The indictment was political theater never meant to be tried in court.
More than an investigation, the Mueller probe was the wellspring of a political narrative. That becomes clearer as time goes by and more information ekes out . . . such as new confirmation that, months before Mueller was appointed in May 2017, it was already well understood in Justice Department circles that there was no case of criminal “collusion” between the Trump campaign and Russia.
Never was that made more obvious than by the Justice Department’s quiet announcement late Monday, under the five-alarm noise of the coronavirus scare, that it has dropped the special counsel’s indictment of Russian companies — an outcome I predicted here at National Review nearly two years ago.
A little refresher is in order.
As detailed here many times, one of the biggest problems confronting those weaving the collusion tale was the inability to prove that Russia hacked the Democratic email accounts. As Ball of Collusion outlines, that’s not the only fundamental problem. There is also the fact that the Democratic emails, in which Hillary Clinton was not an active correspondent, did not actually hurt her campaign at all — certainly not the way her own email scandal did (a scandal for which there was no way to blame Moscow). There is also the dearth of evidence that the Trump campaign was even aware of, much less complicit in, Kremlin intelligence operations. Still, very basically, it would be impossible to prove that Trump had conspired in Russia’s hacking unless prosecutors could first establish that Russia had done the hacking.
Let me repeat something else I said several times: This is not to say that Russia is innocent. Again, I accept the intelligence agencies’ conclusion on this point (though a number of others, including some former U.S. intelligence officials, do not). But the point is that Mueller could never have proved it beyond a reasonable doubt under courtroom due-process standards. Any competent defense lawyer would have had a field day with the Obama Justice Department’s failure to have the FBI take possession and conduct its own forensic examination of the servers that were hacked. And what fun defense counsel would have had with DOJ’s delegation of that rudimentary investigative task to a DNC contractor with close ties to the Clinton campaign. (Yes, the forensic conclusions blaming Russia were paid for by the same folks who brought you the famously dodgy Steele dossier.)
Speaking of dodgy, recall that Team Mueller and the Justice Department dodged every case that would have called for proving Russia’s cyber theft. Even when they indicted WikiLeaks chief Julian Assange, the very Ground Zero of “collusion,” they resisted charging him with the Russian hacking scheme. Given that prosecutors and the FBI spent years investigating the president of the United States for this crime of the century, it should seem astonishing that they passed on charging the guy they’ve told us is the central conspirator with this crime. But you weren’t astonished if you were reading National Review . . . because you knew they were not going to charge any crime that called for proving Russia’s culpability in court. Their evidence is shaky and, if there were ever an acquittal, the Trump-Russia political narrative would be kaput, while the Putin regime celebrated a huge propaganda coup.
So why did Team Mueller publicly file an indictment against Russians?
Because they figured it was a freebie. The prosecutors assumed that they would never have to . . . you know . . . prove the case. The Russian defendants were in Russia. There was no way Putin would ever extradite them for an American criminal trial. The prosecutors knew that. What they wrote was not meant to be a real indictment. It was meant to be a press release. It was meant to be what Team Mueller was best at: the spinning of a narrative. I explained it this way 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.
It all seemed so well choreographed. The indictment was, of course, reported as gospel-truth by the anti-Trump media — the same folks who tell you, whenever a Democrat is charged with a crime, that an indictment is merely an allegation, that nothing is proven until it’s proven in court.
Alas, Team Mueller made a mistake. A reckless bet, the kind made by people under the misimpression that they are playing with the house’s money. To quote from my column nearly two years ago:
[Team Mueller] 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.
Since they had no concerns about being imprisoned or bankrupted by prosecution and fines, there was nothing to discourage these businesses from doing what Team Mueller blithely assumed no Russian defendant would ever do: retaining lawyers to show up in federal court, demanding the trial to which American law entitled the companies, and demanding all the discovery to which American due process guaranteed them access.
It was a debacle.
First, the prosecutors tried to get the case and all pretrial discovery postponed on the ground that the businesses in question, Concord Management and Concord Consulting (each controlled by Yevgeny Prigozhin, a food-supply oligarch said to be a Putin crony), had not been properly served with the indictment. This was absurd. Service of process is the way you get a business to come to court; these businesses were already in court, demanding to proceed with the prosecution that Team Mueller had chosen to start.
The businesses then pressed the government to provide them with all the evidence and other discovery the law requires prosecutors to disclose. Team Mueller countered that they couldn’t do that because it would harm national security. That’s ridiculous. Imagine if I were prosecuting a mafia hitman and refused to make discovery, reasoning that the mafia might find out what’s in my files. The judge would hold me in contempt, or dismiss the case — or both. As a prosecutor, if you’re worried that the security implications of disclosure are too great a risk, you don’t charge the case. But if you file charges, there is no getting around disclosure obligations.
Being forced to make disclosure did not go well for Team Mueller and his Justice Department successors. As they had to concede, there was no evidence that the Russians who carried out the troll farm scheme were directed by the Russian government. Stopping short of such an allegation, the indictment claimed the defendants were backed by Prigozhin — which was quite the comedown from the Justice Department’s drum-beating about Russia’s “information warfare.”
Moreover, as the trial judge groused, the troll-farm indictment was “difficult to follow.” Team Mueller’s evidence was not even strong enough to allege that the defendants were actual Russian agents. Prosecutors thus crafted, shall we say, a creative theory: The defendants had “defrauded the United States” by failing to disclose their Russian identities and affiliations, which purportedly undermined the ability of U.S. bureaucracies to maintain a registry of foreign agents and enforce the campaign-finance laws. Except . . . it was unclear that the defendants had a legal duty to report information in the first place. How do you establish the criminality of concealment if there is no requirement to disclose?
Finally, despite all the huffing and puffing about Russia’s purportedly massive effort to influence the election through social-media ads, the grudgingly surrendered discovery indicated that many of the ads violated no American laws and cost pennies. Assuming for argument’s sake that at least some of the candidate ads and rallies fell under Federal Election Commission reporting requirements, the defense contended that total expenditures for such activities amounted to less than $5,000.
With the judge trying to push the case to trial this spring, the possibility of humiliation loomed. This past Monday, when no one was watching, the Justice Department finally — inevitably — pulled the plug. The cases against the companies were dropped. The sympathetic New York Times reported the prosecutors’ fig leaf: The defense was “weaponizing” the case “to gain access to delicate information.” It’s the kind of claim the Times would ridicule were the paper not so invested in the Trump-Russia narrative. In point of fact, the defendants were demanding the legal right to discovery that Mueller’s prosecutors automatically (if unwittingly) triggered when they decided to file an indictment.
Not to say, “I told you so” (of course not!), this is exactly what these columns said would happen. From nearly two years ago:
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 [i.e., to compel discovery]. 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.
There is no exception for “indictments” that are really meant to be political theater.
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