Mueller ad­ver­sary pokes holes in Rus­sia case

Judge dis­misses calls on con­duct

The Washington Times Weekly - - Politics - BY ROWAN SCAR­BOR­OUGH

A for­mer fed­eral prose­cu­tor has emerged as spe­cial coun­sel Robert Mueller’s most per­sis­tent court­room critic.

It’s not Ru­dolph W. Gi­u­liani, a for­mer U.S. at­tor­ney and now Pres­i­dent Trump’s ubiq­ui­tous de­fender, or any of cable TV’s pros­e­cu­tors turned pun­dits.

He is Eric A. Dube­lier, a lit­i­ga­tor for the Reed Smith law firm who knows in­ter­na­tional law and the Wash­ing­ton play­ing field. He served eight years pros­e­cut­ing cases as a Jus­tice De­part­ment as­sis­tant U.S. at­tor­ney. He refers to his for­mer em­ployer as “the real Jus­tice De­part­ment,” im­ply­ing that Mr. Mueller’s team is some­thing less.

His bit­ing re­marks have come in months of court fil­ings and oral ar­gu­ments. Mr. Dube­lier has de­picted Mr. Mueller as a rogue prose­cu­tor who is will­fully ig­nor­ing Jus­tice De­part­ment guide­lines.

He has ac­cused Mr. Mueller of cre­at­ing a “make-be­lieve crime” against his Rus­sian client, Con­cord Man­age­ment and Con­sult­ing, which is ac­cused of fund­ing a troll farm that in­ter­fered in the 2016 pres­i­den­tial elec­tion.

So far, the fed­eral judge pre­sid­ing over the case has sided with Mr. Mueller.

Mr. Dube­lier charges that the Mueller team vi­o­lated the con­fi­den­tially of Con­cord’s coun­terev­i­dence while hid­ing doc­u­ments that Con­cord needs for its de­fense. The prose­cu­tor wants to “whis­per se­crets to the judge,” Mr. Dube­lier says, as Mr. Mueller is cal­cu­lat­ing the “short-term po­lit­i­cal value of a con­vic­tion” and not wor­ry­ing about an ap­peals court de­feat years later.

An ex­am­ple: In a Dec. 20 mo­tion, Mr. Dube­lier res­ur­rected a botched case spear­headed by Mr. Mueller’s top prose­cu­tor, An­drew Weiss­mann.

Mr. Weiss­mann headed the Jus­tice De­part­ment’s En­ron task force nearly two decades ago. He won a con­vic­tion against the ac­count­ing firm Arthur An­der­sen for shred­ding the de­funct en­ergy firm’s fi­nan­cial doc­u­ments.

Years later, the U.S. Supreme Court unan­i­mously re­versed the con­vic­tion. The 2005 de­ci­sion ef­fec­tively said that An­der­sen, by then out of busi­ness and its 28,000 em­ploy­ees gone, hadn’t com­mit­ted a crime.

“Mr. Dube­lier is ex­actly right on Mr. Mueller’s mo­tives and tac­tics,” said Sid­ney Pow­ell, whose book “Li­cense to Lie” ex­poses years of Jus­tice De­part­ment scan­dals. “His lieu­tenant Weiss­mann is the poster boy for pros­e­cu­to­rial mis­con­duct and has no re­gard for the facts or the law. He will make up what­ever he wants to win, and the en­tire like-minded team views as an ac­com­plish­ment ev­ery­one whose life they de­stroy in pur­suit of their ob­jec­tive.”

‘Made up a crime to fit the facts’

Con­cord Man­age­ment and Con­sult­ing is an un­likely client. Le­gal ob­servers opined that when Mr. Mueller brought charges against var­i­ous Rus­sians who hacked com­put­ers and trolled the 2016 elec­tion, no de­fen­dant would travel the nearly 5,000 miles to show up for trial.

