• Re: OT: John Durham loves Hillary long time! (3/3)

    From John Doe@21:1/5 to All on Wed Apr 6 22:20:52 2022
    [continued from previous message]

    relates to a matter in issue other than the defendant's character or
    propensity to commit crime; and 3) the evidence is sufficient to support
    a jury finding that the defendant committed the other crime or act.

    United States v. Bowie, 232 F. 3d 923, 930 (D.C. Cir. 2000) (internal quotations omitted).

    Although under Rule 404(b) evidence of other crimes or wrongs is not permissible to prove
    a “person’s actions conformed to his character,” United States v. Crowder, 141 F. 3d 1202, 1206
    (D.C. Cir. 1998), it is a “[Rule] of inclusion rather than exclusion” and is quite permissive,
    prohibiting the admission of other crimes evidence in but one circumstance—for the purpose of
    proving that a person’s actions conformed to his character.” United States v. Jenkins, 928 F. 2d
    1175, 1180 (D.C. Cir. 1991) (internal quotations omitted). Thus, evidence is admissible for
    purposes “unrelated to the to the defendant’s character or propensity to commit crime, such as
    “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
    or accident.” United Stated v. Cassell, 292 F.3d 788, 792 (D.C. Cir. 2002) (quoting Fed. R. Evid.
    404(b)) (emphasis in original).

    B. The Defendant’s Meeting with Agency-2.

    1. Relevant Facts.

    As discussed above, on February 9, 2017, the defendant provided a similar set of
    allegations to Agency-2 that he had previously provided to the FBI General Counsel. Specifically,
    the defendant provided Agency-2 with an updated version of the Russian Bank-1 allegations and
    a new set of allegations that supposedly demonstrated that Trump and/or his associates were using
    one or more Russian Provider-1 phones in the vicinity of the White House and other locations. In
    his meeting with two Agency-2 employees (“Employee-1” and “Employee-2”), the defendant
    made a substantially similar false statement as he had made to the FBI General Counsel, i.e., the
    defendant asserted that he was not representing a particular client in providing the updated
    allegations to Agency-2 (the “2017 False Statement”). However, as discussed above, the evidence
    at trial will demonstrate that the defendant was representing Tech Executive-1 in connection with
    his meeting at Agency-2. 10 Later that same day, Employee-1 drafted a Memorandum for the
    Record (“MFR”) that reflected the substance of the meeting including the 2017 False Statement.
    Specifically, Employee-1 wrote, in part, the following:
    Sussmann advised that he was not representing a particular client
    and the information he was volunteering to us was not privileged.
    His contacts wished to provide information to the USG through
    Sussmann, but the clients preferred to remain anonymous.

    Thereafter, employee-1 emailed the draft MFR to Employee-2 and wrote, “Here you go.
    Feel free to add/subtract/edit as needed.” On February 23, 2017, Employee-2 responded to

    Note 10. As noted above at p. 4, n.2, at the time of the meeting with Agency-2 employees in
    February 2017, the Clinton Campaign for all intents and purposes no longer existed.

    Employee-1 and attached a new version of the MFR. Employee-2 wrote, in part, “I have reviewed
    and revised the attached MFR. In the new version, Employee-2 revised the above-quoted
    paragraph to reflect the fact that the defendant had not used the term “clients” but rather “contacts.”
    Specifically, Employee-2 revised the passage as follows:
    Sussmann advised that he was not representing a particular client
    and the information he was volunteering to us was not privileged.
    His contacts wished to provide information to the USG through
    Sussmann, but the contacts preferred to remain anonymous.

    The government anticipates that Employee-2 will testify that the defendant, in fact, stated
    during the above-referenced meeting that he was not representing a particular client. (Employee-
    2 would further testify that he made the above change to the MFR in order to correct an error in
    the initial draft regarding the defendant’s words, and that the revised MFR accurately reflected
    that the defendant did not use the word “clients.”) The Government expects that Employee-1 will
    testify similarly that he recalls the defendant stating he was not representing a particular client.
    Employee-1 similarly believes that the revised MFR’s language was accurate.

