6/14/18, "Mueller’s Attempt to Hide Evidence Just Got Torn Apart by Attorneys for Alleged Russian Troll Farm," lawandcrime.com, Colin Kalmbacher, opinion
"One of the Russian companies indicted by Robert Mueller in the
troll farm case has responded to the special counsel’s recently-filed
motion [to] prevent discovery of evidence with a blistering (and somewhat
trolling) court filing.
On Thursday, attorneys for Concord Management and Consulting LLC timely submitted their 13-page
memorandum in opposition to Mueller’s requested order. And things
started off interestingly atypical of most legal writing. The document
"Having produced not one iota of discovery in this criminal case, the
unlawfully appointed Special Counsel requests a special and
unprecedented blanket protective order covering tens of millions of
pages of unclassified discovery. Having made this special request based
on a secret submission to the Court and a hysterical dithyramb about the
future of American elections, one would think that the Special Counsel
would cite to case holdings that support this remarkable request."
Whew. As an initial analytical point, referring to Mueller as
unlawfully-appointed is an out-of-character own-goal here by Concord
Management’s attorneys. Mueller’s appointment is certainly lawful in and
of itself and that’s not really a serious point of contention.
The memo continues,
“But no, instead, the Special Counsel seeks to
equate this make-believe electioneering case to others involving
international terrorism and major drug trafficking, and relies only on
irrelevant dicta from inapposite, primarily out-of-circuit cases. In short, fake law, which is much more dangerous than fake news."
While making their case for why Mueller’s blanket protective order
should not be granted, Concord Management cites the wide-ranging nature
of the request itself. Noting,
“The Special Counsel seeks the
unprecedented process of prohibiting defense counsel from sharing or
discussing any discovery with any co-defendant—including the only person
affiliated with Concord named in the Indictment—unless those
individuals come to the United States to become hostages in this
political game of tit-for-tat.”
Concord’s description here is essentially correct. Mueller’s
protective order would be unprecedented in the district. As noted later
in the filing, no published court opinion in the D.C. Circuit has ever
allowed such a blanket protective order for unclassified discovery
materials–the case law just isn’t there.
And aside from the district in question, Dubelier also claims that
“[n]o reported court case has ever endorsed a blanket protective order
of this magnitude for unclassified discovery.” This is another way of
saying that Mueller has apparently requested something so prohibitive
that there’s arguably no analogue to it in U.S. law. This is a broad
accusation and necessarily an open question.
Unfortunately for our
purposes, it can’t really be analyzed here because Mueller, naturally,
only purports to cite a handful of cases in his initial request–and not
the entirety of U.S. law and jurisprudence.
As for those citations of Mueller’s? Dubelier is merciless there, too.
In the memo, Mueller and his team are accused of playing fast and
loose with the facts by citing to cases that only “stand for the
unremarkable proposition that protective orders can be used when there
is a large volume of sensitive information.”
Concord Management’s memo
notes that the exceedingly limited protective orders granted in said
cases bore absolutely no relationship to the blanket order suggested by
Mueller. In fact, in one of Mueller’s citations, a blanket order was
requested and denied.
The memo slogs and punches along:
"Next, the Special Counsel seeks to create a special
category of unclassified discovery (which, according to the Special
Counsel impacts more than half of the ten million pages of documents)
that cannot be shared by defense counsel with anyone without approval of
the Court and a make-believe “firewall counsel” employed by the Special
Counsel, thus exposing the entire defense strategy to the Special
Counsel’s Office in advance of trial."
This idea was explored–and castigated–in a previous analysis for Law and Crime here.
Basically, Mueller’s team has proposed the theoretical possibility of
Concord Management viewing discovery materials under inarguably
burdensome conditions. Such conditions, Dubelier maintains, would
jeopardize the defense’s entire case because, under Mueller’s proposal,
defense counsel could only inspect such documents by huddling together
with government attorneys.
Summing up the memo’s overall argument, Dublier notes,
Concord has voluntarily appeared in Court and is entitled to discovery.
The Special Counsel concedes as much, yet has produced no case authority
from this circuit to support a blanket protective order covering ten
million pages of discovery, nor has he produced any out of circuit
authority that is persuasive. Instead, the Special Counsel ignored law
from this district rejecting this concept.”
Dubelier also accuses of Mueller lying to the court about what both
sides have agreed to so far. After this filing, though, it’s safe to say
that no accusations of agreement are likely to be flung anytime soon."