Judge Cooper Rules for Durham on Key Issues, But Rules against His Conspiracy Theory

Judge Christopher Cooper has issued his ruling on the various motions in limine from the two sides in the Michael Sussmann case. As I understand it, his ruling means:

  • Durham can introduce otherwise admissible evidence of how the data was collected, but unless Sussmann makes affirmative claims about the accuracy of the data, Durham cannot introduce evidence that it was inaccurate
  • Because of his other rulings, Durham will likely be left introducing how the data was collected via testimony from one or both of the Georgia Tech researchers
  • But unless Durham proves that Sussmann knew about them, the emails between the researchers and Joffe are not relevant and would also be excluded under Cooper’s limits on discussions about the accuracy of the data
  • Unless Durham presents evidence that Sussmann knew the data was collected in objectionable manner, he also cannot introduce such evidence
  • Durham can submit Fusion emails “to demonstrate that Fusion GPS and the researchers shared the ultimate goal of disseminating the Alfa Bank allegations to the press” [note he does not include Sussmann in this statement]
  • In part because Durham has not charged Sussmann with a conspiracy and in part because there’s lots of evidence the collection of the data was not a conspiracy, Durham cannot treat that as a conspiracy to obtain a hearsay exception
  • Because Cooper has ruled against a conspiracy foundation, Rodney Joffe’s email stating that “the ‘VIPs’ were ‘looking for a true story that could be used as the basis for closer examination’ is not admissible
  • Joffe’s email to the Georgia Tech researchers “soliciting their views on the white paper he had been drafting with Mr. Sussmann” is admissible because it is not hearsay
  • Joffe’s email claiming he had been offered the top cybersecurity job is not admissible
  • Bill Priestap and Trisha Anderson’s notes are admissible but only if 1) Sussmann challenges James Baker’s credibility at trial  and 2) if Priestap and Anderson testify that the notes refresh their memory of being told Sussmann had said he was not representing a client, but 3) the notes themselves will not go in as evidence
  • Durham can introduce what he claims are two false statements Sussmann made to the CIA — that he was not representing a client and that the YotaPhone data he was sharing was not related to what he had brought in September — but he cannot present evidence about what the CIA said about the data
  • Durham does not have to immunize Joffe to make his testimony available (Cooper muses that, because he has excluded the allegedly improper means via which the data was collected, Joffe might be willing to testify, which I find to be credulous)
  • The existence of privileged communications can be introduced at trial, but via a means that eliminates multiple pages of redaction [note, Cooper reiterated this ruling after receiving documents for which he will review the privilege claims]

I’ll have to think through the implications of this (and a lot of it depends on Cooper’s ruling on the privilege claims).

Perhaps as important as those evidentiary rulings, though, is this characterization from Cooper about what this case is about.

This dispute is framed by the parties’ competing theories of how the data came to be. In brief, the government contends that the Alfa Bank data was gathered as part of a concerted effort to collect and disseminate derogatory opposition research about Donald Trump. Participants in this purported joint undertaking, according to the government, include the Clinton Campaign; the Campaign’s General Counsel and then-partner in the Perkins Coie law firm, Marc Elias; an investigative firm retained by Mr. Elias, Fusion GPS; the defendant; Mr. Joffe; and several computer researchers working at Mr. Joffe’s direction. The government has proffered the existence of at least some circumstantial evidence connecting Mr. Sussmann to certain aspects of the data gathering effort. See Gov’t Opp’n to Def.’s Mots. in Lim. at 17–18, ECF No. 70 (promising that testimony will establish that Mr. Sussmann was aware of the “corporate sources” of the data and assured Researcher-2 that the data had been lawfully collected); Indictment ¶¶ 20, 23 (alleging that beginning in mid-August, Mr. Sussmann, Mr. Joffe, and Mr. Elias met on two different occasions and, shortly thereafter, Mr. Joffe emailed the researchers about the data); id. ¶ 24 (describing billing entries indicating that Mr. Sussmann helped draft one of the white papers that was provided to the FBI). The government contends that Mr. Sussmann’s desire to conceal this joint venture—particularly the Clinton Campaign’s involvement—supplied a motive for him to misrepresent to Mr. Baker that he was not providing the data to the FBI on behalf of any client, when he was actually representing both Mr. Joffe and the Campaign.

