More on the Special Counsel indictment against Concord Management...

According to court records, the charges being levied at Concord Management have never actually been previously brought. While conspiracy to defraud the FEC has been brought in the past (when money was involved), there has never been a conspiracy to defraud the FEC for “electioneering communications” as is being alleged in this situation.

Given this charge has no precedent, the attorneys for Concord Management are making a basic request to see the instructions that were given to the Grand Jury as they were considering the indictment. Their questions appear to be surrounding whether or not the Grand Jury was asked to consider evidence that the defendant was aware that they were breaking a law that had never previously been charged.

The Special Counsel argument seems to be that there is no requirement that the defendants understood that their actions were unlawful, in spite of DOJ requirements on election crime explicitly stating that awareness of a potential crime is a requirement. Special Council suggested that they have taken the opposite position (that no awareness is necessary) in briefs, although they did not specifically provide any examples of any court finding that accepted that position as valid.

The Judge seems reluctant to provide the jury instructions to the defense until he makes up his mind as to whether or not the complaint (that his client cannot be charged for a crime nobody knew existed) is a valid one.

This appears to use some of the same logic used in the Manafort prosecution for witness tampering, where they asked that the Judge not require them to show that there was any sort of coercion or threat in order to prove the crime. In that case they provided examples of previous cases where coercion or threat was not necessary. However, in all of those cases, the coercion or threat was replaced with something like a bribe or other incentive or included specific solicitation (such as an affidavit) for false testimony. Special Counsel did not provide any similar examples where a person was convicted of witness tampering for simply reaching out to a potential witness.

I guess if you cannot find an existing crime to charge someone with, then you should just go ahead and make up a new one? Reason 23,634 why Special Counsels are a "bad thing".