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In His House Judiciary Committee Testimony, John Durham Confessed that Michael Horowitz Was Right

Given all the discussion of Trump ordering prosecutors to go after his political enemies, I want to go back — way back — to comment on something John Durham said at his House Judiciary Committee testimony in June.

Adam Schiff observed that Durham violated DOJ policy when, in December 2019, he publicly disagreed with the conclusion DOJ’s Inspector General had made in the Carter Page investigation.

Schiff: Mr. Durham, DOJ policy provides that you don’t speak about a pending investigation, and yet you did, didn’t you?

Durham: Um, I’m not exactly sure what–

Schiff: When the Inspector General issued a report saying that the investigation was properly predicated, you spoke out, in violation of Department of Justice, Department of Justice policy, to criticze the Inspector General’s conclusions, didn’t you?

Durham: I issued a public statement. I didn’t do it anonymously, I didn’t do it through third persons, there were —

Schiff: Nonetheless, you violated Department policy by issuing a statement while your investigation was ongoing, didn’t you?

Durham: I don’t know that. If I did, then I did. But I was not aware that I was violating some policy.

Schiff: And you also sought to get the Inspector General to change his conclusion, did you not, when he was concluding that the investigation was properly predicated. Did you privately seek to intervene to change that conclusion?

Durham: This is outside the scope of the report but if you want to go there, we asked the Inspector General to take a look at the intelligence that’s included in the classified appendix that you looked at, and said that that ought to affect portions of his report.

The classified appendix, recall, pertained to what Durham called the “Clinton Plan,” details Dutch intelligence found in purportedly hacked materials at GRU. That included documents purportedly stolen from a top Hillary Foreign Policy Advisor, on which a Russian intelligence product based a claim that,

Hillary Clinton had approved a campaign plan to stir up a scandal against U.S. Presidential candidate Donald Trump by tying him to Putin and the Russians’ hacking of the Democratic National Committee.

From that allegation, Durham appears to have simply made up out of thin air a claim that Hillary planned to fabricate things to tie Trump to Russia, rather than just point to him begging Russia to hack the United States.

First, the Clinton Plan intelligence itself and on its face arguably suggested that private actors affiliated with the Clinton campaign were seeking in 2016 to promote a false or exaggerated narrative to the public and to U.S. government agencies about Trump’s possible ties to Russia. [my emphasis]

In another exchange with Schiff at the hearing, Durham professed to be utterly ignorant of all the things confirmed in the Mueller investigation that provided abundant reason to tie Trump to Russia. There was no need to invent anything.

In any case, what Durham revealed in his testimony is that he shared this information with Michael Horowitz, expecting it would change his mind about the predication of Crossfire Hurricane.

That’s not all that surprising. After all, Durham described as the first mandate of his investigation to determine whether any personnel at the FBI violated federal law by not fully considering potential Russian disinformation before opening an investigation into Trump.

[D]id the FBI properly consider other highly significant intelligence it received at virtually the same time as that used to predicate Crossfire Hurricane, but which related not to the Trump campaign, but rather to a purported Clinton campaign plan “to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services,” which might have shed light on some of the Russia information the FBI was receiving from third parties, including the Steele Dossier, the Alfa Bank allegations and confidential human source (“CHS”) reporting? If not, were any provable federal crimes committed in failing to do so?

To put it bluntly, Bill Barr told John Durham to figure out whether he could charge Peter Strzok (and presumably, Jim Comey and Bill Priestap) for not letting a Russian intelligence report dictate American investigative decisions. And either in an attempt to preempt Horowitz’ conclusion that the investigation was legally predicated or in an attempt to stave off any determination on criminality, Durham pitched him on this theory before publicly attacking his conclusion.