The defense paints a different picture. As the Court gleans from various of the defense’s pleadings and arguments, its case will be that Mr. Joffe obtained and analyzed the relevant data independently of Mr. Sussmann and the Clinton Campaign; that Mr. Joffe enlisted the defendant, with whom he a preexisting attorney-client relationship, for legal advice on how to handle and disseminate the data to a wider audience; that Mr. Sussmann reasonably believed, based on the understanding of the data that he gained from Mr. Joffe, that it tended to support the existence of a communications link between Alfa Bank and Mr. Trump; that Mr. Sussmann and Mr. Joffe shared the view that bringing the potential communications channel to the FBI’s attention was important to protect national security, regardless of any political implications; and that Mr. Sussmann sought an audience with Mr. Baker for that purpose. The defense has acknowledged that Mr. Sussmann at least received the data in connection with his legal representation of Mr. Joffe, see Mot. Hr’g Tr. at 38:6–18, but (as the Court understands) denies that he had an attorney-client relationship with the Clinton Campaign that covered activities related to the Alfa Bank data.

The jury is entitled to hear both these narratives.

This framework is important for several reasons. First, I think Cooper has a misunderstanding of how the two technical white papers were written, based off Durham’s projection of billing records onto actual drafting. If I’m right that that’s a misunderstanding, it will be a significant issue at trial.

There are a few other details that Cooper may not have entirely correct. But Cooper views these two competing stories to be Durham’s political malice story versus Sussmann’s national security threat story.

And if that’s how he understands it, he will be far more likely to allow a bunch of exhibits that Sussmann wants in that Durham wants excluded. Some of it would be necessary anyway — as I keep saying, Trump’s request of Russia to hack Hillary some more, plus the likelihood Sussmann knew in real time that the request was immediately followed by a renewed wave of attacks, is central to Sussmann’s state of mind when he met with Baker, and Cooper is treating this as a trial about Sussmann’s state of mind. But for Sussmann to convey why the Alfa Bank anomaly raised real national security concerns, he will need to explain the background of Trump’s false claims about Russia.

But the most important thing Cooper said, in the context of ruling against letting Durham treat all this as a conspiracy, is this:

Because no conspiracy is charged in the indictment, this undertaking would essentially amount to a second trial on a non-crime conducted largely for the purpose of admitting “other acts” evidence of Mr. Sussmann’s motive rather than his commission of the singular and narrow crime with which he has been charged.

This sort of particularized evidentiary analysis is especially unwarranted given that the Court has already ruled on the admissibility of many of the emails on other grounds.

This is the point I made in this post — one that several frother lawyers claimed suggested I didn’t understand these evidentiary issues. These evidentiary decisions are not made based on whether frothy Durham fans want the evidence in, but based on a set of interlocking evidentiary rules. Cooper has, overly optimistically, I think, set up a framework (primarily by excluding discussion about the accuracy of the information) that he thinks will guide all these decisions. But even within that framework, the rules of evidence will still apply.

And that will leave significant parts of Durham’s conspiracy theory out of the trial.

36 replies
  1. Dmbeaster says:

    These seems to hurt Durham a lot. The limited scope of the case per this ruling makes the case about why Sussman brought the info to the FBI, and how it was developed by Joffe. It makes his state of mind everything. “Here is potentially alarming technical info that merits a look” is the simple story. That is consistent with not acting for a client even if a jury believes that part of Durham’s story. It suggests that the defense will have him testify. It means he cannot be undercut by some claim of a conspiracy to plant false info with the FBI. It makes the simultaneous effort to kill the NY Times story so that the FBI can do its thing much more important.

    “Not there for a client” (or whatever the alleged lie was – this is weirdly vague still) has different implications, but the desire to give the FBI the first look before any publicity is clearly consistent even if the data came from the client. The defense has a lot of ways to go on this, and Durham’s conspiracy theory will go largely unsupported.

    Who is going to testify that the FBI was materially influenced by Sussman allegedly not representing anyone? My understanding is that Baker just received the info and passed it on to the FBI experts. He had zero role in assessing it, or deciding what to do with it except to give it to the proper experts. I imagine he would testify that he passes it on without regard to what Sussman said about clients. In passing it on, is there any evidence that he also passed on the representation that it was brought in without acting for a client? Put another way, how was the FBI effort to examine the DNS data affected in any way by the alleged Sussman lie? Would Baker have done nothing and just tossed it if Sussman was there for a client? If he passes it on without comment to the experts, no one at the FBI is affected by the alleged lie. They do their examination the same without regard to anything Sussman said – someone has to say that the effort was materially different because of the alleged lie. And Baker knows Sussman’s role with the campaign.

    This case has depended so much on right wing fantasy that will not be part of the trial.

