In case you haven’t been keeping up with every detail of the winding Donald Trump-Russia collusion investigation (don’t feel badly, Robert Mueller hasn’t either), a little review will help explain the importance of a bombshell that is about to go off.
You may remember a triumphant Deputy Attorney General Rod Rosenstein holding a dramatic press conference in February 2018, in which he announced the indictment of 13 Russian nationals and three Russian companies. These companies included Concord Management and the Internet Research Agency (IRA).
The indictment accused Concord and IRA of creating fake social media accounts to post “derogatory information” about a number of candidates, including “disparaging” Hillary Clinton. There are two of these “Russian interference cases.” The one involving Concord and IRA does not involve hacking or trafficking in stolen emails. The Concord/IRA case is sometimes referred to as the “Russian Troll Farm” case.
The indictment of Russian individuals and companies appeared, at first, to be a mere publicity stunt, as nobody believed the Russians would voluntarily appear in court to challenge the charges. But then one of them did. Concord hired an attorney to fight the indictment.
Both Mueller’s report and Attorney General William Barr’s April press conference releasing the report included statements strongly suggesting that Concord and IRA worked at the direction of the Russian government. Nobody bothered to notice that the original indictment did not charge Concord with being a tool of the Russian government until Concord filed a motion for a contempt citation against the government for making that allegation.
On July 1, 2019, Judge Dabney L. Friedrich issued an order (to which the government agreed) prohibiting further public statements by the government about the Concord and IRA case, particularly statements alleging that Concord and IRA worked on behalf of the Russian government. A more detailed discussion of this train wreck can be read here.
But Mueller Just Did It Again
This takes us to the Mueller testimony before the House Judiciary and Intelligence Committees last week. On live television in front of an audience of millions, former special counsel Robert Mueller carefully skirted speculating on the guilt or innocence of Roger Stone due to his ongoing criminal prosecution. But nobody apparently reminded Mueller that Judge Friedrich had ordered Mueller’s team to stop saying Concord and IRA worked for the Russian government.
The government hasn’t alleged that, can’t prove it, and abandoned those allegations in open court. The government had only just barely escaped a criminal contempt citation because Mueller’s report and Barr’s press conference seemed to allege that the Russians (the Russians, as in the Russian government) were behind the troll farms. And that’s not true, according to the government’s own admissions.
Less than two months before Mueller’s testimony before the House Judiciary and Intelligence Committees, Judge Friedrich ruled that Mueller violated pretrial publicity rules with his public statements regarding Concord and its co-defendant, IRA.
“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. She found Mueller “violated a standing court rule” by making these public pronouncements.
This Is What We Call Contempt of Court
Mueller’s team did not say in the indictment that IRA or Concord worked for the Russian government, nor could it produce any evidence to support the Mueller report’s claims of Russian government control or coordination with IRA or Concord. Mueller barely escaped contempt of court because (1) he violated a mere “standing court rule,” and not a court order (which she entered after the first violation); and (2) Mueller held a May 29 press conference to walk back public accusations that Concord and IRA worked on behalf of the Russian government.
But then he did it again, in his testimony last week. Rep. Jackie Speier (D-Calif.) asked Mueller, “You said in your report…that the Russian intervention was sweeping and systematic…one of my colleagues earlier here referred to this Russian intervention as a hoax, and I’d like to get your comment on that. …The Internet Research Agency was spending about $1.25 million a month on all of this social media in the United States in what I would call an invasion in our country. Would you agree that it was not a hoax that the Russians were engaged in trying to impact our election?”
Mueller responded, “Absolutely. It was not a hoax. The indictments we returned against the Russians, two different ones, were substantial in their scope, using that scope word again. And I think one of the — we have underplayed to a certain extent, that aspect of the investigation that has and would have long term damage to the United States that we need to move quickly to address.” You can watch the clip here.
Was it an accident? No, Mueller did it again in his response to Rep. William Hurd’s (R-Texas) question: “One of the most striking things in your report is that the Internet Research Agency, not only on its social media campaign in the U.S., but they were able to organize political rallies after the election. Our committee issued a report (inaudible) saying that Russian active measures are growing with frequency and intensity and including their expanded use of groups such as the IRA. And these groups pose a significant threat to the United States and our allies in upcoming elections. Would you agree with that?”
Mueller again made it clear that he believed that the defendants in the Concord and IRA cases worked on behalf of the Russian government: “Yes. In fact, one of the other areas that we have to look at, and many more companies — not companies — many more countries are developing capability to replicate what the Russians had done.” This is exactly what Judge Friedrich said not to do: use the phrase “the Russians” or “Russia” when referring to Concord and IRA, because it strongly suggests that both worked at the direction of the Russian government.
Will Friedrich Follow Up on Her Order?
Worse yet, Mueller was reminded of Judge Friedrich’s admonishments in this sharp questioning during the Judiciary Committee hearing. Even if Mueller could not comprehend the perilousness of continuing to claim IRA and Concord worked for the Russian government (after abandoning that claim in open court), he was flanked by his aide Aaron Zebley who, in theory, should have been present to prevent this misstep. Yet, within a few short hours, he cavalierly violated Judge Friedrich’s order on national television, not once, but twice.
Why did the Department of Justice coach Mueller to obey the court order regarding pretrial publicity in the Stone case but not the Concord/IRA case? Mueller and his DOJ handlers have made a mockery of the restraint Friedrich exercised in response to the government’s previous clear violation of rules prohibiting prosecutors from using the media as their courtroom. In front of millions of viewers, he directly challenged the authority of a presiding district judge to protect the fairness of the trial process.
Potential jurors across the Washington DC and the entire nation watched the most famous prosecutor in American history “confirm” something the government claimed it never even alleged: that these defendants (Concord and IRA) coordinated with or acted on behalf of the Russian government. Mueller has no evidence of this, and his surrogates admitted that in open court. The DOJ was ordered to stop saying that. And then Mueller did it anyway.
Does Mueller’s media celebrity make him “above the law?” Does a sitting district judge have no tool with which to remedy this intentional and repeated violation of her authority? Unless the court does something decisive, an entire nation of citizens is likely to assume the worst.