Apparently, While Investigating Trump-Russia, Robert Mueller and Andrew Weissmann Never Interviewed Clinton Campaign Manager Robby Mook

Apparently, While Investigating Trump-Russia, Robert Mueller and Andrew Weissmann Never Interviewed Clinton Campaign Manager Robby Mook

One of the public revelations created by the trial of Clinton lawyer Michael Sussmann is that Hillary Clinton’s campaign, Hillary Clinton’s lawyers, and Hillary Clinton’s contracted opposition research firm, Fusion GPS, manufactured the Trump-Russia collusion hoax.  How did Robert Muller not find this?

The Clinton hoax is the key takeaway within the testimony of Clinton campaign manager Robby Mook, during the Sussman trial.  Of course, every intellectually honest person who watched events unfold already knew that.  However, the DC politicians, institutions of the DOJ and FBI, and the entire corporate media world have been pretending not to know the truth for almost six years.  Now they are in a pretending pickle.

Mr. Mook was legally forced to put the truth into the official record, ironically because the Clinton lawyers needed him to in order to save themselves.  A stunned Jonathan Turley writes about the revelation HERE.  Meanwhile the journalists who received Pulitzer Prizes, for pushing the manufactured Clinton lies that Mook now admits, must avoid any mention of the testimony in order to maintain their ‘pretending not to know things‘ position.

Special Prosecutor John Durham found the truth behind the creation of the Trump-Russia hoax, and through the trial of Sussmann is now diligently passing out the bitter pill ‘I toldyaso’s’ to the small group of rebellious researchers who found this exact trail of evidence years ago.

The Clinton campaign lying is politics.  The Clinton campaign selling lies to the media is slimy, but nonetheless politics.  The media pushing those lies only showcases how corrupt they are in supporting their political allies.  However, the Clinton campaign selling those lies to the FBI is a bit more problematic; thus, the trial of Sussmann.

Having said all that; while also accepting this grand game of pretense; there’s an 800lb gorilla in the room that no one seems bothered by.

How did Robert Mueller and Andrew Weissmann spend 2 years investigating Trump-Russia; with a team of 19 lawyers, $40 million in resources, 40 FBI agents, 2,800 subpoenas, 500 search warrants and 500 witnesses; and not find out that Hillary Clinton created the hoax they were investigating?

(Source)

The question is, of course, infuriatingly rhetorical.  The 2017, 2018 and 2019 special counsel probe, led by the nameplate of Robert Mueller, was a DC cover-up operation for FBI and DOJ misconduct.  The best defense is a good offense, so they attacked President Trump by maintaining the hoax.

Media people often forget, or perhaps -again- need to pretend not to know; however, the exact same group of FBI and DOJ staff level investigative officials that originated the Trump investigation in 2016, transferred into the Robert Mueller investigation in May 2017.   It was the same people, doing the same investigation, under a different title.

The Mueller team originally consisted of the same FBI officials who received the Alfa-Bank hoax material from Michael Sussmann.

Andrew Weissmann and a group of 19 lawyers joined the effort and pulled in more resources. Yet if we are to believe the current narrative, you would have to believe those same investigators never talked to any Clinton campaign people, or Fusion GPS, or Rodney Joffe, or Marc Elias, or Michael Sussmann?… but wait, I mean, they did.. talk to Sussmann… because….. that’s what this trial is about….

…..Right?

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Michael Sussmann Defense Contradicts Itself On Another Key Argument

Michael Sussmann Defense Contradicts Itself On Another Key Argument

Rodney Joffe, the tech executive responsible for giving the Hillary Clinton campaign the data used to peddle the Alfa Bank hoax, served as a confidential human source for the FBI. Yet on at least one occasion, former Clinton campaign attorney Michael Sussmann admits relaying a tip from Joffe to a high-level Department of Justice official. That Joffe used Sussmann, and not his handler, to feed supposed intel to the DOJ supports the special counsel’s false statement charge against Sussmann, but whether the jury will learn of this fact remains to be seen.

Last fall, Special Counsel John Durham charged Sussmann with lying to former FBI General Counsel James Baker when Sussmann met with Baker on September 19, 2016, to provide Baker data and whitepapers purporting to establish a secret communications network between Donald Trump and the Russian-based Alfa Bank. Prosecutors claim Sussmann told Baker that he was sharing the information on his own, when in fact Sussmann represented both the Clinton campaign and Joffe.

Trial on the one-count false statement charge began earlier this week in a federal court in Washington D.C. Sussmann’s legal team previewed their theory of defense for the jury during Tuesday’s opening argument.

Sussmann shared the Alfa Bank data with the FBI out of a genuine national security concern and not on behalf of the Clinton campaign, they argued, telling jurors Sussmann wanted to give Baker a heads-up about an impending New York Times story. That was not something the Clinton campaign wanted, Sussmann’s lawyers maintained—even though the facts don’t fit that storyline.

The defense team also rejected the idea that Sussmann was representing Joffe when he met with Baker, telling the jurors, “Sussmann wasn’t there to promote Mr. Joffe’s interests either.” “Mr. Joffe had nothing to gain from this meeting,” Sussmann’s Latham and Watkins attorney claimed in his opening argument.

From the jury’s perspective, that argument may well seem persuasive. After all, presiding judge Christopher Cooper has already axed one motive prosecutors hoped to suggest to the jury when he ruled pre-trial that the special counsel could not admit into evidence an email Joffe sent shortly after Trump’s November 2016 victory over Clinton.

“I was tentatively offered the top [cybersecurity] job by the Democrats when it looked like they’d win. I definitely would not take the job under Trump,” the email read. But, absent evidence that Joffe had, in fact, been tempted with a position in a Clinton administration, the email would not be allowed, the court ruled, eliminating mention of that possible motive.

The defense team’s argument that Joffe had no reason to use Sussmann to share the Alfa Bank information with the FBI also received a boost when trial testimony on Tuesday revealed that at the time of Sussmann’s meeting with Baker, Joffe was a confidential human source, or a “CHS,” for the FBI. Questioning by the defense team further indicated that in September 2016, when Sussmann was allegedly meeting with Baker on behalf of Joffe, Joffe had presented his handler, FBI Special Agent Tom Grasso, a copy of the Alfa Bank whitepaper.

