FEBRUARY 26, 2018
“A courtroom is not a place where truth and innocence inevitably triumph; it is only an arena where contending lawyers fight not for justice, but to win.”
Though there is disagreement about the exact wording used by the legendary defense attorney, Clarence Darrow, in describing what he did better than anyone of his day, perhaps of any day, the sentiment outpaces its many incarnations and puts to rest the preaching that trial proceedings or pleadings are necessarily a welcome home to justice.
Ultimately, it’s a search in look for a happy and honest end that, for most, is ever present but just never quite gets there.
Darrow spent his life in the trenches of migrant and trade union camps among anarchists and suffragettes… those who believed collective struggle was more than slogan driven chants that seem to find an almost recurring desperate chorus each and every electoral cycle.
Though remembered largely for his timely, but far too brief, court-room burying of obedient evangelical submissions, he went on to “Inherit the Wind” in real time for real people.
Having tried and saved the lives of over 150 accused in capital punishment cases, Darrow had that unique ability to speak to jurors, in court and out, well above and beyond the seductive devotee roar of the crowd or the crime of the moment. In courtrooms from coast to coast, he reduced often complex legal theories to simple steps while deconstructing cases built of overt acts but, in reality, frequently maneuvered by little more than pain and passion.
Like any seasoned defense attorney, Darrow spent hours consumed not with the literal language of a given charging instrument but the nuanced message contained somewhere in between each fine line. For those of us who have been there, that study says as much about what a prosecutor has, and where they plan to take it, as it does what an accused did that swept them within the eye of the storm.
While endless debate has been unleashed with the most recent indictment returned by the grand jury empaneled by Special Counsel Mueller, most of it is but more tea leaves to be read as so much wishful partisan cheer for Putin… or jeer for Trump.
Watching journalists and fans, alike, weigh in, with expert certainty, on matters of complex litigation and sophisticated criminal procedure, as if a mere cotton candy purchase may pass time with sweetened fancy, however, it provides little informed answer by way of what a “case” is, or is not, and where it may ultimately lead.
To acquire a meaningful glimpse of what the most recent indictment… and, perhaps, those yet to come… augurs for the future, one must necessarily understand not just what an indictment is and is not, but why some are pursued at all during the life of a complex investigation.
The Grand Jury Process
Indictments are not verdicts of guilt proven beyond a reasonable doubt as found by a unanimous jury of twelve following a full and fare adversarial proceeding in which both sides get to challenge and recast evidence or introduce their own.
They are simply pleading instruments; basic charging documents that reflect probable cause sufficient enough to convince a majority of typically 23 jurors who heard all the relevant evidence that various crimes were committed and that certain defendants participated in them.
As for the proceeding, itself, under federal law, while live testimony is the usual, preferred way of presenting evidence to a grand jury, hearsay is permitted. Often an agent simply reads to jurors from reports he or she generated that include what a witness said about what they saw or did or what another source told them. Unlike a trial, where jurors can assess firsthand the credibility of each witness through direct and cross-examination, in the grand jury no such vehicle for challenge or impeachment exists. Indeed, not at all a search for the ultimate “truth”, prosecutors are under no obligation to present Brady material, that is to say, exculpatory evidence to grand jurors.
While federal judges oversee a grand jury presentation and are available to resolve unusual issues or conflicts that may unexpectedly arise during its term, unlike at trial, they are not physically present in the jury room and rarely make rulings on the admissibility of evidence that it hears. Nor do they provide legal or curative instructions about either the relevance or significance of evidence, nor define the elements of a given offense, nor provide final legal instructions before jurors decide whether to return what is known as a “true bill.”
For those stunned by this brief thumb-nail sketch of the ex-partenature of the grand jury process and the ability of prosecutors… should they be so inclined… to essentially stage manage each case as so much a tailored grade B movie… welcome to the real world of the criminal bar.
Although there are “special grand juries” that issue non-criminal reports to a court that may release their findings, a federal grand jury almost exclusively hears “routine” criminal matters. It is empaneled for an 18 month period and, while it can be extended by the court for up to another 18 months, this rarely happens.