    2. Discussion.
    The Government should be permitted to admit the 2017 False Statement as direct evidence
    of the charged crime. Indeed, the defendant told the same lie to Agency-2 as he did to the FBI
    about substantively related allegations. And he did so less than five months apart. Evidence of
    such a false statement to a separate government agency concerning the same and related allegations
    bears directly on the existence and nature of the charged crime and is admissible as
    evidence thereof. As the D.C. Circuit has held:
    Evidence of criminal activity other than the charged offense is not
    considered extrinsic if it is an uncharged offense which arose out of
    the same transaction or series of transactions as the charged offense,
    if it was inextricably intertwined with the evidence regarding the
    charged offense, or if it is necessary to complete the story of the
    crime of trial.

    United States v. Badru, 97 F. 3d 1471, 1474 (D.C. Cir. 1996) (quoting United States v.
    Weeks, 716 F. 2d 830, 832 (11th Cir. 1983) (per curiam). Here, evidence of the 2017 False
    Statement is necessary “to complete the story” of the charged crime because it reflects the
    defendant’s consistent and continuing efforts to disseminate information to the government while
    hiding the fact that he was representing an actual client.
    Alternatively, the Government should be permitted to admit the 2017 False Statement
    pursuant to Rule 404(b) as evidence of the defendant’s intent, preparation, knowledge, and absence
    of mistake. The 2017 False Statement is substantially the same as the false statement charged in
    the Indictment and concerns, in part, the same or similar allegations that he brought to the FBI less
    than five months before. See United States v. Long, 328 F. 3d 655, 661 (D.C. Cir. 2003)
    (“Evidence of a similar act must meet a threshold level of similarity in order to be admissible to
    prove intent.”); United States v. DeLoach, 654 F. 2d 763, 769 (D.C. Cir. 1980) (“the admissible
    bad acts evidence need not show incidents identical to the events charged, so long as they are
    closely related to the offense”). Moreover, the 2017 False Statement is highly probative of the
    defendant’s intent, preparation, knowledge, and absence of mistake in connection with the charged
    false statement. Indeed, the 2017 False Statement is exceedingly relevant because it “shows a
    pattern of operation that would suggest intent,” and such a pattern tends to defeat any innocent
    explanation for the false statement. See Long, 328 F. 3d at 661 (quoting 2 Weinstein’s Federal
    Evidence § 404.22[1][a]).
    Furthermore, the 2017 False Statement satisfies the balancing test of Rule 403. The
    statement is highly probative, as described above, and does not reflect conduct that is any more
    sensational, disturbing, or prejudicial than the charged crime. Indeed, it is the same conduct simply
    carried out on a different occasion. Therefore, the 2017 False Statement does not give rise to any
    unfair prejudice that substantially outweighs its probative value. See United States v. Bell, 795 F.
    3d 88, 99-100 (D.C. Cir. 2015) (Rule 403 balancing test satisfied where the other-acts evidence is
    not “any more sensational or disturbing” than the charged crimes) (quoting United States v.
    Roldan-Zapata, 916 F. 2d 795, 804 (2d Cir. 1990)).
    Accordingly, the defendant’s conduct supports the inference that both statements (the
    charged false statement and the 2017 False Statement) reflected a common “plan” and an “intent”
    to conceal the role of certain clients in the defendant’s work. Such evidence also further supports
    the inference that the defendant’s false statements to two different agencies were not simply a
    product of “mistake” or “accident” but, rather, reflected a deliberate effort to conceal the
    involvement of any clients in his work.

