Durham unloads thousands of documents to Sussmann defense
Durham unloads thousands of documents to Sussmann defense

By Jerry Dunleavy, Justice Department Reporter

Special counsel John Durham provided 81,000 pages of discovery to indicted Democratic lawyer Michael Sussmann in his criminal inquiry into the Russia investigation, court filings show.

The reams of documents, which reveal details from grand jury subpoenas sent to 15 individuals and organizations, a university, university researchers, an investigative firm, and numerous companies. likely including opposition research firm Fusion GPS, were produced this month after lawyers representing Sussmann, who denies any wrongdoing, demanded more information while calling the allegations that he lied to the FBI five years ago vague and confusing.

A grand jury returned an indictment last month that centers on a September 2016 meeting between Sussmann and then-FBI General Counsel James Baker in which the lawyer passed along information about suspicions of covert communications between Russia’s Alfa Bank and the business of former President Donald Trump, who was the Republican presidential candidate at the time.

Although Durham alleged Sussmann told Baker he was not working for any specific client, the special counsel contends Sussmann was secretly doing the bidding of former Secretary of State Hillary Clinton’s presidential campaign while billing her team for it and working on behalf of technology executive Rodney Joffe.

The investigative firm in question is likely Fusion GPS. Durham said his office “has provided the identity of that investigative firm to the defense … even though counsel was undoubtedly already aware of that firm’s identity.”

Fusion GPS hired British ex-spy Christopher Steele in 2016 to compile his now-discredited anti-Trump dossier. Sussmann, who was a partner for the Perkins Coie law firm, met with Steele during the 2016 election and communicated with the opposition research firm that year.

Durham’s team spoke with Sussmann’s lawyers seven times in September and October “to discuss discovery issues, answer counsel’s questions, address technical issues, and preview its forthcoming discovery productions,” the court filings in the U.S. District Court for the District of Columbia said.

After Sussmann was indicted, his lawyers began to pick apart the case.

“The Special Counsel has brought a false statement charge on the basis of a purported oral statement made over five years ago for which there is only a single witness, Mr. Baker; for which there is no recording; and for which there are no contemporaneous notes by anyone who was actually in the meeting,” his lawyers said. “Not only that, but the Special Counsel has brought this false statement charge even though Mr. Sussmann has consistently maintained — including in testimony under oath — that he met with Mr. Baker on behalf of a cyber expert client.”

Sussmann’s defense team further argued, “while the indictment in this matter is 27 pages long, the majority of the allegations are not relevant to the crime the Special Counsel has chosen to charge” and, “the indictment plainly fails to provide Mr. Sussmann with the detail and clarity that the law requires and that is essential in enabling Mr. Sussmann to prepare his defense.”

The indictment “fails to allege the precise false statement that Mr. Sussmann purportedly made,” Sussmann’s lawyers added.

In the indictment , Durham said Baker spoke with Bill Priestap, the assistant director of the FBI’s counterintelligence division, after meeting with Sussmann. Priestap “took contemporaneous notes” about the Sussmann meeting, including that Sussmann had said he was not doing his work “for any client,” according to the indictment.

Durham said he provided “a copy of the … notes taken by the FBI Assistant Director, including additional notes not quoted in the Indictment” to Sussmann’s team, and on Wednesday “the government accommodated a recent request by the defense to review in-person the original notes cited in the Indictment and provided counsel access to those notes in government office space.”

The special counsel said: “upon the approval of defense counsel’s security clearances, the government will also accommodate, to the extent possible, a related request by the defense to review additional and currently-classified notes contained in the same notebook.”

“The government,” Durham said, “is working expeditiously to declassify large volumes of materials to provide to the defense” and within two weeks declassified documents will also be produced, including “more than 30 declassified reports of interviews conducted in the course of this aspect of the Special Counsel’s investigation” and “the majority of the FBI’s electronic ‘case file’ pertaining to its investigation of the Russian Bank-1 allegations.”

Among the documents the special counsel plans to hand over are “emails, memoranda, reports, and other records obtained from Agency-2,” including write-ups of Sussmann’s February 2017 meeting with the unnamed agency, when Durham says Sussmann lied again, according to the court filings.

“The defendant’s core contention — that a bill of particulars is appropriate because the Indictment lacks sufficient ‘detail and clarity’ for the defendant to prepare his defense — is without merit,” Durham wrote, adding, “But what the defendant’s motion really seeks is ‘detail and clarity’ concerning how the government intends to argue its proof to the jury — information to which he is not entitled at this stage of the proceedings. Accordingly, the defendant’s motion can most accurately be described as an attempt to gain insight into the government’s trial strategy.”

Durham said: “The Indictment outlines not only the defendant’s lie to the FBI General Counsel on September 19, 2016, in which he falsely stated that he was not providing the allegations to the FBI on behalf of any client, but also details the actions the defendant took with others to assemble the purported data and white papers. Because the motion seeks improperly to preview and limit the government’s trial evidence and theory of guilt, the defendant is not entitled to a bill of particulars.”

Sussmann’s lawyers asked the judge to grant the bill of particulars and to order Durham to provide “the exact words of Mr. Sussmann’s alleged false statement” and “the specific context in which the statement was made so that the meaning of the words is clear” as well as “the specific information Mr. Sussmann allegedly failed to disclose.”

“All of the defendant’s above-referenced arguments fail for the additional reason that all, or nearly all, of the information he seeks is or soon will be available to him in discovery materials provided by the government,” Durham said Wednesday, adding, “The government has produced, and will continue producing, voluminous discovery materials that will reveal, among other things, statements that key witnesses made in interviews with the FBI and in testimony before the grand jury. These statements and testimony will include numerous key witnesses’ recollections of the events referenced in the indictment, including their views regarding the relevance and materiality of the false statements at issue.”

Clinton tweeted about the Alfa Bank allegations in the closing days of the 2016 race on Halloween. She also shared a statement from Jake Sullivan , her foreign policy adviser who is now President Joe Biden’s national security adviser, on “New Report Exposing Trump’s Secret Line of Communication to Russia.”

DOJ Inspector General Michael Horowitz said in his December 2019 report on the Russia investigation the FBI “concluded by early February 2017 that there were no such links” between Alfa Bank and the Trump Organization. Horowitz also criticized the FBI for 17 “significant errors or omissions,” including reliance on Steele’s dossier. That research was funded by the Clinton campaign through Fusion GPS, hired by Marc Elias, who was a Perkins Coie lawyer and general counsel for Clinton’s presidential campaign.

Steele testified in a British court that Sussmann provided him with other claims about Alfa Bank’s purported ties to Russian President Vladimir Putin  during a late July 2016 meeting. These allegations made their way into a September 2016 memo that became part of the dossier, although Steele repeatedly misspells “Alfa” as “Alpha.”

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