Not only would there be no reason for Joffe to use Sussmann to push the Alfa Bank intel to the FBI but, as Sussmann’s attorney posited during opening argument, “If anything, if Mr. Sussmann had told the FBI about Mr. Joffe, they would have taken all of this more seriously, not less, given who Mr. Joffe is.”

This line of defense is eminently reasonable, but like Sussmann’s attempt to sell the jury on the claim that the Clinton campaign did not want him going to the FBI, the facts say otherwise.

In early 2017, Sussmann told a DOJ Office of Inspector General special agent in charge that an unnamed client “had observed that a specific OIG employee’s computer was ‘seen publicly’ in ‘Internet traffic’ and was connecting to a Virtual Private Network in a foreign country.” While Sussmann did not inform the OIG of his client’s identity, in January 2022, Sussmann’s lawyers informed the special counsel’s office that his “unnamed client” was Joffe. Sussmann’s legal team also alerted Durham to the fact that Sussmann had not merely shared his tip with a special agent, but personally met with Inspector General Michael Horowitz.

So, the precise scenario Sussmann’s lawyers told the jury was illogical, according to Sussmann’s own narrative of what happened in March of 2017: Sussmann, on behalf of Joffe, shared intel with someone high-up in the DOJ, without revealing Joffe’s role in gathering the evidence—something Sussmann’s lawyers stressed would have provided the data more gravitas given Joffe’s reputation. At that time Joffe, still served as a CHS, with his termination for cause only coming years later in 2021.

What possible benefit, then, was there for Joffe to task Sussmann with meeting on his behalf with the DOJ’s inspector general, as opposed to Joffe providing the intel to his handler? Who knows! Whatever the reason, we do know that Sussmann met with the DOJ inspector general on Joffe’s behalf, without revealing his client’s identity—a scenario Sussmann’s defense claims is inconceivable.

Sussmann’s meeting with the CIA in February 2017 also follows this pattern, with Sussmann allegedly sharing supposed intel of a connection between the Russian-made Yota phones and Trump, on behalf of the unnamed Joffe. While the trial court ruled the government may admit evidence related to this February 2017 meeting with the CIA in Sussmann’s trial, the problem for prosecutors is that they must still convince the jury that Sussmann represented Joffe during the CIA meeting.

The special counsel does not face that hurdle, however, on Sussmann’s meeting with the DOJ’s inspector general, because it was Sussmann’s legal team who alerted prosecutors to the fact that Sussmann had met with the inspector general on behalf of Joffe.

Sussmann taking Joffe’s intel anonymously to the DOJ’s OIG supports the prosecutor’s argument that when Sussmann met with Baker on September 19, 2016, he was likely representing an unnamed Joffe. But whether the special counsel will seek to admit this evidence remains to be seen.


Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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Michael Sussmann Defense Contradicts Itself On Another Key Argument

Rodney Joffe, the tech executive responsible for giving the Hillary Clinton campaign the data used to peddle the Alfa Bank hoax, served as a confidential human source for the FBI. Yet on at least one occasion, former Clinton campaign attorney Michael Sussmann admits relaying a tip from Joffe to a high-level Department of Justice official. That Joffe used Sussmann, and not his handler, to feed supposed intel to the DOJ supports the special counsel’s false statement charge against Sussmann, but whether the jury will learn of this fact remains to be seen.

Last fall, Special Counsel John Durham charged Sussmann with lying to former FBI General Counsel James Baker when Sussmann met with Baker on September 19, 2016, to provide Baker data and whitepapers purporting to establish a secret communications network between Donald Trump and the Russian-based Alfa Bank. Prosecutors claim Sussmann told Baker that he was sharing the information on his own, when in fact Sussmann represented both the Clinton campaign and Joffe.

Trial on the one-count false statement charge began earlier this week in a federal court in Washington D.C. Sussmann’s legal team previewed their theory of defense for the jury during Tuesday’s opening argument.

Sussmann shared the Alfa Bank data with the FBI out of a genuine national security concern and not on behalf of the Clinton campaign, they argued, telling jurors Sussmann wanted to give Baker a heads-up about an impending New York Times story. That was not something the Clinton campaign wanted, Sussmann’s lawyers maintained—even though the facts don’t fit that storyline.

The defense team also rejected the idea that Sussmann was representing Joffe when he met with Baker, telling the jurors, “Sussmann wasn’t there to promote Mr. Joffe’s interests either.” “Mr. Joffe had nothing to gain from this meeting,” Sussmann’s Latham and Watkins attorney claimed in his opening argument.

From the jury’s perspective, that argument may well seem persuasive. After all, presiding judge Christopher Cooper has already axed one motive prosecutors hoped to suggest to the jury when he ruled pre-trial that the special counsel could not admit into evidence an email Joffe sent shortly after Trump’s November 2016 victory over Clinton.

“I was tentatively offered the top [cybersecurity] job by the Democrats when it looked like they’d win. I definitely would not take the job under Trump,” the email read. But, absent evidence that Joffe had, in fact, been tempted with a position in a Clinton administration, the email would not be allowed, the court ruled, eliminating mention of that possible motive.

The defense team’s argument that Joffe had no reason to use Sussmann to share the Alfa Bank information with the FBI also received a boost when trial testimony on Tuesday revealed that at the time of Sussmann’s meeting with Baker, Joffe was a confidential human source, or a “CHS,” for the FBI. Questioning by the defense team further indicated that in September 2016, when Sussmann was allegedly meeting with Baker on behalf of Joffe, Joffe had presented his handler, FBI Special Agent Tom Grasso, a copy of the Alfa Bank whitepaper.

Not only would there be no reason for Joffe to use Sussmann to push the Alfa Bank intel to the FBI but, as Sussmann’s attorney posited during opening argument, “If anything, if Mr. Sussmann had told the FBI about Mr. Joffe, they would have taken all of this more seriously, not less, given who Mr. Joffe is.”

This line of defense is eminently reasonable, but like Sussmann’s attempt to sell the jury on the claim that the Clinton campaign did not want him going to the FBI, the facts say otherwise.

