Joaquin Flores writes about the weak case of the USA vs Kalashnikov and Afanasyeva
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The entrenched authorities are bent on inserting Kamala Harris into office using lawfare, despite her resounding unpopularity and anti-populism. On September 4th, 2024, the United States Department of Justice issued a press release from its Office of Public Affairs, detailing and making public a sealed indictment (it can be read here) against two Russian nationals, who are said to be employees of RT, for ‘funneling’ US $10mln to various high-profile social media content creators. What strikes us immediately is that this is not a crime, even though the word ‘funneling’ is a strongly loaded term in the sense of neuro-linguistic programming, and so the DOJ’s approach to geopolitical lawfare as an extended form of political warfare in the information sphere, has been to find a legal theory that would support ‘finding’ and ‘creating’ charges on the basis of the two accused having conspired to fail to register as foreign agents.
The opening paragraphs of the DOJ press release read:
<<An indictment charging Russian nationals Kostiantyn [for some reason DOJ uses the Ukrainian version of the Russian name Konstantin – SCF] Kalashnikov, 31, also known as Kostya, and Elena Afanasyeva, 27, also known as Lena, with conspiracy to violate the Foreign Agents Registration Act (FARA) and conspiracy to commit money laundering was unsealed today in the Southern District of New York. Kalashnikov and Afanasyeva are at large.
“The Justice Department has charged two employees of RT, a Russian state-controlled media outlet, in a $10 million scheme to create and distribute content to U.S. audiences with hidden Russian government messaging,” said Attorney General Merrick B. Garland. “The Justice Department will not tolerate attempts by an authoritarian regime to exploit our country’s free exchange of ideas in order to covertly further its own propaganda efforts, and our investigation into this matter remains ongoing.”
“Our approach to combating foreign malign influence is actor-driven, exposing the hidden hand of adversaries pulling strings of influence from behind the curtain,” said Deputy Attorney General Lisa Monaco. “As alleged in today’s indictment, Russian state broadcaster RT and its employees, including the charged defendants, co-opted online commentators by funneling them nearly $10 million to pump pro-Russia propaganda and disinformation across social media to U.S. audiences. The Department will not tolerate foreign efforts to illegally manipulate American public opinion by sowing discord and division.”>>
Based on the language of the charges, it would appear that the foreign nationals were physically in the United States for the duration, or at least the initiation, of the project. That they are ‘at large’ and have not been taken into custody would seem to imply that this arrest will happen imminently, or that the two accused are no longer in the US.
It is important to keep in mind that it is not illegal for Russians to spend money in the US, and it is not illegal for Russians or any other foreign nationals to start a business, or engage in protected 1st Amendment activities such as blogging and news or opinion writing or broadcasting.
Assuming that some parts of the described predicate are true, (that a Russian citizen’s money was spent in the US), provided that the individual is not an a US Treasury Department sanctions list, the relevant Executive Order, or legislation, has not obviously been violated. There are some limitations to speech in the US for foreign nationals, and while there is some nuance here, generally 1st Amendment activities are protected unless there is either a reasonable or articulable risk (which standard may depend on the circumstances) to national security that could reasonably lead to a grand jury indictment – think insider whistle-blowing or releasing government/corporate secrets.
‘Funneling’ moneys to individual content creators – YouTuber Tim Pool is believed to be prominent among these – may or may not have influenced the content they were creating – another important part of the nuanced questions that arise. And if the opinions of said content creators (on the subjects they are known for) had not changed after the influx of private party backing, it is more difficult to make the whole claim that the DOJ is now making. Garland, for his part, also adds a proviso – the messages are “hidden”. At face value, this would seem to give the accuseds’ lawyers an additional challenge.
To the contrary, the opposite would be true: making a charge in which no method of falsifiability can be established, is a baseless charge. It is not a ‘hidden crime’, but an activity indistinguishable from lawful behavior.
More to the point, the subjects being discussed, whether influenced by the alleged money or not, were matters already in the public domain, expressing views and sharing information which is already readily available everywhere, and which were commonplace beliefs among an already significant part of the American population. We are not talking state or corporate secrets, calls for violence or other seditious activity, which rise to the level of a national security risk.
The subject of ‘foreign agent registration’ touches on a different, but related matter. Here again, the DOJ appears to be reaching by conflating that (ostensibly) because the two accused were employees of RT, that any or all other conceivable activities they undertook were performed under the auspices of that employer/employee relationship. Granted, that employment may have been the foundation for their visa to be in the US, but this does not mean that all activities done in the US were done on the basis of that relationship. This much is far from obvious and that case would need to be made, as well.
Yet another conundrum in the USA’s case against the accused arises therefore: they cannot easily make the alleged activity a crime unless they connect it to a more obvious and recognized state-backed sponsor (RT). But this further problematizes the prosecution’s case.
Even though the DOJ cites the Foreign Agents Registration Act (FARA), under FARA, it is the organization itself that must register, not each individual employee.
For RT and similar entities, the requirement is that the organization, as a whole, must register as a foreign agent as they are believed to be acting on behalf of a foreign government or entity and is engaged in political activities or disseminating information in the U.S. The registration process involves disclosing details about the organization’s activities, funding sources, and relationships with foreign principals. RT did indeed register as a foreign agent in the United States to be in compliance with FARA in 2017. This registration was prompted by pressure from the U.S. government, which cited concerns over RT’s role as a state-controlled media outlet spreading Russian government messaging. By registering as a foreign agent, RT was required to disclose its funding sources, activities, and affiliations with the Russian government, in compliance with FARA’s requirements for organizations engaged in political activities on behalf of foreign principals.