    C. Law Firm-1’s Statements to the Media.

    1. Relevant Facts.

    On October 12, 2018, Law Firm-1 issued a statement to multiple media outlets in which
    the firm stated, in part: “When Sussmann met with [the FBI General Counsel] on behalf of a client,
    it was not connected to the firm’s representation of the Hillary Clinton Campaign, the DNC or any
    Political Law Group client.” The following week, on October 18, 2018, the then-Managing Partner
    of Law Firm-1 wrote a letter to the editor of a major newspaper in which he asserted, in part, “Mr.
    Sussmann’s meeting with the FBI General [] was on behalf of a client with no connections to either
    the Clinton campaign, the DNC or any other Political Law Group client.” The Government expects
    that the evidence it will introduce at trial, including, but not limited to, the defendant’s billing
    records, will reflect that Law Firm-1’s statements to the media – which the evidence will show the
    defendant reviewed or assisted in drafting – were false (as to Law Firm-1’s statement), and at least
    partially inaccurate and/or misleading (as to the managing partner’s statement). The Government
    further expects that evidence and testimony at trial will establish that defendant failed to inform
    his law firm’s leadership that he had, in fact, billed work on the Russian Bank-1 allegations to
    Clinton Campaign.

    2. Discussion.
    Law Firm-1’s statements to the media and the defendant’s participation in the review
    and/or drafting of those statements are direct evidence of the defendant’s intent to conceal his
    representation of the Clinton Campaign with respect to the allegations the defendant brought to
    the FBI General Counsel. Indeed, evidence of the defendant’s participation in the drafting or
    review of these statements is admissible as direct evidence because his actions (and omissions) are
    “inextricably intertwined” with the charged crime. That is because they demonstrate the
    defendant’s continuing efforts over time to conceal from the FBI, the public, and some of his own
    colleagues that he carried out certain work on behalf of the Clinton Campaign. See e.g., United
    States v. Allen, 960 F. 2d 1055, 1058 (D.C. Cir. 1992). As discussed above, this evidence is
    necessary to “complete the story” of the charged crime. Badru, 97 F.3d at 1474. Alternatively, evidence of the defendant’s conduct with respect to Law Firm-1’s statements
    to the media is admissible pursuant to Federal Rule of Evidence 404(b). The defendant could have
    easily corrected Law Firm-1’s apparent belief that the defendant’s work on the Russia Bank-1
    allegations “was not connected to the firm’s representation of the Hillary Clinton Campaign, the
    DNC or any Political Law Group client.” He chose not to. This fact alone is highly probative of
    the defendant’s knowledge, intent, and plan with respect to the charged false statement. This
    evidence also tends to refute any potential defense that the defendant mistakenly failed to inform
    the FBI General Counsel that he was representing at least one client (the Clinton Campaign) at
    their September 19, 2016 meeting.

    D. The Defendant’s Congressional Testimony.

    1. Relevant Facts.
    On December 18, 2017, the defendant testified under oath before the House Permanent Select Committee on Intelligence. During that testimony, the defendant addressed
    certain questions about his participation in providing the Russian Bank-1 and Russian Phone
    Provider-1 allegations to the FBI and Agency-2. During the proceedings, the following
    exchange, in part, occurred:

    QUESTION: Okay. Did you have any other meetings with
    any other administration officials regarding
    the information you conveyed to the FBI GC
    and [Agency-2] G[eneral] C[ounsel]? Was
    there anyone else you contacted that worked
    for the Federal Government?

    DEFENDANT: Not that I recall.

    QUESTION: Okay. So those are the only two? Now, I
    want to ask you, what was the information

    DEFENDANT: The information was about communications,
    or potential communications between
    persons unknown in Russia, and persons
    unknown associated with the Trump

    QUESTION: Information that was given to you by a client?


    QUESTION: So that information was not given to you by
    any other source but the client you

    DEFENDANT: Absolutely.

    [. . .]

    QUESTION: No, that’s fair. So let me ask you this
    question: When you decided to engage the
    two principles, one, [FBI General Counsel] in
    September, and the general counsel of
    [Agency-2] in December, you were doing
    that on your own volition, based on
    information another client provided you. Is
    that correct?


    QUESTION: So what was -- so did your client direct you
    to have those conversations?


    QUESTION: Okay. And your client also was witting of
    you going to – in February to disclose the
    information that individual had provided


    QUESTION: Back to the FBI. You obviously had a
    conversation or you had a meeting at the FBI
    with [the General Counsel]. Was there
    anybody else in the room from the FBI in that
    room with you?