In early 2017, Sussmann told a DOJ Office of Inspector General special agent in charge that an unnamed client “had observed that a specific OIG employee’s computer was ‘seen publicly’ in ‘Internet traffic’ and was connecting to a Virtual Private Network in a foreign country.” While Sussmann did not inform the OIG of his client’s identity, in January 2022, Sussmann’s lawyers informed the special counsel’s office that his “unnamed client” was Joffe. Sussmann’s legal team also alerted Durham to the fact that Sussmann had not merely shared his tip with a special agent, but personally met with Inspector General Michael Horowitz.

So, the precise scenario Sussmann’s lawyers told the jury was illogical, according to Sussmann’s own narrative of what happened in March of 2017: Sussmann, on behalf of Joffe, shared intel with someone high-up in the DOJ, without revealing Joffe’s role in gathering the evidence—something Sussmann’s lawyers stressed would have provided the data more gravitas given Joffe’s reputation. At that time Joffe, still served as a CHS, with his termination for cause only coming years later in 2021.

What possible benefit, then, was there for Joffe to task Sussmann with meeting on his behalf with the DOJ’s inspector general, as opposed to Joffe providing the intel to his handler? Who knows! Whatever the reason, we do know that Sussmann met with the DOJ inspector general on Joffe’s behalf, without revealing his client’s identity—a scenario Sussmann’s defense claims is inconceivable.

Sussmann’s meeting with the CIA in February 2017 also follows this pattern, with Sussmann allegedly sharing supposed intel of a connection between the Russian-made Yota phones and Trump, on behalf of the unnamed Joffe. While the trial court ruled the government may admit evidence related to this February 2017 meeting with the CIA in Sussmann’s trial, the problem for prosecutors is that they must still convince the jury that Sussmann represented Joffe during the CIA meeting.

The special counsel does not face that hurdle, however, on Sussmann’s meeting with the DOJ’s inspector general, because it was Sussmann’s legal team who alerted prosecutors to the fact that Sussmann had met with the inspector general on behalf of Joffe.

Sussmann taking Joffe’s intel anonymously to the DOJ’s OIG supports the prosecutor’s argument that when Sussmann met with Baker on September 19, 2016, he was likely representing an unnamed Joffe. But whether the special counsel will seek to admit this evidence remains to be seen.


Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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Spygate Conspirators Start Selling Their Hoax To A Washington DC Jury, But The Facts Don’t Fit

The Hillary Clinton campaign did not want its attorney, Michael Sussmann, to share the Alfa Bank data with the FBI, jurors were told yesterday during the defense’s opening arguments in the special counsel’s criminal case against Sussmann. But the information known to date, as well as the modus operandi of the Spygate players throughout the years they peddled the Russia-collusion hoax, render this argument laughable.

On Tuesday, trial in United States v. Sussmann began in earnest following a day of jury selection. At issue is whether the former Clinton campaign attorney lied to former FBI General Counsel James Baker when Sussmann provided him data and whitepapers purporting to show the existence of a secret-communications network between the Russian-based Alfa Bank and Donald Trump. Special Counsel John Durham’s team claims Sussmann lied when he shared the Alfa Bank “intel,” saying he wasn’t acting on behalf of a client, while, in fact, Sussmann represented both tech executive Rodney Joffe and the Clinton campaign.

Prosecutor Brittain Shaw set the stage for the jury, telling the 12 jurors and four alternates during opening argument that “Sussmann’s actions were part of ‘a plan to create an October surprise on the eve of a presidential election’ and to get the FBI to investigate, arguing the plan ‘largely succeeded.’”

Sussmann and Joffe “leaked the Alfa-Bank allegations to the New York Times,” Shaw continued, but “when that wasn’t published immediately, Sussmann brought a sense of urgency to the FBI about the media being on the verge of running a story.” According to prosecutors, “the FBI getting involved would make the story ‘more attractive’ to the press” and “Sussmann’s goal was to ‘inject’ the FBI into a presidential election.”

Not so, Sussmann’s lawyer Michael Bosworth countered, telling the jury in the defense’s opening argument that his client “had a genuine interest in national security” and was concerned about the data at a time when questions about Trump’s connections to Russia were swirling. According to Sussmann’s team, the Clinton campaign planned “to take this new weird thing public,” and they handed it to The New York Times. That’s what the campaign wanted—press coverage that hurt Trump and helped Clinton.

“The meeting with the FBI is the exact opposite of what the Clinton campaign would’ve wanted,” Bosworth told the jury, suggesting “the FBI quashed the news story after learning about it from Sussmann.” “The FBI meeting is something they didn’t authorize, they didn’t direct him to do, and they didn’t want him to do,” Sussmann’s lawyers argued. But once the Times was ready to publish the material, Sussmann called Baker “to help the FBI” “and warn them that a story was coming,” the defense claimed.

The evidence on all fronts suggests otherwise. First, emails exchanged between reporters and Peter Fritsch, a co-founder of the investigative research firm, Fusion GPS, that Perkins and Coie had hired on behalf of the Clinton campaign, indicate the Times was nowhere near “ready to publish the material” when Sussmann handed it off to Baker on September 19, 2016.

For instance, in one thread between Fritsch and the Times’ Eric Lichtblau, bearing the subject line “alfa and trump” and dated October 5, 2016, the duo were discussing Alfa Bank data published on Reddit, apparently by April Lorenzen. At that point, Fritsch is still telling the Times he has “no idea” where the material came from, but that “it’s either someone real who has real info or one of the donald’s 400 pounders,” whatever that meant. Fritsch then adds that the “de vos stuff looks rank to me,” in reference to the supposed communications between the Michigan health system’s computer and Alfa Bank.

Another email thread from October 18, 2016 also indicates the Times was not ready to publish the story. In that thread, Fritsch is pushing Reuter’s Mark Hosenball to run the Alfa Bank story. When Hosenball told him “the problem is that the nature of the data is way above my level of competence,” Fritsch responds, “it’s everyone’s problem” and then suggests he call David Dagon at Georgia Tech.

Then, on October 31, 2016, hours before Slate published the Alfa Bank story, in promoting the about-to-break news to Reuters, Fritsch wrote the “USG,” meaning the “United States government,” is “absolutely investigating.” This email shows Fusion GPS knew the value an FBI investigation added to a story it was pushing for the Clinton campaign.

