Case 1:21-cr-00582-CRC Document 27 Filed 12/06/21 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Case No. 1:21-cr-00582

MICHAEL A. SUSSMANN,

Defendant.

DEFENDANT MICHAEL A. SUSSMANN’S

MOTION TO SET A TRIAL DATE AND ENTER A SCHEDULING ORDER

Defendant Michael A. Sussmann (“Mr. Sussmann” or “Defendant”), by and through his

undersigned counsel and pursuant to the Court’s instruction during the October 26, 2021 hearing,

respectfully requests that the Court set a trial date of May 2, 2022 and enter the scheduling order

attached hereto as Exhibit A. For the reasons set forth below, a trial commencing May 2, 2022 or

sooner is needed to protect Mr. Sussmann’s constitutional and statutory rights to a speedy trial; is

workable and practicable; and is comparable to the April 18, 2022 trial date set in the false

statements case brought by the Special Counsel in the Eastern District of Virginia nearly seven

weeks after Mr. Sussmann was charged.

BACKGROUND

1. On September 17, 2021, the Defendant was charged in a one-count Indictment with

making a single false statement to James Baker, then-General Counsel of the Federal Bureau of

Investigation (“FBI”), on September 19, 2016. Specifically, the Indictment alleges that

Mr. Sussmann falsely told Mr. Baker that he was not “acting on behalf of any client in conveying

particular allegations concerning a Presidential candidate.” Dkt. No. 1 at ¶ 46.

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2. Since his Indictment, Mr. Sussmann has not been able to practice law, which

understandably has affected his ability to support his family. Therefore, any undue delay in

commencing his trial will amplify the burdens that this matter unfairly imposes on him and his

family. It is against this backdrop that we first noted for the Court at the October 26, 2021, pretrial

conference that Mr. Sussmann intended to seek a speedy trial to clear his name at the earliest

possible opportunity. Your Honor instructed that the parties meet and confer to identify an

acceptable date range for trial and file a proposed joint pretrial order reflecting that date and any

additional relevant deadlines. See Dkt. No. 22 at 11:15-12:5.

3. Although counsel for Mr. Sussmann has met and conferred with the Special

Counsel concerning a proposed trial date, the parties remain far apart on an acceptable date.

Mr. Sussmann proposed that jury selection and trial start on May 2, 2022 and proposed interim

deadlines working backwards from that date. While the Special Counsel initially suggested that a

spring trial date might be acceptable, and subsequently indicated it would propose a June 2022

trial date during a November 22, 2021 telephone call, the Special Counsel has now proposed that

trial start on July 25, 2022. The Special Counsel has also suggested that four more months are

necessary for the Special Counsel to produce both classified and unclassified discovery in this

single-count false statement case. See Special Counsel’s Revised Proposed Scheduling Order,

attached hereto as Exhibit B. By contrast, the Special Counsel apparently will be able to produce

classified and unclassified discovery at much less leisurely pace in United States v. Danchenko, a

case brought by the Special Counsel in the Eastern District of Virginia nearly seven weeks after

charging Mr. Sussmann and for which that court has set an April 18, 2022 trial date.

4. The Special Counsel’s approach to discovery—as well as the material produced as

part of that discovery—only underscores the need for a speedy trial in this case. While the Special

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Counsel has produced significant discovery since Mr. Sussmann’s Indictment, the Special Counsel

has delayed in producing key evidence, which the Special Counsel was required to timely disclose

under Brady v. Maryland, 373 U.S. 83 (1963). Indeed, it was only last week—nearly two and a

half months after Mr. Sussmann’s indictment, and in the face of persistent demands by

Mr. Sussmann’s counsel—that the Special Counsel for the first time disclosed some (but not all)

of Mr. Baker’s statements about the September 19, 2016 meeting.1 And a number of those

statements directly contradict the Special Counsel’s allegation that Mr. Sussmann affirmatively

told Mr. Baker that he was not meeting with him on behalf of any clients. For example, when

Mr. Baker gave testimony to the U.S. Department of Justice’s Office of Inspector General in July

2019, Mr. Baker testified that Mr. Sussmann had expressly said he was meeting with him on behalf

of his clients:

So Michael came in and met with me [a]nd he had some amount of

information . . . that he said related to strange interactions that some
number of people that were his clients, who were, he described as I
recall it, sort of cyber-security experts, had found . . . .

SCO-006235 at 31:5-11 (emphases added), attached hereto as Exhibit C.

5. As another example, and again, contrary to the allegations in the Indictment, when

Mr. Baker first met with the Special Counsel in June 2020, he told the Special Counsel that the

topic of Mr. Sussmann’s clients never even came up during the September 19, 2016 meeting. See

SCO-006251, attached hereto as Exhibit D (“Baker said that Sussmann did not specify that he was

representing a client regarding the matter, nor did Baker ask him if he was representing a client.”).

The existence of Brady material of this kind only underscores the baseless and unprecedented

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Moreover, significant portions of the statements that were disclosed were redacted, an issue
which defense counsel has raised with the Special Counsel.

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nature of this indictment and the importance of setting a prompt trial date so that Mr. Sussmann

can vindicate himself as soon as possible.

6. Finally, to the extent that classification of portions of the remaining discovery are

alleged by the Special Counsel to be impediments to timely disclosure, we note that members of

the defense team have had security clearances permitting them access to classified case materials

since at least October 29, 2021, and the Special Counsel has accordingly begun to produce some

classified discovery.

ARGUMENT

7. Mr. Sussmann respectfully submits that a trial commencing May 2, 2022 is:

(1) necessary to protect Mr. Sussmann’s rights and interests; (2) workable and practicable; and

(3) in keeping with the April 18, 2022 trial date set in a similar false statements case brought by

the Special Counsel in the Eastern District of Virginia nearly seven weeks after Mr. Sussmann was

charged.

