Another curious filing by the Department of Justice should not be lost amid news about COVID-19. In yet another reversal in a case initiated by Special Counsel Robert Mueller, DOJ filed a motion this week to dismiss charges against two Russian businesses.
The Justice Department has already filed revised memoranda seeking more lenient sentences for associates of President Donald Trump. And now, it has filed a motion to dismiss the charges against Concord Management and Consulting LLC and Concord Catering, companies run by a man known as “Putin’s chef.”
In 2018, Mueller indicted the two businesses along with 13 Russian individuals and the Internet Research Agency, alleging conspiracy to defraud the United States by engaging in a disinformation campaign to interfere with the 2016 presidential election. The Concord entities are controlled by Yevgeny Prigozhin, a wealthy businessman with ties to Russian President Vladimir Putin. Prigozhin was one of the Russian individuals who were sanctioned by the U.S. Treasury for election interference.
DOJ has already filed revised memos reducing its sentencing recommendations for Michael Flynn, Trump’s former national security adviser who pleaded guilty to lying to the FBI about his discussions with the Russian ambassador. It has done the same for Roger Stone, who was convicted at trial for obstructing a congressional investigation into Russian interference. In the Stone case, the revised sentencing memo came only after Trump tweeted that the government’s initial sentencing recommendation was “horrible,” “very unfair” and a “miscarriage of justice.” Timothy Shea, the former aide to Attorney General William Barr who replaced the D.C. U.S. Attorney in January, overruled the sentencing recommendation of career prosecutors, who then withdrew from the case. One prosecutor resigned from DOJ altogether.
In the election disinformation case, Concord Management was the only defendant to enter an appearance in court. The others remain in Russia, comfortably beyond the extradition power of the United States. Now, the U.S. government is seeking to dismiss the charges against Concord Management and the related entity, Concord Catering, leaving in place the indictment against the other defendants.
The recent filing states that the charges against the two Concord entities must be dismissed for two reasons. One is the conduct of Concord Management, which has waged an aggressive defense in court. “Concord has demonstrated its intent to reap the benefits of the Court’s jurisdiction while positioning itself to evade any real obligations or responsibility,” the government wrote in its brief. But prosecutors must always anticipate a vigorous defense when making charging decisions. This alone seems like an insufficient reason to dismiss an indictment that has been returned by a grand jury.
The other reason provided in the motion to dismiss is concern that prosecution will compromise national security information. The motion refers to “a change in the balance of the government’s proof due to a classification determination,” and includes a classified addendum that is not available to the public. While protecting national security is a valid concern, asserting it at this stage of the prosecution seems suspect to anyone who has prosecuted a national security case before.
It is likely that Mueller’s team filed the charges without expecting any of the defendants to ever appear in court, an approach known as “Name and Shame,” intended more to expose wrongdoing than to hold defendants accountable through trial and conviction. But federal prosecutors may not file charges unless they believe that they have sufficient evidence to obtain and sustain a conviction in open court, even if that day will most likely never come. That decision requires a process known as a “prudential search,” in which prosecutors query intelligence agencies for any material that must be produced to the defense in discovery or might become public at trial. The material is reviewed and vetted, and decisions are made at the highest levels of the U.S. Intelligence Community as to whether the prosecution outweighs any disclosures of intelligence information that will result from the prosecution.
As a former federal prosecutor, I have been forced to decline charges because of legitimate concerns that prosecution would expose national security sources and methods. Sources are people who share information with the government, and whose identities are kept secret to ensure their ability to continue to collect intelligence and to protect their safety. Methods are the techniques for collection of information, such as surveillance technologies or strategies that are unknown to our adversaries, and which must be protected to allow their continued utility. In some instances, the cost of disclosing these sources or methods is just too great to justify the criminal prosecution of a wrongdoer. Although I might have been unhappy when forced to forgo criminal charges, I never doubted the good faith of the intelligence officials who made the decision.
But the decision about these equities is always made at the front end, before a case is indicted, so that a defendant is not needlessly saddled with the burden of defending himself in court and so that the government does not have to turn tail and dismiss charges as the case proceeds. This methodical and sensitive process is one that prosecutors take very seriously.
In this case, it is possible that the intelligence equities have changed since Mueller filed the charges in 2018. Ordinarily, the Justice Department would receive the benefit of the doubt that it would dismiss charges only if it were truly unable to prosecute a case without damaging more important intelligence equities. But Barr has lost that benefit. Throughout his handling of the Mueller investigation, Barr undermined his own credibility through his conduct. A federal judge has accused Barr of publicly spinning the Mueller Report in a way that was “distorted” and “misleading.” Barr has referred to the FBI’s investigation of the Trump campaign as “spying,” a loaded term that is not routinely used at DOJ.
In May, Trump gave Barr unprecedented authority over all U.S. intelligence agencies to make all decisions relating to classified information as part of his review of the Mueller investigation. Now that he is directing the dismissal of charges, his decisions can only be met with suspicion. Is he protecting Trump from the disclosure of facts that will cause Americans to question the legitimacy of his election as president, which Trump adviser Hope Hicks told Mueller’s investigators was Trump’s “Achilles heel”?
As a federal prosecutor, I was always mindful that the credibility I enjoyed was earned not so much by me, but through the work of the DOJ lawyers across the country who came before me. I understood that I shared the responsibility to protect the DOJ’s reputation for truthfulness. As U.S. Attorney, I told every prosecutor I hired that no case was worth compromising the Department’s integrity. By damaging his own credibility, Barr is inviting speculation that he is quietly dismantling the work of Mueller.
Barr has famously said that he is not concerned about his reputation because “everyone dies.” He is entitled to hold nihilistic views about himself, but he has a higher duty to the department he leads.
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