Defendant Sussman Opposition to Special Counsel Durham’s 11th hour “whatcha talkin’ ‘bout 3rd party attorney client privilege…Willis”

YOU NEEE TO READ SUSSMAN’S RESPONSE if any and I mean any of the allegations are true —then how soon will Durham be removed from his post…yes I know I’m yelling

Oh stop with your feigned clutching of your invisible pearls (I’m kidding, sort of). You understand that the title of this article could have been far and I mean far more juvenile and replete of any jurisprudence temperament. No really I almost used clownfuckery vonfucknut in the title of this article. I did tell you that post vacation Filey, that I’d come back with a vengeance. 🦁 rawr 🦁 here I am at 8%

So if you read the early morning article, specially the last few paragraphs where I attempted to give you the tick tock and what to BOLO…then you would have naturally known that Defendant Sussman’s Response to Durham’s “Motion to Compel” was due today, April 18, 2022…

Judge denies Defendant Sussman’s Motion to Dismiss Indictment. BUT there’s oh so much more…

If you elect to take the TL:DR approach let me concisely summarize the embedded article —

• Sussman filed a motion to dismiss the indictment

• the Court’s hands were tied (bound by previous precedence)

• Durham’s Office appears to decided to continue with their sloppy investigation and equally sloppily filings.

• FEDERAL RULES of CRIMINAL PROCEDURE

• Less than six weeks until Sussman’s trial starts and Durham is throwing the entire weight of the DOJ around an 6x6 concrete cell

• Sussman’s recent opposition (on yet another matter raised by Durham) elucidated several facts;

  • the purported handwritten notes of two former Senior FBI officials.

  • Priestap’s Grand Jury testimony —clearly indicates that he had no recollection of writing that sentence, what was discussed that precipitated Preinstop to scribble “not representing any client” —Sussman the handwriting appears to be at a different angle and a different font, leading Sussman to posit significant questions concerning:

    • Federal Rules of Criminal Procedure

    • Federal Rules of Evidence

    • Authenticity of the handwriting

    • the lack of “fresh memory” is hugely problematic for Durham

  • Anderson‘s Jan 2022 “interview” with Durham is equally problematic, largely for the similar reasons as Preinstop

To be clear I am in no way attempting to besmirch or malign these two former senior FBI employees. What I am trying to do —is explain how Durham has put them in an untenable situation. Based on the Grand Jury excerpts (this is your prerequisite speculation alert)

…it’s clear to me that both of the last minute proposed expert witnesses that Durham literally disclosed <7 weeks before the trial —might actually do more harm then good. Specifically I can see a scenario where Sussman’s defense team is likely to not only impeach their testimony. But any competent defense attorney will then annihilate their testimony and Durham’s litigation strategy. Trust me on this: there’s nothing on cross or even redirect that Durham and his team can do. Once the jury sees/hears that —Durham’s case essentially falls apart

Notwithstanding Defendant Sussman is making some pretty aggregate defense strategy (chess) moves… and FTR I’m not in the tank for Sussman —if anything I’m not exactly thrilled that he played fast and loose. Sometimes true DC power-players tend to become arrogant and oddly lackadaisical. Meaning they are more likely than not to bend the rules. My criticism of his actions (as alleged in the indictment) is likely to never change. But I’m also mindful that Sussman’s actions (intentional or not) has cost him everything; his job, his reputation, his family and likely his entire net worth.

Here’s a distinction for you —in my industry we like to “win clean” —meaning no dirty tricks, by the rules and it has to be fair. What I can not understand is how Special Counsel Durham has been allowed to use the entire weight of the DOJ to essentially undo Robert Mueller’s work and do Trump’s bidding.

I have questioned whether Special Counsel Durham is operating within the Special Counsel CFR and I can not stand sloppy lawyering. Mainly because it invariably devolves in resorting to dirty tricks, questionable prosecutorial behavior and last minute surprises. That’s not how our judicial system works. Yes that’s a “rose colored glasses” statement but there’s some validity to it. Our criminal judicial system at its bare bones can be described as: each side is bound by the same rules.

