“and” / “or” : How Judge Cooper Rewrote the Michael Sussmann Indictment

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I’ve been tracking a dispute about the jury instructions in the Michael Sussmann trial, but only got time to check the outcome last night. At issue was whether some of the extraneous language from the indictment would be included in the description of the charge.

Here’s the language the grand jury approved in the indictment.

O]n or about September 19, 2016, the defendant stated to the General Counsel of the FBI that he was not acting on behalf of any client in conveying particular allegations concerning a Presidential candidate, when in truth, and in fact, and as the defendant knew well, he was acting on behalf of specific clients, namely, Tech Executive-1 and the Clinton Campaign. [my emphasis]

Sussmann had wanted the instructions to include that language claiming Sussmann was lying to hide two clients.

Mr. Sussmann proposes modifying the last sentence as follows, as indicated by underlining: Specifically, the Indictment alleges that, on or about September 19, 2016, Mr. Sussmann, did willfully and knowingly make a materially false, fictitious, and fraudulent statement or representation in a matter before the FBI, in violation of 18 U.S.C. § 1001(a)(2), namely, that Mr. Sussmann stated to the General Counsel of the FBI that he was not acting on behalf of any client in conveying particular allegations concerning Donald Trump, when, in fact, he was acting on behalf of specific clients, namely, Rodney Joffe and the Clinton Campaign.5 The government objects to the defense’s proposed modification since it will lead to confusion regarding charging in the conjunctive but only needing to prove in the disjunctive.

When Judge Cooper instructed the jury, however, he rewrote the indictment approved by the grand jury to reflect that maybe Sussmann was just hiding one client.

Specifically, the Indictment alleges that in a meeting on September 19, 2016, Mr. Sussmann did willfully and knowingly make a materially false, fictitious, and fraudulent statement or representation in a matter before the FBI in violation of 18 USC 1001(a)(2); namely, that Mr. Sussmann stated to the General Counsel of the FBI that he was not acting on behalf of any client in conveying particular allegations concerning Alfa-Bank and Donald Trump, when, in fact, he was acting on behalf of specific clients, namely Rodney Joffe or the Clinton Campaign. [my emphasis]

Now, perhaps there was some discussion I missed finding that the government only had to prove Sussmann was hiding one client — the disjunctive proof business, above. And perhaps it will not matter — I think Sussmann’s team raised plenty of issues with Jim Baker’s credibility such that the jury will find the whole prosecution preposterous, but I also think Durham’s team may have thrown enough cow manure at the jury to stifle rational thought.

But this slight change — unilaterally replacing “and” with “or” — seems to intervene to help Durham recover from one of the most abusive aspects of the prosecution, his failure to take basic investigative steps before charging Sussmann.

As I’ve repeatedly shown, Durham did nothing to test Michael Sussmann’s sworn explanation for his meeting with Jim Baker — that he wanted to give the FBI an opportunity to intervene before a shitshow story happened during election season — before charging. He spent months and months after the indictment scrambling to find the documentation for the efforts the FBI made to kill the NYT story (and ultimately only found part of that documentation), evidence he should have consulted in advance.

Durham also never subpoenaed Jim Baker for related materials before charging this.

Those two facts are how it was possible that Baker only discovered the September 18, 2016 text in which Sussmann explained he was trying to help the FBI on March 4, 2022, almost six months after the indictment (though Andrew DeFilippis misrepresented this at trial).

We also know from Sussmann’s discovery requests that Durham did little to explore Rodney Joffe’s relationship with the FBI before charging. While Durham knew that Joffe had been an informant — and had forced FBI to remove him as such, allegedly as retaliation because Joffe wouldn’t cooperate with Durham’s investigation — it’s not clear whether Durham had found two instances where Joffe had offered up more information about the Alfa Bank allegations to an FBI agent (not his handler) who knew his identity and could easily have shared it with investigators.

In other words, even if you think Sussmann was attempting to hide the Hillary campaign’s role in the underlying allegations (which is different from hiding the campaign’s role in the meeting with the FBI, though Durham’s team surely hopes the jury misses the distinction), the trial actually presented a fair amount of evidence that Sussmann wasn’t hiding Joffe’s role. The FBI knew of Joffe’s role within days of Sussmann’s meeting.

