Shorter Yevgeniy Prigozhin: Don’t Send the PII We Already Stole — Just Send the Intelligence

In this post, I described the Mueller team’s motion for a protective order that would keep sensitive information from the case against Concord Management away from its owner, Vladimir Putin crony Yevgeniy Prigozhin.

Concord’s lawyers have now responded with the performative aspect that has characterized their filings in this case. From a legal standpoint, they argue both that protective orders are an unusual thing (which seems utterly absurd on its face) and that withholding information from a co-defendant who has not presented himself before the court is not supported by case law (a proposition I await Mueller’s answer to judge).

For now, though, note that their demands have actually gotten worse than what, according to Mueller at least, they had already agreed to.

Mueller, as I noted, contended that Concord had agreed to keep all discovery in the United States, but objected to Mueller’s request to withhold it from Prigozhin. The US-restrictions showed up on their protective order this way:

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.

But Concord has now changed its mind about the US restrictions.

Further, the Special Counsel attests to the Court that the defense has agreed “on many procedures designed to enable the government to turn over discovery,” Mot. at 2, while failing to tell the Court the truth; that any such concessions were made as part of a concerted effort by undersigned counsel to reach a stipulated agreement of this issue, and absent that stipulation there is in fact no agreement at all. Despite this fact, and as a courtesy to the Court only, Defendant Concord represents that it is willing to accept the draft protective order attached hereto as Exhibit A, which will permit it to protect its constitutional rights in defending this criminal case.

It calls the requirement that discovery remain in the US (it doesn’t address the demand that it remain firewalled from the Internet) a hostage situation.

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. See ECF 24-1, proposed Protective Order at ¶ 2.

Perhaps even more interesting, having been told that Mueller will hand over everything because it is too unwieldy to strip Personal Identifying Information of victims and others, Concord not only says they don’t want it (though they caveat about whether they’ll eventually release it at trial), but that they refuse to accept it.

Not yet ashamed, the Special Counsel plays the personal identifying information (“PII”) card. See Mot at p. 9. However, undersigned counsel has already advised the Special Counsel that Defendant does not seek any personal identifying information that is irrelevant to the defense. The Special Counsel stated to undersigned counsel that it would not be possible to remove any such information from the discovery. But that is the Special Counsel’s problem, not Concord’s. And undersigned counsel will not accept any such information unless the Special Counsel can demonstrate that, in fact: 1) it is relevant to the defense of the case; 2) the Special Counsel intends to use the item in its case-in-chief at trial; or 3) the information was obtained from or belongs to Defendant. See Fed. R. Crim. P. 16(a)(1)(E). The Special Counsel’s reliance on the out of circuit case United States v. Johnson, 191 F. Supp. 3d 363 (M.D. Pa. 2016) provides no cover. To the contrary, Johnson, a drugs and firearms case, returns to the concept of an umbrella protective order that is unheard of in published opinions in this district, and further addresses PII which we are not seeking unless it is relevant to the defense.7

7 The Special Counsel’s description of the PII to undersigned counsel makes it difficult to understand how it could be relevant to the defense. The Special Counsel generally noted that some of the discovery contains financial account numbers of innocent individuals. As noted above, undersigned counsel refuses to accept or be responsible for any such irrelevant data. As to names, addresses and other personal information of the same or other individuals, undersigned counsel has no intention of making any such information public prior to trial.

Of course, Russia has already stolen a lot of this PII.

So effectively, what Prigozhin is saying is that he doesn’t want any of the PII he already stole; he just wants the intelligence showing what the US government knows about how he stole it.

Don’t get me wrong: the underlying legal issues here will be an interesting question. But the message — don’t send the PII we already stole, just send the intelligence — is quite simple.

Update: In a hearing on Friday, Friedrich expressed impatience that discovery hadn’t begun yet, but generally showed great deference to the government’s concerns about security. She set a deadline for the parties to agree on a protective order, but if the interim one she drew up until they agree on something is any indication, the Mueller team will generally get what they want. In particular, she prohibited the sharing of discovery with anyone not in Concord’s law firm, meaning they can’t share it with Prigozhin.

Pursuant to this interim order, the government shall initially produce the materials to defense counsel. In the first instance, and unless and until further order from this Court, defense counsel shall not further disclose the materials or their contents directly or indirectly to anyone except defense counsel, as defined above.

