Bench slaps sting. Judges can be jerks.
But here’s an unfortunate reality that Reed Smith partner Eric Dubelier seems to have forgotten. Judges are in also charge. They make the decisions.
It’s not really a thing that you’d think someone who has been practicing law for 37 years needs to be reminded of. But you’d be wrong.
As counsel to a Russian company fighting election interference charges by special counsel Robert Mueller III, Dubelier on Tuesday submitted a breathtakingly petulant legal filing. It might score him some points with the Fox News crowd, but I can’t imagine it’s going to go over well with U.S. District Judge Dabney Friedrich of the District of Columbia.
Just stand back for a second and try to imagine any circumstances in which you’d write this to a judge:
“[[T]he 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.”
So let’s get this straight. He’s suggesting that Friedrich should feel bad that the “mainstream media” quoted her but failed to pay sufficient attention to his pending motions? Because stupid journalists think what a federal judge says in court is, like, more important than legal filings by advocates? Just because judges are confirmed by the U.S. Senate and actually decide the outcome of cases?
The filing follows a heated courtroom exchange where Friedrich, who was appointed to the bench by President Donald Trump, chastised Dubelier for his “unprofessional, inappropriate, and ineffective” filings in the case. She also pointed to his “meritless personal attacks on the special counsel, his attorneys and other members of the trial team.”
Dubelier’s response? “Your honor, that’s your opinion. That’s your opinion. I disagree with you, but that’s your opinion. You’re entitled to it.”
Gee, that’s awfully big of him.
He also accused the judge of being biased, which she denied.
Dubelier declined comment for this column.
Some background: Dubelier represents Concord Management and Consulting. The Russian business entity is charged along with about a dozen other Russian nationals and Moscow-linked firms with knowingly and intentionally conspiring to defraud the United States “by impairing, obstructing and defeating the lawful functions of the Federal Election Commission, the U.S. Department of Justice and the U.S. Department of State in administering federal requirements for disclosure of foreign involvement in certain domestic activities.”
None of the other defendants have responded, but Concord, which allegedly funded the Russia-based Internet Research Agency, hired a Reed Smith team led by Dubelier and partner Katherine Seikaly.
A former prosecutor in the U.S. Attorney’s Office for the District of Columbia, Dubelier “focuses his practice on international and domestic regulatory compliance and enforcement matters, white collar criminal litigation, civil false claims litigation, and securities enforcement,” according to the firm.
On paper, he’s got standard, solid Big Law experience. In 2017, for example, he led a team that got a multi-billion dollar False Claims Act case dismissed against HCR ManorCare. And in 2012, The National Law Journal recognized him for his pro bono work on behalf of a former U.S. Secret Service agent in a high-profile Foreign Corrupt Practices Act prosecution.
But his work for Concord is something else.
On Jan. 4, he filed a reply in support of a motion to compel discovery from the United States—a key point of contention in the case.
The first page of his motion contains this passage: “The Special Counsel also states that if simply trusting him that everything is just peachy is not sufficient, he can tell more ex parte secrets to the court to support his position. The Special Counsel’s argument is reminiscent of Otter’s famous line, ‘Flounder, you can’t spend your whole life worrying about your mistakes! You f**ked up . . . you trusted us. Hey, make the best of it.’”
Um, excuse me?
Quoting a profanity-laden passage from the movie “Animal House” seemed like a good idea? A winning way to frame your argument? In what universe is that going to play well with any judge?
Unless being outrageous is part of Dubelier’s strategy on behalf of Concord?
That was the theory floated by MSNBC host Rachel Maddow in a segment on Monday.
Maddow argued that for Concord, the whole point of “hiring American lawyers and contesting this case in court was to try to use the case and use those lawyers to challenge Robert Mueller, to challenge the special counsel’s investigation, to try to maybe even mess up Mueller’s inquiry,” she said, describing the Reed Smith filings as “super-snide and deliberately provocative.”
“They have structured their defense strategy in this case to try obtain massive amounts of information about the U.S. government, and specifically, the operation of the special counsel’s office,” she said. “They have tried to use their role as defendant in this case to get information about what the special counsel’s office has turned up.”
Maddow then read at length from the court transcript where Friedrich told Dubelier, “Your strategy is ineffective. It’s undermining your credibility in this courthouse. I will say it plain and simple, knock it off.”
Dubelier did not appreciate Maddow’s report one bit.
In his filing yesterday, he complained that he and co-counsel Seikaly “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,” he wrote.
“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.”
In other words, it’s all Friedrich’s fault because she said mean things to him in court?
If Dubelier is indeed being deliberately provocative, he’s playing a dangerous game. He’s based in Reed Smith’s Washington, D.C. office. This is his home court. What happens when he appears before Friedrich on behalf of another client who just wants a quiet win?
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