Government

Sussman Trial Must Be Delayed, John Durham Says, Because He's Really Bad At Discovery

Cough it up.

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Since tech lawyer Michael Sussman got indicted by Special Counsel John Durham in September for lying to the FBI, the docket has been pretty quiet. But this week we got a glimpse under the hood thanks to competing scheduling motions.

Sussman, the former Perkins Coie lawyer accused of falsely telling FBI General Counsel James Baker in 2016 that he wasn’t representing a client when he brought in dirt on a mysterious Trump Organization server, wants the trial in early May 2022. Durham, whom the far right hailed as its very own Robert Mueller when he appointed by Attorney General Bill Barr, is hoping for the end of July.

Durham’s rationale is that the government can’t possibly fulfill its discovery obligations on such a short timeline. Sussman argues that this is a piddly little false statement charge, and anyway the government is already taking advantage of the long runway to delay disclosing Brady material. As evidence of this, he enters as exhibits two recent disclosures which directly undercut the government’s allegation that Sussman explicitly denied that he went to the FBI on behalf of a client, either the Clinton campaign or the DNC.

Baker insists that he had no idea the Perkins Coie lawyer represented Democratic clients — in which case, he is probably the only lawyer in DC who hasn’t made that connection. Indeed, the only record of the conversation is in notes taken by Baker’s deputy Bill Priestap when his boss called to report on the one-on-one meeting and hand the problem off. The notes, which are probably hearsay anyway, read: “said not doing this for any client,” and immediately after “Represents DNC, Clinton Foundation, etc.”

Baker’s public testimony on the event has been totally inconsistent, and, as national security blogger Marcy Wheeler points out, there were at least two occurrences on the public record where Baker testified that Sussman had never denied that he was there on behalf of a client.

In his scheduling motion filed Monday, Sussman reveals two additional instances, which were only recently disclosed by prosecutors, in which Baker contradicted the version of events put forth in the indictment. In one, “Baker said that Sussmann did not specify that he was representing a client regarding the matter, nor did Baker ask him if he was representing a client.” And in the other, Baker described Sussman as bringing him information from “some number of people that were his clients.”

From Sussman’s motion:

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The Special Counsel’s principal rationale for a July 2022 trial date is that the Special Counsel must have until the end of March to produce unclassified and classified discovery. But it cannot be that the Special Counsel needs a total of over six months to produce discovery in a case charging a single false statement and for which there is only one witness to that statement. Rather, the delay can only be seen as an effort to slow-walk this matter, or as a result of an inadequate application of resources to the case: how else to explain, for example, that—inconsistent with the Special Counsel’s Brady obligations—it took over two months to produce even a portion of some of the textbook Brady material in this case (and only then on the eve of a status conference before this Court)?

In his reply, Durham huffs that “both of those interviews occurred years after the events in question, and Mr. Baker made these statements before he had the opportunity to refresh his recollection with contemporaneous or near-contemporaneous notes provided to the defense in discovery.” By which he appears to mean that Baker’s testimony in 2019 and 2020 about the 2016 interaction is to be discounted, but the 2021 interviews after he saw Priestap’s notes, are totally reliable.

Durham also argues that his own leisurely discovery production militates in favor of delaying the trial.

“The defendant’s request for a May 2, 2022 trial date would rush and unnecessarily truncate these events, make it exceedingly difficult for the Government to fully met its discovery obligations, and thereby prejudice the defendant, the Government, and the interests of justice,” he insists.

The parties will appear this afternoon at 2pm for a status conference before US District Judge Christopher R. Cooper. Listen in here if you’re up for a little after-lunch shenanigans.

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US v. Sussman [Docket via Court Listener]

Liz Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

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