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ORAL ARGUMENT NOT YET SCHEDULED
No. 18-3052
IN THE

United States Court of Appeals
for the District of Columbia Circuit
IN RE: GRAND JURY INVESTIGATION
————
ANDREW MILLER,
Appellant,
v.
UNITED STATES OF AMERICA,
Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GRAND JURY ACTION NO. 18-34 (BAH)
MOTION FOR LEAVE TO INTERVENE
OF CONCORD MANAGEMENT AND CONSULTING LLC

Eric A. Dubelier
Katherine J. Seikaly
REED SMITH LLP
1301 K Street, NW
Suite 1000 - East Tower
Washington, DC 20005-3373
(202) 414-9200
edubelier@reedsmith.com
kseikaly@reedsmith.com

James C. Martin
Colin E. Wrabley
REED SMITH LLP
225 Fifth Avenue
Pittsburgh, PA 15222-2716
(412) 288-3131
jcmartin@reedsmith.com
cwrabley@reedsmith.com

Counsel for Movant Concord Management and Consulting LLC

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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT ........................................................................................... 1 
BACKGROUND...................................................................................................................... 3 
ARGUMENT ............................................................................................................................ 7 
I. 

This Court applies Federal Rule of Civil Procedure 24 to requests
for leave to intervene on appeal. ........................................................................... 7 

II. 

Consistent with Rule 24, Concord should be granted leave to
intervene as of right. ................................................................................................ 8 

III. 

Consistent with Rule 24, Concord should be granted leave to
intervene permissively. .......................................................................................... 15 

CONCLUSION ...................................................................................................................... 16 
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
ADDENDUM: CERTIFICATE AS TO PARTIES,
RULINGS, AND RELATED CASES

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PRELIMINARY STATEMENT
Concord Management and Consulting LLC (“Concord”) seeks permission to
intervene in this appeal from a contempt ruling by Chief Judge Beryl A. Howell in
grand jury proceedings that specifically and definitively resolved constitutional
challenges to the appointment of Special Counsel Robert S. Mueller III. In reaching
her ruling, Chief Judge Howell expressly considered a brief Concord itself filed in its
own criminal case brought by the same Special Counsel, effectively denying Concord’s
motion to dismiss the indictment against it before Concord’s motion was heard in its
own case. And, although based on different rationales than those of Chief Judge
Howell, Judge Dabney L. Friedrich later issued a ruling denying those same challenges
in Concord’s case. In these unique circumstances, Concord should be permitted to
intervene in this appeal. Otherwise, if subsequently convicted at trial, it could be
foreclosed from advocating on its own behalf as to the constitutional issues that
should have barred its prosecution in the first place.
On June 25, 2018, Concord, a defendant in a criminal case brought by the
Special Counsel pending before Judge Friedrich, moved to dismiss the indictment on
grounds that the Special Counsel’s appointment violated the Appointments Clause of
the U.S. Constitution. Three days later, and without Concord’s knowledge, Appellant
here, Mr. Andrew Miller—the target of grand jury subpoenas in a proceeding
overseen by Chief Judge Howell—attached Concord’s 50-page motion-to-dismiss
brief as an exhibit to his motion to quash the subpoenas and expressly incorporated
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Concord’s arguments into his motion. Chief Judge Howell allowed the incorporation
even though it exceeded the local rules for page limitations, issued a 92-page ruling
specifically rejecting Concord’s arguments, with no less than 22 citations to
Concord’s brief, and decided the Appointments Clause issues adversely to Mr. Miller
and Concord. That ruling is now on appeal in this proceeding.
Concord was not a party to the motion proceeding or hearing before Chief
Judge Howell, which were conducted in secret. Yet, this appeal plainly will address
and resolve legal arguments critical to Concord’s own constitutional challenge to the
Special Counsel. Basic fairness therefore dictates that Concord should be permitted
to participate in this appeal. So do the settled principles that govern intervention.
With respect to Concord’s intervention, this appeal presents the substantial
likelihood that this Court will resolve the lawfulness and constitutionality of the
Special Counsel’s appointment and issue a ruling with stare decisis effect for future
panels of this Court. Given the proceedings below, specifically Chief Judge Howell’s
explicit consideration and rejection of Concord’s arguments, it is inevitable that
arguments developed and advanced by Concord will be addressed in the course of
resolving this appeal. As a result, a decision in this appeal will impact, directly,

