Durham's Conspiracy Theory

What I’m talking about here is Durham’s prosecutive theory for his Russia Hoax case. That prosecutive theory, as I’ve been maintaining since early 2019, will likely involve some form of conspiracy to defraud the government. You can refer to my numerous discussions of this topic here, as well as referring to former prosecutor George Parry’s article today:

John Durham’s Salad Shooter

Knowingingly concocting a fake narrative to fool the FBI and CIA is going to affect many Hillary Clinton campaign players, special counsel John Durham has let it be known in discovery.

I want to first reiterate that we can’t truly know at this point just how wide a net Durham will attempt to cast—we need to wait on events. However, as I explained in those numerous posts on conspiracy prosecutions, and as Parry explains today, the scope for such prosecutions is potentially very broad. It could, as he says—no, wait, he actually says more— “is going to affect many Hillary Clinton campaign players.” Many means more than just Sussmann, we just don’t know yet how many.

In the article Parry reviews in detail what others have also done—the narrative contained within the indictment as well as Durham’s response to Sussmann’s motion for a bill of particulars. We’ve already gone over the indictment and others have noted the vast amount of documentation that Durham has already turned over to Sussmann—as Durham notes in his response to Sussmann. Therefore, let’s cut to Parry’s bottom line. All this—the detailed narrative in the indictment and the huge amount of documentation included in what is only the beginning of the discovery process—points toward a conspiracy proscution:

So, what does all this mean? Here are some key takeaways.

First, where, as here, you see a prosecutor bury the defense in discovery, that is a sign that he has great confidence in his case and nothing to hide. ... As in “read it and weep.”

Second, the breadth and depth of the discovery as well as the obviously extensive and intensive efforts of the investigators to gather it indicate that there is far more to this matter than just the presently charged single count of making a false statement. Accordingly, we should expect an indictment or indictments commensurate with the scope of the present and promised discovery.

What will those charges entail? Based on what we know so far, they will most likely aver, among other crimes, a conspiracy to defraud the United States.

These observations should be fairly obvious to anyone with experience in these matters. A conspiracy prosecution offers many advantages for the prosecutor. It’s a very flexible and powerful prosecutive approach. Parry lists those advantages—which include a very straightforward theory of the case that’s usually easy for a jury to grasp:

Federal law defines a conspiracy as a combination of persons to accomplish by concerted action a criminal purpose or to accomplish a lawful objective by unlawful means. Conspiracy to defraud the United States means primarily to cheat the government out of money or property, but it also includes interference with or obstruction of one of its lawful governmental functions by deceit, trickery, or dishonest means.

One thing that makes this approach so flexible and powerful is that a key element of the prosecutive theory need not actually be an unlawful act in and of itself. It’s exactly that feature of the theory that makes Parry so confident that further indictments are coming:

An indictment charging a conspiracy must allege the agreement, the unlawful object of the conspiracy (e.g., to defraud the United States), and at least one overt act in furtherance of the conspiracy. An overt act need not itself be a crime. It may be an act such as having a conversation or sending an email. Whether or not the overt act is in furtherance of the conspiracy will be for a jury to decide. But proving only one overt act will be sufficient for conviction.

Also note how flexible and powerful this theory is in terms of venue for any trial, when we consider the nature and mode of use of modern digital communications:

The statute of limitations runs from the last overt act which is alleged and proven. And prosecution for conspiracy may be had in any federal district where the agreement was made or an overt act was committed. Where use of the mails, emails, interstate, or foreign commerce is involved, prosecution may be instituted in any federal district from, through or into which the matter involved (such as an email) moved.

Guess what? Sussmann, Elias, Sullivan, Jones, Simpson and many others understand all of the above. That’s the reason behind the almost palpable sense of alarm we’re getting from the actions being taken to influence public opinion or (via DoJ’s Lisa Monaco) to somehow slow Durham down. They can see the solid red light: Trouble Ahead! Or, as Parry says, Read it and weep.

In the remainder of the article Parry analyzes what we know from the indictment in light of the likelihood of a conspiracy theory of prosecution. I invite you to knock yourselves out reading it. But remember—this is still early days, and there could be much more to come. Yes, various Clinton campaign actors could be drawn into Sussmann’s conspiracy as we know it at this point, but by the same token the flexibility and power of conspiracy prosecutions could lead to even more possible subjects.

I’ll simply conclude with Parry’s own conclusion:

In short, the conspirators’ alleged campaign dirty trick became a criminal matter once it was used to trick and deceive the government into wasting its time, energy and resources investigating the hoax. Think of it in terms of making a false report of a crime to the local police.

And, given the locations where the various conspirators allegedly committed overt acts, Durham has his choice of venues in which charges can be brought. The CIA headquarters are located in the Eastern District of Virginia. Georgia Tech is in the Northern District of Georgia. The email traffic passed through facilities all over the United States. In short, the conspiracy charges can be brought in any number of locations which will be far more receptive to the prosecution’s case than the District of Columbia where persons affiliated with the Democrat party are a seemingly protected species.

There’s much more to discuss, …