Federal Judge ruled: “Some of the evidence the government discussed at the recent hearing does not fall into those permissible categories…” UPDATED

Now that the Court has issued an Order regarding Defendant Sussman’s Motion In Limine regarding newly disclosed (purported) evidence obtained by Special Counsel Durham…

Editorial Note -in the spirit of full transparency, I recently amended this article to expound on Durham’s REPLY TO OPPOSITION to Motion by USA as to MICHAEL A. SUSSMANN re 61 MOTION See DDC ECF for Durham’s April 23, 2022 Reply or a highlighted and spicy annotated copy via my Scribd account)

Additionally it is important to remember this concerns Sussman’s Motion(s) In Limine(s)…filed on April 6th and 8th, respectively. I genuinely think you’ll benefit from reading Durham’s April 23, 2022 and then reading today’s order…

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Okay fine -I decided to superseded my own decision and opted to publish this article today versus early tomorrow morning. Largely because after 4PM my schedule was wide open. And I tend to want to get things off my plate. And ( like to be constructive with my free time and yes of course I’ve been closely monitoring the Sussman criminal case and the bevy of pretrial motions…

Sussman Case/Filings background 2021 to present

As many of you are aware —on April 20, 2022 the Court held an “expedited hearing” specifically related to evidence, witness testimony and other evidentiary matters.

• April 23, 2022: New filing from Special Counsel Durham and it’s vexing and arguably untimely.

• April 20, 2022: Judge holds Emergency Hearing at the request of Defendant Sussman -updated

• April 18, 2022: Judge denies Defendant Sussman’s Motion to Dismiss Indictment. BUT there’s oh so much more…

• February 1, 2022 —Special Counsel Durham “has no current recollection” Defendants Sussman & Danchenko case updates

• February 13, 2022 — Special Counsel Durham: your honor the firm & attorneys representing Sussman have countless conflicts. John, untimely much? Hey Kash I see you, again ←some of my finer deep dives

• February 15, 2022 — Sussman’s Response is exactly what many of us correctly predicted

• February 18, 2022 —As predicted Sussman filed a Motion to Dismiss the ONE count Indictment & Special Counsel Durham’s response

• December 12, 2021 — Special Counsel Durham -needs more time-Judge —>Speedy Trial Act, full speed ahead.

  • January 5, 2022 —The difference between; Independent Counsel v Special Counsel & AG Garland’s Jan 5, 2022 “speech” on the anniversary of Jan6th’s deadly domestic terror attack not directly related but I think you should reread that Jan 2022 article

• September 29, 2021 —What do Tea Leaves, data scientists, pings & DNS lookups have in common? A much deeper dive into the Sussman indictment

• November 4, 2021 — Igor Danchenko Indictment & initial appearance in EDVA -updated with FISC Orders & DOJ-OIG investigation

Still awaiting 3rd party interveners response…

Additionally if you had read the April 23rd article you would have known that today was a big day in the Sussman Criminal Case. During the April 20th expedited hearing the Court ordered the following non-party interveners…

• Perkins Coie LLC

• DNC

• Tech Executive #1

• Hillary Clinton for America

…to file a response before the Court rendered a decision concerning the evidence Durham elicited. Again Defendant Sussman correctly argues it’s not his privilege to waive — but his arguments have a direct impact on both attorney client privilege and the work product doctrine privilege.

As of time of publication the aforementioned have yet to file their responses —I specifically waited until close to COB before I published this article. Should those responses be docketed later tonight I’ll endeavor to update this article in a timely manner. In kind on April 22 et seq the following hit the Sussman docket

• April 22, 2022: REPLY(see DDC ECF) in Support by MICHAEL A. SUSSMANN re 58 MOTION in Limine to Exclude Testimony or Evidence Pertaining to Former FBI Assistant Director Bill Priestap's and Deputy General Counsel Trisha Anderson's Notes, 60 MOTION in Limine to Preclude Evidence Regarding the Gathering of Data, the Accuracy of Data or Its Analysis, or the Steele Dossier and to Strike the Same, 59 MOTION to Dismiss Case if the Special Counsel Does Not Immunize Rodney Joffe, 57 MOTION in Limine to Preclude the Special Counsel from Presenting Evidence or Argument Regarding Matters Subject to the Attorney-Client Privilege

