“Soft despotism is a term coined by Alexis de Tocqueville describing the state into which a country overrun by "a network of small complicated rules" might degrade. Soft despotism is different from despotism (also called 'hard despotism') in the sense that it is not obvious to the people."

Tuesday, May 15, 2018

Mueller's unforced prosecutorial error is a victory for 63,000,000 Americans who voted for Donald Trump

Robert Mueller’s Gaping Self-Inflicted Wound

On February 16, 2018, Special Counsel Robert Mueller obtained a federal indictment of 13 Russian nationals and 3 Russian companies for conspiring to wage “information warfare” by “impairing, obstructing, and defeating the lawful functions of the United States by dishonest means in order to enable Defendants to interfere with U.S. political processes, including the 2016 presidential election.”
According to the indictment, in 2014 the defendants, posing as U.S. persons, contacted American political and social activists on social media sites. Using information derived from these contacts, they structured disinformation operations to be used in the upcoming presidential election.

Once the presidential campaign started, they used stolen Social Security numbers and birth dates of real U.S. persons to set up bank and PayPal accounts. Through these, the defendants funded their “operations primarily intended to communicate derogatory information about Hillary Clinton, to denigrate other candidates such as Ted Cruz and Marco Rubio, and to support Bernie Sanders and then-candidate Donald Trump.”

Quoting from the defendants’ communications, the indictment avers that they set up social media accounts to spread content that focused on “politics in the USA” and to “use any opportunity to criticize Hillary and the rest (except [Bernie] Sanders and Trump — we support them).” The indictment outlines a number of online media postings and other efforts that attacked Clinton and encouraged support for Sanders, Green Party candidate Jill Stein, and Trump.

Also while posing as U.S. persons, the indictment says they contacted Trump campaign operatives to provide support. The indictment makes clear that the Trump organizers were unaware of the Russians’ true identities and motives.
Not until page 23 of the 37-page indictment does the defendants’ true purpose come into focus. As stated there, after the election, they organized and promoted rallies “in support of president-elect Trump, while simultaneously using other false U.S. persons to organize and coordinate rallies protesting the results of the 2016 presidential election.”

For example, on November 12, 2016, the defendants and their unnamed co-conspirators organized a rally in New York designed to “show your support for President-Elect Donald Trump” while on the same date they organized a rally in New York called “Trump is NOT my President.” Three days later, they organized a North Carolina rally entitled “Charlotte Against Trump.”

In addition to undercutting the Trump-Russia collusion narrative, these anti-Trump measures make apparent that, rather than achieve any particular electoral outcome, the defendants intended to sow dissension, bitterness, and distrust among the American electorate. They were trying to do in America what Russia has done in other countries by mounting disinformation campaigns to undermine trust and confidence in democratic institutions.

In announcing the indictment, Deputy Attorney General Rod Rosenstein emphasized that it neither alleges that any American knowingly acted in concert with the defendants nor that the defendants’ efforts changed the outcome of the election. While all of that is undoubtedly true, it must be recognized that the defendants had to have known that their efforts described in the indictment would not have any material effect on the election results. Like everyone else, they could read the polls. Hillary was going to win, and Trump was guaranteed to lose. That solid and inescapable political consensus limited what they could hope to accomplish.

So causing one candidate to win and another to lose was not their goal. Instead their mission was to weaken and erode Americans’ confidence in our democratic institutions and to poison and sabotage the acceptance of the election outcome by millions of Americans who supported the losing candidate. In short, they wanted to cause turmoil, dissension, and disorder and to cripple our government. Given the post-election chaos, division and bitterness, they certainly seem to have achieved their purpose.

The indictment was heralded by the media as a major achievement by Team Mueller. But a few observers questioned whether Mueller truly expected any of the defendants to appear in a U.S. court to answer the charges. Others asked if the indictment was merely an empty public relations move by Mueller attempting to show that his investigation was producing solid results.

