In the most recent hearing on the case, which occurred October 15, Judge Dabney Friedrich expressed reservations that any trolls willingly tried to defraud the American federal government. Mueller's prosecutors have "got a heavy burden at trial to prove that knowledge" — that the trolls had committed crimes on purpose — said Judge Friedrich, according to The Washington Times.
"I agree, at trial, if this case survives, they're going to have to show that Concord and others conspired and had the specific intent to defraud," the judge added, according to the Washington Times report.
The judge did not say she would dismiss the charges altogether, as the defense has requested, but she did acknowledge how bizarre Mueller's prosecutorial adventure was: "I will give you, Mr. Dubelier, this is an unprecedented case," she said, referring to Reed Smith partner Eric Dubelier, a lawyer for the defense.
The defense attorneys representing Concord have argued that it was impossible to charge Concord with interfering with US elections, because there are no specific laws against that. The defense attorneys already made the prosecution look ill-prepared on one occasion when Mueller's prosecutors requested extra time to find evidence of a crime — even though they'd brought the indictment first.
Jonathan Kravis, a prosecutor on Mueller's team, argued that Concord knew the US enforces its election rules, but the judge did not seem swayed: "It's hard to see how not revealing identities at political rallies and not revealing identities on social media — how that is evidence of intent to interfere with a US government function as opposed to confuse voters."
In order to show that that Concord's trolls violated federal laws in America by engaging in fraud, Dubelier insists there must be evidence that Concord knew of Federal Election Commission functions and actively sought to undermine FEC rules. Since that evidence is absent, it's impossible to fulfill the requirements to charge someone with a federal conspiracy to defraud the government.
In fact, Dubelier defended the practice of trolling more broadly, even when done under a pseudonym (as has been alleged in the case). FEC law says foreign money cannot fund political candidates and foreigners are restricted in how they may participate in political campaigns. But "when it comes to political speech, one is free to pretend to be whomever he or she wants to be and to say whatever he or she wants to say," the attorney said, noting that there are no FEC rules stating that foreign citizens must talk about American politics accurately or truthfully.
The indictment alleges that Concord defrauded the government by hiding the activity of trolls on a server inside American borders, concealing that the trolls were operating from Russia.
"So what?" Dubelier argued. "People do that every day. That's not illegal. It's not illegal. There's no law that says you can't do that."
Instead, Dubelier says that Mueller's prosecutorial adventure is part of an Orwellian plot to for the government "to be able to regulate what people say on the internet" by making an example of the alleged Russian trolls.
"That's why in this case this special counsel made up a crime to fit the facts that they have," said Dubelier, according to the report.
"And that's the fundamental danger with the entire special counsel concept: that they operate outside the parameters of the Department of Justice in a way that is absolutely inconsistent with the consistent behavior of the Department of Justice in these cases for the past 30 years."