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

AP Photo/Kevin Lamarque, Pool, File

Judge Christopher Cooper has now weighed in on the question of what evidence Special Counsel John Durham can admit regarding showing a joint venture and the background to the alleged lie with which former Clinton lawyer Michael Sussmann has been charged.

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. While he limited what could be entered into evidence, he still is going to be allowing things in that are not going to help Sussmann or the 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.

From Politico:

“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 urged Cooper to force prosecutors to grant Joffe immunity, claiming that Durham had dangled the threat of prosecuting Joffe in order to pressure him the plead the Fifth rather than testify for 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.”

Nor will the Court conduct a time-consuming and largely unnecessary mini-trial to determine the existence and scope of an uncharged conspiracy to develop and disseminate 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. And he still may be able to get in more, depending on his justification.