Mueller to Yevgeniy Prigozhin: Sure You Can Have Discovery … If You Come to the United States to Get It

This Concord Management filing, from Mueller’s team, is attracting a lot of attention because Mueller predictably asked for a protective order and said Russians are still engaging in information operations (so are we!!). Since we covered the certainty that there’d be a protective order in this case over a month ago, I’m going to focus on some other interesting tidbits about this filing.

As a reminder, Concord Management is a company owned by close Putin ally Yevgeniy Prigozhin. Concord is accused in the Internet Research Agency indictment of funding the troll operation.

Defendants CONCORD MANAGEMENT AND CONSULTING LLC (Конкорд Менеджмент и Консалтинг) and CONCORD CATERING are related Russian entities with various Russian government contracts. CONCORD was the ORGANIZATION’s primary source of funding for its interference operations. CONCORD controlled funding, recommended personnel, and oversaw ORGANIZATION activities through reporting and interaction with ORGANIZATION management.


To conceal its involvement, CONCORD labeled the monies paid to the ORGANIZATION for Project Lakhta as payments related to software support and development. To further conceal the source of funds, CONCORD distributed monies to the ORGANIZATION through approximately fourteen bank accounts held in the names of CONCORD affiliates, including Glavnaya Liniya LLC, Merkuriy LLC, Obshchepit LLC, Potentsial LLC, RSP LLC, ASP LLC, MTTs LLC, Kompleksservis LLC, SPb Kulinariya LLC, Almira LLC, Pishchevik LLC, Galant LLC, Rayteks LLC, and Standart LLC.

The indictment accuses Prigozhin of supervising the operation closely enough to have been saluted by troll operations in the US.

PRIGOZHIN approved and supported the ORGANIZATION’s operations, and Defendants and their co-conspirators were aware of PRIGOZHIN’s role.

For example, on or about May 29, 2016, Defendants and their co-conspirators, through an ORGANIZATION-controlled social media account, arranged for a real U.S. person to stand in front of the White House in the District of Columbia under false pretenses to hold a sign that read “Happy 55th Birthday Dear Boss.” Defendants and their co-conspirators informed the real U.S. person that the sign was for someone who “is a leader here and our boss . . . our funder.” PRIGOZHIN’s Russian passport identifies his date of birth as June 1, 1961.

When Concord moved to defend itself, it presented the possibility that it and Prigozhin would obtain discovery, and via Prigozhin, everyone else in Russia who was part of this operation, up to and including Putin. Indeed, the Mueller filing makes it quite clear that is the intent of the defense attorneys. They explicitly asked to share information with co-defendants that serve as officers of Concord, which can only mean they want to share information with Prigozhin.

In its initial proposed protective order, the government proposed a complete prohibition on sharing discovery with any co-defendant charged in this criminal case, whether individual or organizational. Defense counsel proposed that they be permitted to share discovery with a codefendant if that co-defendant is an officer or employee of Concord Management. To the government’s knowledge, the only charged defendant in this category is Yevgeniy Viktorovich Prigozhin, who was charged individually for conspiring to defraud the United States, in violation of 18 U.S.C. § 371.

So this dispute over the protective order is an effort to continue with the prosecution, while ensuring that Russia doesn’t obtain important information on the investigation into the operation by doing so.

Before I get into how Mueller’s team proposes to resolve the dispute, it’s worth reviewing the data in question, because that’s actually one of the most interesting parts of this filings. Apparently, the government used no classified information in the investigation of social media trolling (or parallel constructed whatever they did use).

As described further in the government’s ex parte affidavit, the discovery in this case contains unclassified but sensitive information that remains relevant to ongoing national security investigations and efforts to protect the integrity of future U.S. elections. [my emphasis]

Later, the filing makes it clear that much of the evidence in the case came from US providers — surely Facebook and Twitter and others.

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. 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.

These two details confirm a point I made in March: this indictment really doesn’t rely on information as secret as many reporters claimed. It relies on stuff you get from social media providers.

And contrary to what NBC says about the heavy reliance, in the Internet Research Agency indictment, “on secret intelligence gathered by the CIA, the FBI, the National Security Agency (NSA) and the Department of Homeland Security (DHS),” it really wasn’t all that sophisticated from a cybersecurity standpoint. Especially not once you consider the interesting forensics on it (aside from IDing the IRA’s VPNs) would have come from Facebook and Twitter.

That detail — that much of this indictment comes from the social media providers that Russia exploited in 2016 — is important background to this passage (this is the one that has gotten all the press), which asserts that Russia continues to do what Prigozhin’s trolls did in 2016.

Public or unauthorized disclosure of this case’s discovery would result in the 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. First, the substance of the government’s evidence identifies uncharged individuals and entities that the government believes are continuing to engage in interference operations like those charged in the present indictment. Second, information within this case’s discovery identifies sources, methods, and techniques used to identify the foreign actors behind these interference operations, and disclosure of such information will allow foreign actors to learn of these techniques and adjust their conduct, thus undermining ongoing and future national security investigations.

