The Final Countdown To The Sussmann Trial Begins...

Expect a rapid flurry of filings and rulings as May 16th gets closer

The trial by jury of former Hillary Clinton campaign lawyer Michael Sussmann is currently scheduled to start with the commencement of jury selection on Monday, May 16th.

Sussmann is being prosecuted by Special Counsel John Durham and his team on a single count of making a false statement to former FBI General Counsel James Baker.

We’re now in the final week before trial, and so there should be an intense burst of activity as all the parties involved make motions and counter-motions along with the court making quick rulings to keep things moving along.

The In Camera Review Results

Right now Federal District Court Judge Christopher Cooper and his staff should be in the process of going through the 38 particular documents that he agreed to review in camera [Latin for “in chambers” which means he’s making a private review without the government’s prosecutors being able to see what he’s looking at ]. Once that review is complete, Judge Cooper should make an announcement about the results of his review.

Multiple parties along with the defendant have insisted to the court that these 38 documents - which are part of a far larger batch of over 1,400 - should be shielded from federal grand jury subpoenas due to claims of attorney-client privilege. In response to this claim, Durham asked the court to do a private review to determine if the subpoenaed documents are indeed precluded from being given to him because they contain private legal counsel or advice. After hearing arguments from both the Special Counsel and the defendant, as well as from no less than five other parties who filed motions to intervene about why he should or should not grant Durham’s request for an in camera review, Judge Cooper ruled in Durham’s favor.

The court will find one of three things in it’s ruling about the results of the in camera review:

1. All of the documents do indeed contain legal counsel being given to a client, and therefore Durham cannot have any of them.

2. None of the documents contain any discernable legal counsel, and therefore Durham will be getting all of them [and Judge Cooper could have some sharp words for the defendant and intervening parties if this turns out to be the result]

3. Some of the documents contain legal counsel between Fusion GPS and their clients Perkins Coie, and some do not; in that case, Durham can have only the documents without any legal counsel in them.

As I stated in last week’s column, it is simply breathtaking that Sussmann and Hillary for America and the DNC as well as Perkins Coie are insisting on brazenly lying to the court about the nature of Fusion GPS’s contracted work. They are insisting on the fiction that Fusion, an opposition research agency, was hired to give legal advice to one of the top law firms in the country. Both a congressional investigation and an investigation by the Federal Election Commission [FEC] determined this claim to be a falsehood.

And yet here they are, in Judge Cooper’s courtroom, insisting on proffering this excuse in a lame attempt to avoid having to comply with federal grand jury subpoenas.

I suspect at the conclusion of his review of the documents, Judge Cooper will hand most if not all of them over to Durham, and then he’s going to blast Sussmann and the intervening parties for even attempting this deception on him.

Defendant’s Motion To Exclude Durham’s Expert Witness

Sussmann’s still making an attempt to keep the government’s expert witness, FBI Cyber Unit chief David Martin, from testifying at his trial. His defense team filed a new motion late on May 10th.

As I explained in a previous column, Sussmann and his lawyers don't want any cyber expert explaining DNS lookup data to the jury or what the DNS allegations were in the Alfa Bank hoax that Sussmann handed off to the FBI. And how some of this DNS data appears to have been fabricated. And how anyone with even a basic understanding of the DNS system would have realized the Alfa Bank “evidence” was bogus.

The Intercept was one of the media outlets that Sussmann and Fusion GPS shopped the Alfa Bank hoax to back in late 2016 before the Presidential election that November. Not only did The Intercept not publish the Alfa Bank Hoax, they called it out, while pointing out that many other outlets who got the same hoax offered to them also did not publish.

Sam Biddle, Lee Fang, Micah Lee and Morgan Marquis-Boire at The Intercept went on to do an excellent job in an investigative piece on November 1, 2016, just before the election, explaining exactly why the claim that a Trump Tower server was functioning as some sort of secret communications channel between presidential candidate Donald J. Trump and Russian President Vladimir Putin - was almost certainly not true.

The Intercept’s investigative team discovered that this same hoax had been shopped around to many different outlets besides Slate. While Slate’s Franklin Foer leaped to publish the allegations, The Intercept wasn’t the only one that greeted the hoax with skepticism: The New York Times, The Washington Post, The Daily Beast and Vice also got the same handoff - and they also held back on publishing the story.

As The Intercept relates in the linked article:

If some crack reporters at The Intercept were able to so easily tear apart the Alfa Bank hoax back in 2016 with a little digging, it’s not hard to imagine what the FBI’s Cyber Unit Chief is going to do with that hoax if he gets on the stand at Sussmann’s trial.

A key part of Sussmann’s defense is his claim that he honestly and truly believed this DNS lookup data assembled by Rodney Joffe and his team of researchers at Georgia Tech comprised evidence of a secret channel between Trump and Putin. He has two key points to his defense: that he not only didn’t lie to the FBI about being there on behalf of clients, he was 100% convinced what he was giving to them was real.

Durham will attack both assertions at trial with extensive evidence to counter this defense, establishing a case to the jury that not only did Sussmann lie to the FBI about the clients he was representing - the Hillary for America campaign and Neustar Vice-President Rodney Joffe - he also knew what he was giving to that law enforcement agency was a concocted fiction.

So Sussmann and his legal team do not want the FBI’s crack Cyber expert David Martin on the stand explaining to the jury how many implausible holes there are in the Alfa Bank hoax, and how Sussmann would have to be a blithering idiot not to have spotted them or known about them.

In an earlier motion to exclude Martin from appearing, Sussmann’s teams had made a series of objections to his testifying, such as that the Special Counsel had waited to long to notify them that Martin would be appearing as the government’s expert witness, and that his testimony would be prejudicial and unnecessary.

After Sussmann filed his Motion To Exclude the Special Counsel’s Expert Witness, Durham’s office filed it’s response to counter the objections that had been raised. Cooper then ruled that Martin will be allowed to testify.

Now Sussmann’s team is back filing a new motion seeking to place limits on what Martin can testify about.

Having read a lot of defense motions over the years, translating the legalese often amounts to me saying the defense is here claiming literally everything the prosecution is doing is direct assault on the permitted legal discourse and rules. Sussmann’s team is pretty standard about this thus far. However, in this motion they have to be careful because they know Judge Cooper already heard their arguments about why Martin shouldn’t even be allowed into the courtroom, and Cooper ruled against them. Now that they are back seeking to limit what Martin can say on the stand, they are treading carefully.

I don’t see this motion to severely limit what Martin can testify about having any more success than the earlier motion to prevent Martin from testifying at all. The defense is attempting to prevent Martin from saying anything on the stand about DNS data and what it can or cannot do.

As agreed upon earlier between the parties, Martin won’t get into the issue of the credibility or the authenticity of the DNS data in regards to claim it provided evidence of a secrete communications channel between Trump Tower and Alfa Bank unless the Sussman team brings it up first.

But it’s apparent from this filing that the Sussmann team is worried that Martin explaining even the basic facts about DNS data to the jury will cause the jury to see how far-fetched and absurd the Alfa Bank hoax was, even though the issue of it’s authenticity isn’t directly raised in the courtroom.

This filing attempting to get the court to place strict limits on what Martin can testify to looks like just another desperate maneuver to head off the inevitable.

This is all I have right now, as I am preparing for a move to Florida that I hope can be completed by the 22nd. As I don’t expect Sussmann’s trial to take all that long, it may well be concluded by the time I am fully settled in to my new place in Lakeland.

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