• April 23, 2022: REPLY TO OPPOSITION (see DDC ECF or a highlighted and spicy annotated copy via my Scribd account)) to Motion by USA as to MICHAEL A. SUSSMANN re 61 MOTION in Limine

While Durham had managed to keep moving the goal post -I’d offer you one important thought: Why wasn’t Sussman indicted on “conspiracy to defraud” and as you’ll note in late February 2022 Durham made an inexplicable pivot. That “there was a conspiracy here” but knowing a grand jury didn’t indict Sussman on any count of 18 U.S.C. §371 he somehow pivoted to “the joint venture” is exactly the same as a “conspiracy to defraud” —the infirmity of that argument can not and will not be ameliorated by any subsequent filings… except perhaps a superseding indictment but after the “ditty pool”.he played with another Grand Jury —I think it’s unlikely a superseder is in the works…I now refer you to pages 1 and 2 of Durham’s April 23rd filing”

A Joint Venture Plainly Existed Here -First, the defendant’s portrayal of the joint venture at issue as ill-defined, “[in]coherent,”and too “complicated” for a jury to understand is simply wrong. (Def. Br. at 19). Federal jury instructions have stated that in order to prove a conspiracy….

…evidence will further show that the joint venture continued and crystallized early in August 2016 when the defendant, Tech Executive-1, and agents of the Clinton Campaign met at Law Firm-1. In particular, on August 12, 2016, the defendant, Tech Executive-1, the Clinton Campaign’s General Counsel (Campaign Lawyer-1), and the co-founder of the Clinton Campaign’s hired investigative firm (the U.S. Investigative Firm) met in Campaign Lawyer-1’s office.

…discussed the same Russian Bank-1 allegations that the defendant would later bring to the FBI. The evidence will show that at the meeting, the parties agreed to conduct work in the hope that it would benefit the Clinton Campaign, namely, gathering and disseminating purportedly derogatory data regarding Trump and his associates’ internet activities.

But if you want my honest (albeit somewhat biased opinion) what Durham managed to do in his Reply — is both a linguistic and intellectual contortion of what’s up and what’s down. You can’t on one hand acknowledge a colorable attorney client and/or 3rd party privilege and then essentially ask the Court to give you what you need irrespective of both the Rules, the Ethics and your Brady, Jenks and Gigilo requirements … sidebar I got to page five and I threw my laptop across my desk is utter disgust…while audibly saying “what in the actual F is this non-procedural 12th hour nonsense” —again I’m not an attorney but even I can read what Durham wrote and concluded he’s not in an offensive posture…

…presenting communications between the defendant’s alleged clients and third parties regarding the aforementioned political research would hardly amount to a “mini-trial.” (Def. Mot. at 20). Rather, these communications are among the most probative and revealing evidence that the Government will present to the jury. Other than the contents of privileged communications themselves …

Judge Grants and Denies in part Sussman’s Motion…

And now that brings us to the April 25, 2022 - ORDER (see DDC ECF) keep in mind the Court ruled on two motions:

…At the hearing, defense counsel stated that he will not seek to affirmatively prove the existence of a link between Alfa Bank and the Trump Campaign. SeeMot. Hr’g Tr. at 4: 6–8. With that representation, the Court will hold the government to its word, and will not allow it to put on extensive evidence about the accuracy of the data Mr. Sussmann provided to the FBI …unless Mr. Sussmann does so first. (emphasis added)

• granting in part and denying in part 60 Defendant's Motion in Limine and,

• granting in part and denying in part 66 Defendant's Motion to Exclude Proposed Expert Witness Testimony. Signed by Judge Christopher R. Cooper on 4/25/2022

Durham’s case is not as strong as he portends…

In short Durham’s arguments have ever shifted. The bottom line here is Durham argues that Sussman’s “not working on behalf of a client” is, in his view, material to his case. Whereas Sussman’s position has been -no I relied upon others for the accuracy and authenticity of said data presented to (former) FBI General Counsel James Baker (remember in January 2022 Durham made a stunning disclosures: February 1, 2022 —Special Counsel Durham “has no current recollection” Defendants Sussman & Danchenko case updates —he literally failed to acknowledge that the DOJ-OIG was in possession on Baker’s two cell phones) I’d now like to draw your attention to pages 3 and 4 —which reads in part (and this is pretty important… the Court threaded an exceedingly narrow needle and not that my opinion matters but this is quintessential “jurisprudence pragmatism” at its very best… also these excerpt drill drown on the parties disagreement over “materiality” and “undue political influence of an FBI investigation” ←I am oddly surprised that Durham is choosing that hill to (figuratively NOT literally) die on…it’s a conundrum that’s what Durham is planting his flag on…

