Could Special Prosecutor Robert Mueller be haunted by the ghost of the late, great congressman Henry Hyde? The question occurs in the wake of the “not guilty” plea entered by a Russian company to charges it meddled in the American election in 2016. The company, Concord Management and Consulting LLC, also waived a reading of the indictment and demanded its constitutional right to a speedy trial.
That seemed to stun the special prosecutors. When Mr. Mueller first indicted Concord and a raft of Russians, Politico reported, “many legal experts viewed it as a so-called ‘name-and-shame’ indictment, filed to call public attention to the alleged crimes and to make international travel more difficult for the defendants, but with no real expectation that any defendant was likely to show up in court.”
It turns out, though, that a corporation can show up merely by sending its lawyer, which Concord did by sending to court one Eric Dubelier, Esquire, of the firm of Reed Smith. As Mr. Dubelier mounts his defense, Mr. Mueller could be forced to hand over to the Russian side what Politico calls “reams of evidence” in the case. Turning over such evidence to the defense is part of American due process.
Politico’s Josh Gerstein, one of the canniest courthouse correspondents in the country, reports in respect of Concord that “some lawyers believe prosecutors could drop the case against that firm and two other companies in order to avoid disclosing sensitive information about how the investigation unfolded.” Which raises the question of whether the prosecution of Concord was frivolous.
That’s in where the ghost of Henry Hyde comes. He is famous for, among other things, two amendments that became law. Both are called Hyde Amendments. The first outlawed using federal government funds for abortions. The second, the one that concerns us here, was calculated to deter criminal prosecutions that are “vexatious, frivolous, or in bad faith.”
The Justice Department was fit to be tied when Congress passed the Hyde Amendment. Congress, it seems, wanted some relief from its oversight of the Justice Department (feature Congress’s current confrontation with Deputy Attorney General Rod Rosenstein). In any event, if it turns out that Mr. Mueller’s approach to Concord is frivolous, he could end up a defendant against a claim under Hyde for costs and fees (to be paid, alas, by the taxpayers).
More broadly, in the battle to bring Russia to book for its attempts to suborn the election, the Sun is on America’s side. Yet we have a decades long aversion to the abuses of the power given to special prosecutors (who are always, in our view, way out of line when they target a president, to whom, after all, they are an aide). So it might well be useful for the Ghost of Henry Hyde to show up in court and say “boo.”