Real Setback for Special Counsel John Durham

it for a long time. Former President Donald Trump has repeatedly called the Russia investigation a witch hunt, a hoax, a deep state conspiracy to frame him, and Special counsel John Durham was tasked with uncovering government misconduct during that investigation, But after three years of investigating the investigation, Durham's only case to go to trial was prosecution of Michael Sussman, a lawyer for Hillary Clinton's twenty sixteen presidential campaign, on

a single charge of lying to the FBI lying not about a conspiracy, but about the identity of his clients when he passed a tip on in September of and after about six hours of deliberations. The jury found the prosecution hadn't proved its case and acquitted Sessman. I told the truth to the FBI, and the jury wreck clearly recognized that with their unanimous verdict. My guest his former

federal prosecutor Robert Mintz, a partner McCarter and English. This was Durham's first major courtroom test after a three year investigation. How big a setback is this for him? Well, it's a huge setback for Special Counsel John Durham because this is the very first case that's gone to trial after three years of investigating whether federal agents who investigated the

twenty steen Trump campaign committed any wrongdoing. So this sense, the Special Counsel's office had really put everything on the line in this case, even though it ultimately was a fairly simple case which charged a single count A lying to the FBI. So in a meeting with the General Council of the FBI, Sussman presented research that he said suggested a possible secret back channel of communications between computer service for Russia based Alpha Bank and the Trump organization.

But that wasn't what the issue was here. The jurors had, as you mentioned, this really narrow issue to decide one

false statement, tell us what that was. Sure, So the whole case turned on the simple question of whether or not Sussman when he came to the FBI had the single meeting with the General Council of the FBI, whether she was there in his individual capacity as an individual citizen giving information to the FBI that affected potential national security issues, or whether he was there on behalf of

a client. Now, what the defense argue it ultimately successfully was that it didn't really matter because the FBI would have done the same thing had they known that he was there on behalf of the Clinton campaign. And ultimately FBI did investigate the information and find out that it was without basis, but Sussman said he was there at his individual capacity even though he was working for the

Clinton campaign at the time. On the defense also argued that it was well known that Sussman had worked for Democratic organizations and for the Democratic Party, and so the fact that he was tied to the Democrats was well known to the FBI at the time they received the information, So whether he was actually acting on their behalf at that moment didn't have a material impact on how the FBI treated that information. You will go back to that

materiality in a moment. But the case depended on the testimony of one witness, James Baker, who was the FBI's general counsel, when he met with Sussman alone, and he took no notes of that meeting, so he had some credibility problems that the defense brought out. But that's exactly right, and I think that was one of the reasons this was a very difficult case from the start, because it's really one person's word against the other as to what

happened at that meeting. And as you mentioned, James Baker that did not take notes. So although his testimony was he was ad percent confident that Sussman insisted to him that he was not acting on behalf of a client, and that if he had known he was acting on behalf of a client, he may have handled the conversation

or the meeting differently. The fact was the defense was able to impeach that testimony somewhat by pointing out that Sussman had represented cybersecurity clients in the past and that Baker had said at various times that he didn't remember certain parts of that conversation. And when he took to witness stand, he said he couldn't remember a hundred sixteen times when the defense to asked him questions, and so

his testimony wasn't rock solid. Despite the fact that he said he was a percent confident, the defense was able to bring out instances where his recollection was not entirely solid as to what was said at that exact meeting, and ultimate to leave, the defense was able to make a big issue of the fact that this entire case was really turning on the question of what happened at a brief, thirty minute meeting more than five years ago.

I think the jury ultimately looked at this case and decided that it was more political than criminal, and that's why they ultimately acquitted Sessement after this trial, in only a day and a half of deliberations, Bob prosecutors used the case to try to put forward a larger conspiracy theory, and in the closing arguments, the defense attorney denigrated that effort. Sean Berkowitz said the prosecution was trying to turn a thirty minute meeting more than five years ago into a

giant political conspiracy theory. Apparently that was pretty effective because the jury, four women said the prosecution never should have brought this case. Do you think that it hurt the prosecution to put this in context or did they have to put it in context? Well, that was the buying the prosecution ultimately was in from the start of this case goes. On the one hand, prosecutor said, this case

is not about politics. It's about telling the truth. It's about whether sessamen lie to the FBI in order to get that meeting. When he said that he was not

acting on behalf of a client. But ultimately it was about politics, and they had to go back to the scene that this was really an attempt by the Clinton campaign to try to get the FBI to investigate this alleged tie between the Trump organization and this Russian bank and then leak that information to the media in the hopes that it would get out there in the final days of the campaign and affect the campaign in some way.

