A federal judge on Monday slapped limits on special counsel John Durham using the inaccuracy of Trump-Russia collusion claims in his prosecution of Democratic lawyer Michael Sussmann.
Sussmann was indicted last September for allegedly concealing his clients, Hillary Clinton's 2016 presidential campaign and Rodney Joffe, from FBI general counsel James Baker in September 2016 after pushing since-debunked claims of a secret back channel between the Trump Organization and Russia’s Alfa-Bank.
Durham says Sussmann similarly concealed his client, Joffe, when he pushed further Trump-Russia collusion claims to the CIA in February 2017.
Judge Christopher Cooper, an Obama appointee, said Durham would not be allowed to present detailed evidence from the CIA demonstrating the falsity of the Alfa-Bank allegations unless Sussmann argued that they were true.
Durham said he wouldn't present such evidence if Sussmann refrained from arguing that it wasn't false.
The judge said the defense team had promised at last week’s hearing it “will not seek to affirmatively prove the existence of a link between Alfa Bank and the Trump Campaign."
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“The Court will permit the government to put on evidence reflecting the FBI’s ultimate conclusions — which the Court understands to be that the Alfa Bank allegations were unsubstantiated — as well as the ‘particular investigative and analytical steps’ the FBI took to reach them,” the judge ruled. “Such evidence is relevant to the government’s theory of materiality: that Mr. Sussmann’s alleged statement that he was not representing a client caused the FBI to handle the subsequent investigation differently than it otherwise would have.”
The judge said he “will not allow representatives of the companies who maintained the servers that purportedly received communications from Alfa Bank servers to testify about their involvement in the FBI’s investigation.”
The judge also said he “will not allow extensive discussion of another federal agency’s [the CIA] investigation into the same data Mr. Sussmann provided, except to the extent that agency’s findings and analysis had direct bearing on the course of the FBI’s investigation.”
Sussmann’s lawyers objected to the various statements their client allegedly made to the CIA in 2017 being introduced as evidence during the May trial, but Durham insisted on it.
Durham revealed last week that the CIA concluded the Alfa-Bank and Russian YotaPhone claims were not “technically plausible,” did not “withstand technical scrutiny,” were “user created and not machine/tool generated," “contained gaps,” and “conflicted with [themselves].”
Durham said his prosecutors expect to cite evidence at trial reflecting that “the FBI and Agency-2 concluded that the Russian Bank-1 allegations were untrue and unsupported."
DOJ Inspector General Michael Horowitz said the FBI concluded there were "no such links," while special counsel Robert Mueller said, "It's not true." A bipartisan Senate Intelligence Committee report did not support the Alfa-Bank allegations.
Durham had pushed back on Sussmann’s efforts to limit the testimony of special agent David Martin of the FBI's cyber unit, with the special counsel saying if the defendant attempted to obtain trial testimony about the accuracy of the data he provided, then Martin would explain that the data "did not support the conclusions set forth in the primary white paper which the defendant provided to the FBI.”
The special counsel said Martin would also testify that “numerous statements in the white paper were inaccurate and/or overstated” and that people familiar with areas such as DNS data “would know that such statements lacked support and were inaccurate and/or overstated.”
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The judge said he would “largely deny” Sussmann’s motion against Martin and allow his testimony, subject to some limitations.