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Mueller seeks Protective Order re Concord Catering

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Posted on June 12 2018

 

 

May 5th Entry, here.

May 6th Entry here

May 25th Entry ( where SC Mueller disclosed 1.5-2 terabytes of data) here

 

Case No 1:18-cr-00032-DLF

 

document No 24 - Order of Protection

 See May 25th mini twitter thread below, this will provide you with context and content because the June 12, 2018 Doc #24 filing actually expands on the May 25th filing:

 

 

 

 See Special Counsel Mueller’s Motion and Proposed Protective Order, here.

I now refer you to page 2, what stand out to me is Mueller appears to be (rightfully  so) concerned about the ongoing investigation BUT potentially exposing, specifically the FBI’s Sources and Methods. which reads in part:

 

The evidence includes data related to hundreds of social media accounts, as well as evidence obtained from email providers, internet service providers, financial institutions, and other sources. (emphasis added)

Additionally, the need to produce much of the data in its original format (formats that include, for example, Excel and HTML files) makes it infeasible to make certain redactions without compromising expeditious review of the data.

The evidence in this case will also include numerous reports and affidavits filed in connection with this investigation that describe investigative steps, identify uncharged co-conspirators, and disclose various law enforcement and intelligence collection techniques

 

 

Since May 25th, the Government and Defense Counsel exchanged numerous communications, it’s the predictable back and forth, also known as meet and confer. On June 7, 2018 Defense Counsel informed the Government they opposed a Protective Order.

I now refer you to page 3. It is clear that the Government has concerns as it relates to the “ongoing criminal investigation and National Security Investigation”. The parties are unable to reach agreement on the following two points:

First:  number of co-defendants who have chosen not to appear in the United States and are beyond the reach of U.S. legal process, the government seeks, in the first instance, not to allow any co-defendant charged in this criminal case to review discovery until the co-defendant appears before this Courts

Second: to avoid unnecessarily undermining ongoing law enforcement and national security investigations, the proposed protective order outlines a mechanism to regulate disclosure of particularly sensitive material to foreign nationals. Disclosure of sensitive discovery would initially be limited to domestic defense counsel. (emphasis added) 

 

And granted, since I’m actually an American, I am inherently biased towards the prosecution. But the concern Mueller’s Team has is not baseless, it actually makes a lot of sense, there are at least a dozen Russians indicted, who are NOT in U.S. Custody ergo and they have yet to make an appearance in our Courts. Furthermore it’s unlikely they ever will. I actually think the government made reasonable compromises, but at the end of the day, our Country’s National Security is paramount.

🇺🇸Arguments for a Protective Order

As a matter of law yes,’ District Courts Have Significant Discretion to Enter Protective Orders Governing Discovery “

Moving on to pages 4-5. It comes back to Rules, always understand the Criminal Rules of Procedure. The Government relies (rightfully so) on Federal Rule of Criminal Procedure 16(d)(1), they cite the following cases in support of their Motion for a Protective Order.

    • United States v. Alderman, 394 U.S. 165 (1969)
    • United States v. O’Keefe, No. 06-cr-0249 (PLF), 2007 WL 1239204,
    • United States v. Loera, No. 1:09-cr-466 (E.D.N.Y. Apr. 3, 2017)
    • United States v. Lindh, 198 F. Supp. 2d 739
    • United States v. Moussaoui, No. 01-cr-455
    • United States v. Bin Laden, 58 F. Supp. 2d 113, 121 (S.D.N.Y. 1999)
    • United States v. Bundy, No. 2:16-CR-046

The Government correctly argues:

Protective orders are also frequently entered pursuant to Rule 16(d)(1) to promote the timely, and expeditious production of voluminous discovery information while preventing inadvertent dissemination of the information.

 

In an interesting turn in their arguments for a Protective Order, the Government cites Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(8) to bolster their Motion for Protective Order governing evidence. Most people may overlook the implications of why The Government included this in their arguments:

Crime Victims’ Rights Act (“CVRA”) provides that crime victims have the right, inter alia, “to be treated with fairness and with respect for the victim’s dignity and privacy.” 18 U.S.C. § 3771(a)(8). Courts have referred to the victims’ rights under the CVRA in identifying ‘good cause” for the imposition of protective orders or otherwise regulating discovery pursuant to Rule 16.

 

 

Which makes me think it -might- be possible & plausible that the Prosecution may have cooperating witness that “unwittingly” helped the IRA by setting up actual events and amplified IRA’s subversion within their own social media footprint. Meaning what other reason would there be to include this in their arguments?

 

 🇺🇸National Security Argument 

See pages 6-8 the Government’s position is:

..contains unclassified but sensitive information that remains relevant to ongoing national security investigations and efforts to protect the integrity of future U.S. elections. (emphasis added)

 

Perhaps I’m reading too much in to the last nine words in that sentence, but once could construe that DAG Rosenstein has expanded the Special Counsel’s scope, because nothing in the May or August 2017 memos talks about future elections. 