8. First, a trial commencing May 2, 2022 or sooner is needed to protect

Mr. Sussmann’s constitutional and statutory rights to a speedy trial. “A criminal defendant’s right

to a speedy trial is ‘one of the most basic rights preserved by our Constitution.’ Congress chose

to safeguard this important right through the rigid procedural requirements of the Speedy Trial

Act.” United States v. Ammar, 842 F.3d 1203, 1212-13 (11th Cir. 2016) (citation omitted). “[T]he

Speedy Trial Act imposes on the Court duties and responsibilities designed to protect

[a defendant’s] and the public’s right to an expeditious disposition of his case.” United States v.

Dixon, 355 F. Supp. 3d 1, 3 n.1 (D.D.C. 2019). To ensure such an expeditious disposition, the

Speedy Trial Act mandates that “the government must bring a defendant to trial within seventy

days of an indictment.” United States v. Hemphill, 514 F.3d 1350, 1357 (D.C. Cir. 2008).

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9. Here, Mr. Sussmann was indicted on September 16, 2021, see Dkt. No. 1. Setting

a trial date on July 25, 2022—over ten months after Mr. Sussmann was indicted—would well

exceed the 70-day Speedy Trial clock and thereby violate Mr. Sussmann’s constitutional and

statutory guarantee of a speedy trial. Because Mr. Sussmann is not currently working as a result

of the baseless charge brought against him, any undue delay in commencing his trial would also

unnecessarily extend the burden that this matter imposes on both him and his family.

10. Second, commencing trial in May 2022 is eminently workable for both sides. The

Special Counsel’s principal rationale for a July 2022 trial date is that the Special Counsel must

have until the end of March to produce unclassified and classified discovery. But it cannot be that

the Special Counsel needs a total of over six months to produce discovery in a case charging a

single false statement and for which there is only one witness to that statement. Rather, the delay

can only be seen as an effort to slow-walk this matter, or as a result of an inadequate application

of resources to the case: how else to explain, for example, that—inconsistent with the Special

Counsel’s Brady obligations—it took over two months to produce even a portion of some of the

textbook Brady material in this case (and only then on the eve of a status conference before this

Court)? See United States v. Hsia, 24 F. Supp. 2d 14, 29 (D.D.C. 1998) (the government must

“disclose . . . in sufficient time for the defendant to ‘use the favorable material effectively in the

preparation and presentation of its case’” (citation omitted)); see also LCrR 5.1(a) (“the

government . . . make good-faith efforts to disclose [Brady] information to the defense as soon as

reasonably possible after its existence is known, so as to enable the defense to make effective use

of the disclosed information in the preparation of its case” (emphasis added)).

11. Third and finally, whatever the Special Counsel may say about the practical

problems posed by a case involving classified material, the Special Counsel charged another case

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involving classified information—a five-count false statements case—nearly seven weeks after

Mr. Sussmann’s indictment was returned, and the court in that matter has already set a trial date

several weeks earlier than the one Mr. Sussmann is requesting here. Specifically, on or about

November 3, 2021, a grand jury sitting in the Eastern District of Virginia returned an indictment

sought by the Special Counsel against Igor Danchenko, charging five separate false statement

counts. In that case, as in this one, the Special Counsel pointed to purportedly voluminous

discovery and classification issues. Compare Arraignment Hr’g Tr. 4:5-14, United States v.

Danchenko, No. 1:21-cr-00245-AJT-1 (E.D. Va. Nov. 10, 2021) (“[W]e believe that discovery is

going to be fairly extensive. The government will move expeditiously to produce the unclassified

discovery as soon as possible, but there’s going to be a vast amount of classified discovery here,

Your Honor.”), with Dkt. No. 13 at 4:20-5:22 (“The discovery in this case will be more

voluminous, we think, than the average case” and “[t]here are classification issues with regard to

some of the discovery.”). Notwithstanding the Special Counsel’s assertions, Judge Trenga set a

trial date of April 18, 2022. Thus, even though Danchenko also involves classified material, even

though that case was charged nearly seven weeks after Mr. Sussmann’s case, and even though

there are four more counts in that matter, the Special Counsel will have to be ready to—and has

agreed to—try the matter in April 2022. If the Special Counsel can be ready to try the more

complicated Danchenko case in April, he can be ready to try this case in May.

PRAYER FOR RELIEF

WHEREFORE, Defendant Michael A. Sussmann requests that this Court set a trial date

of May 2, 2022 and enter the scheduling order attached hereto as Exhibit A.

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Dated: December 6, 2021

Respectfully submitted,

/s/ Sean M. Berkowitz

Sean M. Berkowitz (pro hac vice)
LATHAM & WATKINS LLP
330 North Wabash Avenue
Suite 2800
Chicago, IL 60611
Tel: (312) 876-7700
Fax: (312) 993-9767
Email: [email protected]

Michael S. Bosworth (pro hac vice)

LATHAM & WATKINS LLP
1271 Avenue of the Americas
New York, NY 10020
Tel: (212) 906-1200
Fax: (212) 751-4864
Email: [email protected]

Natalie Hardwick Rao (D.C. Bar # 1009542)

Catherine J. Yao (D.C. Bar # 1049138)
LATHAM & WATKINS LLP
555 Eleventh Street, NW
Suite 1000
Washington, DC 20004
Tel: (202) 637-2200
Fax: (202) 637-2201
Email: [email protected]
Email: [email protected]

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EXHIBIT A
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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Case No. 1:21-cr-00582

MICHAEL A. SUSSMANN,

Defendant.