To make matters worse, the USA’s case faces another logical fallacy: if the accusation is that the two accused conspired to get around foreign agent registration, it would seem to mean that their work was in fact not connected to their employment with RT. If it was through RT, then they did not violate avoidance of registration. If it was not through RT, the clear case of state-backed involvement evaporates.
Individual employees of such organizations, like Kalashnikov and Afanasyeva, are not required to register as foreign agents unless they are specifically engaged in activities that meet the criteria set out by FARA, such as acting as representatives or lobbyists, including the influence of media, for a foreign government or other “foreign principal”. While “foreign principal” can be construed to include private individuals, if those private individuals are without readily identifiable close connections to foreign politics or foreign geostrategic interests (skin in game), the case becomes much weaker. There are other signs that the DOJ has a considerably weak case.
Take particular notice that the charges are ‘conspiracy’ charges, not the commission of the crime. The charges are ‘conspiracy’ to subvert or ‘get around’ FARA, and ‘conspiracy’ to launder money.
While this is a much lower legal standard, because the predicate of having actually committed the crime need not be at the foundation of a conspiracy charge. On the face of it, this would seem to make the DOJ’s case easier to make.
But not so fast: the successful prosecution of a conspiracy charge only really works in two scenarios. In the first case, the accused must be charged with both committing the crime, and the related conspiracy (communications and agreements involving one or more other persons) charge. In this case, establishing the foundation for, and charging the accused with an actual crime itself, is a necessary predicate for a conspiracy charge to be included.
In the second case, the conspiracy charge is meant to prevent the crime itself from being committed. Yet, in the charges against Kalashnikov and Afanasyeva, their alleged activities are past tense.
Here, the DOJ implicitly admits that they had neither prevented the crime, nor was there sufficient evidence of an actual crime having taken place to serve as the predicate. This type of lawfare seems more like a ‘weapon of mass confusion’ in the interest of one candidate (Harris) and aimed at undermining real and actual domestic US political processes, working against the interests of the other of the candidate, (Trump), in the upcoming November presidential election.
We can therefore see immediately that the DOJ is playing fast and loose with these legal distinctions, and is a sign that at the very least an individual judge was either incompetent or influenced against proper judicial oversight, re the prosecutor’s advisement of the grand jury on how to proceed and what constitutes elements of the crime, leading to these flawed sealed indictments.
Indeed, the recent and highly visible DOJ escalation of the investigation into American affiliations with Russian state television networks has ignited considerable concerns over the weaponization (and definition) of American institutions.
Officially aimed at countering Kremlin influence operations in advance of the forthcoming presidential election, the heinously broad scope and the underlying investigations, including the potential shut-down of content producers like Tim Pool, has sparked concerns about the politicization of the DOJ and other governmental entities. The aggressive actions have led to allegations that these efforts are more politically motivated than grounded in genuine national security concerns.
The DOJ’s actions, part of a broader strategy ostensibly to neutralize Russia’s state-run media operations, have featured dramatic high-profile interventions, including searches and involuntary detentions executed by FBI agents, at citizens’ homes and ports of entry. These other actions, while not yet leading to the charges we see in the September 4th charges, signal an expansive scope that will no doubt involve additional individuals and potential criminal repercussions. Such measures have led to significant skepticism and condemnation, even from former government officials, like former US State Department official Mike Benz, meaning that the investigations and detentions are more about a form of full-spectrum domination than safeguarding genuine national interests. For what is in the national interest beyond what is the interest of the country’s population?
Certainly, the notion that national interest is synonymous with the agendas of a small, ideologically driven clique, who happen to hold considerable sway within a specific historical timeline, seems rather contrary to a broad, long-term, and societal view, or rather definition, of the national interest. These individuals – Trans-Atlantic neoliberal neoconservatives, occupying cabinet and permanent administration positions, and in the military – primarily serve the narrow interests of a select group of Americans (themselves) who are more invested in perpetuating a Cold War-style Russophobia and Sinophobia than a genuine advancement of the broader national interest. Their approach is driven by the inertia of think tanks, financial interests, and the ever-churning machinery of the Military-Industrial Complex (MIC), which ties back into an ecosystem that thrives on maintaining the status quo.
The DOJ’s actions are a brazen example of politicized lawfare masquerading as national security. By wielding the Foreign Agents Registration Act as a blunt instrument against “RT employees”, they are not just reaching but overreaching—attempting to equate the legitimate financial support of independent content creators with nefarious foreign influence.
The targets are not simply the accused, nor are they simply a few content creators that have been named in related journalism, like Mr. Pool. These charges are meant to having a chilling and silencing effect on all Americans, on all citizens engaged in social media at every level. These grand jury charges are undemocratic and deplorable to their core.
The flimsy indictment rests on the nebulous charges of conspiracy rather than actual criminal acts, exposing the DOJ’s desperation to manufacture threats where none exist. This reckless use of federal power to stifle dissenting voices and disrupt political narratives serves not the American people, but a narrow band of entrenched interests hell-bent on perpetuating outdated Cold War paranoias.
It is an audacious assault on free speech and a stark reminder of the lengths to which those in power will go to preserve their status quo, even if it means trampling on the foundational principles of justice and democracy. This is not a defense of national interest but an egregious abuse of authority that threatens the very fabric of the republic. If this is how they intend to install Kamala Harris, they will prove that they are hypocritically the source of the very undermining of confidence in American institutions which they accuse others of. So be it.