And Durham did so even though — accepting all his conspiracy theories about inventing false claims about Trump were true — that theory never made sense. As Phil Bump (onetwo) and Dan Friedman showed when the report came out, Hillary’s concerns about Trump couldn’t have been the cause of the investigation into Trump. By the time (a Russian intelligence product claimed) that Hillary approved a plan to tie Trump to Russia on July 26, 2016, the events that would lead FBI to open an investigation were already in place. Here’s Friedman:

This isn’t just false. It would require time travel. Durham himself confirms that the FBI launched its investigation into Trump and Russia based on events that occurred months prior to Clinton’s alleged July 26 approval of the plan. In April 2016, George Papadopoulos, a foreign policy adviser to the Trump campaign, met with a professor with Kremlin ties, who informed him that Russia “had obtained ‘dirt’ on…Clinton in the form of thousands of emails,” as Robert Mueller’s final report noted.  A week later, according to Mueller, Papadopoulos “suggested to a representative of a foreign government that the Trump Campaign had received indications from the Russian government that it could assist the Campaign through the anonymous release” of damaging material. When hacked Democratic emails were indeed published—by WikiLeaks on July 22—this foreign diplomat alerted US officials about what Papadopoulos had said. The FBI quickly launched an official investigation into the Trump campaign’s Russia ties in response to that tip, Durham notes, while arguing they should have begun only a “preliminary investigation.”

It was the same Russian hack, not Hillary Clinton, that drove media attention, even before the documents were leaked to the public.

There’s another problem with telling Horowitz that his Clinton conspiracy theory should have changed Horowitz’ conclusions. At the earliest, analysts and Priestap only became aware of the intelligence (though probably without Durham’s spin on it) on September 2, well after the opening of Crossfire Hurricane.

When interviewed by the Office, Auten recalled that on September 2, 2016 – approximately ten days after Headquarters Analyst-2’s email – the official responsible for overseeing the Fusion Cell briefed Auten, Moffa, and other FBI personnel at FBI Headquarters regarding the Clinton Plan intelligence. 411 Auten did not recall any FBI “operational” personnel (i.e., Crossfire Hurricane Agents) being present at the meeting. 412 The official verbally briefed the individuals regarding information that the CIA planned to send to the FBI in a written investigative referral, including the Clinton Plan intelligence information. 413

[snip]

Separate and apart from this meeting, FBI records reflect that by no later than that same date (September 2, 2016), then-FBI Assistant Director for Counterintelligence Bill Priestap was also aware of the specifics of the Clinton Plan intelligence as evidenced by his hand-written notes from an early morning meeting with Moffa, DAD Dina Corsi and Acting AD for Cyber Eric Sporre. 415

And despite looking for four years, Durham never confirmed that CIA’s formal referral memo got shared with Peter Strzok, to whom it was addressed.

In spite of never acquiring such proof, not even after four years of searching, recently confirmed Connecticut Supreme Court Justice Nora Dannehy has confirmed that Barr pushed Durham to release an interim report on those claims. NYT described that plan this way:

By summer 2020, with Election Day approaching, Mr. Barr pressed Mr. Durham to draft a potential interim report centered on the Clinton campaign and F.B.I. gullibility or willful blindness.

On Sept. 10, 2020, Ms. Dannehy discovered that other members of the team had written a draft report that Mr. Durham had not told her about, according to people briefed on their ensuing argument.

Ms. Dannehy erupted, according to people familiar with the matter. She told Mr. Durham that no report should be issued before the investigation was complete and especially not just before an election — and denounced the draft for taking disputed information at face value. She sent colleagues a memo detailing those concerns and resigned.

By that point, Durham hadn’t yet interviewed Priestap and others who might inform him of what they actually learned.

From the start, Durham was pursuing this conspiracy theory. He tried to forestall the damning but inconvenient conclusions of the Horowitz report to sustain his conspiracy theory. And he tried to interfere with the 2020 election with his physics-defying conspiracy theory.

Bill Barr didn’t just order John Durham to investigate Hillary Clinton and all the FBI agents who had deigned to investigate Trump’s ties to Russia. He did so based on a conspiracy theory rooted in Russian intelligence.

“Ebb and Flow:” How David Weiss Volunteered for a Subpoena, or Worse

Politico and NYT have stories — relying on what Politico describes as, “more than 300 pages of previously unreported emails and documents exchanged between Hunter Biden’s legal team and prosecutors,” — chronicling the legal negotiations leading up to the failed Hunter Biden plea deal.

Politico’s, written by Betsy Woodruff Swan, is good.

