Judge: FBI Agent Will Testify in Ex-Clinton Lawyer Case, but CIA Conclusions Largely Inadmissible

Testimony and conclusions from the FBI will be allowed in the upcoming trial of former Hillary Clinton campaign attorney Michael Sussmann, but the bulk of findings by the CIA will be barred, a federal judge ruled on April 25.

Sussmann is due to go on trial in May for allegedly lying about not representing a client when he passed on information to the FBI in 2016 about an alleged secret channel between Clinton rival Donald Trump and a Russian bank.

Because Sussmann isn’t disputing conclusions that no such channel actually existed, prosecutors may not put forth “extensive evidence about the accuracy of the data Mr. Sussmann provided to the FBI unless Mr. Sussmann does so first,” U.S. District Judge Christopher Cooper, an Obama appointee, said in his new order.

Prosecutors can present evidence reflecting the bureau’s ultimate conclusions on the data, Cooper noted.

The FBI concluded that the allegations were “untrue and unsupported,” according to special counsel John Durham’s office. The CIA, Durham’s team recently revealed, concluded in early 2017 that the data wasn’t “technically plausible.”

The evidence from the CIA can’t be entered during the trial, at least for now, “except to the extent that agency’s findings and analysis had direct bearing on the course of the FBI’s investigation,” the judge said.

Prosecutors also can’t bring in representatives of companies who maintained the servers that Sussmann claimed communicated with servers from Alfa-Bank, the Russian entity.

“This evidence does not appear to be probative of why the FBI took the investigative steps it did, and is at a minimum unnecessarily duplicative of other, more direct evidence of the same,” Cooper said.

He cited a 2013 district court ruling that stated that excluding evidence of “limited probative value” was warranted because the evidence “was substantially outweighed by the distraction that might have resulted.”

In another part of the order, the judge largely rejected the defense’s attempts to not let FBI special agent David Martin testify on certain issues.

Attorneys for Sussmann told the court that the defendant was open to Martin helping the jury understand “basic, uncontroversial issues,” such as domain name system (DNS) data. But Sussmann “objects to any expert testimony regarding the accuracy of the data or the accuracy of conclusions drawn from the data” because such testimony “is not relevant to the sole crime charged in this case.”

Prosecutors in response said Martin couldn’t only help the jury understand technical issues, but also the types of conclusions one can reach when reviewing DNS data and, if Sussmann brought it up, the accuracy of the data that Sussmann conveyed.

Martin can testify on three general topics, the judge said:

“First, and most significantly, background information necessary to understand the relevant data, including the ‘basic mechanics, architecture, and terminology’ of the kind of computer systems at issue; second, the type of conclusions that can be drawn from analyzing the kind of data Sussmann shared with the FBI; and third, the methods investigators would use to validate or further examine that data.

“These topics are generally relevant to the theory of materiality the government plans to pursue in its case in chief, and expert testimony on those subjects will aid the jury in understanding the technical aspects of the case. The Court will reserve ruling on any objections to specific testimony until trial.”

But unless certain circumstances arise, Martin can’t testify on the accuracy of the data Sussmann conveyed, Cooper said.

The trial is set to start on May 16.