FILE – In this Dec. 11, 2007, file photo commissioner Dabney Friedrich, speaks during the U.S. Sentencing Commission meeting where commission members voted unanimously to allow some 19,500 federal prison inmates, most of them black, to seek reductions in their crack cocaine sentences in Washington. President Donald Trump on May 8, 2017, announced 10 judicial candidate nominations. If confirmed, Friedrich of Washington, D.C., will serve as a District Judge on the U.S. District Court for the District of Columbia. (AP Photo/Stephen J. Boitano)

One of the tells that the special counsel investigation of Robert Mueller is, if not an outright sham and fraud, an exercise in self-justification is the charges brought so far. Once you eliminate the charges that have zero to do with the 2016 Trump campaign (that would be the cases against Paul Manafort) you are left with some real hardcore chickensh**–Mike Flynn, George Papadopoulos, Richard Pinedo, Alex van der Zwaan–and some cases that Mueller was confident he’d never have to prosecute–Russians who will never be extradited to the United States. The flimsiness of the cases against all the Russians is underscored in the one case Mueller is being forced to prosecute, that of Concord Management, a company owned by oligarch, Yevgeny Prigozhin.

Prigozhin was indicted with fanfare back in February and sent the left and NeverTrumpers, to the extent that there is still a difference between the two groups, into orgasmic paroxysms. Much to Mueller’s surprise, Concord retained US counsel.

Almost immediately, it became clear that Mueller’s crack team was not ready for prime time. For a while, the case seemed to be on the verge of dismissal. We found that Mueller had indicted a company that didn’t exist during the 2016 election.

Concord Management’s legal team was back in court last week and the hearing didn’t go well for the government. The judge asked some very pointed questions about how the government intended to prove the case. But it wasn’t apparent just how bad the hearing went for Team Mueller until the transcript of the hearing became available.

The heart of the Defense argument is that the indictment doesn't charge a crime. "It charges conspiring to interfere with an election… There is no statute of interfering with an election." pic.twitter.com/4oPWoEjCtn — Techno Fog (@Techno_Fog) October 24, 2018

Judge asks about an alleged conspiracy re: State Dept and whether those charges could stick. Defense: I'm not going to concede that b/c "part of it relates to discovery that I can't talk about… I can't talk about it publicly." pic.twitter.com/pLR30TOL0X — Techno Fog (@Techno_Fog) October 24, 2018

The Defense hits the Special Counsel for relying on a "100 year-old Supreme Court case which doesn't stand for the proposition that they want it to stand for" "The Special Counsel..never advised you" that the case required a willful violation of the law. pic.twitter.com/5V53wGiWYl — Techno Fog (@Techno_Fog) October 24, 2018

The Defense hits at the Special Counsel. "The real Department of Justice" never would have brought these charges. pic.twitter.com/y6Keku3vUj — Techno Fog (@Techno_Fog) October 24, 2018

The blistering critique continues. The Special Counsel didn't have the evidence, so they "make up a new crime that has never been charged in the history of the United States" pic.twitter.com/qCApwSViDp — Techno Fog (@Techno_Fog) October 24, 2018

Further into the Special Counsel's argument the Judge expresses some skepticism. Court: It's hard to see how concealing identities at political rallies and on social media "is evidence of intent to interfere with a US gov't function" pic.twitter.com/4su5R4GET9 — Techno Fog (@Techno_Fog) October 24, 2018

A very important quote on what may be the real goal of the DOJ and the Special Counsel: "They want to be able to regulate what people say on the internet" by removing anonymity. pic.twitter.com/X36yAB00u2 — Techno Fog (@Techno_Fog) October 24, 2018

If this extract of the hearing is accurate then it seems like Team Mueller is on the ropes. And even Mueller-friendly sources seem to think the case is in trouble. This is from Talking Points Memo:

The issue is a complicated point of criminal law, but it could jeopardize the only count in the indictment that implicates Russian oligarch Yevgeniy Viktorovich Prigozhin. Concord Management, along with Prigozhin and his other company Concord Catering, are alleged to have funded the internet trolling effort, and have been charged with one count of conspiracy to defraud the United States. Unlike Concord Management, Prigozhin has not submitted to the court’s jurisdiction and is not actively defending the case. In a troubling sign for Mueller, Friedrich on Thursday evening ordered prosecutors to file more briefings on the conspiracy to defraud the United States count. The judge’s order came after a hearing Monday, where she grilled prosecutors on what they would need to prove in court. “If Congress wanted to prohibit any foreign involvement in an election, they could do it, but they didn’t do that,” Concord Management’s attorney Eric Dubelier said at a hearing Monday. “They carved out what you can’t do. They never said to foreign people you can’t talk and say what you want to say about a political candidate in the United States.”

This is an argument that a lot of us Russia-collusion-skeptics have made for nearly two years. That is the reason this started out as a counterintelligence, not a criminal, investigation. That is the reason that there is no underlying crime charged in Mueller’s charter. Because it is not illegal for foreign nationals or entities to involve themselves in US elections. Their actions only become problematic when they break existing campaign finance laws.

Dabney, in her order Thursday night, is now asking for prosecutors to square their arguments during the hearing with what’s alleged in the indictment. She specifically pointed to lines in the indictment about defendants’ alleged failure to report their lobbying to the Justice Department or their expenditures to the FEC. She also noted the case law prosecutors cited that she said, in doing so, showed them conceding that they have to show that the defendants had a duty to report. “Should the Court assume for purposes of this motion that neither Concord nor its co-conspirators had any legal duty to report expenditures or to register as a foreign agent?” Friedrich asked in the order. “Specifically, should the Court assume for purposes of this motion that neither Concord nor its co-conspirators knowingly or unknowingly violated any provision, civil or criminal, of FECA or FARA by failing to report expenditures or by failing to register as a foreign agent?” If the conspiracy charge that Concord Management is attacking is thrown out, other charges in the indictment will stand against other Russian individuals and companies. The Internet Research Agency — the organization that according to Mueller, employed the social media trolls — was charged with conspiracy to commit bank fraud and wire fraud, as were two individual Russians. Internet Research Agency along with four Russian individuals, have also been charged with aggravated identity theft.

What she is saying is that, as things stand, the conduct listed in the indictment simply doesn’t add up to a violation of the laws alleged in that indictment. This, again, going to the grand-jury-will-indict-a-ham-sandwich principle of prosecution.

This is the judge’s entire order.

I suspect the judge can read the papers as well as the next guy and knows Mueller is winding down his operation and she’s going to feel no pressure, whatsoever, to play along and let an appeals court sort it out. My guess is that there is a much better than 50-50 chance that she will toss this nothingburger out and close the books on this sad chapter in American political history.

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