Late Monday, lawyers representing Special Counsel John Durham and Michael Sussmann filed a flurry of motions in the pending criminal case against the former Hillary Clinton campaign attorney.
Sussmann was charged in that case with one count of lying to former FBI General Counsel James Baker when he met with Baker on September 19, 2016, and provided Baker with data and white papers purporting to establish a secret communication network between Trump and the Russia-base Alfa Bank. According to the indictment, Sussmann lied to Baker when they met, telling Baker that he was not representing any client, when in fact he represented the Clinton campaign and Rodney Joffe.
In total, Sussmann’s legal team filed four motions addressing distinct issues, while the special counsel’s office filed one global motion. Four of the motions addressed evidentiary issues, with the attorneys arguing that specific evidence should be either admitted or excluded at Sussmann’s trial, which is scheduled to begin on May 16, 2022.
Parties file such motions, called motions in limine, before trial usually to ensure that the opposing counsel does not elicit inadmissible evidence from a witness in front of the jury. When that happens, the typical remedy is for the judge to “strike” the testimony and direct the jury to disregard the statement.
Of course, by that point, the jury has already heard the witness’s testimony and the damage is done. Seeking a ruling on the admissibility of evidence pretrial via a motion in limine ensures this scenario does not happen.
Evidentiary Issues in General
While the motions in limine filed on Monday include many issues, in general they concern three specific “evidentiary rules.” Evidentiary rules govern whether evidence, such as testimony or documents, may be admitted in court and presented to the jury.
The most fundamental rule of evidence concerns relevancy. Only relevant evidence is admissible. To be relevant, the evidence must have the “tendency” to make the existence of a fact of consequence “more probable” or “less probable.”
However, even if evidence is relevant, a second evidentiary rule provides that relevant evidence is inadmissible if its relevance is outweighed by unfair prejudice. The key here is “unfair” prejudice—if the evidence goes to the question of guilt, the prejudice is not “unfair.”
Conversely, if the evidence is only slightly important to the case but might improperly inflame the passions of the jury, prompting them to convict because they don’t like a defendant or think he is a bad guy in general, then the prejudice is “unfair,” and the relevant evidence must be excluded.
A third evidentiary issue underlying the various motions concerns “hearsay.” Hearsay, in general, is an out-of-court statement repeated in court to prove the fact being repeated.
For instance, if in a hypothetical murder trial, a witness on the stand testifies that a few minutes before hearing a gunshot, the defendant said to the witness, “I’ll be right back. I’m going to grab an umbrella from my office because it’s starting to rain,” that would not be hearsay because the statement is being repeated in court to explain why the defendant returned to his office—not to prove whether it was raining. Further, even if a statement or writing is hearsay, there are numerous exceptions making the evidence admissible.
With this backdrop, then, here are five takeaways from Monday’s filings.
1. From Sussmann’s Fingers to Baker’s Eyes
The first takeaway from Monday’s filings is a bombshell and comes on the second page of the special counsel’s 48-page motion in limine. That’s where Durham’s team excerpted a text message Sussmann sent to Baker’s personal cellphone:
Jim—it’s Michael Sussmann. I have something time-sensitive (and sensitive) I need to discuss. Do you have availability for a short meeting tomorrow? I’m coming on my own—not on behalf of a client or company—want to help the Bureau. Thanks.
This text message is explosive because it provides the most solid evidence to date that Sussmann represented to Baker that he was sharing the Alfa Bank data on his own and “not on behalf of a client or company.” Until now, the government’s case seemed to rest on Baker’s version of events and some handwritten notes taken by others after Baker relayed to them what Sussmann had said. (More on that below.) But now we know the special counsel’s office has documentation originating from Sussmann himself confirming the other evidence. That is huge.
Sussmann’s text to Baker proves significant for a second reason: It was not mentioned in the indictment, even though the 27-page speaking indictment included myriad minutia. The special counsel’s failure to reference the text message in the criminal indictment seems bizarre given it is the prosecution’s strongest evidence that Sussmann maintained he was not meeting with Baker on behalf of a client.
There’s likely a very logical reason for the omission, with one possible explanation that the special counsel’s office did not know of the text message at the time of Sussmann’s indictment.
Recall that in a discovery update filed with the court in late January, Durham’s office revealed that “in early January 2022, the Special Counsel’s Office learned for the first time that the [Office of Inspector General, or OIG] currently possesses two FBI cellphones of the former FBI General Counsel” Baker, along with “forensic reports analyzing those cellphones.” It may well be that the text message Sussmann sent Baker was preserved on one of those two cell phones and that Durham did not learn of its existence until January.