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Concord’s constitutional right to have a lawfully appointed prosecutor in its own
case.1
BACKGROUND
In May 2018, the Special Counsel served Mr. Miller with two subpoenas to
produce documents and appear before the grand jury. ECF No. 32-3 at 19. After he
failed to appear, the Special Counsel moved to compel and for an order to show cause
why Mr. Miller should not be held in contempt. Id. at 22. On June 18, Chief Judge
Howell granted the Special Counsel’s motion to compel and directed Mr. Miller to
appear before the grand jury on June 28. Id.
Meanwhile, a separate case brought by the Special Counsel, United States v.
Internet Research Agency LLC et al., No. 1:18-cr-32-DLF (D.D.C.), was proceeding
before Judge Friedrich. In February 2018, a grand jury returned an indictment against
thirteen individual and three corporate defendants, including Concord, alleging a
conspiracy to interfere with the U.S. political and electoral process. Case No. 1:18-cr32-DLF-2 (D.D.C.), ECF No. 1. Concord, a company with no presence in the United
States, voluntarily appeared and on June 25, 2018, it moved to dismiss the indictment
on grounds that (1) the appointment of the Special Counsel violates the

Concord intends to file a timely notice of appeal from Judge Friedrich’s August
13, 2018 ruling. It is anticipated that the Special Counsel will contest this Court’s
jurisdiction to entertain Concord’s appeal. Concord’s intervention here, however,
rests on independent grounds consistent with Federal Rule of Civil Procedure 24.
1

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Appointments Clause, U.S. Const. art. II, § 2, cl. 2; (2) the regulations governing the
Special Counsel, 28 C.F.R. pt. 600, are unlawful and violate core separation-of-powers
principles; and (3) even if the regulations are valid and binding, the order appointing
the Special Counsel is inconsistent with the regulations and does not authorize a
prosecution against Concord. See Case No. 1:18-cr-32-DLF-2 (D.D.C.), ECF No. 36.
Three days after Concord filed its motion, Mr. Miller filed under seal a motion
to quash the grand jury subpoenas. ECF No. 10. In that motion, he challenged the
Special Counsel’s appointment and expressly incorporated Concord’s 50-page
memorandum of law into his own 21-page memorandum. Id. at 2 & Ex. 5. The next
day, Chief Judge Howell issued an expedited briefing and hearing schedule. See
Minute Order (June 29, 2018). The parties then filed their respective briefs under seal
and on July 18, Chief Judge Howell heard argument in a sealed courtroom. ECF No.
32-3 at 23.
Less than two weeks later, on July 31, 2018, Chief Judge Howell issued a sealed
order denying the motion to quash, with an accompanying 92-page memorandum
opinion.

In her opinion, Chief Judge Howell acknowledged that Mr. Miller

“adopt[ed] and incorporate[d] by reference th[e] same arguments” advanced by
Concord. ECF No. 32-3 at 22 (citation omitted). She went on to conclude that, even
though the court’s local rules limit memoranda of law to 45 pages, she would consider
and rule upon the arguments raised in Concord’s 50-page memorandum:

