John Durham had contended that the jury needs to understand the scheme to grasp why the defendant lied to the FBI.
John Durham had contended that the jury needs to understand the scheme to grasp why the defendant lied to the FBI.
A federal judge has ruled that, at Democratic lawyer Michael Sussmann’s criminal trial next month, Special Counsel John Durham’s prosecution team will be barred from showing the jury tweets posted by Hillary Clinton and her 2016 campaign.
Sussmann is accused of one count of making false statements to the FBI in September 2016, toward the end of the presidential campaign. Durham has alleged that he lied to conceal the fact that he was working for the Clinton campaign and tech executive Rodney Joffe (who is said to have been hoping for an important job in the anticipated Hillary Clinton administration) when Sussmann brought the Bureau telecommunications records that he contended showed that Donald Trump, then the GOP candidate, had established a communications back channel with Vladimir Putin.
Based on Sussmann’s presentation, the FBI did investigate the matter but found the claim — which involved servers at Alfa Bank (an important Russian financial institution) — to be unsubstantiated. When Sussmann brought an updated version of the data to the CIA in February 2017, the Agency concluded it was bogus and fabricated. (Durham has said he is still investigating and has not drawn a firm conclusion that the CIA is correct.)
The ruling excluding the Clinton tweets was made by Judge Christopher “Casey” Cooper, an Obama appointee (who, as I’ve recounted, worked in the President Bill Clinton Justice Department after clerking for Judge Abner Mikva shortly before Mikva left the bench to serve as President Clinton’s White House counsel). The ruling, in Washington, D.C., federal district court, has been reported on by the Washington Examiner’s Jerry Dunleavy.
With Sussmann’s trial scheduled to begin on May 16, the parties have been engaged in pretrial litigation — called motions in limine — to iron out what evidence will be admitted before the jury.
As I’ve explained, Durham’s theory is that Sussmann’s alleged false statement was made in the broader context of a “joint venture” — a big, fraudulent scheme to induce the government to investigate Donald Trump on suspicion of being a clandestine agent of the Kremlin. Durham alleges that this suspicion was essentially a political smear concocted by the Clinton campaign. The initiative of feeding it to the FBI and the media is said to have been engineered by Clinton campaign operatives, including Sussmann and another lawyer at his firm (Marc Elias), as well as opposition researchers at Fusion GPS and such Clinton enthusiasts as Joffe, who had privileged access to Internet communications data.
Durham contends that the jury needs to understand the big scheme in order to grasp why Sussmann lied to the FBI — viz., in order to conceal the connection of the Clinton campaign to the Trump-Putin back-channel allegation. Sussmann was a former Justice Department cybersecurity lawyer who, rather than going through normal channels to report a suspected crime to the FBI, texted the Bureau’s then-general counsel, James Baker. Having known Baker for years, Sussmann calculated that Baker would believe Sussmann was patriotically bringing the data for the sake of helping the FBI protect national security, not because Sussmann was working for clients who were running against Trump and paying him to bring the government anti-Trump opposition-research.
Durham thus hoped to prove at the trial that (a) Clinton operatives conjured up the Trump-Russia back-channel tale; (b) the Clinton lawyers, Fusion GPS researchers, and Joffe (assisted by other Internet researchers) curated the data and peddled it to the media; (c) Sussmann used his former government national-security official gravitas to hook the FBI into investigating; and (d) Hillary Clinton and her campaign then exploited the trumped-up seriousness of the allegations in messaging to the electorate as Election Day approached.
As Jerry Dunleavy’s report relates:
On Halloween 2016, Clinton tweeted, “Donald Trump has a secret server. . . . It was set up to communicate privately with a Putin-tied Russian bank.”
Clinton later tweeted, “Computer scientists have apparently uncovered a covert server linking the Trump Organization to a Russian-based bank.”
She also shared a lengthy statement by then-Clinton campaign adviser, and President Joe Biden’s current national security adviser, Jake Sullivan. “This could be the most direct link yet between Donald Trump and Moscow,” Sullivan claimed. “This secret hotline may be the key to unlocking the mystery of Trump’s ties to Russia.”
Sullivan added, “We can only assume that federal authorities will now explore this direct connection between Trump and Russia.”
These are the tweets that Judge Cooper has reportedly excluded from Sussmann’s trial. As Dunleavy elaborates:
On Wednesday, Judge Christopher Cooper, an Obama appointee, denied Durham’s efforts to bring the tweet up at trial, saying “the court will exclude that as hearsay” and that “it’s likely duplicative of other evidence” related to demonstrating the attorney-client relationship.
This ruling parrots what Sussmann’s counsel have been arguing in seeking to suppress the Clinton tweets.
To my mind, the hearsay argument is specious. As a technical legal matter, hearsay is not just any out-of-court (or “extrajudicial”) statement — e.g., “John told me that Jim robbed the bank.” It is an extrajudicial statement that is offered to prove the truth of the matter asserted. That is, the statement in my example is only hearsay if it is offered to prove that Jim robbed the bank. But if I’m the FBI, and John is on trial for falsely telling me that Jim robbed the bank, then the statement is the antithesis of hearsay — it is offered to prove that John was lying, not that Jim actually robbed the bank.
That is why Durham wanted to provide the Clinton tweets — not for the truth of the matter asserted but, to the contrary, because they are false. Moreover, they illustrate a common scheme of which Sussmann’s alleged false statement to the FBI was a critical part, which makes them relevant.
To the extent that Cooper is excluding the tweets as “duplicative of other evidence,” that indicates Durham is going to be given latitude to prove that Sussmann was representing the Clinton campaign (and Joffe) when he told the FBI he was not representing any client.
This goes to the problem I highlighted in the aforementioned column. If Durham had charged Sussmann (among other participants) with the big scheme — i.e., conspiracy to defraud the government — there would be no basis to exclude the Clinton tweets; they’d be important evidence of the overarching scheme.
Durham, however, has brought a more modest and narrow charge: a false statement to the FBI at a single meeting on September 19, 2016. This gives Judge Cooper immense discretion to bar Durham from turning the trial of this narrow charge into a trial of the uncharged big scheme — which, the defense claims, would become a prejudicial circus if Durham appears to be putting Hillary Clinton herself on trial.
As I pointed out at the close of the aforementioned column:
The line [Durham] is walking is to prove the big Clinton campaign scheme to smear Trump as a Putin puppet, not as a crime in and of itself, but as significant background evidence in proving that Sussmann made a false statement to the FBI. Durham’s argument in support of the admissibility of this background big-scheme evidence is legally sound. But with trial just three weeks away, whether Judge Cooper will allow the jury to hear all of it, some of it, or none of it is the huge question hovering over the case.
We are now getting some clarity on that huge question. Suffice it to say, Special Counsel John Durham is not going to like the answer.