In a hearing on Wednesday, the government accused Mariia Butina’s attorney of misleading the press about her case in a way that would necessitate a protective order. The accusation against attorney Robert Driscoll was itself misleading, though. It also points to the murkiness of the case against the Russian Butina, who is being held without bond on an accusation that she failed to register as an agent of the Russian government in an effort to influence conservative groups toward a more favorable posture to Russia.
The government argued that Driscoll’s statement to Fox News that his client was being held on Foreign Agents Registration Act charge was false, downplaying the extent of her crime, and that this pointed to the need for a protective order. “The defendant is being charged with acting as a foreign agent and conspiring to do the same—this is not a mere FARA violation,” Assistant U.S. Attorney Thomas Saunders said.
As Slate’s Ben Mathis-Lilley has noted, though, the statute under which Butina has been charged, 18 U.S.C. Section 951, involves failure to register as an agent of a foreign government and is so near a FARA charge that a 2016 Department of Justice inspector general report found that DOJ investigators generally thought of them as the same thing. “Investigators we spoke to generally believed that investigations conducted pursuant to a separate criminal provision, 18 U.S.C. § 951 (Section 951), were FARA cases, whereas [National Security Division] officials believe that Section 951 and FARA are intended to address different criminal activities,” the report stated.
The confusion appears to stem from the question of whether or not the statute is seeking to address political activities or “espionage-like” activities. “NSD described Section 951 as targeting information gathering and other espionage-like activities on behalf of a foreign government, and FARA as requiring registration and disclosures by foreign agents engaged in legal activities, such as lobbying, tourism, and economic development,” the report said.
Butina is being prosecuted by the National Security Division, and the charges certainly hint at the premise that she may have taken part in “espionage-like” activities. The government has said in filings she worked for a Russian official named Aleksandr Torshin who is linked to Vladimir Putin and it has been reported in the press that the pair even met with officials from the Treasury Department and Federal Reserve in 2015 as part of their influence campaign. The government further alleges that Butina has links to the Russian military-intelligence organization, FSB, citing a note discovered among Butina’s possession asking “How to respond to FSB offer of employment?” along with “additional evidence.”
But as her attorney has further pointed out on Fox News, Butina hasn’t been accused yet of any specific espionage charge. All of which points to the central difficulty of the case: The government is trying to claim that this is an “espionage-like” case rather than a political one without having to offer full evidence of that publicly, because it is also seeking to “protect a potential ongoing investigation,” as Saunders stated in court on Wednesday.
While the government may have more evidence of actual “espionage-like” activities, until it shares those at trial or with the defense, it seems fair for Butina’s attorney to portray the matter as equivalent to a FARA case, particularly given the inspector general’s previous report on the matter.
U.S. District Judge Tanya S. Chutkan acknowledged on Wednesday that there was a “line” between revealing information about a case in violation of court rules and an attorney attempting to maintain a client’s “public image.”
Saunders portrayed Driscoll as a loose cannon who had violated those rules. “There is a line,” he said. “That line has been crossed repeatedly here.”
This aggressive posture may have worked, as Chutkan indicated “there is going to be a protective order in this case, at least for some of the material.”
She has given the government until Aug. 8 to propose such an order and the defense until Aug. 15 to respond.
Driscoll also suggested he would ask for expedited discovery of evidence that the government says it has that his client offered to exchange sex for a position at a special interest organization. “We have no idea what they’re talking about and we don’t believe it’s true,” Driscoll said. The judge suggested she would turn down that request.
“I’m not sure you’re entitled to specific pieces of evidence to rebut media reports,” the judge responded.
As long as the public is unable to see more of that evidence against Butina, though, the question will remain: Was this a political influence campaign or something more sinister? In the meantime, it’s totally fair for Butina’s attorney to raise that question himself.