Indeed, while the specter of a “deep-state” grand jury sitting in some secret catacomb-like courtroom for 7 plus years targeting Julian Assange and Wikileaks has, for some, become a mantra of political faith, for them I suggest a long peaceful walk in the country. This prophecy is little more than an expedient exercise in convenient reality rewrite.
Most grand juries hear evidence related to multiple unrelated criminal matters with responsibility largely limited to that of reviewing evidence as it is introduced and issuing indictments (or not) based upon investigations that have already been largely completed.
Although very rare, a grand jury can, as here, be empaneled to investigate a single matter and related offenses. Given its by-in-large narrow focus, it is clear that the grand jury that returned the recent indictment against 13 Russian nationals and three Russian entities was, when empaneled, expected to do a lot of proactive hands-on work including a review of classified material as it proceeded.
In high profile, complex cases, these particular grand juries are essential to the underlying investigation itself because… unlike prosecutors and law enforcement agents… they can issue subpoenas and compel witnesses to answer questions under oath.
Generally, indictments are not rich with unnecessary or particularly graphic detail but rather provide a bare bones view of the government’s case. This is not by accident. Strategically, seasoned prosecutors know better than to memorialize prior testimony of witnesses which must be provided to the defense and can be later used for impeachment purposes should they be called to testify at trial on the government’s case in chief.
In relevant part under federal law a true bill must simply contain 1) a plain, concise and definite written statement of the essential facts constituting the specific offense charged and 2) allegations of each element of the offense so that an accused is provided fair notice of the charge against which they must defend.
Although by statute the burden of proof for a legally sufficient indictment is merely probable cause, under long settled Department of Justice policy, charges cannot be brought as a simply a means to harass an accused, to coerce a plea (where evidence to convict is otherwise lacking) or to secure additional time in which to build a case against those indicted to be tried at some future date. Likewise, an indictment may not be obtained simply to toll a statute of limitations that is otherwise in danger of lapsing thereby prohibiting a future prosecution of a given offense.
While prosecutors are under no obligation to present their case, in its entirety, to a grand jury, they are prohibited from seeking a true bill unless they possess sufficient evidence to prove one’s guilt beyond a reasonable doubt for the charges returned as of the time of the indictment.
That holds true for superseding indictments that add additional charges as evidence of new crimes, against those already charged, often unfold as prosecutors prepare for trial or add new co-defendants.
Although distasteful, yet entirely lawful, at other times superseding indictments are sought to bring added pressure upon defendants to dispose of a case by plea or to cooperate against others as they watch their own personal exposure increase exponentially with the return of a second or third indictment.
Likewise, there is nothing untoward or prohibited for prosecutors to obtain an indictment as a part of a broader strategy that includes an on-going investigation that may produce future related charges against, as yet, unknown co-conspirators or to induce cooperation agreements from them as they emerge.
The 13 Defendant Indictment
The recently returned indictment for Conspiracy to Defraud the United States is rich with comical imagery. Whether it’s a U.S. citizen standing in front of the White House holding a sign that reads “Happy 55th Birthday Dear Boss” or another depicting Clinton stating “I think Sharia Law will be a powerful new direction of freedom” or a person paid to ride in a cage on a flatbed truck wearing a costume portraying Clinton in a prison uniform, it appears a lot of money was invested, but little original creative talent expended, in crafting a nonetheless entertaining virtual SNL.
No less amusing were inventive hash tags that ran the gamut from “#IWontProtectHillary,” to “#Hillary4Prison” to “#TrumpTrain” to social media ads such as “Donald wants to defeat terrorism… Hillary wants to sponsor it” to “Hillary is a Satan, and her crimes and lies had proved just how evil she is” to “Among all the candidates, Donald Trump is the one and only who can defend the police from terrorists.”
Likewise, giving snark a dilettante’s name, indeed, various fraudulent Facebook, Twitter and Instagram accounts were apparently set up by the co-defendants including the “Clinton FRAUDation” and, my favorite of all, under the name of “Woke Blacks” which, no doubt, swung the election to Trump through the ad: “[A] particular hype and hatred for Trump is misleading the people and forcing Blacks to vote Killary. We cannot resort to the lesser of two devils. Then we’d surely be better off without voting AT ALL.”
And then there were the memorable rallies such as “Support Hillary… Save American Muslims.” Hopefully this one was recorded by the NSA to be shown over and over again on Turner Classic Movies as evidence of just how desperate and obtuse the US body politic had become by the time of the election in 2016.