No de­fen­dant has per­son­ally ar­rived. But Con­cord did ap­pear quickly af­ter the Fe­bru­ary in­dict­ment. Of 28 Rus­sian in­di­vid­u­als and firms charged by Mr. Mueller with elec­tion in­ter­fer­ence, only Con­cord has ap­peared in U.S. Dis­trict Court, in this in­stance in the per­son of the ag­gres­sive Mr. Dube­lier.

The Wash­ing­ton de­fense lawyer seemed to catch the Mueller team off guard by im­me­di­ately de­mand­ing dis­clo­sure of ev­i­dence. Dis­clo­sure, Mr. Dube­lier ar­gues, is a sa­cred le­gal right in Amer­ica, even for the oli­garch Yevgeny Prigozhin, Con­cord’s chief with close ties to Rus­sian leader Vladimir Putin.

Con­cord is ac­cused of an elab­o­rate con­spir­acy with an­other Rus­sian op­er­a­tion, the In­ter­net Re­search Agency. The in­dict­ment ac­cuses Con­cord of pro­vid­ing the troll farm $1.2 mil­lion monthly to de­fraud the U.S. The two firms set up fake per­sonas and false Twit­ter ac­counts, Face­book ads and other so­cial me­dia posts mostly to dis­par­age Hil­lary Clin­ton and sup­port Mr. Trump.

In a sep­a­rate case, Mr. Mueller brought charges in July against 12 Rus­sian in­tel­li­gence of­fi­cers for hack­ing Demo­cratic com­put­ers, steal­ing emails and fun­nel­ing them to three web­sites for dis­tri­bu­tion.

Mr. Dube­lier ar­gues that peo­ple are free to cre­ate fake ac­counts. It’s done all the time, he says.

“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,” he said at an Oct. 15 hear­ing.

“That’s why in this case this spe­cial coun­sel made up a crime to fit the facts that they have,” Mr. Dube­lier said. “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.”

Mr. Dube­lier lost that ar­gu­ment with U.S. Dis­trict Judge Dab­ney L. Friedrich, who re­jected his bid to dis­miss the case.

But he wasn’t done. There is an on­go­ing bat­tle over Con­cord’s ac­cess to “sen­si­tive” ev­i­dence that Mr. Mueller won’t let its of­fi­cers see be­cause they are Rus­sians with ties to Mr. Putin. Mr. Dube­lier has ex­pressed ex­as­per­a­tion. “This equates to the bur­den of pre­par­ing for trial without any abil­ity to dis­cuss the ev­i­dence with the client who is to be put on trial,” he said. “This has never hap­pened be­fore in re­ported case law be­cause the no­tion is too lu­di­crous to con­tem­plate.”

“What Mueller has turned over is of­ten ir­rel­e­vant to mount­ing a de­fense, such as pro­mo­tion emails for air­lines and per­sonal naked selfie pho­to­graphs,” Mr. Dube­lier said in a De­cem­ber fil­ing.

The spe­cial coun­sel is keep­ing most rel­e­vant in­for­ma­tion be­tween him­self and Judge Friedrich and is ex­clud­ing Mr. Dube­lier.

Why no probe of dossier writer?

Mr. Mueller won the ar­gu­ment over “sen­si­tive” ma­te­rial. He now wants to hold closed ses­sions with the judge over clas­si­fied in­for­ma­tion — again, without Mr. Dube­lier.

Mr. Dube­lier re­sponded in a Dec. 27 fil­ing: “The Spe­cial Coun­sel has made up a crime that has never been pros­e­cuted be­fore in the his­tory of the United States, and now seeks to make up se­cret pro­ce­dures for com­mu­ni­cat­ing ex parte [mean­ing no de­fense coun­sel pre­sent] to the court which have never been em­ployed in any re­ported crim­i­nal case not in­volv­ing clas­si­fied dis­cov­ery.”

The de­fense lawyer ac­knowl­edged that his mo­tion is “likely fruit­less” be­cause Judge Friedrich pre­vi­ously ruled against Con­cord.

Many doc­u­ments are in Rus­sian, a cul­tur­ally dif­fer­ent lan­guage from English.

