BEFORE THE UNITED STATES DEPARTMENT OF JUSTICE

OFFICE OF PROFESSIONAL RESPONSIBILTY

___________
IN RE: COMPLAINT AGAINST ASSISTANT UNITED STATES ATTORNEY
AARON S.J. ZELINSKY
___________
INTRODUCTION

Andrew Miller and the National Legal and Policy Center, through their undersigned

counsel, hereby file this complaint against Assistant United States Attorney (AUSA) Aaron S.J.

Zelinsky with the Office of Professional Responsibility (OPR) for misconduct that occurred

during the grand jury proceedings of Mr. Miller regarding the investigation and prosecution of

Roger J. Stone when Mr. Zelinsky was assigned as a prosecutor with Special Counsel Robert

Mueller and subsequently when he was reassigned as a Special Assistant U.S. Attorney in the

United States Attorney’s Office for the District of Columbia to the transferred case following the

completion of the Special Counsel Mueller probe. The OPR should conduct a thorough

investigation of the matters alleged herein and impose appropriate disciplinary action against

AUSA Zelinsky.

As alleged herein, AUSA Zelinsky lacked candor with the Chief Judge of the U.S.

District Court during a hearing on May 28, 2019, when explaining why the government did not

seek expedited disposition of the appeal challenging the grand jury subpoena issued to Mr.

Miller and the issuance of the mandate for the U.S. Court of Appeals for the District of Columbia

Circuit in In re: Grand Jury Investigation, No. 18-3052 decided February 26, 2019. 916 F.3d

1047 (D.C. Cir. 2019).

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 In addition, Mr. Zelinsky may have misled the Court during that hearing in representing

to the Court that Mr. Miller’s testimony was needed for an “ongoing investigation,” which was

belied by the fact that Special Counsel Mueller, in his final report issued two months before the

May 28, 2019 hearing, did not designate the Roger Stone case as an “ongoing investigation” as

he did for two other pending matters, but instead noted that the Stone case was “awaiting trial.”

Moreover, during the May 28 hearing, Mr. Zelinsky, in an ex parte bench colloquy explaining

why he was not abusing the grand jury by continuing to seek Mr. Miller’s testimony in light of

the fact that Mr. Stone had been indicted on January 29, 2019, may have mispresented to the

court that his need for Mr. Miller’s testimony came within the two exceptions for using a grand

jury to gather evidence once a defendant had been indicted, namely, that the government was

seeking additional evidence for other crimes of Mr. Stone or for other unindicted targets.

COMPLAINANTS

Andrew Miller was a witness subpoenaed to testify before the Mueller Grand Jury and

before the trial of Roger Stone but was never called to the stand. The National Legal and Policy

Center (NLPC) is a public interest organization that supported Mr. Miller’s constitutional

challenge to the appointment of Special Counsel Mueller. NLPC has a pending FOIA lawsuit

against the Department of Justice seeking 299 pages of documents related to Mr. Mueller’s

appointment and his background investigation that was conducted two months after his

appointment, which the Justice Department refuses to release. NLPC v. DOJ, No. 19-1086

(D.D.C.). NLPC promotes ethics in public life through research, investigation, education and

legal action.

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 ALLEGATIONS OF MISCONDUCT BY AUSA ZELINSKY

I. CHRONOLOGY OF THE SPECIAL COUNSEL GRAND JURY SUBPOENA

ISSUED TO ANDREW MILLER IN JUNE 2018
1. In mid-May 2018, Mr. Miller, a former part-time aide to Mr. Stone during the 2016

Republican National Committee convention handling his media schedule appearances,

voluntarily agreed to be interviewed without counsel by two FBI agents who appeared without

notice at his mother’s home in St. Louis, Missouri. For approximately two hours, Mr. Miller

answered all their questions to the best of his knowledge. At the end of the interview, the FBI

gave Mr. Miller a subpoena from the Special Counsel for any documents related to Mr. Stone

and to testify before the Special Counsel grand jury.

2. At a subsequent hearing on a motion to quash the subpoena for overbreadth, the

parties agreed with court approval to limit the document search to any documents related to Mr.