Humor aside, the indictment returned by the DC-based grand jury includes a number of serious, often used, generic stand-alone offenses that are easy to prove and difficult to defend.
Indeed, over the years the Bureau of Prisons has been a frequent habitat for thousands of people of color, the poor and political dissidents charged with such crimes as bank and wire fraud, identity theft, money laundering, credit card fraud and visa violations… all of which are covered by the indictment at hand but conveniently overlooked by those partisans who wish to trivialize it as little more than desperate McCarthy like overreach.
Under federal law, identity theft and identity fraud are terms used to refer to all types of crime in which someone wrongfully obtains and uses another person’s personal data in some way that involves fraud or deception. It includes credit card fraud that covers s a wide range of activity such as:
+ False applications for loans and credit cards,+ Fraudulent withdrawals from bank accounts,+ Fraudulent use of telephone calling cards or online accounts, or+ Obtaining other goods or privileges which might be denied if the applicant were to use their real name.
In one form or another, each of these designated offenses were set forth as overt acts in the indictment returned against the identified Russian nationals and each carries a significant prison sentence upon conviction.
Thus, the Department of Justice prosecutes cases of identity theft and fraud under a variety of federal statutes including the Identity Theft and Assumption Deterrence Act. This now 20 year old law prohibits “knowingly transfer[ring] or us[ing], without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law.” It carries a maximum term of 15 years imprisonment.
Schemes to commit identity theft or fraud may also involve violations of other statutes such as identification fraud (18 U.S.C. § 1028), credit card fraud (18 U.S.C. § 1029), computer fraud (18 U.S.C. § 1030), mail fraud (18 U.S.C. § 1341), wire fraud (18 U.S.C. § 1343), or financial institution fraud (18 U.S.C. § 1344).
Each of these offenses carries substantial penalties as high as 30 years imprisonment.
Likewise under federal criminal law one who submits a visa application that knowingly contains false information can be charged with a fraud against the U.S. government. And when, as here, multiple defendants are charged with participation in the same underlying offense conspiracy to commit fraud becomes the designated charge.
In relevant part “whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant or non immigrant visa… for entry into, or as evidence of, authorized stay or employment in the United States, knowing it to be… falsely made, or to have been procured by means of any false claim or statement is guilty of a violation of 18 U.S. Code § 1546.
Upon conviction of such offense, and absent aggravating circumstances, one faces a sentence of up to 15 years imprisonment to be followed by deportation.
According to the so-called “Russian” indictment, most of the defendants committed a per se violation of the applicable statute by falsifying the reason for their visit to the United States and accordingly faces significant criminal exposure upon conviction.
Although thousands of women and men have been convicted, imprisoned and deported for run of the mill visa violations no more serious than those set forth in the indictment this past week, a cursory search of such prosecutions reflects a clear and long standing preference for targeting political activists and dissidents.
Thus, Mousa Abu Marzook was arrested and detained for some 22 months in 1995 for failure to update his visa status by including his membership in Hamas. The head of its political wing, Abu Marzook, had lived in the United States for some 14 years as a lawful permanent resident… entirely before the group’s designation as a foreign terrorist organization in 1999. Ultimately, Marzook was deported to Jordan.
Mazen Al Najjar was accused of being part of Palestinian Islamic Jihad leadership and the editor of WISE (World and Islam Enterprise) Journal. Al Najjar was detained for 8 years for fraud arising from his overstay of his student visa and providing false information about his marriage to a US citizen for the purpose of obtaining permanent resident status. He was ultimately deported in 2002.
Mohamad Mustafa Ali Masfaka, also known as Abu Ratib, a Syrian singer and one time lawful permanent resident was sentenced to a year and a day in prison for failure to include pertinent facts in his immigration application. According to the Government, he was an unreported “operative” of the Holy Land Foundation from 1997-98. However, it was only years later, and after his involvement with HLF had ended, that it was declared a pro-Hamas terrorist organization.
Year before, in 1984, Joe Cahill, a famed Irish Republican and former Chief of Staff of the provisional Irish Republican Army, was deported from the United States for a second time on the basis of illegal entry. On this occasion, he entered the country through the use of a false Irish passport and provided untruthful information as part of his visa application.
