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Judge Chides Durham Team for Putting Extraneous ‘Information’ in Court Documents: ‘You Folks Have an Audience of One, and That’s Me’

Photos of Michael Sussmann and John Durham.

Michael Sussmann and John Durham.

Suggesting that special counsel John Durham may be playing to the press, a federal judge overseeing his case against a Democratic Party-tied lawyer warned prosecutors and defense attorneys to be “mindful” that their filings focus on issues that matter to the court.

“Until we swear a jury in this case, you folks have an audience of one, and that’s me,” U.S. District Judge Christoper Cooper told prosecutors and attorneys for former Hillary Clinton campaign lawyer Michael Sussmann at a hearing Thursday.

Tasked with investigating the origins of the FBI’s probe into Russian interference in the 2016 presidential election, Durham accused Sussmann of lying about whether he was representing a client when he spoke to the FBI about the Trump Organization’s ties to Alfa Bank. Durham wrote in a recent filing that an attorney linked to Clinton’s campaign “exploited” data from Trump Tower and the Executive Office of the President to impugn Trump. Certain pro-Trump outlets characterized those allegations as “spying,” a claim that Durham never made. The data in question was from the public domain and collected before Trump’s tenure in office.

Judge Cooper nodded to the controversy in court on Thursday.

“I know that lawyers sometimes include things under the guise of educating the judge, I certainly did that when I was in your shoes, and I think that’s fair game. But … your pleadings in this case are under a microscope and may be employed for one reason or another by folks that have nothing to do with the ultimate question in this case. So just be mindful of that as we go forward.”

The warning came after an inquiry as to whether Sussmann agreed to waive the potential conflicts of interest that could arise from a fact that one of Sussmann’s lawyers was working for the Executive Office of the President of the United States (“EOP”) at the time that “relevant events that involved the EOP” occurred.

As Law&Crime has previously detailed, Durham last September secured a single-count indictment against Sussmann, a high-profile Perkins Coie cybersecurity lawyer who previously worked for both the Clinton campaign and for the Democratic Party. The indictment accuses Sussmann of allegedly “mak[ing] a materially false, fictitious, and fraudulent statement or representation” before an Executive Branch agency, namely, the General Counsel of the FBI (who at the time was James Baker). Durham claims Sussmann falsely denied to the FBI that he was acting on behalf of the Clinton campaign during an interview about the Trump Organization’s “secret communications channel” with Alfa Bank. The crime alleged is a purported violation of 18 U.S.C. §1001(a)(2). Sussmann has pleaded not guilty to the charge.

Durham and Sussmann sparred before the Thursday hearing by debating in dueling motions whether Sussmann lied and, if so, whether the lie was material.  But, as Law&Crime also noted, the core legal issues were for a time overshadowed by insinuations that Durham’s motion supported claims that the campaign of then-candidate Donald Trump had been spied upon — claims that were dubiously supported by written record and which Durham’s team later wrote had been  “overstated, understated, or otherwise misinterpreted” by “third parties or members of the media.”

The evening before the Thursday hearing, Durham filed a supplemental motion which sought to probe yet another area of alleged conflict of interest. In it, Durham’s team said it had “become aware of” and discussed with defense counsel . . . an additional potential conflict of interest.”

Specifically, the Durham team sought an inquiry into the law firm representing Sussmann in this proceeding, Latham & Watkins LLP, because it “has previously sought, and in some cases received, client work from the current employer (“Employer-1″) of the former FBI General Counsel whom the Government expects to call as a central witness at trial.”

The ex-FBI general counsel, James A. Baker, now works for Twitter, according to multiple reports and his LinkedIn page.

“This client work and related proposals for such work have included one or more matters involving Witness-1, who serves as Deputy General Counsel of Employer-1,” Durham wrote.

After a brief back and forth with Sussmann in which Sussmann agreed to waive any potential conflicts, Cooper said he wasn’t convinced that Durham’s filing, and Sussmann’s subsequent motion to strike, was necessary at all.

“Both sides agreed to the inquiry that the government has requested,” said Cooper, a Barack Obama appointee. “I understand there’s a need for a factual record, but that factual record could have been a consent motion agreed to by both sides, [and we] could have done it in 20 mins in a status conference.”

As to the information that Sussmann said Durham “provocatively—and misleadingly” included, Cooper indicated that he would have little patience for it going forward.

“I don’t know why the information is in there,” Cooper said. “I extend a presumption of good faith to all counsel, particularly government counsel. I don’t ascribe any ill motives … for that and other reasons I’m not going to strike anything from the record.”

“Striking it will not unring the bell,” Cooper added. “It will probably make the bell sound even louder.”

[Photo of Sussmann via YouTube screengrab; photo of Durham via U.S. Department of Justice portrait]

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