By Margot Cleveland
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.