Stone and WikiLeaks, Julian Assange, and Guccifer 2.0. All such documents were turned over to

prosecutors on June 25, 2018. The subject of his grand jury testimony, then scheduled for June

29, 2018, presumably would cover the same subject matter as the FBI interview and the

documents requested, even though Mr. Miller’s knowledge of Mr. Stone’s connection to

WikiLeaks was limited to published press accounts.

3. On June 25, 2018, Mr. Miller provided the documents to Special Counsel as ordered

and agreed to. On June 28, 2018, the day before he was ordered to appear before the grand jury,

his new counsel, Paul D. Kamenar, filed a motion to quash the subpoena on the basis that the

Special Counsel was unconstitutionally appointed under the Appointments Clause of the

Constitution.

4. After expedited briefing on the motion to quash, the Chief Judge Beryl A. Howell held

a closed-door hearing on July 18, 2018. On July 31, 2018, the Court issued an Order and a 92-

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page Memorandum Opinion denying the motion to quash and subsequently unsealed it. The

witness was ordered to appear before the grand jury on August 10, 2018.

5. On August 9, 2018, Mr. Miller filed a motion requesting that he be held in contempt of

court explaining that he was respectfully declining to appear the next day before the grand jury

and requesting a stay of any such contempt order so that he could appeal it to this Court since only

contempt orders are appealable to the court of appeals.

6. On August 10, 2018, a contempt hearing was held, at the conclusion of which the Court

held the witness in contempt but stayed its order on the condition that a notice of appeal be filed

by August 14. On August 13, 2018, Mr. Miller filed his notice of appeal.

7. The parties filed briefs in the court of appeals and oral argument was held on November

8, 2018 and post-hearing briefs were also filed.

8. On January 25, 2019, while the appeal of the contempt order was pending, Roger

Stone was indicted on five counts of providing false testimony to Congress regarding his

contacts with WikiLeaks, Julian Assange, and other witnesses, but there were no charges for

colluding or coordinating with Russia regarding that country’s interference with the 2016

campaign or the hacking of Hillary Clinton and DNC emails. He was also charged with one

count for threatening a witness, Randy Credico, who testified he did regard the threat as a threat,

and one count for obstruction of a congressional proceeding.

9. Later that afternoon, counsel for Mr. Miller inquired of the Special Counsel whether,

in light of Mr. Stone’s indictment, the grand jury still needed Miller’s testimony regarding the

subject matter (if it ever did), and whether the D.C. Circuit should be so advised so that the

appeal may be render moot. In particular, counsel noted the Justice Department’s policy and

relevant case law regarding the proper use of the grand jury post-indictment:

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 U.S. Attorney Manual 9-11.120 - Power of a Grand Jury Limited by Its
Function

The grand jury's power, although expansive, is limited by its function toward possible
return of an indictment. Costello v. United States, 350 U.S. 359, 362 (1956).
Accordingly, the grand jury cannot be used solely to obtain additional evidence against a
defendant who has already been indicted. United States v. Woods, 544 F.2d 242, 250 (6th
Cir. 1976), cert. denied sub nom., Hurt v. United States, 429 U.S. 1062 (1977). Nor can
the grand jury be used solely for pre-trial discovery or trial preparation. United States v.
Star, 470 F.2d 1214 (9th Cir. 1972). After indictment, the grand jury may be used if its
investigation is related to a superseding indictment of additional defendants or additional
crimes by an indicted defendant. In re Grand Jury Subpoena Duces Tecum, Dated
January 2, 1985, 767 F.2d 26, 29-30 (2d Cir. 1985); In re Grand Jury Proceedings, 586
F.2d 724 (9th Cir. 1978).

10. Since the subpoena issued to Mr. Miller was for the ostensible purpose of obtaining

evidence related to Mr. Stone’s connection with WikiLeaks, Julian Assange, and Guccifer 2.0, it

would appear that the Special Counsel would no longer need Mr. Miller’s testimony regarding

that subject matter. Nevertheless, the next business day, Monday, January 28, 2019, undersigned

counsel was advised by the government that it believed the case to be a live controversy since

the grand jury was still active, though it was not apparent whether the grand jury or its

foreperson was consulted to determine any continued interest in hearing Mr. Miller’s testimony

now that Mr. Stone was indicted.

