United States District Judge Christopher “Casey” Cooper on April 26 granted five petitions seeking to intervene in former Clinton campaign attorney Michael Sussmann’s upcoming trial for allegedly making a false statement to the FBI.
Special Counsel John Durham, in April 6 court filings, sought to compel the Democratic National Committee (DNC), Hilary Clinton’s 2016 campaign, Fusion GPS, the Perkins Coie law firm, and former Neustar senior vice president Rodney Joffe to provide documents and communications they’ve refused to hand over, claiming attorney-client privilege.
Durham maintains there were 1,455 documents and communications between the parties that were withheld from federal prosecutors as “privileged” attorney-client communications even though only 18 involved what could be described as legal advice.
His motion seeks to have the five parties and Sussmann produce 38 “privileged” communications and email exchanges for Cooper to review.
Attorneys representing the DNC, Clinton campaign, Perkins Coie, Joffe, and Fusion GPS—the “opposition research” firm hired by Clinton’s campaign—filed petitions last week seeking to intervene and to argue against their clients’ communications being used as evidence in Sussmann’s trial, scheduled to begin on May 16.
Cooper, an Obama appointee, granted those petitions April 26 and gave attorneys until April 29 to “re-file their proposed oppositions” to Durham’s motion in anticipation of making their arguments in a May 4 hearing.
Despite Cooper’s rulings, the evidentiary hearing scheduled for April 27 at 2 p.m. in his Washington, D.C., courtroom “will go forward as scheduled,” US Department of Justice Deputy Director of Public Affairs Wyn Hornbuckle confirmed in an email.
Durham alleges Sussmann knowingly lied in claiming to be acting as “a concerned citizen” on September 19, 2016, when he gave FBI General Counsel James Baker documents regarding alleged DNS (Domain Name System) traffic between Russia-based Alfa Bank and the Trump Organization.
What Sussmann allegedly failed to inform Baker, according to Durham, is that he had represented Joffe in the past, recently represented the Democratic National Committee (DNC), and that his Perkins Coie law firm was general counsel for Hilary Clinton’s 2016 campaign.
Durham maintains that in August 2016, Sussmann and Clinton campaign lead counsel Marc Elias met with Joffe—whose company was contracted to monitor DNS traffic for the Executive Office—in their Perkins Coie offices and “encouraged” him to concoct a “narrative” tying the Trump Organization to the bank, the largest in Russia.
That concocted “narrative” was then circulated to the FBI a month later and to the CIA in February 2017, kicking off months of legal scrutiny and spurious high-profile media “Russiagate” speculation first about candidate Donald Trump and then President Donald Trump’s, connections with Russia.
April 27’s evidentiary hearing will be the second before Cooper regarding what will and won’t be heard in Sussmann’s trial.
During a 43-minute April 20 hearing, Cooper waded through the first set of petitions calling for restrictions on witness testimony filed by attorneys representing Sussmann.
Sean Berkowitz, Michael Bosworth, Natalie Hardwick Rao, and Catherine Yao of Latham & Watkins also argued that notes taken by two FBI officials after meeting with Baker not be entered as evidence in the case.
Sussmann’s attorneys insist the veracity of the data is not relevant to the charge lodged against their client—lying to the FBI—especially since Durham had previously said it was not part of his investigation.
“The government [said] it did not intend to [address] the accuracy of the data” with “the caveat” it would do so if cross-examination made it relevant, argued Berkowitz, noting the defense “has no plans to offer evidence that there was a link between Trump servers and the Alfa Bank” because it has nothing to do with the false statement charge.
In response to the April 20 hearing, Cooper on April 25 barred Durham from introducing the CIA analysis or from making a” lengthy exploration” of data Sussmann turned over to Baker after his defense team said it “will not seek to affirmatively prove the existence of a link between Alfa Bank and the Trump Campaign.”
The judge also denied Durham’s request to compel testimony from technicians who “maintained the servers that purportedly received communications from Alfa Bank servers to testify about their involvement in the FBI’s investigation.”
Cooper, however, also ruled he “will permit the government to put on evidence reflecting the FBI’s ultimate conclusions—which the court understands to be that the Alfa Bank allegations were unsubstantiated—as well as the ‘particular investigative and analytical steps’ the FBI took to reach them.’”
Cooper said the evidence “is relevant to the government’s theory of materiality: that Mr. Sussmann’s alleged statement that he was not representing a client caused the FBI to handle the subsequent investigation differently than it otherwise would have.”
During the April 20 hearing, Berkowitz also questioned the extent to what FBI Special Agent David Martin, the agency’s Cyber Technical Analysis Unit Chief, will testify about. He asked to restrict it to explaining “basic mechanics, architecture, and terminology of the DNS system and DNS data.”
Deadlines For New Arguments
By calling Martin as a witness, Berkowitz said, Durham was trying to imply that Sussmann, a specialist in cyberlaw, “could not have reasonably believed” the conclusions in the data he provided Baker.
Cooper, in his April 25 rulings, said he would “largely deny” the defense’s motion against allowing Martin to testify but agreed to limit the range of what can be asked.
The judge gave May 2 deadlines for filing new arguments regarding evidence to be heard during April 27’s hearing.
Sussmann’s attorneys raised four procedural issues with Durham’s April 6 motion to compel testimony.
First, they say, the motion is untimely because it was filed less than six weeks before the trial was set to begin and “long after court-ordered discovery deadlines had come and gone.”
They argue Durham’s motions should have been brought before the Chief Judge of the District Court first, that he is seeking information the Grand Jury investigation allowed to remain redacted, that the compelled documents “are irrelevant on their face” to the charge levied against their client, and that even if attorneys were not involved the requested communications involve “attorney work products” and, therefore, are “privileged.”
In their 20-page April 25 filing, prosecutors rebut those arguments, claiming the defense’s arguments about timeliness “distort reality. Indeed, the opposite is true: the primary reason the government waited until recently to bring these issues to the court’s attention was because it wanted to carefully pursue and exhaust all collaborative avenues of resolving these matters short of litigation.”
The fact that Sussmann and other parties want the 38 documents and email exchanges shielded as “privileged” attorney-client communications is ironic, prosecutors note, because “the government acknowledges—and indeed, the indictment alleges —that the defendant maintained attorney-client relationships with the Clinton Campaign” and Joffe.
No Response to Requests
“Indeed, the purported privilege holders who have intervened do so in a case in which the defendant is alleged to have denied representing any client,” prosecutors write.
Durham’s team said, “over the course of months, and until recently, the government has been receiving voluminous rolling productions of documents and privilege logs from numerous parties” but, despite reaching “out to each of those parties’ counsel numerous times, directing their attention to specific documents where possible and communicating over email and phone in an effort to obtain non-privileged explanations for the relevant privilege determinations” but got no response until filing the motion to compel.
The claim that communications regarding “attorney work products” should remain under wraps should be rejected, they argue.
“These parties are advancing a highly novel and seemingly broad theory of attorney-client privilege, namely, that Fusion GPS’s political opposition research—which triggered a sizeable outflow of unverified derogatory information into the media, the government, and the public—was in reality confidential expert work intended to support legal advice regarding libel and defamation,” prosecutors maintain.
“Even more novel,” they continue, “the purported privilege holders here contend that they all maintained a common legal interest in that work, despite the fact that the group includes [Joffe], with whom none of the other purported privilege holders had any formal or informal legal relationship.”