Ex-Clinton Campaign Lawyer Fights Durham’s Use of FBI Expert Testimony

Michael Sussmann in an undated interview. (CNN/Screenshot via NTD) Special counsel John Durham in 2018. (U.S. Department of Justice via AP)

Attorneys for former Democratic National Committee attorney Michael Sussmann filed a motion seeking to exclude certain expert testimony from his case, accusing special counsel John Durham’s attorneys of missing a key deadline and asking a judge to block testimony in his false statement case.

The attorneys representing Sussmann, who’s accused by the Justice Department of lying to the FBI, said Durham “never once suggested that it intended to call an expert witness,” according to an April 8 court filing (pdf).

“Now—a mere six weeks before trial—the Special Counsel has provided a perfunctory and legally deficient notice that he intends to call Special Agent David Martin of the FBI to offer highly technical and complex testimony at trial,“ the motion reads, ”including (at his sole discretion) on a topic that the Special Counsel has told the Court he does not intend to put at issue at trial, namely, the accuracy of the data that Mr. Sussmann provided to the FBI, as well as the accuracy of the conclusions drawn from that data.”

Sussmann, his attorneys stated, “is amenable to expert testimony from Special Agent Martin that helps educate the jury about basic, uncontroversial issues like what Domain Name System data is,” according to the filing. Sussmann also seeks to block “any expert testimony regarding the accuracy of the data or the accuracy of conclusions drawn from the data.”

They also said in court that the testimony requested by Durham is “complicated and highly technical,” noting that it “relates to the accuracy and possible fabrication, manipulation, or ’spoofing,' of truly voluminous DNS data, as well as ’the analytic significance and conclusions that can be drawn based on the provenance and origins’ of that voluminous data.” DNS refers to domain name system, a decentralized naming system used to identify computers, servers, and other devices reachable via the internet.

Martin is being called by Durham to testify about the Tor open-source software platform that allows for anonymous communications and accessing certain “darknet” websites, according to a previous filing from the special prosecutor. He also told Sussmann’s team that “as you are aware, a white paper that the defendant submitted to FBI General Counsel Baker contained assertions about the purported use of a TOR exit node by the Trump Organization and Alfa Bank.”

“You have indicated in recent discussions that you may seek to limit the testimony and evidence at trial concerning the purported DNS data solely to that which reflects the defendant’s state of mind and subjective understanding of the purported DNS data at issue in this case,” Durham previously wrote to Sussmann’s team, noting that “you are not currently inclined to offer evidence, or engage in questioning, that would imply, assert, or seek to prove the authenticity of the relevant DNS data or the actual truth of the allegations at issue concerning a secret channel of communications between the Trump Organization and Alfa Bank.”

Last year, Durham accused Sussmann of lying to the FBI’s then-general counsel, James Baker, when he presented information to Baker in late 2016 alleging that there was a covert backdoor channel between the Trump Organization and Alfa-Bank. Durham said Sussmann, who was working for a law firm that was retained by the Democratic National Committee and the Clinton campaign, lied to the FBI when he allegedly told Baker that he wasn’t working on behalf of any client.

Sussmann’s attorneys also said their client “objects to any expert testimony regarding the accuracy of the data or the accuracy of conclusions drawn from the data“ and that such testimony is “not relevant” to the false statements charge, according to the filing. Sussmann “would be unfairly prejudiced” by the testimony, they said, before asking the judge to block it.

Sussmann’s attorneys didn’t respond to a request for comment by press time.