And then on page 6 Team Mueller drops a legal MOAB, beyond the protection of our Government’s sources and methods, this is the very first indication of “other uncharged foreign entites AND governments”

describing the government’s investigative steps taken to identify foreign parties responsible for interfering in U.S. elections; the techniques used by foreign parties to mask their true identities while conducting operations online;

🚩the relationships of charged and uncharged parties to other uncharged foreign entities and governments;

🚩the government’s evidence-collection capabilities related to online conduct; and the identities of cooperating individuals and, or companies.

Discovery in this case contains sensitive information about investigative techniques and cooperating witnesses that goes well beyond the
information that will be disclosed at trial.

And further concludes valid concerns about discovery/evidence being disclosed to the Russian Federation and “other foreign actors”. Special Counsel Mueller unambiguously states that these bad actors (Russia) and others never went away. Their efforts of sowing discord and chaos never stopped. Oddly that’s exactly what Director Comey said during his June 2017 Testimony. 

release of information that would assist foreign intelligence services, particularly those of the Russian Federation, and other foreign actors in future operations against the United States...believes are continuing to engage in interference operations like those charged in the present indictment...

 

 

The Government also appears to want to protect the identities of both witnesses and victims.  Specifically it appears perhaps a few of the witnesses realized they were unwitting participants in Russia’s Operation:

 

...communications and documents involving uncharged U.S. persons who were, as alleged in the indictment, unwittingly recruited by certain defendants and co-conspirators to engage in political activity inside the United States, such as attending Russian-organized rallies inside the United States...

..believes that if statements of these individuals were indiscriminately released, the result would be unnecessary embarrassment to these individuals who believed they were communicating about U.S. political activities with other U.S. persons.

 

Putin’s Chef super bad to go run to the media and yammer about the Indictment. Furthermore it’s reasonable to conclude if you refuse to avail yourself to our Court System, then you should forfeit any right to review and and all evidence presented for the crimes you perpetrated against our Country. Meaning Yevgeny Prigozhin’s arrogance to go on the record with the Washington Post and New York Times, perhaps not the best choice.

..indictment, tell the public media, “I am not at all disappointed that I appear in this list [i.e, the indictment]. If they want to see the devil — let them.” Washington Post, Feb. 17, 2018;

“Yevgeny Prigozhin, Russian Oligarch Indicted by U.S., Is Known as ‘Putin’s Cook,’” N.Y. Times, Feb. 16, 2018. Prigozhin is believed to be in Russia at this time, and he has not appeared before this Court to date.
As long as Prigozhin chooses not to appear personally in front of this Court, he is not entitled to review any discovery in this case.
 

 

Maybe I’m jaded but irrespective of a “firewall” and/or “trusting” Reed Smith will keep the “files” at their US Base Office, what assurances do we have, let’s say if the law firm’s office is broken into to and/or hackers steal the electronic evidence files?

In fact what assurances has Reed Smith given to the Government beyond, “hey now, you can trust us, we can police ourselves - wink - wink”. In other high profile cases, which includes highly sensitive albeit NOT classified evidence, why not demand the defense counsel establish a physical and electronic log & an authentication process. The Government and law enforcement are required to prove chain of custody and voluminous security protocols governing evidence, why are we not requiring Reed Smith adhere to the policies and procedures? 

And yes, perhaps I am being unreasonably paranoid but let’s not forget the genesis of the PII data started when the Russians & hackers that they hired stole this information. For example when I make photocopies or scan a document, I am required to type in a client code, plus other authentication steps. Similarly if I access electronic client files, I am also required to have the “credentials” to access the server where the files are located.

Moreover in the rare instance where I may have inadvertently attempted to access a file that I’m not authorized to view, I am required to complete an incident report and explain the who what, why and when. This has only occurred once in my career  and it was later determined I did in fact have the credentials to access that client file.

 

I have no doubt that Reed Smith likely has the same data controls as my employer but I remain skeptical that Reed Smith can be trusted. Remember only a few weeks ago Reed Smith submitted a Bill of Particulars demanding 75 years worth of our Government’s sources and methods. So color me skeptical. After reviewing the Proposed Protective Order, it also appears the Special Counsel’s Team is equally concerned and they have every reason to be. The proposed Protective Order can be found, here.

 

On aa side note, I am a bit surprised that the Government didn’t cite:

 

United States v Maloof Criminal No. H-97-93.

Protective Order to limit the disclosure of certain grand jury materials that will be turned over to the defendant under Fed. R. Crim. P. 16, Brady, Giglio, Bagley, and the Jencks Act. A Protective Order is needed because this case arises from an active grand jury investigation in this District concerning price fixing in the metal building insulation industry. Furthermore, a parallel civil case has been filed in this District and civil litigants are seeking discovery of individuals and companies who are witnesses, subjects, and targets of the grand jury investigation. 

Conversely I will not be surprised if this case is cited in Manafort’s case, given his former Attorney Melissa Laurenza, was ordered to testify before the DC Grand Jury..

🚩

And I think most of us forget that Manafort’s former real estate agent Wayne Holland of McEnearney Associates was also ordered to testify. See Judge Beryl’s Octpber 20, 2017 Order hereShould you be inclined you can read Maloof’s Case here

 

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