The answers to these questions have started to emerge. Against all expectations, in April, lawyers for one of the Russian corporate defendants, Concord Management and Consulting, LLC, entered their appearances in the U.S. District Court for the District of Columbia. They followed up by serving extensive discovery requests on Team Mueller seeking full disclosure of the government’s case and investigation including sensitive national security and intelligence information.

This type of discovery is called “graymail” (as distinguished from blackmail) in which the government is faced with having to disclose closely guarded state secrets in order to proceed with the prosecution. The alternative is to drop the charges.

Given that the maximum penalty against Concord is an uncollectable $500,000 fine or equally uncollectable compensation to anyone damaged by the alleged conspiracy, the choice is all the more bitter for Team Mueller. Should they litigate the discovery requests? If they lose and are faced with having to disclose sensitive intelligence information about the case and their investigation, should they withdraw the indictment against Concord? And, if they drop the charges, are they prepared for the resulting public mockery and howls of derision?

On Friday May 5, 2018, Team Mueller immediately began backtracking by filing a motion asking U.S. District Judge Dabney Friedrich to postpone Concord’s arraignment set for May 9, 2018.

They claimed that it was unclear whether Concord had formally accepted the court summons related to the case. In their motion, they included Concord’s discovery requests.

“Until the Court has an opportunity to determine if Concord was properly served, it would be inadvisable to conduct an initial appearance and arraignment at which important rights will be communicated and a plea entertained,” wrote the prosecutors. “That is especially true in the context of this case, which involves a foreign corporate defendant, controlled by another, individual foreign defendant, that has already demanded production of sensitive intelligence gathering, national security, and foreign affairs information.” [Emphasis added]

Team Mueller proposed that the arraignment be postponed while the parties briefed the issue of whether the court summons has been properly served on Concord.

The next morning, Concord’s lawyers replied, “Defendant voluntarily appeared through counsel as provided for in [the federal rules], and further intends to enter a plea of not guilty. Defendant has not sought a limited appearance nor has it moved to quash the summons. As such, the briefing sought by the Special Counsel’s motion is pettifoggery.” [Emphasis added]

Defense counsel argued that Team Mueller was trying “to usurp the scheduling authority of the Court” by waiting until Friday afternoon to try to delay a proceeding scheduled for the following Wednesday. They also stated that the special counsel’s office has not replied to Concord’s discovery requests and, ratcheting up the pressure on the Muellerites, stated that their client intends to assert its speedy trial rights.

Judge Friedrich, a Trump appointee, denied Team Mueller’s request and ruled that the arraignment would proceed as scheduled on May 9.

So what happened at the arraignment? Did things get better for Team Mueller? Hardly.

At the arraignment, Concord’s lead counsel, Eric Dubelier, was asked whether he represents Concord Catering, another one of the charged Russian companies. He replied that he did not and added, “I think we’re dealing with the government having indicted the proverbial ham sandwich. That company didn’t exist as a legal entity during the time period alleged by the government.” [Emphasis added]

Then, hinting at more of the graymail yet to come, he remarked darkly that, “We now know that the special counsel apparently has access to [Concord’s] confidential filings at the Office of Foreign Assets Control, which in and of itself is a disturbing fact.”

Dubelier stated, “Your Honor, we waive formal reading of the indictment. We enter a plea of not guilty. We exercise our right to a speedy trial.” [Emphasis added]

So, what does all of this mean? Metaphorically speaking, it would appear that the yapping dog chasing the car has sunk its teeth into the spinning tire. There is no way for Rover to escape injury. Even if Mueller and his pit bulls win the discovery battle and the case at trial, what’s the prize? A $500,000 fine or compensation to victims? How will they collect?

This is a no lose situation for Concord and a self-inflicted wound for Mueller. And, as the saying goes, self-inflicted wounds are always the most painful.

More importantly, this unforced prosecutorial error is a victory for 63,000,000 Americans who voted for Donald Trump and strongly oppose having the outcome of the election undone by Mueller’s politically motivated and rigged investigation. It will be a pleasure to see Team Mueller dragged kicking and squealing into an American courtroom where for it the process will be the punishment.

