Benchslapped: The Eric Dubelier File
You might not realize it but a Russian company accused of financing an attack on American democracy is trying to use the U.S. court system to make a mockery of Special Counsel Robert Mueller’s investigation.
The company is Concord Management and Consulting LLC. The Russian company, owned by one of Putin’s cronies, stands accused of bankrolling the operations of the St. Petersburg-based Internet troll farm that bombarded Americans with divisive content on social media during the 2016 election.
Not only has Concord Management pleaded not guilty to what it calls “a make-believe crime” — conspiracy to defraud the United States — it has battled to gain access to Mueller’s sensitive investigative files.
No doubt it would be interesting to Concord and its Russian masters how Mueller was able to obtain such detailed and devastating information.
I was wondering what sort of attorney would represent a company like Concord Management.
The answer, it turns out, is a bad one.
His name is Eric A. Dubelier and he has somehow managed to reach the rank of partner at the firm Reed Smith LLP despite repeatedly embarrassing himself and his firm in court.
His legal filings in the case quoted Flounder (!) from the film Animal House. In open court, he pointed his finger at Jeannie Rhee, one of Mueller’s prosecutors, and said her claim that he had hung up on her in a phone call was “bullshit.”
Judge Dabney Friedrich called Dubelier’s actions “unprofessional, inappropriate, and ineffective.”
This is what is known in the legal profession as a “benchslap.”
Sure, it stings. Most attorneys just take it.
Not Dubelier. His response was a legal filing one observer described as “breathtakingly petulant:”
Perhaps more importantly however, the Court did not consider the fact that while the mainstream media has largely ignored Defendant’s pending motions, when the word “Judge” appears before a person’s name, this political adornment suggests to the public that there now is some higher level of wisdom than among the mere mortal lawyers in the case, and as such, every single mainstream media organization repeated the Court’s words as gospel.
How dare the media quote the judge!
But there’s more.
The direct consequence was swift and clear; that is, undersigned counsel have received overnight and continuing today a flow of hatred in the form of voicemail and electronic mail from self-proclaimed patriots containing threats, intimidation, and the desire that both undersigned counsel promptly die. One communication specified that the cause of death for [co-counsel Katherine] Seikaly should be by fire. Apparently some of these brave self-proclaimed patriots were whipped into their frenzy by a cable television entertainer unknown to undersigned counsel named Rachel Maddow who devoted a significant portion of her variety program to the words spoken by the Court yesterday. So while counsel’s words used in advocacy can hurt, the words of a Judge can have devastating consequences.
Dubelier’s humiliation is palpable. Which is surprising. It’s not the first time he’s been benchslapped.
Justice Ruth Bader Ginsburg also benchslapped Dubelier in her 2011 dissent in the case of Connick v. Thompson.
This case involved an infamous episode of prosecutorial misconduct in the death penalty case of John Thompson. (Thompson spent 14 years on Louisiana Death Row until an investigation found blood evidence that would have exonerated him was withheld from the defense. Dubelier was the special prosecutor on the case.)
Here’s RBG’s benchslap of Dubelier:
On what basis can one be confident that law schools acquaint students with prosecutors’ unique obligation under Brady? Whittaker told the jury he did not recall covering Brady in his criminal procedure class in law school. Dubelier’s alma mater, like most other law faculties, does not make criminal procedure a required course.
Translation: Just because Eric Dubelier has a law degree doesn’t mean he knows the law.
The Brady rule RBG is talking about is the 1963 Supreme Court case of Brady v Maryland. Ever since that ruling, prosecutors have had to share with defense attorneys any evidence that might help exonerate a defendant.
Dubelier, questioned under oath, could not articulate the Brady rule, according to a Slate article on the Thompson case.
Dubelier’s alma mater, Tulane University, bears some of the blame here. Dubelier spent the better part of a decade at Tulane, leaving a bachelor’s degree (with honors), an MBA, and finally, in 1984, a law degree.
A year out of law school, Dubelier, working for the New Orleans district attorney’s office, embarrassed himself before Judge Oser in a high-profile point-shaving case against a former Tulane basketball star, John “Hot Rod” Williams.
That’s another violation of the same Brady obligations Justice RBG referenced earlier.
Judge Oser reversed himself and, later, dismissed the case again saying Dubelier had deliberately concealed Brady material from the defense. Williams was acquitted in a retrial.
Despite his disastrous performance in the Hot Rod Williams case, Dubelier remained a close assistant to New Orleans District Attorney Harry Connick Sr. (the father of singer Harry Connick Jr.). It didn’t hurt that Dubelier was briefly married to Connick’s niece.
After New Orleans, Dubelier spent more than a decade as a prosecutor the U.S. Attorney’s office, first in Miami and later in Washington, D.C. In his defense, he seems to have performed his duties without any more national embarrassments. One of the individuals he prosecuted was Francisco Martin Duran on charges of trying to assassinate President Clinton.
