Sunday, June 24, 2018

Facing humiliation, Mueller backs away from prosecution of Russian entities - Thomas Lifson

by Thomas Lifson

Mueller "farms out" his primary mission because it has turned into a farce.

The Mueller special counsel investigation purportedly was instigated to discover possible illicit Russian influence on the 2016 presidential election but now is backing away from the only indictments aimed at Russian entities, leaving only alleged process crimes (such as General Flynn's alleged false statement to the FBI) and alleged crimes that occurred long before the Trump candidacy (such as Paul Manafort's Ukrainian connection).
Devlin Barrett writes in the Washington Post:
In a pair of court filings Friday, the special counsel added four assistant U.S. attorneys to the case against Russian entities and people accused of running an online influence operation targeting American voters.
People familiar with the staffing decision said the new prosecutors are not joining Mueller's team, but rather are being added to the case so that they could someday take responsibility for it when the special counsel ceases operation. The case those prosecutors are joining could drag on for years because the indictment charges a number of Russians who will probably never see the inside of a U.S. courtroom. Russia does not extradite its citizens.
What on Earth could cause a prosecutor to walk away from his central mission to focus instead on incidental and tangential matters? Barrett's use of the words "take responsibility" for the case is the answer. Though not a word of it appears in Barrett's article, the prosecution of the Russian entities has already turned into a farce, as Mueller is caught in a trap of his own making with the hasty indictments of entities he never expected to defend themselves. So slipshod was the work that one of the indicted entities was not even an incorporated entity (i.e., it did not exist) at the time of the alleged offenses. As I wrote more than a month ago:
Special counsel Robert Mueller looks likely to face a huge humiliation in court and a massive public relations disaster. And it couldn't happen to a more deserving guy. Unless a Trump-appointed judge bails him out and grants an exception to federal law, trampling on the rights of the defendants he indicted, Mueller will have to go into court to try a case he doesn't seem to think he can win – or else face the humiliation of dropping the charges he brought against 13 Russian entities (some of which did not exist at the time of the alleged crime) with great fanfare.
Richard Pollock of the Daily Caller News Foundation reports:
Special Counsel Robert Mueller asked a federal judge Tuesday to reject the four-decade-old speedy trial law in the case against 13 Russians and three Russian companies and has asked for an indefinite delay to the Russian collusion trial.
It is the second time Mueller tried to delay the trial. Judge Dabney L. Friedrich, a Trump appointee, rejected the earlier request without comment and ordered the case to go forward.
One of the Russian companies – Concord Management and Consulting – entered the U.S., hired American lawyers, and demanded a speedy trial. The Speedy Trial Act is a 44-year old federal law that dictates that a federal criminal case must begin within 70 days from the date of the indictment.
If the defendant is demanding a speedy trial, there ought to be a very good reason for denying that right. And Mueller's excuse is – let's be blunt – not merely lame, but due to his own misbehavior.
The "complexity" of the case warrants excluding the speedy trial law and delaying the trial, Mueller argued in Tuesday's court filing.
A "district court can, on its own motion or at the request of a party, grant an excludable continuance if 'the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial,'" Mueller wrote.
"This case also warrants a continuance and exclusion of time to accommodate the voluminous discovery at issue and to allow sufficient time for the Court to resolve certain outstanding procedural issues unique to discovery in this case," he continued.
I am no lawyer, but the problem with this excuse is obvious to even me: if the case is so complex that extra time is required, then why was the indictment brought in the first place? Why did the special counsel rush the indictment when he now confesses that it was too complex to go to trial?
Andrew McCarthy, who is a brilliant and distinguished attorney and ex-federal prosecutor, agrees with my less well informed opinion that it is too late to make the complexity excuse. He adds an important note about whose rights would be violated:
"Speedy trial rights belong to the defendant, and if the defendant pushes for a trial within the 70 days, the government has little cause to complain," McCarthy said. "If the case was too complex, the government had the option of holding off on seeking an indictment until it was ready to proceed to trial. When a prosecutor files an indictment, it is tantamount to saying, 'We are ready to go.'"
Another gambit is being employed by Team Mueller to attempt to justify a delay:
... Mueller informed the court on May 16 his office was prepared to enter two terabytes of Russian social media into the record, thereby flooding the docket with a huge amount of evidence, all of it in Russian. The volume could fill 3,000 CD-ROM discs.
And McCarthy debunks this move:
It's "inappropriate for a prosecutor to manufacture complexity and then contend that things are too complex," McCarthy told TheDCNF. "If a prosecutor is disclosing mountains of foreign language materials without an understanding or explanation of their relevance to the case, that is a delaying tactic and an attempt to chew up the defendant's resources."
The tactic "is apt to make the presiding judge very angry," he added.
My surmise is that Mueller never expected the Russian defendants even to show up because they are immune from any penalties, being resident in Russia, where an American court verdict could be disregarded with no extradition possible. The indictments, in other words, were for show, to persuade the pubic that his multi-multi-million dollar operation was producing results and going after nefarious actors from Russia.
Again, being blunt, it looks to me as though Mueller was showboating, using the justice system for propaganda purposes but without an apparent actual case ready to go forward. I am no expert at all on the canons of legal ethics, but this does sound like an abuse of the federal courts if there was no intent to proceed with a prosecution on a timely basis within the requirements of the law. The defendant, Concord Management and Consulting, which retained a top-tier law firm, Reed Smith, for its defense counsel and is pushing for the timely trial to which it is entitled, may well wish to pursue some sort of ethics complaint if Judge Friedrich does not grant Mueller's plea for a delay and Mueller then moves to dismiss charges. That is obviously up to the company and its law firm[.]
If Judge Friedrich already dismissed an earlier plea for delay without comment, why would he now change his mind?
It is hard to see how this case will end up as anything but a humiliation in court and a gigantic public relations disaster for Mueller and his merry band of Democratic Party donors.

After ignoring this elephant in the bathtub, Barrett draws no conclusion about the embarrassment factor, but rather points in another direction:
The development suggests Mueller is contemplating the end of his work and farming out any potentially outstanding prosecutions to other parts of the Justice Department.
Have you ever heard of anyone "farming out" the central mission of a multi-million-dollar operation in order to focus on tangents? Even though the Trump-hating media will refuse to mention it, this move is a confession that Mueller is cutting his losses and leaving others to take the blame when the case collapses.

Caricature of Robert Mueller by Donkey Hotey via Flickr.

Thomas Lifson


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