In such divided times, we shouldn't be surprised that the Supreme Court embraces passive virtues in order to guard their authority.
In Part I, I argued that special prosecutor Mueller had charged an essentially unprecedented and undefined version of conspiracy and without a specific offense serving as the object of the conspiracy. We now have to turn to the language of the numerous paragraphs in the indictment to discern what the charged offense of defrauding the United States is all about.
It appears that Mr. Mueller has formulated a new and general principle of criminal law, namely, the crime of “interference.” This indictment mostly charges a campaign of criminal interference by the Russian defendants against the United States, in support of Donald Trump, and in opposition to Hillary Clinton The most frequently used action word in the indictment is a form of the word “interfere.” The Russians “engaged in operations to interfere with elections and political processes.” They were carrying out “interference operations targeting the United States.” They set out “to defraud the United States by impairing, obstructing, and defeating the lawful functions of the government through fraud and deceit for the purpose of interfering with the U.S. political and electoral processes, including the presidential election of 2016.” One defendant organization, the Internet Research Agency, “is a Russian organization engaged in political and electoral interference operations.” Another was engaged in “interference operations.”
The defendants are three private Russian entities: the Internet Research Agency, Concord Management and Consulting, and Concord Catering. The last two seem to be the same entity. The chief organizational defendant is apparently Internet (“the Organization”). The indictment states that Internet is “engaged in political interference operations.” Concord had its own “interference operation,” and its activities occurred not only in the United States but also within Russia and in “various countries.” Concord funded Internet and thus may have been larger than and maybe really in actual control of Internet, possibly through Concord’s chief officer, Yevgeny Prigozhin. There is no allegation that any of the three organizations were part of the Russian government, and none of the 13 individual defendants is said to be a Russian government employee or agent. They are all employees, most of them managers of some sort, of Internet or Concord.
With respect to criminal acts of the individual defendants, there is less than sparse detail. In the 18 pages under the sub-titles of Object of the Conspiracy, Manner and Means of the Conspiracy, and Overt Acts, there are only five references to any specific acts by any of the individual defendants. Instead, the indictment alleges that “Defendants and their co-conspirators” (a description occurring more than 100 times in the indictment) committed all of the acts alleged. “Defendants” means the three organizations and the 13 individuals, while “their co-conspirators” means other unnamed conspirators. Thus, in this section of the indictment, Mr. Mueller is saying that every defendant committed every one of the dozens of criminal acts alleged, an impossible proposition to prove at trial—a certain opportunity for defense attorneys to move for individual dismissals of individual defendants. In a conspiracy, of course, acts by one person can be attributed to another willing participant, but for an indictment to specifically allege individual acts were performed by a group is a physical and intellectual impossibility.
How have the Russian defendants undermined the “lawful governmental functions” of the United States?
The main organizational defendant, the Internet Research Agency, had a department called the “translator project.” And seven of the 13 defendants are described as being involved in that project. As the indictment states, “[t]his project focused on the U.S. population and conducted operations on social media platforms such as YouTube, Facebook, Instagram, and Twitter.” But nowhere in the indictment are there any specific allegations of criminal activity by or at the translator project. However, considering in their entirety the indictment’s pleaded facts in Count One, the placing of advertisements and messages on social media is by far the predominant activity described—in other words, what American advertising, commercial, entertainment, and political organizations do every day.
The annual budget of the main organizational defendant, the Internet Research Agency, is said at one point in the indictment to be the indefinite “equivalent of millions of U.S. dollars,” and another point, it is earnestly said that the monthly budget of one of its projects, Project Laktha, was the equivalent of $1.25 million dollars. It is hard to imagine how this microscopic amount of money could have any effect on the society, politics, or economy of the United States, and we may be allowed to compare it to, say, serious money like a television advertisement at the Super Bowl.
What Project Laktha did in the United States, or with respect to the United States government or its elections, is not addressed. In addition, it is not even clear how much of the organization’s activities concerned this country, for it is described as having “multiple components, some involving domestic audiences with the Russian Federation and other targeting foreign audiences in various countries, including the United States.”
In one puzzling paragraph (number 57), the indictment claims that immediately after the 2016 presidential election, the Russians organized political rallies both in support of and in opposition to President-elect Trump. Since the paragraph makes no attempt to explain this, the reader is left to speculate. Perhaps the Russians were schizophrenic. Perhaps this was the most sophisticated form of disinformation, with the apparent opposition to Trump actually being a form of supporting Trump by the means of discrediting his opponents. Perhaps the Russians sought to undermine all American elections, even for candidates they supposedly supported. The paragraph goes on to say that the Russians organized a “Charlotte Against Trump” rally in Charlotte, North Carolina, on November 19, 2016—that is, two weeks after the election. A search of the website of the Charlotte Observer shows that the newspaper wrote a preliminary article two days before the event and then covered the event on the scheduled date. About 100 people attended. Were they Russian operatives or just Trump opponents? And what about the Charlotte Observer’s unwitting participation in this Russian scheme? Should the Russians be accused of undermining American journalism as well? Regardless, it is hard to imagine how a meetup of 100 people significantly undermined American democracy.
