A new filing by Special Counsel Robert Mueller shows how Russia uses the federal courts to go after its adversaries.
A new court filing submitted on Wednesday by Special Counsel Robert Mueller revealed that a Russian troll farm currently locked in a legal battle over its alleged interference in the 2016 election appeared to wage yet another disinformation campaign late last year—this time targeting Mueller himself.
According to the filing, the special counsel’s office turned over 1 million pages of evidence to lawyers for Concord Management and Consulting as part of the discovery process. The firm is accused of funding the troll farm, known as the Internet Research Agency. But someone connected to Concord allegedly manipulated the documents and leaked them to reporters, hoping the documents would make people think that Mueller’s evidence against the troll farm and its owners was flimsy. The tactic didn’t seem to convince anyone, but it appeared to mark yet another example of Russia exploiting the U.S. justice system to undercut its rivals abroad.
Last year, I detailed how Russia has figured out how to use the U.S. immigration courts and so-called red notices issued by Interpol to harass and even detain its enemies. But it doesn’t end there. Experts say Kremlin proxies have targeted their rivals and other disfavored individuals by exploiting U.S. courts to pursue bogus claims via “superficially legitimate lawsuits,” Anders Aslund, a resident senior fellow at the Atlantic Council, said in a recent report. He worked as an economic adviser to the Russian government from 1991 to 1994. The Kremlin proxies have done so not only to perpetuate global harassment campaigns against their perceived enemies, Aslund argued, but also to “enrich themselves through bad faith claims made possible by the Russian state’s abuse of disfavored individuals and their businesses.”
When Mueller indicted Concord in February 2018, along with two other corporate entities and 13 Russian nationals allegedly connected to the Internet Research Agency, it seemed highly unlikely that the indictment would result in a trial, because Russians cannot be extradited to the United States. But Concord unexpectedly hired the well-connected American law firm Reed Smith to fight Mueller, arguing that the charges should be dropped because the special counsel was illegally appointed. The judge in the case, Dabney Friedrich, has twice refused to dismiss the case and recently lambasted Concord’s American lawyers for submitting “unprofessional, inappropriate and ineffective” court filings, and the legal battle has raged on.
Now, according to the Mueller filing this week, unidentified actors working out of Russia appear to have weaponized the U.S. discovery process to Concord’s benefit. More than 1,000 files on the website that hosted the leaked documents “match those produced in discovery,” the special counsel said. The documents were published from a computer with a Russian IP address, according to Mueller, and whoever released them clearly “had access to at least some of the non-sensitive discovery produced by the government.” But forged documents were mixed into the trove, too, apparently in an attempt to accuse Mueller of characterizing American websites and Facebook pages such as Occupy Democrats as Russian disinformation operations. The website also inserted irrelevant documents into folders with unique names—known only to those with access to the discovery materials—and characterized them as the sum total of Mueller’s evidence “in an apparent effort to discredit the investigation,” the special counsel said.
In a statement issued on Thursday, Reed Smith denied responsibility for the breach, claiming that the data at issue were hosted by a third-party vendor working for Concord and were never stored on Reed Smith’s internal computer systems. “Reed Smith and its lawyers have at all times complied with the protective order in this case,” the firm said. A Reed Smith attorney representing Concord didn’t return a request for comment.
In October, legal and national-security experts expressed concern to ABC Newsthat, in the Concord case specifically, the Russian government may be trying to use the discovery process in a “graymail” strategy designed to make Mueller drop the case in order to prevent sensitive U.S. national-security information from being made public. Mark Zaid, an attorney based in Washington, D.C., who focuses on national-security law, said he viewed the latest incident involving Concord and the hoax website “as part of a consistent strategy by the Russians to hinder, obstruct, and derail” Mueller’s probe. “One wonders whether pursuing the criminal charges against the Russians was worth the difficulty and these current problems,” Zaid said, “particularly given the odds of ever gaining custody of any individual is unlikely.”
But the Concord case is just one example of this phenomenon—and it “helps expose the deliberate efforts of the Russians to continually attack our democratic systems,” he added.
