Judge Gives Ample Leeway to Prove Sussmann Lied to FBI but Limits Durham’s ‘Joint Venture’ Evidence

‘M r. Sussmann is not charged with a conspiracy.” With that simple assertion of the obvious, Judge Christopher Cooper explained why he is limiting Special Counsel John Durham’s evidence that Michael Sussmann was complicit in a conspiracy to defraud the government — i.e., a scheme to entice the FBI, based on suspect data compiled by Hillary Clinton’s 2016 campaign, into investigating an alleged communications back channel between the Kremlin and then–Republican nominee Donald Trump.

Notice, I said limiting. Judge Cooper is not cutting Durham off at the knees. If the court is true to its word, Durham is going to be given plenty of latitude to prove his case.

His case, however, is narrow. Prosecutors have charged Democratic lawyer Sussmann only with making a false statement to the FBI in September 2016. Specifically, Sussmann assured the FBI’s then-general counsel, James Baker, that he was not representing any client when he brought the Bureau purported evidence of the Trump–Russia communications channel. In reality, Durham alleges, Sussmann was working for the Clinton campaign and Rodney Joffe, the Neustar executive who led a group of Internet researchers in the compilation of the data.

As explained in the 24-page opinion he issued last Friday, Cooper is going to permit prosecutors to establish some aspects of what Durham has described as the “joint venture,” and what I’ve called the “big scheme” to defraud the government — the factual framework in which the alleged false statement occurred. The court, however, is curtailing Durham.

Because the special counsel has not charged Sussmann (or anyone else) with conspiracy, he will not be allowed to prove the joint venture’s full scope and membership. He will be confined to only those parts of the enterprise in which Sussmann was a direct participant, and only to show (a) that Sussmann’s role in the compilation and transmission to the FBI of the data indicates he was in fact working for the Clinton campaign and Joffe, and (b) Sussmann’s motive to lie to the FBI, which, prosecutors will argue, was to conceal that electoral politics, not national-security concerns, drove Sussmann to act — i.e., Sussmann feared that if he were honest about his purpose, the FBI would not have been interested in pursuing an investigation of Trump.

Sussmann’s trial on that single false-statement charge is set to begin next Monday. If you have been following our coverage of the parties’ pretrial motions (see here, here, here, and here), you will not be surprised by Cooper’s rulings.

The dilemma for the court is that, while Durham’s “joint venture” evidence is clearly relevant in the broad sense that it relates to why Sussmann approached the FBI, (1) Durham did not indict the joint venture as a crime, and (2) the joint venture is more serious and extensive misconduct than the false-statements charge Durham did indict. In one of the aforementioned columns, I described the problem this way:

There comes a point in criminal trials where judges grow concerned about the tail wagging the dog. That is, they worry that the gravity of the misconduct suggested by uncharged background evidence may inflame the jurors, unfairly prejudicing their consideration of the crime that is actually charged in the indictment.

For that reason, Cooper had already barred Durham from offering extensive proof that the data Sussmann gave the FBI was patently inaccurate. He has also suppressed evidence of election-eve tweets by Hillary Clinton and Jake Sullivan (then a key campaign adviser) touting a Trump–Russia communications channel uncovered by Internet researchers that the campaign expected law enforcement to scrutinize.

Clearly, this evidence would be highly probative if Durham had charged a fraudulent, Clinton-campaign-driven conspiracy to concoct a misleading Trump–Russia narrative and induce the government to investigate it so that the Clinton campaign could then tell the public the suspicions against Trump were so serious that the FBI was looking into them. But Durham hasn’t done that. The judge thus reasons that the evidence is, at best, only marginally relevant, given that the crime charged is whether Sussmann was working for the Clinton campaign when he told the FBI he was not.

