Today, Special Counsel John Durham provided a “discovery Update” to the court in the Michael Sussmann case. In this filing, available here, he disclosed that his team has obtained a tremendous amount of information ranging from a variety of sources – including Perkins Coie, the Hillary Clinton Campaign, and former DNC/Clinton lawyer Mark Elias.
While Sussmann has been charged with giving false statements to then-FBI General Counsel James Baker regarding the Alfa Bank/Trump Organization hoax (background here), Durham notes that the “Government also maintains an active, ongoing criminal investigation of” Sussmann’s conduct.
In other words, Sussmann’s criminal conduct likely is not limited to false statements. There is more. If we are to make an educated guess, it may have to do with the conspiracy to accuse the Trump Organization of having secret back-channel communications with Alfa Bank. We discussed the potential for a conspiracy charge here.
Now, to the evidence. Durham and his team have secured grand jury testimony from:
- Former Perkins Coie partner, and DNC/Hillary Clinton lawyer Marc Elias.
- Former FBI General Counsel James Baker
- Current CIA employees
Durham and his team have completed interviews of the following individuals:
- Former FBI General Counsel James Baker
- More than 24 other current and former FBI employees.
- Current and former employees of the CIA and DARPA.
- 12 Employees of the “internet companies” referenced in the Sussmann indictment.
- The former chairman of DNC/Clinton law firm Perkins Coie.
- A former employee of the Clinton campaign.
- Current and former employees of Georgia Tech (involved in the Alfa Hoax).
- An employee of “Tech Executive-1” – aka Rodney Joffe, a Sussmann client who assisted with the Alfa Bank hoax.
Still, there is more. Durham has obtained records/documents from:
- The Hillary Clinton Campaign
- Perkins Coie
- Hillary for America
- Fusion GPS
- A PR Firm that advised Perkins Coie regarding public statements about Sussmann’s meeting with James Baker.
- Phone logs for numerous current and former FBI employees.
- “a classified memorandum and related reports of interviews pertaining to a criminal investigation previously conducted by the U.S. Department of Justice regarding a potential leak of classified information”
- He also has secured nearly 400 e-mails between the FBI and Perkins Coie from January 2016 through June 2017.
There is also a curious paragraph discussing the fact that Durham, in January 2022 – learned from the DOJ Inspector General that they possessed “two FBI cellphones of the former FBI General Counsel to whom the defendant made his alleged false statement, along with forensic reports analyzing those cellphones.” Durham’s team is going through those cell phones now to analyze their contents.
And there will be more, with Durham stating “the Government expects to receive additional information and documents in the coming weeks that may be relevant to the charged conduct.”
While we expected some grand jury testimony, the fact that Mark Elias, the DNC/Clinton lawyer, was before a grand jury is certainly newsworthy. It’s possible that Elias’s testimony was limited to Sussmann’s involvement in the Alfa Bank hoax. As we previously noted, the Sussmann indictment provided that Durham obtained e-mails between Elias and Sussmann regarding the Alfa Bank allegations.
But consider the possibility that Durham has used the “crime-fraud exception” to compel disclosure of information and to elicit testimony. “Under the crime-fraud exception, communications are not privileged when the client consults an attorney for advice that will serve him in the commission of a fraud or crime.” In re Grand Jury Investigation, 810 F.3d 1110, 1113 (9th Cir. 2016) (citations omitted). To meet this burden, Durham had to show two things:
- That the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme.
- That Durham demonstrated the attorney-client communications for which production is sought are sufficiently related to and were made in furtherance of the intended, or present, continuing illegality. Id.
All this leads us to believe that Durham is focused on something more substantial than the false Alfa Bank allegations – perhaps the inception of it all: the claim of Russian hacking. As we have said before, consider the possibility that evidence of “Russian hacking” was placed by the DNC, Perkins Coie, et al. for Crowdstrike to conveniently “find.”
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