11. On February 26, 2019, the court of appeals issued its judgment and opinion affirming

this Court’s denial of Mr. Miller’s motion to quash the subpoena. In re: Grand Jury

Investigation, 916 F.3d 1047 (D.C. Cir. 2019).

12. The court of appeals’ order stayed the issuance of the mandate, as is the usual

practice under Fed. R. App. P. 41(b) and D.C. Cir. Rule 41, until seven days after the time for the

filing a petition for rehearing had expired or after disposition of any timely filed petition (45 days

from the February 26 decision, or April 12). The order further specified that any party had the

right “to move for expedited issuance of the mandate for good cause shown.” Notably, for the

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next 45 days, the Special Counsel declined to exercise that right, presumably because it did not

have the requisite “good cause” or any legitimate need to require Mr. Miller’s grand jury

testimony since the original issuance of the subpoena in June 2018.

13. On March 22, 2019, Special Counsel Mueller submitted his final report to Attorney

General William Barr pursuant to the Special Counsel regulations, 28 C.F.R. 600.8(c),

concluding his investigation, explaining his prosecutions and declinations, and finding that no

conspiracy or coordination took place between the Trump campaign or any aides associated with

the campaign and Russia regarding interference with the 2016 campaign or hacking the emails of

Hillary Clinton or the DNC. No further indictments were expected. According to Justice

Department spokesperson Kerri Kupec, “The investigation is complete.”1 Accordingly, the

intervening events described above that occurred since the issuance of the subpoena to Mr.

Miller in June 2018 strongly, if not definitively, demonstrate Mr. Miller’s testimony regarding

Mr. Stone was no longer required nor could be legally obtained.

14. On April 12, 2019, Miller filed a timely petition for rehearing and rehearing en banc

with a suggestion of mootness.

15. On April 29, 2019, the court of appeals denied the petition without opinion and

without requesting the government to file a response.

16. On May 6, 2019, Miller filed a timely motion to stay the mandate for 30 days in

order to seek Supreme Court review.

1
Devlin Barrett and Matt Zapotosky,“Mueller report sent to attorney general, signaling his
Russia investigation has ended” Washington Post (Mar. 22, 2019).
https://www.washingtonpost.com/world/national-security/mueller-report-sent-to-attorney-
general-signaling-his-russia-investigation-has-ended/2019/03/22/b061d8fa-323e-11e9-813a-
0ab2f17e305b_story.html?utm_term=.6d83a9475bca

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 17. On May 16, 2019, the government filed an opposition to the motion to stay the

mandate, asserting for the first time since the February 26 decision that it “has a continued need

for [Miller’s] testimony, which concerns an ongoing investigation that is now being handled by

the U.S. Attorney’s Office for the District of Columbia.” (Govt. Op. at 18).

18. On May 21, 2019, the court of appeals denied the motion to stay the mandate and

ordered the Clerk to issue it after seven days, i.e., on May 28, 2019, which it did.

` 19. On May 28, 2019, the day the district court regained jurisdiction over the case,

counsel for Mr. Miller filed a Motion to Quash the Special Counsel Subpoena because it

appeared that the government would improperly use the Mueller grand jury to gather evidence

for a criminal proceeding pending trial, namely United States v. Roger Stone, in violation of

Department of Justice policy and case law. See Exhibit 1.

A. AUSA ZELINSKY LACKED CANDOR WITH THE COURT IN EXPLAINING

THE GOVERNMENT’S FAILURE TO SEEK EXPEDITED ISSUANCE OF THE
MANDATE SINCE FEBRUARY 26, 2019

At the May 28, 2019 hearing on Mr. Miller’s Motion to Quash the Subpoena for abusing

the grand jury process because Roger Stone had been indicted three months earlier and that

Robert Mueller finished his investigation on two months earlier, counsel for Mr. Miller

questioned the government’s continued interest in Mr. Miller’s grand jury testimony inasmuch as

the government could have, but failed to move for an expedited issuance of the mandate as it had

a right to do since February 26, 2019 when the decision affirming the district court was issued.

