Mueller’s ‘speaking indictments’ offer clues to strategy

Special counsel Robert Mueller has made use of an unusual legal tool that has allowed him to build a narrative about Russian interference in the presidential election while quietly pressing forward with his investigation behind the scenes.

Mueller has made frequent use of “speaking indictments” — a colloquial term used by attorneys and legal experts to describe indictments that go into more detail, and provide more facts, than what is required under law.

“A speaking indictment comes from the idea that the indictment does more than that — it speaks, it tells a story,” said Jack Sharman, a former special counsel to Congress during the Whitewater investigation.

{mosads}It is unclear precisely why Mueller is using speaking indictments, but people familiar with their use suspect he wants to use them to tell the public more about what his investigation believes happened in the 2016 election.

It could also be a way for Mueller to fire warning shots at people he might want to target.

The 29-page document charging a dozen Russian intelligence officers in the hacking of the Democratic National Committee that was unveiled by the special counsel last month fits the description of a speaking indictment.

These indictments contain a high level of detail and go well beyond the constitutional requirements of laying out the essential facts of the offense charged. It also gives the defendant enough notice and specificity to mount a defense.

The Russians charged are out of reach of U.S. officials and therefore unlikely to see their day in court, meaning that the charging documents are the Justice Department’s single opportunity to lay out what prosecutors say are the facts.

Glenn Kirschner, a former federal prosecutor with the U.S. Attorney’s Office in Washington D.C., said the documents can effectively send the signal: “‘Listen folks, we know what’s up here.’”

“That could inspire cooperation by others,” Kirschner said.

The indictment for the election hacking contained several detailed excerpts that immediately attracted the attention of the media and the public.

One passage specifies that co-conspirators “for the first time” attempted to spear-phish email accounts linked to Hillary Clinton’s personal office and her presidential campaign on July 27, 2016.  It was on that same date that then-candidate Donald Trump called on Russia to “find” the missing emails from Clinton’s tenure as secretary of State during a new conference in Florida, though the indictment does not make mention of Trump’s appeal to Moscow.

The indictment also alleges that the Russians, posing as hacker persona Guccifer 2.0, communicated with “a person who was in regular contact with senior members” of Trump’s campaign about the release of documents stolen from Democrats.

Roger Stone, a longtime informal adviser to Trump, has since acknowledged he is likely the individual in the indictment.

Speaking indictments are generally used in very complex cases, often those alleging conspiracy to commit a crime, where prosecutors must prove that co-conspirators committed at least one overt act to commit the underlying offense.

Mueller has used these detailed indictments to charge Russian nationals in the hacking conspiracy, as well as those allegedly involved in the Russian troll farm that spread divisive content on social media — both of which are linked to a broader plot to interfere in the election.

The indictments also provide a noteworthy contrast to the behind-the-scenes persona Mueller has adopted as he has conducted the investigation.

“There’s no question that a speaking indictment is so that a lot of alleged facts can be put in the public record,” said Jon Sale, a former assistant U.S. attorney in the Southern District of New York and in the District of Connecticut.

There could be other strategic reasons for using speaking indictments, including signaling to a defendant that the case could be difficult to win, putting other potential defendants on notice, or telegraphing the sheer amount of evidence that prosecutors have in their possession.

Mueller has also used speaking indictments to allege crimes committed by Trump’s former campaign aides Paul Manafort and Richard Gates. Manafort was convicted on eight counts of bank and tax fraud in federal court in Alexandria, Va., on Tuesday in what was seen as a victory in Mueller’s investigation. Gates testified against him after reaching a plea deal with the government to cooperate in the investigation.

“It may be a way for the government to prove it has a mastery of facts or the timeline … to convince the defendant that it’s going to be a hard case to win,” said Sharman.

“The other [reason] might be to send a message to someone other than the defendant,” Sharman added. “For example, potential co-conspirators, other potential defendants.”

Kirschner, who worked with Mueller, said he was struck by the level of detail in the hacking indictment, noting that the mention of the individual linked to the Trump campaign could be meant to send a signal to Stone. Since then, Mueller’s team has appeared to circle Stone in its inquiry, interviewing and subpoenaing several of his associates.

“I think it took all of us career prosecutors by surprise when we saw that level of detail,” Kirschner said.

The special counsel’s office declined to comment for this story.

Prosecutors’ use of speaking indictments is a source of debate, particularly in cases that are unlikely to be tried in court.

“It could be debated whether or not that is appropriate of the prosecutor,” said Sale. “[These facts] never going to be challenged in court, they’re never going to be prosecuted.”

More generally, critics argue that the inclusion of additional details supplies the jury with a slanted roadmap of the case from the prosecution’s perspective, which judges sometimes send back with jurors for their deliberations. They also say that any publicity of the allegations risks tainting potential jurors before a trial even begins.

“A prosecutor who is experienced and professional should not want to ‘try’ their investigation or try their case in the press,” said Ronald Levine, a white-collar defense attorney at Post & Schell. “That said, speaking indictments are matters of public record, and, from a defense perspective, there is concern that it taints the potential pool of jurors who learn about it from the media.”

Still, Mueller’s investigation is unique, given the intense public appetite for answers on an issue that has captivated the country for well over a year. Mueller’s findings are likely to carry enormous political and national security implications.  

President Trump has regularly castigated the investigation as a political “witch hunt,” claiming there is no evidence of collusion between his campaign and Moscow. Mueller’s team is in talks with the president’s lawyers over a possible interview, as he looks to question Trump about obstruction of justice.

It is expected that Mueller will ultimately issue a report on his findings to Deputy Attorney General Rod Rosenstein, though there is no requirement that it be made public.

“A special counsel appointment is a different creature,” said Sharman. “A special counsel really has one case and one portfolio. In that circumstance, you could see the prosecutor saying, ‘I have an obligation to create a more detailed framework than I might otherwise.’”

“For example, if there were to be congressional proceedings or impeachment proceedings,” he added.