[PROPOSED] PRE-TRIAL ORDER

In order to administer the trial of the above-captioned criminal case in a manner that is fair

and just to the parties and is consistent with the Speedy Trial Act, 18 U.S.C. §§ 3161-3174, and

the goal of completing the trial of this case in the most efficient manner, it is hereby

ORDERED that counsel shall comply with each of the following procedures and

requirements:

1. TRIAL. Jury Selection and Trial of this matter will commence on May 2, 2022 at

9:00 a.m. in Courtroom 27A.

2. PRE-TRIAL CONFERENCE. A pre-trial conference will be held on March

___ 2022 at _______ in Courtroom 27A. The Court will rule on all unresolved pre-trial motions

and objections to proposed exhibits, to the extent possible, at the pre-trial conference, hearing

argument as necessary.

3. PRE-TRIAL PROCEEDINGS. The Court adopts the following schedule for

pretrial proceedings:
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Date Event
January 14, 2022 Production of all unclassified discovery (including all unclassified
Brady material) by the Special Counsel to the Defendant.
January 28, 2022 Production of all classified discovery (including all classified Brady
material) by the Special Counsel to the Defendant.
February 2, 2022 The Special Counsel’s CIPA Section 4 Motion due.
February 18, 2022 Defense motions (including any motion(s) to dismiss the Indictment)
due.
March 4, 2022 The Special Counsel’s opposition(s) to defense motion(s) due.
March 11, 2022 Defense replies to the Special Counsel’s opposition(s) due.
March 2, 2022 The Special Counsel provides notice and full details of all Fed. R.
Evid. 404(b) evidence it intends to offer.
March 2, 2022 Production of all Jencks Act and Giglio material by the Special
Counsel to Defendant.
Mid-March Motions hearing, subject to Court’s calendar.
March 21, 2022 Motions in limine and motions relating to voir dire process due.
April 1, 2022 Last day for the Defendant to file Section 5 Notice of Intention to
Disclose Classified Information.
April 4, 2022 Production of trial exhibits and exhibit list by the Special Counsel to
the Defendant.
April 4, 2022 Production of trial witness list by the Special Counsel to the
Defendant.
April 4, 2022 Responses to motions in limine.
April 15, 2022 Production of joint jury questionnaire by the Special Counsel and the
Defendant.
April 18, 2022 Production of trial exhibits and exhibit lists by the Defendant to the
Special Counsel.
April 18, 2022 Production of trial witness list by the Defendant to the Special
Counsel.
April 26, 2022 Production of proposed jury instructions and a proposed verdict form.
May 2, 2022 Jury selection/trial begins.

At present, the Special Counsel has not identified or indicated that it intends to identify an

expert witness. To the extent the Special Counsel identifies an expert witness, it will promptly

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disclose such witness under Rule 16(a)(1)(G), and the parties will meet and confer regarding a

proposed schedule related to expert disclosures.

Discovery is ongoing, and involves unclassified materials, materials subject to complete or

partial declassification, and classified materials. To the extent the Special Counsel is unable to

produce all discovery materials by January 28, 2022 the parties will meet and confer by January

21, 2022 regarding the proposed schedule.

Defendant anticipates that it may be necessary to use classified information or material at

trial. To that end, Defendant will promptly provide, on a rolling basis as such materials are

identified and no later than 30 days before trial, a Section 5 Notice of Defendant’s Intention to

Disclose Classified Information, and the parties will meet and confer on dates by which to litigate

the use of this information.

The parties believe that trial will last approximately 1.5 to 2 weeks. With regard to the

trial, the parties agree they will exchange an order of call for witnesses on a daily basis.

4. PROPOSED JURY INSTRUCTIONS. Both counsel shall file proposed jury

instructions and a proposed verdict form—jointly to the extent possible—on or before April 26,

2022. To the extent that they are pattern jury instructions from the current version of the Redbook,

it is sufficient simply to list the numbers of those instructions. Special instructions shall be

submitted verbatim with citations to cases and other authorities to support each instruction.

Proposed instructions shall be filed on ECF. In addition, a set of the instructions shall be emailed

to Chambers (c/o [email protected]) in MS Word form.

5. BRADY AND GIGLIO. The Special Counsel is under a continuing and ongoing

obligation to provide defense counsel any favorable or exculpatory information (Brady), whether

or not admissible in evidence, as soon as reasonably possible. Brady information must be disclosed

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on a rolling basis—“the duty to disclose is ongoing.” Pennsylvania v. Ritchie, 480 U.S. 39, 60

(1987). Giglio obligations are also ongoing. Should the Special Counsel request it, the Court will

enter a protective order precluding counsel from sharing Giglio information with their clients.

6. EXHIBIT LISTS. All exhibits are to be marked in advance of trial and listed in

order on the exhibit form obtained from Courtroom Deputy Clerk Lauren Jenkins. The written list

of exhibits must contain a brief description of each exhibit. At the commencement of trial, counsel

shall furnish the Court with two sets of binders containing their exhibit lists and copies of their

pre-marked exhibits.

7. WITNESS LISTS. In addition to its witness list, each Friday immediately before

and during trial the Special Counsel shall provide to the defense an “order of call” of witnesses

for the following week and Jencks Act material for those witnesses to the extent not previously

provided in the schedule set forth above. The Special Counsel must also provide a list of witnesses

it anticipates calling on a particular trial day no less than 36 hours in advance (if not earlier).

Defendant shall provide its witness list to the Special Counsel (and this Court) no later than the

close of the Special Counsel’s case and the reverse Jencks material no later than the Friday before

the witness is to testify. Counsel will not be absolutely bound by the witness lists or order of call

in calling their witnesses because, on occasion, in good faith they must call an additional witness

and/or change an intended order of proof or find it necessary to call a witness out of turn. In some

cases, security concerns by either party may justify non-identification of witnesses until shortly

before they are actually called. These situations, if any, shall be brought to the Court’s attention

in camera when the witness list excluding those names is provided to the other counsel.