A second problem with Sussmann’s storyline that the FBI meeting was “the exact opposite of what the Clinton campaign would’ve wanted” because it caused the government to quash the New York Times article flows from the fact Sussmann did not originally tell Baker the name of the outlet supposedly poised to publish the story.

In his congressional testimony, Baker explained that after he handed the Alfa Bank material off to the counterintelligence division, they wanted “more time to evaluate it before the media started publishing stuff.” According to Baker, agents asked him to “go back to Sussmann and find out who in the media is going to publish this because we might want to ask them to delay.”

In his testimony, Baker was fuzzy on the details and did not remember whether Sussmann had mentioned the media having the Alfa Bank material during their initial September 19, 2016, meeting or only later during a follow-up conversation. (If the latter, that will really throw a wrench in Sussmann’s theory of defense.)

What Baker stated unequivocally, however, was that Sussmann had not originally identified The New York Times as the outlet supposedly ready to run the story, and that it was only later when Baker followed up with Sussmann that they learned that fact. The FBI then “went to the New York Times” and “started a series of conversations with them to try to get them to slow down,” he said.

If Sussmann’s goal were truly to provide the FBI with a heads-up of the impending story, as his attorneys argued yesterday, he accomplished that objective on September 19, 2016. To achieve that goal, Sussmann would have no reason to answer Baker’s follow-up question concerning the name of the media outlet ready with the Alfa Bank story. In fact, as a lawyer, he would have a good reason to refuse: It was in the Clinton campaign’s interest for the story to run.

But if Sussmann instead sought to spur the media into action, sending the FBI into the arms of The New York Times proved a perfect plan, as it made the Alfa Bank story more marketable.

Here, we see a third problem with Sussmann’s line of defense: From the Steele dossier to the FISA surveillance of Carter Page, the Clinton campaign repeatedly fed the FBI and U.S. intelligence agencies supposed “intel” on Trump, which it also peddled to the press. Then it used leaks of the government’s investigation into Trump’s supposed connections with Russia to drive more media coverage of the Russia collusion story.

Yet Sussmann’s legal team told the jury the FBI meeting was something the Clinton campaign “didn’t authorize,” “didn’t direct him to do” and “didn’t want him to do.” That line of argument presents prosecutors with the perfect opening to inform the jury of the Clinton campaign’s modus operandi, and it will likely do so with the questioning of Sussmann’s former legal partner Marc Elias, who is scheduled to testify later today.


Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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This Week’s Spygate Trial Is Bad News For Hillary Clinton

This Week’s Spygate Trial Is Bad News For Hillary Clinton

Subpoenaed Fusion GPS employee Laura Seago is likely to stay mum during questioning at the criminal trial of Michael Sussmann that starts this week. Her silence will be yet further evidence that the Hillary Clinton campaign financed and seeded the Russia collusion hoax to both the press and U.S. intelligence agencies.

Jury selection is scheduled to begin this morning in a D.C. federal court in the criminal case against former Clinton campaign attorney Michael Sussmann. While Sussmann faces a single charge of making a false statement to former FBI General Counsel James Baker, proof of that federal crime requires prosecutors to show Sussmann lied when he shared Alfa Bank data and whitepapers with Baker, telling the FBI lawyer that he was not acting on behalf of a client.

To prove that lie, Durham’s team, led by long-time prosecutor Andrew DeFilippis, will present evidence to the jury that Sussmann, in fact, was acting on behalf of two clients—the Clinton campaign and tech executive Rodney Joffe. The special counsel has already previewed much of the evidence it intends to present over the course of the expected two-week trial.

Prosecutors will first seek to establish that the Alfa-Bank hoax—a conspiracy theory that claimed Donald Trump had established a secret communications channel with the Russia-based Alfa Bank—originated with Sussmann’s client, Joffe, but was then shared with the Clinton campaign through its Perkins and Coie attorneys. The testimony of Georgia Tech researcher Dave Dagon, whom the special counsel gave immunity to last summer, will be key in this regard.

In the months leading up to the 2016 presidential election, Dagon worked closely with Joffe and the originator of the Alfa-Bank data, April Lorenzen, reviewing the data and a whitepaper supposedly showing the Russia-Trump connection. According to Durham’s indictment, Dagon also collaborated with Joffe and Lorenzen to craft another conspiracy theory related to the Russian-made Yota cell phones. In February 2017, Sussmann provided the CIA data related to the Yota cell phones, claiming that the Russian phones were typically used by top Russian officials and that the data showed the cellphones being in multiple locations near Trump, including in the executive office building of the president.

Dagon’s role, however, extended further, with him serving as the go-to expert to push the Alfa Bank story in the media. Emails reveal that the private investigative firm Fusion GPS, which Perkins and Coie hired on behalf of the Clinton campaign, pushed Dagon on reporters skeptical of the Alfa Bank story. Dagon’s testimony concerning his assistance to Fusion GPS in these efforts connects the Alfa-Bank hoax to the Clinton campaign because it was Perkins and Coie who hired Fusion GPS and not Joffe.

While Dagon holds some insight on Fusion GPS’s role in feeding the Alfa-Bank hoax to the media, prosecutors have also subpoenaed Fusion GPS’s “tech maven” Seago to testify. In response, Seago’s attorney, Holly Pierson, informed the government that Seago would invoke her Fifth Amendment privilege against self-incrimination absent a court order of immunity compelling her to testify at trial. Last month, on a motion by the special counsel, presiding judge Christopher Cooper entered an order immunizing Seago and compelling her to testify.

The court’s order, however, addressed solely Seago’s right not to incriminate herself, and did not address the question of attorney-client privilege. Another ruling last week by the D.C. federal judge addressed Joffe and the Clinton campaign’s claims of attorney-client privilege.

In that order, the court held that internal Fusion GPS emails related to “ordinary media-relations work” undertaken on behalf of the Clinton campaign were not protected by attorney-client privilege. Other emails, though, including eight emails with their attachments exchanged between Sussmann, Joffe, and Fusion GPS’s Seago, were protected by attorney-client privilege according to the court.

