The trial of Maria Butina promises to provide salacious drama to an already sexy political narrative … if in fact the players are allowed to discuss it. Attorneys for both sides fought over access to evidence today, with the government arguing for a gag order to keep details of the investigation under wraps until the trial. Butina’s attorney wants to see all of the evidence now, however, claiming that the government doesn’t actually have a case — especially on their sex-for-access claims:

The lawyer for a woman accused of being a Russian agent dueled with government attorneys on Wednesday over evidence in the case, including the allegation that she attempted to use sex to gain access to an organization she targeted.

Attorney Robert Driscoll said he demanded evidence to back up a prosecutors’ declaration in earlier court documents that Maria Butina had offered sex for a job.

“We have no idea what the government’s talking about,” he said. “We don’t believe it’s true.”

This sounds like a bluff. In courtroom arguments, the government noted that they had Butina’s diary, which Driscoll wants back along with her computers and mobile phone. That sounds like a pretty good start for evidentiary backing for those claims, or at least the potential for it.

An accusation of sex-for-access might be tough to prove absent direct admissions, either on e-mail, in a diary, or from witnesses. Having sex isn’t illegal in and of itself, even with powerful or influential people. The government’s attorneys had better be prepared to provide enough inculpatory evidence to overcome the private-choice argument. That may be why Driscoll wants the diary back so badly.

But wait, readers might wonder, would a Russian spy write incriminating statements into a diary? One would think not, but it turns out that Butina was remarkably indiscreet. She made her loyalties so well known, the Washington Post reported earlier today, that multiple people contacted officials at the university she attended over concerns about what Butina was actually doing there:

It wasn’t just the outspoken conservative politics of the auburn-haired Russian woman that drew the attention of other graduate students at American University. There was also her almost zealous embrace of her homeland.

Butina’s cellphone case was emblazoned with a famous photo of Russian President Vladi­mir Putin riding shirtless on a horse. She would buy friends rounds of vodka at the Russia House, the Dupont Circle restaurant popular with the Russian diplomatic set, sometimes challenging male friends to down horseradish-infused shots. She bragged to classmates that she had worked for the Russian government.

Butina’s arrest last week on charges that she was acting as an unregistered Russian agent and allegations that she has ties to Russian intelligence rattled those who knew her at American University, where she spent two years in the global security program at the School of International Service.

Wouldn’t a Russian agent have been more covert, many at the school now wonder, and worked to keep her Kremlin advocacy under wraps?

Well, you’d certainly think so, but here we are. That incompetence might even work as a defense for Butina’s team. Butina was apparently so public with her sympathies that it’s impossible to think of her as being covert in any way, or so the argument will go. However, if the government has evidence of communications with Russian intel and of specific information passed along by deception, it would still make her an intelligence agent — just not a particularly competent agent.

Much of this would normally get settled in the discovery phase, as the prosecution has to share its evidence with the defense or risk having a judge throw the charges out with prejudice. Prosecutors want to use this to frame the argument over a gag order, claiming that Driscoll and the defense can’t be trusted with discovery without a protective order:

At Wednesday’s hearing about the case, Butina sat motionless, in an orange jail jumpsuit, as Driscoll asked Judge Tanya Chutkan to order prosecutors to provide the defense with as much as 12 terabytes of data that he says was seized from her computers, phones and other devices during two recent FBI searches. The data, which Driscoll said amounted to potentially three million documents, should be provided to the defense — along with Butina’s personal diary and other material — in order to rebut the sex-for-access claim and other “overblown” accusations made by prosecutors, he argued.

Prosecutors so far have refused to hand over the documents, they said, because Driscoll insists on having “free rein” to use them however he wants, and has already provided too much detail about the case in several recent TV interviews.

The judge appears to largely agree with prosecutors on this point:

The judge gave prosecutors two weeks to submit a compromise proposal about what documents to release and what kind of gag order she should impose. She gave Driscoll another week to respond, but added, “There is going to be a protective order in this case.”

That’ll certainly be disappointing to those watching the case before it comes to trial, but don’t expect that gag order to hold up even if it does get imposed. Trial attorneys know how to cover their tracks when trying cases in the media, and reporters will champ at the bit to get any prurient details on their front pages.

Addendum: Exhibit A for the defense’s case that Butina’s far too indiscreet to be an intel agent: