Judge: Durham Has Limited Window for Using Collusion Claims Against Clinton Attorney

Judge: Durham Has Limited Window for Using Collusion Claims Against Clinton Attorney John Durham Special counsel John Durham. ()

By Jay Clemons | Monday, 25 April 2022 03:50 PM

A federal judge will not permit special counsel John Durham to present "extensive evidence" of previous Trump-Russia collusion claims in his case against Michael Sussmann — unless the Democratic cybersecurity lawyer argues its accuracy first.

Last September, Sussmann had been indicted for allegedly concealing his clients from FBI general counsel James Baker in September 2016, after Sussmann reportedly pushed claims of a secret back-channel between the Trump Organization and Russia's ALFA Banks.

The apparent Sussmann clients: Rodney Joffe, otherwise known as "Tech Executive-1" and Hillary Clinton's 2016 presidential campaign.

Durham also said that Sussmann had concealed Joffe's role in pushing more Trump-Russia collusion claims to the CIA in February 2017.

The Monday news comes on the heels of Durham submitting subpoena requests to the Clinton campaign and Democratic National Committee, in relation to the Steele Dossier, which was allegedly fraudulent, but still used to smear then-presidential candidate Donald Trump.

According to the Washington Examiner, the groups have previously contended that claims of attorney-client privilege should keep the records requested by Durham undisclosed.

Judge Christopher Cooper, a Barack Obama-appointed judge, said Durham wouldn't be allowed to present detailed evidence from the CIA — demonstrating the supposedly false nature of the Alfa-Bank allegations — unless Sussmann first tried to argue the veracity of the collusion claims.

In court, Durham reportedly acknowledged that if Sussmann "were to concede or decline to dispute the fact that no secret channel of communications actually existed" between the Trump Organization email server and Alfa-Bank, then prosecutors "would not seek to offer proof concerning the ultimate accuracy and reliability of the relevant data."

Judge Cooper followed by saying the defense had already promised last week it "will not seek to affirmatively prove the existence of a link between Alfa Bank and the Trump Campaign," and so "the Court will hold the government to its word, and will not allow it to put on extensive evidence about the accuracy of the data Mr. Sussmann provided to the FBI unless Mr. Sussmann does so first."

The Court "will permit the government to put on evidence reflecting the FBI's ultimate conclusions — which the Court understands to be that the Alfa Bank allegations were unsubstantiated — as well as the 'particular investigative and analytical steps' the FBI took to reach them," ruled Cooper.

The judge added: "Such evidence is relevant to the government's theory of materiality: that Mr. Sussmann's alleged statement that he was not representing a client caused the FBI to handle the subsequent investigation differently than it otherwise would have."

Judge Cooper also said he would not allow representatives of the companies "who maintained the servers that purportedly received communications from Alfa Bank servers to testify about their involvement in the FBI's investigation."

Also, the judge "will not allow extensive discussion of another federal agency's (the CIA) investigation into the same data Mr. Sussmann provided, except to the extent that agency's findings and analysis had direct bearing on the course of the FBI’s investigation."

For the upcoming May trial, the defense reportedly objected to various Sussmann statements to the CIA, circa 2017, being used in court.

However, Durham argued the comments have crossover applications. The FBI "did not reach an ultimate conclusion regarding the data’s accuracy," and the CIA concluded that the Alfa-Bank and Russian YotaPhone claims:

  • Were not "technically plausible."
  • Did not "withstand technical scrutiny."
  • Were "user created and not machine/tool generated."
  • The allegations "contained gaps."
  • And "conflicted" with previous statements.

Moving forward, Durham said his prosecutors expect to cite evidence at trial reflecting that "the FBI and Agency-2 concluded that the Russian Bank-1 allegations were untrue and unsupported."

Previously, DOJ Inspector General Michael Horowitz said the FBI concluded there were "no such links," and that special counsel Robert Mueller said, "It's not true." Also, a bipartisan Senate Intelligence Committee report did not support the Alfa-Bank allegations.

What's more, Sussmann's defense team has apparently tried in vain to limit the testimony of special agent David Martin from the FBI's cyber unit.

And last week, Sussmann's team failed in tossing the Durham indictment altogether.

Durham asserts that Martin could verify the data "did not support the conclusions set forth in the primary white paper which the defendant provided to the FBI."

Durham also said that Martin would testify that "numerous statements in the white paper were inaccurate and/or overstated," and that people familiar with the situation "would know that such statements lacked support and were inaccurate and/or overstated."

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