8. JURY SELECTION. The Court will summarize its jury-selection procedures at the

pre-trial conference.

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9. TRIAL AND PUNCTUALITY. Unless counsel are notified otherwise, the jury

portion of the trial will be conducted each trial day from 9:30 a.m. to 12:30 p.m. and from 1:45

p.m. to 5:00 p.m. on Mondays through Thursdays in Courtroom 27A. The need for Friday

trial sessions will be assessed as necessary. Unless otherwise instructed by the Court, counsel shall

be present in the courtroom each morning promptly at 9:00 a.m. to address preliminary matters.

Trial will convene promptly at the designated time on each trial day and the jury will not be kept

waiting.

10. ELECTRONIC EQUIPMENT. Representatives of either side who intend to use

electronic equipment during the course of this trial shall promptly meet with John Cramer,

Courtroom Technology Administrator (202-354-3019), to arrange for the necessary equipment.

Representatives of both sides shall meet with Mr. Cramer to become familiar with the equipment

in the courtroom.

11. VIDEO/AUDIO. For all video or audio to be used in this case, counsel for both

sides shall resolve any dispute between any alleged inaccuracy in the transcripts and/or

discrepancies between the transcripts and the source material. If it proves impossible for counsel

to resolve the dispute, they shall so advise the Court at least three days before the video/audio

is to be offered so that the Court may resolve the dispute efficiently.

12. GENERAL COURTROOM RULES. The Court expects counsel to exercise

civility at all times toward each other and toward everyone involved in the case or working with

the Court.

a. Unless leave is otherwise given, counsel shall interrogate witnesses and

make opening statements and closing arguments from the lectern and shall

speak into the microphone.

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b. Counsel shall obtain permission from the Court before approaching a

witness.

c. One counsel for the Special Counsel and one counsel for the Defendant shall

be designated as lead counsel for each and every witness, for purposes of

direct examination, cross-examination, redirect examination, and raising

objections.

d. The Court will strictly apply the rules on rebuttal evidence. See Black’s

Law Dictionary (9th ed. 2009) (defining “rebuttal evidence” as “[e]vidence

offered to disprove or contradict the evidence presented by an opposing

party”).

e. Counsel are reminded that the traditional rules regarding opening

statements and closing arguments will be enforced by the Court.

f. All statements by counsel should be directed to the Court and not to

opposing counsel.

g. Counsel are reminded that their own opinions regarding facts or issues in a

case are irrelevant and should not be communicated to the jury (e.g., “I think

. . .”; “We believe . . .”).

h. Counsel are reminded to secure clearance from the Court before posing

questions or engaging in procedures in the presence of the jury that carry a

risk of undue prejudice, or that by law or customary procedures require

judicial pre-approval.

i. Unless otherwise permitted by the Court, counsel shall refer to all witnesses

over the age of 18, including their clients, as “Mr.” or “Ms.” or by their

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official title (e.g., “Captain” or “Dr.”). The use of first names or nicknames

is prohibited. All witnesses are to be addressed in a respectful and polite

manner.

13. DIRECT AND CROSS-EXAMINATION. On direct and cross-examination of a

witness, counsel shall not:

a. Testify by improperly incorporating facts into their questions so as to put

before the jury information that has not been received in evidence;

b. Use an objection as an opportunity to argue or make a speech in the presence

of the jury;

c. Show the jury a document or anything else that has not yet been received in

evidence without leave of the Court. If counsel is using electronic

equipment to display documents to the jury and the Court, counsel shall

make sure that the document has been admitted in evidence before it is

shown to the jury; or

d. Except in extraordinary circumstances, be permitted to recross-examine any

witness.

14. OBJECTIONS AND EVIDENTIARY MATTERS. Any legal matters or

evidentiary issues that arise during the course of the trial and have not been the subject of a motion

in limine or pre-trial motion should be discussed between counsel no later than the night before

the witness or exhibit is to be offered. If there is no resolution, the proponent of the objection or

evidence shall email Chambers and opposing counsel that evening or, in any case, no later than

7:00 a.m. the next morning, in succinct terms, a statement of the evidentiary issue or objection

and their position, with legal authority. The opposing party shall email by no later than 8:00 a.m.

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the contrary position with legal authority. The Court will discuss and rule during the time for

preliminary matters each morning. In this way the jury will not be kept waiting while legal issues

are discussed and resolved.

15. OBJECTIONS AT TRIAL. Bench conferences are discouraged.1 Counsel who

make objections during trial must state the legal basis for their objections without elaboration or

argument (unless invited)—e.g., “objection, hearsay,” “objection, lack of foundation.” The Court

will generally rule on the objection without additional discussion except in the most critical areas.

For purposes of “protecting the record” and assisting appellate review, counsel may explain or

amplify their objections on the record after the jury has been excused for a break, for lunch, or for

the day.

16. WAIVER OF BENCH CONFERENCES. Counsel may arrange with the

Courtroom Deputy Clerk, Lauren Jenkins, to permit the Defendant to listen to bench conferences

through a headset. The Defendant will not be permitted at the bench.

17. RULE ON WITNESSES. Except for the parties or their authorized representatives

permitted under Rule 615 of the Federal Rules of Evidence and any expert witnesses, all witnesses

shall remain outside the courtroom except while actually testifying. Unless permission for a

witness to remain in the courtroom is expressly sought and granted, the rule on witnesses is always

in effect, even during voir dire and opening statements. Counsel shall instruct witnesses not to

discuss their testimony with others after they leave the stand. Except for a Defendant-witness

(because of Sixth Amendment implications), counsel calling a witness to testify, and counsel’s

agents, should have no further discussions with that witness concerning any aspect of the testimony

1
Counsel may seek to convene a bench conference if counsel is about to engage in a line of inquiry
on direct or cross-examination that reasonably necessitates preclearance, e.g., potentially
inflammatory areas of interrogation.