And that, in turn, explains much of the logic for the larger protective order request: the government is trying to prevent Prigozhin and through him Putin from learning what the US is doing to counter its information operations.

The government’s description of what it considers “sensitive” information that it wants to require a special review before sharing with foreign nationals reveals it is also trying to prevent Prigozhin and others from learning about the status of the investigation and its targets.

a. Witness statements provided pursuant to 18 U.S.C. § 3500;

b. Information that could lead to the identification of potential witnesses, including civilian, foreign and domestic law enforcement witnesses and cooperating witnesses;

c. Information related to ongoing investigations, including information that could identify the targets of such investigations; and

d. Information related to sensitive law enforcement or intelligence collection techniques.

Finally, the government is trying to hide what it knows about relationships between parties involved in this operation and “other uncharged foreign entities and governments.”

At a high level, the sensitive-but-unclassified discovery in this case includes information 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. [my emphasis]

So one thing the government wants to protect is what it knows about the relationship between Prigozhin and Putin, and the Russian government’s involvement in this trolling operation more generally.

And to do that, the government is demanding the ability to prohibit Concord’s lawyers from sharing information with Prigozhin (or any other defendant) without prior court review.

Notwithstanding the previous categories of authorized persons, no co-defendant charged in this criminal case, whether individual or organizational, shall be deemed an authorized person for purposes of discovery until the co-defendant appears before this Court. Defense counsel shall not disclose or discuss the material or their contents to any co-defendant charged in this criminal case, whether individual or organizational, until the co-defendant appears before this Court unless otherwise directed by this Court. If defense counsel, after reviewing discovery in this matter, believes it necessary to seek to disclose or discuss any material with a co-defendant who has not appeared before this Court, counsel must first seek permission from this Court and a modification of this Order.

Perhaps more interesting, it is demanding that Concord’s lawyers keep anything deemed sensitive in the US, firewalled from the Internet.

Neither defense counsel nor any person authorized by this Court is permitted at any time to inspect or review Sensitive materials outside of the U.S. offices of Reed Smith LLP, without prior permission from of this Court. Defense counsel or a designated and identified employee of Reed Smith LLP must accompany any person at all times while he or she is reviewing Sensitive materials at U.S. offices of Reed Smith LLP, unless otherwise authorized by this Court.


Sensitive materials shall not be viewed or stored on any device that is connected to or accessible from the Internet.

Sensitive materials may under no circumstances be transported or transmitted outside the United States.

The logic here is nifty: even if they lose on the ability to protect all materials from Prigozhin, they’ve already succeeded in requiring that he come to the US if he wants to read it. At which point, he’d be met by authorities at customs and promptly put in custody.

On one point I was mistaken. I thought there would be classified discovery of some sort, that would require the use of the Classified Intelligence Protection Act procedures. It will apparently never get to that. The government will either win on this protective order, which will largely moot much of the logic for Concord to contest the case, or it will lose, which will likely lead it to dismiss the indictment against Concord.

Update: Fixed protective for protection, h/t mw.

25 replies
    • emptywheel says:

      CNN reports he does have a new lawyer. This looks like a warning to Trump that unless something ($$ for defense, likely) happens he’ll start cooperating.

      • klynn says:

        One story says Cohen parted with his team and he has a new lawyer. Another says the team left Cohen. I’ll be curious to see if the new lawyer has less than 6 degrees of separation from Russian contacts.

      • JAAG says:

        It could be possible his counsel left him and said that it would be best if he found new counsel and announced that.  We do this in Canada occasionally when we cannot ethically act any longer – eg we find out our client is destroying evidence –  but we also cannot impugn the client as we withdraw, so the idea is to sometimes tell them we cant act, now go find someone else and tell the court when you do.   It is not a ruse, its a way of getting off record and not prejudicing the client.  I said this when Jared switched lawyers mid security clearance form filing debacle when I wondered if his lawyer wouldn’t act knowing he was being coy and dishonest.  I just want to say that fin my few years of practice in a non-criminal area, fraudulent clients have a way of cycling through lawyers.

        Then again, the article seems to indicate the previous firm did not know he had new counsel.  What is weird is that the new counsel seems not to have filed yet as counsel of record. Hence the leak would likely be Cohen.  That fits the Don please pay up soon notion.

        Or of course he could have switched counsel on his own for normal reasons, as Jared did.

        Personally, I would be terrified of my reputation working with these Trump guys and would be paranoid about ethics as Mueller seems to have history of targetting legal ethics (thank god).

        Disclaimer – I am not an American lawyer.

        • emptywheel says:

          I think several things are going on. First, there is a financial issue, apparently. I’m guessing Cohen is balking about paying his share of the Special Master fee (perhaps trying to get Trump to pay his share, which actually makes sense).

          Add in the fact that he’s going to be indicted soon, and now is the last his current lawyers can get off without citing cause. Get while the getting is good, especially if the client is stiffing you on pay.

          Finally, the reporting is pretty vague on when they’re departing–when they’re done with the review of documents for privilege (so Friday), or when the challenge to this seizure is done (so after some challenges to the 3 or more documents the Special Master has deemed not privileged which they claimed were). Hendon, Trump’s lawyer, submitted the only filing for the effort to conduct these challenges in secret, which leads me to wonder whether everyone associated with Cohen will bag on Friday, leaving Trump to claim privilege alone.