After ten years of imprisonment, Joseph Patrick “Joe” Doherty, a volunteer with the Provisional Irish Republican Army, was deported from the United States, in 1992, for visa violations arising from his illegal entry through the use of a false passport.
In 2004, Elana Lappin, a British journalist, became another in a long line of journalists deported from the US for use of an improper visa to obtain entry in the country.
In 2010, Vicky Peláez pleaded guilty to working in the United States as an unregistered foreign agent for Russia and was deported in exchange for the government dropping the more serious charge of money laundering, thereby, avoiding any jail time.
At the same time, Anna Chapman (née Kushchyenko), a Russian national, had her British citizenship revoked and was deported from the US along with nine others in exchange for the government dropping criminal charges lodged against them. They were removed because of visa violations connected to their alleged work with the so-called “Ilegals Program” spy ring under the Russian Federation’s external intelligence agency, the SVR. According to charging documents the ten became “Americanized” as they spent years living under false names adopting American identities and building relationships with sources as they gathered intelligence information ranging from that about nuclear weapons to the gold market to personnel changes at the CIA.
Recently, Rasmea Odeh‘s U.S. citizenship was revoked for failure to include information about an almost 50 year old conviction in Israel which she had failed to include in her visa application when she entered the United States in 1994.
Convicted ,in 2014, and sentenced to 18 months in prison, after her conviction was reversed, she accepted a plea agreement which stripped her of her citizenship and deported her to Jordan.
Although the sentencing court praised Ms. Odeh for her years of service as an organizer among Palestinian women in Chicago, the judge went on to announce from the bench that the “immigration system relies on honesty.”
Why this Indictment?
There is abundant evidence that the various overt acts set forth, and criminal counts returned, in the recent indictment pose significant criminal liability and prison time for those charged.
Yet, understandably, many are torn by the reality that given their status as Russian nationals and the absence of an extradition treaty with Russia, the accused stand no chance of ever ending up in a US court lest they be foolish enough to risk arrest through a cross border passage into a country bound by the Interpol Treaty.
Indeed, typically, when the government does not know where the subject of an indictment is, or does, but knows they are beyond the reach of the court, indictments remain sealed in the hope that an unwitting suspect will one day make the mistake of returning to the United States or another country with which it shares an extradition treaty. Why then was the indictment returned, let alone unsealed?
As for the unsealing, the cynic in me says it was done as a matter of political expedience and power providing an opportunity for the Special Counsel to push back against the political narrative that has deflected the search for truth wrapping millions of Americans in the garb of hoax, fake news or witch hunt.
For many on the right or so-called left, this deflection has become a resounding glee club whether in defense of the president or to support Russia as the enemy of my enemy (the US) or the friend of my friend (Assad).
Others are terrified with the prospect of an indictment to come which names Assange, not as a journalist or publisher, but rather as a common co-conspirator involved in various overt acts related to an alleged hack or possible cover-up that ensued.
For them, Assange is the flawless golden calf beyond challenge or corruption and anything that might tarnish that sculpt must be staved off no matter where the truth may go or just how selective and unequally the law is applied to get there.
Be that as it may, in one fell swoop the public release of this indictment has with predictable political precision retired claims that there is no evidence that Russians and Russian entities conspired to use various publicity and social media platforms to defraud the United States in the run up to the election of 2016… as that term is commonly applied and historically enforced.
In point of fact, to whatever extent the White House was contemplating ending this now wide reaching investigation through a slow burn “Saturday-night massacre”, this indictment has likely turned it into an interesting chapter of what was… in a book yet to come.
As for the practical consequences of obtaining and unsealing the indictment, as a matter of both substantive and procedural law it makes perfect sense.
While a debate has raged on among legal scholars as to whether an obstruction of justice count may lie in the absence of a real-time predicate offense, the return of this indictment has now rendered it an interesting, but moot, point.
For those who believe a conspiracy to obstruct justice compels an actual underlying offense (I do not) or an investigation into one, with the arrival of these charges both prongs of this construct have now been retired to little more than a law school contest.
