Judge denies Defendant Sussman’s Motion to Dismiss Indictment. BUT there’s oh so much more…
For those who know how to read a Judge’s Order -you’ll note Judge Cooper did not give Special Counsel Durham a wholesale pass —his Order/Memorandum is really well written & fair
If I did this correctly this article will publish as I’m driving back from the beach. My destain of I95 Traffic (applicable to both South/North Bound) is well known, especially when the General Assembly is “in session” —so I forced my family to book a hotelroom (vacation renters had reserved our house for a late Saturday check in) and convinced them that driving back to the DMV (DC MD VA) would be more time effective then sitting in an hours long gridlock. I even tried to cajole the littles by saying “hey Easter Egg hunt on the beach will be super fun —plus room service and carpet picnics”
Accordingly the reward was tonight’s sunset. And let me tell you, in my short life, I’ve filmed hundreds, possibly thousands of sunrises and sunsets. Tonight’s was absolutely spectacular. Provide you look past the wind noise, the NWS issued several Gale Warnings.
Henceforth your daily newsletter will make a daily appearance in your email… that means your dose, arguably some might actually say daily overdose —ask me if I’m unbothered by the sheer quantity of Court Filings I pump out. Admittedly I think I’m straddling a very fine line here. Because I intentionally set the publish time to occur shortly after Midnight— thus April 18, 2022… hear me out, my rationale is kind of simple:
…the past few weeks (including my recent jury duty stint) greatly impacted my ability to publish daily newsletters. Which was regrettable.
I’m relying upon top-notch time management skills. Given the fact that April 18th will be incredibly busy and I won’t have a ton of free time —until after COB
I’m a spicy spelling prone a-hole and sometimes it’s better to use your words. Apparently throat punching is frown upon.
.. if you are wondering in this article alone I embedded nearly a dozen court filings concerning Defendant Sussman —covering the period of April 6th thru 15th, respectively. And yes of course I read the hundreds of pages because what else am I going to do while on the beach? But first I need to get this off my chest because I can not stifle my growing frustration and “the hell did he just say”… feel free to skip this part of the article —but I’m about to unload only 8% of my Spicy-ness.
The Anatomy of BAD legal takes…
I’m not in the habit of amplifying the Twitter-Self-Appointed (faux) Experts. Notwithstanding if you decided to blindly believe someone’s incongruent Blue-QANON-Sense “tweet-storms”. I regret to inform you, that I can’t and I certainly won’t attempt help you.
Facts matter and the disinformation and misinformation about these cases has been chiefly propagated by a certain Blue QANON. Who’s repeatedly shown they are literally the most illiterate understanding of Court filings and Federal Criminal Rules of Procedure and Evidence.
The “narrative” that Special Council Durham “will be indicting Louise Mensch” isn’t just laughable. It’s painfully uninformed. And frankly it just rancid word salad of deluded garbage. Think of discard eligible data packets. Sorry for a brief moment I allowed my nerd flag to fly high and proud
Everyone and I mean nearly everyone —from top Retired Generals, to countless attorneys and informed commentary from the digital legal peanut gallery ←to be clear I consider myself a member of the peanut gallery —fully panned Blue QANON’s last few threads. Which were replete of the basic and I mean basic understanding of the Federal Rules of Criminal Procedure, what was actually filed (by both the Government and Sussman) and what was at issue. Maybe someone can buy him a copy (grifters gotta grift -amirite?) —as to prevent additional self owned beclownment. The public records suggest that je. certainly does not understand that there are separate Federal Rules of Evidence —(true story this newly minted legal expert didn’t know that the DOJ has different USAM for RICO and VCAR ←that’s basic and I mean basic “legal stuff” —or perhaps he should actually refresh his obvious fading memory of: 28 USC 4101: Definition -specifically defamation, which reads in part:
(1) Defamation.-The term "defamation" means any action or other proceeding for defamation, libel, slander, or similar claim alleging that forms of speech are false, have caused damage to reputation or emotional distress, have presented any person in a false light, or have resulted in criticism, dishonor, or condemnation of any person.”
