Vladimir Putin was getting ahead of himself when he declared, at the infamous Helsinki press conference in July with President Donald Trump, that charges brought by special counsel Robert Mueller’s team against Concord Management and Consulting “just fell apart in a U.S. court.” The Russian company is accused of running a campaign of social-media trolling to meddle in the 2016 U.S. election with bogus tweets and phony Facebook posts.
Concord hired a first-rate legal team to defend itself in D.C. district court. As a company rather than an individual, Concord can contest the charges without any of its Russian personnel showing up in the courtroom. Much of the summer was spent in procedural wrangling over discovery and other legal niceties. If Putin thinks that merely getting to challenge charges in open court means those charges are crumbling, his perspective may be skewed by the habits of his own country’s justice system. The Russian president isn’t exactly famous for being a rule-of-law kind of guy. Still, that doesn’t mean he’s wrong when he says it’s important to “look at what happens in the American courts. This is what you should base your view on, not on rumors.”
The next thing scheduled to happen in an American court with Concord Management is a hearing slated for October 15. Concord’s lawyers have filed a motion to have the charges dropped on the grounds that “the Special Counsel found a set of alleged facts for which there is no crime. Instead of conceding that truth, however, the Special Counsel attempts to create a make-believe crime that is in fact no crime at all.”
This isn’t just the standard sort of criminal-mouthpiece motion, ticking off boxes in hopes of a longshot dismissal. It’s significant enough that, after an initial hearing in which the special counsel was represented by U.S. attorney Jeannie Rhee, Mueller sent in his big guns. At a June 15 status hearing, Mueller’s side was argued by one of the government’s top appellate lawyers, deputy solicitor general Michael Dreeben. Concord’s D.C. lawyer Eric Dubelier took note: “Well, I guess if anyone thought for a second there wasn’t anything unusual about this case,” he cracked, “it’s the first time in my career that I’ve seen the deputy solicitor general of the United States down here with us common folk in district court.”
Why does Mueller need an appellate heavyweight—someone usually brought in after a trial—for the preliminary sparring? Perhaps it is because the legal theory of the case is a bit tendentious.
Dreeben argued that the United States needs only “to prove a conspiracy to defraud the United States.” But “we do not need to prove a criminal violation of the underlying statute,” he told the judge. In other words, the prosecution is claiming that a conspiracy to do “x” can be criminal even if “x” is not itself a criminal act. This may sound strange, but it’s not a mistake. Pressed by Judge Dabney Friedrich, the deputy solicitor general restated it: “There’s a legion of cases,” Dreeben said, that “have specifically said you don’t need to have an underlying illegality in a conspiracy to defraud.”
He’s right. Conspiracy law is notoriously elastic. Even so, a prosecutor would rather have conspirators dead to rights on a clear, willful violation of a law than have to establish that colluding to do something not proved to be a crime is nonetheless a crime in and of itself. The latter sort of scenario is why you might need a deputy solicitor general on your team.
The specific acts Concord is alleged to have engaged in—paying Russians to write social media posts about American politics—aren’t necessarily illegal. Such activities may violate the spirit of U.S. election law and the Foreign Agents Registration Act, but they don’t necessarily fit the elements of any crime on the books. That’s where the conspiracy charge comes in handy. Concord’s lawyers say their client has been charged “for a contrived crime not specifically defined in any statute, without notice and under a standard known only to the special counsel.”
Yes, and so what? responds the special counsel’s office. Quoting case law, Mueller’s team asserts, “The [conspiracy to] defraud clause does not depend on allegations of other offenses.” And because of that, “even otherwise ‘lawful activity may furnish the basis for a conviction under [Section] 371’ ”—that is, the section of federal law dealing with criminal conspiracies.
How did we get to a place where agreeing with someone to do something otherwise legal can be prosecuted as a criminal conspiracy? And is Concord Management likely to have any luck challenging the constitutionality of such a law?
The scope and ambitions of the federal government have grown tremendously since the days early in the 20th century when what is known now as “Section 371” or “Klein conspiracy” law was being established. When the federal government was significantly smaller, there were far fewer opportunities to run afoul of a rule prohibiting interference with the functioning of federal agencies. But given the ubiquity of modern government activity, a statute against impeding the government in any of its functions threatens to criminalize all sorts of behavior that would otherwise be lawful.
To “defraud” the United States used to be understood in its common-law meaning—“to cheat the Government out of property or money.” But in 1924, Chief Justice (and former president) William Howard Taft wrote an expansion of the term big enough to fill the Taft bathtub. To conspire to defraud the United States “also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest,” Taft wrote in his opinion in Hammerschmidt v. United States. “It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation.”
It doesn’t take much imagination to see how such a definition of “defrauding” could be stretched into a sort of catch-all for federal prosecutors when they are short on evidence of a specific crime with which to charge a perp. Consider this advertisement for the utility of the “conspiracy to defraud” charge from a 2013 issue of the in-house Justice Department journal Prosecuting Criminal Conspiracies: “A defendant can be charged with the defraud prong of the conspiracy statute without any charge of violating a separate substantive statute.” The authors quote approvingly from a Seventh Circuit case: “Neither the conspiracy’s goal nor the means used to achieve it need to be independently illegal.” In short: “The Klein conspiracy is clearly an effective tool that prosecutors should consider.”
The authors of the article admit that “the conspiracy to defraud prong is not without its limitations and courts have expressed concerns about its scope.” Courts indeed have been gradually warming up to the idea of constraining Klein conspiracy prosecutions. The First Circuit Court of Appeals, for example, recognized in a 1997 ruling that the “defraud clause of section 371 has a special capacity for abuse [by prosecutors] because of the vagueness of the concept of interfering with a proper government function.” More recently, a district court judge in a tax case alleging a “conspiracy to defraud” instructed the jury, “Not all conduct that impedes the lawful functions of a government agency is illegal. . . . It is not illegal simply to make the IRS’s job harder.”
Legal blogger Jack Townsend is a former DoJ tax division attorney and coauthor of a standard law-school textbook, Tax Crimes. He’s also a vocal critic of how Section 371 conspiracy charges are used and abused. “The federal government does lots of things, more and more every year, and many things private parties do can get in the government’s way,” Townsend and his colleagues write in their textbook section on conspiracies. “It can’t be that each such action is automatically a felony.”
But does a Russian troll-farm have any chance challenging the law?
“Concord’s arguments have traction,” says a prominent Washington lawyer. “But Judge Friedrich isn’t going to overthrow Supreme Court precedents” that accept Klein conspiracy law as constitutional. For starters, district court judges aren’t in the habit of contradicting longstanding High Court rulings. And there’s also a matter of jurisprudential realpolitik: To challenge even a clearly wrongheaded precedent, says the lawyer, a litigator needs an attractive and sympathetic client. A Putin-linked business funding Russian social-media trolls doesn’t fit the mold.
Townsend hopes that’s not the case: “You always want a sympathetic client,” he says. “But many courts will recognize that in extending constitutional protections to unsympathetic defendants, they are protecting everyone.”