On Thursday, Special Counsel John Durham responded to a motion filed by former Clinton campaign lawyer Michael Sussmann’s attorneys to strike the factual background part of his Feb. 11 filing about conflicts in the case. It was that Feb. 11 factual background — about the Clinton campaign through its operatives, engaging a tech company to surveil DNS lookups of locations including Trump Tower and the Executive Office of the President — that had made a lot of conservative and independent media sit up and take notice, while at the same time, liberal media thought of any way to ignore it or spin it. Former Director of National Intelligence John Ratcliffe even said on Monday that the intel he had given Durham for his probe would support “quite a few more” potential indictments.
That all must have been making some people in Clinton-land very nervous, so Sussmann’s attorneys moved to strike it, claiming the intent was “to politicize this case, inflame media coverage, and taint the jury pool.”
In the meantime, Sussmann’s attorneys since moved on Thursday to dismiss the whole case against him, claiming that Durham did not state a case for the charge — meaning that they’re claiming that he didn’t allege all the elements of the false statement charge that was made against him.
But in the response to the first motion, Durham declared that there was “no basis” to strike any part of his filing, noting that the factual background was “central to proving” Sussmann’s “alleged criminal conduct.” But Durham also noted that some of that was essential to laying out the potential conflicts that were the point of his Feb. 11 filing.
“As an initial matter, defense counsel has presumed the Government’s bad faith and asserts the Special Counsel’s Office intentionally sought to politicize this case, inflame media coverage, and taint the jury pool,” Durham’s filing states.
“That is simply not true,” Durham states, noting that his Feb. 11 filing “included two paragraphs of limited additional factual detail in its Motion for valid and straightforward reasons.”
“First, those paragraphs reflect conduct that is intertwined with, and part of, events that are central to proving the defendant’s alleged criminal conduct,” Durham wrote.
“Second, the Government included these paragraphs to apprise the Court of the factual basis for one of the potential conflicts described in the Government’s Motion, namely, that a member of the defense team was working for the Executive Office of the President of the United States (“EOP”) during relevant events that involved the EOP,” Durham wrote.
Durham added: “If third parties or members of the media have overstated, understated, or otherwise misinterpreted facts contained in the Government’s Motion, that does not in any way undermine the valid reasons for the Government’s inclusion of this information.”
“In light of the above, there is no basis to strike any portion of the Government’s Motion,” Durham wrote, adding that the government intends to file motions in which it will “further discuss these and other pertinent facts to explain why they constitute relevant and admissible evidence at trial.”
He also noted that any issues as to prejudice on a jury could be dealt with in voir dire.
It’s funny that first, the Sussman lawyers claimed that Durham was saying too much and prejudicing their client, then they flipped on a dime and moved to an argument that he hadn’t said enough. Neither argument is likely to fly, but it will be interesting to see the Durham response to the motion to dismiss because, by their argument, Sussmann’s lawyers are going to have Durham put even more out there on their client. The lawyers are likely just prolonging the pain and making more media stories out of the case, even as they are trying desperately to squelch media.