Mueller accused of "fake law, which is much more dangerous than fake news" by attorney for accused Russian Troll Farm in response to Mueller seeking blanket authority to withhold discovery-Law and Crime, Kalmbacher

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 begins:

"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, 

“Defendant 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."



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