For months, Durham has been spinning a wild conspiracy theory claiming Joffe had direct ties to the Hillary campaign that he simply didn’t have. That is the conspiracy theory he laid out in the indictment. That is the conspiracy theory he should be held to.

But Cooper rewrote that part of the indictment such that Durham is not being held to his own conspiracy theories when it matters.


Scene-Setter for the Sussmann Trial, Part One: The Elements of the Offense

Scene-Setter for the Sussmann Trial, Part Two: The Witnesses

The Founding Fantasy of Durham’s Prosecution of Michael Sussmann: Hillary’s Successful October Surprise

With a Much-Anticipated Fusion GPS Witness, Andrew DeFilippis Bangs the Table

John Durham’s Lies with Metadata

emptywheel’s Continuing Obsession with Sticky Notes, Michael Sussmann Trial Edition

Brittain Shaw’s Privileged Attempt to Misrepresent Eric Lichtblau’s Privilege

The Methodology of Andrew DeFilippis’ Elaborate Plot to Break Judge Cooper’s Rules

Jim Baker’s Tweet and the Recidivist Foreign Influence Cheater

That Clinton Tweet Could Lead To a Mistrial (or Reversal on Appeal)

John Durham Is Prosecuting Michael Sussmann for Sharing a Tip on Now-Sanctioned Alfa Bank

Apprehension and Dread with Bates Stamps: The Case of Jim Baker’s Missing Jencks Production

Technical Exhibits, Michael Sussmann Trial

Jim Baker’s “Doctored” Memory Forgot the Meeting He Had Immediately After His Michael Sussmann Meeting

The FBI Believed Michael Sussmann Was Working for the DNC … Until Andrew DeFilippis Coached Them to Believe Otherwise

The Visibility of FBI’s Close Hold: John Durham Will Blame Michael Sussmann that FBI Told Alfa Bank They Were Investigating

The Staples Receipt and FBI’s Description of Michael Sussmann Sharing a Tip from Hillary


42 replies
  1. greenbird says:

    page 2957, line 11, transcript Day 9 May 26 morning session.
    page 27, indictment, 2021 09 16.
    i never noticed.

    • bmaz says:

      That is complete bullshit. Cooper may have been too permissive in one trial you are focused on, but that you “ask” said question is asinine and ludicrous.

      I’d like to remind people that this is a forum for intelligent discussion, but not one for internet gross ranting.

      • Jared Shoemaker Jr says:

        Well given what this trial is being used for i’d honestly say that’s not an illegitimate question to ask. He seems to have bent over backwards to set the table to convict a man of a crime and conspiracy that is at best a joke. Now I freely admit I’m not a lawyer so I would ask indulgence if I’m being overly simplistic. I would also ask at the same time weather the condescension is really necessary? If so I’ll happily stop commenting and just go back to reading if what I’ve said is getting you that twisted that you’re gonna come at me like that

        • emptywheel says:

          To answer your question. I think Cooper has done two things wrong. First, accepted their conspiracy theory beyond what rules of evidence should permit. I think that stems from partly accepting their joint venture argument.

          I think he let DeFilippis repeatedly ignore his orders because he didn’t realize or want to deal with just how bad faith Durham is being. That may stem from fear.

        • bmaz says:

          Sure. It could have run both ways though. But the defense chose to “not” also drive a truck through that. Which they could have, and either done so, or created a record of being selectively denied being able to do so. Federal judges should have no fear, they are lifetime appointees. They sure have no fear in Texas and Louisiana, but maybe Cooper does in DC. He had a good reputation before this case, but we shall see what potential he has for advancement after it.

        • scribe says:

          “…bent over backwards to set the table to convict a man of a crime…”
          Part of the everyday work activity of many judges, state and federal.

        • bmaz says:

          For a judge with a previously decent reputation, Cooper sure blew a load in this case though. Abner Mikva he ain’t.

        • Brad Cole says:

          I think it’s fair to ask if Cooper is simpleminded or just selectively simpleminded. For me, being appointed or elected as a judge is no guarantee of probity or wisdom.

        • DaveC says:

          One wonders how far either of these issues might get on appeal if Sussman is convicted. Marcy, are there any other trial or discovery elements that are notably appealable?

        • Alan K says:

          Also fair to point out that targets of right-wing frustration receive credible death threats. Cooper surely knows this, and I would not like to second guess what it takes to be a brave judge in this country.

