Case 1:18-cr-00218-TSC Document 24 Filed 08/31/18 Page 1 of 11

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v.

MARIIA BUTINA, also known as
MARIA BUTINA,
Defendant.

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Criminal Case: 18-218 (TSC)

Government’s Response to the Court’s August 24, 2018 Minute Order
The United States of America, by and through its attorney, the United States Attorney for
the District of Columbia, respectfully submits this memorandum in response to the Court’s August
24, 2018 Minute Order directing that the parties may file submissions setting forth reasons why
the Court should not enter an order pursuant to Local Rule 57.7(c). Such an order is warranted
under these circumstances. Defense counsel has repeatedly made statements and given media
interviews in violation of the applicable Local Rules and in disregard of the Court’s earlier
admonition, including after the Court issued its August 24, 2018 Minute Order. Defense counsel’s
statements to the media are, at least, substantially likely to interfere with a fair trial and otherwise
prejudice the due administration of justice in this case. See LCrR 57.7(b)(1).
“[T]he propriety and necessity of preventing interference with the course of justice by
premature statement [or] argument . . . hardly can be denied.” Patterson v. Colorado ex rel.
Attorney General of Colorado, 205 U.S. 454, 463 (1907), quoted in Gentile v. State Bar of Nevada,
501 U.S. 1030, 1070 (1991). As the Supreme Court has opined, “a lawyer actively participating
in a trial, particularly an emotionally charged criminal prosecution, is not merely a person and not
even merely a lawyer. . . . He is an intimate and trusted and essential part of the machinery of

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justice, an ‘officer of the court’ in the most compelling sense.” Gentile, 501 U.S. at 1072 (quoting
In re Sawyer, 360 U.S. 622, 666, 668 (1959)). Moreover, as an officer of the court, an attorney
has “a fiduciary responsibility not to engage in public debate that will . . . obstruct the fair
administration of justice.” Id. at 1074 (quoting Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 601
n.27 (1976)). Indeed, media statements from attorneys pose a special risk to the fair administration
of justice. Id. “Because lawyers have special access to information through discovery and client
communications, their extrajudicial statements pose a threat to the fairness of a pending proceeding
since lawyers’ statements are likely to be received as especially authoritative.” Id. Ultimately,
“[c]ollaboration between counsel and the press as to information affecting the fairness of a criminal
trial is not only subject to regulation, but is highly censurable and worthy of disciplinary
measures.” Sheppard v. Maxwell, 384 U.S. 333, 363 (1966) (quoted in KPNX Broad. Co. v.
Arizona Superior Court, 459 U.S. 1302, 1306 (1982)); Gentile, 501 U.S. at 1066; United States v.
Noriega, 917 F.2d 1543, 1546 (11th Cir. 1990); In re Russell, 726 F.2d 1007, 1010 (4th Cir. 1984);
Hirschkop v. Snead, 594 F.2d 356, 364 (4th Cir. 1979); Farr v. Pitchess, 522 F.2d 464, 468-69
(9th Cir. 1975).
In the instant case, defense counsel has made multiple statements to the press that are
substantially likely to have a materially prejudicial effect on this case. The government alerted the
Court to some of those statements at the July 25, 2018 hearing, and those representations are hereby
incorporated by reference. 1 Since that hearing, defense counsel has continued speaking to the
press, including the following:

1

The government also hereby incorporates by reference the information contained in its August 23, 2018 letter
to defense counsel, filed as docket entry number 22 in this case.

2

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•

Mr. Driscoll spoke to Politico for an article published on July 28, 2018. 2 The article stated,
in part:
Any assertion that she was meeting with [the head of a Russian governmentaffiliated cultural center] for nefarious purposes, Driscoll said, was part of a Justice
Department effort to taint the 29-year-old gun rights activist through innuendo,
false claims — such as that she tried to trade sex for access — and guilt by
association, he said.
Also according to the Politico article, Mr. Driscoll identified a person connected to this
investigation whose identity had not previously been disclosed. As the article noted, “[Mr.]
Driscoll . . . confirmed the Russian official’s identity after POLITICO asked him for
comment.” At times, Mr. Driscoll appeared to speak for the defendant herself — thereby
giving the potential jury pool access to information that would be inadmissible at trial
unless the defendant took the stand and testified. Specifically, Mr. Driscoll stated, the
defendant “is certainly unaware” of whether the head of the Russian government-affiliated
cultural center is a “member of Russian intelligence.” Then, Mr. Driscoll proffered what
appears to be his own opinion and argument about the same evidence, adding that “[a]
Russian national having dinner with a Russian national is nothing unique at all.”

