Durham disclosures. They may not be what you think.
On February 11th, Mr. Durham's office filed his Motion to Inquire Into the defense attorneys' Potential Conflicts of Interest. U.S.A. v. Sussman, Motion, Doc. 35, filed Feb. 11, 2022 (D.C.D.C. Criminal Case No. 21-582 (CRC)). It alleged dozens of times that the defense attorneys may have had "potential" and "possible" conflicts of interest that would disqualify them as counsel in the case.
Now any attorney that has filed a motion to disqualify opposing counsel, and I have, knows very well that the way to go is to file a motion to disqualify and meet your burden of proof. If you cannot meet your burden of proof, you do not file a motion to disqualify opposing counsel.
Mr. Durham's office did not file a motion to disqualify opposing counsel.
The motion they filed is a distraction. It is a distraction from Mr. Durham's previous filings that prosecuted the case against Mr. Sussman, if any, in motions allegedly filled with innuendo and deception. This one does not cite cases that support any of the "potential," "possible" alleged conflicts of interest.
One case citation does have a glaring typo, however, that proofing would have found if the motion had been proofed. Even a computer spell check would have picked up this one. But perhaps this motion that was filed in federal court and submitted to a federal judge should not, in the end, be remembered for a typo in a case citation by a lawyer.
There may be more to remember than that. The prosecutor in Mr. Durham's office that signed this motion is one of a team of prosecutors that a federal judge says withheld evidence in another case. The federal judge, the Hon. Alison Nathan, is a highly respected federal judge, appointed before January 20, 2017. The federal judge wrote of Mr. Durham's current assistant that "repeated failures to disclose exculpatory evidence and misuse of search-warrant returns" were errors "so severe that following a jury verdict in [the Government's] favor," both parties requested the Court to vacate the jury verdict. The Court "vacated the jury verdict and dismissed the charges" with prejudice. USA v. Nejad, Order, Doc. 397, at 1, filed Feb. 17, 2021 (S.D.N.Y. Case No. 18-cr-224 (AJN)). Download USA v. Nejad Order Doc.. 397 filed 02.17.21 (SDNY No. 18-CR-224 (AJN))-prosec-misconduct-opinion.
In the same Order, Judge Nathan urged "a full investigation by DOJ's Office of Professional Responsibility of all matters related to prosecutorial misconduct in this case." Id. at 2.
After entering the February 17 Order, Judge Nathan entered another Order on the same date. The second Order was filed on Feb. 22, 2021. The Judge ordered that the prosecutors file declarations (affidavits) explaining their conduct and the prosecutors requested that their testimony be kept a secret. See USA v. Nejad, 521 F. Supp. 3d 438 (S.D.N.Y. 2021).
Back to February of 2022. Mr. Durham told the Court in his prosecution against Mr. Sussman that he, Mr. Durham, "would make future filings under seal if they contained 'information that legitimately gives rise to privacy issues or other concerns that might overcome the presumption of public access to judicial documents.'" Charlie Savage, Durham Distances Himself From Right-Wing Falsehoods, NEW YORK TIMES, Friday, Feb. 18, 2022, at A18.
There you are: Durham disclosures.
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