George Parry is a former federal and state prosecutor who practices law in Philadelphia. He blogs at and may be reached at


  1. Unconstitutional and incompetent:

    The Russians showed up in court to defend themselves and now have a right to see the charges against them as well as the supporting documents.

    Team Mueller proposed that the arraignment be postponed while the parties briefed the issue of whether the court summons has been properly served on Concord.

    The next morning, Concord’s lawyers replied, “Defendant voluntarily appeared through counsel as provided for in [the federal rules], and further intends to enter a plea of not guilty. Defendant has not sought a limited appearance nor has it moved to quash the summons. As such, the briefing sought by the Special Counsel’s motion is pettifoggery.” [Emphasis added]

  2. Here's your hat. What's your hurry?

  3. Not only does he look like Kerry, he's every bit as well a stroker.

  4. Is Commerce Secretary Wilbur Ross Jr. in special counsel Robert Mueller's sights?

    Ross has local ties, born and raised in Weehawken. His mother graduated valedictorian from Sacred Heart Academy in Hoboken and taught third grade in North Bergen for 40 years.


    After his career as a venture capitalist (sometimes a corporate raider), Ross got into private equity in 2000 and continued to invest in a variety of business interests. Navigator Holdings, in which Ross' investment firm holds a 31 percent stake, does business with Russian energy giant Sibur.

    One of its major shareholders is the owner of a U.S. and E.U. sanction list company (for helping Russia invade Ukraine), Eastern Europe's biggest bank, Sberbank, the Russian state-owned bank based in Moscow. Ross conveniently forgot to disclose this information in his confirmation hearings.

    Mueller's Investigation

  5. I would love to see the face of the eight foot galoot when this sinks in.

  6. Judge Andrew Napolitano said Special Counsel Robert Mueller's investigation may still go on for a while, despite calls from Vice President Mike Pence and others for him to wrap it up.

    White House Chief of Staff John Kelly joined the chorus in recent days, questioning whether Mueller's probe has actually uncovered anything on President Trump after a full year.


    "I don't think he had any idea what he was gonna stumble on," said Napolitano.

    He emphasized that the guilty plea by former Trump campaign official Rick Gates likely provided Mueller's team with a "treasure trove" of new evidence, which is taking a long time to investigate.


  7. sam Mon May 14, 10:22:00 PM EDT

    Other than the president himself, perhaps no public figure is more debated and discussed these days than Special Counsel Robert Mueller. On the Right, former Speaker Newt Gingrich has called him “the tip of the deep state spear aimed at destroying or at a minimum undermining and crippling the Trump presidency.” On the Left, best-selling author J.K. Rowling has tweeted: “If someone, somewhere, isn’t rushing Robert Mueller Christmas angels into production right now, I will be bitterly disappointed.”


    If anything, the story of Robert Swann Mueller III reads like a parody of that privilege. Born to a wealthy DuPont executive, Mueller was sent off to St. Paul’s, the elite New Hampshire boarding school (where he was John Kerry’s lacrosse captain), before matriculating at Princeton, New York University, and the University of Virginia.


    The Senate unanimously confirmed Mueller as FBI director on August 2, 2001, but Mueller did not show up for his swearing in for another 33 days. It was an ill-timed sabbatical.

    When the tragedy of 9/11 struck, Mueller surely recognized his absence would be noticed. Mueller tried to preempt those questions.

    Clown Prince

    1. As Alan Dershowitz recalled on “The Cats Roundtable” podcast, Muller is “the guy who kept four innocent people in prison for many years in order to protect the cover of Whitey Bulger as an FBI informer. …

      And that’s regarded in Boston of one of the great scandals of modern judicial history.
      And Mueller was right at the center of it.”

  8. Time magazine quoted one former prosecutor, anonymously: “The cynics are saying, let him take over the FBI, it’ll be great theater, and he’ll run it into the ground in six months.” The former prosecutor was wrong. It only took Mueller one week.