And she required sensitive materials to be firewalled from the Internet, and prohibited sensitive materials being transmitted outside the US.

The government shall provide Sensitive materialsto defense counsel in a password protected, electronic format. Sensitive materials shall not be copied or reproduced without prior permission from this Court, except that defense counsel may make copies for use exclusively by defense counsel in connection with this criminal case. Sensitive materials shall be maintained in a locked room at Reed Smith’s offices within the United States, when they are not in the actual possession of defense counsel. 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.

She also endorsed the idea of a firewall counsel who could raise objections on sharing, and even suggested a special master for discovery here.

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

34 replies
  1. earlofhuntingdon says:

    It would seem the defendants are betting heavily on dismissal, with a casual thumb in the eye for Mr. Mueller.  Takes a big of juice to be that insouciant, more than just having a good lawyer.

  2. Avattoir says:

    Double OT, but … maybe now a ‘working thread’ dedicated to the IG Report issued today?

  3. Charles says:

    I hope Mueller can escalate the charges enough to arrest Concord Management and request denial of bail. That might stop these guys from playing games.

    But then… I wonder if Mueller by trying to keep the information inside the US isn’t setting a trap for Prigozhin. Sure, we’ll let you see the information… from inside the US federal prison system.

  4. klynn says:

    This is an affirmation of Mueller’s need for the protective order. Additionally, their use of “hostages in a political game” does not fit the issues at the heart of the case unless one reads their response in the context of admission to their crimes. I read this as an admission and thus, a reinforcement if Mueller’s request for a protective order.

  5. jo blow says:

    they have to hide the evidence cause they still don’t have any… are we in the 10th inning yet?

    • Oldoilfieldhand says:

      You may be in the 10th inning, Mueller is already putting names on trophies for season records…

    • SpaceLifeForm says:

      Caught your sarcasm.

      Note they are dealing with nearly 2 Terabytes of data.

      Think they got from social media sites? (Ex: FaceBook)

      Or was it just Hillary emails?

      • jo blow says:

        if folks can’t see paranoia staring them in the face, all that’s left is labeling any different view as ‘trolling’..

  6. pseudonymous in nc says:

    the performative aspect that has characterized their filings in this case.

    Eric Dubelier is being paid Russian money to be a colossal dick, and so he’s being a colossal dick. Which is fine: legal representation takes many different forms, and nobody’s under any illusions here about the nature of his brief.

    • emptywheel says:

      Precisely. And he’s having a ton of fun doing it. And some of his legal arguments are actually interesting legally, rather than just for their inherent dickishness.

      The issues behind these questions are real. But this dude really is being paid to attract maximal attention from people who don’t understand how the law works here.

  7. SpaceLifeForm says:

    Concord (and other players) want to know how IC is connecting dots.   They want to figure out how IC is doing that, in the mistaken belief they can hide their tracks.

    Same reason DOJ would not give Nunes unredacted ‘stuff’, like the Scope memo.

  8. earlofhuntingdon says:

    On the Avenatti front, bmaz has a nice twitter exchange with Maggie H about Avenatti’s attempted use of the press to fight the orchestrated forces of the president and his enablers.

    The otherwise talented Ms. Haberman misses the irony in her implied criticism of Avenatti, given that her access journalism is among the orchestrated forces arrayed in defense of the indefensible and his cohort of followers.

    bmaz: First off, it is a gag order, not a restraining order.  Secondly, Avenatti is right.  The media should help fight such an attempt.

    maggie haberman: Michael Avenatti is trying to egg the media on to become a party fighting the restraining order application filed by Cohen….

    Not to mention that the law is on Avenatti’s side of the argument that involves Cohen’s lawyers attempting to gag his use of the press, which would presumably include his reasonable use of twitter, to defend his client.  SAD!  But this is not about irony or hypocrisy or the rule of law, it’s about politics and power.

    • Trip says:

      What the hell is wrong with her?

      As an aside, it’s important to realize that as much as the Times is considered “liberal”, their positions border on, if not cross over into, hard right Zionism in support of Israel, which is abundantly apparent in the way they cover Palestinian Treatment, and where the stories are placed. Perhaps that’s where some of the Trump defense is coming from, from higher up in the paper?