See Exhibit 2. The colloquy between the Court and Mr. Zelinsky suggests that Mr. Zelinsky was

less than candid with the court:

22 THE COURT: All right. Mr. Zelinsky, let's start

23 with a point that Mr. Kamenar raised in his papers and

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24 actually was a puzzle to me.

25 Why is it that Special Counsel didn't seek

1 expedited consideration of review of the appeal or for

2 expedited issuance of the mandate so, as a consequence, it

3 took ten months?

4 MR. ZELINSKY: In retrospect -- to start with the

5 first issue, that is, expedited appeal, my understanding is

6 that the local rules for grand jury matters do have a bias

7 in favor of expedition at the Court of Appeals, regardless

8 of whether or not such expedition is explicitly requested,

9 as was the case in another grand jury matter; that matter

10 was dealt with very rapidly by the Court of Appeals.

11 It was perhaps an error that the special counsel's

12 office anticipated that another grand jury matter would be

13 handled with similar dispatch. But we believed, based on

14 our experience with another grand jury matter, the Court of

15 Appeals was moving with -- as rapidly as possible to get an

16 answer to a pressing question; and we believed that it would

17 happen quickly. That is the answer to question one.

18 Why did we not seek explicit expedition? In part,

19 because local rules and practice explicitly expedite such

20 processes and because in a similar matter we knew that --

21 THE COURT: But it's always helpful to have the

22 Government seeking expedition.

23 MR. ZELINSKY: Perhaps it would have been helpful

24 in this case --

25 THE COURT: I think so.

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1 MR. ZELINSKY: -- to do that, Your Honor, to the

2 Court. But that is the reason that it was not sought in the

3 first place.

4 As for the mandate -- not seeking expedition of

5 the mandate, I think there are two issues that are involved

6 in that. The first is the Government continues to seek

7 Mr. Miller's testimony in an ongoing matter; that is an

8 ongoing investigation. Mr. Miller's testimony is sought for

9 it.

10 The Government made a balancing assessment as to

11 how rapidly Mr. Miller's testimony was necessary and the

12 other matters the Government had going on at the time when

13 the mandate was issued. The determination was made that, in

14 terms of government -- available government resources, there

15 was a lot going on, to be quite frank, at that point, in

16 terms of what was happening at the Special Counsel's office

17 from publicly available material and, given where resources

18 were focused, that was not the first and primary issue.

19 As Mr. Kamenar has indicated, we are now in a

20 period where there is significantly more resources to

21 dedicate to an investigation, an ongoing investigation. And

22 so to the extent that there was not a move to issue that

23 mandate rapidly, it was because the Special Counsel was

24 involved in a great deal of ongoing matters then and a

25 determination was made that we should not needlessly ask the

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 1 Court for something when we were not necessarily in a

2 position to rapidly follow up; and we didn't want to be

3 misleading and make that characterization. That is not the

4 case now, it's been transferred to the D.C. U.S. Attorney's

5 Office where there are ample resources.

6 We are more than ready -- as indicated by our

7 emails of May 6th, by our email of May 22nd -- to proceed

8 with all available speed to make sure that we resolve this

9 matter as rapidly and as expeditiously as possible.

See Exhibit 2 at 19-21. Mr. Zelinsky’s response to the Court’s query was not credible.

As for why the Special Counsel the government was dilatory in expediting the appeal in this

matter, Zelinsky explained he thought the court of appeals would handle it as expeditiously as it

did in another grand jury matter involving a subpoena to a foreign financial institution that raised

sovereign immunity defenses. That other matter was indeed expedited by the court of appeals,

which issued its ruling within a few days after the oral argument behind closed doors, unlike Mr.

Miller’s case which was held in open court and a decision rendered in almost three months.2

Also the briefing schedule in Mr. Miller’s case was not expedited as it apparently was in the

bank subpoena case. Finally, the $50,000 a day fines for contempt in that case were not stayed

pending appeal, whereas Mr. Miller’s contempt was stayed pending appeal. In short, it was clear

that the two appeals were being handled on two different tracks, one expedited and the other

more or less in accordance with the usual briefing and argument schedule.

