After nearly nine months of Special Counsel Robert Mueller’s team rushing around with subpoenas and search warrants, people were beginning to ask questions. Where were the indictments?
The answer came at last on February 16, 2018, when a gleeful Deputy Attorney General Rod Rosenstein gave a dramatic press conference proudly announcing the indictment of 13 Russian nationals and three Russian companies, including Concord Management, Concord Consulting, and the Internet Research Agency, for committing federal crimes while seeking to interfere in the 2016 presidential election. When people counted the notches on Mueller’s belt, they always mentioned the Concord case.
The case did not go smoothly. The press conference was supposed to be the end of it. The government deliberately indicted Russian defendants who were not within reach of the U.S. criminal justice system. None of the accusations from the press conference or the indictment were ready to be tested in court.
Then a few months later, disaster struck. One of the Russian defendants hired an American lawyer to contest the charges.
Last year, shortly after the release of the Mueller report, the government barely escaped a contempt citation for publicly accusing Concord of working on behalf of the Russian government. That’s essentially been the theory of the case from the outset. When somebody accuses “the Russians” of interfering in the 2016 election, they mean the Russian government or somebody acting under Moscow’s direction. But in a stunning courtroom admission, our government admitted it had no evidence that certain internet ads were posted on behalf of the Russian government.
Now the case has fallen to earth. The Justice Department on March 16 moved to dismiss the case against Concord Management and Concord Consulting. Rather than surrendering to the presumption of guilt, the Department of Justice instead attempted to tar Concord with the stench of guilt based upon secret evidence it wasn’t willing to submit to the court.
“In light of recent events and a change in the balance of the government’s proof due to a classification determination, as well as other facts described in more detail in a classified addendum to this motion, the government has concluded that further proceedings as to Concord, a Russian company with no presence in the United States and no exposure to meaningful punishment in the event of a conviction, promotes neither the interests of justice nor the nation’s security,” the government declared in its filing.
Did you get that? The Justice Department strongly implies that it has plenty of evidence of Concord’s guilt. But it’s classified. Guilt and innocence are binary. Either Concord is guilty and the government proves it in court, or it’s innocent.
Rule 3.8 of the D.C. bar rules of professional conduct provides: “Except for statements which are necessary to inform the public of the nature and extent of the prosecutor’s action and which serve a legitimate law enforcement purpose, [a prosecutor shall not] make extrajudicial comments which serve to heighten condemnation of the accused.”
There was no need to comment on the evidence against Concord to justify moving to dismiss the case. It’s just something the prosecutors are doing to make Concord look guilty without having to prove anything in court.
The case is a disgrace. It’s a stain on the American justice system. At it’s very inception, the Department of Justice attempted to make it a crime for foreigners to buy ads expressing opinions about politics. That’s speech. And if you’re not willing to protect the speech of dastardly Russians, then don’t expect your speech to get protected when you offend the Department of Justice.
The chief problem with the Concord case was that it sought to criminalize political speech. According to the theory of the government’s case, Concord committed a crime by not first asking permission from the Department of Justice before posting “divisive” ads. Think about that. The government doesn’t want speech that “divides” Americans? That’s tantamount to making debate of any kind illegal.
Concord, or its “co-conspirators,” were also accused of using “fake social media persona” to intercede in political discourse. You know who else uses a “fake” persona to intercede in politics? I do! And so did Mark Twain. So did the American Founders. Alexander Hamilton wrote under the pen name of “Phocion” and later “Publius.” Patrick Henry, who famously exclaimed, “Give me liberty, or give me death!” nevertheless promoted his safety by writing under the name “Senex.” Many other “fictitious personas” remain secret to this day. Pseudonymous speech is essential to freedom.
The Department of Justice forced a foreign company to spend millions to defend itself for the non-crime of running a few thousand dollars worth of ads on Facebook. Now instead of apologizing, it issues a shameless dismissal in which it simultaneously maintains there is secret evidence of Concord’s guilt while refusing Concord the opportunity to challenge that evidence.
Secret evidence is unconstitutional. The Sixth Amendment requires a speedy and public trial. “Public” means that the process should be transparent to ensure fairness. It requires the government to produce witnesses against a defendant. Under the same principles, the government is not supposed to paint somebody as guilty of a crime based on evidence it’s unwilling to produce.
There are millions of loudmouths on the internet trying to disrupt American politics. Pretty much all speech on politics is “divisive.” So the Justice Department wants to end divisive speech by outlawing it? Have you heard of Twitter?
When the federal government uses its awesome power to prosecute the ones who offend its own politics, it places in jeopardy everyone’s right to speak freely. We can be thankful that the government finally has dropped this censorship attempt. It’s unfortunate that the prosecutors found it necessary to use it as an opportunity to make one final dig against its political target.