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already given or anticipated until such time as the witness has completed his or her testimony. As

to a Defendant-witness, counsel and their agents are directed to the D.C. Circuit’s opinion in

United States v. McLaughlin, 164 F.3d 1, 4–7 (D.C. Cir. 1998). At all other times, within the

bounds of governing ethics rules and the law, counsel may pursue their discussions with witnesses

during the trial.

18. WITNESSES ON CALL. Once the trial begins, witnesses shall be put on call at

the peril of the calling party. The trial will not be recessed because a witness on call is unavailable,

except in extraordinary circumstances. The Court will endeavor to accommodate out-of-town and

expert witnesses if counsel alerts the Court. The party calling a witness shall arrange for that

witness’s presence until cross-examination is completed, including the following trial day if need

be. The failure to have a witness present for cross-examination following direct examination is

grounds to strike the witness’s testimony.

19. PRESENCE OF COUNSEL. Once court is in session, lead counsel shall not leave

the courtroom without the Court’s express permission.

20. SUA SPONTE JURY INSTRUCTIONS. Any necessary sua sponte jury

instructions shall be written out by counsel requesting them and shall be given to the Court in a

form in which the Court might read the instructions to the jury. Failure to do so shall be deemed

a waiver of any such request. In the event that the instructions are given, it shall be counsel’s

responsibility to remind the Court of the necessity for inclusion of any sua sponte instructions in

its final charge by 4:00 p.m. on the day before the date on which the final charge is to be given

by the Court to the jury.

21. CONTACT WITH THE JURY. Counsel, Defendant, and law-enforcement

personnel shall not make any verbal comments, facial expression, laughter or other contact with

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the jury that could be interpreted as conveying a comment one way or the other with respect to any

testimony, argument, or event that may occur during trial. Nor shall any such persons offer

gratuitous comments or asides about witnesses’ testimony or opposing counsel.

22. CLOSING ARGUMENTS AND INSTRUCTIONS. The courtroom will be locked

during jury instructions and no one will be permitted to enter or leave. In making closing

arguments, counsel shall be limited by the evidence presented during trial and are reminded of the

prohibition against appealing to the jurors’ prejudices. Moreover, during closing argument and

throughout the trial, counsel shall not:

a. Comment adversely on the failure of the Defendant to testify on his own

behalf;

b. Make statements of personal belief to the jury;

c. Make personal attacks on other counsel in the case;

d. Appeal to the self-interest of the jurors; or

e. Make potentially inflammatory racial, ethnic, political, or religious

comments.

With regard to both opening statements and closing arguments, counsel are admonished

not to make statements or arguments that will engender objections. The Court will intervene sua

sponte and not wait for objections if it detects a failure to adhere to basic legal principles and

standards of civility. Failure to abide by these rules may result in sanctions.

SO ORDERED.

Date: ________________, 2021 ______________________________

Hon. Christopher R. Cooper
United States District Judge

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NAMES OF PERSONS TO BE SERVED WITH PROPOSED ORDERS

For Michael A. Sussmann:

Sean M. Berkowitz (pro hac vice)

Latham & Watkins LLP
330 North Wabash Avenue
Suite 2800
Chicago, IL 60611
Tel: (312) 876-7700

Michael Bosworth (pro hac vice)

Latham & Watkins LLP
1271 Avenue of the Americas
New York, NY 10020
Tel: (212) 906-1200

Natalie Hardwick Rao

Catherine J. Yao
Latham & Watkins LLP
555 Eleventh Street, NW
Suite 1000
Washington, DC 20004
Tel: (202) 637-2200

For the United States of America:

John Durham, Special Counsel

Andrew DeFilippis, Assistant Special Counsel
Michael Keilty, Assistant Special Counsel
Jonathan Algor, Assistant Special Counsel
United States Department of Justice
145 N Street Northeast
Room 3E.803
Washington, D.C. 20530

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EXHIBIT B
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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Case No. 1:21-cr-00582

MICHAEL A. SUSSMANN,

Defendant.

[PROPOSED] PRE-TRIAL ORDER

In order to administer the trial of the above-captioned criminal case in a manner that is fair

and just to the parties and is consistent with the goal of completing the trial of this case in the most

efficient manner, it is hereby

ORDERED that counsel shall comply with each of the following procedures and

requirements:

1. TRIAL. Trial of this matter will commence on July 25, 2022 at 9:00 a.m. in

Courtroom 27A.

2. PRE-TRIAL CONFERENCE. A pre-trial conference will be held on July ___ 2022

at _______ in Courtroom 27A. The Court will rule on all unresolved pre-trial motions and

objections to proposed exhibits, to the extent possible, at the pre-trial conference, hearing argument

as necessary.