    [. . . ]

    QUESTION: Okay. I want to ask you, so you mentioned
    that your client directed you to have these
    engagements with the FBI and - and to
    disseminate the information that client
    provided you. Is that correct?

    DEFENDANT: Well, I apologize for the double negative. It
    isn’t not correct, but when you say my client
    directed me, we had a conversation, as
    lawyers do with their clients, about client
    needs and objectives and the best course to
    take for a client. And so it may have been a
    decision that we came to together. I mean, I
    don’t want to imply that I was sort of directed
    to do something against my better judgment,
    or that we were in any sort of conflict, but this
    was -- I think it’s most accurate to say it was
    done on behalf of my client.

    2. Discussion.

    For the same reasons as discussed above, the Government should be permitted to introduce
    the defendant’s Congressional testimony as direct evidence of the charged crime. The defendant’s
    testimony flatly contradicts his representations to the FBI General Counsel and Agency-2
    employees, i.e., that the defendant was not providing the allegations to the FBI and Agency-2 on
    behalf of any client. This evidence is “inextricably intertwined” with the charged crime. See e.g.,
    Allen, 960 F.2d at 1058. As discussed more fully below, the defendant’s “post-scheme” conduct
    is inherently intrinsic to the charged offense notwithstanding that it took place after the end of the
    period of activity charged in the indictment. As such, this evidence is probative of the defendant’s
    knowledge and intent, as well as consciousness of guilt. See United States v. Bajoghli, 785 F.3d
    957, 965 (4th Cir. 2015).
    Alternatively, and in addition, the defendant’s Congressional testimony is admissible
    pursuant to Federal Rule of Evidence 404(b) as a further reflection of the defendant’s plan and
    intent over time to obscure the origins and political nature of his work on the Russian Bank-1
    allegations. This testimony directly relates to the core fact at issue in this case: the defendant’s
    representation of clients during the September 19, 2016 meeting with the FBI General Counsel.
    Moreover, the defendant’s testimony is relevant for the additional reason that it misleadingly
    conveyed the impression to Congress that the defendant’s only client for the Russian Bank-1
    allegations was Tech Executive-1. Indeed, during points in the testimony not quoted above, the
    defendant was specifically asked if the U.S. Investigative Firm was his client in these matters, and
    whether the firm’s head or another of its employees had provided him the “information” he gave
    to the FBI General Counsel. The defendant’s answer failed to disclose or volunteer that the
    investigative firm, in fact, had drafted one of the white papers that the defendant gave to the FBI
    General Counsel. The testimony also carefully avoided mention that the only client billed for the
    defendant’s pre-election work on those allegations was the Clinton Campaign. Therefore, this
    testimony is relevant to prove the defendant’s “motive,” “knowledge,” “intent,” and “plan,” insofar
    as the defendant exhibited a consistent pattern of seeking to conceal the Clinton Campaign’s role
    as a beneficiary of, and billed party for, the Russian Bank-1 allegations.

    IV. The Court Should Exclude Evidence and Preclude Argument Concerning.

    Allegations of Political Bias on behalf of the Special Counsel.