  2. freebird says:

    I don’t get this at all. Baker knew Sussman. Baker is halfway intelligent. Baker could have surmised one of a multitude of reasons why Sussman wanted to meet with him. This whole trial is like pre-crime from that movie “Minority Report.”

    • Ginevra diBenci says:

      As Dr. Wheeler has laid out in detail, Durham at least implicitly threatened Baker himself with prosecution if Baker failed to fulfill the terms of the indictment against Sussman. (My understanding, at least.)

      This prosecution driving a wedge between Baker and Sussman (they were in fact longtime friends, or at least the kind of friendly working allies DC’s compartmentalization fosters) for the purposes of fueling partisan media–and literally nothing else–is the kind of collateral damage that the MAGA zealots seem fine with.

      • Bruce Olsen says:

        This is not collateral damage that MAGA zealots wish could have been avoided. That corner of the universe enjoys dishing out as much cruelty as possible (though maybe Durham thinks it’s nothing more than a clever tactic).

        As others have commented here, it was used in 1984. Of course, Orwell didn’t invent it.

  3. Jeffrey Gallup says:

    Assume that Durham ‘s theory of the case is true – there was a grand plan to damage the Trump campaign by feeding false or doubtful information about Trump-Alfabank server communications. The lie was an essential part of the plan, so that the FBI would take the server information seriously and the plotters could tout an FBI investigation to the media, strengthening the story.

    Thus Sussmann went into his meeting with Baker planning to tell a single, very specific lie, knowing that this would be a felony. The text message suggests premeditation.) Surely the impending lie would be foremost in his mind, and he would repeat the lie “.. not on behalf of a particular client” in all subsequent testimony and statements. Instead he sometimes mentioned a client, sometimes not.

    And if, as the prosecutors argued, it was critical for Sussmann to conceal the identity of his clients, would he not have had a much easier, non-felonious way to do so: simply tell Baker that he was not at liberty to disclose the identity of his client(s)? Lying instead makes no sense even if Sussmann is part of a grand plot involving the Clinton campaign, the
    DNC, Perkins-Coie, Rodney Joffe, Fusion GPS, Christopher Steele and Inspector Clouseau. More likely, it seems to me, Sussmann was not particularly focused on exactly who his clients were. He sensibly made a national security pitch for the meeting – a pitch Baker would be more likely to respond favorably to than “Hillary sent me.” But that seems a tactic to me, not necessarily a lie.

    [FYI, you entered your username as “jeffreygallup” for two comments published today; it has been edited to match your previous three comments posted as “Jeffrey Gallup.” Please use the same username including spaces and punctuation each time you comment so that community members get to know you. Thank you. /~Rayne]

  4. Savage Librarian says:

    I wonder how often it is that the rule of law is dependent on the nuances of language and the rules of grammar. When I exercised my rights to free speech, I was punished for insubordination.

    But administrators agreed that I had not done anything that I was asked not to do. And they agreed that I had done what I was asked to do. Yet they still had no qualms about saying I was insubordinate. Go figure.

    To me, it seemed they changed all the rules without telling me. And it made no sense. That’s how they won their battle. But it’s also how they lost their war.

    No matter how big or small, words matter. The rule of law matters. “And.” “Or.” Small words. What’s in store?

    On a conscious level, I’m doing my best to take things in stride. On another level, I tore the sheet and blankets off my bed when I slept last night. Thank goodness it won’t be too much longer before a verdict is in.

    • Charles R. Conway says:

      Trial lawyers are the surgeons of the English language as it relates to their proof, their proposed instructions, and the law in the written charge to the jury, a written charge to which the jury will have listen and digest; requiring these surgeons to be persuasive in their closing speeches. The instruction containing the disjunctive instead of the conjunctive in the indictment, on appeal, could cause a new trial after conviction, or not.

      • scribe says:

        It’s what lawyers do.

        Actually what lawyers do when bringing a case is first, go to the pattern jury instructions and look up what it is you intend to sue over, or charge criminally. There are books of these instructions, big thick books. Language tried, tested and approved in judicial opinions which state what the law is. And you go into them and pull out the forms you want to fit the case at hand.

        Those instructions will tell the lawyer what has to be proven and what to avoid. And that will guide the development of the case in discovery. And, if the discovery goes in a different direction, then it’s back to the jury instructions.

        So, those pattern instructions guide the development of the case from before the first paper is filed.