NYT’s is not, in part because it dedicates a long passage to repeating Gary Shapley’s claims without noting the many things in his own testimony that discredit those claims, even while relying on props from Shapley’s testimony that have since been challenged. Luke Broadwater knows where his beat gets sweetened, and it is in treating James Comer like a credible person, not in exhibiting the critical thinking of a journalist.

When first published, the NYT couldn’t even get the date of the failed plea hearing, July 26, correct.

But hey — at least that error is less catastrophic than the one in a WaPo story on the same topic the other day, in which three reporters (at least two of whom never bother to hide their right wing allegiances, particularly when it pertains to chasing Hunter Biden dick pics) claimed that Joe Biden was now a “former” President.

For its errors and other problems, however, the NYT story is useful for the way in which it puts David Weiss at risk for his own subpoena.

Hunter Biden lays the groundwork for holding the government to their signed agreements

To understand why, a review of the current state of the (known) legal case is in order.

On August 11, as Merrick Garland was announcing that he had given David Weiss Special Counsel status, Weiss’ prosecutors filed a motion to dismiss the charges against Hunter Biden. After describing that, “When the parties were proceeding to a negotiated resolution in this matter, a plea in this District was agreed upon,” the filing said that because Hunter did not plead guilty, it may have to file charges in the district where venue lies. At the same time, Weiss also moved to vacate the briefing schedule in the gun diversion.

Judge Maryellen Noreika gave Hunter a day to respond to the motion to vacate. That response, signed by Chris Clark but including Abbe Lowell on the signature line, explained that Hunter planned to fulfill the terms of the gun diversion agreement, which the government had stated was a contract between the two parties.

[T]he Defendant intends to abide by the terms of the Diversion Agreement that was executed at the July 26 hearing by the Defendant, his counsel, and the United States, and concurs with the statements the Government made during the July 26 hearing,1

The Government stated in open court that the Diversion Agreement was a “bilateral agreement between the parties” that “stand[s] alone” from the Plea Agreement, and that it was “in effect” and “binding.”

But, “in light of the United States’ decision on Friday to renege on the previously agreed-upon Plea Agreement, we agree that those issues are moot at this point.” Effectively, Hunter’s team was saying they considered the gun diversion as still valid, recognized everything else was moot, and described that it was moot because the government had reneged on the terms of the deal.

Then Abbe Lowell entered his appearance in the case. And Clark moved to withdraw from the case because — given that the plea and diversion would be contested — he might have to serve as a witness.

Mr. Clark’s withdrawal is necessitated by recent developments in the matter. Pursuant to Delaware Rule of Professional Conduct 3.7(a), “a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless… disqualification of the lawyer would work substantial hardship on the client.” Based on recent developments, it appears that the negotiation and drafting of the plea agreement and diversion agreement will be contested, and Mr. Clark is a percipient witness to those issues. Under the “witness-advocate” rule, it is inadvisable for Mr. Clark to continue as counsel in this case.

Noreika never actually approved Clark’s withdrawal, but the defense team filed notice that Hunter consented to the withdrawal while the docket remained active.

Meanwhile, Noreika ordered the government to reply to Hunter’s response on the briefing, and ordered Hunter to respond to the thing she failed to ask about in the first place, whether he objected to the dismissal of the charges.

Hunter’s team agreed that the charges must be dismissed, but reiterated that the court had no oversight over the diversion agreement (which had been Noreika’s complaint from the start).

Without adopting the Government’s reasoning, as venue for the existing information does not lie in this District, the information must be dismissed.

Further, the Defendant’s position is that the enforceability of the Diversion Agreement (D.I. 24-1 in No. 23-cr-00061-MN) has no bearing on the United States’ Motion to Dismiss for Lack of Venue (D.I. 31 in No. 23-mj-00274-MN), and any disputes regarding the effect of the Diversion Agreement are therefore not before the Court at this time.

The government, meanwhile, filed a seven page reply attempting to claim that the government did not renege on the plea that had been negotiated in advance of its filing in June, by describing how after Hunter refused to plead guilty because Leo Wise, an AUSA who had not been involved in the original deal, claimed its scope was far narrower than Hunter understood, the parties did not subsequently agree on one to replace the signed deal Hunter entered into.

