Durham - Response To Motion To Strike - 2-17-22

Case 1:21-cr-00582-CRC Document 40 Filed 02/17/22 Page 1 of 4
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :

:
v. : Criminal Case No. 21-582 (CRC)
:
MICHAEL A. SUSSMANN, :
:
Defendant. :
GOVERNMENT’S RESPONSE TO THE DEFENDANT’S CROSS-MOTION TO STRIKE
1. The United States of America, by and through its attorney, Special Counsel John H.
Durham, writes respectfully in opposition to the defendant’s Cross-Motion to Strike six paragraphs
from the Government’s February 11, 2022 Motion to Inquire into Potential Conflicts of Interest.
For the reasons set forth below, this Court should deny the defendant’s motion.
2. As an initial matter, defense counsel has presumed the Government’s bad faith and
asserts that the Special Counsel’s Office intentionally sought to politicize this case, inflame media
coverage, and taint the jury pool. (Dkt. No. 36). That is simply not true. The Government included
two paragraphs of limited additional factual detail in its Motion for valid and straightforward
reasons. First, those paragraphs reflect conduct that is intertwined with, and part of, events that are
central to proving the defendant’s alleged criminal conduct. Second, the Government included
these paragraphs to apprise the Court of the factual basis for one of the potential conflicts described
in the Government’s Motion, namely, that a member of the defense team was working for the
Executive Office of the President of the United States (“EOP”) during relevant events that involved
the EOP. If third parties or members of the media have overstated, understated, or otherwise
1
misinterpreted facts contained in the Government’s Motion, that does not in any way undermine
the valid reasons for the Government’s inclusion of this information.
3. In light of the above, there is no basis to strike any portion of the Government’s
Motion. Indeed, the Government intends to file motions in limine in which it will further discuss
these and other pertinent facts to explain why they constitute relevant and admissible evidence at
trial. Pursuant to caselaw and common practice in this and other districts, the filing of documents
containing reference to such evidence on the public docket is appropriate and proper, even in high-
profile cases where the potential exists that such facts could garner media attention. See, e.g.,
United States v. Stone, 19 Cr. 18 (D.D.C. October 21, 2019) (ABJ), Minute Order (addressing the
Government’s publicly-filed motion in limine seeking to admit video clip from the movie
“Godfather II” that defendant sent to an associate and permitting admission of a transcript of the
video); United States v. Craig, 19 Cr. 125 (D.D.C. July 10, 2019) (ABJ), Minute Order (addressing
Government’s publicly-filed Rule 404(b) motion to offer evidence of defendant’s efforts to assist
Paul Manafort’s relative in obtaining employment); United States v. Martoma, S1 12 Cr. 973, 2014
WL 164181 (S.D.N.Y. January 9, 2014) (denying defendant’s motion for sealing and courtroom
closure relating to motions in limine concerning evidence of defendant’s expulsion from law school
and forgery of law school transcript);1 see also Johnson v. Greater SE Cmty. Hosp. Corp., 951 F.
1
The publicly-filed evidentiary motions and judicial rulings in each of the above-cited cases
received significant media attention. See, e.g., Prosecutors Can’t Show Godfather II Clip at Roger
Stone Trial, Judge Rules, CNN, October 21, 2019
(https://www.cnn.com/2019/10/21/politics/godfather-ii-roger-stone/index.html; Greg Craig
Pushed to Hire Manfort’s Relative at Skadden, Prosecutors Say, POLITICO, May 10, 2019
(https://www.politico.com/story/2019/05/10/greg-craig-hire-manaforts-relative-1317600); SAC’s
Martoma Tried to Cover Up Fraud at Harvard, Documents Show, REUTERS, January 9, 2014
(https://www.reuters.com/article/us-sac-martoma-harvard/sacs-martoma-tried-to-cover-up-fraud-
at-harvard-documents-show-idUSBREA081C720140109).
2
2d 1268, 1277 (D.C. Cir. 1991) (holding that there is a “strong presumption in favor of public access
to judicial proceedings”). Moreover, any potential prejudice or jury taint arising from such media
attention can effectively and appropriately be addressed through the voir dire process during jury
selection.
4. That said, to the extent the Government’s future filings contain information that
legitimately gives rise to privacy issues or other concerns that might overcome the presumption of
public access to judicial documents – such as the disclosure of witness identities, the safety of
individuals, or ongoing law enforcement or national security concerns – the Government will make
such filings under seal. United States v. Hubbard, 650 F. 2d 293, 317-323 (D.C. Cir. 1980) (setting
forth factors for considering whether the presumption of public access is overridden, including (1)
the need for public access to the documents at issue; (2) the extent of previous public access to the
documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4)
the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those
opposing disclosure; and (6) the purposes for which the documents were introduced during the
judicial proceedings.) The Government respectfully submits that no such issues or concerns are
implicated here.
3
CONCLUSION
For the foregoing reasons, the Court should deny the defendant’s Cross-Motion to Strike.
Respectfully submitted,
JOHN H. DURHAM
Special Counsel
By:
/s/ Brittain Shaw_

Jonathan E. Algor
Assistant Special Counsel
jonathan.algor@usdoj.gov
Andrew J. DeFilippis
andrew.defilippis@usdoj.gov
Michael T. Keilty
michael.keilty@usdoj.gov
Brittain Shaw
brittain.shaw@usdoj.gov

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Case 1:21-cr-00582-CRC Document 40 Filed 02/17/22 Page 1 of 4

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA :

GOVERNMENT’S RESPONSE TO THE DEFENDANT’S CROSS-MOTION TO STRIKE

the valid reasons for the Government’s inclusion of this information.

/s/ Brittain Shaw_

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