A former federal prosecutor has emerged as special counsel Robert Mueller’s most persistent courtroom critic.
It’s not Rudolph W. Giuliani, a former U.S. attorney and now President Trump’s ubiquitous defender, or any of cable TV’s prosecutors-turned-pundits.
He is Eric A. Dubelier, a litigator for the Reed Smith law firm who knows international law and the D.C. playing field. He served eight years prosecuting cases as a Justice Department assistant U.S. attorney in Washington. He refers to his former employer as “the real Justice Department,” implying that Mr. Mueller’s team is something less.
His biting remarks have come in months of court filings and oral arguments. Mr. Dubelier has depicted Mr. Mueller as a rogue prosecutor willfully ignoring Justice Department guidelines.
He has accused Mr. Mueller of creating a “make-believe crime” against his Russian client, Concord Management and Consulting, which is accused of funding a troll farm that interfered in the 2016 election.
So far, the federal judge presiding over the case has sided with Mr. Mueller.
Mr. Dubelier charges that the Mueller team violated the confidentially of Concord’s counter evidence while hiding documents Concord needs for its defense. The prosecutor wants to “whisper secrets to the judge,” Mr. Dubelier says, as Mr. Mueller is calculating the “short-term political value of a conviction” and not worrying about an appeals court defeat years later.
An example: In a Dec. 20 motion, Mr. Dubelier resurrected a botched case spearheaded by Mr. Mueller’s top prosecutor, Andrew Weissmann.
Mr. Weissmann headed the Justice Department’s Enron task force nearly two decades ago. He won a conviction against the accounting firm Arthur Andersen for shredding the defunct energy firm’s financial documents.
Years later, the U.S. Supreme Court unanimously reversed the conviction. The 2005 decision effectively said that Andersen, by then out of business and its 28,000 employees gone, hadn’t committed a crime.
“Mr. Dubelier is exactly right on Mr. Mueller’s motives and tactics,” said Sidney Powell, whose book “License to Lie” exposes years of Justice Department scandals. “His lieutenant Weissmann is the poster boy for prosecutorial misconduct and has no regard for the facts or the law. He will make up whatever he wants to win, and the entire like-minded team views as an accomplishment everyone whose life they destroy in pursuit of their objective.”
‘Made up a crime to fit the facts’
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Concord Management and Consulting is an unlikely client. Legal observers opined that when Mr. Mueller brought charges against various Russians who hacked computers and trolled the 2016 election, no defendant would travel the nearly 5,000 miles to show up for trial.
No defendant has personally arrived. But Concord did appear quickly after the February indictment. Of 28 Russian individuals and firms charged with election interference by Mr. Mueller, only Concord has appeared in U.S. District Court, in this instance in the person of the aggressive Mr. Dubelier.
The Washington defense attorney seemed to catch the Mueller team off guard by immediately demanding disclosure of evidence. Disclosure, Mr. Dubelier argues, is a sacred legal right in America, even for the oligarch Yevgeny Prigozhin, Concord’s chief with close ties to Russian leader Vladimir Putin.
Concord is accused of an elaborate conspiracy with another Russian operation, the Internet Research Agency. The indictment accuses Concord of providing the troll farm $1.2 million monthly to defraud the U.S. The two firms set up fake personas and false Twitter accounts, Facebook ads and other social media posts mostly to disparage Hillary Clinton and support Donald Trump.
In a separate case, Mr. Mueller brought charges in July against 12 Russian intelligence officers for hacking Democratic computers, stealing emails and funneling them to three websites for distribution.
Mr. Dubelier argues that people are free to create fake accounts. It’s done all the time, he says.
“When it comes to political speech, one is free to pretend to be whomever he or she wants to be and to say whatever he or she wants to say,” he said at an Oct. 15 hearing.
“That’s why in this case this special counsel made up a crime to fit the facts that they have,” Mr. Dubelier said. “And that’s the fundamental danger with the entire special counsel concept: that they operate outside the parameters of the Department of Justice in a way that is absolutely inconsistent with the consistent behavior of the Department of Justice in these cases for the past 30 years.”
Mr. Dubelier lost that argument with U.S. District Judge Dabney L. Friedrich, who rejected his bid to dismiss the case.
But he wasn’t done. There is an ongoing battle over Concord’s access to “sensitive” evidence that Mr. Mueller won’t let its officers see because they are Russians with ties to Mr. Putin.
Mr. Dubelier has expressed exasperation.
“This equates to the burden of preparing for trial without any ability to discuss the evidence with the client who is to be put on trial,” he said. “This has never happened before in reported case law because the notion is too ludicrous to contemplate.”
What Mr. Mueller has turned over is often irrelevant to mounting a defense, such as promotion emails for airlines and personal naked selfie photographs, Mr. Dubelier said in a December filing.
The special counsel is keeping most relevant information between himself and Judge Friedrich, excluding Mr. Dubelier.
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Mr. Mueller won the argument over “sensitive” material. He now wants to hold closed sessions with the judge over classified information — again, without Mr. Dubelier.
Mr. Dubelier responded in a Dec. 27 filing: “The Special Counsel has made up a crime that has never been prosecuted before in the history of the United States, and now seeks to make up secret procedures for communicating ex parte [meaning no defense counsel present] to the court which have never been employed in any reported criminal case not involving classified discovery.”
The defense attorney admitted his motion is “likely fruitless” because Judge Friedrich previously has ruled against Concord.
Many documents are in Russian, a culturally different language than English.
One Russian word, Mr. Dubelier says, “can be translated into the English words ‘chief,’ ‘boss’ or ‘chef’ — a distinction that is critically important since international media often refers to Mr. Prigozhin as ‘Putin’s chef.’”
On another matter, Mr. Dubelier is accusing the Mueller team of skullduggery.
Judge Friedrich last summer approved the prosecutor’s request for a “firewall counsel” to review evidence for its national security implications.
Mr. Dubelier said he submitted evidence to the firewall lawyer only to see it fall into the hands of Mr. Mueller’s team, who began using it to further investigate Concord. “Surely a remarkable coincidence,” Mr. Dubelier said.
In another pre-trial argument, Mr. Dubelier is the first defense attorney to ask this question: Why isn’t British ex-spy Christopher Steele, who was paid by Democrats to obtain anti-Trump information from the Kremlin to influence 2016 voting, being investigated by the Justice Department for election interference just like the Russians?
Mr. Steele didn’t register under the Justice Department’s Foreign Agent Registration Act, under which Mr. Mueller has brought charges against a number of defendants, including the Concord team. Judge Friedrich rejected Mr. Dubelier’s argument of “selective prosecution.”
Mr. Mueller’s counter-motion boils down to this: Mr. Prigozhin is a criminal fugitive who blatantly interfered in the U.S. election and is not entitled to sensitive national security information he would share with the Kremlin intelligence.
In a new battleground, the Mueller team wants to show the judge top secret material to persuade her to keep it from the defense.
“Disclosure of such information could cause exceptionally grave damage to the national security,” the Mueller filing stated.
Judge Friedrich ruled in June that Mr. Prigozhin is prohibited from viewing non-classified sensitive information that details how the government obtained evidence.
The Mueller team argued: “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 … Information within this case’s discovery identifies sources, methods, and techniques used to identify the foreign actors behind these interference operations … the government has particularized concerns about discovery in this case being disclosed to Russian intelligence services.”
Mr. Mueller says that as long as Mr. Prigozhin, whom the U.S. sanctioned and then indicted for election interference, remains in Russia, he isn’t entitled to see sensitive evidence.