First, the Government did not “renege” on the “previously agreed-upon Plea Agreement,” as the Defendant inaccurately asserts in the first substantive sentence of his response. ECF 33, Def. Resp. at 1. The Defendant chose to plead not guilty at the hearing on July 26, 2023, and U.S. Probation declined to approve the proposed diversion agreement at that hearing.

Then Noreika dismissed the charges.

David Weiss may have plenty of time to argue with Lowell, relying on Chris Clark’s testimony, that he should not be held to the terms of signed agreements he entered into in June.

But the two important takeaways from all this are, first, that Hunter Biden is stating that before the plea hearing, Weiss attempted to change the terms of the signed plea deal, and second, that Chris Clark is no longer bound by any terms of confidentiality that will allow him to prove that’s true.

A senior law enforcement official speaks, illegally

These twin stories are a warning shot to Weiss — before Hunter even gets more discovery on all the other problems with this investigation — what that is going to look like.

Which brings me to the things for which the NYT is really useful: giving David Weiss or someone in his immediate vicinity an opportunity to cause David Weiss more problems.

Three times in the story, NYT provides anonymity to a “senior law enforcement official” to push back on the representation of the deal, including as laid out by documentary evidence. In one such instance, NYT helpfully notes that if Weiss commented, he would be violating DOJ policies and possibly the law (though the leaks in this story don’t appear to violate grand jury secrecy).

A spokesman for Mr. Weiss had no comment. He is legally barred from discussing an open investigation, and a senior law enforcement official with knowledge of the situation pushed back on the idea that Mr. Weiss had been influenced by outside pressures, and ascribed any shifts to the typical ebb and flow of negotiations.

In a second instance, this anonymous “senior law enforcement official” denies something — that David Weiss told an associate that “the average American would not be prosecuted for similar offenses,” the kind of assertion that might provide basis for an exceedingly rare successful claim of selective prosecution — that only David Weiss would know.

Mr. Weiss told an associate that he preferred not to bring any charges, even misdemeanors, against Mr. Biden because the average American would not be prosecuted for similar offenses. (A senior law enforcement official forcefully denied the account.)

This chatty senior law enforcement official similarly denies something else that could bollox any further charges against Hunter Biden — that the only reason he “reneged” on the original terms of the plea deal are because IRS agents got journalists like the NYT’s to report claims of bias that their own testimony did not substantiate.

Now, the I.R.S. agents and their Republican allies say they believe the evidence they brought forward, at the precise time they did, played a role in influencing the outcome, a claim senior law enforcement officials dispute.

Now, normally, misconduct by a prosecutor like Weiss would be reviewed by the feckless Office of Professional Responsibility. But that’s less likely with a Special Counsel, because of the reporting structure for an SCO. And that’s particularly true here given the involvement of Associate Deputy Attorney General Bradley Weinsheimer in earlier discussions about the plea. Weinsheimer oversees OPR, and so any review by OPR presents a conflict. Indeed, Weiss may have asked to be made SCO precisely so he could escape the purview of OPR.

But to some degree that may not matter.

That’s because there are already parallel investigations — at TIGTA and at DOJ IG — into the leaking that occurred during this investigation. David Weiss was already going to be a witness in them, because Gary Shapley made claims about what Weiss said personally at a meeting on October 7, 2022, a meeting that was called first and foremost to discuss leaks.

So if Michael Horowitz wanted to subpoena Weiss to find out whether he was the senior law enforcement official denying things only he could deny, to find out whether days after being made a Special Counsel, Weiss decided to violate DOJ guidelines to which he still must adhere, the only way Weiss could dodge that subpoena might be to resign from both his US Attorney and his Special Counsel appointment.

And if Weiss and DOJ IG didn’t already have enough to talk about, there’s this passage from the NYT, with its truly epic use of the passive voice: “Mr. Weiss was quietly assigned,” by whom, NYT didn’t choose to explain.

