Case 1:18-cr-00032-DLF Document 71 Filed 10/25/18 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CRIMINAL NUMBER:

UNITED STATES OF AMERICA,

1:18-cr-00032-2 (DLF)

v.
CONCORD MANAGEMENT &
CONSULTING LLC
Defendant.

DEFENDANT CONCORD MANAGEMENT AND CONSULTING LLC’S
RESPONSE TO THE GOVERNMENT’S SUPPLEMENTAL BRIEF IN OPPOSITION
TO DEFENDANT’S MOTION TO DISMISS THE INDICTMENT
Pursuant to leave of this Court, Defendant Concord Management and Consulting, LLC
(“Defendant” or “Concord”), respectfully submits this response to the Government’s
Supplemental Brief in Opposition to Defendant’s Motion to Dismiss (Dkt. 69) (“Suppl. Br.”).
To summarize: WRONG ANSWER.

Concord has consistently argued that the

Indictment charges no crime at all (interference with an election), but to the extent it purports to
charge a crime the essential element of willfulness is fatally absent. The Special Counsel’s retort
has been that he was not required to charge willfulness because he did not charge violations of
FECA or FARA. Now, in mind-bending, intergalactic, whiplash fashion, he says for the first
time, I did, I did, I charged violations of FECA and FARA.1 Reminiscent of the old adage,
“Give a man enough rope and he will hang himself,” the Special Counsel just did so.
In response to the Court’s questions (Dkt. 68), the Supplemental Brief asserts that the
Court should not assume for purposes of Concord’s motion to dismiss that (i) “neither Concord

1

Which sounds a lot like “I did, I did, I taw a puddy tat.” Tweetie (1948).

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nor its co-conspirators had any legal duty to report expenditures or to register as a foreign agent”
or (ii) “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.” Suppl. Br. at 1. He specifically claims that the Indictment against
Concord (Dkt. 1) adequately alleges the existence of such legal duties and accompanying
violations, but that such allegations in any event are unnecessary to make out his defraud
conspiracy charge against Concord under 18 U.S.C. § 371. The Special Counsel is wrong on
both counts.
As a threshold matter, if the Special Counsel’s claimed allegations of legal reporting and
registration duties and violations of those duties are unnecessary to his § 371 Klein conspiracy
charge, then why does he care what the Court assumes with respect to those alleged duties and
violations? The Indictment obliquely alludes to such duties because, in fact, they are at the heart
of the Special Counsel’s theory: that Concord and the Defendants conspired to avoid those duties
and thus obstruct the government’s functions of administering the statutes—FECA and FARA—
that impose those very duties. With the pleading and legal defects of that theory now laid bare,
the Special Counsel cobbles together disparate allegations in the Indictment to try to meet what
is needed—a showing that Concord or the other Defendants owed statutorily-mandated FECA
reporting or FARA registration duties, and knew those statutes and duties existed and what they
required. The flaws in that effort, however, are apparent.
First, “‘[i]n ruling on a motion to dismiss for failure to state an offense, a district court is
limited to reviewing the face of the indictment and, more specifically, the language used to
charge the crimes.’” United States v. Sunia, 643 F. Supp. 2d 51, 60 (D.D.C. 2009) (citation
omitted) (emphasis in original). “‘Adherence to the language of the indictment is essential

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because the Fifth Amendment requires that criminal prosecutions be limited to the unique
allegations of the indictments returned by the grand jury.’” Id. (citation omitted). The fact that
the Court found it necessary, after hundreds of pages of briefing and extensive oral argument, to
ask the Special Counsel what the Indictment actually charged, alone supports dismissal.2 The
Special Counsel’s revisionist explanations of what he now says the Indictment provides cannot
be considered by the Court to determine if the Indictment charges a crime. See Russell v. United
States, 369 U.S. 749, 770 (1962) (“To allow the prosecutor, or the court, to make a subsequent
guess as to what was in the minds of the grand jury at the time they returned the indictment
would deprive the defendant of a basic protection which the guaranty of the intervention of a
grand jury was designed to secure.”).
Second, the allegations the Special Counsel points to, on examination, do not provide
what he says. There is no particularity showing that the Defendants, including Concord, “had
legal duties to report election-related expenditures and to register as foreign agents and agreed to
engage in conduct that would violate such duties.” Suppl. Br. at 1. The highlighted allegations
generically refer to: (i) purported failures to report expenditures or register as foreign agents; (ii)
laws (presumably FECA and FARA) that generally regulate such reporting and registration; and
(iii) advertisements connected to Defendants.

See Suppl. Br. at 1–2.

But the Indictment

conspicuously fails to allege that Concord or the other Defendants owed, or violated, any
reporting or registration duties, or that anyone who did owe such duties violated them in

2

The Court explicitly noted at the hearing that the Indictment fails to identify who had an
alleged obligation to report to the Federal Election Commission (“FEC”). See Transcript of Oct.
15, 2018 Hearing (“Hr’g Tr.”) at 30:9-11. The Special Counsel never provided an answer to that
question. Id. at 30-31. But it is impossible for a grand jury to lawfully indict any defendant for
defrauding the FEC without knowing who allegedly did what.

