New Mueller mystery: Whose nude selfie does the special counsel have?

Robert Mueller’s special counsel investigation into the 2016 election has everything — power, money, foreign intrigue, and now … S-E-X. In an unusually entertaining court filing yesterday, alleged Russian troll farm Concord Management argued that Mueller was deliberately running roughshod over legitimate discovery and undermining their ability to defend themselves. At the end of the filing, they dropped a salacious bombshell on the court — and the media:

An alleged Russian troll farm, which has been indicted by Robert Mueller, said in a court filing Thursday that the special counsel has “obtained a nude selfie” as part of his investigation.

The company, Concord Management and Consulting, filed a motion in court that claimed Mueller is unlawfully keeping materials away from it — and casually mentioned the existence of a lewd photo.

It was not clear Thursday where the alleged nude pic came from or who had taken it.

This move is far more interesting than a nude selfie (YMMV, of course), as it is in keeping with Concord Management unusually aggressive legal strategy against Mueller. The firm adopted it almost from the moment Mueller indicted it in February, along with 13 Russian individuals and two other corporate entities. Rather than ignore the indictment, Concord Management unexpectedly initiated court proceedings and later demanded discovery access to Mueller’s records to defend itself.

The move rattled the special counsel’s office enough that they argued in May that they themselves had not properly served notice of the indictment:

The prosecution team sought the delay on the grounds that it’s unclear whether Concord Management formally accepted the court summons related to the case. Mueller’s prosecutors also revealed that they tried to deliver the summonses for Concord and IRA through the Russian government, without success.

“The [U.S.] government has attempted service of the summonses by delivering copies of them to the Office of the Prosecutor General of Russia, to be delivered to the defendants,” prosecutors wrote. “That office, however, declined to accept the summonses. The government has submitted service requests to the Russian government pursuant to a mutual legal assistance treaty. To the government’s knowledge, no further steps have been taken within Russia to effectuate service.” …

“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,” attorneys Jeannie Rhee, Rush Atkinson and Ryan Dickey wrote. “That is especially true in the context of this case, which involves a foreign corporate defendant, controlled by another, individual foreign defendant, that has already demanded production of sensitive intelligence gathering, national security, and foreign affairs information.”

A federal judge rejected that argument, which was tough to sustain while Concord’s attorneys were in court and demanding a speedy trial.

Why did this move create such consternation? Concord Management is reportedly controlled by Yevgeny Prigozhin, a crony of Vladimir Putin’s who has also been indicted individually by Mueller’s team. Prigozhin also allegedly controls the other two Russian entities indicted on the same bill, including the notorious Internet Research Agency (IRA). Mueller’s team likely suspects that Prigozhin is using Concord Management’s indictment as a Trojan horse to give Russia a long look at Mueller’s work. That’s not an irrational supposition, although perhaps it might have been one good reason not to have indicted Prigozhin’s corporate entities until the whole investigation was concluded.

Mueller could withdraw the indictment against Concord Management, which might be embarrassing but would solve the discovery trap his team created for itself. Instead, Concord argues in this filing, the court has allowed prosecutors to use ex parte communications to the judge to bypass discovery, and they want it to stop immediately. They’re not hopeful about the outcome, but they do make a good point — if the material isn’t classified, why is it being withheld from the defense?

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 to the court which have never been employed in any reported criminal case not involving classified discovery. …

The Court will recall that from the outset the Special Counsel maintained that there was no classified information in this case. In fact, the Special Counsel continues to concede that the discovery in this case contains no classified information. Instead the Special Counsel asks the Court to accept secret ex parte communications from him to support the unprecedented argument that the Defendant itself cannot view millions of pages of non-classified discovery. This request is just another squinch to support the novelty of this entire proceeding. Undersigned counsel has been unable to identify any reported case where a corporate defendant was denied access to discovery, as the Special Counsel seeks here. Similarly, there is no reported case to support the Special Counsel’s instant motion.

Mueller’s team apparently argued that while the material itself is unclassified, the methods used to derive it have significant national-security sensitivity. That’s where the nude selfie makes its appearance in Concord’s conclusion:

Finally, it is worth noting that while undersigned counsel continues to work through the millions of pages of allegedly sensitive discovery, they would be hard-pressed at this point to identify any sensitive discovery that fits within the categories outlined by the Special Counsel in his prior briefing regarding the protective order. See Gov’t Mot. for Protective Order at 6-8, Dkt. 24. In contrast, it seems as if the Special Counsel himself is ignorant of the information available to the general public of the collection techniques he used in this matter, as noted in Concord’s Motion for Approval to Disclose Discovery Pursuant to Protective Order at 13-15, Dkt. 77. Could the manner in which he collected a nude selfie really threaten the national security of the United States?

Thus we see the tension at play in this filing. The special counsel wants to protect what he sees as highly sensitive methods and operations from prying Russian intelligence figures such as Prigozhin. The defendant in a criminal indictment nonetheless is entitled to full discovery on the evidence that led to the indictment as well as anything in the prosecution’s possession that might be exculpatory. Furthermore, it’s not the prosecutors who get to make the call as to what qualifies for discovery, for obvious reasons; if the government gets to make that call, it could easily cook cases up against anyone. Allowing the special counsel to make up its own discovery rules, especially for unclassified information, could set precedents that would apply to US citizens as well as Putin puppets in the future.

This is why Mueller’s team initially tried to postpone the arraignment. It’s also why it was likely a stupid PR stunt to unseal the indictment in the middle of the investigation in the first place. It certainly didn’t serve any other purpose, given that the rest of the indictees are never going to see the inside of a courtroom. The smart move would be to drop the indictment against Concord, but Mueller might wait to see how far up the appellate chain this ends up going first.

All of that still leaves the question open: whose nude selfie does Mueller have, assuming that Concord’s attorneys aren’t trolling the court? We may never know, especially if Concord never gets its discovery.