{"id":1468403,"date":"2022-05-09T07:30:34","date_gmt":"2022-05-09T11:30:34","guid":{"rendered":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1468403"},"modified":"2022-05-09T07:30:41","modified_gmt":"2022-05-09T11:30:41","slug":"spygate-judge-tries-to-protect-hillary-clinton-in-latest-pre-trial-rulings","status":"publish","type":"post","link":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/spygate-judge-tries-to-protect-hillary-clinton-in-latest-pre-trial-rulings\/","title":{"rendered":"Spygate Judge Tries To Protect Hillary Clinton In Latest Pre-Trial Rulings"},"content":{"rendered":"<aside class=\"mashsb-container mashsb-main mashsb-stretched\"><div class=\"mashsb-box\"><div class=\"mashsb-count mash-medium\" style=\"&quot;\"><div class=\"counts mashsbcount\">22<\/div><span class=\"mashsb-sharetext\">SHARES<\/span><\/div><div class=\"mashsb-buttons\"><a class=\"mashicon-facebook mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/www.facebook.com\/sharer.php?u=https%3A%2F%2Fwww.conservativenewsdaily.net%2Fbreaking-news%2Fspygate-judge-tries-to-protect-hillary-clinton-in-latest-pre-trial-rulings%2F\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Facebook<\/span><\/a><a class=\"mashicon-twitter mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/twitter.com\/intent\/tweet?text=&amp;url=https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1468403&amp;via=ConservNewsDly\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Twitter<\/span><\/a><a class=\"mashicon-subscribe mash-medium mash-nomargin mashsb-noshadow\" href=\"#\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Subscribe<\/span><\/a><div class=\"onoffswitch2 mash-medium mashsb-noshadow\" style=\"display:none\"><\/div><\/div>\n            <\/div>\n                <div style=\"clear:both\"><\/div><\/aside>\n            <!-- Share buttons by mashshare.net - Version: 4.0.47--><div><img decoding=\"async\" src=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-content\/uploads\/2022\/05\/30765424675_beb1b171d4_k.jpg\" class=\"ff-og-image-inserted\" alt=\"image\" \/><\/div>\n<p>The Obama-appointed judge presiding over the criminal case against former Hillary Clinton campaign attorney Michael Sussmann let politics trump the law when he declared in a weekend opinion he would not rule on whether the Clinton campaign and Democratic National Committee conspired with others to peddle the Russia collusion hoax.<\/p>\n<p>Special Counsel John Durham charged Sussmann last September in a one-count indictment with making a false statement to then-FBI General Counsel James Baker when Sussmann provided Baker data and \u201cwhitepapers\u201d purporting to show a secret communication network between Donald Trump and the Russian-based Alfa Bank. According to the indictment, Sussmann told Baker he was sharing the information on his own, when, in fact, Sussmann represented both tech executive Rodney Joffe and the Clinton campaign.<\/p>\n<p>With trial set to begin in one week, the last month has seen a flurry of pretrial motions\u2014called \u201cmotions in limine\u201d\u2014seeking pretrial rulings on the admissibility of evidence. The court previously ruled on several of the issues the parties presented, holding in many cases that a final decision must await trial. Then, late Saturday, presiding Judge Christopher Cooper issued a further opinion resolving many of the still-outstanding evidentiary challenges.<\/p>\n<p>Overall, Cooper\u2019s Saturday night opinion, like his previous rulings in this case, represented a studious and a balanced approach to the legal issues, with Sussmann prevailing at times, but the special counsel succeeding on other issues. For instance, in a victory for Durham, the court ruled that prosecutors could present evidence concerning how the Alfa Bank \u201cdata came into being and who was involved in its collection and analysis, as well as how Mr. Sussmann came to possess the data, what he did with it, and why.\u201d<\/p>\n<p>But the court also ruled in Sussmann\u2019s favor, first reiterating its previous holding that unless Sussmann claims at trial that the Alfa Bank data is accurate, the government may not present evidence challenging its validity. Cooper further held that the government could not present evidence that Joffe inappropriately accessed proprietary or sensitive government information to gather the data or write the whitepapers, absent some evidence \u201cshowing that Mr. Sussmann had concerns that the data was obtained inappropriately.\u201d<\/p>\n<p>Judge Cooper further demonstrated his baseline when he confronted two more significant issues presented by the opposing parties. Sussmann scored a victory when the court held the government could not admit evidence concerning notes taken by former FBI Assistant Director Bill Priestap and former Deputy General Counsel Trisha Anderson unless they testified about their previous conversations with Baker. Even then, Judge Cooper indicated that at most the jury would likely only be read the contents of the notes, as opposed to receiving the notes themselves as exhibits to view.<\/p>\n<p>Such a limitation will surely inure to Sussmann\u2019s benefit because seeing in writing Priestap\u2019s notation, \u201cMichael Sussman[n]\u2014Atty: Perkins Coie\u2014said not doing this for any client\u201d and Anderson\u2019s note, \u201cSussman[n] Mtg w\/ Baker,\u201d \u201cNo specific client but group of cyber academics talked w\/ him abt research,\u201d would likely strike a more solid punch than merely hearing their testimony.