    The Government expects that defense counsel may seek to present evidence at trial and
    make arguments that depict the Special Counsel as politically motived or biased based on his
    appointment by the prior administration. Notwithstanding the patently untrue nature of those
    allegations, such matters are irrelevant to this case and would create a substantial danger of unfair
    prejudice, confusion, and delay. In particular, the government seeks to preclude the defendant
    from introducing any evidence or making any argument concerning the circumstances surrounding
    the appointment of the Special Counsel and alleged political bias on the part of the Special
    Counsel’s Office. Indeed, the defendant has foreshadowed some of these arguments in
    correspondence with the Special Counsel and others, and their assertions lack any valid basis.
    Only relevant evidence is admissible at trial. Fed. R. Evid. 402. The definition of relevance
    is inclusive, see Fed. R. Evid. 401(a), but depends on the possibility of establishing a fact that “is
    of consequence in determining the action,” Fed. R. Evid. 401(b). Evidence is therefore relevant
    only if it logically relates to matters that are at issue in the case. E.g., United States v. O’Neal, 844
    F. 3d 271, 278 (D.C. Cir. 2016); see Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379,
    387 (2008). The party seeking to introduce evidence bears the burden of establishing relevancy.
    Dowling v. United States, 493 U.S. 342, 351 n.3 (1990).
    Here, the defendant is charged with making a false statement to the FBI General Counsel
    in violation of 18 U.S.C. § 1001. A jury will have to decide only whether the defendant knowingly
    and willfully made a materially false statement to the FBI General Counsel. Nothing more, nothing
    less. Baseless political allegations are irrelevant to the crime charged. See, e.g., United States v.
    Regan, 103 F. 3d 1072, 1082 (2d Cir. 1997) (claims of Government misconduct are “ultimately
    separate from the issue of [a defendant’s] factual guilt”); United States v. Washington, 705 F. 2d
    489, 495 (D.C. Cir. 1983) (similar). Evidence or argument concerning these issues should
    therefore be excluded. See Fed. R. Evid. 402; see, e.g., O’Neal, 844 F,3d at 278; United States v.
    Stone, 19 CR 18 (D.D.C. Sept. 26, 2019) ECF Minute Order (granting the government’s motion
    in limine to exclude evidence or argument regarding alleged misconduct in the government’s
    investigation or prosecution of Roger Stone).
    The only purpose in advancing these arguments would be to stir the pot of political
    polarization, garner public attention, and, most inappropriately, confuse jurors or encourage jury
    nullification. Put bluntly, the defense wishes to make the Special Counsel out to be a political
    actor when, in fact, nothing could be further from the truth. 11 Injecting politics into the trial
    proceedings is in no way relevant and completely unjustified. See United States v. Gorham, 523
    F. 2d 1088, 1097-1098 (D.C. Cir. 1975) (upholding trial court’s decision to preclude evidence
    relevant only to jury nullification); see also United States v. Rushin, 844 F. 3d 933, 942 (11th Cir.
    2016) (same); United States v. Castro, 411 Fed. App’x 415, 420 (2d Cir. 2011) (same); United
    States v. Funches, 135 F.3d 1405, 1408-1409 (11th Cir. 1998) (same); United States v. Cropp, 127
    F.3d 354, 358-359 (4th Cir. 1997). With respect to concerns about jury nullification, this Circuit
    has opined:
    [Defendant’s] argument is tantamount to the assertion that
    traditional principles concerning the admissibility of evidence
    should be disregarded, and that extraneous factors should be
    introduced at trial to become part of the jury’s deliberations. Of
    course a jury can render a verdict at odds with the evidence and the
    law in a given case, but it undermines the very basis of our legal
    system when it does so. The right to equal justice under law inures
    to the public as well as to individual parties to specific litigation, and
    that right is debased when juries at their caprice ignore the dictates
    of established precedent and procedure. Gorham, 523 F.2d at 1098.

    Note 11. By point of fact, the Special Counsel has been appointed by both Democratic and
    Republican appointed Attorneys General to conduct investigations of highly-sensitive matters,
    including Attorneys General Janet Reno, Michael Mukasey, Eric Holder, Jeff Sessions and
    William Barr.

    Even if evidence related to the defendant’s anticipated allegations had “marginal
    relevance” to this case (which it does not), the “likely (and presumably intended) effect” would be
    “to shift the focus away from the relevant evidence of [the defendant’s] wrongdoing” to matters
    that are, at most, “tangentially related.” United States v. Malpeso, 115 F. 3d 155, 163 (2d Cir.
    1997) (upholding exclusion of evidence of alleged misconduct by FBI agent).
    For the foregoing reasons, the defendant should not be permitted to introduce evidence or
    make arguments to the jury about the circumstances surrounding the appointment of the Special
    Counsel and alleged political bias on the part of the Special Counsel.
    V. The Court Should Admit Tweets by the Clinton Campaign
    The Government next moves in limine to admit an October 31, 2016 tweet from the Clinton
    Campaign that discussed the Russian Bank-1 allegations which the defendant provided to the FBI.