        In civil litigation, the form and content of the jury instructions is usually fixed prior to trial actually beginning (at least in federal court, where the “pretrial order” rules). That way, when the lawyers go in to start their opening to the jury, they know what the judge is going to charge to the jury at the end of the case and can craft their openings accordingly. If something unexpected or unanticipated comes up in the testimony at trial (like Amber Heard mentioning Kate Moss – opening the door to testimony and argument which had been excluded pretrial at Heard’s insistence), there is the “charge conference” prior to closing arguments where any changes to the charge are argued and decided. And then the lawyers can argue to the charge in their closings.

        Which appears to be what happened here.

        Frankly, while it makes good copy, I don’t think the change in this case makes much of a difference. For the purpose of this charge, one lie is enough and the judge feels there’s enough something there to support either of two lies.

      • James Fenton says:

        I am in a civil case right now in which the words person and other in a contract need to be interpreted and the answer will mean millions for one or the other side. So yes, we parse language.

        By the way I don’t care for Scalia’s ideology at all, but his book, Reading Law, turns out to be a very valuable law book for the task of interpreting contracts or statutes.

  5. harpie says:

    I wonder if the jury will notice that Cooper did NOT change the subject [“clients”] from the original plural in order to fit with the “OR” he substituted for the original “AND”.

    • bmaz says:

      By my history, no. They do pay attention to the actual charge(s) and jury instructions. But such nuance is seen only within that context.

  6. Ddub says:

    NAL. It sure seems Durham & Co. are at least as invested in a mistrial. There’s already so much chum in the water over the Robbie Mook testimony that the RWNM will churn no matter.
    But the not so good prosecutor has a sweet gig here and a brash group of true believers and could spin it to ’26 no doubt.
    “I also think Durham’s team may have thrown enough cow manure at the jury to stifle rational thought.” Quintessentially that is the MO for the whole movement, starting with Bannon and the Mercers. That the prosecution would use the same method is telling.

  7. JamesJoyce says:

    “…but I also think Durham’s team may have thrown enough cow manure at the jury to stifle rational thought.”

    This is what hacks do…

    I’m a hacker of wood…

    Sawdust soaks up reason like bread 🍞 soakers up, booze 🥃 in a drunk’s stomach..

    Diagraming sentences with Sister Ann Frances’5th Grade Grammar School..

    Dangling participial phrases and misplaced modifiers.

    Did not have to worry about flying bullets in years past..

    Just spit balls from milk carton straws..

    Yup 👍

    Still can’t spell right and I never will. Don’t care..

    This is hell in a hand basket..

    What about the Alpha Bank-Trump connection and maybe the America People being the client, Oswald Rothaug?

    “Full Stop ✋ 🛑 here, Col.
    Hogan!” said; Sargent Shultz.

    “I see nothing….”

    What Nazis in the Ukraine 🇺🇦, Putin?

    What Voter Fraud in America 🇺🇸, Dred Scott?

    Women are inferior now, Alito, while gasoline is way up, like everything else, since 1973-74.

    Pigs’s dung stifles rational thought and fouls pristine water, like guns destroy children.

    Send Lawyers, money then guns, to gum up the process at life’s expense Helga.

    RIP 🪦 America 🇺🇸

    We have gone “Weimar,” and don’t even know it!

  8. PeterS says:

    The indictment seems to be in two parts: A, the lie, no particular client (X and/or Y etc.); and B, the truth, clients X and Y.

    If you treat X plus Y as a combination, and assume only X was revealed at the meeting, then there was no lie (part A) but the truth (about Y) wasn’t revealed (part B). So there was a non-truth, or lie.

    If you also treat A and B as a combination, then the charge is not met, despite that lie. But this is dancing on a pinhead stuff. I don’t particularly fault the judge.

  9. Jeffrey Gallup says:

    Did Judge Cooper accept any of the defense’s proposed modifications to jury instructions? Or did he feel the need only to correct the prosecution’s error in its indictment language? Right-wing commentators have already pegged Cooper as hopelessly conflicted and biased for the defense. Obviously, it would be a crime to lie about either one or both supposed clients, although the indictment is not phrased that way.

