It does not take 27 pages to allege a "false statement" charge --
but it does if you are alleging a conspiracy to create
false documents to influence a federal investigation.
What to make of the indictment by Special Counsel John Durham of former Clinton Campaign attorney Michael Sussmann, a one-time partner in the go-to-for-all-legal-needs Democrat Party law firm of Perkins Coie?
Typically, a “false statement” indictment will consist of a brief description of how the federal investigators came to ask the question, the answer given by the defendant which is alleged to be false, and what a truthful answer would have been.
If you want an example of what a typical such indictment might look like, it’s right there in Sussmann indictment — read paragraph 46:
That is all one needs for a single count indictment charging a defendant with a violation of 18 U.S.C. Sec. 1001. That paragraph tells the defendant the date and location of the offense and the specifics of the offense conduct.
Paragraphs 1 through 44 were not necessary to charge Sussmann. That makes what Durham returned a “speaking indictment.” It discloses information in a public document that would not otherwise be known if the indictment set forth only facts needed to meet the requirements of due process.
A “false statement” charge does not require a litany of factual allegations regarding the conduct and statements of the defendant and numerous third parties over the course of weeks or months leading up to the making of the false statement. In over 30 years of practice as both a federal prosecutor and a defense attorney specializing in federal cases, I’ve never before seen anything remotely resembling the Sussmann indictment in a single count “false statement” case.
John Durham is far too serious of a career prosecutor, with a very long and established record of meticulous investigation and preparation, to have rolled out an indictment in this fashion if he was intending to wrap up the remainder of his work with a report to the Attorney General.
I’m going to save for another story a comprehensive look at what Durham has alleged in paragraphs 1 through 44. The allegations take my thinking in many different directions at the same time. There are probably a dozen or more “strings” hanging off the facts he has alleged — some legal and some more in the “court of public opinion.”
I waited four days to publish this first piece, spending much of that time going back over the entire “Alfa Bank” story since it first broke in late October 2016, less than 2 weeks before the election. Trying to understand the new information in the indictment against the backdrop of what was uncovered about the original story in 2016 and 2016 — and then cross-referencing the timeline and actors against what is now known about Crossfire Hurricane and the Mueller Special Counsel Investigation — is a task worthy of a book.
But rather than attempt to make that effort here in one Herculean task, I’m going to address issues that seem meaningful based on everything I’ve read, and roll them out one at a time as I can work through them.
In my view, some of the “hot takes” coming from folks without a working understanding of the process will not age well and I would caution you to take them with a “grain of salt.” For example, the guys at Powerlineblog initially judged the indictment as insignificant but now seem to be changing their view.
I’ve seen many questions raised on social media about why it has taken Durham so long to get to this point if this is the best he was able to come up with. The answer to this question becomes evident when you read the indictment with an eye towards the source material for some of the allegations set forth.
It is certainly true that Durham cast his net of grand jury subpoenas for email communications far and wide based on the number of individuals and entities identified — not necessarily by name — in the indictment. When a prosecutor seeks emails that are more than six months old, he only needs a grand jury subpoena with does not require a showing of “probable cause”.
The sourcing for some of the factual details set forth in the indictment explains at least one cause for why it has taken Durham so long to get to this point. Among the documents referenced in the indictment are billing records and emails of Perkins Coie. I’m confident these were not simply handed over to Durham when he sent a grand jury subpoena to the firm. I’m confident there was a fierce battle over whether Perkins Coie had to produce these records as they involve attorney-client communications and attorney work-product information, both of which would typically be insulated from disclosure to a grand jury.
But you can see from the allegations of the indictment how vital the records were to laying the foundation for the charge — the billing records and emails show Sussmann was working for the “Tech Executive-1” and the Clinton Campaign when he met with FBI General Counsel James Baker on September 19, 2021.
There are a couple angles to this issue, some of which I have covered on Twitter.
First, as part of this fight, I believe it’s highly likely that Durham suggested to the Perkins Coie law firm that the firm itself might be — or is/was — a “target” of the investigation. Sussmann and “Campaign Attorney-1” — presumably Marc Elias based on the description — were doing legal work for firm clients as part of their employment when that legal work crossed the boundary into criminal conduct as alleged with regard to Sussmann at least.
Any corporation can be subject to criminal liability for crimes committed by managers or employees performing work within the course and scope of their employment. One way a corporation can seek to avoid criminal liability is to cooperate completely in the government’s investigation into the suspected criminal conduct of the employees.
the corporation’s willingness to cooperate, including as to potential wrongdoing by its agents;
the corporation’s timely and voluntary disclosure of wrongdoing;
the corporation’s remedial actions, including, but not limited to, replacing responsible management, and disciplining or terminating wrongdoers;
the adequacy of the prosecution of individuals responsible for the corporation’s malfeasance.
