At his criminal trial next month, Democratic lawyer Michael Sussmann will not contend that data he proffered to government agencies, supposedly showing a covert communications back channel between Donald Trump and the Kremlin, were accurate. Based on that concession, the presiding federal judge, Christopher “Casey” Cooper, has ruled that prosecutors will be held to their responsive commitment not to present extensive evidence that the data were inaccurate.
Judge Cooper issued the ruling in a six-page opinion on Monday. It is the first of what is likely to be a series of pretrial rulings on the admissibility of evidence at the trial, which is set to commence with jury selection in Washington, D.C., on May 16.
As we have been explaining (see here, here, here, here, and in the discussion Rich and I had on The McCarthy Report podcast), Sussmann and prosecutors from Special Counsel John Durham’s staff have filed substantial motions in limine. These are requests that the court permit disputed evidence to be presented to the jury, or to bar the opposition party from presenting disputed evidence. Often, pretrial motions in limine help narrow disputes and thus enable the parties to prepare their cases with an idea of what the court will allow. They also avoid wasting the jury’s time during trial — jurors would otherwise be kept waiting outside the courtroom for hours at a stretch while the parties argue about issues that should already have been resolved.
This week, Judge Cooper is convening pretrial hearings at which the parties will orally argue the claims made in their written submissions. There could also be testimony to the extent it may be necessary to assist the court in resolving disputes.
Last year, Durham obtained a grand-jury indictment charging Sussmann with a single count of making a false statement to the FBI. In a September 19, 2016, meeting with the bureau’s then-general counsel James Baker — and, Durham recently disclosed, in a text message to Baker the night before the meeting — Sussmann allegedly represented that he was not seeking a meeting with the FBI on behalf of any client but rather because he wanted to help the bureau on a sensitive matter. Sussmann, who was then a partner at the Perkins Coie law firm, is a former Justice Department cybersecurity lawyer who knew Baker from their prior years as government attorneys working in the national-security realm.
Durham alleges that, contrary to his assertions, Sussmann was actually representing the Clinton campaign and tech executive Rodney Joffe. At the meeting, Sussmann presented Baker with packages of data and analysis that purported to show that Trump, then the Republican presidential nominee, had established a communications back channel with the Kremlin, through servers at Alfa Bank (an important Russian financial institution) and a server at Trump Tower. Joffe, a Hillary Clinton supporter who expected to get a top government cybersecurity job if Clinton had been elected, was primarily responsible for compiling the communications records, and had consulted extensively with Sussmann and the Clinton campaign on them.
On February 17, 2021, over three weeks after Trump was inaugurated as president, Sussmann brought updated versions of the data and analysis to the CIA — including a claim that, in December 2016 (i.e., during the transition of administrations), White House records (to which Joffe had privileged access) reflected the use of Russian-made mobile devices (YotaPhones) that were supposedly tied to Trump. Durham reports that the CIA concluded the evidence proffered by Sussmann was not “technically plausible,” did not “withstand technical scrutiny,” “contained gaps,” “conflicted with [itself],” and was “user created and not machine/tool generated.”
The integrity of the data and whether it was transmitted to the government in good faith are thus potentially significant issues in the trial. If Sussmann were to claim that the records could actually show sinister Trump–Russia collusion, Durham’s prosecutors would want to counter that they were bogus and potentially fraudulent. This would be damaging to Sussmann’s claim that he did not have criminal intent. While it obviously hurts Sussmann if the record shows the FBI evaluated his evidence and found it unsubstantiated, that is better for him on net than if Durham were to prove that the evidence was blatantly spurious and that someone of Sussmann’s expertise would clearly have known that.
A major issue in the case is materiality. Federal law requires the government to prove beyond a reasonable doubt that an alleged false statement was material — i.e., that it caused the government to handle its investigation differently than it would have if the defendant had been truthful. In his ruling, Judge Cooper said prosecutors would be permitted to prove the FBI’s “ultimate conclusion” that Sussmann’s “allegations were unsubstantiated,” as well as the “particular investigative and analytical steps” by which the bureau reached that conclusion. Cooper sensibly reasons that “how that investigation proceeded and the conclusions it reached” are relevant on the materiality issue.
On the other hand, Cooper is barring prosecutors from calling witnesses from the private companies that maintained the servers to testify about their participation in the FBI investigation. He reasons that such testimony would be duplicative of the FBI testimony, and thus of scant probative value.
It is important to observe that a court’s in limine directives often function more as guideposts than as definitive rulings. Trials rarely play out exactly as the parties predict that they will (largely because neither side has perfect knowledge of what the other will do). Cooper thus stressed that his rulings are contingent. For example, he noted that if Sussmann changes his position on the validity of the data, prosecutors would be given more latitude to establish its invalidity.
Sussmann is expected to contend that he relied on Joffe to ensure that the data were reliable (rather than doing his own searching investigation), and that he had no motive to conceal the identities of his clients. Judge Cooper anticipated that if Sussmann sticks to those positions, and the evidence supports them, the government probably would not be permitted to delve deeper into the flaws in the data.
On the other hand, Cooper pointed out that if the government independently proves that Sussmann knew the data were suspect, that could “open the door” to allow prosecutors to illustrate the data’s patent defects, as these would be relevant to his motive in concealing the identity of his clients and to the issue of criminal intent.
We’ll continue to keep an eye on this week’s pretrial hearings and watch for additional rulings.