Evidence against Russians might never see the light of day

WASHINGTON — When deputy attorney general Rod Rosenstein outlined the accusations against 13 Russians for meddling in the U.S. elections, he closed his rare public statement with a standard admonition that’s tacked on to all Justice Department announcements of indictments.

“I want to caution you that everyone charged with a crime is presumed innocent unless, and until, proven guilty in court. At trial, prosecutors must introduce credible evidence that is sufficient to prove each defendant guilty beyond any reasonable doubt,” Rosenstein said.

In any other case, ticking through the mechanics of due process would be perfunctory — an afterthought. But when Rosenstein spoke, it was a reminder that one of the most stunning attacks on American democracy might never be tested in court — the evidence never vetted, the defendants never heard from and the nation left wondering how credible the government’s case is.

There’s a good chance the 13 Russians charged with running an elaborate game of “information warfare” in the U.S. may never appear in court. With no extradition treaty with Russia, nothing can compel them.

But ethicists say the standard rules of conduct, keeping that evidence private until trial, might not be good enough for an attack at the very foundation of democracy.

“It’s so serious, it’s so core, the usual rules of explanation, the usual rules of transparency are going to have to be supplemented — it’s part of the repair of the damage being done to the institutions (of American democracy),” said Arthur Caplan, head of ethics at the New York University School of Medicine. “The public trust needs to be repaired.”

Russian operatives working for Yevgeny Prigozhin, a Russian oligarch with ties to Russian President Vladimir Putin, used a network of fake social media accounts and targeted messaging to roil the national debate in the 2016 election, prosecutors allege. Russians working for the Internet Research Agency posed as American activists on both sides of the country’s ever-widening political divide, the indictment contends, spurring real Americans to show up to protest in the streets.

The sweeping, 37-page indictment marked the first time the federal government identified specific culprits and included a wealth of information. But it also opened more questions, like which Americans were unwittingly helping the Russians.

In Texas, the leader of a group urging secession, publicly asked Mueller to declare that his group never contacted any Russian after it was revealed that a fake secessionist group, “Heart of Texas” was created by Russians on Facebook.

Rep. Adam Schiff, the top Democrat on the House Intelligence Committee, has argued that the chances special counsel Robert Mueller’s evidence never sees the light of day increases the importance of congressional probes — which can more easily disclose its findings to the public.

In a typical case, evidence gathered by a prosecutor would be challenged by defence attorneys – exposing holes or inaccuracies in the case. Without a trial, that’s unlikely.

“It’s very important to preserve the rights of the defendant, even of these defendants. So until there is a trial, where the charges are presented and there is the possibility of responsibility, I’m not sure it would be right to release (evidence) where there is no possibility of cross-examination,” said Michael Walzer, a professor emeritus of social science at the Institute for Advanced Study.

A spokesman for Mueller declined comment for this story.

Legal experts familiar with the challenges of trying to bring a case against foreign nationals who won’t be extradited for trial said Mueller has a tricky balance to achieve between conducting his investigation and letting the public know what really happened.

“I think Mueller bringing these indictments at all is less about law enforcement and more of a public service announcement: ‘Wake up, America. These guys are actively trying to make us hate each other!’” said Lester Munson, a visiting fellow at George Mason University’s National Security Institute and former top staffer on the Senate Foreign Relations Committee.

But others say it’s not only for show.

U.S. law enforcement may never nab the Russians, but Mueller’s indictment set a clear legal boundary against other meddlers — like using “No Trespassing” signs to prevent others from gaining a legal claim to your property, said John Carlin, a former chief of staff to Mueller at the FBI.

Carlin added that the U.S. has used domestic charges against foreign drug lords and terrorists in the past, with seemingly no hope of ever catching them, but sometimes after many years they’re captured and brought on trial in the U.S.

“In the early stages of going after narcotics kingpins, some people thought it was crazy but some of those guy are in U.S. prisons now,” said Carlin, who “I wouldn’t write off that one of these guys gets caught.”

One of those indicted seems perfectly content to stay in Russia.

“I love my country. There are many beautiful places that you can go to in Russia,” Mikhail Burchik told the daily newspaper Komsomolskaya Pravda.

So a report from Mueller seems like the best chance to see what evidence the U.S. gathered.

At the end of the probe, Mueller is tasked by law with filing a “confidential” report to the attorney general. It will then be up to Rosenstein whether or not to release that report.

“You can’t compromise his investigation, he’s gotta protect the integrity of his investigation,” Caplan said. “When the time comes to hear him out what he feels to be true, I would hope for more transparency.”

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