If so, that raises more questions about the OIG’s failure to provide Durham the cellphones earlier, or even alert the special counsel’s office to their existence when Durham’s team met with the inspector general and OIG personnel on October 7, 2021. That meeting was called “to discuss discoverable materials that may be in the OIG’s possession.” Why, then, did no one mention the phones? Was it because they knew Baker’s cell phone contained the damning text?
2. Sussmann Wants the Handwritten Notes Implicating Him Excluded
Sussmann’s second motion in limine challenges the admissibility of handwritten notes taken by former FBI Assistant Director Bill Priestap and Deputy General Counsel Trisha Anderson. It also seeks an order precluding Durham from introducing the notes, questioning the witnesses about the notes, and showing the notes to the jury.
The Priestap note includes the following notations: “Michael Sussman[n]—Atty: Perkins Coie—said not doing this for any client”; “Represents DNC, Clinton Foundation, etc.”; “Been approached by Prominent Cyber People (Academic or Corp. POCs)”; and “People like: [three names reacted.” Similarly, Anderson’s note stated “Sussman[n] Mtg w/ Baker” and “No specific client but group of cyber academics talked w/ him abt research,” “article this Friday-NYT/WaPo/WSJ.”
The government’s global motion in limine likewise addresses these notes, arguing they are both admissible. The government’s motion in limine also seeks a ruling from the court that several additional pieces of evidence are admissible: emails referenced in the indictment, statements Sussmann made to the CIA, statements Sussmann made during his congressional testimony, statements his former employer made to the media, and a Hillary Clinton tweet pushing the Alfa Bank hoax. The special counsel also seeks a ruling that the defendants may not present any argument suggesting Durham or the prosecution is politically biased. More on those points another time.
In arguing their positions on the admissibility of Priestap and Anderson’s notes, both Sussmann and the special counsel’s office focus on the hearsay rule. Sussmann’s lawyers argue that both notes and any questioning about the notes are inadmissible hearsay.
Conversely, Durham argues the notes are admissible because they will counter a challenge to Baker’s memory and inconsistencies in Baker’s earlier statements about his conversation with Sussmann. The government also maintains that the notes are admissible as “past recollections recorded” by the individuals.
The special counsel’s argument is persuasive, and the court will likely admit the notes into evidence. However, even if the trial court excludes the evidence, the special counsel’s case is no longer doomed given Sussmann’s text message to Baker.
3. Immunize Joffe or Set Sussmann Free
The next big takeaway comes from Sussmann’s motion to dismiss the criminal charges against him based on the special counsel’s refusal to immunize Joffe. Joffe, of course, is the man behind the moniker “Tech Executive-1” in the Sussmann indictment. As the indictment lays out in detail, Joffe is alleged to have “tasked” two Georgia Tech researchers, as well as employees at tech companies connected to Joffe, to mine proprietary information to find a supposed connection between Trump and Russia.
Joffe allegedly later helped craft a deceptive white paper that posited that Trump and Alfa Bank had a secret back-door communication network—deceptive because it obscured the main flaw in the theory. Then Sussmann, allegedly on behalf of Joffe, presented the data and three whitepapers to both the FBI and the CIA, while falsely claiming he was not there on behalf of any client.
In his motion, Sussmann stresses that “the Special Counsel has made Rodney Joffe a cornerstone of its case against Mr. Sussman,” and as such Sussmann wants to call Joffe as a defense witness. But “while Mr. Joffe is prepared to testify,” and, according to Sussmann, wants “to offer critical exculpatory testimony on behalf of Mr. Sussmann, including that Mr. Joffe’s work was not connected to the Clinton Campaign—the Special Counsel is making it impossible for Mr. Sussmann to call Mr. Joffe as an exculpatory witness at trial.”
According to Sussmann, the special counsel’s office is preventing Joffe from testifying by suggesting Joffe may still face criminal liability for his alleged involvement in the scheme. Sussmann further claims that after he subpoenaed Joffe, Joffe’s attorney contacted the special counsel’s office, which reportedly said Joffe remained a subject of its investigation. Because of the continuing threat of criminal prosecution, Joffe has asserted his Fifth Amendment right and has refused to testify at Sussmann’s trial.
Generally speaking, Joffe’s refusal to testify in Sussmann’s case would not affect the criminal case against Sussmann. Case law, however, holds that the government cannot “improperly” interfere in a defendant’s ability to call exculpatory witnesses at trial.
Citing precedent from other circuits, Sussmann argues that the special counsel’s office improperly forced Joffe to invoke his Fifth Amendment right by “incredibly” claiming Joffe remained a subject of Durham’s investigation. Relying on that same precedent, Sussmann further argues that because Joffe’s testimony is exculpatory and material to his defense, if the government does not grant Joffe immunity, it must dismiss the criminal case against Sussmann.
