Mueller Misstep? Indicted Russian Firm Asks to Share Secret Evidence With Staff

The process of discovery (when prosecutors share their evidence with defense attorneys) in the case has been fraught with fears about how sharing evidence with the American lawyers for the Russian company could backfire on the special counsel's office. Indeed, it came as a surprise to many that Concord decided to respond to the charges at all; now, the Mueller team must grapple with how to present its evidence without revealing state secrets.

Concord Management and Consulting LLC is among two other companies and 13 individuals indicted by Mueller in February for what prosecutors say was a conspiracy to sway the election for then-candidate Donald Trump with the help of fake social media accounts. Specifically, Mueller accuses Concord of funding another LLC, the Internet Research Agency, for the purpose of using sock-puppet accounts to sway the 2016 election toward Trump. 

Concord contends that the judge's decision on whether the materials contained in the discovery can be shared with its employees and officers will "significantly affect the defense position to how it can proceed."

In June, the judge in the case, Dabney Friedrich of the US District Court of the District of Columbia, decided there was "ample good cause" that full discovery could compromise US national security sources and methods by divulging them to the Russians and barred Concord's attorneys from sharing certain materials with any foreign nationals, including Concord co-defendant and owner Yevgeniy Prigozhin, a Russian businessman. Concord argued that it was critical to their defense that Prigozhin be privy to the evidence used to indict him.

"Concord's right to prepare and present a full defense at trial does not depend on Prigozhin having access to sensitive discovery materials, at least not at this early stage of the prosecution," Friedrich wrote at the time, saying the issue could be revisited later.

Partially because the United States and Russia don't have an extradition treaty, it came as a shock to Mueller's team when Concord retained lawyers to fight its charges in the US. Concord was the only indicted Russian entity to respond to the charges.

But when Concord started asking for discovery — the legal right of anybody accused of a crime in the United States — Mueller tried to delay handing over the evidence of his case, an attempt rejected by the judge.

Moreover, Concord's defense attorney Eric Dubelier has argued that the majority of the nearly two terabytes of social media posts that were submitted by the special counsel's office as evidence in the case are mostly in Russian and not related to the case against his client, which revolves around alleged interference in the US election.

Additionally, reviews of the troves of social media posts allegedly made by the Internet Research Agency have found that the accounts consistently boosted anti-Trump messaging. The most frequently retweeted pundit by the accounts allegedly linked to the allegedly-Kremlin run troll farm was Joy Ann Reid, a vocal critic of Trump and Russia.

Concord's pre-trial defense has focused on the assertion that Mueller has not accused the company of engaging in any activities that are illegal, and therefore has failed to properly allege a crime.

The criminal charge in the case is "conspiracy to defraud" the United States. It's a unique criminal charge in that the government need not have been cheated out of money or property, Lawfare Blog explained in an article detailing Mueller's legal theory. For example, while being charged with a conspiracy to commit an offense generally requires that the offense be illegal, conspiracy to defraud does not, and "defraud" is not defined.

In short, for a person to be found guilty of defrauding the US, neither "the conspiracy's goal nor the means used to achieve it need to be independently illegal," the Ninth Circuit has ruled.

"Concord has consistently argued that the Indictment charges no crime at all (interference with an election), but to the extent it purports to charge a crime, the essential element of willfulness is fatally absent," Concord argued.

"Concord's concerns amount to a single attack: that the government has charged Concord based on conduct that is not illegal," Friedrich wrote in a November 15 rejection of Concord's motion to dismiss Mueller's charges. "But Concord cannot escape the fact that the course of deceptive conduct alleged is illegal."