  2. Scott Johnson says:

    Part of the problem for alleging a conspiracy is that for a conspiracy to be charge, my understanding is that i.e. the goal of the conspirators has to be illegal, or at minimum they have to agree to accomplish a legal means through illegal acts. The problem for the conspiracy theory is that the raison d’etre of the joint venture, as summarized by Judge Cooper–“In brief, the government contends that the Alfa Bank data was gathered as part of a concerted effort to collect and disseminate derogatory opposition research about Donald Trump”–is not illegal! Opposing the campaign a political candidate is not illegal; indeed the Clinton Campaign existed to do just that (support Hillary and deny Trump), and the Trump campaign likewise was seeking to deny Clinton the election. Nor is “collecting and disseminating derogatory opposition research” remotely illegal; this has been part and parcel of politics for a very long time, and the GOP and its partners routinely engages in far worse ratfucking than anything Durham has suggested that anyone involved in this “joint venture” has done. None of the principals in the alleged joint venture is a public or government official with any duty of neutrality. Perhaps Durham alleging that Joffe, Fusion, Elias, Sussman, and the rest were all conspiring to lie to the FBI, but that would seem an extremely poor basis to rope everyone into a conspiracy, even if they had Sussman dead to lights on the lying charge.

    • emptywheel says:

      Right: And Fusion has noted that they had no clue Sussmann was going to the FBI, so they couldn’t be in on that conspiracy.

      Going forward Durham will try to hang his conspiracy conspiracy on two things. First, he believes (in part mistakenly) that data purchased for a DARPA contract was used to do the YotaPhone analysis. His representations of the data have been egregiously false. But just as importantly, the YotaPhone analysis is stuff that DARPA independently believed had value. It just so happened that someone close to Trump fit the indicator that DARPA was testing as one of compromise.

      He’ll also attempt to hang his conspiracy theory on a claim that the Dems and Fusion attempted to cover this up, at least through 2018. If he succeeds at bringing Danchenko to trial, he might have more success there (though I think he faces evidentiary problems with Danchenko).

    • Troutwaxer says:

      Exactly this! The only place proving Trump was getting orders from Russia is illegal is in Durham’s alleged mind!

  3. skua says:

    “… a misunderstanding of how the two technical white papers were written ..”
    Would be nice if one of Cooper’s people was to read the above and research further.

    • emptywheel says:

      If I’m right it’ll easily come in at trial. Cooper has expressed doubts about it before and I have reason to believe he’s wrong.

      • Dmbeaster says:

        How significant are the white papers? It seems that the rulings greatly minimize the technical details that were transmitted, which is both the data and the interpretations. All that matters is that it was credible. I do not see Sussman expanding this issue, and Durham is barred from raising this issue unless Sussman makes it relevant. Sussman can just say that he got it from credible experts and believed it credible, but did not independently vet it as I doubt he has expertise (knowledgeable, yes, but not an expert).

        • emptywheel says:

          I think the third one, that Fusion did, may be important.

          Basically, they go to who knew what. Fusion knew of the researchers but viewed their work as separate. Somehow, Fusion did an Alfa Bank white paper (which is entirely reasonable, as most of their pure research was) that Sussmann also shared with the FBI.

  4. Robert says:

    Seems reasonable enough. Given previous reporting on a filing by Durham (part of the characterization of which he had to walk back ) Durham was bound to lose a few motions

    [Welcome to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Robert” or “Bob.” Thanks. /~Rayne]

  5. Allan Garten says:

    Having tried numerous complex fraud cases as a white collar AUSA for 20 years, I am hard pressed to see how a jury will be able to understand these complex competing theories. Moreover, I can’t see how a jury will overcome a reasonable doubt bar unless there is one demonstrable big lie that they can hang their hat on to conform all other facts under a confirmation bias mode.

    • bmaz says:

      Lol, I’ve tried a few things too, and it is my experience that juries tend to be a lot more dedicated and better at their jobs than the public commonly thinks. They can handle it just fine, and this case is not all that complex. Any other career history you want to disclose, or are you flubbing with Allan versus Alan (which I am very sure you are)?

      • Dmbeaster says:

        Agree. Tried a 3 month five part securities fraud case to a jury. They figured it out. Attorneys have to know how to tell the story, but if they do, juries get it.

      • Traveller says:

        I have not tried numerous complex fraud cases, but I tend to agree with Mr Garten, (whose points seem good even if he himself were somehow a fraud….though I go out of my way to note that I am not presuming he is).

        Be that as it may, I will be most curious how the trial unfolds….I do presume that both sets of lawyers will be under extreme pressure to manage all of the (floating?) variables always ever present in a trial. Still, even giving a pinch of advantage to the Government as Juries tend to do, I don’t know how they make this case…especially if Mr. Sussman takes the stand in his own behalf….if the trial is going well for him, (an assessment rife with possible attorney error…in estimating this or that, not malpractice, just error of judgement), he will not take the stand.