He left what now refers to as “the real Justice Department” in 1998 to join Reed Smith. One of his clients at Reed Smith was the widow of Andrew Breitbart, the founder of Breitbart News, which is interesting given his current representation of the (alleged) financier of the Russian troll farm.
As for the Concord case, the troll farm lawyer got his revenge on the press when he trolled reporters with another filing that made a cryptic reference to a nude selfie in Mueller’s possession.
Some Useful Trump/Russia Definitions
The Trump/Russia scandal has filled our heads with a lot of intelligence jargon. Unwitting asset. Agent. Active measures. But what do these words actually mean?
Someone pointed me to the CIA’s own Glossary of Intelligence Terms, created in 1989. Granted it’s a bit outdated, but it’s also quite helpful. (I am indebted to The Black Vault, an online repository of declassified documents for the glossary.)
Here’s how the CIA defines active measures:
Active measures: A literal translation of a Russian phrase that is used to describe overt and covert techniques and intelligence operations designed to advance Soviet foreign policy objectives and to influence events in foreign countries by altering people’s perceptions. Active measures should not be confused with legitimate diplomatic activities.
We often hear Trump described as a possible asset, unwitting or otherwise, of Russia. But according to the CIA’s glossary this isn’t the right use of the word.
Agent (1) A person who engages in clandestine intelligence activity under the direction of an intelligence organization but who is not an officer, employee, or co-opted worker of that organization. (2) An individual who acts under the direction of an intelligence agency or security service to obtain, or assist in obtaining, information for intelligence or counterintelligence purposes. (3) One who is authorized or instructed to obtain or to assist in obtaining information for intelligence or counterintelligence purposes.
A better word is asset.
Asset: (1) Any resource — a person, group, relationship, instrument installation, supply — at the disposition of an intelligence agency for use in an operational or support role. (2) A person who contributes to a clandestine mission but is not a fully controlled agent. (Also see intelligence asset, national intelligence asset, and tactical intelligence asset.)
We recently learned that the FBI had opened a counterintelligence investigation into Trump after his firing of James Comey. Here’s how the CIA defines it.
Counterintelligence: Information gathered and activities conducted to protect against espionage, other intelligence activities, sabotage, or assassinations conducted for or on behalf of foreign powers, organizations, persons, or terrorist activities, but not including personnel, physical, document, or communications security programs. (Also see foreign counterintelligence, security countermeasures, and technical surveillance countermeasures.)
It’s interesting to view propaganda from an intelligence perspective.
Propaganda: Any form of communication in support of national objectives designed to influence the opinions, emotions, attitudes, or behavior of any group in order to benefit the sponsor, either directly or indirectly.
The dossier compiled by former MI6 agent Christopher Steele is often described as raw intelligence.
Raw intelligence: A colloquial term meaning collected intelligence information that has not yet been converted into finished intelligence. (Also see intelligence information.)
That takes us to another definition.
Finished intelligence: (1) The product resulting from the collection, processing, integration, analysis, evaluation, and interpretation of available information concerning foreign countries or areas. (2) The final result of the production step of the intelligence cycle; the intelligence product. (Also see intelligence cycle and end product.)
Let me know if this is helpful or there are any other terms you’d like to see explained.
Is the President a Russian Agent?
Back-to-back newspaper stories have brought up the central question that motivated me when I began this blog two years ago: Is the president of the United States an agent of a foreign power?
First came the blockbuster January 11th story in The New York Times revealing that the FBI grew so concerned about the president’s behavior after his dismissal of FBI Director James Comey that they began an extraordinary investigation into whether the president was working on behalf of Russia against American interests.
That was followed by a report in The Washington Post about the “extraordinary” measures the president has taken to hide the details of his conversations with Russian President Vladimir Putin. Trump reportedly grabbed the notes of his own interpreter and instructed the linguist not to tell other administration officials what he had discussed with the Russian leader.
The common thread in both of these extraordinary stories is what a criminal investigator might call Trump’s “consciousness of guilt.” The president is behaving as though he has something to hide when it comes to Russia and is acting to cover up a crime.
The president fired James Comey because his agents were investigating the president’s ties to Russia, as he told NBC’s Lester Holt. An early draft of Comey’s dismissal letter also referenced Russia. And why would Trump keep the details of his conversations with Putin secret from his own administration unless he had something to hide?
Last evening, Fox News host Jeanine Pirro put this remarkable question to the president when he called in to her show: “Are you now or have you ever worked for Russia, Mr. President?”
Trump’s answer is a “non-denial denial” — something that sounds like a denial but isn’t. Missing from this answer is the word “No.”
“It’s the most insulting thing I’ve ever been asked” goes in the pantheon of other famous non-answers like Nixon’s “I am not a crook” Mark McGwire’s “I’m not here to talk about the past” and Clinton’s “I did not have sexual relations with that woman.”
