Federal Judge Christopher Cooper has just two big rulings left to make before the trial date of May 16 arrives, now that he’s just denied former Hillary Clinton campaign lawyer Michael Sussmann’s motion to have Special Counsel John Durham’s indictment of him dismissed.
In his ruling on the motion to dismiss, which you can find here, Judge Cooper agreed with Durham’s rebuttal of the Sussmann legal defense team’s arguments.
In his rebuttal to the motion to dismiss, Durham had argued that the issue of if Sussmann’s lie to the FBI about approaching the agency with the Alfa Bank hoax on his own and not on behalf of any client was material to the FBI’s later briefly opening an investigation into the alleged Trump/Russian connection via Alfa Bank should be decided at trial by the jury. Durham pointed out that all of the cases that Sussmann’s own lawyers cited in their motion to dismiss were all ruled on **after** the trial was over, not before.
Judge Cooper agreed, saying it would be inappropriate for him to render a ruling on the materiality of Sussmann’s false statement to FBI General Counsel James Baker when this was something that the jury should decide:
“The battle lines thus are drawn, but the Court cannot resolve this standoff prior to trial. In United States v. Gaudin, the Supreme Court unanimously held that because materiality is an element of a § 1001 offense, it is a question that generally must be answered by a jury. 515 U.S. 506, 512 (1995).
Indeed, all the cases Sussmann cites where courts have found alleged false statements to be immaterial were decided after a trial and on appeal from post-trial motions under Rule 29. See, e.g., United States v. Johnson, 19 F.4th 248 (3d Cir. 2021); United States v. Litvak, 808 F.3d 160 (2d Cir. 2015); United States v. Camick, 796 F.3d 1206 (10th Cir. 2015).
So, while Sussmann is correct that certain statements might be so peripheral or unimportant to a relevant agency decision or function to be immaterial under § 1001 as matter of law, the Court is unable to make that determination as to this alleged statement before hearing the government’s evidence. Any such decision must therefore wait until trial.”
– Judge Christopher Cooper
As for the two final rulings that Judge Cooper has yet to decide on prior to the commencement of the trial on May 16, the first one involves a motion Sussmann’s defense team filed to exclude the Special Counsel’s expert witness from testifying at the trial.
Once Cooper has dispensed with that, the last remaining dispute to be settled is the governments Motion To Compel, which is where Durham is seeking more documents from grand jury targets.
The schedule is laid out in pretty straightforward fashion on the court docket.
The oral arguments for both motions, the defenses’ Motion To Exclude and the government’s Motion To Compel will be heard by Judge Cooper on April 27 at 2:00 pm in Courtroom 27A. However, before the 27th gets here, Judge Cooper wants all the filings into him on these matters first. The defense has to have all oppositional filings in to the court by April 18, and then the government’s reply to those filings must be in Cooper’s hands by April 25th.
Cooper has to have read the filings and then hear the oral arguments from both sides on both excluding the state’s expert witness and the claims of attorney/client privilege that has been invoked by Fusion GPS, the DNC and Hillary for America to prevent the handing over of more than 1,445 documents to the Durham Special Counsel’s Office.
My prediction:
First, Sussmann’s team is going to lose on it’s Motion to Exclude the state’s expert witness.
Then right after Judge Cooper also rules in Durham’s favor on the Motion To Compel and orders all the former Hillary For America, the DNC and Fusion GPS people to hand over the documents to Durham that his grand jury subpoenaed, and once Durham has all those documents in his hands in completely unredacted form…
You will see Michael Sussman change his plea of ‘not guilty’ to ‘guilty’.
He will accept a plea deal for a reduced sentence rather than take his chances with a jury trial where he knows the Special Counsel has him cold.
It would be the only rational thing to do.
Remember if Sussmann had pleaded guilty right off the bat after being indicted last September, Durham doesn’t get to make any of the extraordinary filings he’s been making in this case for the past 6 months.
The Special Counsel would not have been able to use the case filings to slowly roll out the entire scope of the illegal private federal contractor network that Hillary Clinton was using to spy on American citizens. And then on a sitting President.
Pretty interesting how this will have worked out, isn’t it?
It could be that Sussmann’s been cooperating behind the scenes all along and we’ve been watching a fake slap fight between his legal team and the Special Counsel’s Office.
This theory is going to be bolstered if, right after Judge Cooper grants Durham’s Motion To Compel, and all these parties targeted by subpoenas who’ve been holding back thousands of key documents claiming attorney/client privilege have to reluctantly hand them over, Sussmann changes his plea.
If that happens it’s very likely we have all been watching a complex theater these past six months, and it was all about Durham using Sussmann’s supposed opposition to get his hands on all these documents in one fell swoop before the first trial starts.
And due to the cross-pollination that went on between Hillary For America/Fusion GPS/DNC/Perkins Coie/Neustar/Orbis Business Intel LLC, a lot of these documents are going to have far more in them than just Alfa Bank hoax stuff.
We’ve already learned in a recent filing that Christopher Steele, “UK Person-1” was involved in writing a draft of one of the Alfa Bank hoax white papers.
It’d been assumed up until Durham revealed it that nobody at Fusion was directly involved in the direct crafting of the Alfa Bank hoax. And then Christopher Steele popped up in the middle of it. And Fusion GPS has been fighting awfully hard against a federal subpoena for documents.
How much other cross-pollination went on is an interesting question.
I suspect Durham already has a pretty good idea. I can’t wait to see what unfolds in this case over the next few weeks.
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