…also true story Blue-QANON threatened to sue me for factually explaining what he did to me —the SOL ran out of December 2020 and I’m still waiting to be served. I am kidding about waiting to be served, in my industry we don’t threaten we just file. And those who use the threat of litigation are doing so from a position of weakness… cough —financially insolvent individuals can’t actually afford to hire a competent attorney…
Tick tick you Tito’s soaked unemployed (and unemployable) drama llama. For the record and by my approximation, the SOL on your scurrilous accusation concerning Louise still has about 11 months left.
Too bad you’re an unemployed broke __ (word that rhymes with witch) —it’s a well known fact that you’ve trafficked in delusional conspiracy theories for years. I’m also pretty sure you can not distinguish between actual facts versus the alcohol induced stream of consciousness aka twitter threads. Praise Sweet Baby Jesus I’m no longer on Twitter. Now let me explain what’s really happening and provide you with free (as in no cost links) to the Court filings. Because unlike some I don’t hoard court filings. Only deeply insecure individuals withhold public documents and I’m anything but insecure —Shall we proceed—
Background on Defendant Sussman’s Case:
Below are the previously published articles concerning both Sussman and Danchenko criminal cases —again it’s important that you know how these cases are linked and the various missteps by all parties. And I’m specifically talking about both Special Counsel Durham…
On April 13, 2022 the following OPINION AND ORDER —which denied Defendant’s Sussman’s Motion to Dismiss Case to Dismiss Case. See full Opinion and Order for details. Signed by Judge Christopher R. Cooper on 4/13/2022 (via ECF or via my Scribd Account) —again this is going to get granular but it’s important that you fully understand the striking balance in the Court’s OPINION and ORDER)
The Court took Sussman & Durham to the wood shed
Look I genuinely try to give you all sides. Admittedly I vacillated on tracking this case. Sometimes if I’m too close to an issue —I force myself to silence my own personal opinions and just stick to the facts. On April 13, 2022 the following OPINION AND ORDER —which denied Defendant’s Sussman’s Motion to Dismiss Case to Dismiss Case. See full Opinion and Order for details. Signed by Judge Christopher R. Cooper on 4/13/2022 (via ECF or via my Scribd Account) —again this is going to get granular but it’s important that you fully understand the striking balance in the Court’s OPINION and ORDER)
For a statement to be criminal under 18 U.S.C. § 1001, 1 it must be both ‘false, fictitious, or fraudulent’ and ‘material,’
The standard for materiality under § 1001 in this circuit is whether the statement has “a natural tendency to influence, or is capable of influencing, either a discrete decision or any other function of the [government] agency to which it was addressed.”United States v. Moore, 612 F.3d 698, 701 (D.C. Cir. 2010). Focusing on the first part of the standard, Sussmann argues that his alleged statement to Baker—that he was not at the meeting on behalf of a client—could not possibly have influenced what was, in his view, the only “discrete decision” before the Bureau at the time: whether to initiate an investigation into the Trump campaign’s asserted communications with the Russian bank. (emphasis added)
“The Indictment claims that Sussmann concealed from Baker that he was providing the information to the FBI in a political capacity…Specifically, Sussmann allegedly told Baker that he was not attending the meeting on behalf of any client when, in fact, he had assembled and was conveying the information on behalf of two specific clients: (1) a technology-industry executive named Rodney Joffe and (2) the Hillary Clinton presidential campaign. The FBI opened an investigation based on the information Sussmann provided, but ultimately determined that there was insufficient evidence to support the existence of a communication channel between the Trump campaign and the Russian bank.”
the Judge tore into Special Council Durham…
Again a six page order is relatively short. But remember the only issue before the Court was Sussman’s Motion to Dismiss. Even so the Judge appears to question and at times upbraid Special Counsel Durham’s sudden pivot to “likely would…may have impacted…the FBI would have scrutinized Sussman’s information” —to be clear one could argue that Durham’s are ground zero for conclusory statements. For example on page 3, which reads in part:
For his part, the Special Counsel resists the notion that the FBI faced a binary choice — i.e., to open a “full investigation” or not — in deciding how to respond the information Sussmann conveyed. He anticipates evidence at trial will show that the Bureau could have instead taken a number of incremental steps, including conducting a less formal “assessment” of the information, initiating a “preliminary investigation,” or delaying a decision until after the election. And “had [Sussmann] truthfully informed Baker that he was providing the information on behalf of one or more clients,”
On page 4 -the Judge clear.y appears to have some doubt in Durham’s pivot…and the footnotes are pretty damn important
…the Special Counsel claims, “[Baker] and other FBI personnel might have asked a multitude of additional questions material to the case initiation process.” According to the Special Counsel, those potential questions and other behind-the-scenes investigatory steps likely would have explored Sussmann’s motivations and those of his clients for bringing the information to the FBI’s attention, which, in turn, the Special Counsel submits, may have influenced both whether and what type of investigation to open.