•

Mr. Driscoll made additional press statements that were published on July 30, 2018, by
McClatchyDC. 3 The McClatchy article discussed money transactions in connection with
the defendant and her alleged associates. The article stated, inter alia:
Butina’s attorney, Robert Driscoll, told McClatchy that about $20,000 passed
through one of the South Dakota firms, Bridges LLC, which Butina formed in early
2016, with [a U.S. person] serving as the firm’s registered agent. Driscoll said
Butina received four $5,000 payments through that firm for consulting work for the

2

“Accused Russian agent met with suspected Kremlin spy,” Politico (pub. July 28, 2018), available at
https://www.politico.com/story/2018/07/28/mariia-butina-russia-kremlin-suspected-spy-746043.
3

“Feds examining suspicious money movements linked to Russian Maria Butina, associates,” McClatchy DC
Bureau (pub. July 30, 2018), available at https://www.mcclatchydc.com/news/nation-world/national/nationalsecurity/article215565240.html.

3

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[a cable television channel], where she assisted in the production of a segment
featuring bear hunting in Russia.
•

RT — a media outlet “financed from the budget of the Russian Federation” 4 — published
an article on August 1, 2018, with additional comments from Mr. Driscoll. 5 The article
begins, “The media continues to misrepresent the ‘unprecedented’ case against Maria
Butina, even as the US government backpedals on allegations levelled at the Russian
activist, her attorney told RT in an exclusive interview” (emphasis added). The article
continues:
The charges against Butina set “a dangerous precedent on a number of fronts,”
Driscoll told RT. Using ongoing political upheaval over tariffs as an example,
Driscoll said that Chinese businessmen attending a conference in the US, and who
advocate for a resolution to the brewing trade war between Washington and Beijing,
could be “subject to the same theory that they’re agents of a foreign government
infiltrating the US.”
(italics in original). In the article, Mr. Driscoll is also quoted as claiming the government
had “backed off” some of the allegations in the case:
“The government kind of backed off that because I confronted them in court. I sent
the government an email at the end of June, telling them she was leaving to move
to South Dakota with her boyfriend. So the government was well-aware she was
moving. She wasn’t fleeing anywhere, she certainly wasn’t fleeing to Russia,”
Driscoll said. “They surveilled her going to UHaul to get boxes – I don't think
there's a way to get to Russia by land.”
(italics in original).

According to the article, Mr. Driscoll added, “Essentially, the

government is conceding that even under their own theory, if she had filed a piece of paper
with the attorney general’s office at the beginning of her trip to America, everything she
did was legal.” (The government has made no such concession.) The article also states,

4

RT.com, “About Us,” available at https://www.rt.com/about-us/.

5

“‘In prison for advocating better US-Russia relation’: Butina lawyer on her ‘misunderstood’ case,” RT.com
(pub. Aug. 1, 2018), available at https://www.rt.com/usa/434871-maria-butina-lawyer-driscoll-interview/.

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“[T]he government has yet to provide evidence for their clickbait claims, according to
Driscoll.” The article ends with two extended quotations from Mr. Driscoll. They are:
“I think there’s an irony to the fact that I think she always thought that if she was
going to be in prison, that she would be imprisoned in Russia for advocating gun
rights if she went too far with that, and now she’s in prison in the US for advocating
better US-Russia relations.”
...
“If this gets back to her parents, I want them to know that she should be in touch
soon, and that she’s healthy and well under the circumstances, and we’re doing our
best to visit her every day, and make sure to keep her spirits up.”
•

Mr. Driscoll also spoke with CNN for an article published on August 2, 2018. 6
Specifically, the article states:
Her lawyer, Robert Driscoll, told CNN Wednesday that she wouldn’t take a deal
from prosecutors if it meant admitting she was a spy. “If you’re not an agent for a
foreign government, you can’t lie and say you are in order to get rid of this,”
Driscoll said.

•

On August 3, 2018, RT published another article with more quotes from Mr. Driscoll. 7
The article states that “Robert Driscoll told the RT that juicy media tales that Butina had
traded sex for influence lack any proof and come off as sexist.” Referring to other media
coverage, the article continues:
“It makes [her case] more like a spy novel, and frankly easier for the public to
digest. So editors and producers like those kinds of allegations,” Driscoll said. He
also refuted claims that Butina was preparing to flee to Russia at the time of her
arrest, arguing that the government was forced to back down on the allegation after
he offered the court evidence suggesting Butina planned to stay in the US and live
there with her boyfriend.
(italics in original).