  10. Hoping4Better_Times says:

    IANAL. The defense chose not to have Sussmann testify. It was said that whatever Sussmann swore to Durham after the indictment to get Durham to drop the charge could not be used against Sussmann if he chose to testify. I assume anything he said or did with Joffe was “off limits” since Sussmann was bound by attorney-client privilege. Joffe is still under threat by Durham and he cannot speak freely for fear Durham will come after him. In effect, Durham has muzzled both men even if there is an acquittal.

    • scribe says:

      Goes on all the time. I once second-chaired defense in a murder trial where the client decided going to the residence of a potential witness to (so he claimed) ask him to come forward and testify favorably. It was a prosecution on a cold case – 13 years from death to indictment – and there were gaping holes in the investigation. The client was prepared to testify (and this potential witness might have corroborated) he was nowhere near the (partially cop-owned) bar where the stabbing allegedly took place (despite there being nary a trace of blood in/on the wood floor and the deceased’s exsanguinated body miraculously appearing in the middle of a street over mile from the bar, yet with no blood on his clothes), and this would have been enough to create enough doubt to win the case.

      (FWIW, after the jury started deliberating, the judge told us off-the-record that if he’d been the trier of fact, i.e. a non-jury trial, he’d have acquitted.)

      When the prosecution heard about the client’s escapade (before we did) he told us that if the client testified, he’d be charged with kidnapping and obstruction of justice regardless of the outcome of the murder charge. They did move to have the client’s bail revoked, which was denied.

      The putative witness never showed. The defendant didn’t take the stand. The jury saw things differently from the judge and convicted.

  11. Silly but True says:

    18 U.S.C. § 1001(a)(2) standard is “any” fact.

    There was agreement between Gov’t & Sussmann on the first part of the instruction: “Mr. Sussmann stated to the General Counsel of the FBI that he was not acting on behalf of any client in conveying particular allegations…”

    Consequently assuming that part is true as alleged, a violation of 18 U.S.C. § 1001(a)(2) would all occur if Sussmann was acting on behalf of one client individually, the other client individually, or both clients simultaneously.

    Ensuring the jury understands the crime being charged through instructions like this is an essential part of his role; it’s not required that jurors be experts in the U.S. Code or statutory language construction.

  12. Traveller says:

    I generally like to review the comments before I post anything so as to not derail a good conversation…so I’ll circle back now. I have no experience at all in a grand jury proceeding, and yet I question Judge Carter’s ability to change an indictment…from and to or.

    I suppose I have to agree with PeterS that this is not a big thing….but the moment I say Marcy’s title, I went, “Uh Oh.” I see this change as being very material…but this just maybe me. OTOH. ,maybe this was agree to in chambers by Defense Counsel…or maybe not.

    A simple query, Does the Judge, any judge, have the right to change the Charging Terms? Of course, the Prosecution can always add a lesser offense under an information system, but….but this, to me, seems to be unusual, out of bounds even especially after the close of a trial….but I freely admit I am only asking to be educated here…if anyone has the time to comment. (no big either way).

    BTW, I certainly would not have the power, nor would I grant any judge the power to change an “and,” to an, “or,” in any contract…of course I am a civil guy so this change seems kind of impossible to me…but I am thinking Civil and Contracts.

    Best Wishes, Traveller

  13. Bay State Librul says:

    Marcy has been meticulously scoring this game from pitch one.
    We are now at the bottom of the ninth, two outs and Durham at the plate.
    Let’s hope the jury whiffs him.

    MAY 31, 2022

  14. Anon_053122-2216h says:

    I’m not trying to defend Durham at all, and I haven’t been following this trial nearly as closely as you, but this particular issue is probably pretty benign. https://www.justice.gov/archives/jm/criminal-resource-manual-227-conjunctive-and-disjunctive-elements

    It’s a legal quirk. Defendants have a right to know the charges being leveled against them, and charging an indictment in the disjunctive could lead to an argument that the defendant was not properly advised of the accusations against them, as required by the (edit: Sixth Amendment) (https://www.archives.gov/founding-docs/bill-of-rights-transcript). I’d call this argument akin to a defense attorney moving for dismissal when the prosecution rests their case – most of the time it won’t be granted, but it’s a procedural thing that a competent defense attorney is still required to do.

    [Welcome to emptywheel. Please use a more differentiated username when you comment next as we have several community members who’ve attempted to use the same anonymous name, “anon.” Your username this time will be revised from “Anon” to “Anon_053122-2216h” to distinguish it from other “anon.” Thanks. /~Rayne]

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