In 2017, the Russian state-owned Deposit Insurance Agency (DIA) filed two applications for judicial assistance from the federal courts in New York and Massachusetts to obtain discovery on two former shareholders of the privately owned Probusinessbank, Sergey Leontiev and Alexander Zheleznyak. Leontiev and Zheleznyak had fled to the United States by that point, but that didn’t stop the DIA from pursuing them through the U.S. courts. Leontiev had run afoul of Vladimir Putin when one of the bank’s subsidiaries attempted to launch the “Navalny card”—a debit card that would donate a percentage of transactions to an anti-corruption organization led by the Russian dissident Alexei Navalny. The Central Bank of Russia revoked Probusinessbank’s operating license shortly thereafter and forced the company into bankruptcy, despite having deemed the bank financially sound just two months prior. The DIA immediately began dividing up Probusinessbank’s assets to Kremlin-friendly institutions such as B&N Bank after being appointed its temporary administrator and liquidator in 2015.
When Leontiev moved to quash a federal-court subpoena against him in 2017—arguing that it had been orchestrated by two Russian agents sanctioned under the Magnitsky Act, Andrey Pavlov and Victor Grin—the court denied his motion. The court wrote that it was “not blind to Leontiev’s claims that the discovery sought here is intended for other proceedings or impermissible purposes” and had its own concerns “about the legitimacy of these requests,” which were “heightened by the involvement of two sanctioned individuals.” Despite all of those reservations, the court ruled against Leontiev on the narrow grounds that it was only helping provide discovery in “underlying litigation … before a foreign tribunal.” When Leontiev’s lawyers asked that the discovery documents not be provided to any entity that Pavlov was associated with, the DIA’s lawyers refused. “The same cast of Russian operatives sanctioned by the U.S. government for their participation in the Magnitsky Affair now attempt to exploit Western institutions, including the U.S. judicial system and Interpol, to further their corrupt pursuit of Mr. Leontiev and others using the cover of legitimate courts and institutions,” Bob Weigel, Leontiev’s lead outside counsel in the case, said in a statement.
Michelle Estlund, a criminal-defense attorney who focuses on international criminal prosecutions and politically motivated prosecutions, told me last year that the problem is that while the U.S. courts operate in good faith to assist Russian authorities, the Russian courts frequently do not. “Our courts act like, and think that, they are operating on the same type of playing field as the Russians,” Estlund said. “But they’re not. The system there is completely different from here. And when the courts are properly responding to what appears to be a legally authorized request for assistance with discovery, often what they’re doing is assisting with an extremely corrupt court proceeding.” Another lawyer who follows this phenomenon closely and requested anonymity because he was not authorized to speak to the press echoed Estlund’s assessment. “The Russians have figured out how to weaponize this,” he said. “We have this tremendous system of justice here, which isn’t equipped to address nonjudicial questions like ‘Is this litigant seeking to abuse our entire judicial system?’ ”
The issue arose again just last month, when the Southern District of New York unsealed an indictment against the Russian lawyer Natalia Veselnitskaya. According to prosecutors, Veselnitskaya had tried to obstruct an investigation into her client Prevezon, a company founded by a Kremlin ally that was accused of laundering millions of stolen Russian taxpayer dollars through Manhattan real estate. Veselnitskaya had secretly worked with the Russian government to draft a document purporting to be an independent assessment made by Russian prosecutors saying that Prevezon was innocent of laundering funds, the indictment said. That document was then filed in federal court in an attempt “to affect the outcome” of a lawsuit filed against Prevezon by federal prosecutors, according to Geoffrey Berman, the U.S. attorney in Manhattan. The scheme threatened “the ability of our courts and our government to ensure that justice is done,” he said. And it worked: The court decided to deny the U.S. government’s motion for summary judgment against Prevezon based on the fraudulent document, according to the indictment.
Mueller, for his part, appears to have foreseen how the Russians connected to Concord (it is owned by Yevgeny Prigozhin, who is often referred to as “Putin’s chef”) might try to exploit the legal process: In June 2018, he asked Friedrich, the judge, for a protective order that would prevent Concord’s lawyers from sharing any discovery documents with the Russians named in the troll-farm indictment, as well as with other foreigners, such as lawyers outside the United States. If the data were to be distributed outside of American law firms, Mueller said, “foreign individuals may try to use that avenue as a way to obtain sensitive materials as part of an intelligence collection effort.” The hoax website aimed at discrediting his investigation largely failed, but seemed to prove Mueller’s prescience, beyond any doubt.