        If, on the other hand if it a coin toss, or going poorly for Mr Sussman he will take the stand and boldly and forcefully, (I hope), stake out what his state of mind was and what were his motivations bringing him to the FBI.

        I don’t see where Durham has anything to counter such a move…(there will of course be insane amounts of witness preparation on Mr. Sussman).

        And then, Reasonable Doubt controls. (I think). Best wishes, Traveller

        PS Edit, Attorney error looms heavily in my mind…again, not malpractice at all, but rather opening doors best left closed, asking questions you don’t already know the answer to…or not successfully countering surprise impeachment testimony

      • David says:

        Though I never worked in litigation, I have a law degree and have great difficulty figuring out WTF this case is all about. I still can’t figure out how Sussman statement he wasn’t acting on behalf of a client could be a material falsehood. And if the credibility of the Alfa Bank suspicions is not being litigated, why is it even relevant? How would it even help the Clinton Campaign to send the FBI on a nonpublic wild goose chase, if that’s what Sussman was allegedly trying to accomplish?

        I find it much easier to focus when I read, as opposed to listening to lawyers talk for hours. I suspect jurors, like commentators, will get caught up in distractions rather than the simple false statement claim that’s the crux of this case.

        [Welcome to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “David” or “Dave.” Thanks. /~Rayne]

    • Leoghann says:

      There are a good many lay people who read this blog, and I believe most of us understand the competing claims just fine. When it comes down to it, they really aren’t that complicated.

  6. Desider says:

    You note “only if 1) Sussmann challenges James Baker’s credibility at trial” while elsewhere you note Baker was all over the place. To bring up the latter in court, is that “challenging credibility” or just noting Baker wasn’t really worried about this so his answers & memory reflected that apathy, unlike Durham’s obsession & nit/cherrypicking?

    • emptywheel says:

      I think this issue may flip. Sussmann may get Baker to confirm that within short order he knew Sussmann had a client. Durham will say, but you didn’t tell us that in the grand jury. And Sussmann will point to the March 6, 2017 meeting at which Baker seems to have stated as much.

      Sussmann has basically been collecting evidence since the indictment that Baker knew he had a client, meaning the representation of it will be about his misunderstanding of what that meant.

      And THEN Sussmann can go back to the Priestap/Anderson notes and note that they don’t understand who said what.

      • Scott Johnson says:

        If Baker were to offer testimony in the trial that is materially (heh) different than whatever he told the grand jury… odds Durham indicts Baker for perjury, or threatens to?

        Durham seems rather eager to threaten the defendant’s potential witnesses.

      • EdwardB says:

        I seem to recall that Priestap has already testified under oath that he didn’t recall writing the notes, and that he did not recall speaking to Baker. If his testimony at trial contradicts his prior testimony (and for the contents of the notes to be admissible, according to the ruling, he would have to change his testimony) wouldn’t the jury hear about his prior testimony? That wouldn’t be great for his credibility.

  7. Zinsky says:

    Seems like Judge Cooper is doing a lot of needle-threading. This will be an interesting trial. I probably am biased but Sussman’s story is far more compelling than Durham’s. Thanks for the update!

  8. Zirc says:

    I read all of this commentary, and it sounds overly complicated to me. Durham seems to have two goals, the first being to rile up the right with the notion that there was a vast, left-wing conspiracy against Trump, the second being to have a legal case he can pursue in support of goal number one. That case seems to be that Sussman lied to the FBI. I suppose part of the case against Sussman will involve motive and that might point to the “conspiracy.” But there are all kinds of reasons for a reasonable person who, yes, works for a campaign to want to report information he has that may point to an adversarial country working to harm the US: “My name is X. I work for Y. I come to you, the FBI, as an ordinary citizen (and not as an employee or representative of anyone else) because I have received information that may concern you.” Durham has to prove that simple proposition is false. That seems like a tall order to me.


  9. tbob says:

    I read Emptywheel several times daily, but very rarely post so will keep it short. The last full paragraph mentions “…frother attorneys…”. Is that a typo or a recognized category of members of the legal profession?

    • emptywheel says:

      I use the term “frothy” to refer to a bunch of Durham fans who take his claims as proof of something far more. When I started pointing out these evidentiary issues weeks ago, several of the lawyers who COULD temper the froth by explaining the rules of evidence instead suggested I got it wrong.

      This kind of ruling is the kind of thing I was talking about.