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Sifting through Concord’s arguments to determine which apply here
poses little difficulty, however, as the witness and Concord raise
overlapping, if not entirely identical, arguments that turn on pure issues
of law common to both litigants rather than facts peculiar to them.
Thus, despite the page limit’s unsanctioned exceeding, the Court
exercises discretion to hear arguments raised in Concord’s memorandum
to the extent such arguments overlap with those the witness presents.
ECF No. 32-3 at 23 n.9. Chief Judge Howell proceeded to cite Concord’s motion and
memorandum no less than 22 times in her opinion, explicitly rejecting each of
Concord’s challenges to the constitutionality of the Special Counsel’s appointment.
Id. at 36–80.
After Chief Judge Howell’s ruling, Mr. Miller still failed to appear. Accordingly,
on August 10, 2018, he was held in civil contempt. ECF Nos. 36, 39. Three days
later, he filed his notice of appeal. ECF No. 39.
In the meantime, on August 3, Judge Friedrich held a hearing on Concord’s
motion to dismiss and considered the same arguments that Chief Judge Howell had
rejected a few days earlier. See Case No. 1:18-cr-32-DLF-2, Minute Entry (Aug. 3,
2018). Because Concord did not obtain Chief Judge Howell’s opinion until 24 hours
prior to that hearing, and as such had no opportunity to address it, Judge Friedrich
suggested that she might not consider Chief Judge Howell’s opinion in reaching her
own decision. Id., Hr’g Tr. at 73:22–23, ECF No. 57. Judge Friedrich subsequently
issued her own memorandum opinion denying Concord’s motion to dismiss on
August 13, later issuing one with clerical errors corrected. Id., ECF No. 58 (“Friedrich
Op.”). In her ruling, and unlike Chief Judge Howell, Judge Friedrich found many of
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Concord’s arguments well-supported, and cast doubt on certain of the Special
Counsel’s arguments. See, e.g., id. at 18 (agreeing with Concord that “[a]t the very least,
some Special Counsel decisions remain insulated from review or countermand”); id. at
20 (“There is reason to think . . . that the Special Counsel regulations afford the
Special Counsel more substantial protection against removal, and thus risk rendering
him a principal officer.”); id. at 35 (concluding that the statutes cited by the Special
Counsel “‘do not explicitly authorize’ the Acting Attorney General to appoint the
Special Counsel” as required by the Appointments Clause) (citation omitted).
Indeed, Judge Friedrich’s interpretation of the statutes that the Special Counsel
claimed provide the authority for his appointment contradicts the reading Chief Judge
Howell adopted. Compare ECF No. 32-2 at 67 (concluding that “two statutes—28
U.S.C. §§ 515(b) and 533(1)—vest in the Attorney General the power to appoint a
Special Counsel”), with Friedrich Op. at 28–34 (analyzing §§ 515(b), 533(1), and other
statutes cited by the Special Counsel and finding that none of them explicitly
authorize the Acting Attorney General to appoint a Special Counsel).

And, in

examining whether the Special Counsel is a principal or inferior officer under the
Appointments Clause, Judge Friedrich disagreed with Chief Judge Howell’s findings
that: (i) the constitutional analysis “look[s] solely to statutes, rather than to any
regulations,” ECF No. 32-3 at 29; compare Friedrich Op. at 11 (“Court does not begin
its analysis by ‘looking solely to statutes’”); and (ii) the regulations governing the
Special Counsel “only confirm that . . . the Attorney General exercises substantial
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direction and supervision over virtually every facet of a Special Counsel’s work[,]”
ECF No. 32-3 at 34; compare Friedrich Op. at 22 (observing that “the regulations as
written may prevent the Acting Attorney General from countermanding certain
actions taken by the Special Counsel” and the regulations’ for-cause removal
provision could be read to “afford[] the Special Counsel substantial protection from
removal[,]” in which case he “is not truly inferior”).
Because of the direct relationship between Mr. Miller’s appeal and Concord’s
own action, Concord seeks leave to intervene in this appellate proceeding to ensure
that its interests are fully protected.
ARGUMENT
I.

This Court applies Federal Rule of Civil Procedure 24 to requests for
leave to intervene on appeal.
This Court looks to Federal Rule of Civil Procedure 24 in determining requests

to intervene. Massachusetts Sch. of Law at Andover, Inc. v. United States, 118 F.3d 776, 779
(D.C. Cir. 1997) (recognizing the power to allow “intervention in the court of
appeals” and stating that the Court follows Rule 24 of the Federal Rules of Civil
Procedure and applies “the same standards [for intervention] as in the district court”)
(citing Building & Construction Trades Dep’t v. Reich, 40 F.3d 1275, 1282–83 (D.C. Cir.
1994)) (emphasis in original).
Rule 24 provides for intervention as “of right” for one who “claims an interest
relating to the property or transaction that is the subject of the action, and is so

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situated that disposing of the action may as a practical matter impair or impede the
movant’s ability to protect its interest, unless existing parties adequately represent that
interest.”

Fed. R. Civ. P. 24(a)(2).

Rule 24 also provides for “permissive”

intervention for one who “has a claim or defense that shares with the main action a
common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). Both of these grounds
support Concord’s intervention request here.
II.

