Out of respect for anyone who has ignored this thread...

Here is the next John Durham team filing.

Haven't read it yet. Most interesting should be the part about the
defendant demanding the prosecutor "Immunize Tech Executive-1".

I don't understand how that works. How can one (assumed) criminal say "You
cannot prosecute me unless you immunize the other criminal so he can
testify in support of me". My main author suggested there is precedent on
the matter, but she didn't spell it out. Now we get to read what Durham
has to say about that. Does he say it's ridiculous?

This one's not long as the last (monster).

This is my first edit, for easier text-to-speech reading...

GOVERNMENT�S OPPOSITION TO THE DEFENDANT�S MOTIONS IN LIMINE AND
RULE 404(b) OBJECTIONS.

The United States of America, by and through its attorney, Special Counsel John H.

Durham, respectfully provides herein its Opposition to the Defendant�s Motions in Limine and Rule

404(b) Objections. As set forth in further detail below, all of the evidence that the Government

seeks to offer at trial is relevant, admissible, and not unduly prejudicial, and the defendant�s

objections to the Government�s Rule 404(b) notices are without merit.

I. The Defendant�s Motion to Preclude Evidence or Argument Regarding Matters
Purportedly Subject to the Attorney-Client Privilege Should Be Denied.

The defendant moves to preclude the Government from (i) introducing privilege logs into

evidence, (ii) showing redacted documents to the jury where information has been withheld based

on assertions of attorney-client privilege, and (iii) identifying for the jury the name of the party or

parties asserting privilege over such documents. The defendant�s motion to preclude such evidence

lacks merit. Given the circumstances of this case and the content of the defendant�s alleged false

statement, the non-privileged fact that communications occurred between the defendant and

specific persons and entities (such as Tech Executive-1 and the U.S. Investigative Firm) is highly

probative to establish the falsity and materiality of the defendant�s alleged false statement that he

was not acting on behalf of any client. Accordingly, such evidence is admissible.

As an initial matter, the Government currently expects to introduce all, or nearly all, of the

above-described evidence through actual redacted documents, rather than privilege logs. Thus,

while courts have found that privilege logs may indeed be presented to juries with judicial oversight,

see, e.g., Huawei Techs. Co. Ltd v. T-Mobile US, Inc., No. 216CV00052JRGRSP, 2017 WL

7052463, at *1�2 (E.D. Tex. Sept. 20, 2017) (in limine order requiring parties to approach the bench

or provide explanation to the Court before offering privilege log at trial), the Government here seeks

primarily to offer email �header� information containing the date, time, sender, recipient, copied

parties, and subject line of relevant communications�all of which is non-privileged. (The content

of such emails have been redacted at the request of the relevant privilege holders.)

The crux of the Indictment�s allegation is that the defendant falsely stated that he was not

working for any client in connection with the Russian Bank-1 allegations. The redacted, non-

privileged emails that the Government seeks to admit are therefore highly probative insofar as they

reflect �to,� �from,� and subject line information of communications between and among the

defendant and his alleged clients or their agents. For example, the Government expects to offer

redacted, non-privileged documents containing header information of communications1:

? between the defendant and Tech Executive-1;

Note 1:
The Government also intends to offer redacted billing records reflecting the defendant�s
work on behalf of the Clinton Campaign and Tech Executive-1. It is unclear whether the defendant
also objects to the admission of such evidence. The Government contends that such billing records
are admissible on the same bases as set forth herein with respect to redacted emails.

? between and among the defendant, Tech Executive-1, Campaign Lawyer-1, and the

U.S. Investigative Firm employees; and

? between and among Campaign Lawyer-1 and Clinton Campaign leadership.

These email headers constitute straightforward, non-privileged proof that the defendant was in fact

working on behalf of two clients (i.e., the Clinton Campaign and Tech Executive-1) when he

conveyed the Russian Bank-1 allegations to the FBI. Indeed, in a case about an alleged false denial

of attorney-client relationships, there are few things more probative than non-privileged records

evidencing communications between an attorney and his clients.

