Durham Gets Mixed Bag Decision on Motion but Clinton Team Still up a Creek Without Paddle – Opinion

Judge Christopher Cooper now weighs in on whether Special Counsel John Durham is allowed to admit evidence of a joint venture. He also discusses the context for the allegations against former Clinton lawyer Michael Sussmann.

Durham had asked the Court to review a variety of evidence that allegedly showed Sussman had lied to the FBI about the Trump-Alfa Bank smear because he didn’t want the FBI to know he was representing the Clinton campaign and tech executive, Rodney Joffe.

The judge’s decision was a bit of a mixed bag. He did limit the amount of evidence that can be presented, but he is still going to allow items in which aren’t going to benefit Sussmann nor his Clinton team. Evidence that goes toward showing the charged offense — that Sussmann lied about not working for a client — will be allowed, as will evidence of Sussmann’s motive.

Evidence of Mr. Sussmann’s client work is “part of the charged offense” because in order to prove the alleged lie to the FBI, the government necessarily must prove that Mr. Sussmann was in fact representing a client. Otherwise, this evidence may be offered for a proper 404(b) purpose, the most applicable of which is Mr. Sussmann’s purported motive for concealing the political nature of the Alfa Bank data effort.

But “the government must steer clear of evidence regarding the accuracy of the data, which the defense does not plan to place at issue, and whether Mr. Joffe’s role in the collection effort was somehow “objectionable” or illegal.” The judge said Joffe wasn’t charged and that he didn’t want to confuse the jury.


“Evidence of improper data collection by Mr. Joffe or others done without Mr. Sussmann’s knowledge is, at best, only marginally probative of his supposed motive to lie to the FBI,” Cooper wrote. “Moreover, whether Mr. Joffe, who is not on trial, violated the terms of any of his contracts with the government—let alone committed a crime—is the type of collateral issue that risks confusing the jury and distracting from the pertinent issues in the case.”

It’s unclear whether Joffe himself will testify. Sussmann had requested Cooper to allow Joffe immunity. Cooper claimed Durham had threatened Joffe to sue him in order to make it more difficult for Joffe to testify against Sussmann. Cooper declined to do so, saying he wouldn’t take such an extraordinary step, but he noted that the limits he has placed on the government’s lines of questioning about Joffe’s work might ease his concerns about self-incrimination.

So, Sussmann didn’t win the effort to grant Joffe immunity, and now he will have to testify–which isn’t going to be good for the Clinton team.

Where it went against Durham to some extent was on admitting some evidence under the principle of the “joint venture” — that Sussmann, Joffe, and the Clinton campaign were all working together to smear Trump with the Alfa Bank claim.

The Court said they weren’t even going to go there because Sussmann hasn’t been charged with conspiracy, and it is “likely to confuse the jury and distract from the issues at hand.”

The Court will not conduct an incontinence mini-trial, which is unnecessary and time-consuming to establish the extent and existence of an uncharged conspiracy for the development and dissemination of the Alfa Bank data.

However, the Court said this wasn’t stopping evidence from coming in on other grounds, if the prosecution had other justification for having the evidence admitted.

So, while this does limit Durham in some respects, he’s still going to be able to get a lot in to support his case, evidence that will likely show the bigger picture. He may still be eligible to receive more depending on the reasons he has.

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