I’d now like to draw your (hopefully undivided) attention to pages 2 thru 5 -specifically the footnotes. I mean the fact on page 3 the Court cites USA v Harmon (you can read more here and here —I followed that case for years. And I’m pretty sure some of my readers remember the many (and I mean many) Helix Threads —where I repeatedly stated: “hey there’s new case law here and you should keep an eye on this case because the cryptocurrency isn’t bad -it’s people like Larry that sully cryptocurrency” —but with respect to Sussman —the Judge states some frustration
…When evaluating a motion to dismiss a criminal indictment, the court is bound by the language of the indictment, and must assume the truth of its factual allegations. United States v. Knowles, 197 F. Supp. 3d 143, 149 (D.D.C. 2016). Sussmann maintains that the Court therefore cannot consider the Special Counsel’s arguments about what the evidence at trial “will prove.” Reply at 11. While the Court cannot consider evidence outside the indictment, the Court does not read the cases Sussmann cites for the proposition that it must also disregard the arguments by the government that merely explain or describe how it will go about proving what is already charged in the Indictment. See, e.g., United States v. Harmon, 474 F. Supp. 3d 76, 105 (D.D.C. 2020)
As the Special Counsel argues, it is at least possible that statements made to law enforcement prior to an investigation could materially influence the later trajectory of the investigation…Sussmann offers no legal authority to the contrary.”
“...[t]he battle lines thus are drawn, but the Court cannot resolve this standoff prior to trial…”
Shittlestix are you telling me there’s a typo contained herein? But what will the spelling and grammar Police say/do? One thing I’d like to point out, the previous binding precedence. In short previous rulings have somewhat tied the Courts hands. While some might gloss over tiny details. Those who know and understand the filings will likely agree:
Durham’s Investigation has been incredibly sloppy, containing countless typos, lack of actual case law, and a constant moving of the goal post
Durham certainly appears to overlook the Grand Jury Testimony of W
...In United States v. Gaudin, the Supreme Court unanimously held that because materiality is an element of a § 1001 offense, it is a question that generally must be answered by a jury. 515 U.S. 506, 512 (1995). Indeed, all the cases Sussmann cites where courts have found alleged false statements to be immaterial were decided after a trial and on appeal from post-trial motions under Rule 29.
Additional Court Filings…
On April 15, 2022 a flurry of filings (technically this goes back to April 6th 2and 8th, respectively 3 ) Defendant Sussman filed the following and I’m going to figuratively and literally highlight the important bits. This particular filing is almost exclusively concerning Special Counsel Durham’s efforts to introduce “other” evidence. Specifically Defendant Sussman’s main argument pursuant to Rule 404(b) or Rule 403 —that Durham’s disclosure letter (dated March 30, 2022) was untimely and violated the two aforementioned Rules of Procedure. In layman’s terms, every Defendant is afforded certain rights. When a criminal trial commences, that’s typically the culmination of (months) of pre-trial motions. In short the Government (unless is extraordinary circumstances) is precluded from entering “new” or previously undisclosed evidence. And if you read the Government’s March 30th “notice” —it certainly appears Durham’s team is dangling the “other evidence” as a tactic, that’s not unexpected. To be frank Special Counsel Durham has (repeatedly) played fast and loose --and Rules are rules.
Memorandum in Opposition by MICHAEL A. SUSSMANN re 61 MOTION in Limine -46 pages (see ECF or Scribd)
Exhibit C -28 pages (see ECF or my Scribd Account) “other acts” …evidence proffered pursuant to Rule 404(b) and moves to exclude several categories of evidence or argument contained therein.