While the court’s order last week addressed only the few dozen emails at issue, the court noted it “will apply the principles set forth above to any assertions of privilege during witness testimony at trial.” Consequently, if prosecutors seek to inquire of Seago about communications she had with Joffe about the Alfa-Bank data and whitepapers, Seago is likely to respond that she cannot answer the questions based on attorney-client privilege.

Such a rejoinder, however, during the highly publicized Sussmann trial will force focus on the basis of that claim. And the premise underlying the court’s ruling that communications between Seago, Joffe, and Sussmann were protected by attorney-client privilege was that Joffe shared a “common interest” with the Clinton campaign.

Testimony by Seago that Fusion GPS worked with Joffe to push the Alfa-Bank conspiracy theory would further the special counsel’s goal of establishing that Sussmann represented Joffe and the Clinton campaign when he met with Baker; but her hiding behind attorney-client privilege would as well.

In fact, according to court filings the special counsel issued trial subpoenas to both the Clinton campaign and the Democratic National Committee “requesting the testimony of witnesses regarding the assertion of attorney-client privilege in front of the jury,” illustrating that Durham’s team sees value in the jury hearing from witnesses that the Clinton campaign sees itself as the client related to communications relevant to the Alfa Bank data.

Likewise, if Seago refuses to answer questions regarding conversations she had with Joffe and others regarding the Alfa Bank data, prosecutors can still win from that loss, with jurors learning from the assertion of privilege that the Alfa Bank theory arose from communications with Joffe, on behalf of the Clinton campaign.

The real loser, though, will be Hillary Clinton, who risks the spectacle of a court ruling during public proceedings that Seago’s communications with Joffe were protected by attorney-client privilege given Fusion GPS’s role of assisting the Clinton campaign. And that is but a sliver of the evidence likely to come out during Sussmann’s trial connecting Clinton to Spygate.


Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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Fusion GPS Loses Its Fight Over “Privileged” Documents

Fusion GPS Loses Its Fight Over “Privileged” Documents


Fusion GPS Loses Its Fight Over “Privileged” Documents

And – how Joffe’s “privilege” can be overcome

By Techno Fog via The Reactionary

We’ve documented the ongoing battle to obtain Fusion GPS e-mails and documents in the Michael Sussmann case. At issue in the Sussmann case are 38 e-mails and attachments between and among Fusion GPS, Rodney Joffe, and Perkins Coie.

These 38 e-mails and attachments are among approximately 1,500 documents that Fusion GPS withheld from production to the grand jury based on “privilege.”

What Fusion GPS has to produce.

Today, the court in the Sussmann case made an important ruling and rejected, in large measure, Fusion’s assertion of attorney-client or work-product privilege:

Fusion GPS will have to produce these documents to Special Counsel Durham by May 16, 2022. What do these e-mails and documents contain? The court’s order provides guidance, stating they relate to:

Internal Fusion GPS e-mails discussing the Alfa Bank data and e-mails circulating draft versions of the Alfa Bank white papers that were “ultimately provided to the press and the FBI.”

Here are some examples of what these e-mails might include. These are privilege logs in Fusion GPS’s other litigation relating to the Alfa Bank hoax.

The other emails.

This leaves 16 e-mails and documents remaining. For now, Durham will not get them. These are divided into two categories:

  1. Eight of the e-mails involve internal communications among Fusion GPS employees. The court was “unable to tell from the emails or the surrounding circumstances whether they were prepared for a purpose other than assisting Perkins Coie in providing legal advice to the Clinton Campaign in anticipation of litigaiton.” Coming from the court, that’s a long way of saying that the sworn declarations of Fusion/Clinton lawyers (Levy and Elias) were sufficient to meet the “privilege” burden. This doesn’t mean that Durham can’t overcome this hurdle – just that it hasn’t been overcome yet.
  2. The other eight e-mails and attachments include those among Fusion GPS’s Laura Seago, Sussmann, and Rodney Joffe. The court observed that the e-mails are consistent with Joffe’s assertion of privilege.

With respect to the Joffe e-mails, we note that he is still a subject – perhaps a target – of the Special Counsel’s investigation. Here’s a portion of the transcript from an evidentiary hearing in the Sussmann case that discusses their ongoing investigation into Joffe:

Because the investigation into Joffe is ongoing, it makes sense that the Special Counsel is hesitant to disclose to the court information that could overcome this purported “privilege.” Keep in mind the crime-fraud exception, where communications are not considered privileged where they “are made in furtherance of a crime, fraud, or other misconduct” (citation omitted). In other words, the Special Counsel may still be able to get Joffe’s e-mails – assuming Joffe is charged under 18 USC 1031. He can also get them through the grand jury process, as we saw with Mueller’s investigation of Paul Manafort.1

I’ll also add that the fact that privilege applies to some of these documents strengthens the Special Counsel’s argument that Sussmann was representing a client when he met with then-FBI General Counsel James Baker in September 2016.

As to the e-mails and documents Durham will obtain, he cannot use them during trial. The court considered Durham’s efforts to be too close to the May 16, 2022 trial date to allow these e-mails and documents into trial. I’m not sure that matters. Sussmann is facing a false statement charge, and the court observed these e-mails are not “particularly revelatory.”

Finally, while “Court takes no position on the other approximately 1500 documents that Fusion GPS withheld as privileged,” we can assume based on this ruling that the majority of those documents would not be privileged. Durham will likely get most of them.

For those interested: After I wrote this post, New York Times reporter Eric Lichtblau filed this request for a protective order. Lichtblau will be called as a witness by Sussmann’s attorneys to discuss “communications between Mr. Sussmann and Mr. Lichtblau” – meetings at which Rodney Joffe was present (that confidentiality privilege was waived).

The Special Counsel has refused to limit Lichtblau’s testimony to that narrow topic:

Durham is taking this position because Lichtblau was in contact with Peter Fritsch (and Glenn Simpson) of Fusion GPS leading up to the 2016 election. Fritsch was feeding Lichtblau Fusion “opposition research” (what we might accurately call bullshit), and Lichtblau was at least somewhat receptive, though not salivating like Franklin Foer. These are relevant to the broader “media relations” strategy that Sussmann and Fusion GPS pursued on behalf of the Hillary Clinton campaign.

