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On February 16th, 2018, Robert Mueller made a grand spectacle indicting 13 Russian nationals and 3 Russian companies charged with “information warfare against the United States,” with the stated goal of “spread[ing] distrust towards the candidates and the political system in general.”

I specifically mean "grand spectacle" because I am sure Mueller never thought that these people and companies would actually travel from Russia to the US and face the charges against them. In Russia, they are safe from Muller's prosecution because they are beyond the reach of the US Justice system. So Mueller's team must have been very surprised and shocked when lawyers for Concord Management and Consulting, LLC actually showed up on May 7th to enter a "not guilty" plea for the charges against them. Not only that, they requested a speedy trial (no delays) and also requested that the discovery phase of the trial start immediately.

For those of you not familiar with the Justice system, I need to cover a few things before I get to my punch line.

1. A prosecutor can "indict a ham sandwich" because in a Grand Jury hearing, because all that happens here is the prosecutor shows the Grand Jury his evidence that the parties he is charging committed the crimes they are charged with. The standard of proof ("proof beyond a reasonable doubt") does not apply here because the level of proof is much lower. The defense also does not appear during the Grand Jury because this is not the trial, this is just to determine that there is sufficient evidence to convict. With the standard of proof being very low and no opposition, obtaining an indictment is a lot easier than obtaining a conviction. Just because there is an indictment does not mean there will be a conviction.

2. The "discovery" phase of a trial happens before anyone actually goes into the courtroom. Here, the lawyers for the prosecution and the defense meet and the prosecutors give the defense all of the evidence they have and will use to try the accused. This is so the defense can inspect the evidence, verify it's veracity and build a defense to introduce doubt and make the government's case fall below the "beyond a reasonable doubt" standard.

3. The Sixth Amendment clearly says, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial..." This means that if the defendant(s) demand a trial right now, the prosecution cannot "drag it's feet" for any reason. If the prosecutors do drag their feet, the judge can throw the case out.

Taking these three points together, the Mueller team probably cobbled shoddy evidence together and stopped collecting evidence and its' investigation in that area once the indictment was obtained, because they must have thought that no one would actually show up to challenge the charges. It must have been shocking to the Mueller team when lawyers actually showed up, requesting that the trial move forward immediately. This means that the Mueller team does not have the time to go and do the investigative work that is necessary to actually solidify their case and obtain a conviction. They have to disclose everything they have right now and cannot gather more evidence.

The equivalent sports metaphor here is the Wide Receiver who catches a 50-yard pass and there are no defenders around him. He then does a high-stepping saunter towards the goal line and spikes the ball on the 4-yard line because he mistook the 5-yard line for the goal line. The result is he fumbles the ball and the defense has the opportunity to grab the ball, deny the touchdown and maybe even run it the 96 yards back for a touchdown of their own.

And, you see, that's not even all of it.

On May 4th, 2018, Federal Judge T.S. Ellis III was presiding over a hearing related to the Mueller team's indictment of Paul Manafort and the charges of "money laundering, failure to register as a foreign agent, making false statements to investigators, tax fraud, bank fraud, and failing to report foreign bank accounts" against him.

This stumble for the Mueller team here is that according to their scope document, they are tasked with "(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; (ii) any matters that arose or may arise directly from the investigation; (iii) any other matters within the scope of 28 C.F.R. § 600.4(a)."

Now, 28 C.F.R. § 600.4(a) actually reads:

The jurisdiction of a Special Counsel shall be established by the Attorney General. The Special Counsel will be provided with a specific factual statement of the matter to be investigated. The jurisdiction of a Special Counsel shall also include the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel's investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; and to conduct appeals arising out of the matter being investigated and/or prosecuted. [underlines are mine]

So, it appears (and Judge Ellis seems to be agreeing with the concept) that crimes that are alleged to have been committed by Manafort in 2005 fall outside of the scope of authority for the Mueller team to prosecute. According to Judge Ellis, the reason for these charges seems to be a cudgel to threaten Manafort into turning "States' Evidence" against Trump.

In Judge Ellis' own words:

"I don't see what relation this indictment has with what the special counsel is authorized to investigate," Ellis told prosecutors. "You don't really care about Mr. Manafort's bank fraud ... What you really care about is what information Mr. Manafort could give you that would reflect on Mr. Trump or lead to his prosecution or impeachment."

Ellis later quipped: "The vernacular is 'to sing.'"

It appears to me that Mueller and his boys have gotten a bit too big for their britches and are going to get not one, but two severe smackdowns to their integrity.

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