The primary cases the defendant cites to bar such evidence are inapposite. See, e.g.� Parker

v. Prudential Insurance Co., 900 F. 2d 772, 775 (4th Cir. 1990); Nabisco, Inc. v. PF Brands, Inc.,

191 F.3d 208, 226 (2d Cir. 1999); In re: Gen. Motors LLC Ignition Switch Litig., No 14-MD-2543

(JMF), 20154 WL 8130449, at *3 (S.D.N.Y. Dec. 3, 2015); In re EpiPen Mktg. Sales Pracs. &

Antitrust Litig., No. 17-md-2785-DDC-TFF, 2022 WL 226130 (D. Kan. Jan. 26, 2022);�Goldberg

v. 401 N. Wabash Venture LLC, No. 09 C 6455, 2013 WL 1816162, at *2�4 (N.D. Ill. Apr. 29,

2013). In none of those cases did the core factual issue to be decided by the jury include the

existence or non-existence of an attorney-client relationship. Accordingly, unlike here, facts

concerning communications between lawyer and client were, at most, peripheral to the issues to be

decided at trial. And in those cases, the relevant courts did not hold or presume that there was a

categorical bar to the admission of privilege logs, redacted documents, or similar evidence. For

example, in In re EpiPen, the Court merely held that the plaintiffs had not made �any showing at

this stage that the privilege logs are relevant.� 2022 WL 226130 at * 17. (emphasis added).

Similarly, in In re Gen Motors LLC, the Court held that despite the Court�s instructions that the

parties should seek to avoid privilege invocations before the jury, �the likelihood of some references

seems high [and] [i]n anticipation of that possibility, the parties shall confer and propose appropriate

limiting instructions.� 20154 WL 8130449, at *4. And finally, in Goldberg, the Court precluded

reference to certain attorney-client communications because the proffered purpose for admitting

them would have supported a prejudicial inference that the defendants acted �fraudulently� by

ignoring the advice of their counsel. 2013 WL 1816162, at *2�4.

Here, by contrast, the Government does not seek to establish any specific inferences, much

less prejudicial ones, about the substance of the legal advice that the defendant conveyed to Tech

Executive-1 or the Clinton Campaign (beyond the subject matter of that advice). Rather, it seeks

to establish the existence of advice-giving relationships concerning the Russian Bank-1 allegations.

And unlike in the cases that the defendant cites, the alleged crime here indisputably concerns and

centers upon the existence of such relationships. Because attorney-client privileged information

cannot itself be reviewed by the Government or presented to the jury, this non-privileged header

information is in many instances the Government�s best, and in some cases the only, available

evidence that particular communications occurred.

In light of these facts, and consistent with prior caselaw, the Government therefore submits

that the appropriate course is to permit the admission of redacted, non-privileged documents while

allowing the parties to propose any limiting instructions that may be appropriate. See, e.g., Romero

v. Helmerich & Payne Int'l Drilling Co., No. 15-CV-00720-NYW, 2017 WL 3268878, at *4 (D.

Colo. Aug. 1, 2017) (permitting the presentation of redacted, attorney-client privileged documents

before the jury but holding that �[t]he court will also instruct the jury. . . that some redactions to

documents have been made and that the jury should not speculate as to what has been redacted);

United States v. Sussman, 709 F.3d 155, 175 (3d Cir. 2013) (District Court �did not abuse its

discretion by allowing redacted documents to be admitted into evidence and used by the jury during

deliberations rather than confining the reference to them to a stipulation of their existence�); In re:

E. I. Du Pont De Nemours & Co. C-8 Pers. Inj. Litig., No. 2:13-CV-170, 2016 WL 659112, at *60

(S.D. Ohio Feb. 17, 2016) (�[relevant] emails were in no way unfairly prejudicial . . . because the

purportedly objectionable portions were redacted.�)2; In re EpiPen, 2022 WL 226130 at * 17.

Note 2:
The District Court in In re: E. I. Du Pont De Nemours & Co instructed the jury as follows:

There will be some documents in this case that will have evidence
that may be admissible and also some evidence in the document that
would not be admissible. In that case there will be redactions or
blackening out of those parts of the document that are not proper
under the rules of evidence and does not constitute evidence that you
should consider. So, I instruct you to simply ignore what has been
blacked out. Don�t guess or speculate as to what's been blacked out.
But then just treat what�s left in the document as proper evidence for
your consideration.

more lines, but it's doublespaced