Here are the e-mails:

**********

(TLB) published this article by Techno Fog via The Reactionary with our appreciation for the coverage

Header featured image (edited) credit: Durham/FOX NEWS screen shot

Emphasis added by (TLB) editors

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Court Agrees To Let Spygate Cabal Hide Some Of Their Emails From The Grand Jury

Court Agrees To Let Spygate Cabal Hide Some Of Their Emails From The Grand Jury

Tech executive Rodney Joffe may assert attorney-client privilege for communications he had with employees of Fusion GPS because those communications furthered Joffe and the Clinton campaign’s common interest, a federal judge presiding over the criminal case against Michael Sussmann ruled yesterday. Prosecutors will now be greatly limited in the material they may elicit from one of the two witnesses granted immunity in exchange for their testimony against Sussmann.

Sussmann, whose trial in a D.C. federal court on a false statement charge is set to begin on Monday, scored a victory Thursday when presiding judge Christopher Cooper rejected Special Counsel John Durham’s attempts to present the jury copies of emails previously withheld by Joffe, the Clinton campaign, and the Democratic National Committee as privileged. The ruling came in response to Durham’s motion to compel Fusion GPS to provide the court, for in camera review, 38 emails the investigative research firm withheld from the grand jury based on the Clinton campaign’s claim of attorney-client privilege and work-product privilege. The latter protects notes, memoranda, and other communications capturing the mental impressions of an attorney, or those helping an attorney prepare for litigation.

Of the 38 emails, the court held that the Clinton campaign “had no valid basis to withhold 22 of” them. Those emails, the court concluded, did not concern legal advice but involved Fusion GPS employees’ interactions “with the press as part of an affirmative media relations effort by the Clinton Campaign.” “That effort,” the court noted, “included pitching certain stories, providing information on background, and answering reporters’ questions.”

Among the emails related to the “ordinary media-relations work” undertaken on behalf of the Clinton campaign were “internal Fusion GPS discussions about the underlying data and emails circulating draft versions of one of the background white papers that was ultimately provided to the press and the FBI.” Because those emails were not written in anticipation of litigation, but instead related “solely to disseminating the information they and others had gathered,” the court held the emails were not protected by either attorney-client privilege or work-product privilege.

Although the court held those 22 emails and the related attachments were not protected by attorney-client privilege, Judge Cooper nonetheless concluded that the special counsel’s office waited too long to file its motion to compel. “As a matter of principle,” the court explained, it would not “put Mr. Sussmann in the position of having to evaluate the documents, and any implications they might have on his trial strategy, at this late date.” Accordingly, the court held, “the government will not be permitted to introduce the emails and attachments that the Court has ruled are not subject to privilege.”

In reaching this conclusion, Judge Cooper noted that the emails did not appear “particularly revelatory,” suggesting there will be little harm to the special counsel’s case against Sussmann from the court’s ruling that the emails will be inadmissible at trial. And beyond the Sussmann case, the court’s ruling inures to the special counsel’s benefit because it establishes a precedent for Durham’s team to seek access to other communications withheld based on the Clinton campaign’s claims of attorney-client privilege. In total, there were nearly 1,500 other documents Fusion GPS withheld as privileged that the special counsel’s office may move to compel the production of as part of future grand jury proceedings or trials.

While that aspect of yesterday’s ruling proves positive for the broader special counsel’s investigation, the court’s conclusion that 16 of the 38 other emails remain privileged creates larger problems for Durham’s team. Eight of those emails also involved internal communications among Fusion GPS employees, the court noted, but because the court was “unable to tell from the emails or the surrounding circumstances whether they were prepared for a purpose other than assisting Perkins Coie in providing legal advice to the Clinton Campaign in anticipation of litigation,” the court deferred to claims by Fusion GPS’s attorney Joshua Levy and Clinton campaign attorney Marc Elias that the emails related to legal advice.

Given that Elias maintained all the emails were protected by attorney-client privilege, the court’s unquestioningly accepting his word seems strange. And if a court applies the same standard to assess whether the remaining approximately 1,500 emails are privileged, the special counsel’s office may face challenges obtaining much that matters.

But it was the court’s ruling concerning the final eight emails that has the most immediate effect on the special counsel’s office, namely its prosecution of Sussmann for allegedly lying to former FBI General Counsel James Baker. The last eight emails, with attachments, consisted of two email chains initiated by Joffe to both Sussman and Fusion GPS employee Laura Seago. In opposing disclosure of the email threads, Joffe asserted that “the purpose of the [] communications at issue was to obtain [Fusion’s] assistance in cybersecurity and technical matters to allow Mr. Sussmann to provide [Mr. Joffe] competent, informed legal advice.”

The court held that Joffe’s communications to Sussmann were protected by attorney-client privilege even though the emails included a non-lawyer, Seago, because attorney-client privilege extends to communications by third parties that an attorney hires to facilitate “the effective consultation between the client and the lawyer.” In reaching this conclusion, the court reasoned that Seago’s “involvement related to the technical analysis of the data, which would naturally inform Mr. Sussmann’s advice to his client about the data.”

The court, however, ignored the fact that Fusion GPS, for whom Seago worked, was hired by Perkins Coie to assist the Clinton campaign and the DNC, not Joffe. And Joffe did not pay for Fusion GPS’s services, nor did Perkins Coie charge Joffe. Further, as the special counsel noted in its briefing of the issue, “Perkins Coie also had no agreement, contract, or other arrangement reflecting that Fusion GPS was providing services specifically to aid Perkins Coie’s legal representation of [Joffe].”

Nonetheless, the court held the email threads between Joffe, Sussmann, and Seago were protected by attorney-client privilege based on case law holding communications that further “a common interest” are protected. What the court didn’t say, though, but what must be true under privilege law and “the common interest rule” is that the court believed the communications furthered a common goal of Joffe and the Clinton campaign.

“The joint defense privilege,” or “the common interest rule,” is “an extension of the attorney-client privilege that protects from forced disclosure communications between two or more parties and/or their respective counsel if they are participating in a joint defense agreement.” The common interest rule “protects communications between the parties where they ‘are part of an on-going and joint effort to set up a common defense strategy’ in connection with actual or prospective litigation.” That rule applies to communications subject to the attorney-client privilege, including communications with technical experts retained to assist in the legal defense.