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connection with Defendants’ alleged conspiracy. See Mem. in Supp. of Mot. to Dismiss (Dkt.
46) at 6–7, 14–15; Reply Mem. in Supp. of Mot. to Dismiss (Dkt. 62) at 15–17.
Nor, just as notably, does the Indictment allege that Concord acted “willfully”—that is,
that it knew these reporting and registration duties existed under U.S. law or to whom the duties
attached. See Mem. in Supp. of Mot. to Dismiss at 22–23, 33–34; Reply Mem. in Supp. of Mot.
to Dismiss at 7–9. So, as far as the Court’s questions are concerned, in ruling on Concord’s
motion to dismiss, the Court should assume that no such duty is owed; that no violation by or
connected to Concord or the other Defendants occurred; and that Concord had no knowledge of
any such duty or violation. No contrary statement in the Supplemental Brief can change what
the Indictment says (or rather, what it does not say). See United States v. Kolter, 71 F.3d 425,
433 (D.C. Cir. 1995) (allegations made only in briefs but “not in the indictment . . . cannot make
valid an otherwise insufficient indictment”).
Third, while Concord agrees that factual allegations in the Indictment must be accepted
as true when considering the sufficiency of the Indictment, that is not the case for conclusions of
law or legal arguments contained in the Indictment. See United States v. Ballestas, 795 F.3d
138, 149 (D.C. Cir. 2015) (recognizing that “[w]hen considering a motion to dismiss an
indictment, a court assumes the truth of those factual allegations” (emphasis added)); United
States v. Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d 598, 606 (D.D.C. 2018) (same);
see also United States v. Harder, 168 F. Supp. 3d 732, 737 (E.D. Pa. 2016) (recognizing that
“[i]n deciding a motion to dismiss, I must accept factual allegations and disregard legal
conclusions to determine whether the alleged facts constitute a crime” (emphasis added)); cf.
United States v. Yakou, 428 F.3d 241, 247 (D.C. Cir. 2005) (recognizing that pretrial dismissal of
an indictment based upon a question of law is subject to de novo review). As such, the Court can

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certainly reject conclusions of law such as, Defendants made expenditures “without proper
regulatory disclosure,” Indictment ¶ 7, or arguable implications that failure to register under
FARA or make certain disclosures to the FEC were unlawful, because such acts or omissions are
only unlawful if done willfully, see Suppl. Br. at 2 (“The indictment further alleges that Concord
and its co-conspirators agreed to engage in conduct that violated FECA’s prohibitions on certain
expenditures by foreign nationals.”). Moreover, as noted, the paragraphs of the Indictment the
Special Counsel cites allege no such thing, which is at the heart of the matter of his failure to
charge a crime. And again, no mere statement in the Supplemental Brief can cure that.
Fourth, beyond all this, the Special Counsel uses his Supplemental Brief to repeat a
contention not responsive to the Court’s queries—that the “government is not required to prove
that the conspirators actually violated FECA or FARA.” Suppl. Br. at 3. The Special Counsel is
obsessed with repeating this argument never made by Concord. Concord has not argued—and
the Court did not suggest at the hearing—that the Special Counsel must prove “actual[]
violat[ions]” of FECA and FARA to make out its § 371 defraud conspiracy charge against
Concord.
What Concord has actually argued is that in this unprecedented, never-before-imagined,
make-believe § 371 Klein conspiracy case, the Special Counsel must point to allegations that lay
out the particular “lawful governmental functions” with which Concord allegedly conspired to
interfere and that demonstrate Concord’s specific intent to defraud the United States with respect
to those functions. Here, these “lawful governmental functions” are defined by the complex and
arcane reporting and registration schemes under FECA and FARA that the Government has
invoked, and with which Concord has allegedly conspired to interfere.