The indictment also alleges that the Russian defendants organized other rallies in various places, primarily in “Florida,” but of the 41 references to that state, the indictment alleges activities in actual Florida cities only twice. It also makes the same kind of statements about rallies supposedly organized to take place in the general location, “New York,” only one of which was said to be scheduled in New York City, and the general location, “Pennsylvania.”
In introductory paragraphs, the indictment states that in 2014, the Internet Research Agency “began operations to interfere with the U.S. political system, including the 2016 U.S. presidential election.” All three defendant organizations and the 13 individuals are said to have begun their operations in 2014. But the indictment omits telling us what those operations were. When the indictment describes activities of the defendants, it refers to the presidential general election between Trump and Hillary Clinton almost exclusively. One is left to wonder what the Russian defendants did in or concerning this country in 2014 and 2015, and why the indictment does not report on events of those years. In 2015 and 2016, the Republican Party had 13 candidates for President and the Democrats four. Were the Russians not maneuvering about any of those other candidates during those years? There are brief exceptions. One sentence refers to the Russians supporting Bernie Sanders and opposing Ted Cruz and Marco Rubio; another reiterates that the Russians acted in suppor of Sanders. Russian support for the presidential candidacy of Green Party candidate Jill Stein is also noted.
The indictment has its comical side, although it appears that the authors of the indictment do not comprehend it. It is remarked that on May 29, 2016, Russian operatives in the United States tricked “a real U.S. person” into having himself photographed in front of the White House holding a sign saying “Happy Birthday, Dear Boss,” a birthday message to be transmitted to defendant Prigozhin back in Russia. The indictment says that the Russians wired money to another “real U.S. person” for the purpose of building a cage containing an actress “depicting Clinton in a prison uniform.” Like many places in the indictment, it does not say whether the cage was ever constructed or displayed. In another paragraph, it is said that the “Defendant posted derogatory remarks about a number of candidates.” So, descriptions of practical jokes and “derogatory remarks” about political candidates are in all seriousness included in a nationally significant indictment as evidence of criminal acts.
U.S. law bans foreign nationals from making certain expenditures or financial disbursements for the purpose of influencing federal elections. One of the defendants traveled to the United States “under false pretenses for the purpose of collecting intelligence to inform the Organization’s operations.” What the false pretenses were and whether they were criminal is not addressed.
Overall, the indictment charges the three Russian organizations and 13 individual defendants with attempting to influence the 2016 presidential election. But it does this without the usual precision concerning time, place, and individual acts that characterizes federal indictments. To be sure, conspiracy law does not require that conspirators even accomplish anything, just that they agree to commit the crime and perform some overt acts to achieve that commitment. Nevertheless, if this case were to go to trial, the obvious necessity of proving definite acts by definite persons would appear to be a serious problem.
Special prosecutor Robert Mueller has presented an indictment to the country in which it is alleged that foreign nationals attempted to “undermine public confidence in democracy” by means of social media. The entire indictment, with its vagaries about what person did what, where and when, is based on social media. The phrase “social media” occurs 39 times in the indictment, while Facebook occurs 35 times, Twitter nine, and Instagram five.
Why did special prosecutor Mueller bring this indictment? It has been widely recognized that the defendants in this case are safely ensconced in Russia and will never face the charges. More fundamentally, what is the public purpose of filing such an unprecedented, not to say melodramatic, accusation of criminality, a conspiracy to supposedly “defraud” the United States government, and, by implication, the country itself?
If somehow the special prosecutor had managed to get the defendants into custody, the case, or at least Count One of the case, would almost surely have been impossible to adjudicate. For instance, in addition to discovery under Rule 16 of the Federal Rules of Criminal Procedure, a criminal defendant is entitled to file a pretrial “bill of particulars” seeking more information about the charges against him. In this case, with all of the supposedly criminal acts having been charged as committed by that indefinite group, “Defendants and their co-conspirators,” defense counsel would be seeking to find out what their individual clients were supposed to have done. In other words, with so many generalities and vagaries alleged in the indictment, the legal motions to discover particulars would be of unusual significance in this case. There would be 16 bills of particulars filed. And with the revelations of one bill of particulars having an effect on other bills of particulars, it might take years just to sort out this preliminary stage of the proceedings.
Finally, courts at every level would have to issue rulings at some point in the course of their consideration of the case on whether the facts actually proved a defrauding of the United States, broadly defined, and/or of any of its agencies.
Overall, what did the Russians do in the 2016 elections that a goodly number of Americans did not do? Spread disinformation and accusations, true and false? Could a group of Americans be accused of conspiring to “defraud the United States” for organizing false political rallies and conducting “operations on social media platforms such as YouTube, Facebook, Instagram, and Twitter”?
As for foreign countries, do not all the major countries, and many of the minor countries, in the world communicate their interest and regard themselves as stakeholders in American presidential elections? How much do they use social media and website media in pursuit of those goals?
Finally, what about free speech? The original purpose of the Free Speech Clause of the First Amendment was to protect free political speech. Should free speech rights on American soil be restricted to Americans only? Should political speech entering this country from another country be restricted? Or criminalized? Are we going to create a power of government to enforce the truthfulness of political speech?