In this case, as prosecutors stressed in their briefing, there was no “formal or informal legal relationship” between Joffe and the DNC and the Clinton campaign. Case law holds, however, that the “parties need not agree in writing to pursue a common interest; the doctrine permits an exchange of confidential information when the parties have clearly and specifically agreed in some manner to pool information for a common goal.” But “without a written agreement, the party’s burden of proving that a statement was made in the common interest will undoubtedly be more difficult.”

Yet, even without a written agreement, the court found a “common interest” existed to protect Joffe’s communications with Fusion GPS’s Seago, who was hired by Elias to provide legal support to the Clinton campaign. And what was that “common interest?”

According to Joffe, he hired “Sussmann to assist him in a specific legal matter – namely, to advise him how to share sensitive information concerning an extremely litigious Presidential candidate with either investigative journalists or Government agencies without revealing his identity and exposing himself to potential liability, frivolous litigation, and/or threats of violence and/or harassment.”

So, in concluding a “common interest” existed between Joffe and the Clinton campaign, the court implicitly also found “the parties have clearly and specifically agreed in some manner to pool information for a common goal,” here the goal of feeding the press and the government the Alfa Bank hoax.

The end results then are that the special counsel’s office cannot compel Fusion GPS to turn over the eight emails between Joffe, Sussmann, and Seago. But yesterday’s holding has broader consequences for the trial because, in closing its 11-page opinion, the court noted that it “will apply the principles set forth above to any assertions of privilege during witness testimony at trial.”

That means if prosecutors seek to elicit testimony from Seago, or any other employee of Fusion GPS for that matter, on various communications with Joffe, the court could rule the questions out of bounds based on attorney-client privilege. Given that the special counsel was forced to provide Seago with immunity to obtain her testimony at Sussmann’s trial, the court’s ruling yesterday represents a setback to Durham’s case.

Durham does have a few options, including asking the appellate court to resolve the issue of privilege before the trial starts. Prosecutors may instead decide to push forward and play any claim of privilege by Seago on the stand to their advantage, using it as further evidence that Sussmann was representing Joffe and the Clinton campaign when he presented Baker with the Alfa Bank material. They may also point to the “common interest” underlying the privilege analysis as proof that yes, there was a joint venture between the Clinton campaign, Joffe, and others, sufficient to overcome the defendant’s hearsay objections to other evidence.

Whether yesterday’s ruling represents an overall loss to Sussmann or the special counsel is yet to be seen, but what is clear is that it is another damning indictment of Hillary Clinton.


Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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Spygate Judge Tries To Protect Hillary Clinton In Latest Pre-Trial Rulings

Spygate Judge Tries To Protect Hillary Clinton In Latest Pre-Trial Rulings

The Obama-appointed judge presiding over the criminal case against former Hillary Clinton campaign attorney Michael Sussmann let politics trump the law when he declared in a weekend opinion he would not rule on whether the Clinton campaign and Democratic National Committee conspired with others to peddle the Russia collusion hoax.

Special Counsel John Durham charged Sussmann last September in a one-count indictment with making a false statement to then-FBI General Counsel James Baker when Sussmann provided Baker data and “whitepapers” purporting to show a secret communication network between Donald Trump and the Russian-based Alfa Bank. According to the indictment, Sussmann told Baker he was sharing the information on his own, when, in fact, Sussmann represented both tech executive Rodney Joffe and the Clinton campaign.

With trial set to begin in one week, the last month has seen a flurry of pretrial motions—called “motions in limine”—seeking pretrial rulings on the admissibility of evidence. The court previously ruled on several of the issues the parties presented, holding in many cases that a final decision must await trial. Then, late Saturday, presiding Judge Christopher Cooper issued a further opinion resolving many of the still-outstanding evidentiary challenges.

Overall, Cooper’s Saturday night opinion, like his previous rulings in this case, represented a studious and a balanced approach to the legal issues, with Sussmann prevailing at times, but the special counsel succeeding on other issues. For instance, in a victory for Durham, the court ruled that prosecutors could present evidence concerning how the Alfa Bank “data came into being and who was involved in its collection and analysis, as well as how Mr. Sussmann came to possess the data, what he did with it, and why.”

But the court also ruled in Sussmann’s favor, first reiterating its previous holding that unless Sussmann claims at trial that the Alfa Bank data is accurate, the government may not present evidence challenging its validity. Cooper further held that the government could not present evidence that Joffe inappropriately accessed proprietary or sensitive government information to gather the data or write the whitepapers, absent some evidence “showing that Mr. Sussmann had concerns that the data was obtained inappropriately.”

Judge Cooper further demonstrated his baseline when he confronted two more significant issues presented by the opposing parties. Sussmann scored a victory when the court held the government could not admit evidence concerning notes taken by former FBI Assistant Director Bill Priestap and former Deputy General Counsel Trisha Anderson unless they testified about their previous conversations with Baker. Even then, Judge Cooper indicated that at most the jury would likely only be read the contents of the notes, as opposed to receiving the notes themselves as exhibits to view.

Such a limitation will surely inure to Sussmann’s benefit because seeing in writing Priestap’s notation, “Michael Sussman[n]—Atty: Perkins Coie—said not doing this for any client” and Anderson’s note, “Sussman[n] Mtg w/ Baker,” “No specific client but group of cyber academics talked w/ him abt research,” would likely strike a more solid punch than merely hearing their testimony.

Sussmann, however, failed in his attempt to force the government to provide Joffe immunity so Joffe would be willing to testify in Sussmann’s defense. Sussmann had argued that the government had no reasonable basis to claim that Joffe remained a target of a criminal investigation given that the five-year statute of limitations for false statements had run, and that therefore the special counsel’s threat of prosecution served solely to induce Joffe to plead the fifth and refuse to testify on behalf of Sussmann.

Not only did the court reject this argument, in doing so the court stated—simply and without commentary—that “the Special Counsel’s continued representation that Mr. Joffe is a subject of its investigation, rather than simply a witness, does not amount to prosecutorial misconduct on this record.” Given that Sussmann framed the government’s claim that Joffe remained a target as unbelievable, the court’s refusal to question the special counsel’s representation illustrates Judge Cooper’s baseline apolitical equilibrium.

