In the latest round of their epic bout, attorneys for accused Russian troll farm Concord Management are making their best attempt to force selective prosecution discovery out of special counsel Robert Mueller. Mueller said that Concord never made a “colorable showing” that it is entitled to selective prosecution discovery. Concord attempted to remedy that on Tuesday.
What they did was attack the idea that the case involving the law firm Skadden, Arps, Slate, Meagher & Flom was not as unrelated to the Concord case as Mueller claimed.
“[U]nlike Skadden (an American law firm), Concord (a Russian catering company with no presence in the United States) employed no American lawyers at all, let alone ones expert in the Foreign Agents Registration Act was never given the opportunity to ‘cooperate extensively with the investigation into the matter,’ and then buy its way out of a prosecution while laying all the blame on one allegedly rogue partner,” they said. “Skadden did not voluntarily disclose its criminal behavior, and its allegedly extensive cooperation would not have been possible had the Department of Justice not reached out to Skadden to ask for information regarding whether its work required registration pursuant to FARA.”
“Thus, while the Special Counsel may argue that Skadden is not alleged ‘to have engaged in anything akin to the numerous acts of deception and concealment as alleged against Concord,’ it cannot dispute that Skadden has admitted that it engaged in deceptive conduct and concealment on multiple occasions,” they continued.
Concord claims they and Skadden are “similarly situated” in that they are both “alleged to have conspired to defraud the DOJ’s FARA [Foreign Agents Registration Act] Unit,” but say the cases are dissimilar because Concord was not allowed to avoid prosecution like Skadden was.
“Moreover, the Special Counsel’s assertion that Skadden’s cooperation distinguishes it from Concord is unconvincing. Of course Skadden was more than happy to repay ill-gotten fees; there was no possible alternative other than criminal prosecution,” they said. “Concord, on the other hand, was never offered an opportunity to avoid its own prosecution. That alone is enough of a disparity to warrant discovery.”
“[T]he deal provided to Skadden is evidence that two legal entities, one American, and one Russian, were treated in a significantly disparate way. The reason for this is known only to the Department of Justice, and that is why discovery should be ordered,” Concord claims. “This disparate treatment strongly indicates that the prosecution against Concord is motivated solely by the fact that it is a Russian legal entity.”
Concord asserted that this was the “colorable showing” it needed.
Mueller previously addressed Concord’s claim that it is being selectively prosecuted by saying Concord had failed both parts of the relevant legal test, including the colorable showing.
“A defendant is not entitled to discovery on a claim of selective prosecution absent a ‘colorable showing’ that (1) the defendant was ‘singled out for prosecution from among others similarly situated’ and (2) ‘the prosecution is improperly motivated, i.e. based on an arbitrary classification,” Mueller said. “Concord’s second motion fails both prongs [of the test].”
He said that Concord’s situation is “not remotely similar” to that of a law firm (Skadden) Concord cited in its motion. Why? Because the law firm “is not alleged to have condoned the former partner’s actions, let alone also to have engaged in anything akin to the numerous acts of deception and concealment as alleged against Concord. Nor is the former partner, let alone the law firm, alleged to have participated in any systemic effort to engage in U.S. election interference as the indictment describes.”
Mueller said that Concord made no new argument.
“Concord’s motion sets forth no new argument to support its claim that this prosecution is improperly motivated,” he said. “Because Concord still has not made a colorable showing either that it was singled out for prosecution from among others similarly situated or that the prosecution is improperly motivated, it is not entitled to discovery on its claim of selective prosecution.”
Concord Management claims s… by on Scribd
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