Prosecutor Seeks Protective Order on Butina Evidence

Mariia Butina in Moscow, in a photo she posted to Facebook in October 2013.

WASHINGTON (CN) – Prosecutors said Wednesday they have four to six terabytes of data – more than 1.5 million files – ready to turn over to defense counsel for Mariia Butina, whom the government has accused of unlawfully operating as a Russian foreign agent, but expressed concern they’ll be used to try the case in the media.

Prosecutors say Butina, who appeared in court Wednesday in an orange jump suit with a white shirt underneath, has ties to Russian intelligence and covertly built inroads and relationships with influential U.S. politicians and political organizations, including the National Rifle Association, ahead of the 2016 U.S. election.

Butina, 29, has pleaded not guilty to charges of conspiracy to act as a foreign agent and acting as a foreign agent.

Prosecutor Thomas Saunders with the Department of Justice said in court Wednesday morning that the government could be ready to hand over the discovery material within a few days, but noted that the parties can’t agree on a protective order.

“Our concern is protecting the integrity of the ongoing investigation,” Saunders said.

During a 35-minute hearing, Saunders complained about the numerous media appearances Butina’s defense attorney Robert Driscoll has made since his client was arrested on July 15.

U.S. District Judge Tanya Chutkan questioned the wisdom of Driscoll’s approach given the limited jury pool in the District of Columbia.

But Driscoll said his media appearances are part of his client’s defense and necessary to correct misinformation about Butina, including media reports claiming she trained as a spy in her native Russia.

“That’s nowhere in the case,” Driscoll said. “I had to correct that.”

Driscoll also lamented the more salacious details contained in the government’s indictment of Butina, which alleges that she was willing to trade sex for a position with an American special interest organization.

Driscoll said he has asked the government for expedited evidence to back that claim up, noting that press reports have heavily focused on that detail in the indictment.

“We don’t know what the government is talking about. We don’t believe it’s true,” Driscoll said.

Chutkan noted later in the hearing that although it can be unpleasant to read negative things about one’s client in the press, there is no right to certain information.

“I’m not sure you’re entitled to specific pieces of evidence to rebut media reports,” she told Driscoll.

Prosecutor Saunders meanwhile had his own complaints about how Driscoll is spinning the charges against Butina in the press, pointing to claims he made during a CNN interview with Anderson Cooper that the government has taken some of the direct messages she sent out of context.

The government can’t respond to that, Saunders said.

“It ought not to,” Chutkan said.

Saunders also complained that Butina’s defense team has rejected two draft protective orders the government proposed, the first of which would allow them see all currently available discovery material upfront. The government then offered to produce the material on a rolling basis, but that offer was also rejected.

Driscoll countered that the government can’t restrict evidence that originally belonged to his client simply because they seized it.

Chutkan however noted that the evidence is part of an ongoing investigation. Just because it previously belonged to Butina and was in her possession “doesn’t give it some kind of talismanic protection,” Chutkan said.

“There’s a huge amount of discovery in this case that I imagine you want to get working on because you have a client to defend,” Chutkan later added.

Chutkan also cautioned Driscoll that simply exempting material once in his client’s possession “is probably not going to fly,” and said she doesn’t want to resort to imposing a gag order in the case to prevent Driscoll from speaking to the media but will consider doing so if need be.

“I’m cautioning you,” Chutkan said.

Driscoll meanwhile said he would be fine with an order barring him from disseminating discovery materials to the press, but dug his heels in on a blanket protective order.

This is not an espionage case, Driscoll said. “We’re not talking about state secrets here.”

But Chutkan said she would issue a protective order for the case and instructed the government to submit a draft order within two week, with any objections or a counter order to be filed by Driscoll a week later.

Driscoll said he also wants a copy of Butina’s testimony before the Senate intelligence committee, which prosecutor Saunders said is not currently in the government’s possession. Chutkan instructed Driscoll to keep looking into the matter and to inform the court if seeks an intervention on the matter at a later time.

Driscoll said they plan to seek a bond review and will ask the government to return the phones and computers seized from Brutina. Driscoll said he also plans to file either a motion to dismiss or for a bill of particulars.

Butina is next scheduled to appear in court again on September 10 at 2 p.m.

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