- A federal judge dinged John Durham's team for the way they handled a previous court filing.
- The judge called prosecutors out for creating a "sideshow" and questioned why they included some details in the filing.
- The right wing erupted over the filing last month and falsely claimed it showed that Clinton spied on Trump.
A federal judge dinged prosecutors from the special counsel John Durham's office for creating a "sideshow" with a court filing last month that former President Donald Trump and his allies falsely claimed provided proof that he was illegally spied on by the Clinton campaign.
At the center of the hearing was a conflict-of-interest motion that Durham's office filed in its ongoing case against the former Clinton campaign lawyer Michael Sussmann.
The conflict motion contained almost no new information and highlighted potential conflicts of interest regarding Sussmann's legal representation. But right-wing news outlets and former President Donald Trump took several details in the filing out of context and falsely claimed that it showed the Clinton campaign illegally spied on Donald Trump's 2016 campaign and White House.
Sussmann's legal team subsequently asked to strike those details from the motion, saying the filing was unnecessary because Sussmann had already understood the issues raised in it and waived any potential conflicts. They also accused Durham's team of operating in bad faith and saying the inclusion of those details was "plainly intended to politicize this case, inflame media coverage, and taint the jury pool."
"Trials are unpredictable," US District Judge Christian Cooper said at Thursday's hearing. "I cannot tell you all of the ways these potential conflicts could play out, if at all."
The judge then asked Sussmann if he waived the potential conflicts of interest laid out in Durham's filing. "I do, your honor," Sussmann responded.
Cooper remarked on how easy it was for him to address the purported conflicts and for Sussmann to formally waive them.
"I didn't need any of that ancillary information to do that," the judge said, referring to the filing from Durham's office.
He also questioned why the prosecution filed the conflict-of-interest motion in the first place.
"Why not just come in, consent motion, colloquy?" he asked. "We could have done this in 15 minutes at a status conference."
Andrew DeFillipis, a prosecutor in Durham's office, pushed back, saying, "We just wanted to be extra careful, to create a factual record for the basis of the conflicts ... We just wanted a crystal clear factual record."
Sussmann's defense attorney, Sean Berkowitz, contested the prosecution's claims, saying that the conflict of interest filing had "inflammatory press results and things of that nature."
Cooper also appeared to criticize Durham's prosecutors, saying that "we have a lot of work to do in this case ... This particular dustup strikes me as a sideshow in many respects."
"I don't know why the information is in there," he later added.
However, the judge did not grant Sussmann's request to strike certain details from the conflict-of-interest motion.
"I extend a presumption of good faith," he said. "I don't ascribe any motives whatsoever. But for that and other reasons, I'm not going to strike anything in the record."
Cooper also alluded to the high-stakes nature of the case against Sussmann, warning that the proceedings are under a microscope.
"Until we swear in a jury in this case, you folks have an audience of one, and that's me," the judge said. "Just be mindful of that as we go forward."
Cooper set a later status conference to discuss Sussmann's motion to dismiss Durham's case against him.
"This is a case of extraordinary prosecutorial overreach," Sussmann's lawyers said in their motion for dismissal last month. The filing went on to say that while it has "long been a crime" to make false statements to the government, the law "criminalizes only false statements that are material," meaning statements that directly affect a specific government decision.
"By contrast, false statements about ancillary matters ... are immaterial and cannot give rise to criminal liability," the filing said.
Durham charged Sussmann last year with lying to the FBI during a conversation with then FBI general counsel James Baker in 2016. Durham's indictment said that Sussmann "lied about the capacity in which he was providing" allegations to the FBI about what he claimed was a "secret communications channel" between the Trump Organization and Russia's Alfa Bank.
The indictment said Sussmann lied to the FBI when he told Baker he wasn't working on behalf of any client. In fact, the indictment said, Sussmann was acting on behalf of the Clinton campaign, the tech executive Rodney Joffe, and the internet company Neustar.
Sussmann's motion to dismiss said that in the past, those who have been charged in connection to providing tips to the government have been prosecuted for lying to the FBI "only where the tip itself was alleged to be false, because that is the only statement that could affect the specific decision to commence an investigation."
When Sussmann met with Baker in September 2016, the filing said, he went "to provide a tip."
"There is no allegation in the Indictment that the tip he provided was false. And there is no allegation that he believed that the tip he provided was false," it continued.
"Rather, Mr. Sussmann has been charged with making a false statement about an entirely ancillary matter—about who his client may have been when he met with the FBI—which is a fact that even the Special Counsel's own Indictment fails to allege had any effect on the FBI's decision to open an investigation," the filing said.
Durham's office said last year that Sussmann's failure to disclose the capacity in which he was bringing the Trump-Alfa Bank allegation to the FBI "misled FBI personnel and deprived the FBI of information that might have permitted it more fully to assess and uncover the origins of the relevant data and analysis, including the identities and motivations of Sussmann's clients."
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