That was really what they were trying to suggest, and ultimately, I think the defense was able to turn that around on its head and say this is simply what's done all the time, it's opposition research. And they were also able to point out that there was some information from the Clinton campaign that said that they did not want these allegations to be taken up by the FBI at that point because they were concerned that a new story about the issue and the investigation might complicate the news

stories that might come out about it. So it wasn't entirely clear that it was in the interest of the Clinton campaign to have the FBI investigated. They simply wanted the news media to write about the potential league because they thought that would have more of an impact on the election than an FBI investigation. Sussman decided not to take the witness stand in his own defense. Obviously, in hindsight, that was the right decision, But what kinds of considerations

would the defense have been weighing. I think that was a very shrewd strategic decision by the defense because they did not want to make this trial about Michael Sussman.

They wanted to make this trial about the inconsistent recollection of James Baker, and by not having Sussman take the stand and recall what went on at that meeting, the defense was able to focus the entire case about what James Baker recalled about that brief thirty minute meeting that occurred more than five years ago, on the fact that he took no contemporaneous notes and was simply recalling from

memory what was said at that meeting. Pub Let me ask you this, Since you're a prosecutor for so long, isn't it like a matter of course for FBI agents or people in the FBI to take notes when they're interviewing someone like that. Well, it was a bit of an unusual meeting because it was this phone call placed from Sussman to the FBI General Council. This is not something that occurs on a daily basis, and typically it would be something that would be handled by agents rather

than by the General Council. But yes, that is usually the practice of the FBI, first of all, to not meet with anybody alone, So that seemed to be someone unusual that there would be only one person from the FBI at the meeting, and secondly that there were no

contemporaries notes taken. But at the time, remember, the meeting was simply to get information that the FBI may or may not use to launch an investigation, so it's not completely surprising that there wasn't a full memorandum of that meeting, but it is surprising that they were not least contemporaneous notes that would have corroborated Baker's testimony about what Sussman said to him as to why he was there and

who may have sent him. Let's talk about materiality, because part of the reason why this was an uphill battle is that the prosecutor had to convince the jury beyond a reasonable doubt not only that Sussman lied to Baker, but that the lie was material enough to influence the

FBI's actions or decisions. The testimony from Baker again was critical on this point, because he testified that had he known that Sussman was acting on behalf of the Clinton campaign, he may not have taken the meeting at all, or he would have treated the information differently. That was the

government's proof that it was material. Now, in response, the defense made a compelling case that the FBI was well aware that Michael Sussman had worked on behalf of interest for the Democratic Party in the past, and so whether or not he was acting on behalf of the Clinton campaign at the time he was at that meeting, or whether he simply had worked for Democratic campaigns and the Clinton campaign in other context was really not a material factor.

In other words, they knew that Michael Sussman was not working on behalf of the Republican Party. They knew that Michael Sussman was not working on behalf of conservative elements in the Republican Party. They knew that this is somebody who aligned himself with the Democratic Party, and so whether or not he was acting officially on their behalf at that moment or not really wouldn't have made any difference

in terms of how the FBI treated that information. And of course, ultimately the FBI took the information and investigated it and found out that there was nothing to the alleged connection between the Trump organization and this Russian bank. So, in essence, the process worked regardless of where the information came from. The FBI ran it to ground and decided

that there was nothing to it. So I think at the end of the day, one of the problems of prosecution had was convincing jurors that this case really mattered, that it really mattered whether or not he identified himself as working for the Clinton campaign at that moment, since the defense argued the FBI was well aware that he had worked on behalf of democratic interest in the past. To that point, the jury four person said the case never should have been brought and that the time could

have been spent more wisely. And the prosecution couldn't get around the fact that the FBI agent they put on the stand who initially investigated said that he wouldn't have done anything differently if he'd known the tip originated from a partisan source. So one wonders, with that kind of testimony, why Durham even chose to bring this case. That's a

good question. I think that the Special Counsel looked at this case un thought that they had a clear lie here, that there was enough evidence to convince a jury that Michael Sussman was acting on behalf the Clinton campaign. Remember, they did pull his billing records, and they were able to show at least a compelling argument that Michael Sussman was billing the Clinton camp pain at the time he was sitting in on this meeting with Michael Baker, and

I believe prosecutors thought that was enough. Ultimately, the defense was able to show that those billing records were not quite as clear as maybe they seemed initially that there was billing for the Clinton campaign on the day of that meeting, but it wasn't entirely clear that he built for the meeting. That even went so far as to show that Michael Suftman build the Clinton campaign for the cost of the flash drive on which he handed the information over to the FBI. So I think they thought

that that was going to be enough. But ultimately the downfall for the prosecution here, in my opinion, is that it turned on this one meeting between two individuals that occurred five years ago, and there were no contemporaneous notes, so it was essentially one person's recollection against the other. On the defense was able to raise a reasonable doubt in the mind of jurors as to whether or not Baker's recollection of what was said at that meeting was

