The Special Prosecutor’s (SP) indictment on Friday, of US election meddling by Russian people and organizations, displays sophisticated, unconventional lawyering. Speaking as a retired lawyer with decades of civil and criminal experience at all Federal Court levels, this became clear when I simply asked myself: Why did Mr. Mueller’s team file this indictment?
In a conventional setting, a prosecutor files or unseals an indictment when the Government is ready to begin arresting and prosecuting Defendants. It isn't unusual to indict someone in a federal criminal prosecution for whom no reasonable prospect of apprehension and arrest exists. However, when a prominent Grand jury investigation, produces an indictment entirely directed against defendants who can’t possibly be brought to Court, except through purest skullduggery or sheerest serendipity, then one may ask, fairly, if the Special Prosecutor’s team is planning skullduggery or hoping for sheer, dumb luck. I’m betting on neither. So why file those allegations. We may assume a purpose. This was not a mistake or unthoughtful act by the SP.
I’ve known a lot of DOJ lawyers and prosecutors; I litigated directly against more than a few, in my decades at the bar. They are, generally, very highly qualified professionals and high performing individuals. Beyond that, Muller and his team are la Crème de la crème, generally excelling at the best law schools and succeeding in rigorous and challenging careers.
The SP’s team are very well informed and are still digging hard. Unless Mueller announces he’s finished, the running headline should continue to be: More Indictments Expected!
But, much secrecy remains about the breadth and scope of crimes the SP might ultimately charge. So, it remains worth asking, why did the SP file this particular indictment, at this juncture of the investigation. The indictment won’t put anyone behind bars, or even result in arrests. So, what’s going on? I have some ideas.
I read every word of the indictment. Several things about the remarkable document struck me particularly, assuming that the DOJ has evidence for all of the particulars alleged.
First, there was the intricate, inside detail about what the Russians were doing. Apparently, the SP has inside information about what the Russians were doing, how they were doing it, why they were doing it and what the Russian State wanted to accomplish in violation of US law.
Second, the indictment establishes Russia’s intention to disrupt American Democratic institutions, by seeking victory for Trump in the General Election. This is the central conspiracy of the indictment and something that the SP may be able to connect to other Russian/Trump Election co-conspirators.
Third, the St. Petersburg Troll Factory is not the only offensive and illegal Russian election espionage against the USA that Putin’s team has up and running. For example, Friday’s indictment alleges only that the SPTF only conducted “unwitting” contacts between Russian agents and American persons. But, we know, for example, that Russia hacked and stole emails. Other things the Russians are running involve witting contacts between Russian agents and American persons, and we already know about some of them. Right, Mr. Papadopoulos? So, these and other areas, none of which are mentioned in the Friday indictments, still relate to a single conspiracy, emanating from Russia, to illegally support Donald Trump’s 2016 Election.
Fourth, the power to prosecute for conspiracy is one of the most powerful weapons in the Federal law enforcement arsenal. Thus, it jumped out that the SP made a point, in the indictment, to classify, as “unwitting”, the contacts alleged between American persons and Russian agents. The only reason to distinguish unwitting from witting contacts is to allow for the possible existence of people having witting contacts with Russian agents operating illegally. A witting person, in this sense, is someone involved with electing or serving Trump, who knows the Russians are working for Trump’s election, but helps them Trump anyway.
These ideas support a speculation that the purpose for this indictment is to establish the Russian criminal conspiracy to support Trump’s election, thus providing a central framework for indictments the SP has yet to file or unseal. Watch for allegations in future indictments that relate back to this central Russian government conspiracy, to illegally participate in and influence the US election in support of Trump.
For a time in the 1980s, I practiced law on the retail level in a small city in the Southwest Oil Patch. I learned some things about about the awl bidniss. So, as I read the indictment on Friday, I visualized a oil wellhead Christmas tree (pictured right). It doesn’t actually do anything itself, to oil production, but it does make a great deal else possible. Likewise, Friday’s indictment doesn’t really get anybody prosecuted, but it can enable prosecution of a great many others.
Much may have now changed. The SP has laid out a Russian government undertaking of a criminal conspiracy against the US, with a strategic objective of electing Donald Trump in the 2016 General Election. Every Trump supporter, who has touched a Russian, could be standing with one foot in the grave of criminal jeopardy.
Working hard to elect Trump or any other President is one thing. But doing so, knowing that Russia is pulling an oar alongside you, is an entirely different thing. Federal law prohibits and regulates foreign involvement with our elections. Americans who knowingly acted with Russians to elect Trump may be witting co-conspirators. Some people are going to face serious legal jeopardy because they knew that they were facilitating or assisting Russian efforts to influence the 2016 General Election.
One final point bears repeating and emphasis. The SP and his people have tremendous advantages. For example, they pretty much know everything. More evidence will turn up in various ways, but the SP’s office has huge strategic and tactical information advantage against any target. This is glaring when considering the President, who hasn't been able to hire a top notch or properly experienced legal team. If he had, his lawyers would already knows everything the SP knows. The President’s lawyers don’t display much interest in that approach to their jobs. Instead they behave more like celebrity attorneys carrying water for the star du jour.
Merry Christmas.