Federal Judge Disappoints GOP & Rules Against John Durham

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Federal Judge Christopher Cooper has denied a request by Special Counsel John Durham to formally conclude that attorney Michael Sussmann was involved in a collective endeavor with Hillary Clinton’s 2016 presidential campaign, the private investigation firm Fusion GPS, and others to spread damaging information about Trump.

Sussmann has been charged with lying to the FBI about the nature of a tip he brought federal authorities about supposed data connections between Trump’s team and the Russian financial institution known as Alfa Bank. At the time, Sussmann’s firm — Perkins Coie — represented Clinton’s team and the Democratic National Committee. Prosecutors have alleged that rather than Sussmann’s tip to the FBI simply arising out of some altruistic interest in protecting national security, it was essentially a campaign effort.

“Prosecutors often argue that statements that would otherwise be impermissible hearsay under federal trial rules should be admitted because they were uttered by members of a conspiracy and show those individuals working together,” POLITICO explains, sketching out the sort of reasoning evidently behind Durham’s request to have Cooper rule that Sussmann was in cahoots with the Clinton campaign and others. Cooper concluded that the nature of the alleged joint operation targeting Trump was too theoretical to arrive at the conclusion prosecutors sought, which would have allowed the prosecution to have more leeway in bringing forth certain email messages in making their case.

“The Court will exercise its discretion not to engage in the kind of extensive evidentiary analysis that would be required to find that such a joint venture existed, and who may have joined it… While the Special Counsel has proffered some evidence of a collective effort to disseminate the purported link between Trump and Alfa Bank to the press and others, the contours of this venture and its participants are not entirely obvious,” Cooper said. The judge also appeared to characterize prosecutors’ requested course of action as potentially distracting. Trying to establish the existence of a conspiracy involving Sussmann, who isn’t charged with criminal conspiracy, would lead to a “time-consuming and largely unnecessary mini-trial,” the judge added. What Durham’s team wanted to do would “essentially amount to a second trial on a non-crime,” Cooper said.

Sussmann will soon be going to trial. He is one of three individuals who’ve been charged in connection to the investigation into the origins of the Russia probe that Durham has been leading since the Trump administration. Others include Kevin Clinesmith, an ex-FBI lawyer who pleaded guilty to (when still on the job) altering an email used in support of a successful push to obtain court approval for surveillance of one-time Trump adviser Carter Page. Clinesmith was sentenced early last year to 12 months of probation and 400 hours of community service, although prosecutors sought jail time. The email he altered was changed to characterize Page as not having been a source for the CIA, which Clinesmith said he then thought was accurate. The altered email was involved in an extension of already proceeding surveillance rather than the beginning of something new, and federal Judge James Boasberg — who handled Clinesmith’s sentencing — noted it wasn’t clear that the extension hinged on the true nature of Page’s CIA connections. So, it may not have made much of a difference.