Consistent with Rule 24, Concord should be granted leave to intervene as
of right.
Rule 24(a)(2)’s intervention as “of right” provision “implements the basic

jurisprudential assumption that the interest of justice is best served when all parties
with a real stake in a controversy are afforded an opportunity to be heard.” Hodgson v.
United Mine Workers of Am., 473 F.2d 118, 130 (D.C. Cir. 1972). The Rule sets out
four requirements: “(1) the motion for intervention must be timely; (2) intervenors
must have an interest in the subject of the action; (3) their interest must be impaired
or impeded as a practical matter absent intervention; and (4) the would-be
intervenor’s interest must not be adequately represented by any other party.” In re
Brewer, 863 F.3d 861, 872 (D.C. Cir. 2017). Each requirement is satisfied here.2

Some of this Court’s decisions state that an intervenor also must show that it has
standing. See, e.g., Fund For Animals, Inc. v. Norton, 322 F.3d 728, 735 (D.C. Cir. 2003).
But see In re Brewer, 863 F.3d at 872 (not including standing as a requirement).
Concord has standing because it already has suffered injury-in-fact—a criminal
indictment charging it with a federal crime, along with the reputational and defense
(continued)

2

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Concord’s motion to intervene is timely. “A nonparty must timely move
for intervention once it becomes clear that failure to intervene would jeopardize her
interest in the action.” In re Brewer, 863 F.3d at 872 (citing United Airlines, Inc. v.
McDonald, 432 U.S. 385, 394 (1977)). “‘The timeliness of a motion to intervene is ‘to
be judged in consideration of all the circumstances.’” Roane v. Leonhart, 741 F.3d 147,
151 (D.C. Cir. 2014) (citation omitted).

This requirement is aimed primarily at

“preventing potential intervenors from unduly disrupting litigation, to the unfair
detriment of the existing parties.” Id. (citation omitted).
The proceedings in this action have explicitly placed Concord’s interests in
some jeopardy. Chief Judge Howell effectively ruled on Concord’s motion, which
was incorporated by Mr. Miller without Concord’s consent and without hearing any
argument from Concord or considering the reply brief Concord filed in its own
criminal case.

If this Court affirms Chief Judge Howell’s ruling on the merits,

including her Appointments Clause findings, that decision likely will have stare decisis
effect on any future Circuit panel that might review Concord’s Appointments Clause
arguments. Additionally, intervention by Concord would not unduly disrupt this
appeal since the issues Concord will address will be encompassed in those raised by
the parties. See, e.g., Roane, 741 F.3d at 152 (no prejudice to parties where adding

costs associated with it—which flows from the unconstitutional act of indictment by
an unconstitutionally appointed Special Counsel.

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intervenor “would have required no additional factual development” and “[t]he claims
in this litigation are legal challenges”).3 In sum, Concord has moved promptly to
intervene, its interests are at stake here, and its participation will not disrupt orderly
resolution of the disputed issues. As a result, Concord’s request meets the timeliness
requirement for intervention as of right.
Concord has a sufficient interest in the subject of this appeal.

The

“interest” requirement for intervention as of right is a “practical guide to disposing of
lawsuits by involving as many apparently concerned persons as is compatible with
efficiency and due process.” Foster v. Gueory, 655 F.2d 1319, 1324 (D.C. Cir. 1981)
(citing Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir. 1967)). This Court has recognized
“such an interest among ‘persons who allege that they have suffered injury from the
same or very similar wrongful acts as those complained of’” by an existing party to the
case. In re Brewer, 863 F.3d at 872–73 (quoting Foster, 655 F.2d at 1324–25). Thus, for
example, an intervenor has the requisite interest where its “claims for relief are
founded on the same statutory rights as are the claims of the plaintiffs.” Foster, 655
F.2d at 1325.
Under these standards, Concord has a substantial interest in this appeal because
it claims—indeed, it was the first to claim—the same constitutional injury from the
Concord agrees to abide by the briefing schedule set by this Court in its August
16, 2018 order and would file its principal and reply briefs on or before September 7
and October 9, 2018, respectively.
3