    Mueller’s FBI Missed Big Cases It Should Have Gotten

    The Senate unanimously confirmed Mueller as FBI director on August 2, 2001, but Mueller did not show up for his swearing in for another 33 days. It was an ill-timed sabbatical. When the tragedy of 9/11 struck, Mueller surely recognized his absence would be noticed. Mueller tried to preempt those questions. Three days after 9/11, he claimed: “There were no warning signs that I’m aware of that would indicate this type of operation in the country.”

    That was untrue. Indeed, the final House-Senate Joint Intelligence Committee report concluded that 9/11 might have been prevented had the FBI been on alert.


    One week after the 9/11 attacks, letters with anthrax were mailed to various media outlets and the offices of two U.S. senators, killing five and infecting 17 others. Coming as soon as it did after 9/11, hysteria naturally ensued. This was Mueller’s first true test as FBI director. The results were not pretty. As Mollie Hemingway noted, Mueller “completely botch[ed] the anthrax killer case, wasting more than $100 million in taxpayer dollars, destroying the lives of multiple suspects, and chasing bad leads using bad methods.”

    Mueller first wrongfully accused Steven Hatfill. Taxpayers ended up paying Hatfill $6 million to make good on that error. Mueller then accused another man, Bruce Ivins, based on scientific conclusions the National Academy of Sciences later determined to be flawed. Too late. A distraught Ivins killed himself. Mueller never apologized for either.

    How Robert Mueller Handicapped the FBI

    1. Schneiderman:

      Had Mueller, for 12 years the nation’s number one law enforcement officer, ever heard those rumors?
      Someone ought to ask him.

      If Mueller did know, it may not have made any difference. To date, in his massive investigation, Mueller has only publicly granted immunity to one person, George Nader. Who is he? The Associated Press has reported that in 2002, Nader was convicted in the Czech Republic of ten cases of sexually abusing minors.

      According to other media reports, in 1991 Nader pled guilty to a federal child pornography charge, and in 1985 he faced a similar charge in federal court involving allegations of importing from the Netherlands magazines depicting nude boys. A judge dismissed the 1985 charges based on an invalid search warrant.

      This is Mueller’s star witness.

    2. Mueller himself has the look of a degenerate child molester at times.

  9. Equal Justice for All

    1. I wish Gowdy weren't retiring.

    2. I too, like Mr. Strokz, can smell Trump supporters.

      They are the ones that give off that healthy alcohol smoke free aroma so rare these days.

  10. Mueller, who I've come to loath, surely does look like a figure right out of some horror movie.

    One would have to be a truly self abnegnating soul to live with that blood sucker.

  11. Howdy Kenn.

    The comfy chair generally occupied by our contributor Quirk I offer to you by the authority vested in me as a long time member here.

    Quirk has given himself over to perpetual whining, and generally disreputable and disparaging conduct and commentary.

    His seat is yours if you like.

    He can stand, or sit on the floor for awhile. He has earned that privilege.

  12. Don't get me wrong. I love Quirk, and always shall, and make it my business to try to keep him out trouble.

    His behavior is know though to often test even the Patience of Angels under certain circumstances and with the passage of a certain amount of whine time.

  13. known

    When soused, Quirk's bravery often reaches levels of transcendence.

    I have personally witnessed this remarkable behavior.

  14. Quirk lives in the relative safety of the outer limits of suburban Detroit, and spends his time if not here at Ye Olde Mafia Barber Shoppe in downtown Detroit, listening to gossip and the latest local Mafia news.

  15. He fought for the Brits in WWI, against Franco in Spain in the 30's, and against the Nazi in WWII.

    In the Korean Conflict he flew F-86 against the commie migs in the first jet air to air fighting in history. They were still shooting one another down with short range ,50 caliber machine gun bursts.

    He made Ace, with more than the five required kills. His war total was 9 confirmed kills.

    He has blogged since the beginning of blogging.

  16. Last time around he voted for that silly goose Jill Stein, the only person in my experience to have done so.

    My own opinion is that this was done not out of conviction but out of a misplaced desire to establish street cred.