Durham: On Sussmann's Lawyer's Conflicts

I was pretty sure it wouldn’t be long before someone knowledgeable in these conflict matters—meaning, not me—would weigh in. Margot Cleveland has done so today in two articles. Her explanation of how the conflicts that Michael Sussmann’s legal representatives—from the law firm of Latham & Watkins (where Liz Cheney’s husband is a partner)—may be handled may be of interest to readers who are following the Durham investigation. The first of Margot’s two article’s may also serve as a nice review of the new Durham revelations for those who are still trying to wrap their heads around their significance. These are complicated matters and hint at much more.

I won’t bother going into Durham’s arguments to establish that Sussmann’s lawyers are, in fact, conflicted in their representation of Sussmann. Suffice it to say that Durham’s arguments seem cogent and that Sussmann has already indicated that he will waive those conflicts or “potential” conflicts—he wants to keep Latham & Watkins, no matter what. The point of interest for us is how that conflict will be handled by the court, and here is Margot’s explanation:

The special counsel’s office opened the motion by explaining that it believes Sussmann’s current counsel of Latham and Watkins, LLP may have potential conflicts of interests that could affect its representation of Sussmann. Those “potential conflicts likely could be addressed with a knowing and voluntary waiver by the defendant upon consultation with conflict-free counsel,” Durham’s team explained. But such a waiver, Durham requested, should be made “on the record” before trial.

Obtaining an on-the-record waiver by Sussmann of any such conflict of interest would limit Sussmann’s ability to later challenge any conviction, whether following a plea agreement or a jury verdict. The court will likely grant that motion to ensure both that any waiver of the conflict is knowing and voluntary and to ensure Sussmann cannot later attempt to overturn any conviction based on the conflict.

Having disposed of that matter, Margot goes on to address in some detail exactly what the tag team of Joffe/Sussmann presented to the CIA in February, 2017. The importance of this is that this presentation was almost certainly intended to be the catalyst that would—in Hillary’s fantasies—drive President Trump from office. As I said up top, it’s a nice review. The main takeaway is that Durham, in his motion regarding potential conflicts, makes it fairly clear that Joffe/Sussmann were providing materially false ‘information’ to the CIA. In other words, Sussmann’s meeting with the CIA can probably be construed as a conspiracy within the broader conspiracy—it was a conspiracy to present false statements to the federal government, the CIA. This means that Durham likely believes he can target Sussmann with additional false statement charges and possibly conspiracy charges as well.

At the end of her second article Margot speculates that, in a sense, these two issues may have a type of interactive dynamic going, in that further inquiry into the potential conflicts by the court could lead Durham to offer further revelations on substantive matters in his investigation:

According to the government’s motion, Sussmann has indicated that he intends to waive all of the above conflicts. The question, then, is whether the court believes further inquiry on these conflicts is necessary before accepting such a waiver. If so, the public might just get an even better glance into the ongoing, leak-free special counsel probe.