Defense attorney calls out Mueller team’s questionable tactics in court filing

January 6, 2019

Defense attorney calls out Mueller team’s questionable tactics in court filing Image Source: Screenshot

Lawyers representing a Russian company charged with election interference turned to a famous pop culture reference to bash Special Counsel Robert Mueller in a court filing on Friday.

Defense attorney Eric A. Dubelier, who represents Concord Management and Consulting, quoted the iconic 1978 movie Animal House to make his point that prosecutors are inappropriately siphoning confidential evidence from the defense.

Eccentric attorney

This isn’t the first time that Dubelier has used modern cultural references to make arguments in the special counsel case. He also cited a 19th-century Catholic historian in Friday’s filing, and previous motions from the defense have included quotes from the cartoon character Tweety Bird and the 1942 film Casablanca.

Dubelier made headlines last month for submitting a motion claiming that Mueller is unlawfully withholding evidence from the defense, casually noting that a “nude selfie” was among the irrelevant material that the special counsel sought to keep concealed.

“Could the manner in which he collected a nude selfie really threaten the national security of the United States?” the defense wrote in December court filing.

Concord Management and its owner, Russian oligarch Yevgeny Prigozhin, stand accused of bankrolling thousands of fake social media postings and advertisements meant to sow public discord prior to the 2016 presidential election. Prigozhin, like 26 other Russian entities charged with election interference, has refused to respond to the special counsel subpoena and submit himself to prosecution in U.S. courts.

Unlawful order

To keep Concord Management from sharing any evidence or investigative secrets with Prigozhin or any other Russian defendants, Mueller requested earlier this year that any discovery shared with Concord Management’s legal team not be shared with anyone else. U.S. District Judge Dabney Friedrich concurred and established an independent “firewall counsel” that would determine if there were any national security concerns any time the defense sought to share court materials with outside parties.

However, the one and only time that the defense submitted evidence to the firewall counsel, which is supposed to be independent from the special counsel, prosecutors took an unspecified “investigative action” that Dubelier believes was based on the confidential information he shared with the firewall no less than a week earlier.

Dubelier wants to know how Mueller got his hands on this confidential material, writing:

In the Special Counsel’s secret pleading he concedes he took investigative action relating to information that was identical to that which Defendant provided to firewall counsel just seven days earlier. The Special Counsel states that he did not obtain the information from firewall counsel. The Special Counsel also states that if simply trusting him that everything is just peachy is not sufficient, he can tell more ex parte [hidden from defense counsel] secrets to the Court to support his position.

Mueller’s response to these charges occurred under seal because he claims it details a “matter occurring before the grand jury.” To Dubelier’s dismay, the judge also agreed to keep additional information ex parte — or available only to the court and not the defense counsel — which Mueller deems “classified for reasons of national security.”

Frat boy defense

Dubelier turned to National Lampoon’s Animal House to underscore his point, quoting smooth-talking frat boy Eric “Otter” Stratton, played by Tim Matheson, to explain the court’s injustice:

The Special Counsel’s argument is reminiscent of Otter’s famous line, “Flounder, you can’t spend your whole life worrying about your mistakes! You f****d up … you trusted us. Hey, make the best of it.”

Dubelier, a former prosecutor, challenged the legitimacy of the firewall, calling it an “unprecedented and onerous protective order” that keeps evidence away from the defense. Discovery is a fundamental right for all defendants, and Dubelier argues that the archaic firewall counsel tramples on those privileges — especially if Mueller is using it to obtain confidential information from the defense team.

Mueller has also used the unusual protective order to withhold evidence from the defense under the pretense that it contains investigative tactics which could end up in the hands of Russian intelligence. The special counsel is therefore immune to the Brady rule, a doctrine that requires prosecutors to share exculpatory evidence with defense attorneys.  

Dubelier has called the indictment facing Concord Management a “made up crime,” insisting that there is no federal law against obscuring one’s identity on social media and there is no crime called election interference.

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Benjamin Baird

Benjamin Baird is a senior staff writer for the Conservative Institute. He is a veteran infantryman of Iraq and Afghanistan with over 1000 days in combat and holds a degree in Middle Eastern studies from the American Military University. Ben is a regular contributor at the Middle East Forum and has written for dozens of conservative publications, including The Daily Caller, American Spectator, American Thinker, New English Review and Jewish News Syndicate.