    • Dopey-o says:

      Is “Frother Attorneys” derived from “Santorum”?
      If it is, I don’t want to know…

  10. Kalkaino says:

    Two things: I have not tried any cases so perhaps that’s why I am so bewildered and vexed that this is still going on at all. Almost every day some TV lawyer explains how a prosecutor will not bring a case unless she or he feels that it can be ‘proven beyond a reasonable doubt’ to a jury, and that is why the Trumpists, including of course, the eponymous Dondald, are not all on trial right now, despite the fact that the whole world is eyewitness or earwitness to the crimes they committed in broad daylight, on video tape or recorded calls, with signed checks to porn stars et cetera. And yet, if I recall correctly, here we have a case where the one witness to the alleged lie first told Congress, under oath that there was no lie, and then much later, much after the fact, probably under considerable pressure, claimed to recall the telling of a lie. I understand well that a conviction is not the prosecutor’s primary goal here, but in what universe does that fundamental and crucial evidence take anyone beyond a shadow of a doubt? And yet, even given that astronomical improbability, Cooper entertains this toxically partisan farce ad nauseam when he clearly should dismiss. Does he just like the spotlight? Is he too a Brownshirt or what? It reminds me of Mencken’s quip: “[The] Law requires only an armament of hollow phrases and stereotyped formulae, and a mental habit which puts these phantasms above sense, truth, and justice….”

    Thing the second: If I remember correctly, the jury is still out (so to speak), at least in the eyes of the actual cyber-sleuths, on the involvement of the Trumpists with Alfa bank. But not according to Politico, which, as of yesterday at least, takes as gospel that absence of evidence is evidence of absence:

    “… they were part of a coordinated effort to level since-discredited allegations that candidate Donald Trump or his allies maintained a data link from Trump Tower to Russia’s Alfa Bank.


    So, do I remember incorrectly, or is Politico just taking the Trumpist line?

    • emptywheel says:

      I think they went further than the evidence suggests.

      Most of the experts involved, and I have spoken to a bunch of them, believe the anomaly is real and some kind of covert communication is the best explanation.

      • Cate says:

        Did Cooper ever rule on Durham’s sleazy intentions to voire dire potential jurors, & ask them how familiar they were with the (and stating as fact) Clinton Campaigns desire to hurt the Trump camp by inventing the Russia narrative —-(or something like that)?

    • Ginevra diBenci says:

      Politico has veered wildly lately between excellent reporting and mindless drivel. In other words, they seem to be following in the paths of big time players NYT and the Post.

      When you come across an assertion like “since-discredited,” above, it’s a good idea to triangulate with other sources. Or (my choice) come here.

      • gmoke says:

        As the indispensable Charlie Pierce implies sometimes Politico is Politico and sometimes it devolves into Tiger Beat on the Potomac.

        But then I increasingly believe electoral politics and legislation is a growing branch of the military-industrial-entertainment complex engineered for “amusing ourselves to death” (hello, climate!) as Neil Postman wrote now long ago.

        • Leoghann says:

          Since Axel Springer bought Politico last August, I’ve noticed fewer pieces with an obviously (unprofessional) progressive slant, but little turn toward both-sidesism.

          I hope this is not a harbinger. But I suspect it’s just an example of lazy journalism.

    • Silly but True says:

      Yes. Different criminal statutes have different statutes of limitation. Durham implicates Joffe in possible Federal contract criminal fraud, which has longer than 5 years. Also, conspiracy could be in play if Durham would ever get around to putting any crime to innuendo.

  11. Thomas says:

    It is not a “criminal conspiracy” to discover TRUE and negative information about a political opponent and disseminate it during a campaign.

    It is also not a criminal conspiracy to present TRUE information to the FBI that, if verified, is evidence of a counterintelligence threat to the United States.

    Durham (and Trump, and Republicans generally) seem to believe that ALL opposition research is false and politically motivated.

    I submit that they believe that because that is what they have to offer for their own opposition research: fraud, lies, slander, etc.
    AND, if they do it then it is perfectly legal, according to them, even if they commit crimes in the course of trying to “make falsehoods true.”

    Republicans aren’t fit for any kind of position of authority. They are abusive, duplicitous, backstabbing liars, frauds and hypocrites. It’s their CULTURE to act this way and to pretend they are wrapped in the flag and blessed by Jesus while they are doing it.
    Not only do they act this way individually and as a group, but as policy makers, they consistently enable criminal and violent behavior and pretend that they are advocating capitalism and civil rights.
    This November we are at the beginning of a decade of removing these unfit criminal traitors from elected offices, appointed offices, and any other position of authority that they can abuse.
    In time, the Republican Party will change from the grotesque monster it has become and inevitably the party in power will become corrupt and deserving of electoral check. I’m good with that process coming about 40 years from now.

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