2
https://www.washingtonpost.com/world/national-security/prosecutors-win-court-fight-over-
secret-subpoena-of-a-foreign-company/2018/12/18/b56dafac-0315-11e9-b5df-
5d3874f1ac36_story.html
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 As for why the Special Counsel did not move for an expedited issuance of the mandate

after the February 26 decision but instead was apparently content to wait another three months

for the matter to return to the district court, Mr. Zelinsky’s answer was also not credible when he

told the court:

And so to the extent that there was not a move to issue that mandate rapidly, it was
because the Special Counsel was involved in a great deal of ongoing matters then and a
determination was made that we should not needlessly ask the Court for something when
we were not necessarily in a position to rapidly follow up; and we didn't want to be
misleading and make that characterization. That is not the case now, it's been transferred to
the D.C. U.S. Attorney's Office where there are ample resources.

First, Special Counsel Mueller completed his investigation on March 22, less than a

month after the court of appeals issued its decision in this case and two months before the May

28 hearing. and it is thus unclear what “great of ongoing matters then” (February 26) precluded

the government from requesting the court of appeals to expedite the issuance of the mandate. If

it had been granted, Mr. Miller would only be required to appear before the Mueller grand jury

as Mr. Miller was originally scheduled to do so back in June 2018. If the government were

prepared back in June 2018 to have Mr. Miller testify before the grand jury, it certainly was

prepared to do so in February 2019. Accordingly, Mr. Zelinsky should be required to explain to

this Office during its investigation what other pending matters precluded Mr. Miller from

testifying before the grand jury and when and who allegedly made the “determination” not to ask

the court of appeals for an expedited issuance of the mandate.

Second, Mr. Zelinsky by his own admission stated to the Court that “We are more than

ready -- as indicated by our emails of May 6th, by our email of May 22nd -- to proceed with all

available speed….” (emphasis added). Thus, more than three weeks prior to the May 28 hearing

when the mandate was issued, the government was “more than ready” at least on May 6 (if not

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before) to proceed with Mr. Miller’s grand jury testimony yet failed to move for an expedited

issuance of the mandate even then. Indeed, on March 19, 2019, over two months before the

May 28 hearing, Mr. Zelinsky sent Mr. Miller’s counsel an email incorrectly stating that the

mandate would issue within 21 days of the February 26 decision (instead of 45 days allowed in

cases where the United States is a party for the filing of a petition for rehearing en banc) and

indicated to Mr. Miller’s counsel that the government was then prepared to meet with the “team”

and proceed “as soon as possible.” Exhibit 3-1.

In sum, Mr. Zelinsky’s candor with the court is questionable about his proffered reasons

for not seeking an expedited issuance of the mandate. This Office should require him to further

explain in detail his reasons for not doing so.

B. AUSA ZELINSKY ABUSED THE GRAND JURY BY CONTINUING TO SEEK

MR. MILLER’S TESTIMONY AFTER MR. STONE’S INDICTMENT

The thrust of Mr. Miller’s motion to quash the grand jury subpoena was that since Roger

Stone was indicted on January 29, 2019, it would be improper to have Mr. Miller appear before

the grand jury according to DOJ policy and case law, unless the testimony sought was needed to

obtain evidence of other crimes of Mr. Stone or other defendants. See Exhibit 1.

In the first place, Mr. Zelinsky repeatedly told the district court that Mr. Miller’s

testimony was needed for an “ongoing investigation.” The government’s claim that it “has a

continued need for [Miller’s] testimony, which concerns an ongoing investigation that is now

being handled by the U.S. Attorney’s Office for the District of Columbia” is questionable for

several reasons.

First, it was clear from the outset, that the Special Counsel wanted Mr. Miller to testify in

2018 regarding his knowledge of Roger Stone’s actions during the 2016 election and his

involvement in WikiLeaks, Julian Assange, and the hacking of Hillary Clinton’s and the DNC’s

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emails and any collusion with Russia. But Mr. Stone was indicted on January 24, 2019, by the

Special Counsel, in regard to that matter and that case was well into pre-trial discovery at the

time of the May 28 hearing.

