Special Counsel Robert Mueller has responded at length to explain why he’s been so opposed to sharing sensitive discovery material with the attorneys for accused Russian troll farm Concord Management and Consulting LLC. Much attention has been given to the behavior of Concord’s American attorneys Eric Dubelier and Katherine Seikaly, but Wednesday’s information from the special counsel reveals that there are deeper concerns.
Recall that there has been an ongoing tussle between Mueller and Concord over “sensitive discovery.” Judge Dabney Friedrich saw fit to criticize Concord filings for referencing “nude selfies” and Animal House. Concord attorneys memorably replied by saying Friedrich’s rebuke resulted in them getting death threats. Despite Concord’s many protestations, Judge Friedrich sided with Robert Mueller on January 11, denying Concord’s attempt to force Mueller to reveal “confidential” evidence in discovery — evidence that could then be shared with the Russian Federation and the fugitive co-defendant known as Yevgeniy Prigozhin, otherwise referred to as “Putin’s chef.”
Mueller’s 18-page filing on Wednesday provided more information on why he has been so resistant to sharing sensitive information. Chief among Mueller’s reasons is the detail that non-sensitive information in “the defense’s possession” was “altered” and used as “part of a disinformation campaign” to discredit the Mueller investigation.
Mueller began by saying that “[n]othing has occurred during the pendency of this litigation to ameliorate these risks” of sharing sensitive information with the defense.
“On the contrary, the government’s concerns are only heightened by the apparent release and manipulation of information produced to Concord as ‘non-sensitive’ discovery in this case,” he said. This is why:
In October 2018, one or more actors made statements claiming to have a stolen copy of discovery produced by the government in this case. The subsequent investigation has revealed that certain non-sensitive discovery materials in the defense’s possession appear to have been altered and disseminated as part of a disinformation campaign aimed (apparently) at discrediting ongoing investigations into Russian interference in the U.S. political system. These facts establish a use of the non-sensitive discovery in this case in a manner inconsistent with the terms of the protective order and demonstrate the risks of permitting sensitive discovery to reside outside the confines of the United States.
Mueller argued that these concerns far outweigh any argument Concord’s attorneys have made, and “further reinforce the need for tight control over sensitive discovery.”
“First, the sensitive discovery identifies uncharged individuals and entities that the government believes are continuing to engage in operations that interfere with lawful U.S. government functions like those activities charged in the indictment,” Mueller said.
In short, Mueller is arguing that if non-sensitive information has been used in attempts to discredit his investigation, how much worse would things be if sensitive information was shared that “identifies sources, methods, and techniques used to identify the foreign actors behind these interference operations.”
“Unwarranted disclosure of that information overseas, in a country adverse to this litigation, would allow that country and actors in that country to learn of these techniques and adjust their conduct, thus undermining U.S. national security interests, including investigations into the conduct of those foreign actors,” he said, noting that there is no incentive for these foreign actors not to act in bad faith.
“The Court would have no ability to enforce compliance with the other provisions in the protective order by the ‘officers and employees of Concord Management and Consulting LLC’ because those individuals are not subject to the jurisdiction of the Courts,” Mueller said. “And Concord’s proposed order would apply to every piece of sensitive discovery in the case, including sensitive discovery containing personal identifying information and sensitive discovery implicating national security interests.”
Mueller expressed concern that “unnamed individuals in Russia who would have the ability to view and disseminate those materials and who would not be answerable to this Court for any violation of the protective order” would be handed information that would jeopardize U.S. national security.
The special counsel then discussed an apparent “hack” of the non-sensitive documents that were then used to spread misinformation:
On October 22, 2018, the newly created Twitter account @HackingRedstone published the following tweet: “We’ve got access to the Special Counsel Mueller’s probe database as we hacked Russian server with info from the Russian troll case Concord LLC v. Mueller. You can view all the files Mueller had about the IRA and Russian collusion. Enjoy the reading!” The tweet also included a link to a webpage located on an online file-sharing portal. This webpage contained file folders with names and folder structures that are unique to the names and structures of materials (including tracking numbers assigned by the Special Counsel’s Office) produced by the government in discovery.
Mueller said in a footnote that a reporter alerted the special counsel to this, saying they got a direct message on Twitter from a person claiming “they had received discovery material by hacking into a Russian legal company that had obtained discovery material from Reed Smith. The individual further stated that he or she was able to view and download the files from the Russian legal company’s database through a remote server.”
The special counsel noticed a discrepancy in folder naming.
“The naming convention of folder ‘REL001’ suggests that the contents of the folder came from a production managed on Relativity,” he said. Relativity is a platform commonly used to manage and review documents for large-scale eDiscovery.
“Neither the Special Counsel’s Office nor the U.S. Attorney’s Office used Relativity to produce discovery in this case,” Mueller said, adding that the FBI’s “ongoing review” found “no evidence that U.S. government servers, including servers used by the Special Counsel’s Office, fell victim to any computer intrusion involving the discovery files.”
Mueller said that there is proof that “over 1,000 files on the webpage match those produced in discovery, establish that the person(s) who created the webpage had access to at least some of the non-sensitive discovery produced by the government in this case.” Among those files, the special counsel maintains, were “numerous irrelevant files” that were included to suggest this was the “sum total evidence of ‘IRA and Russian collusion’ gathered by law enforcement.” He said that the goal was to “discredit his investigation.”
Mueller said that “these kinds of concerns” are exactly why he has proposed “placing reasonable restrictions on where and how the defendant may view sensitive discovery materials.” He said that Concord’s “complaint” about discovery is one that is a self-inflicted problem, as the aforementioned co-defendant Prigozhin “refuses to come to the United States to review the sensitive discovery.”
“That is a problem of Concord’s own making,” Mueller said. “After all, it was (apparently) Prigozhin’s choice to have Concord enter an appearance in this criminal case, knowing that he was under indictment but declining to appear himself, let alone accept notice of the indictment.”
Mueller proposed that, to resolve this issue, an independent “litigation control group” with no “personal interests in the criminal case” should get involved.
“Concord is under no obligation to organize itself in that way, but Concord also cannot complain about reasonable limitations on viewing sensitive discovery based on the personal interests of one of its officers,” he said.
Law&Crime has reached out to Concord attorney Eric Dubelier for comment and will update this space if he responds.
Editor’s note: it appears Mueller signaled something had gone very awry when he said in a recent filing that his ex parte (one party only) discussions with the judge about sensitive information were even more necessary than before. His words: “the Government’s proposed addendum to its forthcoming public filing would contain classified information, the grounds for considering that information ex parte are only stronger than before.”
Mueller Responds to Concord by on Scribd
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