One Rus­sian word, Mr. Dube­lier said, “can be trans­lated into the English words ‘chief,’ ‘boss’ or ‘chef’ — a dis­tinc­tion that is crit­i­cally im­por­tant since in­ter­na­tional me­dia of­ten refers to Mr. Prigozhin as ‘Putin’s chef.’”

On an­other mat­ter, Mr. Dube­lier is ac­cus­ing the Mueller team of skull­dug­gery.

Judge Friedrich last sum­mer ap­proved the prose­cu­tor’s re­quest for a “fire­wall coun­sel” to re­view ev­i­dence for its na­tional se­cu­rity im­pli­ca­tions.

Mr. Dube­lier said he sub­mit­ted ev­i­dence to the fire­wall lawyer only to see it fall into the hands of Mr. Mueller’s team, who be­gan us­ing it to fur­ther in­ves­ti­gate Con­cord. “Surely a re­mark­able co­in­ci­dence,” Mr. Dube­lier said.

In an­other pre­trial ar­gu­ment, Mr. Dube­lier is the first de­fense at­tor­ney to ask this ques­tion: Why isn’t for­mer British spy Christo­pher Steele, who was paid by Democrats to ob­tain anti-Trump in­for­ma­tion from the Krem­lin to in­flu­ence 2016 vot­ing, be­ing in­ves­ti­gated by the Jus­tice De­part­ment for elec­tion in­ter­fer­ence just like the Rus­sians?

Mr. Steele didn’t regis­ter un­der the Jus­tice De­part­ment’s For­eign Agent Reg­is­tra­tion Act, un­der which Mr. Mueller has brought charges against a num­ber of de­fen­dants, in­clud­ing the Con­cord team. Judge Friedrich re­jected Mr. Dube­lier’s ar­gu­ment of “se­lec­tive prose­cu­tion.”

Mr. Mueller’s coun­ter­mo­tion boils down to this: Mr. Prigozhin is a crim­i­nal fugi­tive who bla­tantly in­ter­fered in the U.S. elec­tion and is not en­ti­tled to sen­si­tive na­tional se­cu­rity in­for­ma­tion he would share with the Krem­lin in­tel­li­gence.

In a new bat­tle­ground, the Mueller team wants to show the judge top-se­cret ma­te­rial to per­suade her to keep it from the de­fense.

“Dis­clo­sure of such in­for­ma­tion could cause ex­cep­tion­ally grave dam­age to the na­tional se­cu­rity,” the Mueller fil­ing stated.

Judge Friedrich ruled in June that Mr. Prigozhin is pro­hib­ited from view­ing non­clas­si­fied sen­si­tive in­for­ma­tion that de­tails how the gov­ern­ment ob­tained ev­i­dence.

The Mueller team ar­gued: “Dis­cov­ery in this case con­tains sen­si­tive in­for­ma­tion about in­ves­tiga­tive tech­niques and co­op­er­at­ing wit­nesses that goes well be­yond the in­for­ma­tion that will be dis­closed at trial. … In­for­ma­tion within this case’s dis­cov­ery iden­ti­fies sources, meth­ods, and tech­niques used to iden­tify the for­eign ac­tors be­hind these in­ter­fer­ence op­er­a­tions. … The gov­ern­ment has par­tic­u­lar­ized con­cerns about dis­cov­ery in this case be­ing dis­closed to Rus­sian in­tel­li­gence ser­vices.”

Mr. Mueller said that as long as Mr. Prigozhin, whom the U.S. sanc­tioned and then in­dicted on charges of elec­tion in­ter­fer­ence, re­mains in Rus­sia, he isn’t en­ti­tled to see sen­si­tive ev­i­dence.

AS­SO­CI­ATED PRESS

Eric A. Dube­lier, a lawyer rep­re­sent­ing Con­cord Man­age­ment and Con­sult­ing, sug­gests spe­cial coun­sel Robert Mueller ig­nores Jus­tice De­part­ment guide­lines.

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