(Photo by Bill Oxford on Unsplash)
Today prosecutors threw up their hands and dropped charges against a Russian company that they had accused of using fraud to interfere in the 2016 presidential election, saying that continuing with the complex case could endanger national security, and it wouldn’t matter if the government won anyway.
“Upon careful consideration of all the circumstances […] the government has concluded that further proceedings as to Concord, a Russian company with no presence in the United States and no exposure to meaningful punishment in the event of a conviction, promotes neither the interests of justice nor the nation’s security,” says a court filing published online by The New York Times.
The filing accuses Concord of attempting to use the court’s discovery process to gather information on how the U.S. government detects and prevents election interference. “In short, 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 filing says.
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Concord is the only one of 16 defendants — 13 individuals and 3 businesses — to have answered the charges that were originally brought by special counsel Robert Mueller’s prosecutors back in February 2018.
Through its American law firm, Reed Smith, Concord pleaded not guilty and fought the case aggressively, and colorfully at times. Concord’s lead attorney, Eric Dubelier, has long alleged that the government was inventing a new crime with which to charge his client, and said the withholding of discovery information, deemed sensitive by the government, made it virtually impossible to mount any kind of legal defense.
At the time Concord filed to fight the charges, it was thought to be an odd move. As prosecutors echoed in their filing today, none of the defendants were believed to be in the U.S., and were unlikely to be turned over by the Russian government. They could, therefore, just ignore the indictment.
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But it also left a troubling possibility: That Concord, which is alleged to be owned by an associate of Russian President Vladimir Putin, could use the court case to gather sensitive information. Unlike criminal trials for individuals, U.S. legal system allows corporations to be tried without any one officer of the court being present. In October 2018 I wrote a report for ABC News about the prospect of a U.S. court unwittingly playing host to an intelligence operation.
At the time Matthew Olsen, a former senior Justice Department official and ABC News consultant, said that the move could have been an example of what’s known as graymail — a legal and espionage tactic in which the defense says they must have access to sensitive or classified information in order to defend themselves. Sometimes it’s a legitimate request, or a legal gambit to put pressure on prosecutors. But other times, the information itself is the end goal. Decades ago the U.S. government came up with procedures to deal with classified legal issues, but they can’t cover every situation.
“It definitely comes into play in many, if not most espionage cases,” Olsen said then, and it can force the U.S. government to make “hard choices” about whether to proceed with the case.
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At the time of that report, neither the Russian government nor Dubelier provided a comment in response. The Russian government has consistently denied allegations of election interference, and in court filings Dubelier asserted he had a legitimate need to share information with Concord officials, including the Putin associate, so he can effectively defend them.
Almost since the start of the case, the government and Concord have argued about who can access sensitive information, and how and where. By August 2019 they had come to a general framework, with details to be worked out.
But based on the government’s filing today, the two sides could never get on the same page, and the government never shook its suspicion that Concord’s real goal was to gather and potentially expose U.S. secrets.
“The government must also weigh the potential risks to national security that are necessarily associated with a trial of this nature,” the filing says. “[…] But even with [protective] procedures in place, trial in this matter would expose additional details about law enforcement’s tools and techniques for investigating malign foreign influence, among other crimes, potentially undermining their effectiveness.
“In light of the defendant’s conduct, however, its ephemeral presence and immunity to just punishment, the risk of exposure of law enforcement’s tools and techniques, and the post-indictment change in the proof available at trial, the balance of equities has shifted,” prosecutors said. “It is no longer in the best interests of justice or the country’s national security to continue this prosecution.”
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