    A. Relevant Facts.
    As set forth in the Indictment, on or about October 31, 2016 – approximately one week
    before the 2016 U.S. Presidential election – multiple media outlets reported that the FBI had
    received and was investigating the allegations concerning a purported secret channel between the
    Trump Organization and Russian Bank-1.
    On that day, the newspaper referred to in the Indictment as “Newspaper-1” published an
    article titled Investigating Donald Trump, F.B.I. Sees No Clear Link to Russia. The article
    discussed that the FBI possessed information concerning “what cyber experts said appeared to be
    a mysterious back channel between the Trump Organization and [Russian Bank-1].” The article
    further reported that the FBI “had spent weeks examining computer data showing an odd stream
    of activity to a Trump Organization server,” and that the newspaper had been provided computer
    logs which evidenced this activity. The article also noted that at the time of the article, the FBI
    had not found “any conclusive or direct link” between Trump and the Russian government and
    that “Hillary Clinton’s supporters . . . pushed for these investigations.”
    On the same date, another media outlet published an article titled Was a Trump Server
    Communicating With Russia?, which likewise discussed at length the allegations which the
    defendant provided to the FBI.
    As noted above, in the months prior to the publication of these articles, the defendant had
    communicated with the media and provided them with the Russian Bank-1 data and allegations.
    The evidence will show that the defendant also kept Campaign Lawyer-1 apprised of his efforts.
    Campaign Lawyer-1, in turn, communicated with the Clinton Campaign’s leadership about
    potential media coverage of these issues.
    For example, billing records and emails reflect that on September 1, 2016, the defendant
    met with the reporter who published the aforementioned Newspaper-1 article. The defendant
    billed his time for the meeting to the Clinton Campaign under the broader billing description
    “confidential meetings regarding confidential project.”

    Billing records further reflect that on September 12, 2016, just one week prior to the
    defendant’s meeting with the FBI General Counsel, the defendant and Campaign Lawyer-1
    communicated about the defendant’s efforts to share the Russian Bank-1 allegations with
    In addition, on September 15, 2016, Campaign Lawyer-1 provided an update to the Clinton
    Campaign regarding the Russian Bank-1 allegations and the not-yet-published Newpaper-1 article,
    sending an email to the Clinton Campaign’s campaign manager, communications director, and
    foreign policy advisor, which he billed to the Clinton Campaign as “email correspondence with
    [name of foreign policy advisor], [name of campaign manager], [name of communications
    director] re: [Russian Bank-1] Article.”
    On the same day that these articles were published, the Clinton Campaign posted a tweet
    through Hillary Clinton’s Twitter account which stated: “Computer scientists have apparently
    uncovered a covert server linking the Trump Organization to a Russian-based bank.” The tweet
    included a statement from a Clinton Campaign advisor which made reference to the media
    coverage article and stated, in relevant part, that the allegations in the article “could be the most
    direct link yet between Donald Trump and Moscow[,] that “[t]his secret hotline may be the key to
    unlocking the mystery of Trump’s ties to Russia[,]” and that “[w]e can only assume that federal
    authorities will now explore this direct connection between Trump and Russia as part of their
    existing probe into Russia’s meddling in our elections.”

    B. Discussion.
    Typically, newspaper articles and tweets constitute inadmissible hearsay, and cannot be
    admitted into evidence to support the truth of the matter asserted. Hutira v. Islamic Republic of
    Iran, 211 F. Supp. 2d 115, 123 (D.D.C. 2002) (“Unsupported newspaper articles usually provide
    no evidence of the reporter’s perception, memory or sincerity and, therefore, lack circumstantial
    guarantees of trustworthiness.”); see also Atkins v. Fischer, 232 F.R.D. 116, 132 (D.D.C. 2005).
    As noted above, however, a statement is not hearsay if it is admitted to show its effect on the
    listener or reader, not the truth of the matter. Fed. R Evid. 801(c)(2), 803(1), (3). And when used
    for that purpose, courts often admit newspaper articles or other types of evidence, such as tweets,
    to show state of mind or other matters. See Sandza v. Barclays Bank PLC, 151 F. Supp. 3d 94,
    113 (D.D.C. 2015); see also United States v. Buck, 2017 WL 5201447, at *2 (S.D.N.Y. Oct. 30,
    2017); Rivera v. Incorporated Vill. of Farmingdale, 29 F. Supp. 3d 121, 128-30 (E.D.N.Y. 2013).