actually accurate. We want to look at the big picture for a moment. Durham's invested gation has now gone on longer than the Muller investigation. In he got a guilty plea from a former FBI lawyer for altering an email relating to a surveillance request, and that lawyer got probation. This Suessman case was based on a lie to the FBI and failed in October, Dorms bring a case against an analyst who's also charged with lying to the FBI

about the sources of his information. So these cases are not about misconduct by the FBI in the Russian investigation. They're prosecuting lies from people about seemingly peripheral issues. That's a great point. And if you remember back to the

beginning of all this, that was the question. You had a couple of FBI agents who had exchanged text messages which tended to show that they were not in favor of the election of then candidate Trump, and the focus of this was going to be on whether or not it was the FBI itself that was out to prevent

then candidate Trump I'm getting elected president. These cases are all about information that is being brought to the FBI, and in fact invalidates the fact that the FBI treated them fairly and partially and ran them to ground based solely on the evidence because they did not pursue in this case leads that there was this a leg tied between the Trump organization on this Russian bank. They investigated

and have found there was nothing to it. So this is really a case where the process worked and the only question is whether or not the people who brought the information to the FBI were acting improperly. And I often think about this when I see that a prosecution ends up being about lying to the FBI. Is that almost an admission that you know you couldn't make a prosecution based on the charges you were initially looking for, so you fall back on this line to the FBI,

which is a crime, a felony, but still well. I do think that plays into the general public perception of these types of cases. And now, of course we don't really know what else the Special Counsel's Office ad investigating. It's possible that there could be other cases that they bring in the future that may be more serious than the ones that they've brought to date, but generally you want to bring your best cases first, and these are the kind of cases that are sort of around the

periphery of their general mission. And I do think it raises a question in the mind of the public as to whether or not this three year investigation by John Durham and his Special Counsel Office ultimately has led to anything that shows that the FBI was corrupted on The FBI conducted investigations in a less than impartial and professional manner. These are cases, as I said earlier, that go to

the integrity of people bringing information to the FBI. But so far we've seen no evidence of the FBI acting improperly with the information that they receive. We'll see what the next trial in October brings out. Thanks so much, Bob. That's former federal prosecutor Robert Mints, a partner in mcarter. In English, we see that the First Amendment is under assault by the social media companies and that is not

going to be tolerated. In Texas, Texas Governor Greg Abbott said that a law barring social media platforms from removing content based on the views expressed was needed to protect conservative voices from being silenced. But tech groups said the law would unconstitutionally require social media companies like Twitter and Facebook to allow hate speech and extremism on their platforms, and by a five to four vote, the justices put the law on hold while a constitutional challenge goes forward

in a lower court. Joining me is Eric Goldman, a professor at Santa Clara University School of Law. Eric tell us about this Texas law and its purpose. So last summer, Texas enacted a law that was styled a social media censorship law, and the sensible purpose is to prevent internet services from engaging in biased content moderation, especially moderation that would be biased against conservatives. But in fact the bill is a form of censorship of social media, so the

titling was unfortunately ironic. If someone was advocating violence against a certain group, would that be allowed under this law? The short answer is we don't know, but most likely anyone whose content was removed because it was hate speech, because it was targeting particular demographics, would likely have a claim to assert that they were discriminating against by the service, and as a result, the services are going to be

inhibited in making those decisions. So whether or not the law would specifically permit or deny content moderation and circumstance, the announce services would likely not touch it. Are there certain kinds of speech that social media platforms have to remove? Yes,

there are. There's actually a wide range of things that under existing law, internet services are required to take down, and some of this is governed by a statute that says that services are protected from third party content, but it has exceptions, for example, related to violations of federal criminal law, also with respect to things like intellectual property violations.

So you know, services are legally compelled to remove some content, and then things like the Texas Bill might say, if you're not legally compelled to require it, you have to leave it up or face extreme liability. So put student services in this really awful position of having to be

precisely accurate with every single moderation decision to make. So what are the arguments that we're made to the court here excessis argument is that it's protecting its citizens from discrimination that's being imposed by services that don't have the legal right to do so. And so they've analogized, for example, to the telephone service, saying the telephone service doesn't get to hang up on your calls because of the fact

that you might be engaging in each speech. The argument against the law is that it's a bald faced imposition of government control of editorial decision making the advanced services decide which content is fit for their audience or not, and the government is imposing its will, saying you can't make the decisions, We're going to make them for you. So from the opponent standpoint, this is just flat out censorship.