…DEFENDANT’S OPPOSITION TO SPECIAL COUNSEL’S MOTION TO COMPEL

• RESPONSE by MICHAEL A. SUSSMANN re 64 MOTION to Compel Production of Documents for In Camera Review (see ECF or my Scribd)

The introductory paragraph is tight and well articulated —because Sussman was clever and his defense team saw an opening and then they laid the hammer down with authority. That’s a compliment not a criticism. Personally introductory paragraphs are the launching pad… that last part of the last sentence is beautifully written —but I am a sucker for the prolific use of: vitiating

The Special Counsel is mounting a last-minute frontal assault on third-party assertions of attorney-client privilege and work product protection that affect what could be the production of thousands of documents, the testimony of numerous witnesses, and, most importantly, Mr. Sussmann’s fundamental defense strategy.

Sussman’s Counter Arguments… Pandora’s box…

I feel like I need to repeat this, I’m not in the tank for Sussman —I just want him to have a fair and impartial trial sans gross prosecutorial misconduct…I also want you to read pages 2 very carefully. In short its four point counter argument but some of the allegations Sussman is alleging

—holy Shittlestix—

For Example:

Special Counsel has seemingly abused the grand jury in order to obtain the documents redacted for privilege that he now challenges. He has admitted to using grand jury subpoenas to obtain these documents for use at Mr. Sussmann’s trial, even though Mr. Sussmann had been indicted at the time he issued the grand jury subpoenas and even though the law flatly forbids prosecutors from using grand jury subpoenas to obtain trial discovery. The proper remedy for such abuse of the grand jury is suppression of the documents. (emphasis added)

Third and perhaps most alarmingly, the Special Counsel has known of the specific privilege assertions at issue for months, and in some cases for at least a year, yet has inexplicably and inexcusably sat on his hands until April 6, 2022—less than six weeks before trial is scheduled to begin.

…Special Counsel’s gamesmanship should not stand. It is unjustified. It is unjust…

What Defendant Sussman has done is raised that specter that Special Counsel Durham violated and abused the Grand Jury Process, repeatedly and intentionally mislead the 3rd party privilege holders concerning their waiver (or lack thereof) —If Special Counsel Dirham did in fact engage in the conduct Defendant Sussman asserts —then buckle up because these are incredibly serious allegations…

In layman’s terms Sussman’s arguing that Durham abused his authority and the Grand Jury to (unethically and unlawfully) obtain unredacted communications from 3rd parties (Fusion & Perkins respectively) and that is just one of the many examples

Special Counsel has been raising the specter of litigation for nearly a year—while the grand jury investigation was still pending—and still did nothing. As far back as last August, for example, the Special Counsel expressly indicated that he was contemplating filing motions and seeking relief from the Court. Email from Andrew DeFilippis, Dep’t of Just., to Patrick Stokes, Gibson, Dunn & Crutcher LLP, et al. (Aug. 9, 2021) (requesting a call to discuss privilege issues with a hope “to avoid filing motions with the Court”); Email from Andrew DeFilippis, Dep’t of Just., to Patrick Stokes, Gibson, Dunn & Crutcher LLP, et al. (Aug. 14, 2021) (stating that the Special Counsel “wanted to give all parties involved the opportunity to weigh in before we . . . pursue particular legal process, or seek relief from the Court”)

…rather than litigate the question of subpoena compliance before the Chief Judge during the pendency of the grand jury investigation, the Special Counsel here sat on his hands and waited to raise the issue until a year after the subpoenas were issued, six months after Mr. Sussmann was indicted, approximately two months after unclassified discovery was supposed to have been produced, and mere weeks before trial. The Special Counsel has not cited a single case in which the government issued a grand jury subpoena, objected to a party’s invocation of attorney￾client privilege, and waited to litigate subpoena compliance until after indictment. And the Special Counsel certainly has not cited any case in which the government issued a grand jury subpoena, objected to a party’s invocation of attorney-client privilege, and waited to litigate subpoena compliance until just before a defendant’s trial was set to commence. That is because the tack taken by the Special Counsel here is inconsistent with the clear rules of this District, precedent, and fundamental principles of fairness

As for what comes next -well I explained that yesterday. Durham’s response and then oral arguments with less than two weeks until the start of the trial…again you can pull down Sussman’s Response via ECF or my Scribd Account.

And lastly your daily saltwater therapy —on Saturday night I managed to record a few decent videos of the Pink Moon on the beach

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Be Well -Filey