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acts of a Special Counsel appointed in violation of the Appointments Clause as does
Mr. Miller. Mr. Miller likewise rested his legal arguments on Concord’s arguments,
expressly using Concord’s own words. Supra at 4–5. As a result, Concord has a
sufficient interest in the subject of this appeal to support intervention as of right.
Concord’s interests will be impaired and impeded as a practical matter
absent intervention. Rule 24(a)(2)’s requirement that disposing of the action absent
intervention “may as a practical matter impair or impede the movant’s ability to
protect [its] interest” was the result of a 1966 amendment that was “designed to
liberalize the right to intervene in federal actions.” Nuesse, 385 F.2d at 701. Prior to
the amendment, the rule required the movant to show that it “may be bound by a
judgment in the action.” Fund For Animals, 322 F.3d at 735 (quoting Fed. R. Civ. P.
24(a)(2) (1966)). The amended language now looks to “the ‘practical consequences’
of denying intervention, even where the possibility of future challenge . . . remain[s]
available.” Id. (citation omitted).
Such “practical consequences” include the stare decisis—or even just
persuasive—effect of a court ruling in the matter in which intervention is sought. See
Nuesse, 385 F.2d at 702 (recognizing that “stare decisis principles may in some cases
supply the practical disadvantage that warrants intervention as of right”); Roane, 741
F.3d at 151 (“At a minimum, if the suit proceeds without [intervenor], a decision
rejecting the [plaintiffs’] claims could establish unfavorable precedent that would
make it more difficult for [intervenor] to succeed on similar claims if he brought them
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in a separate lawsuit of his own, which is sufficient to support intervention under our
caselaw.”); Foster, 655 F.2d at 1325 (“[A]ppellants’ ability to protect their interest could
be impaired or impeded by the principle of stare decisis. This possibility is a sufficient
showing to meet the Rule 24(a)(2) criterion.”). The burden of showing impairment is
minimal—a “possibility” of impairment is sufficient. Foster, 655 F.2d at 1325.
Concord’s interests indisputably will be impaired absent intervention.

As

noted, this appeal raises the distinct likelihood that this Court will rule on the merits
of Chief Judge Howell’s resolution of Concord’s arguments. If published, its ruling
likely would have binding stare decisis effect on any future panel of this Court faced
with the same or similar arguments.

This apparent consequence is more than

sufficient to meet the impairment-of-interest requirement.
For example, in Nuesse, 385 F.2d 694, this Court found that a state bank
commissioner was entitled to intervene as of right in the district court in a state bank’s
suit against the federal Comptroller of the Currency in light of the potential stare decisis
impact of a ruling in the case on a particular question under the National Bank Act.
The Court explained that it “may expect that a decision by the District Court here, the
first judicial treatment of this question, would receive great weight, whether the
question arose again in this jurisdiction or in the federal court in Wisconsin. Should
this court on appeal render a decision in the Commissioner’s absence, and contrary to
his view, he would presumably be hampered in seeking to vindicate his approach in
another court.” Id. at 702. So too here—and then some—for Concord, whose
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“approach” not only may be “be hampered”: it may be foreclosed by this Court’s
determination of the Appointments Clause questions raised in this appeal.
Concord’s interests are not adequately protected by another party. This
Court gives the inadequacy-of-representation requirement a “liberal application in
favor of permitting intervention.” Nuesse, 385 F.2d at 702. The requirement is not
that current representation is inadequate, but only that it “‘may be’” inadequate. In re
Brewer, 863 F.3d at 873 (quoting Hodgson, 473 F.2d at 130). “[T]he burden is on those
opposing intervention to show that representation for the absentee will be adequate.”
United States v. Am. Tel. & Tel. Co., 642 F.2d 1285, 1293 (D.C. Cir. 1980) (citation
omitted); see also In re Brewer, 863 F.3d at 872 (noting that “the burden of proof” for
showing adequacy of representation “rests on those resisting intervention”) (citation
omitted). Accordingly, a movant “‘ordinarily should be allowed to intervene unless it
is clear that the party will provide adequate representation for the absentee.’” Fund
For Animals, 322 F.3d at 735–36 (citations omitted).
Mr. Miller cannot adequately represent Concord’s interests in this appeal. First,
Concord, a voluntarily appearing criminal defendant, has engaged its own counsel,
which is different from Mr. Miller’s counsel. Second, the parties seek different
relief—Mr. Miller from having to testify before the grand jury; Concord from even
being subject to criminal indictment in the first place. If anything, a business entity
like Concord subject to indictment and the possibility of a lengthy trial has
considerably more to lose than a recalcitrant witness like Mr. Miller subject to the
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momentary inconvenience of having to testify before a grand jury. Third, in the
district court, Mr. Miller borrowed heavily from Concord’s motion-to-dismiss brief
for his own arguments, essentially deferring to Concord’s counsel’s substantive
expertise on the critical issues. At the same time, Mr. Miller’s reply brief in the district
court—in marked contrast with Concord’s reply brief before Judge Friedrich—failed
to address, or barely addressed, significant aspects of the Special Counsel’s arguments,
including the Special Counsel’s reliance on 28 U.S.C. § 515(b) (which formed part of
the basis for Chief Judge Howell’s ruling), see ECF No. 32-2 at 14–15; his purported
historical evidence of special-counsel appointments, id. at 15–21; and his citation to
numerous, but plainly inapposite, appropriations statutes and case law, id. at 21–22 &
n.7.

