DOJ rewrote indictment to fix problem — and expert warns it exposed an even bigger one

The Trump Justice Department issued a new superseding indictment against the extremist group watchdog the Southern Poverty Law Center, trying to fix defects with their original indictment — but in doing so, not only did they violate grand jury secrecy rules, they didn't really even fix the fundamental issue, national security journalist Marcy Wheeler wrote for her EmptyWheel blog.

The trouble starts with the fact that the DOJ, led by director of public affairs Emily Covington, leaked the indictment to the press before it had even been properly docketed — a clear violation of practice.

But if they had been trying to project confidence that they have a rock-solid case now, Wheeler wrote, they have not done so.

The original indictment accuses SPLC, which uses undercover informants in hate groups like the KKK to expose their inner workings, of lying to donors about their money being used on these informant setups. The new indictment focuses much more on their "omissions of material facts" to donors.

In other words, Wheeler said, originally "DOJ presented no evidence in the original indictment (nor did it add any in the superseding) that SPLC promised donors they would not use informants," and now the indictment focuses less on that and instead "repeats over and over that SPLC raised money promising to dismantle far right extremist groups, without telling donors that it worked to dismantle hate groups, in part, by using informants to infiltrate the groups."

This is a huge difference between this case, and, for example, the fraud charges against Steve Bannon for using donations to build a border wall on personal expenses, Wheeler wrote, because there, prosecutors had solid evidence Bannon promised donors they wouldn't use the money one way and did it anyway, whereas here, SPLC never made a commitment not to use informants and there's no evidence donors were misled into believing they wouldn't.

The superseding charges, Wheeler wrote, try to paper over this by focusing more on "omission" than falsehood. But that's unlikely to work.

Ultimately, she concluded, Covington leaking the indictment early "calls attention to the degree to which the superseding indictment she was crowing about instead is nothing more than a cosmetic fix, cosmetics that call attention to more obvious underlying problems."