The fact that Special Counsel John Durham would release 27 pages of detailed narrative to indict one measly person on one count of making a false statement to the FBI got us wondering immediately what his purpose might have been. We’re not attorneys, but over the next couple of days, some of our favorite legal minds noticed the same thing.
Over the years, you and I have learned not to expect much in the way of justice from the “Justice” Department --- especially now, with an obvious political hack like Merrick Garland running it --- but the indictment of this Clinton attorney might be the harbinger of bigger things to come. It is likely that Hillary will escape jail once again, as she did even after using a private server to circumvent FOIA requests and destroying evidence with BleachBit and hammers, but remember: even though Nixon escaped legal accountability in the Watergate scandal, the whole story did come out. What we’re looking at is probably another situation like that.
For now, many thanks to Dan Bongino for pointing us to a superb analysis of Sussmann’s indictment on SUBSTACK by Shipwreckedcrew’s Port-O-Call. This is long but important to read.
“The Sussmann indictment reads like overt acts in furtherance of a conspiracy,” he writes, “because that’s what it is.”
He explains that the indictment on that one charge is contained in just one paragraph, Paragraph 46, which reads, “On or about September 19, 2016, within the District of Columbia, MICHAEL A. SUSSMANN, the defendant, did willingly and knowingly make a materially false, fictitious and false statement or representation in a matter before the jurisdiction of the executive branch of the Government of the United States, to wit, on or about September 19, 2016, the defendant stated to the General Counsel of the FBI that he was not acting on behalf of any client in conveying particular allegations concerning a Presidential candidate, when in truth, and in fact, and as the defendant well knew, he was acting on behalf of specific clients, namely – Tech Executive 1 and the Clinton campaign.”
That’s it. That’s what he stands accused of. What are all those other pages for? A “false statement” charge doesn’t require all that narrative. What Durham filed is called a “speaking indictment,” which “discloses information in a public document that would not otherwise be known if the indictment set forth only facts needed to meet the requirements of due process.”
“Shipwrecked” says, “In over 30 years of practice as both a federal prosecutor and a defense attorney specializing in federal cases, I’ve never before seen anything remotely resembling the Sussmann indictment in a single ‘false statement’ case.”
He writes that the facts Durham has alleged probably have at least a dozen “strings” hanging off them. Some of these are legal and others are “more in the ‘court of public opinion.’” (See Nixon, above.)
Those who are understandably cynical about the process as it typically applies to Hillary & Co. and dismayed at the length of time Durham has taken to come up with this one indictment should definitely read this analysis. “Shipwrecked” explains why it has taken as long as it has, notably regarding Durham’s search for source materials. Some materials he needed to look at could only be sought by grand jury subpoena if they were over six months old. Anything more recent needed “probable cause.”
So, what materials was Durham waiting on? At least some of them must have been billing records for Perkins Coie, some of which showed Sussmann billing Hillary’s campaign for his work relating to the phony Alfa Bank story. These were absolutely key to the indictment on the false statement. One might imagine that even after being hit with the grand jury subpoena, Perkins Coie put up a huge fight over turning over that information, as it involves attorney-client communications and attorney work product information, both of which would typically be shielded from disclosure to a grand jury.
Perhaps Durham made it clear to Perkins Coie that they themselves could be held criminally liable for their attorney’s misconduct, and that they’d better darn well cooperate.
But even if they did, attorney-client privilege applies to clients as well, which in this case include the DNC, the Clinton campaign and “Tech Executive 1.” They would have had to waive THEIR privilege for some reason. What might that reason be? This situation suggests to me that they might face some pretty fierce legal jeopardy themselves --- that they knew it could be even worse for them if they didn’t cooperate. This is one area that I hope legal experts like "Shipwrecked" will explore in detail.
He does note something called “the crime-fraud exception,” which applies when the normally privileged communications relate to a fraud that is currently occurring or might be contemplated by THE CLIENT (as opposed to the law firm) in the future. That would make sense to me, since clients like the DNC and Hillary can’t go one day without contemplating more fraud. Perhaps it had something to do with their ongoing anti-Trump activities after he was in office.
But, anyway, if you’ve been wondering, “Why is Durham taking SO LONG?,” this legal fight is one reason why.
Something else of interest: we recently reported that Marc Elias had left Perkins Coie to open his own separate firm dedicated to the Dark Art of getting more Democrats elected to office and furthering the progressive agenda. Sussmann was gone, too, on leave until resigning the day of his indictment. As “Shipwrecked” explains, catapulting these two partners might have been one way that Perkins Coie showed its willingness to cooperate with investigators to save its own sorry hide.
The reason we haven’t known about this legal fight is that Durham apparently didn’t take it before a DC grand jury. He could keep it quiet by going to any district where he had a grand jury convened. As “Shipwrecked” points out, disputes over the production of documents to a federal grand jury typically take place behind closed doors –- or, in the age of COVID, on a private Zoom call; no travel required –- and are not part of the public docket. All references to the dispute would be sealed,
I highly recommend this article, as it’s very clearly written for the non-lawyer and brings up a number of considerations we haven’t seen anywhere else. This apparently is the first installment of a series; we’re grateful for the insight and eagerly anticipate the next one. The writer mentions as a tease that another “scene of the crime” (that’s my phraseology) mentioned in the indictment as being outside the District of Columbia, is likely the CIA (“Agency -2”), headquartered in Langley, Virginia. So this gets more interesting all the time.