U.S. District Judge Dabney Friedrich in July 2017 at her confirmation hearing in the Senate Judiciary Committee. Credit: Diego M. Radzinschi / ALM

A federal judge in Washington raised questions Monday about how prosecutors working with Special Counsel Robert Mueller III will be able to prove a key element of their case over Russian interference in the 2016 election: the alleged intent of 13 Russian nationals and three Moscow-linked firms to evade U.S. authorities tasked with rooting out foreign participation in the American political process.

U.S. District Judge Dabney Friedrich, confirmed in November 2017 to Washington’s federal district court, said it was “hard to see” how the alleged Russian influence campaign was intended to interfere with the operations of the U.S. government rather than simply “confusing voters.”

Friedrich’s comment came as special counsel prosecutors defended their case amid a challenge brought by one of the defendants, Concord Management and Consulting. The company, represented by a team from Reed Smith, is so far the only Russian defendant that has answered to charges that it conspired to defraud the U.S. government by interfering with Justice Department and Federal Election Commission efforts to monitor foreign involvement in the American political process.

During a 90-minute hearing, Friedrich questioned prosecutor Jonathan Kravis about how the government would be able to show the Russian defendants were aware of the Justice Department and FEC’s functions and then deliberately sought to skirt them.

“You still have to show knowledge of the agencies and what they do. How do you do that?” Friedrich asked.

Kravis, a prosecutor in the U.S. Attorney’s Office for the District of Columbia, argued that the government needed only to show that Concord Management and the other defendants were generally aware that the U.S. government “regulates and monitors” foreign participation in American politics. That awareness, Kravis said, could be inferred from the Russians’ alleged creation of fake social media accounts that appeared to be run by U.S. citizens and “computer infrastructure” intended to mask the Russian origin of the influence operation.

“That is deception that is directed at a higher level,” Kravis said. Kravis appeared in court with Michael Dreeben, a top Justice Department appellate lawyer on detail to the special counsel’s office.

Kravis said the Russian defendants’ alleged deception of voters went “hand-in-hand” with an intent to interfere with the FEC and the Justice Department unit tasked with enforcing the Foreign Agents Registration Act, or FARA, a 1938 law requiring the disclosure of advocates for foreign governments working in the United States.

Concord Management pleaded not guilty in May. Reed Smith partner Eric Dubelier, who has described the election interference charge as “make believe,” pressed his argument Monday that the indictment against Concord Management and the other Russian defendants “doesn’t charge a crime.”

“There is no statute of interfering with an election. There just isn’t,” he said.

Eric Dubelier of Reed Smith, a lawyer for Concord Management and Consulting, charged in a special counsel’s case, exits federal court in Washington, D.C., on June 15 ,2018. Credit: Diego M. Radzinschi / ALM

Later, he said the special counsel’s office alleged a “made-up crime to fit the facts they have.” Under the theory of government’s case, he said, “everybody, even Americans” who pretend to be someone else on the internet could be prosecuted.

“This argument is beyond belief,” Dubelier said.

At multiple times during Monday’s hearing, Dubelier drew a distinction between the special counsel’s office and the U.S. Department of Justice, which he referred to repeatedly as the “real Justice Department.” He said the case underscored the issues of creating an office such as the special counsel’s that is “inconsistent with the consistent behavior of the Department of Justice for the past 30 years.

The case against Concord Management, he said, is the first “where anyone has ever been charged with defrauding the Justice Department” by failing to register under FARA.

“I’ll give you, Mr. Dubelier, that this is an unprecedented case,” Friedrich replied.

 

 

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