Also see April 4, 2022 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 by MICHAEL A. SUSSMANN (ECF or via my Scribd)
When I say that Defendant Sussman’s April 15, 2022 Memorandum in Opposition -is blistering —allow me to provide you an example. Not that this matters, when filing an opposition and this is your opening salvo… I don’t think it’s necessary but boy did I thoroughly enjoy reading it:
…with no apparent sense of irony, he spends the bulk of his Motion literally trying to prove a conspiracy theory—a so-called “joint venture” that even he concedes was lawful—in order to convince this Court to admit into evidence numerous confusing, irrelevant, and prejudicial emails that Mr. Sussmann did not send, receive, or even have knowledge of…
But there are a few really important facts contained within Sussman’s April 15, 2022 Opposition. Special Counsel Durham provided Sussman with “Notice” of expert testimony of Former FBI -in Sussman’s Opposition. The amount of spelling and grammatical errors in the Special Counsel’s previous filings is just plain sloppy lawyering and it’s embarrassing (the irony of that statement is not lost on me hence the prolific use of “[ ]” when Sussman is citing previous filings by Durham. What’s peculiar here is neither Winestrap or Anderson have any recollection of writing those hand written notes. Apparently both former FBI employees actually stated that during their Grand Jury Testimony
No really this is why it’s important to read the entire filing -again because some of the facts surrounding the purported hand written notes. In kind Defendant Sussman’s legal team has zeroed in on Durham’s fairly recent disclosures of several witnesses. For example:
…E.W. Priestap’s Grand Jury Test. at SCO-3500U-018798 (June 3, 2021) (Mr. Priestap testifying that he “[didn’t] remember why [he] wrote them down and who gave [him] the information”…
Did Durham falsely evidence? Maybe
What’s remarkable —in Sussman’s Oppo (—his defense is to question the authenticity and validity of purported handwriting notes —going as far as to suggest that one handwritten note appears to have used an entirely different font…
Mr. Priestap has expressly and affirmatively said he has “no idea” when he wrote the critical phrase—“said not doing this for any client”—a phrase that appears to have been written in a different font and at an angle, suggesting they may have even been added at some other time. See E.W. Priestap’s Grand Jury Test. at SCO-3500U-018816 (June 3, 2021). Without being able to say when they wrote the Notes, Mr. Priestap and Ms. Anderson cannot establish that they took their respective notes at a time when the matters were “fresh” in their mind
Memorandum in Opposition by USA as to MICHAEL A. SUSSMANN re 66 MOTION to Exclude the Government's Proposed Expert Witness Testimony (see ECF or via my Scribd Account)
Memorandum in Opposition by USA (see ECF or my Scribd) “…as to 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”
What happens next and what to look for…
On April 11, 2022 the Court issued the following two minute orders:
MINUTE ORDER: The Court will hear oral argument on the parties' motions in limine and other evidentiary motions on April 27, 2022 at 2:00 PM in Courtroom 27A in person before Judge Christopher R. Cooper
MINUTE ORDER: The Court hereby sets the following briefing schedule regarding the government's 64 Motion to Compel. Oppositions shall be due by 4/18/2022. The government's reply shall be due by 4/25/2022.
And with that I believe you are now, more fully informed then you were a few minutes ago. I make zero apologies for the snark and granularity of this article.
As for what to be on the lookout for:
April 18, Sussman’s Opposition is due
the Government’s response is due by April 25, 2022 and,
lastly oral arguments are currently scheduled forApril 27, 2022
Lastly, please bear with me -as the various Court documents previously uploaded to Scribd, apparently never actually uploaded. I am pretty sure that this snafu occurred on the day we lost intermittent power on the Island and that’s why the documents didn’t properly upload. Conversely I’ll do my best to (re)upload the various court filings to my Scribd Account however that will likely start in earnest after COB or possibly during lunch —if my schedule permits.
As usual if you have any questions or concerns, please feel free to leave a comment.
Be Well — your fully recharged Spicy Filey… can’t say I didn’t warn you, amirite? (snort)
April 8, 2022 - Doc 66 (note the out of sequence as in Doc 65 ←which is apparently sealed): MOTION to Exclude the Government's Proposed Expert Witness Testimony by MICHAEL A. SUSSMANN.
I like the refreshed and spicy Filey.
Hope you had an awesome Easter! 🐣🦋🐰♥️