Conspiracies are not finite; members come and go, often without knowledge or familiarity with others who may share its broad brush aim or even just one of its narrow components. Conspiracies arise when there is an agreement among parties… a meeting of the minds… and overt acts carried out in furtherance of them. Under federal law, all are equally responsible for the foreseeable consequences of a given conspiracy no matter what their individual role.
Some conspiracies involve an illegal end accomplished through lawful overt acts. Others a lawful end carried out by illegal overt acts. Overt acts are simply steps undertaken in furtherance of a particular end. “Impossibility” is no defense to conspiracy to commit a crime.
For example, an agreement to sell fake drugs is nonetheless a crime. Nor does impossibility render a conspiracy any less illegal. Accordingly, a conspiracy comprised of 6 undercover law enforcement agents and one civilian will, of course, not come to fruition but yet remains a crime. So, too, an agreement to illegally impact a given election through impossible means does not discharge its participants from accountability no matter how unrealistic the effort may have been.
By law, a conspiracy does not necessarily end when its intended goal is either reached or fails but can, by agreement, continue to include a host of on-going overt acts or activity intended to hide its existence.
Thus agreements to provide or pay for legal counsel or bail, to care for family, to hide or destroy records such as emails, text messages, audio and video recordings, to mislead investigators about meetings or discussions, promises to pardon, provide future employment or cash, to hinder or end investigations can constitute core components and tangible evidence of a continuing conspiracy as well as the discrete charge of obstruction of justice.
From a technical standpoint, the presence of a charged conspiracy empowers prosecutors to introduce various statements of defendants as evidence in chief against all co-conspirators that would otherwise be deemed to be hearsay and thus inadmissible. For example, if person A in the current indictment is overheard talking to person B about what, as yet, uncharged person X has said or is to do in furtherance of the conspiracy, that discussion may be used against X to build a case against her.
Thus is provided a powerful tool in proving the reach and roles of those accused of criminal involvement.
From a practical standpoint under the applicable sentencing guidelines, there is no difference of consequence in sentence exposure arising from the conspiracy or the underlying substantive offense, itself. That is to say, conspiracy to commit bank robbery and the robbery itself are essentially a difference without a distinction when it comes to sentence upon conviction.
The indictment returned not long ago is what is known in criminal law parlance as a “speaking” one. Well above and beyond the requisite bare bones recitation of events, its precision was intended to give notice of the nature and extent of a sophisticated multi-jurisdictional investigation.
To be sure, it’s unnecessary depth and breadth was crafted as much to serve as an enticement for others to cooperate as it was to lay the foundation for superseding indictments sure to follow. For those schooled in the prosecution or defense of complex criminal enterprises, this tactic is very much the norm.
The indictment itself is not static. As noted, it can, and likely will, be superseded to include new charges and defendants who, by additional overt acts or aims, shared the criminal intent set forth within the underlying indictment; namely to illegally impact the election of 2016 and thus to defraud the United States.
One need not be a soothsayer to envision a host of additional overt acts that may very well end up swept within the reach of the conspiracy found to date, or as evidence of a new one. For example, a meeting, let’s say in a tower, between campaign officials and foreign nationals in which discussions about how to obtain an unlawful election edge, information or otherwise, could easily be weaved into a variation of the current conspiracy. Exchanges of emails, calls and texts before or after the meeting to further its aim are no less problematic for potential co-conspirators.
So, too, an agreement to provide a benefit such as the end of an international sanction law or to change a political platform in exchange for campaign contributions or payments or large unsecured loans are the very kind of overt acts upon which criminal conspiracies are built and proven.
Evidence that individuals, candidates or staff wittingly approved and abetted in the release and use of protected computer data to further one candidate at the expense of another, whether obtained by hacks or internal leaks, adds a new dimension to the case at bar as additional suspects are drawn closer to the gravamen of the prosecution.
These are but a few examples of just how an indictment currently involving 13 foreign nationals and entities and a relatively sedate but criminal social media campaign can explode as so much a launch pad overnight to draw dozens of additional defendants into a federal criminal court and, possibly, prison.
If history is, in fact, a guidepost of what is yet to come, the current complex investigation is not at all without precedent. As Richard Nixon was to painfully learn… what can begin quietly in the dead of night with an obscure offense born of arrogance and greed can tip the scales of justice in ways that even the most powerful of all cannot withstand or avoid.
Only time will tell.