Mueller mulls it over

The Mueller Switch Project has turned into a tedious farce. Thomas Lifson puts it this way: “The Mueller special counsel investigation purportedly was instigated to discover possible illicit Russian influence on the 2016 presidential election but now is backing away from the only indictments aimed at Russian entities, leaving only alleged process crimes (such as General Flynn’s alleged false statement to the FBI) and alleged crimes that occurred long before the Trump candidacy (such as Paul Manafort’s Ukrainian connection).”

One would have thought that the proudly announced indictment of 13 Russians and three Russian companies for election related crimes went to the heart of his assignment. The Department of Justice posted the indictment online here.

Mueller failed to anticipate that any of the defendants would appear in court to defend against the charges. Rather, Mueller obtained the indictment to serve a public relations purpose, laying out the case for interference as understood by the government and lending a veneer of respectability to the Switch Project.

To Mueller’s obvious surprise, defendant Concord Management and Consulting appeared in court represented by competent counsel — Eric Dubelier and Kate Seikaly of the Reed Smith firm — to contest the charges and seek the discovery of evidence supporting the government’s case against it. Let us count the signs and tokens of second thoughts about this prosecution of the Russians now that Mueller has been put to it.

• In April Concord filed a general appearance through counsel in the case and made discovery requests seeking full disclosure of the information bearing on the charges.

• Mueller sought to postpone the arraignment on the ground that he had not properly served Concord with the indictment: “Until the Court has an opportunity to determine if Concord was properly served, it would be inadvisable to conduct an initial appearance and arraignment at which important rights will be communicated and a plea entertained.”

• This despite the fact that Concord had made a general appearance to defend the case.

• As John put it at the time, this is probably the first time in the history of litigation that a complaining party has told a court that it may not have obtained good service of process on a defendant that has appeared to defend the case on the merits. Not surprisingly, the judge was not impressed with Mueller’s transparently frivolous concerns.

• Mueller subsequently joined Concord in a motion for a continuance seeking relief from the requirement of proceeding to trial within 70 days under the Speedy Trial Act. The 70 day-requirement was to be extended to 70 days from August 28, 2018.

• Mueller then filed a motion for a protective order precluding counsel for Concord from sharing discovery with anyone other than narrowly defined “authorized persons.” As the AP reported: “In the government’s filing, prosecutors opposed a proposal by Concords’ attorneys that they be allowed to share information the government provides with officers or employees of Concord, a category of people that would include [Concord principal Yevgeny] Prigozhin.”

• Concord’s counsel responds that they should be able to share the evidence produced in discovery with Prigozhin in order to prepare a defense to the charges. Former prosecutor George Parry comments: “To anyone with an IQ above that of a celery stalk, such a fundamental and entirely proper move should have been anticipated. Nevertheless, this seems to have caught Team Mueller completely by surprise.”

• Parry notes: “Team Mueller proposed that, any foreign national (i.e., Concord) who wants to disclose sensitive discovery materials to others would have to go through a government ‘firewall counsel’ which would supposedly be ‘separate’ from the prosecution team. In other words, in order to prepare for trial, defense counsel would have to obtain the government’s permission before it used evidence produced in discovery to interview witnesses or investigate the basis of the criminal charges.”

• At a June 15 hearing, Judge Friedrich directed Mueller to work out the discovery issue with Concord’s counsel.

• Now Mueller has filed notices that he is adding four Assistant United States Attorneys to the case. Tom Lifson quotes the interpretation of this move provided by the Mueller crowd: “People familiar with the staffing decision said the new prosecutors are not joining Mueller’s team, but rather are being added to the case so that they could someday take responsibility for it when the special counsel ceases operation.”

Tom Lifson is not inclined to swallow the public relations disseminated on Mueller’s behalf by “people familiar with the staffing decision.” He asks: “Have you ever heard of anyone ‘farming out’ the central mission of a multi-million-dollar operation in order to focus on tangents?” Tom isn’t buying it. He thinks Mueller is getting ready to run — to run away from the case to avoid humiliation.

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