Say what you will about former Attorney General Bill Barr…
...but he deserves credit for his fantastic pick of John Durham as special counsel to investigate the origins of the phony “Trump/Russia” probe. For a long time, we all wondered what he could possibly be doing, as months and months went by without any news. But now it’s easy to understand why the case is taking so long. There’s much more to it than anyone imagined at the outset.
In his latest court filing, made Friday to counter Michael Sussmann’s attorneys’ most recent motions, Durham has shown that he'd make a great archer, as he aims right at the target and hits a rhetorical bull’s-eye. Here’s a link to the whole 16-page document.
Recall that Sussmann, conveniently the attorney for both the Hillary Clinton campaign and Rodney Joffe (Tech Executive – 1), has been charged with lying to the FBI by failing to disclose that he was acting on behalf of legal clients. He maintained that he had brought the (fake) Alfa Bank story to the FBI simply out of his sense of patriotic duty, as a concerned citizen. A couple of weeks ago, in their motion to dismiss that charge, Sussmann’s attorneys said --- try not to laugh --- that their client hadn’t lied, but that even if he HAD lied, the lie was not material to the case and was protected by the First Amendment besides, so, come on, judge, just let it go.
Durham, in his response to the First Amendment argument, took aim and said, “Far from finding himself in the vulnerable position of an ordinary person whose speech is likely to be chilled, the defendant --- a sophisticated and well-connected lawyer --- chose to bring politically-charged allegations to the FBI’s chief legal officer [James Baker] at the height of an election season.
“He then chose to lie about the clients who were behind those allegations. Using such rare access to the halls of power for the purposes of political deceit is hardly the type of speech that the Founders intended to protect. The Court should therefore reject defendant’s invitation to expand the scope of the First Amendment to protect such conduct.”
Is that not great?
As for whether his (false) statements to the FBI were material to the case, Durham was spot-on again. Imagine how things might have gone if Sussmann had been honest about his true connections, given their implied motivations. His ties to the Clinton campaign could --- at least SHOULD --- have had tremendous bearing. As Durham put it:
“Had the defendant truthfully informed the FBI General Counsel that he was providing the information on behalf of one or more clients, as opposed to merely acting as a ‘good citizen,’ the FBI General Counsel and other FBI personnel might have asked a multitude of additional questions material to the case initiation process.”
It’s hard to imagine information more material to the case than this. As Durham said, the lie was capable of “influencing both the FBI’s decision to initiate an investigation and its subsequent conduct of that investigation.”
Knowledge of these attorney-client relationships, he said, “would have shed critical light on the origins of the allegations at issue.” It goes without saying that this would certainly not have been in the interest of Sussmann’s clients, Hillary Clinton and a man trying in an underhanded way to help get her elected. Sussmann's charade was completely in their interest.
“Given the temporal proximity to the 2016 U.S. presidential election,” Durham said, “the FBI also might have taken any number of different steps in initiating, delaying, or declining the initiation of this matter had it known at the time that the defendant was providing information on behalf of the Clinton campaign and a technology executive at a private company.”
Sussmann’s attorneys had also moved to strike the “Factual Background” in Durham’s charge –- the part that went into detail about Sussmann’s ties with Clinton and Joffe as part of the larger picture. They said Durham had included that part “to politicize this case, inflame media coverage, and taint the jury pool.” We'd thought their attempt to strike that section seemed like a well-we-gotta-try-something move, as they ended up calling MORE attention to it.
Durham made it clear that there was no basis to strike any part of that motion, as the factual background was “central” to proving the allegation of Sussmann’s criminal conduct. He also said that some of it was necessary for explaining the conflicts of interest that were the point of his earlier filing about various people of interest (Sussmann included) being defended by the same law firm, Latham & Watkins.
Margot Cleveland has another great article about the filings in Durham’s case, this one saying he “demolished” the attempt to get Sussmann’s charges dropped.
Cleveland offers her usual superb analysis, making points seen nowhere else. She offers five “key takeaways” from Durham’s filing:
1. On the issue of materiality, Durham states what the correct standard for that is, stressing that it refers to the “potential,” as opposed to the actual, effects of the lie. And even using the defense attorneys’ very narrow standard, Sussmann’s alleged “misrepresentation” (lie) is still material because it could have influenced the FBI’s decision-making.
Cleveland says denial of the defendant’s motion to dismiss is “inevitable” and that Durham refuted “six ways to Sunday” the claim that Sussmann's lie was not material. It plainly was, he said, “because it misled the General Counsel about, among other things, the critical fact that the defendant was disseminating highly explosive allegations about a then-Presidential candidate on behalf of two specific clients, one of which was the opposing Presidential campaign.” Doesn't get much plainer than that.
2. Durham destroyed the Democrats’ talking point that the FBI already knew Sussmann was an attorney for the DNC. Sussmann had held himself out as a cybersecurity and national security attorney, “not an election lawyer or political consultant,” Durham wrote. So when Sussmann had denied any client relationships, he had made it seem that he was not there in a political capacity, when he was.
3. Durham countered the defense’s argument that Joffe’s status as “a long-standing respected FBI source” made Sussmann’s failure to disclose representing him immaterial. This one is a bit “in the weeds” but really interesting, so if you’re following these arguments closely, do read Cleveland’s piece.
4. Durham countered another defense argument that's also a talking point, the one saying that Trump was not the target because data brought by Sussmann was from before he was President. The special counsel made it clear that this is a distinction without a difference, as Trump clearly was the target.
5. Finally, Durham had some fun with the defense’s assertion that the charge against their client “risks valuable First Amendment speech,” calling a comparison they'd made “absurd.” Sussmann, he said, “as a former government attorney and prosecutor...was well aware that the law required him to honest and forthright when communicating with the FBI.”
I wonder --- is that even possible when furthering the interests of Hillary Clinton?