<\/p>\n<p>Sussmann, however, failed in his attempt to force the government to provide Joffe immunity so Joffe would be willing to testify in Sussmann\u2019s defense. Sussmann had argued that the government had no reasonable basis to claim that Joffe remained a target of a criminal investigation given that the five-year statute of limitations for false statements had run, and that therefore the special counsel\u2019s threat of prosecution served solely to induce Joffe to plead the fifth and refuse to testify on behalf of Sussmann.<\/p>\n<p>Not only did the court reject this argument, in doing so the court stated\u2014simply and without commentary\u2014that \u201cthe Special Counsel\u2019s continued representation that Mr. Joffe is a subject of its investigation, rather than simply a witness, does not amount to prosecutorial misconduct on this record.\u201d Given that Sussmann framed the government\u2019s claim that Joffe remained a target as unbelievable, the court\u2019s refusal to question the special counsel\u2019s representation illustrates Judge Cooper\u2019s baseline apolitical equilibrium.<\/p>\n<p>The Obama appointee faltered, however, on the Clinton campaign and handling the special counsel\u2019s argument that various emails, even if they were hearsay, were admissible under the \u201cco-conspirator statement\u201d exception to the hearsay rule. At issue were emails between Joffe and the Georgia Tech researchers Manos Antonakakis, Dave Dagon, and April Lorenzen, the \u201coriginator\u201d of the Alfa Bank data whom Joffe had allegedly tasked to mine internet data to find a Trump-Russia connection.<\/p>\n<p>After concluding some, but not all, of the emails were hearsay, the court addressed the government\u2019s argument that the emails were admissible under federal rules of evidence as \u201ca co-conspirator statement.\u201d<\/p>\n<h2><strong>First, Some Lawsplaining<\/strong><\/h2>\n<p>Under federal rules of evidence, a statement made by a \u201cco-conspirator\u201d of a defendant \u201cduring and in furtherance of the conspiracy\u201d is admissible even though it is hearsay. Hearsay is an out-of-court statement, oral or in writing, that is presented to the jury to prove the truth of the matter asserted in the statement.<\/p>\n<p>The \u201cconspiracy\u201d need not be criminal, however, for a statement made by another member of the \u201cconspiracy\u201d to be admissible, with courts typically calling non-criminal conspiracies \u201cjoint ventures.\u201d But before a court may admit a statement under this \u201cco-conspirator\u201d exception, it must find \u201cby a preponderance of the evidence\u201d that such a conspiracy or joint venture existed. (A \u201cpreponderance of the evidence\u201d means it is more likely that a conspiracy existed than that it didn\u2019t, i.e., that the court is 50.1 percent sure there was such a joint venture.)<\/p>\n<h2><strong>The Joint Venture<\/strong><\/h2>\n<p>In the Sussmann case, the special counsel submitted that Joffe, Sussmann, and the Clinton campaign (or its agents) were \u201cacting in concert toward a common goal\u201d\u2014i.e., \u201cassembling and disseminating the [Alfa Bank] allegations and other derogatory information about Trump to the media and the U.S. government.\u201d The Georgia Tech researchers and Lorenzen were also part of this joint venture, according to prosecutors.<\/p>\n<p>Judge Cooper, however, refused to consider whether such a joint venture existed, stating instead that, for a variety of reasons, his court was exercising \u201cits discretion not to engage in the kind of extensive evidentiary analysis that would be required to find that such a joint venture existed, and who may have joined it.\u201d<\/p>\n<p>A court is well within its discretion to refuse to undertake a \u201clengthy journey\u201d to assess whether a \u201cjoint venture\u201d existed and thus whether the various emails are admissible under the \u201cco-conspirator statement\u201d exception to the hearsay rule. But in the same breath that he declared himself unwilling to make this excursion, Judge Cooper contradicted his own reasoning.<\/p>\n<p>\u201cThe government has indicated that it intends to call one or both of the Georgia Tech researchers at trial,\u201d Judge Cooper wrote. \u201cEither of them could testify to their role in assembling the data, how they came to be tasked with the project, and whether they believed the research was done for the Clinton Campaign or some other purpose.\u201d<\/p>\n<p>Thus, contrary to the court\u2019s rationale, there is no \u201clengthy journey\u201d to traverse: The court need only wait until trial to allow the government to elicit from witnesses testimony confirming the \u201cjoint venture\u201d\u2014something Cooper ruled they \u201ccould\u201d testify about. In fact, in its <a href=\"https:\/\/storage.courtlistener.com\/recap\/gov.uscourts.dcd.235638\/gov.uscourts.dcd.235638.61.0_7.pdf\">brief<\/a> in arguing the emails were admissible as \u201cco-conspirator\u201d statements, the special counsel\u2019s office noted that a court could \u201cpreliminarily admit hearsay statements of co-conspirators, subject to connection through proof of conspiracy.\u201d<\/p>\n<p>But Judge Cooper didn\u2019t even need to admit the emails were \u201csubject to connection through proof of conspiracy.\u201d All the Obama appointee needed to do was follow the same approach he did when confronted with other evidentiary issues that were unclear or where the admissibility depended on the proof at trial: wait for trial to issue a ruling.