6

Alleged Russian agents infiltration of GOP circles anything but subtle,” CNN.com (pub. Aug. 2, 2018),
available at https://www.cnn.com/2018/08/02/politics/maria-butina-republican-circles/index.html.

7

“Accused ‘Russian agent’ Butina allowed phone calls, but not dental help, after 19 days’ detention,” RT.com
(pub. Aug. 3, 2018), available at https://www.rt.com/usa/434981-butina-visit-russian-embassy/.

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•

In an August 3, 2018 article in the Washington Post, Mr. Driscoll commented about alleged
email exchanges between the defendant and a former member of a political campaign. 8
According to the article, Mr. Driscoll stated that the email exchanges “show that Butina
was a student eager to network with Americans who shared her interests and no more.”
Mr. Driscoll continued by saying that a former member of the campaign was “[a] military
guy who . . . [if he had] been involved would have been a prime target, if that’s what [the
defendant] was about. . . . But the evidence is clear that there wasn’t any significant
contact.”

•

Mr. Driscoll made even more comments to the media for a Politico article published on
August 14, 2018. 9 In the article, Mr. Driscoll commented on the relationship between the
defendant and a specific Russian official. For example, Mr. Driscoll “scoffed at the notion
that [the Russian official] is a master spy.” In addition, Mr. Driscoll explained that “in his
frequent talks” with the defendant, the defendant portrayed the Russian official as
“someone who genuinely has come to love America.” Mr. Driscoll added that the
defendant’s connections to a Russian cultural center were merely social. Mr. Driscoll was
also quoted as offering his opinion that “[m]y impression of [the Russian official] from
knowing [the defendant] is that she viewed him as a mentor and as someone who was
helpful to her, with her gun rights group and personally. . . . He helped raise her profile.”

8

“Trump associate socialized with alleged Russian agent Maria Butina in final weeks of 2016 campaign,”
Washington Post (pub. Aug. 3, 2018), available at https://www.washingtonpost.com/politics/trump-associatesocialized-with-alleged-russian-agent-maria-butina-in-final-weeks-of-2016-campaign/2018/08/03/d87c1d84-96a611e8-80e1-00e80e1fdf43_story.html?utm_term=.bb28deac58c3.
9

“Handler of alleged spy Butina tied to suspicious U.S.-Russia exchange program,” Josh Meyer, Politico.com
(pub. Aug. 14, 2018), available at https://www.politico.com/story/ 2018/08/14/russia-americans-putin-torshin776237.

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Mr. Driscoll was quoted as stating that the Russian official was “always eager . . . to meet
with Americans.”
•

On August 18, 2018, RT published a video interview with Mr. Driscoll. 10 During the
interview, Mr. Driscoll discussed the defendant’s alleged treatment during her
incarceration and a crowd-funding campaign for the defendant. The interviewer, referring
to the crowd-funding campaign, asked, “Is it only money you’re expecting to gain or
hopefully a lot more heads turned towards this case?” (emphasis added). In response,
Driscoll stated that he wanted “both.”

•

On August 28, 2018, ABC’s Good Morning America announced a new interview with Mr.
Driscoll that occurred after the Court issued its Minute Order. 11 Promoting the recent
interview, Good Morning America published a brief article and a video clip. In the article,
Mr. Driscoll opined on the relationship between the defendant and a named U.S. person.
Mr. Driscoll — denying that the defendant engaged in a duplicitous relationship as part of
a larger operation to gain political access — was quoted as saying, “I think in some ways
it’s a classic love story” and that he sees “only a pair of ‘ambitious’ people who ‘hit it off’
over their ‘similar interests.’” 12 In the video, Mr. Driscoll was shown seated across from
the ABC interviewer, answering her questions about the case. The promotional video also
contains clips from a music video featuring the defendant and the named U.S. person

10

“Accused ‘Russia agent’ Butina deprived of sleep & medications – lawyer to RT,” RT.com (pub. Aug. 18,
2018 available at https://www.rt.com/usa/436290-butina-deprived-sleep-medicine/.
11

“The romance at the heart of an alleged Russian influence operation,” Good Morning America (pub. Aug.
28, 2018), available at https://www.goodmorningamerica.com/news/video/romance-heart-alleged-russian-influenceoperation-57445985.
12

“Maria Butina and the romance at the heart of an alleged Russian influence operation,” ABC News (pub.
Aug. 28, 2018), available at https://abcnews.go.com/Politics/lover-cover-romance-heart-alleged-russian-influenceoperation/story?id=57437405.