Am I being crazy and saying that Texas argument sounds ludicrous? No, you're not crazy to think that the argument sounds ludicrous. And part of that is because this law really was never meant to pass. This law, like many others that have been introduced across the country, were designed to send a message to the voters that the legislature and the governor were working to take care of them. But they didn't actually want to enact the law. They just needed

to tell the voters that they cared. So once it became law, it became in this huge dilemma because it was never meant to actually be effective, and nobody, even the proponents, actually want the law to do what it's supposed to do. One more thing that's really unusual about the Texas Law and a sign that this is a law that nobody actually wants. The Texas Law bands spam filtering. It basically makes it difficult or impossible for email service writers to filter spam out of your inbox. Now that's

just bad policy. It's really actually unbelievable that any legislator would think that that's the right result, and it's a sign that this law was really a messaging bill. It was never meant to become law, because nobody wants an email inbox that's not subject to spam filtering. So these quote messaging bills designed to send a message but not meant to pass are hugely problematic. But if they actually passed, they're even more problematic. But yet you had Aldo's dissent

joined by Thomas and Gorsage. It's a little hard to read into the descent that Justice Alito wrote. Has the case came to the Supreme Court in a procedurally awkward way, And I think that it's understandable that the justices were not excited about making a substant decision when they hadn't had a chance to be fully briefed in a normal appellate process. So I took Justice Alito's opinion as a sign that he didn't like the procedural posture of the case,

which is understandable. I didn't like it either. And yet what troubles me is that the consequence of his opinion would have been to let this law that's never really meant to be law that sounds like it's clearly sensorial, go into a fact depending for the proceedings. But Justice Thomas last year suggested that the government might constitutionally be able to limit Twitter's ability to ban users. Yeah, and in that statement that he made, he admitted that he

had not had the benefit of proper briefing. He was just writing. He was just talking um, which of course is really troubling because that's not really what we expect Supreme Court justices to do. We expect them to hear all the evidence, to hear the perspectives of both sides, and then rule on a live case in front of them. And Justice Thomas's statement was none of that. So it was really actually a tell on Justice Thomas that he was willing to pipe up when nobody asked him, and

he wasn't actually properly prepared. Some people are making a lot out of the fact that there was an unusual alignment in descent because Justice Kagan joined the three Conservatives, but she didn't join Alito's descent, So might this be a protest on her part about another decision on the

shadow docket. It's a little hard to read into Justice Kagan's vote in this dicular case, but I don't put a lot of stock in it in the sense that it ultimately didn't change the outcome nating direction, and she very well may have had reservations about the procedural posture of the case. As I said, all of us do. It is not the best way to frame the case. So I've looked at her vote as probably more procedurally driven and that I have no idea where she'll stand

when she's probably briefed in a normal appeal. So the Fifth Circuit, which is based in New Orleans, considered the most conservative appellate court in the country, let this law take effect. They haven't issued the opinion yet, But the Eleventh Circuit, based in Atlanta, also conservative, blocked the core of a similar Florida law. Is the Florida law different enough from this to have that makes sense? Or or are these two circuits in conflict. Well, we really don't

know what's going on in the Fifth Circuit. And this is why the Supreme Court appeal was so procedurally awkward, because the Fifth Circuit changed the status quo. It let the law go into effect without providing its reasons. It didn't explain why it thought that the law should go into effect. So everyone had to speculate in the Supreme

Court appeal about what the Fifth Circuit was even thinking. Now, someday we're going to get an opinion from them that will clarify that and then we can properly critique where their heads at, But today we don't know. I think that the Eleventh Circuit opinion was extremely well done. It was a very thoughtful opinion written by someone who understands the concerns of conservatives both in the Fifth Circuit and on the Supreme Court. So it's a very well done opinion.

And I think that the Eleventh Circuit opinion applies pretty much in toto to the Texas law as well as the Florida law. In other words, I think that if the Fifth Circuit is listening to its appelled peers, that this opinion ought to get them to rethink what they were doing. But if they're marching to their own drummer, that creates what's called a circuit split, where the circuits are not in agreement but with the laws. And that's

the kind of thing that very much interests the Supreme Court. Yeah, it seems like if this continues that this this will come before the Supreme Court again. Do you have faith that the you know, the vote would be the same, or at least that the law would not be upheld. There's no doubt that this that these two laws are headed to the Supreme Court, and Justice Alito's opinion actually said I would vote in favor of hearing these cases.

So it seems like there's always three of the nine justices were ready to vote to accept review of the laws. What happens at that point, I think is it's actually really unpredictable. Because the Supreme Court has become unpredictable. We don't really know which which biases or norms they're going to allow to surface above and beyond the legal review that we expect them to do from a pure legal standpoint, from a standard constitutional law analysis, I don't even think

it's a close question. If the Supreme Court applied its presidents as they developed over the last several decades, there should be no question but that both the Florida Texas laws will be struck down in large part, if not in total. But the only reason why we don't believe that is because we're not sure how much the Supreme Court of sticking to espresso. Thanks Eric. That's Professor Eric Goldman of Santa Clara University School of Law. And that's

it for the edition of the Bloomberg Law Show. I'm June Grasso. When you're listening to Bloomberg