Second, as of March 22, 2019, the Special Counsel’s investigation ended and he

submitted his final report. In his report, the Special Counsel noted there were 11 matters that

were ‘not fully concluded” and “transferred responsibility for those matters to other components

of the Department of Justice and the FBI.” Exhibit 1: Mueller Report, Appx D-1 (Exh. 2). One

such transferred case (listed in alphabetical order) was Case No. 10, United States v. Roger

Stone. Id. Under the case caption is the parenthetical “(Awaiting trial)”. This “awaiting trial”

designation is in sharp contrast to Case Nos. 9 and 11, whose case names are redacted but whose

parenthetical designation is “(Investigation ongoing)”. Id.

Accordingly, Mr. Zelensky’s alleged need for Mr. Miller’s testimony for an alleged

“ongoing investigation” with respect to Roger Stone is questionable since Mr. Stone’s case was

then ‘awaiting trial” and was not designated as an “ongoing investigation.” Either Mr. Zelinsky

(1) no longer needed Mr. Miller’s testimony as he did in 2018, (2) was improperly seeking

evidence for the then-pending Stone prosecution, or (3) was investigating other possible crimes

committed by Mr. Stone or other possible defendants, the only exception for using the grand

jury at that stage.

During the May 28 hearing, Chief Judge Howell recognized that a prima facie argument

was made that requiring Mr. Miller to testify would be an abuse of the grand jury and required

Mr. Zelinsky to approach the bench to explain his reasons ex parte for needing Mr. Miller’s

testimony, which were redacted from the hearing transcript. Exhibit 2 at 22-24. Following that

colloquy, the court denied Mr. Miller’s motion to quash the grand jury subpoena stating, “In

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sum, it's not improper for the Government to continue to use the grand jury post Indictment when

the grand jury is investigating other offenses that are not covered in the pending Indictment or is

investigating unindicted potential targets.” Id. at 30. Yet, as previously noted, the Mueller Report

does not list the Roger Stone case as an “ongoing investigation” but simply “awaiting trial.” This

Office should examine the grand jury transcript to verify that no testimony was sought for

additional crimes of Mr. Stone for other unindicted targets as is the recollection of Mr. Miller. No

superseding indictment was filed. Complainants intend to file a petition with the Court to unseal

the ex parte bench conference to determine whether Mr. Zelinsky’s representations to the Court

that government came with the two exceptions for using the grand jury were valid. In any event,

OPR should require Mr. Zelinsky to divulge those representations to this Office during its

investigation or examine the redacted information as it would grand jury testimony.

C. AUSA ZELINSKY SWITCHED GRAND JURIES AND REFUSED TO TELL MR.

MLLER’S COUNSEL

On May 30, 2019, Mr. Miller appeared with undersigned counsel at the U.S. District

Court for the District of Columbia for his grand jury testimony. Upon entering the courthouse,

representatives from the media suggested to counsel that the grand jury that Mr. Miller would be

testifying before was not the Mueller Grand Jury 17-1, which was identified on the original

subpoena issued to Mr. Miller in June 2018. Apparently, the media’s suggestion was based on

their observations of the comings and goings of the Mueller grand jurors in the courthouse

hallways. When counsel asked Mr. Zelinsky upon arriving in the grand jury suite of offices what

grand jury Mr. Miller would be testifying before, Mr. Zelinsky became hostile and would not

reveal which grand jury it was, only to loudly exclaim that it was a valid grand jury and that’s all

that needed to be said. This response was puzzling since during the hearing two days before

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when counsel for Mr. Miller requested the issuance of a new grand jury subpoena, he was

assured that it was not necessary, and thus assumed it would be the Mueller Grand Jury.

Following Mr. Miller’s testimony, Mr. Zelinsky and his co-counsel AUSA Michael

Marando told Mr. Miller and counsel that the grand jury “ordered” Mr. Miller to provide

additional documents for its consideration. Mr. Miller’s counsel later requested that a new

subpoena duces tecum be issued specifying the documents, since only court’s issue “orders”, not

grand juries. See email June 4, 2019 from Paul Kamenar to Michael Marando (Exhibit 3-6;7).