The Obama appointee faltered, however, on the Clinton campaign and handling the special counsel’s argument that various emails, even if they were hearsay, were admissible under the “co-conspirator statement” exception to the hearsay rule. At issue were emails between Joffe and the Georgia Tech researchers Manos Antonakakis, Dave Dagon, and April Lorenzen, the “originator” of the Alfa Bank data whom Joffe had allegedly tasked to mine internet data to find a Trump-Russia connection.

After concluding some, but not all, of the emails were hearsay, the court addressed the government’s argument that the emails were admissible under federal rules of evidence as “a co-conspirator statement.”

First, Some Lawsplaining

Under federal rules of evidence, a statement made by a “co-conspirator” of a defendant “during and in furtherance of the conspiracy” is admissible even though it is hearsay. Hearsay is an out-of-court statement, oral or in writing, that is presented to the jury to prove the truth of the matter asserted in the statement.

The “conspiracy” need not be criminal, however, for a statement made by another member of the “conspiracy” to be admissible, with courts typically calling non-criminal conspiracies “joint ventures.” But before a court may admit a statement under this “co-conspirator” exception, it must find “by a preponderance of the evidence” that such a conspiracy or joint venture existed. (A “preponderance of the evidence” means it is more likely that a conspiracy existed than that it didn’t, i.e., that the court is 50.1 percent sure there was such a joint venture.)

The Joint Venture

In the Sussmann case, the special counsel submitted that Joffe, Sussmann, and the Clinton campaign (or its agents) were “acting in concert toward a common goal”—i.e., “assembling and disseminating the [Alfa Bank] allegations and other derogatory information about Trump to the media and the U.S. government.” The Georgia Tech researchers and Lorenzen were also part of this joint venture, according to prosecutors.

Judge Cooper, however, refused to consider whether such a joint venture existed, stating instead that, for a variety of reasons, his court was exercising “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.”

A court is well within its discretion to refuse to undertake a “lengthy journey” to assess whether a “joint venture” existed and thus whether the various emails are admissible under the “co-conspirator statement” exception to the hearsay rule. But in the same breath that he declared himself unwilling to make this excursion, Judge Cooper contradicted his own reasoning.

“The government has indicated that it intends to call one or both of the Georgia Tech researchers at trial,” Judge Cooper wrote. “Either of them could testify to their role in assembling the data, how they came to be tasked with the project, and whether they believed the research was done for the Clinton Campaign or some other purpose.”

Thus, contrary to the court’s rationale, there is no “lengthy journey” to traverse: The court need only wait until trial to allow the government to elicit from witnesses testimony confirming the “joint venture”—something Cooper ruled they “could” testify about. In fact, in its brief in arguing the emails were admissible as “co-conspirator” statements, the special counsel’s office noted that a court could “preliminarily admit hearsay statements of co-conspirators, subject to connection through proof of conspiracy.”

But Judge Cooper didn’t even need to admit the emails were “subject to connection through proof of conspiracy.” All the Obama appointee needed to do was follow the same approach he did when confronted with other evidentiary issues that were unclear or where the admissibility depended on the proof at trial: wait for trial to issue a ruling.

Further, ruling on the admissibility of the emails based on the “co-conspirator” exception to the hearsay rule during trial would require little effort, as Cooper’s Saturday opinion itself recognized, by noting that it “has already ruled on the admissibility of many of the emails on other grounds.”

That Judge Cooper deviated from the approach he took with other evidentiary issues, namely withholding final ruling until trial, only on the question of whether the Clinton campaign had conspired to peddle the Alfa Bank hoax, suggests politics motivated that approach.

Two Other Supporting Facts

Two other details from Judge Cooper’s opinion bolster that conclusion. First, not only did Cooper declare he would not rule on the co-conspirator exception for purposes of the specific emails the special counsel’s office sought to introduce, he prejudged the importance of other emails “the Court has not yet seen.”

“Whatever few emails remain,” the court noted, “are likely to be either irrelevant or redundant of other admissible evidence,” thus negating, in the court’s view, the need to address the co-conspirator exception to the hearsay rule.

Tellingly, after announcing he would not consider the co-conspirator exception in deciding whether these still-unseen emails were admissible, Judge Cooper added that during trial he would consider whether those same emails might be admissible for a non-hearsay reason. Again, why not do the same on the co-conspirator exception?

The answer seems clear: A court declaring that Hillary Clinton’s then-lawyer had engaged in a conspiracy to “gather and spread damaging information about a Presidential candidate shortly before the scheduled election” would be a devastating blow to the Democrat.

Trying to Protect Democrats and Clinton

Judge Cooper’s efforts to counter the impact of the case on Clinton, and more broadly the Democratic Party, extend beyond merely declaring the “co-conspirator” exception off limits. Rather, in his weekend opinion, after announcing his plan to punt, Judge Cooper proceeded to question the special counsel’s theory, calling the “contours” of the joint “venture and its participants are not entirely obvious.” He then noted he was “particularly skeptical that the researchers” shared in this common goal.

Beyond being an unnecessary annotation to a case in which he expressly declined to address the co-conspirator exception, Judge Cooper’s analysis constructed a strawman to destroy. Durham’s team never claimed that the researchers joined in a conspiracy with Clinton directly, and never claimed they intended to peddle the Alfa Bank hoax to the FBI.

Rather, the joint venture concerned the shared goal of gathering and spreading damaging information about Trump and involved agents of the Clinton campaign, such as Fusion GPS. And the evidence of that joint venture was overwhelming, easily satisfying the preponderance of the evidence test. But even if Judge Cooper was not so sure about that conclusion, waiting for the trial testimony was the proper procedure, as his many earlier rulings demonstrate.

In refusing to consider the co-conspirator exception to the hearsay rule, Judge Cooper may see himself as keeping politics out of the case. After all, as the federal judge noted in the opinion, the special counsel did not charge Sussmann with a conspiracy. But a conspiracy need not be charged for the co-conspirator exception to apply, and this case is political to its core—just as the FBI’s investigation of Trump and the corrupt press’ reporting on the Russia collusion hoax was.

And Hillary Clinton was behind it all, whether the court opts to ignore the conspiracy or not.


Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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