Updates in Sussman case and it’s a lot to cover. Chiefly Durham initially filed the 62 page exhibit NOT under seal…
There are a lot of updates. I think it’s best for you to read the docs and/or minute orders and then make your own informed opinion. I truly do not have anything constructive to say about Durham.
What. In. The. Freshest. Of. Hell. Is. This?
I’m kind of serious I think you should watch this 22 second video before reading this article because Durham’s recent filings are mind blowing and I’m coming off of a marathon day of back to back calls/meetings and I’m not in the mood to sugar coat the shitnuggets filed by Durham… yup that’s where I’m at…
There have been a bunch of updates to the Sussman case. Without going into information overload I’m going to quickly summarize what’s occurred and what filings excerpts that I “think” you should pay attention to… furthermore to give you a scope of what this article will discuss, please see below for a recent docket report …
…I. HAVE. A. TON. Of. QUESTIONS…
April 26th & 28th, Minute Orders:
To be clear none of this should surprise you. As previously discussed the “attorney client” and work product doctrine privileges were not Defendant Sussman’s to claim. And Durham’s facially benign request for “in Camera review” is in fact a gateway for Durham to (greatly) expand his investigation.
With respect to the privilege claims, that resulted in four separate 3rd party interveners filing several motions… this was previously discussed in the April 23rd article—(also see April 18th article) conversely the minute orders (and entry) actually gives us a decent amount of information:
April 26, 2022 -MINUTE ORDER (see ECF Docket report): The Court will hold a motions hearing on the government's 64 Motion to Compel on Wednesday, May 4, 2022 at 10:00 AM in Courtroom 27A (in person). The parties shall confer and propose an efficient order of argument to address the issues raised by the briefing. Signed by Judge Christopher R. Cooper on 4/26/2022.
April 26, 2022 (2nd) MINUTE ORDER (ECF Docket report) “granting 73, 78, 82, 86, 89 Motions to Intervene by Tech Executive-1, Fusion GPS, Hillary for America, Perkins Coie LLP, and the Democratic National Committee. Intervenors are directed to re-file their proposed oppositions to the government's 64 Motion to Compel Production of Documents for In Camera review on the docket. The parties are additionally directed to submit bound, tabbed copies of the briefs and exhibits associated with this motion to Chambers by Friday, April 29. Signed by Judge Christopher R. Cooper on 4/26/2022.
April 27, 2022: Minute Entry for proceedings held before Judge Christopher R. Cooper:Motion
Hearing as to MICHAEL A. SUSSMANN held on 4/27/2022 re 61 MOTION in Limine filed by USA, 58 MOTION in Limine to ExcludeTestimony or Evidence Pertaining to Former FBI Assistant Director BillPriestap's and Deputy General Counsel Trisha Anderson's Notes filed by
April 25th thru 27th Court filings…
One thing you should know, on April 25, 2022 -there was a peculiar filing by Special Counsel Durham and let me explain why this is important: when it comes to sloppy lawyering —you don’t file a motion to seal and then file the exhibit (you are asking the Court to seal) that kind of prosecutorial sloppiness tends to grate my last nerve.
April 25, 2022 Doc # 97: REPLY TO OPPOSITION to Motion by USA as to MICHAEL A. SUSSMANN re 87 MOTION for Leave to File, 82 MOTION to Intervene, 73 MOTION to Intervene, 86 MOTION to Intervene, 78 MOTION to Intervene, 89 MOTION to Intervene, 64 MOTION to Compel Production of Documents for In Camera Review, 57 MOTION in Limine to Preclude the Special Counsel from Presenting Evidence or Argument Regarding Matters Subject to the Attorney-Client Privilege -see DDC-ECF or via Scribd
April 25, 2022: Doc No MOTION for Leave to File Exhibit Under Seal by USA as to MICHAEL A. SUSSMANN. (Attachments: # 1 Exhibit to be filed Under Seal…
Because the sloppiness here is on a new level of “the hell you say” _again this is speculation on my end and I could be wrong (but I don’t think I am) Durham actually filed the exhibit on the public docket and not actually under seal. YES I pulled the filing down before corrections were made by Durham in the ECF… https://ecf.dcd.uscourts.gov/doc1/04509188521 ← document no 98, 98-1 & 98-2 are no longer available on the public docket…
But if you think I didn’t pull the documents down before they were properly placed underseal —then you don’t know how I operate. Accordingly I’ve used the ECF for over 17 years I have various alerts set up. So the moment a filing hits the public docket, I’ve already downloaded it —this is known as :the best practice” in my industry. Meaning even if it was a mistake “imma gonna capture that filing” because at first I didn’t think it was a big deal -until at 1AM this morning I reread it and audibly screamed “OMFG why is this exhibit docketed on the public docket” —See Scribd link for (now removed) Document No 98-1
And here’s what I mean the 62 page email chain see ECF Document No 98-1 which is no longer accessible on the public docket. Moreover Document # 98 and Exhibit 1, which the Special Counsel Durham) stated in his motion that the Exhibit was to be filed under seal —yet it was publicly available (for at least 30 hours. Do you see why I’m curious this hasn’t been picked up by other news organizations?