Whether the district court will find this out-of-circuit precedent persuasive is unclear. But Sussmann’s brief presents a persuasive argument that the special counsel’s office has no legitimate basis to charge Joffe, which suggests the threat is a pretext to keep Joffe off the stand.
Here, Sussmann points to what prosecutor Andrew DeFilippis purportedly told Joffe’s attorney when the latter confronted DeFilippis with the fact that more than five years have elapsed since the events described in the indictment. In response, DeFilippis apparently noted that “certain fraud statutes have longer than five-year limitations periods.”
The federal prosecutor also, according to Sussmann, “vaguely noted that the ‘Yota[P]hone-related allegations” “continued to ‘percolate through various branches of the government and around the private sector after that date, in various forms,” suggesting that the statute of limitation continued to run during that time frame.
Given the right to confront witnesses is a constitutional right, the court is likely to challenge the special counsel’s office on its assertion that Joffe still faces potential criminal liability—that is, unless in its response brief Durham’s team provides more detail or decides to provide Joffe immunity. Durham’s response to this motion will be fascinating.
4. Keep the Privilege Logs Away from the Jury
In his next motion in limine, Sussmann seeks to prevent the prosecution from presenting virtually any evidence related to claims of attorney-client privilege asserted by third parties. As detailed in this motion, the special counsel’s office attempted to obtain various communications from Joffe, the Clinton campaign, and “another political organization,” presumably the Democratic National Committee, but they all refused to provide the communications in whole or in part, asserting the information was protected by attorney-client privilege.
In asserting that privilege, the third parties also created a “privilege log,” which lists the various communications generically, such as by date, name, and subject matter, while redacting the purportedly protected information. The special counsel’s office is preparing to challenge some of the assertions of privilege noted in the log.
In his motion, though, Sussmann argues that to the extent the communications are ruled privileged, the special counsel should be prevented from presenting the privilege logs to the jury, showing them the redacted documents, or even identifying the names of the parties asserting privilege in those documents. Such evidence would be inadmissible, Sussmann argues, because it relates to privilege, and seeks to “convict Mr. Sussmann by insinuating to the jury that evidence” of Sussmann’s guilt exists beneath the redacted documents.
The court will likely withhold ruling on this motion until it rules on the question of privilege, which still must be briefed. And that will be another fascinating motion to read.
5. That Data I Gave the Government? Don’t Talk About It
In his final motion, Sussmann seeks an order to exclude any evidence concerning the gathering of DNS data by Joffe or the other researchers, any evidence concerning the accuracy of the data or conclusions reached in the white papers, and any evidence about Christopher Steele and the information he separately provided the FBI.
Sussmann argues this evidence is inadmissible because it is irrelevant to the charged offense, namely that he lied to Baker about whether he was working on behalf of a client. Contrary to Sussmann’s claim, however, this evidence all seems to have some relevance.
The evidence about the who, how, and why the DNS data was gathered is relevant to Sussmann’s motive: It explains why Sussmann would lie to Baker about whether he represented a client. The evidence about the accuracy of the data is also relevant to the extent Sussmann argues that his lie was immaterial because he was merely passing on a legitimate tip.
Not only is this evidence likely to be found relevant, evidence related to the DNS data and white papers that is contained in the various email messages between the players will likely also avoid a hearsay challenge. While emails and other notes can be hearsay, as the special counsel’s office stresses, statements made by co-conspirators “during the course and in furtherance of the conspiracy” are admissible.
Also, under D.C. Circuit precedent, the conspiracy need not be an “unlawful combination.” Rather, a joint venture, such as what Sussmann, Joffe, and the others involved in crafting the Alfa Bank and Yota theories were alleged to have done, is enough to overcome a hearsay objection.
Given this precedent, the court will likely find the emails referenced in the indictment admissible, although some of the content may be excluded if the court finds it unfairly prejudicial. For instance, the court might prohibit the government from presenting evidence that Joffe exploited data related to the Executive Office of the President, finding that while relevant, its relevance is outweighed by unfair prejudice.
Finally, evidence that Sussmann provided the same Alfa Bank information to Steele is relevant to show why Sussmann’s lie was material, namely to show that if the FBI knew Sussmann was working with the Clinton campaign, that would have affected how they approached the Steele dossier, which likewise referred to the supposed Alfa Bank connection. That does not mean everything about Steele and the dossier is admissible. On the contrary, most of the dossier is irrelevant to the case and will be excluded.
With all of these final issues of admissibility, the question for the court will be where to draw the line. The answer will likely be down the middle, with some evidence allowed, but other evidence exclude or admitted with limitations. But now that the government has Sussmann’s text message to Baker, this line-drawing seems of little significance.