    The above-referenced tweet is not hearsay because it is not being offered for its truth.
    Indeed, the Government believes that the tweet’s assertions regarding a “covert server” between
    the Trump Organization and Russian Bank-1 are false. The Government will instead offer this
    tweet to show the existence of the defendant’s attorney-client relationship with the Clinton
    Campaign, which is directly relevant to the false statement charge. In particular, and as detailed
    above, the evidence at trial will demonstrate that the defendant provided the Russian Bank-1
    allegations to the media for the purpose of benefiting the Clinton Campaign, and his billing records
    reflect that he repeatedly billed the campaign for this work. Such efforts also continued after the
    defendant’s meeting with the FBI General Counsel. For instance, on October 10, 2016, the
    defendant emailed the aforementioned Newspaper-1 reporter an opinion article regarding Trump,
    suggesting that the the reporter should share it with his “editors” in an apparent effort to help the
    reporter convince them to publish an article regarding the Russian Bank-1 allegations. In addition,
    on the date these articles were finally published, the defendant again billed the Clinton Campaign
    for his communications with both reporters who authored them.
    The fact that the Clinton Campaign immediately issued a tweet concerning the articles –
    after receiving foreknowledge of these issues from the Law Firm-1 – is probative of the
    defendant’s client relationship. Indeed, the Government will offer this evidence to prove, among
    other things, that one of the defendant’s primary goals in his work on the Russian Bank-1
    allegations was to generate negative publicity concerning Trump that would benefit the Clinton
    Campaign. Accordingly, the tweet is admissible as non-hearsay.

    For the foregoing reasons, the Court should grand the Government’s motions in limine.

    I wrote:

    John Durham's team just cited more evidence Clinton campaign lawyer
    Michael Sussmann lied to the FBI General Counsel, in a court filing late Monday (yesterday). I will get to the filing soon.


    "Durham also revealed he has unearthed a text message showing Hillary
    Clinton campaign lawyer Michael Sussmann falsely told the FBI he was not working on behalf of any client when he delivered now-discredited
    anti-Trump research in the lead-up to the 2016 election. In fact, he was working for the Clinton campaign and another client, prosecutors say."

    Then about the text message...

    "Jim - it's Michael Sussmann. I have something time-sensitive (and
    sensitive) I need to discuss," Sussmann texted Baker on Sept. 18, 2016, according to the new court filing. "Do you have availability for a short meeting tomorrow? I'm coming on my own - not on behalf of a client or
    company - want to help the Bureau. Thanks."

    The title is just for fun. Don't care whether it reaches Hillary Clinton
    or not. I do care about the election interference and the incessant fake collusion interference against a duly elected president.

    --- SoupGate-Win32 v1.05
    * Origin: fsxNet Usenet Gateway (21:1/5)
  • From John Doe@21:1/5 to All on Wed Apr 20 00:34:51 2022
    [continued from previous message]

    with the FBI, the Government anticipates introducing portions of the defendant’s testimony during

    which the defendant stated that he met with U.K. Person-1 at Law Firm-1’s offices in the summer

    of 2016. As the Court is aware, and as noted above, U.K. Person-1 had at the time been retained

    by the U.S. Investigative Firm to conduct opposition research for the Clinton Campaign. Although

    the defendant testified before Congress that the purpose of the meeting was to “vet” U.K. Person-1

    for the Clinton Campaign given the defendant’s knowledge of national security matters, U.K.