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singing to each other. Responding to the music video, Mr. Driscoll commented that it is
“adorable” and that the defendant’s relationship with the U.S. person was “pretty
legitimate. . . . I mean, I’m a sucker for, for romance you know, but to me, it looks, they
look pretty happy. . . . The government, essentially, you know, for lack of a better term,
called her a whore. I mean, it’s kind of unfortunate, and frankly a little bit sexist that I
think because she’s a good-looking woman, there’s this presumption that any success she
has is more has more to do with her looks than her three Masters degrees.” At the end of
the video teaser, a Good Morning America anchor stated as follows:
And new this morning, Butina’s lawyer Bob Driscoll telling us Maria confirms [the
named U.S. person] is indeed in touch with her—even visited her in jail. This could
be the last time we hear from Driscoll, though, for a while. The government has
now . . . asked the Court . . . to issue a gag order. 13 But Driscoll is telling me . . .
he’s going to keep talking.
The segment ends with host George Stephanopoulos adding, “Well, he’s [referring to
Driscoll] earned his pay today,” as co-hosts in the studio chuckle.
Local Criminal Rule 57.7(c) permits the Court “[i]n a widely publicized or sensational
criminal case” to “issue a special order governing such matters as extrajudicial statements by
parties, witnesses and attorneys likely to interfere with the rights of the accused to a fair trial by
an impartial jury.” The Supreme Court has made clear that as a prior restraint of speech, such
orders against trial participants, including trial attorneys, require a showing of a likelihood of
material prejudice to a defendant’s fair trial, not merely publicity or sensationalism. See Gentile,
501 U.S. at 1051. This Circuit has not settled on the precise standard a court must apply in

13

To be clear, the government did not ask for a gag order. Rather, at the July 25, 2018 hearing, in the context
of discussing a proposed protective order, the government highlighted Mr. Driscoll’s repeated extrajudicial statements
that violated the Local Rules. After that hearing, Mr. Driscoll continued to make inappropriate and prejudicial
statements to the media and, even then, the government did not ask for a gag order. Nor did the government ask for
sanctions of any kind. Instead, the government merely sent Mr. Driscoll a letter, which “express[ed] our concerns”
with his numerous inappropriate statements. The representation that the government asked for a gag order is false.

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determining whether extrajudicial statements are “likely to interfere with the rights of the accused
to a fair trial by an impartial jury,” so as to warrant a Rule 57.7(c) order. See In re Halkin, 598
F.2d 176, 193, n.42 (D.C. Cir. 1979) (recognizing competing standards but opting not to decide),
abrogated in part by Seattle Times v. Rhinehart, 467 U.S. 20 (1984); United States v. Morrow,
2005 LEXIS 8330, at *20-21 (D.D.C. Mar. 21, 2005) (Kollar-Kotelly, J.) (recognizing Circuit split
in interpreting similar rules relating to issuance of orders restricting extrajudicial statements). The
case law suggests three possible standards, which are, from most- to least-strict: (1) a clear and
present danger (or serious and imminent threat), 14 (2) a substantial likelihood of material
prejudice, 15 or (3) a reasonable likelihood of material prejudice. 16 The “substantial likelihood”
standard is consistent with the guidance provided by the Department to its employees. United
States Attorneys’ Manual (USAM) § 1-7.600 (“DOJ personnel shall not make any statement or
disclose any information that reasonably could have a substantial likelihood of materially
prejudicing an adjudicative proceeding.”)
Here, under any of these standards, an order governing extrajudicial statements by the
parties is warranted. Mr. Driscoll has spoken to the media about this case on numerous occasions,

14

See, e.g., United States v. Ford, 830 F.2d 596, 598-599 (6th Cir. 1987) (clear and present
danger); Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 249 (7th Cir. 1975) (“serious and
imminent threat”); Levine v. U.S. District Court, 764 F.2d 590, 595-596 (9th Cir. 1985) (“either a
clear and present danger or a serious and imminent threat”).
15

See, e.g., United States v. Scarfo, 263 F.3d 80, 93-94 (3d Cir. 2001) (“substantial likelihood
of material prejudice”); United States v. Brown, 218 F.3d 415, 427 (5th Cir. 2000) (same).