Compare ECF No. 19 (Miller’s Reply), with Case No. No. 1:18-cr-32-DLF

(D.D.C.), ECF No. 48 at 5–9, 14–18 (Concord’s Reply). On this record, Concord
should be granted leave to intervene in this appeal as of right under Rule 24(a)(2) to
make sure its interests are adequately represented.
At bottom, intervention is warranted due to the unique circumstances of this
case. Chief Judge Howell ruled on Concord’s motion in secret, without Concord’s
counsel having the opportunity to appear and argue before her. Judge Friedrich
reached the same conclusion but for different reasons and made findings
contradicting Judge Howell. And now, absent intervention, Concord faces the real
prospect that this Court in this appeal could address Concord’s challenges to the
constitutionality and lawfulness of the Special Counsel’s appointment—and issue a
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ruling with law-of-the-Circuit and stare decisis effect—without Concord having an
opportunity to explain the fundamental errors in Chief Judge Howell’s opinion to this
Court. Given the significance of the issues raised, this Court would benefit from
briefing and argument by Concord—the party that formulated and advanced the
arguments that were addressed and ruled upon by the district court below.4
III.

Consistent with Rule 24, Concord should be granted leave to intervene
permissively.
The Court at a minimum should permit Concord to intervene permissively

under Rule 24(b)(1)(B).

Permissive intervention “is an inherently discretionary

enterprise” for which courts are afforded wide latitude. EEOC v. Nat’l Children’s Ctr.,
Inc., 146 F.3d 1042, 1046 (D.C. Cir. 1998) (citing Hodgson, 473 F.2d at 125 n.36). In
order to qualify for permissive intervention, “the putative intervenor must ordinarily
present: (1) an independent ground for subject matter jurisdiction; (2) a timely
motion; and (3) a claim or defense that has a question of law or fact in common with
the main action.” Id.
Each of these elements is satisfied here: Concord has shown an independent
ground for subject matter jurisdiction, supra at 8–9 n.2; a timely motion, supra at 9–10;
Participation as amicus curiae is no substitute for intervention as a party.
Nuesse, 385 F.2d at 704 n.10 (recognizing that amicus curiae status “is not an adequate
substitute for participation as a party”); United States v. Laraneta, 700 F.3d 983, 986 (7th
Cir. 2012) (“Participation as amici curiae would not be an adequate substitute, for as
nonparties [the putative intervenors] could not seek rehearing or rehearing en banc or
review by the Supreme Court, should our decision go against [it].”).
4

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and dispositive constitutional defenses that have multiple questions of law in common
with those of Mr. Miller in this appeal, supra at 10–13.

