secret August 2 memo, by which Rosenstein attempted to paper over this dereliction, is so facially uninformative and heavily redacted that the subjects of the investigation, the courts, and the public are still in the dark. The factual basis for a criminal investigation is still unknown, as are the boundaries of Mueller’s jurisdiction — with Mueller’s prosecutors paying lip service to the notion of limits, even as they argue that, essentially, there are none.

Judge Ellis was ornery with prosecutors at Friday’s hearing (Power Line’s Scott Johnson has posted the transcript here). He was particularly blunt about two other issues we’ve repeatedly highlighted:

(1) The two Manafort indictments (the one in Virginia and the other in Washington, D.C.) have nothing to do with the special counsel’s mandate to probe Russia’s meddling in the 2016 election, so one can only conclude that Mueller is squeezing Manafort, the former campaign manager, to get him to cooperate against President Trump; and

(2) Mueller’s investigation is really about seeking a basis to impeach Trump.

We’ve been asking the hard questions for a long time. Now, however, the special counsel and the Justice Department are dealing with a federal judge — i.e., a skeptic they can’t afford to ignore. And for those (myself included) who are inclined to believe Manafort is a sleazeball, it bears mention that he is unlikely to benefit from Judge Ellis’s doubts about Mueller’s authority. In the end, Mueller will probably be able to keep his case on track even if he is bruised along the way.

It could be that the Justice Department relied on the unverified Steele dossier in describing the factual basis for the special counsel’s investigation. That’s something we should know.

Even if the original appointment of Mueller is infirm, Rosenstein’s August 2 memo clearly authorized him to prosecute Manafort on the offenses involving Ukraine. The judge may not like it, but the court has no business telling the Justice Department what prosecutor to assign to a case. And even if the judge is right (he is) about why Mueller is so aggressively pursuing Manafort, there is nothing illegal or unusual about that: Prosecutors pressure suspects to help roll up other suspects all the time.

The judge will pressure Mueller to disclose the currently redacted four-fifths of the Rosenstein memo, which purportedly describe Mueller’s jurisdiction in a manner compliant with federal regulations. That’s understandable. There has been too much secrecy in this investigation. The FBI has been investigating for two years (i.e., for a year before Meuller took the helm), so by now we should be told what crimes, if any, the memo says the president may have committed. To be sure, there may be good-faith reasons related to investigative secrecy and protecting the reputations of uncharged people that justify some redactions. On the other hand, as I’ve previously hypothesized (here, last section), it could be that the Justice Department relied on the unverified Steele dossier in describing the factual basis for the special counsel’s investigation. That’s something we should know, even if Rosenstein and Mueller would rather not say.

Still, let’s say Mueller sticks to his guns, refusing to disclose the memo’s description of his jurisdiction and insisting that Judge Ellis is entitled to see only the thin Manafort paragraphs that have already been revealed. If Ellis reacts by dismissing the indictment, any appeal would go to the Fourth Circuit, which after eight years of Obama has turned sharply to the left.

In that forum, it is highly likely Mueller would win . . . at least if a prosecutor can call it “winning” when the prize for getting his indictment reinstated is a trip back to the lower court, where he gets to litigate the case before the same ornery district judge he just got reversed.

Judge Friedrich and the Russian-Troll-Farm Case in Washington

When Mueller brought the only case he’s charged that involves Russian interference in the 2016 campaign, we noted that it was more theater than prosecution. The Russian defendants are all beyond U.S. jurisdiction, so there would be no trial, and thus no possibility that the allegations would ever be tested in court. It seemed like a perfect opportunity for the special counsel to try to control the narrative: an indictment asserting something that, however highly probable, would be very difficult to prove beyond a reasonable doubt in a criminal trial — namely, that the Russian regime meddled in the U.S. election.