The Exhibit which is a 62 page email chain -I dare you run a word search using “Sussman” —you’ll get less than 3 hits. Moreover this exhibit appears to be solidly a “confidential communications” —thus one could and absolutely should argue: these unredacted communiques are in fact grounded in Attorney Client Privilege (and possibly work product doctrine too). Again the footer (on each page) is also pretty important. Primarily because this (sorry for yelling) UN-REDACTED email chain is part of the 3rd party interveners Privilege Claims.
🚨Speculation Alert: I would encourage you to be skeptical about my following statement, I won’t take it personally. Having closely followed to two criminal cases —Special Counsel Durham has a long and well documented history of being sloppy. I do NOT think this was an “accident” in fact I think this was entirely intentional and arguably premeditated bu Durham. This is what I’m mean when a prosecutor plays dirty…Durham is now arguing that the privilege claims by the four 3rd party intervenors is “insufficient” and that he believes that the 3rd parties have improperly because based on the time/date stamp Durham “properly” filed Doc 97 but less than 20 minutes later he filed Doc 98- thru 98-2 and that is the crux of my argument/assertion… now debate me but you better bring your A game because I’m in a mood and I didn’t drink any 1st years tears today…
As preciously intimated, there’s an interesting fact and sadly I think most will over look it, but I know my readers are not like “most people”:
—do you see the red box? That’s important because if Durham (intentionally or not) put the entirety of (see Doc 64) of the particular email chain into the public domain. That would be such a major breach of Federal Rules of Criminal Procedure and Federal Rules of Evidence ←I’m not being flippant.
I’m going to remind you that those emails in question the 3rd party interveners were granted leave from the Court and instructed to refile their responses with aggregated instructions on delivery to chambers by April 29, 2022 and the scheduled oral arguments concerning the “privilege issues” will occur on May 4, 2022 —meaning what Durham did hear isn’t okay. I’d argue what Durham did; putting the subject of the last 11+ filings (regarding attorney client privilege) just should be viewed as an attempt to “end run” the Judge —remember the Court has yet to rule on the Privilege claims. For the life of me I can not recall an instance where this kind of buffoonery didn’t impact the case in chief.
Now I should repeat there’s a chance I’m wrong, but I don’t think I am —whispers I asked a bunch of coworkers and the consensus was “holy ___” to “OMG this is bad” to “you’ve got to be kidding me” —hence why I think this filing snafu is kind of a big deal. I happen to know thousands of attorneys and I decided to ask a few earlier today… so there’s that spicy fun-nugget…
Durham’s Doc 98-1 should have NEVER hit the public docket. PERIOD.
And yes if you get the sense of fire arrows are shooting from my eyeballs —I’d say you’re probably accurate. I can not for the life of me understand why Doc 98-1 was allowed on the public docket (it’s since been placed under-seal) but I was a bit preoccupied with other obligations and I didn’t have the bandwidth to write an article about this, until tonight…I also wanted to do a bit of due diligence prior to publication…
Keep in mind that hearing (regarding 3rd party privilege) is still an outstanding issue but (and this is important) the oral arguments hearing is now scheduled —just days before Defendant Sussman’s trial is scheduled to commence…and yes I’m aware that I’m repeating myself…
Tech Executive 1 “unsupported ipse dixit…SCO’s arguments that the privilege is inapplicable fail”
…the SCO’s main argument (itself unsupported by legal authority) is that any privilege “was waived” by disclosure to a third party (U.S. Investigative Firm) because that third-party consultant was retained by the lawyer and law firm, not Tech Executive-1. Motion at ¶¶ 1, 34, 36. The SCO has it backwards. As even the cases it relies upon in the Motion confirm, the presence of a third party “whether hired by the lawyer or by the client” to act as an….
April 26, 2022: Memorandum in Opposition by TECH EXECUTIVE-1 as to MICHAEL A. SUSSMANN re 64 MOTION to Compel Production of Documents for In Camera Review (see ECF or via my Scribd Account)
On April 26, 2022 the Court issued the following order regarding Classified Materials and Durham’s inexplicable delay in seeking a protective order. Again sloppy lawyering is a pet peeve of mine. Either you come correct or don’t come at all…
ORDER granting in part and denying in part the government's 52 Classified Motion for a Protective Order Pursuant to CIPA Section 4 and Federal Rule of Criminal Procedure 16(d)(1) —see DDC-ECF or via Scribd
To be clear on April 25, 2022 Special Counsel Durham filed a motion for a protective order —in some respects I completely understand the need for a Protective Order -as the Court determined public disclosure would greatly effect our National Security. What I can not wrap my head around the fact that the Exhibit (62 pages of numerous email chains) and only one email appears to cc Defendant Sussman… this kind of sloppy over jealous prosecutorial boloney would get most attorneys (and.or their support staff) fired, like immediately. Do not pass go and collect a severance package kind of firing… The fact that we are weeks away from the commencement of Sussman’s criminal trial —it is vexing to me the Durham
And of course your daily saltwater therapy video for the day…
As a heads up it is very unlikely I’ll publish an article tomorrow because I have other obligations… and lastly bear with me as I’m trying to multitask and upload the newest court filings to my Scribd account but for now I have to draw my attention to my family and homework. If I have free time tomorrow, I’ll publish, if not I’ll publish on Friday.
Be Well
-Filey
Thx! Hang in there :)
This guy gives us Nutmeggers in Connecticut a bad name....I do not know much about lawyers but wow....this sounds kinda bad...
Be safe and be well...