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May 16, 2022

Today is the first day of the Michael Sussmann trial in federal court. He’s being prosecuted by “Russia Hoax” special counsel John Durham for lying to FBI general counsel James Baker when he said he was not speaking to them on behalf of any client. He was, in fact, representing tech executive Rodney Joffe and Hillary For America, whom billing records show he charged for the meeting.

Before we get into the trial, here’s a related item of interest, bearing on another story in the news. You know of Elon Musk’s new legal obstacle in acquiring Twitter and restoring uncensored speech? Guess who Twitter’s lead counsel happens to be? James Baker, one and the same.

No comment for now; moving on…

Former Congressman Devin Nunes, who chaired the House Intelligence Committee, and his chief investigator Kash Patel, a former national security prosecutor, are two people who have long known the story that Durham has put together. They appeared with Maria Bartiromo on SUNDAY MORNING FUTURES to preview the trial, with Patel saying, “I think John Durham is doing the most methodical prosecution I’ve seen in recent history.”

The best way to convict “is with their own documentation,” Patel observed. As in, follow the money. That’s how Durham connected the Clinton campaign with the Perkins Coie attorneys and Fusion GPS. Last week, we learned that Durham will be using as evidence the actual notes from FBI officials, which, Patel reminds us, were subpoenaed by the Intel Committee long ago but never turned over. These make it clear that Andrew McCabe and Peter Strzok knew –- before Crossfire Hurricane was opened –- that the Trump-Russia story was full of lies paid for by the DNC and Hillary’s campaign.

I would add that this might put Sussmann’s defense in a position to argue the FBI knew it was fake oppo research but didn’t care, making their client’s lie seem less consequential. That’s right --- in defending their client, they might need to admit that Durham’s big-picture narrative was TRUE. Wouldn’t that be delicious?

That big picture is what Durham describes as a “joint venture.” (We outlined recently the difficulty Durham’s had getting this Obama-appointed judge to let in anything about that.) Patel said that other indictments from “Clinton World” might be forthcoming, such as for Jake Sullivan, who’s currently Biden’s national security adviser; John Podesta and Robby Mook, who ran Hillary’s campaign; and the infamous Marc Elias, then of Perkins Coie.

Durham, he said, “has put the Clinton campaign and the FBI cabal together, in Andy McCabe’s office, with their own notes, to go and lie to an American public, a federal court, and surveil a President unlawfully. And then Andy McCabe is quoted in the notes, saying, ‘I want this Russiagate investigation to endure a year after it started’ to perpetuate the lie and the criminality of their conduct.”

Nunes went on to talk about the significance of this scandal and its broad cover-up, tying it to the current state of our institutions. “So, it starts as dirty political tricks,” he said. “Five years later, it ends up with...the deterioration over time of every institution in this country...These institutions have to be cleaned up, and Durham is the only guy in the position to get that done.”

As for whether Durham’s case will get a fair hearing from a DC jury, Patel said, “The jury can hear what they want, but they’re gonna see the FBI’s own words, Michael Sussmann’s own tweets and text messages, and that stuff doesn’t lie.”

Let’s hope they care. Meanwhile, the fight has continued over what may be presented to the jury. As Margot Cleveland details, Judge Christopher Cooper has ruled that Rodney Joffe may actually assert attorney-client privilege for his conversations with employees of Fusion GPS because those conversations “furthered Joffe’s and the Clinton campaign’s common interests.” What??

Interesting that the argument would be made at all that Joffe and the Clinton campaign HAD common interests. Did those by any chance have to do with Hillary getting elected?

But it’s true: the judge ruled on Thursday that Durham may not show the jury copies of emails previously withheld by Joffe, the Clinton campaign and the DNC. He did acknowledge that of the 38 emails, the Clinton campaign “had no valid reason to withhold 22.” Even so, he said that the Durham team had “waited too long” to file their motion to compel and so it was denied.

The judge decided on his own that these emails were “not particularly revelatory” and would add little to Durham’s case against Sussmann. (Aside: maybe it’s not the case against Sussmann he’s concerned about, but the unofficial one against Hillary For America and the DNC.)

On the other hand, Judge Cooper’s decision might benefit Durham in future litigation, Cleveland said, “because it establishes a precedent for Durham’s team to seek access to other communications withheld on the basis of the Clinton campaign’s claims of attorney-client privilege.” That relates to nearly 1,500 documents withheld by Fusion GPS as “privileged.”

Still, it might not help. Concerning the emails at issue here, Cleveland finds it “strange” that this judge would defer to Marc Elias’s claim that they ALL pertained to legal advice. (Fusion GPS attorney Joshua Levy had argued the same thing.)

Also distressing: The judge said that Joffe’s communications with Perkins Coie were privileged even though they were sent to a third party, Fusion GPS employee Laura Seago, who was involved only in the technical aspects of the data, not legal. She didn’t work for Joffe or Perkins Coie, and so wasn’t involved in the legal aspect. Even so, the court held that attorney-client privilege applied because of the “common interest.”

Say what? I’ll ask again: What was the “common interest” these three shared, other than getting Hillary elected?

And in the judge’s 11-page opinion, he said his court would “apply the principles set forth above to any assertions of privilege during witness testimony at trial.” In other words, if Durham wants testimony from Seago or any other Fusion GPS employee about communications with Joffe, it might not be allowed. This comes after Durham had to grant Seago immunity to get her testimony!

Cleveland says Durham does have a few cards he can play. He can go to the appellate court for a ruling on privilege before the trial starts. (Well, it starts today, and we haven’t heard anything about that.) He can use Seago’s claim of privilege to emphasize that Sussmann was indeed representing both Joffe and the Clinton campaign when he went to James Baker.

One other idea. Though I tell readers often that I am not a lawyer, I personally love the idea of prosecutors emphasizing to the jury this “common interest” claim being made by the defense. Because that sounds a lot like Durham’s “joint venture” claim to me --- the joint venture to smear Trump and elect Hillary President.


Here’s an informative “catch-up” on the case from the New York Post.

And here’s another good pre-trial write-up, quite even-handed, from Courthouse News Service.

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