16

See, e.g., In re Morrissey, 168 F.3d 134, 139 (4th Cir. 1999) (“reasonable likelihood” of
prejudice); In re Russell, 726 F.2d 1007, 1010-1011 (4th Cir. 1984) (“reasonable likelihood” of
prejudice); United States v. Tijerina, 412 F.2d 661, 666 (10th Cir. 1969) (same); United States v.
Stanford, Case No. H-09-CR-342, Dkt. 307 at 5 (Unpublished, S.D. Tex. Sept. 30, 2010) (“may
be reasonably expected or have the potential to interfere with a fair trial or prejudice the
defendant”).
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making public statements that present a clear and present danger of materially prejudicing a fair
trial and the administration of justice in this case. He has repeatedly offered his own opinion and
out-of-court arguments about the case. He has appeared to express the thoughts of the defendant
herself, thereby feeding the potential jury information that would be inadmissible at trial unless
and until the defendant testified and was subject to cross-examination. He has publicly identified
by name at least one individual who is connected to this case and who could theoretically be called
as a witness. He has provided false information including, for example, claiming that the
government made a concession that, if the defendant had only “filed a piece of paper,” everything
she did would have been legal when the government made no such concession. See, e.g., supra at
4-5. He has also accused the government of various misconduct, including sexism, making false
claims, and using innuendo and guilt by association. He has repeatedly sought to elicit the
prejudices and sympathies of potential jurors, casting the defendant as a daughter and sister, and
as a mere student or victim. See, e.g., Trans. of July 25, 2018 Hearing at 6:18-6:22 (“a young
woman who’s 29 years old, who just graduated from American with a master’s, and she’s being
held without bond . . . . I think a lot of people look at a young woman like that and think of their
own kids”). Defense counsel made these statements in violation of the Local Rules, including
Local Criminal Rule 57.7(b), which provides that a lawyer associated with a case “shall not
release” any extrajudicial statement to be disseminated by means of public communication,
relating to inter alia “the merits of the case or the evidence in the case.” LCrR 57.7(b)(3).
Moreover, defense counsel made many of the offending statements after the Court
addressed the issue of extrajudicial statements and warned defense counsel to abide by the Local
Rules at the status hearing on July 25, 2018. And he reportedly has stated that he plans to continue
making such extrajudicial statements despite any orders imposed by this Court. Given the

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numerous inappropriate statements that defense counsel has made already over the course of mere
weeks, the government submits that an order governing extrajudicial statements by the parties is
warranted at this time to deter any future statements that would further jeopardize a fair trial and
the fair administration of justice in this case.
Respectfully submitted,
JESSIE K. LIU
UNITED STATES ATTORNEY
D.C. Bar No. 472845
By:

/s/_______________
THOMAS N. SAUNDERS
Assistant United States Attorney
N.Y. Bar Number 4876975
United States Attorney’s Office
555 Fourth Street, N.W.
Washington, D.C. 20530
Telephone: 202-252-7790
Email: Thomas.Saunders@usdoj.gov
/s/_______________
ERIK M. KENERSON
Assistant United States Attorney
Ohio Bar Number 82960
United States Attorney’s Office
555 Fourth Street, N.W.
Washington, D.C. 20530
Telephone: 202-252-7201
Email: Erik.Kenerson@usdoj.gov

Dated: August 31, 2018

/s/_______________
WILLIAM A. MACKIE
Trial Attorney, National Security Division
N.C. Bar Number 13816
U.S. Department of Justice
600 E Street, N.W., Suite 10810
Washington, D.C. 20530
Telephone: 202-233-2122
Email: Will.Mackie@usdoj.gov

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA
v.
MARIIA BUTINA, also known as
MARIA BUTINA,
Defendant.

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Criminal Case: 18-218 (TSC)

Order
Pursuant to Local Criminal Rule 57.7(c), and having reviewed carefully the record,
including the submissions and arguments of counsel, the Court finds that defense counsel Robert
Driscoll has made extrajudicial statements to the media that are substantially likely to have a
materially prejudicial effect on the conduct of this case. The Court hereby orders as follows:
Counsel and all parties in this case shall refrain from making any extrajudicial statements about
this case that are substantially likely to have a materially prejudicial effect on this litigation or the
conduct of this case, including but not limited to (a) statements about the identity, testimony, or
credibility of prospective witnesses, including the testimony or credibility of the defendant; (b) any
opinion or statement as to the accused’s guilt or innocence; and (c) any opinion or statement as to the
merits of the case or the evidence in the case. The Court finds that this proscription is no more

restrictive than necessary to address the risk posed by extrajudicial statements about this pending
litigation given the current record and the limited ability of the Court to take curative action if
prejudicial statements are widely circulated in the media.
SO ORDERED.
________________________
Tanya S. Chutkan
District Judge
Dated: ___________ __, 2018
1