3. PRE-TRIAL PROCEEDINGS. In light of the parties’ joint proposed schedule, the

Court adopts the following schedule for pretrial proceedings:

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Date Event
March 25, 2022 Production of all unclassified discovery (including all unclassified
Brady material) by Special Counsel to the Defendant
March 25, 2022 Production of all classified discovery (including all classified Brady
material) by Special Counsel to the Defendant
April 8, 2022 Defense motions (including motions to dismiss the Indictment) due
April 22, 2022 Special Counsel oppositions to defense motions due
April 29, 2022 Defense replies to Special Counsel responses due
April 29, 2022 Government CIPA Section 4 Motion Due
May 13, 2022 Last day for Defendant to file Section 5 Notice of Intention to
Disclose Classified Information
May 27, 2022 Special Counsel provides notice and full details of all Fed. R. Evid.
404(b) evidence it intends to offer.
Late May Motions hearing subject to Court’s calendar
June 3, 2022 Motions in limine and motions relating to voire dire process due
June 17, 2022 Responses to motions in limine due
July 1, 2022 Production of all Jencks Act and Giglio material by the Special
Counsel to Defendant
July 11, 2022 Production of trial exhibits and exhibit list by the Special Counsel to
the Defendant
July 11, 2022 Production of trial witness list by the Special Counsel to the
Defendant
July 11, 2022 Production of joint jury questionnaire by the Special Counsel and
Defendant
July 11, 2022 Production of trial exhibits and exhibit lists by Defendant to the
Special Counsel
July 18, 2022 Production of trial witness list by the Defendant to the Special
Counsel.
July 18, 2022 Production of proposed jury instructions and a proposed verdict form.
July 25, 2022 Jury selection/trial begins

At present, the Special Counsel has not identified or indicated that it intends to identify an

expert witness. To the extent the Special Counsel identifies an expert witness, it will promptly

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disclose such witness under Rule 16(a)(1)(G), and the parties will meet and confer regarding a

proposed schedule related to expert disclosures.

Discovery is ongoing, and involves both materials subject to declassification and classified

materials. To the extent the Special Counsel is unable to produce all materials by March 25, 2022,

the parties will meet and confer regarding the proposed schedule.

Defendant anticipates that it may be necessary to use classified information or material at

trial. To that end, Defendant will promptly provide, on a rolling basis as such materials are

identified and no later than 30 days before trial, a Section 5 Notice of Defendant’s Intention to

Disclose Classified Information and the parties will meet and confer on dates by which to litigate

the use of this information.

The parties believe that trial will last approximately 1.5 to 2 weeks. With regard to the

trial, the parties agree they will exchange an order of call for witnesses on a daily basis.

4. PROPOSED JURY INSTRUCTIONS. Counsel shall file proposed jury

instructions and a proposed verdict form—jointly to the extent possible—on or before July 18,

2022. To the extent that they are pattern jury instructions from the current version of the Redbook,

it is sufficient simply to list the numbers of those instructions. Special instructions shall be

submitted verbatim with citations to cases and other authorities to support each instruction.

Proposed instructions shall be filed on ECF. In addition, a set of the instructions shall be emailed

to Chambers (c/o [email protected]) in MS Word form.

5. BRADY AND GIGLIO. The Special Counsel is under a continuing and ongoing

obligation to provide defense counsel any favorable or exculpatory information (Brady), whether

or not admissible in evidence. Brady information must be disclosed on a rolling basis—“the duty

to disclose is ongoing.” Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987). Giglio obligations are

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also ongoing. Should the Special Counsel request it, the Court will enter a protective order

precluding counsel from sharing Giglio information with their clients.

6. EXHIBIT LISTS. All exhibits are to be marked in advance of trial and listed in

order on the exhibit form obtained from Courtroom Deputy Clerk Lauren Jenkins. The written list

of exhibits must contain a brief description of each exhibit. At the commencement of trial, counsel

shall furnish the Court with two sets of binders containing their exhibit lists and copies of their

pre-marked exhibits.

7. WITNESS LISTS. In addition to its witness list, each Friday immediately before

and during trial the Special Counsel shall provide to the defense an “order of call” of witnesses

(to the extent feasible and available) for the following week and Jencks Act material for those

witnesses to the extent not previously provided in the schedule set forth above. It must also

endeavor to provide a list of witnesses the Special Counsel anticipates calling on a particular trial

day no less than 36 hours in advance (if not earlier). Defendants shall provide their witness

lists to the Special Counsel (and this Court) no later than the close of the Special Counsel’s case

and the reverse Jencks material no later than the Friday before the witness is to testify. Counsel

will not be absolutely bound by the witness lists or order of call in calling their witnesses because,

on occasion, in good faith they must change an intended order of proof or find it necessary to call

a witness out of turn. In some cases, security concerns may justify non-identification of witnesses

by the Special Counsel until shortly before they are actually called. These situations, if any, shall

be brought to the Court’s attention in camera when the witness list excluding those names is

provided to defense counsel.

8. JURY SELECTION. The Court will summarize its jury-selection procedures at the

pre-trial conference.

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9. TRIAL AND PUNCTUALITY. Unless counsel are notified otherwise, the jury

portion of the trial will be conducted each trial day from 9:30 a.m. to 12:30 p.m. and from 1:45

p.m. to 5:00 p.m. on Mondays through Thursdays in Courtroom 27A. The need for Friday

trial sessions will be assessed as necessary. Unless otherwise instructed by the Court, counsel shall

be present in the courtroom each morning promptly at 9:00 a.m. to address preliminary matters.

Trial will convene promptly at the designated time on each trial day and the jury will not be kept

waiting.

10. ELECTRONIC EQUIPMENT. Representatives of either side who intend to use

electronic equipment during the course of this trial shall promptly meet with John Cramer,

Courtroom Technology Administrator (202-354-3019), to arrange for the necessary equipment.

Representatives of both sides shall meet with Mr. Cramer to become familiar with the equipment

in the courtroom.

11. VIDEO/AUDIO. For all video or audio to be used in this case, counsel for both

sides shall resolve any dispute between any alleged inaccuracy in the transcripts and/or

discrepancies between the transcripts and the source material. If it proves impossible for counsel

to resolve the dispute, they shall so advise the Court at least three days before the video/audio

is to be offered so that the Court may resolve the dispute efficiently.

12. GENERAL COURTROOM RULES. The Court expects counsel to exercise

civility at all times toward each other and toward everyone involved in the case or working with

the Court.

a. Unless leave is otherwise given, counsel shall interrogate witnesses and

make opening statements and closing arguments from the lectern and shall

speak into the microphone.