      • earlofhuntingdon says:

        I agree.  The NYT is often quite conservative, unusually so about Israel.  I suspect Glenn Greenwald is correct.  American Jewish expression about Israeli government excesses is kept within narrower and more conservative bounds than is permitted even in Israel.  And it slides into the common misperception that criticizing the Israeli government is tantamount to anti-Semitism, which is bogus.

  9. Trip says:

    I don’t know where else to put this (it’s OT for everything, or it relates to everything), but have you seen Trump’s hair this AM? It is totally fucked, like a barbershop quartet look, maybe Hitler. He’s got an approximate center part, not the orange sweep. I will argue that there is a correlation between the state of Trump’s hair and how much trouble he knows he’s in. Maybe he spends less time with the convoluted comb-over when he’s caught. Sarah Huckster-b Sanders has a tell too, when she lies, her contorted face becomes more grossly asymmetrical, and you might find one eyeball in her forehead with the other in her chin; same with her mouth.  The ugly emanating from inside can’t be contained, as its greatness and mass is too much.

    BTW: If Sessions and Sanders believed in this biblical “follow the law” horseshit, how is that the DOJ decided NOT to defend the ACA, which is LAW? Unlike the separation of children from immigrant parents, which is NOT LAW, it’s Sessions’ Sadistic Policy.

    • Trip says:

      bmaz‏ @bmaz

      This shit show on the White House lawn has Trump’s rambling blather making Rudy actually look sane in comparison. Holy crap.

      6:13 AM – 15 Jun 2018

      Yep, no lies in this comment.

    • earlofhuntingdon says:

      Garden variety example of the devil quoting scripture.

      I truly, deeply believe the Don when he says, “If you read the report….”  He hasn’t the attention span to read the back of a cereal box, let alone a 500 page IG report.

      Trump’s North Lawn free-style presser was him foaming at the mouth.  He repeated one canned phrase after another about his innocence and the greatness of his work. Over and over again.

      If I were John Kelly, I would immediately have the White House physician examine the Don for rabies – you know how he can’t handle a water bottle – and dementia.  He is in a scary place, which should scare the pants off everyone else.

  10. earlofhuntingdon says:

    Why is MSNBC interviewing Alan Dershowitz?  He is so predictable and so frequently wrong as to be a national embarrassment.  He is repeating his opposition to “weaponizing the criminal justice system” as if it were a mantra, as if he were Trump rambling about the North Lawn.

    Dershowitz went over the top also in repeating the idea that locking up someone before trial is “obnoxious”.  The comment demonstrates that he has never been inside a criminal courtroom his entire career.

    Hundreds of thousands of people every year, most of them poor and people of color, are routinely locked up while awaiting trial.  Some serve longer sentences in jail than they would after conviction.  They serve time even when found not guilty.  That is obnoxious and a national embarrassment.  But it’s not what Dershowitz is talking about. His focus is a few privileged white guys, few of whom have spent time in jail awaiting trial. Manafort would be an exception only because of egregious post-indictment behavior. Cohen might join him if he doesn’t flip.

    Dershowitz is also wrong in arguing that a special counsel was not needed, that this investigation could have been handled within the DoJ.  For starters, it is being handled by the DoJ: the special counsel is entirely within the control of the DoJ, just in a more structured way than say, the attorneys at SDNY.

    Special counsel was needed for the Russia investigation.  Talented staff with specific expertise needed to be assembled.  They needed to work outside their normal offices, office routines, office loyalties, and office dysfunctions.  They needed to work exclusively on the Russia probe.  They needed to be isolated from normal department controls, which can be readily manipulated by the AG for political ends.  Jeff Sessions demonstrates daily how readily he would do that to curry favor in a Penceian way with Donald Trump.

    The special counsel arrangement also makes it easier to avoid leaks.  Given the political power of those being investigated, that was essential to its purpose.

    • Trip says:

      Dershowitz was associated with Gatestone. He is a nutter with the best of the nutters.

      MSNBC has MANY, MANY horrible guests on for ridiculous opinions. Comedian Wolf mentioned Zucker hugging it out with Conway. They are all in it together.

  11. earlofhuntingdon says:

    Jawohl!  Bitte, stehen Sie auf!  Der Praesident spricht!

    The Don is on the edge, his toes are losing their grip.  Something he would like to see here is for people to stand and pay attention when the president speaks.  Just as they do in North Korea.

