WASHINGTON (CN) – A federal judge presiding over the special prosecutor’s case against Russian oligarch-owned Concord Management and Consulting seemed intent Thursday on loosening the tight restrictions on evidence.
Though prosecutor Jonathan Kravis said the protective order is necessary for national security, U.S. District Judge Dabney Friedrich voiced sympathy for how the order has hampered Concord’s ability to prepare for trial.
"It's hard for me, in the abstract without any better understanding of what these documents are, to weigh competing interests," said U.S. District Judge Dabney Friedrich, who was appointed to the bench by President Donald Trump.
Prosecutor Jonathan Kravis said during a roughly hour-long hearing that the government marked as “sensitive” 3.2 million of the 4 million documents produced for discovery in the case.
And while government is not opposed to Concord viewing subsets of the sensitive documents in the United States, Kravis said it objects to the possibility of Concord officers or employees viewing the returns from individual search warrants as a whole, or viewing several returns side-by-side.
“They could start to recreate investigative steps that were taken,” Kravis said.
Kravis said the government wants Concord to identify batches of documents from which narrow subsets could potentially be shared, but Judge Friedrich noted that the burden is on the government to identify those documents.
So far, prosecutors have identified 500 key documents, including sensitive and nonsensitive documents, to the defense. Kravis said the government is willing to work with the court and the defense to identify small subsets of evidence that can be shared.
Reed Smith attorney Eric Dubelier told the court meanwhile that the government had not previously indicated that some of the information it deemed sensitive could be viewed by his client.
"We learned that for the first time 20 minutes ago," he said.
Dubelier had previously criticized the government for overclassifying discovery in the case as sensitive. On Thursday, he denied the government's assertion that the defense should bear the burden of identifying any subsets of that information that could be shared.
"There's no case law that puts the burden on us," Dubelier said.
"This sensitive discovery is chock full of exculpatory material," Dubelier added.
Prosecutor Kravis stressed that the government did not intend to convey that any of the 3.2 million documents deemed sensitive were not in fact sensitive, only that there are categories within that bulk that Concord officers and employees could potentially view in Reed Smith offices, as the protective order in the case stipulates.
The way in which the government obtained all of those documents is sensitive, Kravis noted.
Special Counsel Robert Mueller indicted Concord nearly a year ago as part of his probe of Russian interference in the 2016 election.
Accused of funding Russian troll farms that pushed pro-Russia propaganda favoring Trump over Democratic candidate Hillary Clinton, Concord has pleaded not guilty to the single conspiracy charge it faces.
Attorney Dubelier has long complained that the protective order in the case, which requires a "firewall" or third-party attorney to review sensitive evidence before Dubelier can share it with his client, is debilitating to his defense.
On Thursday, Dubelier said he tried to test the protective order several months ago by presenting 80 documents to the firewall counsel he wished to share with his client, but was shot down.
"That's why we're here," he said.
Friedrich had issued the sweeping protective order back in June, finding that prosecutors made a good case at the time for protecting discovery materials. But she said she had always intended to revisit the matter as the case grew closer to trial to see if it could be narrowed.
The protective order stipulates that any evidence can only be viewed by Concord’s officers or employees at the Reed Smith offices in the United States.
Dubelier had previously argued that being able to share evidence with Yevgeniy Prigozhin, the Russian oligarch who controls Concord, is key to mounting a strong defense.
Prigozhin, a caterer sometimes referred to as “Putin’s chef” because of his close relationship with the Russian president, was indicted alongside the company, but has not responded in court to the charges levied against him.
Posing a hypothetical, Friedrich pressed prosecutor Kravis to explain whether, if Dubelier managed to convince her that Prigozhin needed to see some of the evidence, he would have to risk arrest to do so.
"Is that the price the corporation has to pay to get some discovery in the case," she asked.
Prosecutors have opposed allowing defense attorneys to share information with Prigozhin, saying it could threaten grand jury secrecy and expose investigative techniques, and potentially identify cooperating witnesses along with uncharged entities and individuals.
Kravis said Thursday he believed there was another Concord employee not under indictment who could theoretically travel to the United States to view discovery but Dubelier called that a “nonstarter.”
In January, prosecutors said sharing evidence with third parties "unreasonably risks the national security interests of the United States," and said that hackers had leaked more than 1,000 nonsensitive files the government had turned over to the defense in discovery.
According to a Jan. 30 brief, that material was "altered and disseminated as part of a disinformation campaign aimed (apparently) at discrediting ongoing investigations into Russian interference in the U.S. political system."
That matter was addressed in a closed session Thursday following the open portion of the hearing.
No trial date has yet been set in the case but Dubelier indicated Thursday there could be protracted fights over evidentiary issues as the pretrial phase progresses.
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