Here’s the thing about espionage: Trump can be an asset of Russia and still believe he’s not. In spy terms, this would make him an unwitting
agent asset — someone who is unaware that he or she is being exploited by an intelligence operative as a means of attack by an adversary. It’s like a chess piece that thinks it’s moving around on the board as it wishes, unaware it is being guided by an unseen hand.
Putin, after all, is a master manipulator, who spent 16 years in the KGB “studying studying the minds of the targets, finding their vulnerabilities, and figuring out how to use them,” as Fiona Hill, senior director for Russian and European Affairs on Trump’s National Security Council wrote in her aptly titled book Mr. Putin: Operative in the Kremlin. (Hill, not surprisingly, was one of the ones kept in the dark about Trump’s conversations with Putin.)
Trump’s enormously fragile ego make him ripe for exploitation. You get a glimpse of how this works in a Washington Post story about phone conversations between Trump and Putin.
The Russian president complains to Trump about “fake news” and laments that the U.S. foreign policy establishment — the “deep state,” in Putin’s words — is conspiring against them, the first senior U.S. official said.
“It’s not us,” Putin has told Trump, the official summarized. “It’s the subordinates fighting against our friendship.”
We also see it in a photo op at the 2017 G20 Summit in Hamburg, Germany. ,
… the Russian president leaned in to Mr. Trump, gestured to the journalists in the room, and asked: “These are the ones insulting you?”
“These are the ones. You’re right about that,” Mr. Trump responded.
What we don’t see or hear are the conversations taking place where Trump is getting fed actual Kremlin talking points. Since Trump doesn’t read and doesn’t study history how did he come to believe that the Soviets invaded Afghanistan to fight terrorism or that Montenegro was going to start World War III?
Let’s not forget all the president’s policies that support Russia’s interests and undermine America’s: his attacks on NATO, his abrupt decision to withdraw troops from Syria, and his inability to protect the United States from a repeat of Russia’s 2016 attack on our democracy. If Putin had given Trump a checklist of items he wanted take care of, the end result wouldn’t look much different.
It is difficult to avoid the conclusion that the president of the United States, most likely without realizing it, is acting as an asset of a foreign power.
It may have taken most people a long time to come around to this ugly reality (if they’ve come around at all) but it’s been plain as day to intelligence officials ever since the presidential campaign.
“In the intelligence business, we would say that Mr. Putin had recruited Mr. Trump as an unwitting agent of the Russian Federation,” Michael Morrell, former acting director of the CIA, wrote an op-ed in The New York Times in August 2016.
James Clapper, the former director of national intelligence, said the same thing when he pointed out how Putin’s dealings with the president showed what a great case officer the Russian president was.
The back-to-back explosive stories over the weekend are another signal flare being sent up from inside the Trump administration. The stories, which both involved events in 2017, may have been meant to invite a congressional subpoena to the FBI agents or Trump’s translator. With the Democrats in control of the House, they may get their chance.
What Is Russia’s Centre for Information Security?
The New York Times reports on a series of arrests involving Russia’s FSB, the successor agency to the KGB that may be connected to the hacking of the 2016 U.S. Election.
According to the Times, one of those arrested, Sergei Mikhailov, was serving as deputy director FSB’s Centre for Information Security. He was arrested on a charge of treason. Earlier in the month, the head of the Centre, Andrei Gerasimov, was dismissed.
What is the FSB’s Centre for Information Security?
Some answers come from Jeffrey Carr, a security consultant out of Seattle who runs the consulting firm TAIA Global and published Inside Cyber Warfare. Carr describes the FSB’s Centre for Information Security (also known as Military Unit 64829) as the organization in charge of protecting Russia’s Internet.
“In sum, any Internet operation originating in Russia are almost certainly monitored and probably overseen by the FSB ISC,” Carr wrote in this analysis. “Current Russian press covers Russian intentions to implement further restrictions on RuNet to counter foreign attempts to wage “information warfare” against Russian and ideologically subvert the Russian population. Whatever final form the new restrictions take, the FSB ISC will be heavily involved.”
I would be wary of any reports that claim the Centre hacked the U.S. election. Cyberwarfare like conventional warfare is a confusing picture, with many different groups carrying out different but overlapping missions.
Different FSB components are responsible for attacks outside Russia. One is the FSB’s 16th Center, also known by the Orwellian name of the FSB Center for Electronic Surveillance of Communications, according to TAIA Global Another is the FSB’s 18th Center. Another is the FSB’s Fifth Directorate. All three were blamed for cyberattacks and propaganda during the Russian invasion of the Crimean Peninsula.
And President Obama’s executive order imposing sanctions in response to the hacking of the 2016 U.S. Election names both the FSB and the GRU, the main intelligence directorate. It’s believed that the GRU hacks were passed along to Wikileaks and other media outlets during the election.
There’s no evidence yet that the Centre for Information Security had a hand in the 2016 U.S. election hacking, but with their complete command of the Russian Internet they almost certainly would have known about it.