Indicted Russian Firm Blasts Protective Order on Evidence

WASHINGTON (CN) – Quoting both Fyodor Dostoyevsky and President John F. Kennedy, lawyers for a Russian company accused of funding Kremlin-led interference in the 2016 U.S. presidential election urged a federal judge Wednesday to lift restrictions on how evidence is handled.

Under a protective order governing the case, Concord Management and Consulting is generally forbidden from sharing certain discovery produced by prosecutors with anyone else, including its own officers.

Concord was among the first foreign entities charged by Special Counsel Robert Mueller, but it has for months now said that the protective order blocks its lawyers at Reed Smith from preparing a solid defense.

Mueller’s office meanwhile has called the protective order a matter of national security. In a January brief, prosecutors recounted how one Twitter user attempted to discredit the investigation by altering and disseminating “nonsensitive” documents to which the user had gain access.

Reed Smith attorney Eric Dubelier referred to the incident in a 19-page filing Wednesday as “indiscriminate garbage from the internet,” and said the Special Counsel’s Office misstated key facts about it. Because the brief is heavily redacted, Concord’s version of events is not immediately clear.

What is public is Dubelier’s reference to the incident as a “dog whistle to the feckless media.”

“It takes something more than intelligence to act intelligently,” Dubelier said in a footnote, quoting from Dostoyevsky’s “Crime and Punishment.”  

Dubelier further argued in the filing that the government is ignoring the difficulty the protective order has caused his legal team.

“According to the government, this is all okay because defense counsel has access to the discovery,” Dubelier wrote. “But the government’s position is not okay because defense counsel knows nothing about the allegations in the indictment, and further is prohibited by the protective order from even discussing the sensitive discovery with the defendant, making it impossible to assess the significance, if any, of the discovery to the defense of the case.”

The Special Counsel’s Office has said Concord’s officers are free to come to the United States to examine the discovery, but Dubelier called this a hollow offer, considering they would either be denied visas or arrested upon entry. 

Claiming that Mueller has pointed to “not one case” in which a court has restricted a corporate defendant from reviewing discovery, Dubelier said that a legal team being able to review discovery is not a substitute for a defendant being able to do the same.

“It is frightening that the United States Department of Justice would sign a brief arguing that providing discovery to an attorney is a substitute for providing discovery to a defendant,” Dubelier wrote. “Of course there is no statute that provides for or even suggests any such result, which would be antithetical to the rights afforded by the Constitution and statutes to criminal defendants in America.”

In an attached filing made under seal, the company has laid out an alternative proposal for how to handle sensitive discovery in the case.

Dubelier did not immediately return a request for comment on the filing. The Special Counsel’s Office declined to comment.

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