        • Webstir says:

          We call it a “noisy” withdrawal. You don’t give away any confidential client information to the court which would compromise atty/client privilege; but you let the court know that you are withdrawing because your ethical obligations as an officer of the court are jeopardized. It’s a wink-wink, nod-nod, say-no-more, say-no-more dance between the court and counsel. Some states are more lenient than others it’s use. Much tougher in a criminal context, and there is currently controversy in the federal courts  about such use.

        • Webstir says:

          Oh, and if the reputation you desire is lick-spittle to corrupt oligarchs, well …. welcome to the strategy of every member of the Federalist Society I went to law school with.

  1. orionATL says:

    here i was a week or so ago complaining that the office of special counsel investigation seemed  stalled. nothing was happening. everything seemed to depend on manafort finally caving in to osc pressure after being jailed.

    boy was i wrong.  things are heating up.

  2. SteveB says:

    Will Cohen’s pre-existing lawyers continue to complete the privilege review?

    I imagine they would argue no.

    If the conduct of the privilege review devolves onto the new set, I imagine they would seek a delay to let them get up to speed.

    Thus, amongst other things, might the sacking of his lawyers be a play for time by Cohen. It is a ploy criminal defendants pull in other jurisdictions, to my certain knowledge, and judges are wont to examine the circumatances of the “withdrawal of counsel on grounds of professional embarrassment” as closely as they can without stepping on privilege, to try and gauge whether there is an attempt to “game the system”.

    • Michelle says:

      The reporting has been that they will stay on through the end of the week to (try to) complete the privilege review. If it’s not done by Friday, Judge Wood will send the remainder of the work to a taint team.

      • SteveB says:

        Thanks for reply.

        It dispels the thought I had.

        Is the talk of Cohen’s arrest related to the lawyers withdrawal or is it independent of that ie does failure to cooperate/pay your lawyers implicate bail status?

        Cooperation with lawyers is not a standard condition of bail applied in every case in UK, but is sometimes imposed where there are grounds to consider that the  orderly administration of justice would be adversely affected without such condition.

  3. earlofhuntingdon says:

    The New York Times’s reporting attributes McDermott Will’s reluctance to continue to represent Cohen to problems getting paid and their “relative lack of experience” in dealing with attorneys from SDNY.  Neither passes the smell test.

    Cohen’s lawyers might be concerned about being paid in the future, but Cohen netted nearly $5 million when he sold two homes.  Apart from bail, a lot of money to spread around.  As for relative lack of experience with the attorneys at SDNY, that sounds bogus.

    Apart from his new cash horde, some of which he will have tried to siphon off for his family, Cohen’s has other investments, including his taxi medallions, which appear to be seriously under water.  Were he to have other debts or personal liability for any of those, it would be a problem.

    It seems more likely that McDermott Will did not like where this case was headed, how long it would last, and that the most likely outcome for their client would not enhance the firm’s reputation.  Any demand for serious bail money would put a crimp in Cohen’s finances.  But a high bail would be demanded only if Cohen did not flip and cooperate.  Whatever the reasons for this change of attorneys, I don’t think we have them yet.

    Plus, in a bit of protecting the NY home team, the Times replays the quote from McDermott Will about how hard they were working on the privilege review. It did not quote Judge Wood’s rejoinder, that the special master had completed her work in a fraction of the time, with fewer than a third of the lawyers that McDermott Will was billing Cohen for.

    • earlofhuntingdon says:

      If the Trump Org. or his 2020 Re-election Campaign has been paying Cohen’s legal bills, then Cohen’s change of lawyers becomes more explicable.  Rumors of Cohen flipping would send alarm bells ringing in McDermott Will’s collections department.  Trump, who still has de facto control of both Org. and Campaign, would not pay a bent dime for Cohen’s lawyers if Cohen were to start cooperating.

      If Trump is hesitating about paying Cohen’s legal bills, using that as pressure on Cohen not to flip, it would do two things.  It should make Cohen more aware and more frightened of how unreliable his Don is.  It would make McDermott Will bolt rather than get caught in the middle with unpaid fees.  During the privilege review frenzy, for example, with fifteen lawyers racking up 12-15 hour days, Cohen is running up a bill of about $100,000/day.

  4. Rusharuse says:

    Thug, thug, thuggedy, thug, thug, said Avenatti to thugs lawyer, now thug wants a fresh one. Could Mikey convince Rudy (aka gonzo rapper Rude E. and the X-Wyv’s (mega hit: “I’m cool an that’s that/got Horseshoe hairdo don’t wear no hat”) to bring his porny joo joo eyeball crazy stare to the SDNY big show? Will thug flip a perfect 10 like Nadia Comenici? Will the dominos fall into a nest of Russian dolls? Will thugs father in-law even talk to him anymore? . . I who have nothing, I who have no-one, will be watching with my nose pressed up against the window pane. (Shirley Bassey anyone?)

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