    Person-1 has testified under oath in the United Kingdom that, during the meeting, the defendant

    told him at the meeting about the Russian Bank-1 allegations. U.K. Person-1 further testified that

    after the meeting, personnel from the U.S. Investigative Firm tasked U.K. Person-1 to research and

    produce intelligence reports about Russian Bank-1, which he did. In addition to the defendant’s

    billing records, evidence of the defendant’s 2016 meeting with U.K. Person-1 is highly probative

    of the fact that the defendant was acting on behalf of Clinton Campaign during his September 19,

    2016 meeting with the FBI.

    Note 10:
    As noted above, the Government proffers this publicly-available evidence in order to
    demonstrate the relevance to the charged conduct of the defendant’s meeting and interactions with
    U.K. Person-1.

    Second, to demonstrate the defendant’s intent to conceal his work on behalf of the Clinton

    Campaign, the Government will offer portions of the defendant’s Congressional testimony in which

    he is asked specifically by Congress whether the U.S. Investigative Firm or various of its employees

    were the anonymous “client” who provided Russian Bank-1-related information to the defendant.

    In his answers, the defendant denies that the U.S. Investigative Firm and/or these employees were

    his client. The defendant fails to state or volunteer that the U.S. Investigative firm, in fact, had

    drafted and provided to the defendant one of the white papers that the defendant then gave to the

    FBI General Counsel. Nor does the defendant disclose that he billed his Russian Bank-1-related

    work to the same campaign that hired the U.S. Investigative Firm (the Clinton Campaign).

    Third, the Government will offer portions of the defendant’s Congressional testimony in

    which the defendant acknowledges that he shared the Russian Bank-1 allegations with members of

    the media before and after his meeting with the FBI, including with specific journalists whom he

    identifies. This testimony corroborates the anticipated testimony of the former FBI General

    Counsel, specifically that the during their September 19, 2016 meeting, the defendant informed the

    General Counsel that the Russian Bank-1 allegations already had been provided to the media.

    All of the above evidence bears directly on the subject matter and specific contents of the

    defendant’s meeting with the FBI General Counsel. Such evidence is also highly probative because

    it concerns the clients whom the Government has alleged the defendant represented at that meeting.

    Accordingly, it is admissible as direct evidence and, alternatively, pursuant to Rule 404(b).

    D. The Government Should Be Permitted to Introduce Evidence and Argument
    Regarding Law Firm-1’s Statements to the Media

    The defendant also moves to preclude certain evidence or argument concerning the Law

    Firm-1 press statements and “evidence regarding the role the defendant played in causing them to

    be made.” Def. Mot. at 22. The defendant claims that the Government is improperly seeking to

    introduce “lay opinion testimony” as to credibility of the statements in the press. The defendant’s

    argument is incorrect.

    First, the Government should be permitted to present this relevant 404(b) evidence which

    proves, inter alia, the defendant’s motive and intent to conceal the involvement of politically-

    motivated parties in his work on the Russian Bank-1 allegations in 2016. The fact that the defendant

    participated in the drafting, approval, and/or issuance of press statements that affirmatively claimed

    that the defendant’s client was not the Clinton Campaign (when in fact, he billed the campaign for

    the very work at issue in the press statements) is clearly probative of the crime charged and not

    unduly prejudicial.

    Second, the Government is not seeking to usurp a credibility finding from the jury through

    lay opinion testimony. Indeed, the Government does not plan to elicit the “opinion” of the then-

    Managing Partner of Law Firm-1 as to whether he currently “thinks” the press statements were

    false or misleading. Rather, the Government will appropriately elicit testimony as to the

    circumstances in which the statements were created, reviewed, and approved; what information was

    (and was not) provided by the defendant or others in drafting these statements; and whether the

    Managing Partner knew any of the media statements to be false at the time based on what he knew

    from his role in managing the firm. Because such testimony flows directly from the witness’s

    knowledge of relevant facts, none of it encroaches on the jury’s role as the finder of fact on ultimate

    issues in the case.


    For the foregoing reasons, the Court should grant the Government’s Motions in Limine and

    permit the Government to offer the categories of evidence outlined in its Rule 404(b) notices.

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