Cooper elaborates that this is especially so if the evidence he has precluded duplicates other evidence that he will permit — evidence that is more directly relevant to the false statement. Included in this category is testimony about Perkins-Coie law firm records, which show that Sussmann was billing his time to the Clinton campaign and was meeting about the data with both Joffe and Marc Elias, the top lawyer for the Clinton campaign (and, at the time, Sussmann’s Perkins-Coie partner). In addition, Cooper will permit prosecutors to call as witnesses at least two of the Internet researchers; they are expected to recount what Joffe tasked them to do, as well as the extent to which they knew that the project was for the benefit of the Clinton campaign.

The same split-the-baby approach is seen in the court’s treatment of Joffe. His situation is complicated. While Durham portrays him as the central actor in the scheme, he has not charged Joffe with a crime. Yet Durham also says that Joffe remains the subject of an active criminal investigation. That is curious: Joffe’s known relevant activities occurred between mid 2016 and early 2017, so the five-year statute of limitations on them would seem to have lapsed. Plus, Durham says he is still getting to the bottom of whether the data’s portrayal of a corrupt Trump–Russia relationship was not just weak but fraudulent, even though the CIA long ago concluded (after receiving the material from Sussmann) that it was not “technically plausible,” did not “withstand technical scrutiny,” “contained gaps,” “conflicted with [itself],” and was “user created and not machine/tool generated.”

Sussmann’s defense thus argued that Durham must already have decided not to charge Joffe and was disingenuously claiming otherwise to discourage Joffe from testifying on Sussmann’s behalf. Yet Cooper rejected Sussmann’s request that Durham give Joffe immunity so he could testify without fear of self-incrimination. The judge concluded that there was no reason to believe Durham was acting in bad faith — neither pretextually describing Joffe as an investigative subject, nor otherwise trying to intimidate Joffe into refusing to testify.

Moreover, with respect to Joffe specifically, Cooper ruled that prosecutors will not be permitted to allege that Joffe’s collection of the data was illegal or “objectionable” (i.e., that Joffe improperly exploited privileged access to the data). On the other hand, Durham will be allowed to offer extensive evidence of Joffe’s activities and relationship with Sussmann. Again, Cooper appears poised to permit Durham to prove his case . . . but only the false-statement case he has actually charged, not the fraud case he has not charged.

There is disappointment here for those who have been closely following Durham’s investigation in hopes that he would hold accountable the Clinton campaign and others complicit in concocting and promoting the bogus Trump–Russia collusion narrative. Judge Cooper’s job, however, is not to help the special counsel complete his investigation or file his final report.

Cooper’s job is to give both Sussmann and the government a fair trial. That obliges the court to ensure that Sussmann is tried only on the crime for which he has formally been charged, not a different one. But Cooper must also to permit prosecutors to show the jury relevant evidence of Sussmann’s guilt — the things he did, the people with whom he collaborated, and his motive in allegedly concealing the nature of that collaboration from the FBI. Cooper must strike this balance knowing that the case is being closely watched and that public commentary — mine included — has noted his history as an Obama appointee with ties to Clinton world.

So far, Cooper has been fair and reasonable.

As is always the case in any complicated criminal trial, reasonable minds can differ on the court’s judgment calls. I was not persuaded by Cooper’s conclusion that the Clinton campaign tweets are inadmissible hearsay; still, I had to concede that he might be right about their being “duplicative” of other evidence Cooper plans to allow, which would show the Sussmann–Clinton campaign connection that Durham needs to establish. In addition, Cooper has described the “joint venture” as if it were vaguer, and Sussmann’s role in it more “murky,” than I believe is the case; but again, the main issue there is that the special counsel has not filed a formal conspiracy indictment spelling out his joint-venture allegations. That has left Cooper not only needing to navigate the confines of an uncharged scheme but weighing proof that relates only indirectly to Sussmann.

We will have to see how the trial plays out starting next week. As the judge stressed, his preliminary rulings are contingent: If Sussmann aggressively challenges the prosecution’s theories, prosecutors will be given additional leeway to back them up. For now, it appears that, while Special Counsel Durham is not going to be able to lay all his cards on the table — as if this were a comprehensive final report, rather than a much narrower criminal trial — he will be given ample opportunity to prove that Sussmann was lying when he told the FBI he was not representing a client. That is what the case is about.