Upon receiving the subpoena duces tecum, counsel noted that the Grand Jury number was

missing and emailed Messrs Zelinsky and Marando asking them to identify the number. Exhibit

3-5. Almost immediately, counsel received a loud and hostile telephone call from Mr. Marando

accusing counsel of “playing games” and threatening to hold Mr. Miller in contempt of court if

he did not supply the documents requested. See email dated June 5, 2019 (Exhibit 3-4; 5).

When Miller’s counsel replied that all he was requesting was the grand jury number and that Mr.

Marando need not get belligerent, Mr. Marando finally replied that the grand jury number was

18-3 and abruptly hung up the phone.

Grand Jury 18-3 was not the original Mueller Grand Jury 17-1 identified in the subpoena

originally issued and to which Mr. Zelinsky represented to the Court was still the valid subpoena.

In short, Mr. Zelinsky switched grand juries on Mr. Miller without telling counsel or issuing a

new subpoena. This conduct was unprofessional and subject to reprimand for hiding the identity

of the grand jury from Mr. Miller and his counsel and misrepresenting the status of the grand

jury subpoena to the Court.

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D. MR. MILLER WAS SUBPOENAED TO TESTIFY AT MR. STONE’S TRIAL AS A
GOVERNMENT WITNESS BUT WAS NOT CALLED

On August 8, 2019, Mr. Miller was subpoenaed to testify at Mr. Stones trial three months

later beginning on November 5, 2019, which came as surprise inasmuch as based on Mr. Miller’s

grand jury testimony, he did not possess any relevant information to the charges pending against

Mr. Stone regarding his testimony before Congress. Mr. Zelinsky refused to explain why he

needed Mr. Miller to testify and travel from St. Louis, MO and miss work if he wasn’t going to

be called.

Mr. Miller was later instructed to travel to Washington, D.C., and to be on call at the

nearby hotel where he was staying beginning on November 11, 2019. After the parties rested

their case two days later, counsel for Mr. Miller asked Mr. Zelinsky as he was leaving the

courtroom whether his client was now free to return to St. Louis and was sternly told he cannot

leave until Mr. Zelinsky says he can. The next morning as counsel for the parties were entering

the courtroom for closing arguments, only then did Mr. Zelinsky tell counsel that Mr. Miller was

free to return home, which involved additional and unnecessary travel and hotel expenses borne

by taxpayers. This aggressive and unprofessional attitude was typical of Mr. Zelinksy’s

demeanor with other counsel and witnesses, which undersigned counsel came to learn in

discussions with other witnesses and their counsel.

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 CONCLUSION

With respect to the allegations made herein, OPR has sufficient evidence to open an

investigation and to require AUSA Zelinsky to respond to the allegations, and where warranted,

impose appropriate disciplinary action. The OPR has investigated other cases involving lack of

candor to the courts and abuse of the grand jury and imposed sanctions where appropriate.3

Complainants Andrew Mill and NLPC further reserve their right to supplement this

complaint with additional information as deemed warranted and can provide OPR with

additional information it may request.

Respectfully submitted,

/s/Paul D. Kamenar
Paul D. Kamenar
1629 K Street, N.W.
Suite 300
Washington, D.C. 20006
(301) 257-9435
pdkamenar@aol.com

Date: June 23, 2020

3
See, e.g., 2020 Investigative Summary 2: Investigation of
Alleged: MISREPRESENTATIONS TO COURT, DEFENSE COUNSEL, AND
SUPERVISORS; FAILURE TO INFORM CLIENT; 2019 Investigative Summary 11:
INVESTIGATION OF ALLEGED LACK OF CANDOR TO THE COURT; 2017
Investigative Summary 11: ABUSE OF GRAND JURY PROCESS;
MISREPRESENTATION/MISLEADING THE COURT; FAILURE TO KEEP CLIENT
INFORMED; LACK OF CANDOR TO OPR; FAILURE TO COMPLY WITH COURT
ORDER. https://www.justice.gov/opr/investigative-summaries

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18