Here’s how I put it at the time:

When prosecutors are serious about nabbing law-breakers who are at large, they do not file an indictment publicly. That would just induce the offenders to flee to or remain in their safe havens. Instead, prosecutors file their indictment under seal, ask the court to issue arrest warrants, and quietly go about the business of locating and apprehending the defendants charged. In the Russia case, however, the indictment was filed publicly even though the defendants are at large. That is because the Justice Department and the special counsel know the Russians will stay safely in Russia.

Mueller’s allegations will never be tested in court. That makes his indictment more a political statement than a charging instrument. To the extent there are questions about whether Russia truly meddled in the election, the special counsel wants to end that discussion (although his indictment will not satisfy those skeptical about Russia’s responsibility for hacking Democratic accounts, or who wonder why the FBI and Justice Department never physically examined DNC servers).

Alas, figuring that he was playing with the house money, Mueller made a reckless bet: He charged not only Russian individuals but three Russian businesses. A business doesn’t have the same risks as a person. A business can’t be thrown in jail. And while members of Mueller’s prosecutorial stable have a history of putting real businesses out of business, a business that is run by a Putin crony and serves as a front for Kremlin operations is not too worried about that either.

So . . . guess what? One of those Russian businesses, Concord Management and Consulting, wants its day in court. It has retained the Washington law firm of Reed Smith, two of whose partners, Eric Dubelier and Katherine Seikaly, have told Mueller that Concord is ready to have its trial — and by the way, let’s see all the discovery the law requires you to disclose, including all the evidence you say supports the extravagant allegations in the indictment.

Needless to say, Mueller’s team is not happy about this development since this is not a case they figured on having to prosecute to anything more than a successful press conference. So, they have sought delay on the astonishing ground that the defendant has not been properly served — notwithstanding that the defendant has shown up in court and asked to be arraigned.

Understand, service of process is simply the means by which a party seeks what Mueller has already got: the opposing party’s appearance in the lawsuit. But Mueller’s argument is so priceless we can’t let it go unstated: In order to serve the defendants in a criminal case in which Mueller alleges that Russia is an adversary government that conducted espionage operations against the American election, the Justice Department sought the assistance of . . . yes . . . the government of Russia. I know you’ll be shocked to hear this, but DOJ says Russia never got back to them.

Something tells me that Concord’s appearance in court is Russia’s way of getting back to them.

Mueller risked exactly what has happened: one of the businesses showing up to contest the case at no risk, in effect forcing Mueller to show this Kremlin-connected defendant what he’s got.

The federal court in the District of Columbia has scheduled Concord’s arraignment for Wednesday, so Mueller filed his papers late last Friday to try to get the matter postponed. But, as Politico’s Josh Gerstein reports, on Saturday evening, Judge Dabney Friedrich curtly denied Mueller’s request. Mueller’s prosecutors had suggested that weeks of briefing were necessary to probe the question of whether Concord had been served properly. As Concord has voluntarily appeared, however, it is not apparent why that question needs examination — if he wants to stand on ceremony, Mueller could just hand the lawyers a copy of the indictment when they see each other in court this week.

In fact, though, Concord’s lawyers have been scrutinizing the indictment very carefully, and making demands for discovery that they say Mueller has ignored for weeks. To put it mildly, this is not a case the special counsel is anxious to try; he is even less thrilled at the prospect of disclosing his evidence and investigative files to a business controlled by Yevgeny Prigozhin. Apart from being close to Putin, Prigozhin is personally charged as a defendant in the case — he controls not just Concord but all three businesses charged in the indictment.

By indicting Russian businesses that belong to a Kremlin-connected defendant who cannot be forced to leave Russia, Mueller risked exactly what has happened: one of the businesses showing up to contest the case at no risk, in effect forcing Mueller to show this Kremlin-connected defendant what he’s got, even though he has no chance of getting the Kremlin-connected defendant convicted and sentenced to prison.

The surest way to put an end to this unwelcome turn of events would be to dismiss the indictment — or at least drop the charges against the three businesses so Prigozhin and the Kremlin can’t use them to force Mueller’s hand. Of course, that would be very embarrassing. But as all prosecutors are taught from their first day on the job: Never indict a case unless you are prepared to try the case.