Eric Dubelier of Reed Smith leaves federal court in D.C., on June 15,2018. Credit: Diego M. Radzinschi / ALM

A Washington federal trial judge is weighing whether to hold in civil contempt a Russian company charged in the special counsel's investigation, as prosecutors and the defense lawyers quarrel over whether the indicted firm has complied with trial subpoenas.

The government's case against Concord Management and Consulting, among the Russian outlets charged in a conspiracy to sow discord in the 2016 U.S. presidential election, has been hard-fought from the start, with defense lawyers contesting the charges and pressing back at every turn.

Of the 16 indicted Russian defendants, Concord is so far the only one that has answered to the charges, hiring the law firm Reed Smith to represent the company in federal court. On Thursday, federal prosecutors urged U.S. District Judge Dabney Friedrich of the District of Columbia to consider holding Concord in contempt over its failure to turn over subpoenaed records. Friedrich has set a hearing for March 2.

In court papers Thursday, prosecutors said Concord had spurned trial subpoenas demanding a variety of records, including documents concerning internet protocol addresses used by the company. Prosecutors said Concord had also failed to provide calendar entries of meetings between the company's controlling officer, Yevgeny Prigozhin, and other Russian individuals charged with tampering in the presidential election to support Donald Trump.

Also ignored, prosecutors said, was a demand for records of payments from Concord to the Internet Research Agency, another Russian firm charged by the special counsel's office. Prosecutors faulted Concord and its defense lawyers for failing to explain the search process, saying the company "has not so much as claimed that it complied with the trial subpoenas."

"With trial fast approaching and in light of Concord's previous gamesmanship in connection with these subpoenas, it is critical that Concord thoroughly explain its surprising response to the trial subpoenas in this case," wrote prosecutors Adam Jed and Heather Alpino. In their filing, the prosecutors faulted Concord for failing to explain its search process and noted that the company had "not so much as claimed that it complied with the trial subpoenas" based on what it has turned over.

On Friday, Concord's defense lawyers said the request for a contempt citation was "fatally flawed," arguing that the court had not ordered them to provide any explanation of the company's responses to the subpoenas.

"Any citation for civil contempt in such circumstances would not just be erroneous as a matter of law, it would be an abuse of the contempt remedy and its purpose. No prosecutor in any context should be provided with the coercive power of contempt the government seeks here," wrote Reed Smith partner Eric Dubelier.

Taking aim at the prosecutors' allegation of "gamesmanship," Dubelier defended his challenge to the subpoena, in which Dubelier agreed that portions of the government's requests were overly broad.

"Perhaps the government has forgotten that the court addressed Concord's arguments on the merits without calling them frivolous. Perhaps it also forgot that the court agreed with Concord that the trial subpoena was overbroad in material respects," Dubelier wrote.

"Or perhaps the government just wanted to take an unwarranted cheap shot at Concord's counsel," he added.

Dubelier also questioned the Justice Department's own conduct in turning over records, writing that "if there needs to be finger-pointing about delay, the government should take a hard look in the mirror, starting with its protracted dance over supplying State Department information."

"Concord has lived with these tactics from inception without a thought being given to calling the government out for civil contempt. But if incredulity over how an adversary responds to discovery is all that is needed, it will rethink the matter," he wrote.

In their filings Thursday, prosecutors revealed testy email exchanges with Dubelier concerning the trial subpoenas and Concord's response. On Feb. 3, a prosecutor asked Dubelier how he wanted to "handle the logistics" of producing records from Concord.

Dubelier argued the responsibility of producing documents fell to his client, Concord, and not his law firm.

"The judge said twice that we don't have to do anything. That said, we will send you what the client provides to us," Dubelier wrote.

Prosecutor Jonathan Kravis responded that he did not fully understand Dubelier's email. "At the last hearing the court granted in part our motion for an early return trial subpoena to Concord. So I think your client does have to do something—comply with the subpoena," Kravis wrote.

Within minutes, Dubelier shot back, "You are not listening. The court said twice explicitly that we [Reed Smith] did not have to do anything. Despite this, we will transmit what if anything the client sends to us on the return date."

Kravis would resign from the Justice Department a week later after Justice Department leaders intervened in the prosecution of Roger Stone to recommend a more lenient sentence for the longtime Trump confidant. Three other career prosecutors, including Jed, withdrew from the case in an apparent protest of the extraordinary move, which plunged the Justice Department into turmoil.

 

 

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