Indeed, on the latter

requirement, Chief Judge Howell specifically stated that “the witness and Concord
raise overlapping, if not entirely identical, arguments that turn on pure issues of law
common to both litigants rather than facts peculiar to them.” ECF No. 32-2 at 23
n.9.
For these reasons, Concord should be permitted to intervene in this appeal
under Rule 24(b)(1)(B).
CONCLUSION
For the foregoing reasons, the Court should grant Concord leave to participate
in this appeal as an intervenor.
Dated: August 22, 2018
Eric A. Dubelier
Katherine J. Seikaly
REED SMITH LLP
1301 K Street, NW
Suite 1000 - East Tower
Washington, DC 20005-3373
(202) 414-9200
edubelier@reedsmith.com
kseikaly@reedsmith.com

Respectfully submitted,
/s/ James C. Martin
James C. Martin
Colin E. Wrabley
REED SMITH LLP
225 Fifth Avenue
Pittsburgh, PA 15222-2716
(412) 288-3131
jcmartin@reedsmith.com
cwrabley@reedsmith.com

Counsel for Movant Concord Management and Consulting LLC

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CERTIFICATE OF COMPLIANCE
On this twenty-second day of August, 2018, the undersigned certifies that:
1.

The foregoing motion complies with the type-volume limitation of

Federal Rule of Appellate Procedure 27(d)(2)(A) because the motion contains 3,978
words, as determined by the word-count function of Microsoft Word 2010; and
2.

As required by Federal Rule of Appellate Procedure 27(d)(1)(E), the

foregoing motion complies with the typeface requirements of Federal Rule of
Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of
Appellate Procedure 32(a)(6) because the motion has been prepared in a
proportionally spaced typeface using Microsoft Word 2010 in 14-point Garamond
font.

/s/ James C. Martin
James C. Martin

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CERTIFICATE OF SERVICE
Pursuant to Federal Rule of Appellate Procedure 25(d), the undersigned
certifies that on this twenty-second day of August, 2018, he caused the foregoing
motion to be filed electronically with the Clerk of the Court for the United States
Court of Appeals for the District of Columbia Circuit by using the appellate
CM/ECF system. Pursuant to Circuit Rule 27(b), the undersigned also caused four
(4) copies of the foregoing motion to be hand-delivered to the Clerk of the Court.
The participants in the case are registered CM/ECF users and service will be
accomplished by the appellate CM/ECF system.

/s/ James C. Martin
James C. Martin

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 USCA Case #18-3052

Document #1746834

Filed: 08/22/2018

Page 1 of 2

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
Pursuant to Circuit Rule 27(a)(4), Concord Management and Consulting LLC
certifies the following:
A.

Parties

Appellant Andrew Miller was subpoenaed to testify before a grand jury
empaneled in the United States District Court for the District of Columbia, No. 1:18gj-00034-BAH.
Appellee is the United States of America, which is represented by Special
Counsel Robert S. Mueller III (the Special Counsel).
There were no intervenors or amici curiae in the district court, which held its
proceedings under seal. Concord seeks to intervene in this appeal. Pursuant to
Circuit Rule 26.1, the undersigned certifies that Concord is a Russian business entity
that has no parent companies. No publicly held company has a 10-percent or greater
ownership interest in Concord.
B.

Rulings Under Review

The rulings under review are the sealed contempt order entered against Mr.
Miller by Chief Judge Beryl A. Howell on August 10, 2018, ECF No. 36, which was
preceded by a sealed memorandum opinion entered on July 31, 2018, ECF No. 23,
denying Mr. Miller’s motion to quash. A redacted version of the memorandum
opinion was released to the public on August 8, 2018, ECF No. 32-3.

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 USCA Case #18-3052

Document #1746834

Filed: 08/22/2018

Page 2 of 2

There is no official citation for the contempt order. The official citation for the
redacted memorandum opinion is In re Grand Jury Investigation, --- F. Supp. 3d ---, No.
1:18-gj-00034-BAH, 2018 WL 3688461 (D.D.C. July 31, 2018).
C.

Related Cases

The case on review has not previously been before this Court or any other
court. There are no “related cases” within the meaning of Circuit Rule 28(a)(1)(c).
However, the criminal action brought by the Special Counsel against Concord in the
United States District Court for the District of Columbia involves one of the same
parties (the United States of America) and the same or similar legal issues as those
presented in this case.

The official citation for Judge Dabney L. Friedrich’s

memorandum opinion denying Concord’s motion to dismiss the criminal action is
United States v. Concord Management & Consulting LLC, --- F. Supp. 3d ---, No. 1:18-cr00032-DLF, 2018 WL 3827021 (D.D.C. Aug. 15, 2018).

/s/ James C. Martin
James C. Martin

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