One way a business organization is tested with regard to these factors is the timing and extent of cooperation the corporation provides to the government investigators:
Thus, when the government investigates potential corporate wrongdoing, it seeks the relevant facts. For example, how and when did the alleged misconduct occur? Who promoted or approved it? Who was responsible for committing it?… If a corporation wishes to receive credit for such cooperation … then the corporation … must disclose the relevant facts of which it has knowledge.
… A corporation is an artificial construct that cannot, by definition, have personal knowledge of the facts. Some of those facts may be reflected in documentary or electronic media like emails, transaction or accounting documents, and other records. Often, the corporation gathers facts through an internal investigation…. Whichever process the corporation selects, the government's key measure of cooperation must remain the same as it does for an individual: has the party timely disclosed the relevant facts about the putative misconduct?
Given that Marc Elias departed Perkins Coie in a very public manner on August 22, 2021, opening his own law firm with approximately 10 other Perkins Coie attorneys who left with him, and that Michael Sussmann was on leave from the firm until offering his resignation on the day of his indictment, it seems possible that Perkins Coie “passed” the test of “replacing responsible management, and disciplining or terminating wrongdoers.”
It might very well be the case that Perkins Coie — the law firm — did not engage in any protracted fight on its own behalf with the Durham investigation over the firm’s business records. But that would not have been the end of the battle.
The indictment alleges that the DNC, the Clinton Campaign, and Tech Executive-1 were all clients of the Perkins Coie firm for whom Sussman and others did legal work. To one degree or another, the Attorney-Client and Attorney Work-Product privileges would have applied to many/most of the records that Durham references in the indictment. The “privilege” belongs to the clients. Waiving privilege in order to show cooperation with Durham was not something that Perkins Coie could do on its own — the clients had the legal right to assert the privilege and attempt to keep the records out of Durham’s hands.
In no universe I can imagine would the DNC, Clinton Campaign, and/or Tech Executive-1 have waived Attorney-Client privilege and allowed Perkins Coie to turn over privileged documents and communications.
You might wonder how such a battle might play itself out in the courts without anyone knowing it was taking place. I haven’t seen this question posed, but unless you have worked inside this process the answer is not obvious.
This indictment was returned in the District of Columbia. But it has been reported that Durham had more than one grand jury convened, including one across the Potomac River in the Eastern District of Virginia. Depending on where activity making up his investigation took place, he could have grand juries in other districts as well — such as maybe the EDNY or SDNY.
A grand jury subpoena for Perkins Coie records could have originated from any district where Durham had a grand jury convened. Any fight over compliance with such a subpoena would have taken place in the district of the grand jury issuing the subpoena. Given the total silence about this aspect of the investigation until just recently, my guess is that a fight over Perkins Coie documents did not take place in the District of Columbia.
Disputes over the production of documents to a federal grand jury — and I was involved in just such a matter earlier this year — take place behind closed doors. Pleadings filed by each side are not part of the court’s public docket, and hearings are conducted in closed proceedings.
The age of COVID makes this easier as attorneys don’t even come to the courthouse for hearings. To conduct a hearing the court simply issues a notice and password for a Zoom meeting or some other videoconference. Only the attorneys and court personnel are part of the call. All references to the dispute — including the outcome and the Court’s order — are sealed.
Appeals from district court orders are handled in the same fashion when it comes to fights over grand jury records — everything is done under seal and out of public view.
On what basis then was it likely determined by a court that the attorney-client privilege did not apply and Perkins Coie had to disclose the records? That is the proverbial “$64,000 Question” that we won’t know the answer to for some time. But the most likely justification for ordering production of the records to Durham was the “crime-fraud” exception to the Attorney-Client privilege.
Simply stated, the exception applies when the communications or records at issue involve a future crime or fraud under consideration or a crime or fraud that is currently underway and continuing. The focus of the inquiry is on the client’s intent, not the attorney’s intent. The attorney-client privilege will be negated by the crime-fraud exception regardless of whether the attorney is aware of, or involved in, the client’s crime or fraud.
Noteworthy is the fact that the exception only applies, and records or communications are not protected by the privilege, if the CLIENT is engaged in planning future crimes or frauds, or is seeking legal assistance in ongoing crimes or frauds.
That means that if Durham obtained privileged records on the basis of the crime-fraud exception, whatever court sustained his subpoena would have done so because Durham demonstrated to the court’s satisfaction that the Clinton Campaign and Tech Executive-1 were themselves engaged in the criminal conduct along with Sussmann, their attorney.
And maybe the DNC too. Think about that.
The Federal Rules of Criminal Procedure allow grand jury materials obtained as part of an investigation in one federal judicial district to be made available to investigators and prosecutors involved in another investigation in a different judicial district. The fact that the Perkins Coie records might have been obtained by a grand jury outside the District of Columbia does not limit the use of those records, and they could be used by a grand jury in the District of Columbia.
Buried in the indictment was a reference I first pointed out on Twitter — I have not seen any Tweet that noted it earlier than I did — what is a likely indicator of another investigation in a different judicial district.