<\/p>\n<p>Further, ruling on the admissibility of the emails based on the \u201cco-conspirator\u201d exception to the hearsay rule during trial would require little effort, as Cooper\u2019s Saturday opinion itself recognized, by noting that it \u201chas already ruled on the admissibility of many of the emails on other grounds.\u201d<\/p>\n<p>That Judge Cooper deviated from the approach he took with other evidentiary issues, namely withholding final ruling until trial, only on the question of whether the Clinton campaign had conspired to peddle the Alfa Bank hoax, suggests politics motivated that approach.<\/p>\n<h2><strong>Two Other Supporting Facts<\/strong><\/h2>\n<p>Two other details from Judge Cooper\u2019s opinion bolster that conclusion. First, not only did Cooper declare he would not rule on the co-conspirator exception for purposes of the specific emails the special counsel\u2019s office sought to introduce, he prejudged the importance of other emails \u201cthe Court has not yet seen.\u201d<\/p>\n<p>\u201cWhatever few emails remain,\u201d the court noted, \u201care likely to be either irrelevant or redundant of other admissible evidence,\u201d thus negating, in the court\u2019s view, the need to address the co-conspirator exception to the hearsay rule.<\/p>\n<p>Tellingly, after announcing he would not consider the co-conspirator exception in deciding whether these still-unseen emails were admissible, Judge Cooper added that during trial he would consider whether those same emails might be admissible for a non-hearsay reason. Again, why not do the same on the co-conspirator exception?<\/p>\n<p>The answer seems clear: A court declaring that Hillary Clinton\u2019s then-lawyer had engaged in a conspiracy to \u201cgather and spread damaging information about a Presidential candidate shortly before the scheduled election\u201d would be a devastating blow to the Democrat.<\/p>\n<h2><strong>Trying to Protect Democrats and Clinton<\/strong><\/h2>\n<p>Judge Cooper\u2019s efforts to counter the impact of the case on Clinton, and more broadly the Democratic Party, extend beyond merely declaring the \u201cco-conspirator\u201d exception off limits. Rather, in his weekend opinion, after announcing his plan to punt, Judge Cooper proceeded to question the special counsel\u2019s theory, calling the \u201ccontours\u201d of the joint \u201cventure and its participants are not entirely obvious.\u201d He then noted he was \u201cparticularly skeptical that the researchers\u201d shared in this common goal.<\/p>\n<p>Beyond being an unnecessary annotation to a case in which he expressly declined to address the co-conspirator exception, Judge Cooper\u2019s analysis constructed a strawman to destroy. Durham\u2019s team never claimed that the researchers joined in a conspiracy with Clinton directly, and never claimed they intended to peddle the Alfa Bank hoax to the FBI.<\/p>\n<p>Rather, the joint venture concerned the shared goal of gathering and spreading damaging information about Trump and involved agents of the Clinton campaign, such as Fusion GPS. And the evidence of that joint venture was overwhelming, easily satisfying the preponderance of the evidence test. But even if Judge Cooper was not so sure about that conclusion, waiting for the trial testimony was the proper procedure, as his many earlier rulings demonstrate.<\/p>\n<p>In refusing to consider the co-conspirator exception to the hearsay rule, Judge Cooper may see himself as keeping politics out of the case. After all, as the federal judge noted in the opinion, the special counsel did not charge Sussmann with a conspiracy. But a conspiracy need not be charged for the co-conspirator exception to apply, and this case is political to its core\u2014just as the FBI\u2019s investigation of Trump and the corrupt press\u2019 reporting on the Russia collusion hoax was.<\/p>\n<p>And Hillary Clinton was <a href=\"https:\/\/thefederalist.com\/2022\/02\/21\/4-special-counsel-revelations-tying-spygate-to-hillary-clintons-campaign\/\">behind<\/a> it all, whether the court opts to ignore the conspiracy or not.<\/p>\n<hr class=\"wp-block-separator\" \/>\n<p>\n  Margot Cleveland is The Federalist&#8217;s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. <\/p>\n<p>Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize\u2014the law school\u2019s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. <\/p>\n<p>As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>The Obama-appointed judge presiding over the criminal case against former Hillary Clinton campaign attorney Michael Sussmann let politics trump the law when he declared in a weekend opinion he would<\/p>\n","protected":false},"author":499,"featured_media":2315279,"comment_status":"open","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_mo_disable_npp":"","fifu_image_url":"","fifu_image_alt":"","footnotes":""},"categories":[],"tags":[],"class_list":["post-1468403","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry"],"_links":{"self":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1468403","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/users\/499"}],"replies":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/comments?post=1468403"}],"version-history":[{"count":0,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1468403\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media\/2315279"}],"wp:attachment":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media?parent=1468403"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/categories?post=1468403"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/tags?post=1468403"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}