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b. Counsel shall obtain permission from the Court before approaching a

witness.

c. One counsel for the Special Counsel and one counsel for each Defendant

shall be designated as lead counsel for each and every witness, for purposes

of direct examination, cross-examination, redirect examination, and raising

objections.

d. The Court will strictly apply the rules on rebuttal evidence. See Black’s

Law Dictionary (9th ed. 2009) (defining “rebuttal evidence” as “[e]vidence

offered to disprove or contradict the evidence presented by an opposing

party”).

e. Counsel are reminded that the traditional rules regarding opening

statements and closing arguments will be enforced by the Court.

f. All statements by counsel should be directed to the Court and not to

opposing counsel.

g. Counsel are reminded that their own opinions regarding facts or issues in a

case are irrelevant and should not be communicated to the jury (e.g., “I think

. . .”; “We believe . . .”).

h. Counsel are reminded to secure clearance from the Court before posing

questions or engaging in procedures in the presence of the jury that carry a

risk of undue prejudice, or that by law or customary procedures require

judicial pre-approval.

i. Unless otherwise permitted by the Court, counsel shall refer to all witnesses

over the age of 18, including their clients, as “Mr.” or “Ms.” or by their

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official title (e.g., “Captain” or “Dr.”). The use of first names or nicknames

is prohibited. All witnesses are to be addressed in a respectful and polite

manner.

13. DIRECT AND CROSS-EXAMINATION. On direct and cross-examination of a

witness, counsel shall not:

a. Testify by improperly incorporating facts into their questions so as to put

before the jury information that has not been received in evidence;

b. Use an objection as an opportunity to argue or make a speech in the presence

of the jury;

c. Show the jury a document or anything else that has not yet been received in

evidence without leave of the Court. If counsel is using electronic

equipment to display documents to the jury and the Court, counsel shall

make sure that the document has been admitted in evidence before it is

shown to the jury; or

d. Except in extraordinary circumstances, be permitted to recross-examine any

witness.

14. OBJECTIONS AND EVIDENTIARY MATTERS. Any legal matters or

evidentiary issues that arise during the course of the trial and have not been the subject of a motion

in limine or pre-trial motion should be discussed between counsel no later than the night before

the witness or exhibit is to be offered. If there is no resolution, the proponent of the objection or

evidence shall email Chambers and opposing counsel that evening or, in any case, no later than

7:00 a.m. the next morning, in succinct terms, a statement of the evidentiary issue or objection

and their position, with legal authority. The opposing party shall email by no later than 8:00 a.m.

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the contrary position with legal authority. The Court will discuss and rule during the time for

preliminary matters each morning. In this way the jury will not be kept waiting while legal issues

are discussed and resolved.

15. OBJECTIONS AT TRIAL. Bench conferences are discouraged.1 Counsel who

make objections during trial must state the legal basis for their objections without elaboration or

argument (unless invited)—e.g., “objection, hearsay,” “objection, lack of foundation.” The Court

will generally rule on the objection without additional discussion except in the most critical areas.

For purposes of “protecting the record” and assisting appellate review, counsel may explain or

amplify their objections on the record after the jury has been excused for a break, for lunch, or for

the day.

16. WAIVER OF BENCH CONFERENCES. Counsel may arrange with the

Courtroom Deputy Clerk, Lauren Jenkins, to permit Defendants to listen to bench conferences

through a headset. They will not be permitted at the bench.

17. RULE ON WITNESSES. Except for the parties or their authorized representatives

permitted under Rule 615 of the Federal Rules of Evidence and any expert witnesses, all witnesses

shall remain outside the courtroom except while actually testifying. Unless permission for a

witness to remain in the courtroom is expressly sought and granted, the rule on witnesses is always

in effect, even during voir dire and opening statements. Counsel shall instruct witnesses not to

discuss their testimony with others after they leave the stand. Except for a Defendant-witness

(because of Sixth Amendment implications), counsel calling a witness to testify, and counsel’s

agents, should have no further discussions with that witness concerning any aspect of the testimony

1
Counsel may seek to convene a bench conference if counsel is about to engage in a line of
inquiry on direct or cross-examination that reasonably necessitates preclearance, e.g., potentially
inflammatory areas of interrogation.

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already given or anticipated until such time as the witness has completed his or her testimony. As

to a Defendant-witness, counsel and their agents are directed to the D.C. Circuit’s opinion in

United States v. McLaughlin, 164 F.3d 1, 4–7 (D.C. Cir. 1998). At all other times, within the

bounds of governing ethics rules and the law, counsel may pursue their discussions with witnesses

during the trial.

18. WITNESSES ON CALL. Once the trial begins, witnesses shall be put on call at

the peril of the calling party. The trial will not be recessed because a witness on call is unavailable,

except in extraordinary circumstances. The Court will endeavor to accommodate out-of-town and

expert witnesses if counsel alerts the Court. The party calling a witness shall arrange for that

witness’s presence until cross-examination is completed, including the following trial day if need

be. The failure to have a witness present for cross-examination following direct examination is

grounds to strike the witness’s testimony.

19. PRESENCE OF COUNSEL. Once court is in session, lead counsel shall not leave

the courtroom without the Court’s express permission.

20. SUA SPONTE JURY INSTRUCTIONS. Any necessary sua sponte jury

instructions shall be written out by counsel requesting them and shall be given to the Court in a

form in which the Court might read the instructions to the jury. Failure to do so shall be deemed

a waiver of any such request. In the event that the instructions are given, it shall be counsel’s

responsibility to remind the Court of the necessity for inclusion of any sua sponte instructions in

its final charge by 4:00 p.m. on the day before the date on which the final charge is to be given

by the Court to the jury.