    Pity this president’s Cabinet would commit collective seppuku before invoking the 25th Amendment, even if Mikey Pence were running round the room begging for it while handing out the tanto.

  12. Trip says:

    Joe Palazzolo‏Verified account @joe_palazzolo
    Donald Trump once asked his aides to get Michael Cohen to resign from the Trump Org. To make the point, Trump halved Cohen’s salary. But Cohen hung on, promising he’d “prove myself.” He got back in Trump’s graces by promoting the boss’s political career.

    Mr. Trump’s frustration had reached a breaking point, the aide said. Mr. Cohen wasn’t getting things done and Mr. Trump didn’t believe he was a good fit at the Trump Organization, even though he liked him and didn’t want to fire him. “What’s he doing here?” Mr. Trump demanded. The message was relayed to Mr. Cohen. Visibly upset, Mr. Cohen pushed back. “I will try to prove myself,” Mr. Cohen replied, a person familiar with the matter said.
    Mr. Trump eventually dropped the issue, but not before dealing another blow to Mr. Cohen by way of a big pay cut, slashing his annual income of more than $400,000 roughly in half, according to another person familiar with the matter.

    And this dipshit has to spend more than 3 minutes deciding if he’ll cooperate with investigators?  Talk about a self-hating dupe.

    • earlofhuntingdon says:

      Trump reportedly hired Cohen to do a favor for a guy with heavy mob connections.  The Don is always willing to do another made man a favor.  You don’t fire a guy you hired that way without explaining why, which usually doesn’t work.  (The Don never asks a second favor if you refuse the first), or by doing another much bigger favor to make up for it.  (That still makes you unreliable, which is the thought that sticks.)

      You can, however, “let him go” by resorting to the standard corporate HR thingy of making the job unbearable or impossible to perform. There are a plethora of options.  In Japan, for example, there’s a name for it, but it amounts to taking a usually workaholic salaryman, working in a goldfish bowl, and putting him in a private office with nothing but a window, a chair, a desk, and a telephone.  Resignation follows promptly.

      For Trump, with a guy he wants to let go in expensive mid-town Manhattan, halving his salary would ordinarily do the trick.  Mikey was too ambitious and obtuse, so he stuck it out.  He still is.

  13. earlofhuntingdon says:

    Pauly goes to jail.

    Manafort “endangered court’s integrity”, the court found probable cause that he committed another crime while out on bail, and yanked his freedom.  By now, he will have already spent more time in jail than Scooter Libby, but he is unlikely to spend as much time in jail awaiting trial as the average defendant accused of a felony.  (The MSM can stop rending its garments over a wealthy white guy enduring incarceration in the American criminal justice system.  None of Manafort’s jail mates are gonna cry a tear.)

    MSM talking heads to the contrary, Paul Manafort has plenty to give up.  Odds are, a lot of it Mueller already knows, but Manafort can confirm, always useful when making a complex case involving high-powered defendants.  But a lot of what Manafort has will be new or offer new perspectives on new facts.

    Trouble is, Manafort has acted for some of the world’s baddest actors, some of whom react violently when threatened with exposure.  Manafort flipping will not be an easy task, even if he’s taking his three squares in a local jail.

    You can always tell when Trump is obsessing about the risk someone poses to him.  He throws them under the bus, and foams at the mouth with minute details about how unimportant to him they were and are.

  14. Trip says:

    Business records show Russian finance intertwined with Psy Group

    An analysis of the Matryoshka doll-like company structure of the private intelligence group that met with Donald Trump Jr. and Erik Prince during the 2016 campaign has revealed the presence of Russian money intertwined with Psy Group’s affiliates…Additionally, the beneficial owner of Psy Group has no open source connection to Israel. The British Virgin Islands shell company which ultimately owns the private intelligence group, Protexer Limited, has links to Russian commerce….In fact, as Trump Jr, Prince, Nader, and Zamel were meeting at Trump Tower, Deripaska’s private jet quietly flew into the nearby Newark Airport. It remains unknown who or what was on this flight and why it was chartered. The plane landed at 2:21 am local time and took off again, back to Moscow, at 6:40 pm. A day later, the plane took the Russian Deputy Prime Minister Sergei Prikhodko to Molde, Norway where he met secretly with Deripaska on his private yacht.

    (Maybe Anastasia Vashukevich has something)


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