A Robert Mueller with a surprisingly frail voice took to the lectern on May 29, 2019. Visibly uncomfortable, he delivered a puzzling address to reporters curious about the strangely timed press conference. Mueller spoke for a few minutes until arriving at what now appears to be the real purpose of the press conference: damage control.
“As the grand jury alleged in a separate indictment, a private Russian entity engaged in a social media operation, where Russian citizens posed as Americans in order to influence an election,” he said. “These indictments contain allegations, and we are not commenting on the guilt or the innocence of any specific defendant. Every defendant is presumed innocent unless and until proven guilty.”
We already knew at that point that Mueller had worked with Attorney General William Barr to redact the report to remove references which could harm “ongoing investigations,” or infringe on the privacy of “peripheral third parties.” But he overlooked one category in redactions: Prosecutors aren’t supposed to try cases in newspapers and press conferences.
Are Press Conferences Customary—or Appropriate?
In his effort to seem fair and conciliatory to his old friend Mueller, Barr told America that, “As the special counsel’s report makes clear, the Russian government sought to interfere in our election. But thanks to the special counsel’s thorough investigation, we now know that the Russian operatives who perpetrated these schemes did not have the cooperation of President Trump or the Trump campaign…”
Mueller’s report said something similar: “the investigation established that Russia interfered in the 2016 presidential election through the ‘active measures’ social media campaign carried out by the IRA, an organization funded by Prigozhin and companies that he controlled.”
Recall that after the Department of Justice (DOJ) held a dramatic press conference announcing indictments of Russian companies for allegedly interfering in the American presidential election, one of those defendants, Concord, hired an attorney to fight back. That case, as I’ve written here and here, has turned into a disaster for the DOJ and America’s cherished traditions of freedom of speech.
“Russia interfered in the election” became such an established truth of the mainstream press that expressing skepticism would be labeled a “conspiracy theory.” But now, in open court, an attorney representing the Department of Justice has admitted that the Russian government had nothing to do with the internet troll farm case.
Mueller and Barr’s reckless publicity of unproven “Russian interference” allegations as “established” confronted federal Judge Dabney L. Freidrich with a challenge to her authority to preside over a trial to determine whether Concord is guilty of anything. Again, the Mueller report publicly pronounced that the Mueller team “established that Russia interfered in the 2016 presidential election through the ‘active measures’ social media campaign.” Really? So why are we even bothering to have a trial if the government has already “established” that Concord is guilty?
DOJ Won’t Tie Russian Government to Troll Farm
A newly released transcript reveals details of a humiliating hearing that took place the day before Mueller’s puzzling press conference. The judge asked the prosecutor, “Can you address also the specific tie to the Russian government, which is the overarching comment that the attorney general made tying both this case and then the case involving the hacking and the release of the e-mails, the GRU case, to the Russian government?”
Buckle up, buttercup, because you’re not going to believe DOJ’s response: “The report doesn’t say that.” What? I thought we “knew” that the Russian government committed an act of war by posting politically charged information on the internet. Now the DOJ is backing away from any tie between the internet troll farm and the Russian government?
The DOJ has now admitted that the Mueller report “itself does not state anywhere that the Russian government was behind the Internet Research Agency [and Concord] activity.” Whoa. The judge then asked, “So it is the government’s position that tying Concord and its co-defendants to the Russian government is not prejudicial?”
In the subsequent order, Judge Freidrich wrote: “On May 29, 2019, following the Court’s hearing, the Special Counsel held a press conference…[in which he] carefully distinguished between the efforts by ‘Russian intelligence officers who were part of the Russian military’ and the efforts of” Concord. This, the Judge found, made the criminal contempt proceedings she contemplated against Mueller’s team “unnecessary and excessive under the circumstances.”
A narrow escape it was indeed. Freidrich found that both the release of the Mueller report and Barr’s statements boosting the report violated DC Rule 57.7 prohibiting lawyers from trying cases in the press. Judge Freidrich rejected the government’s argument that the Mueller report did not smear Concord with unproven links to the Russian government.
Russia or Russian Entities?
“By attributing [the conduct] to ‘Russia’-as opposed to Russian individuals or entities—the report suggests that [Concord’s internet activities] were undertaken on behalf of, if not at the direction of the Russian government,” she wrote. Remember, the government has now denied in court that it even alleged Concord worked for the Russian government to post political messages on the internet.
The government, Freidrich found, “violated a standing court rule” by making these public pronouncements that intruded upon the question to be tried in her courtroom. To save Mueller’s team from “criminal contempt,” Freidrich exercised her discretion to decline to “initiate criminal contempt proceedings in response to the government’s Rule 57.7 violation.”
With the benefit of these newly unsealed documents from Judge Freidrich’s court, we now can see that Mueller’s May 29, 2019 press conference, held the day after the hearing on Concord’s contempt motion, must have been a desperate but successful effort to avoid the wrath of a judge whose authority Mueller insulted by “concluding” the guilt of defendants yet to be tried. And in that desperate effort, the U.S. government threw overboard the key assumption that the Russian government (as opposed to freelancing Russians) was behind the dubious internet troll case.
All over the world, private citizens try to influence American politics using Facebook, Instagram, Twitter, and any other internet-based application that offers some promise of playing a role in the most important political contests in the world. Is that a bad thing? If you believe in robust free speech, it isn’t.