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But there are no

 Case 1:18-cr-00032-DLF Document 71 Filed 10/25/18 Page 6 of 9

allegations identifying which Defendant had any such obligations or engaged in any omission
connecting the alleged facts to these statutory requirements.
The Government’s answer—that its allegations of various “acts of deception in addition
to the failure to report under FECA or to register under FARA,” such as the “use of false social
media accounts” and “email accounts under false names[,]” alone are sufficient to support its
Klein conspiracy charge (Suppl. Br. at 3)—is not, and cannot be, right. Any alleged deception or
obstruction acquires legal significance based on what the lawful government function actually is:
what duties are created by the FECA and FARA statutes and implemented by DOJ? And if an
ordinary citizen does not know any of that, then the indictment must allege the conspirator
knows it or there is no blameworthy mental state and the indictment is defective. This is not a
violent crime or drug case. Specifically, where, as here, the Indictment threatens to criminalize
innocent conduct (pretending to be someone else on the internet), culpability depends on sharing
an illicit purpose to breach a defined duty that is owed to the government. Since that is not
generally known, there must be specific allegations describing what the statutes require,
Concord’s awareness of those statutes, and Concord’s specific intent to act to interfere with the
identified regulatory functions. None of that is asserted.
Fifth, the Special Counsel concedes that allegations at least of specific intent to defraud
are required. See Hr’g Tr. at 31:22-32:1. At the hearing, the Court seemed to suggest it thought
the Indictment alleged such specific intent. Id. at 17:5–9; 31:22–32:1. But the words “specific
intent” do not appear anywhere in the Indictment, nor do any other words such as “willfully,”
which would indicate the grand jury was not properly instructed on the law as required. Cf.
United States v. Rhone, 864 F.2d 832, 834 (D.C. Cir. 1989) (approving a portion of a jury
instruction that stated, “A person who knowingly does an act which the law forbids, intending

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with bad purpose, either to disobey or disregard the law, may be found to act with specific
intent;” but reversing conviction because the court also instructed the jury, “And I should point
out at this time that ignorance of the law is no excuse.” (internal quotation marks and emphasis
omitted)).
Not only are the requisite knowledge and intent not alleged, the Special Counsel now
wants it both ways. That is, he wants the Court to accept that the Special Counsel was not
required to plead willfulness while at the same time he argues that the Indictment in fact alleges
that Concord or its alleged co-conspirators did have an obligation to register under FARA and
report expenditures to the FEC. See Suppl. Br. at 1.3 If accepted, this argument would allow the
government to remove the willfulness requirement from every statute where it exists simply by
indicting violations under the defraud clause of § 371. For example, instead of indicting a
defendant for willfully conspiring to violate the Arms Export Control Act by failing to register
and/or apply for an export license, see 22 U.S.C. § 2778(c), the government could simply charge
a § 371 conspiracy to defraud the State Department, and like magic remove the Congressionally
mandated requirement under § 2778(c) to allege and prove willfulness.

That is not what

Congress intended and it is an abuse of § 371 that threatens to expand that statute far beyond its
scope. As the Special Counsel would have it, any two persons, domestic or foreign, are in
violation of § 371 if they say or do anything that could arguably interfere with any regulatory
activity of the United States government as long as they have some unspecific knowledge that

3

Respectfully, another way to ask the same questions the Court posed would have been to
inquire of the Special Counsel whether the Indictment would be valid if the Court disregarded
whether or not Concord was legally obligated and failed to register or make disclosures. The
Special Counsel’s “no” answers to the questions posed by the Court would also require a “no”
answer to the question as reformulated; which is in fact a concession that the Indictment is
invalid.

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the United States has a government that regulates things. See Hr’g Tr. at 35. Furthermore, any
two foreign persons, having never entered the United States, would be in violation of § 371 if
they engage in any speech that is repeated in any format in the United States that appears to
advocate for the position of another foreign person unless they have registered under FARA.
These positions are equally dangerous and ridiculous, and probably for that reason they have
never before been argued by the government.
As is clear from the face of the Indictment, and as the Court already has concluded, the
Special Counsel did not instruct the grand jury as to willfulness. See Hr’g Tr. at 22:22–24. The
Special Counsel now states emphatically that the Indictment alleges that Concord or its alleged
conspirators had to register and file disclosures and that failure is a violation of law. But those
acts or omissions cannot be a violation of law unless done willfully. As such, Concord was
deprived of its Fifth Amendment right to a lawful indictment by the grand jury.
Finally, to be clear and as stated by undersigned counsel at the hearing, Concord is not
arguing that every § 371 defraud charge requires willfulness. Instead, it maintains that this
Indictment, charging interference with an election by use of social media (against which there is
no statutory prohibition) based on a § 371 defraud theory where the Special Counsel now
concedes and argues that the Indictment does allege underlying substantive violations as the
basis of the fraud, must be dismissed because the grand jury was not properly instructed as to the
essential element of intent and further because the Indictment does not actually charge the crime
that the Special Counsel claims he indicted.

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Dated: October 25, 2018

Respectfully submitted,
CONCORD MANAGEMENT
AND CONSULTING LLC
By: /s/ Eric A. Dubelier
Eric A. Dubelier (D.C. Bar No. 419412)
Katherine J. Seikaly (D.C. Bar No. 498641)
REED SMITH LLP
1301 K Street, NW
Suite 1000 – East Tower
Washington, DC 20005-3373
202.414.9200 (phone)
202.414.9299 (fax)
dubelier@reedsmith.com
seikaly@reedsmith.com
James C. Martin*
Colin E. Wrabley*
REED SMITH LLP
225 Fifth Avenue
Pittsburgh, PA 15222-2716
412.288.3131 (phone)
412.288.3063 (fax)
jcmartin@reedsmith.com
cwrabley@reedsmith.com
*Admitted Pro Hac Vice

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