21. CONTACT WITH THE JURY. Counsel, Defendants, and law-enforcement

personnel shall not make any verbal comments, facial expression, laughter or other contact with

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the jury that could be interpreted as conveying a comment one way or the other with respect to any

testimony, argument, or event that may occur during trial. Nor shall any such persons offer

gratuitous comments or asides about witnesses’ testimony or opposing counsel.

22. CLOSING ARGUMENTS AND INSTRUCTIONS. The courtroom will be locked

during jury instructions and no one will be permitted to enter or leave. In making closing

arguments, counsel shall be limited by the evidence presented during trial and are reminded of the

prohibition against appealing to the jurors’ prejudices. Moreover, during closing argument and

throughout the trial, counsel shall not:

a. Comment adversely on the failure of Defendants to testify on their own

behalf;

b. Make statements of personal belief to the jury;

c. Make personal attacks on other counsel in the case;

d. Appeal to the self-interest of the jurors; or

e. Make potentially inflammatory racial, ethnic, political, or religious

comments.

With regard to both opening statements and closing arguments, counsel are admonished

not to make statements or arguments that will engender objections. The Court will intervene sua

sponte and not wait for objections if it detects a failure to adhere to basic legal principles and

standards of civility. Failure to abide by these rules may result in sanctions.

SO ORDERED.

Date: ________________, 2021 ______________________________

Hon. Christopher R. Cooper
United States District Judge

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NAMES OF PERSONS TO BE SERVED WITH PROPOSED ORDERS

For Michael A. Sussmann:

Sean M. Berkowitz (pro hac vice)

Latham & Watkins LLP
330 North Wabash Avenue
Suite 2800
Chicago, IL 60611
Tel: (312) 876-7700

Michael Bosworth (pro hac vice)

Latham & Watkins LLP
1271 Avenue of the Americas
New York, NY 10020
Tel: (212) 906-1200

Natalie Hardwick Rao

Catherine J. Yao
Latham & Watkins LLP
555 Eleventh Street, NW
Suite 1000
Washington, DC 20004
Tel: (202) 637-2200

For the United States of America:

John Durham, Special Counsel

Andrew DeFilippis, Assistant Special Counsel
Michael Keilty, Assistant Special Counsel
Jonathan Algor, Assistant Special Counsel
United States Department of Justice
145 N Street Northeast
Room 3E.803
Washington, D.C. 20530

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EXHIBIT C
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1 UNITED STATES DEPARTMENT OF JUSTICE

2 OFFICE OF THE INSPECTOR GENERAL

4 -----------------------------X

5 IN RE: :

6 INTERVIEW OF JAMES BAKER :

7 -----------------------------X

8 July 15, 2019

9 Washington, D.C.

10 Interview of

11

12 James Baker

13

14 By the U.S. Department of Justice, Office of the Inspector

15 General, at the Department of Justice Building, beginning

16 at 11:05 a.m. before:

17

18 FOR THE OFFICE OF THE INSPECTOR GENERAL:

19 ANN MARIE TERZAKEN, Oversight and Review Division

20 DON BERTHIAUME, Oversight and Review Division

21

22 FOR THE WITNESS:

23 DANIEL LEVIN, Esquire

24

25
ManpowerGroup Public Sector
6400 Arlington Boulevard, Suite 300
Falls Church, VA 22042
Ph 36

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30

1 campaigns, to include presidential campaigns on the

2 Democratic side. Did you generally have a sense that they

3 represented, that their political law practice had a

4 Democratic clientele?

5 MR. BAKER: Maybe I should have, but I didn't

6 really understand it at the time.

7 MS. TERZAKEN: Is that right?

8 MR. BAKER: I did not, no.

9 MS. TERZAKEN: Okay.

10 MR. BAKER: I came to understand, you know,

11 that, that Perkins-Coie was playing a role with respect to

12 the DNC hack. But the, the extensiveness of their

13 contacts with the Democratic Party, I did not, at the

14 time, have an understanding about, that I recall.

15 MS. TERZAKEN: Okay.

16 MR. BAKER: Just back up, also on Bower and the

17 other guy. Sitting here today, I don't recall having any

18 conversations with them, just to be careful. I don't

19 think I've even met either one of them in person. But, -.

20 MS. TERZAKEN: Okay. With Michael Sussman, your

21 conversations with him before the election, if you could

22 briefly describe how the conversations came about, what

23 information he provided to you.

24 MR. BAKER: So, I'll go into the Sussman stuff,

25 yeah, okay. So he came in, he, he, all of this is gone

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31

1 over in the transcript with the committee, so I won't,

2 I'll try to just summarize briefly.

3 My basic recollection is, in some way, shape, or

4 form, Michael reached out, and wanted to come in and meet

5 with me. And so we scheduled that. So Michael came in

6 and met with me. And he had some amount of information,

7 physical evidence, printed out, and also a thumb drive or

8 two, that he said related to strange interactions that

9 some number of people that were his clients, who were, he

10 described as I recall it, sort of cyber-security experts,

11 had found about some strange connection between some part

12 of Donald Trump's organizations and Alfa Bank, which was

13 described as being controlled by the Kremlin. And that it

14 appeared to be the case that this was a, it was, it, it

15 was surmised that this was a back-channel, what do you

16 call it, a back-channel of electronic communications.

17 That, that somehow the Trump organization and Alfa Bank

18 were using this, what looked like a, basically a

19 surreptitious channel to communicate with each other.

20 And so he presented me with this information. I

21 listened to him. I, you know, took the information from

22 him, and I think immediately called up, I believe it was

23 Priestap, and I either went down to Priestap, or he sent

24 somebody to get it, but I got it out of my hands, like,

25 you know, that afternoon or that day, whatever it was.

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EXHIBIT D
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