…Some of the evidence the government discussed at the recent hearing does not fall into those permissible categories. In particular, the Court will not allow representatives of the companies who maintained the servers that purportedly received communications from Alfa Bank servers to testify about their involvement in the FBI’s investigation.

…If Sussmann knew the data was suspect, evidence about faults in the data could possibly speak to “his state of mind” at the time of his meeting with Mr. Baker, id., including his motive to conceal the origins of the data. By contrast, Sussmann would not open the door to further evidence about the accuracy of the data simply by seeking to establish that he reasonably believed the data were accurate and relied on his associates’ representations that they were. Such a defense theory could allow the government to introduce evidence tending to show that his belief was not reasonable—for instance, facially obvious shortcomings in the data, or information received by Sussmann indicating relevant deficiencies. But it would not open the door to a lengthy and complex exploration of the underlying data.

Durham’s witness list keeps shrinking…

Moving on to pages 5 and 6, respectively —here the Court outlines what areas Durham’s “expert witness” FBI Agent Martin will be allowed to testify to —additionally the Court’s ruling is both fair and equitable (for all parties)

…Assuming Special Agent Martin is qualified as an expert, the Court will allow him to testify about three general topics:

• first, and most significantly, background information necessary to understand the relevant data, including the “basic mechanics, architecture, and terminology” of the kind of computer systems at issue;

• second, the type of conclusions that can be drawn from analyzing the kind of data Sussmann shared with the FBI; and

• third, the methods investigators would use to validate or further examine that data.

All six proposed testimony topics listed in the government’s opposition brief appear to fall within those parameters\

From a defense standpoint today’s order is kind of a significant win for Sussman and it puts Durham in a much smaller box to throw his weight around. This is how our criminal Justice system works, all parties agree to evidence and testimony. Notwithstanding typically that’s what the pretrial phase of the criminal trial are used for, the parties file motions to slug it out before the criminal trial commences…

…if Sussmann seeks to establish at trial that the data were accurate, and that there was in fact a communications channel between Alfa Bank and the Trump Campaign, expert testimony explaining why this could not be the case will become relevant.

…as the Court noted above, additional testimony about the accuracy of the data—expert or otherwise—will not be admissible just because Mr. Sussmann presents evidence that he “relied on Tech Executive-1’s conclusions” about the data, or “lacked a motive to conceal information about his clients.” …

While some on in the MAGA camp might claim “Durham is bringing it” my retort is by “bringing it” —do you mean unlawfully using and abusing the grand jury subpoenas, failing to obtain evidence, then having “no recollection” or changing his witness list more often then you and I brush our teeth… from my vantage point Durham’s never ending quest to “venge Trump” he has consistently played fast and loose with the rules. Keep in mind the Court has yet to rule on his “Re In Camera view” motion and let me tell you that’s what you need to watch for next.

When I opined that the Court threaten an extremely narrow needle, that’s because that is exactly what today’s order indicates. Note the position the Court took regarding Christopher Steele, the Dossier and the subsequent FBI investigation…

Again you can pull down the April 25, 2022 Order down via DDC-ECF or via my Scribd Accont. And for the record pay attention to what I highlighted and underlined —those are important facts… and your second dose of saltwater therapy ….

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But to be clear I’m in marathon video/telephonic conference calls for 7AM to 3PM so it will be highly unlikely that I’ll publish an article on April 26th —conversely as soon as the 3rd party interveners file their response (which are due today) I’ll update this article…and I believe you are now completely up to speed on the Sussman case…whispers you do know that the 27th Oral Arguments are in fact still scheduled for April 27th, right? Blink twice if you need to me further explain that. I make zero apologies for publishing two newsletters today, you can blame my twitter haters/stalkers/clowns because if I was on Twitter I’d simply create a 4 or 5 tweet long thread explaining the important bits of today’s order….