NYT corrected their earlier error on the date of the failed plea hearing, but the date here is probably another: Both IRS agents and the FBI agent have testified that this occurred in 2019, not 2018. Indeed, Joseph Ziegler testified, then thought the better of it, in a period when Bill Barr was making public comments about all this, that Barr himself was involved, which would date it to February 2019 or later, in a period when Barr was engaged in wholesale politiciziation of the department. Who assigned Weiss to investigate Joe Biden’s son as Trump demanded it would already be a question for any inquiry into improper influence, but it’s nice for NYT to make it more of one, in a story otherwise repeatedly sourced to “a senior law enforcement official” who might know.

I don’t know whether Hunter Biden’s lawyers deliberately intended to bait Weiss into responding in the NYT. But under DOJ guidelines, he is only permitted to respond to these claims in legal filings, after Abbe Lowell makes it an issue after Weiss files an indictment somewhere, thereby confirming precisely the concerns raised in these stories and creating another avenue of recourse to address these issues.

But whether that was the intention or not, that appears to be what happened.

And that’s on top of the things that Gary Shapley and Ziegler have made issues by blabbing to Congress: describing documentation in the case file of 6th Amendment problems and political influence, the documentation showing that no one had validated the laptop ten months after starting to use it in the investigation, Lowell’s claims that after the IRS got a warrant for an iCloud account that probably relied on the tainted laptop, they did shoddy summaries of WhatsApp texts obtained as a result and mislabeled the interlocutors, and Shapley’s own testimony showing that he was hiding something in his own emails.

That’s on top of anything that Denver Riggleman’s work with the “Hunter Biden” “laptop,” the one Weiss’ office never bothered to validate before using, has produced.

Don’t get me wrong: if and when Weiss decides to charge Hunter Biden with felonies — and I assume he will (indeed, given that the Bidens are all together in Tahoe this weekend, he may have already alerted Biden to that fact) — it’s going to be hell for everyone, for the entire country. But the IRS agents demanding this happen will have made things far harder for Weiss going forward with their disclosures of details of misconduct conducted under Weiss’ watch.

Hunter’s lawyers have already documented the political influence behind this case

Swan’s story, but not the Shapley-parroting NYT one likely based on the same documents, describes that Hunter’s lawyers repeatedly raised the improper political influence on this case, starting with an April 2022 Powerpoint presentation on why DOJ would be stupid to charge Hunter.

In light of Trump’s ceaseless demands for an investigation of the first son, charging the younger Biden with tax crimes would be “devastating to the reputation” of the Justice Department, his lawyers asserted. It would look like the department had acquiesced to Trump’s political pressure campaign.

They noted that Trump had laid into Biden in his speech to the rowdy crowd right before the Jan. 6, 2021, attack on the Capitol. “What happened to Hunter?” the president said. “Where’s Hunter? Where’s Hunter?”

Biden’s lawyers argued that the political pressure was itself a compelling reason not to bring any charges. A move seen as caving to the pressure, they contended, would discredit the department in the public eye, especially if the Justice Department was only going to charge him with paying his taxes late.

Clark wrote Weiss directly in October 2022, in the wake of the October 6 leak, noting that the only reason an unusual (and potentially unconstitutional) gun charge had been added in the interim was pressure from Republicans.

On Oct. 31, 2022, he wrote directly to David Weiss, the U.S. attorney for Delaware who was overseeing the probe. Weiss had been appointed by Trump and had been allowed to stay on during Joe Biden’s administration to continue the investigation — and Attorney General Merrick Garland had pledged to give Weiss full independence.

But Clark argued in his letter to Weiss that charging Hunter Biden with a gun crime would torpedo public trust in the Justice Department.

Biden, Clark continued, didn’t use the allegedly purchased gun to commit a crime, didn’t buy another one and didn’t have any prior criminal record. No drug user had ever been charged with a felony in Delaware for buying a gun under those same circumstances, he wrote. Prosecutors, he alleged, were weighing gun charges for one reason: “the relentless political pressure from the opponents of the current President of the United States.”

After all, Clark noted, federal law enforcement officials had known about Biden’s gun episode since 2018. Only politics explained why years later they were considering charges, he argued.

In January, Clark did another presentation — the first one threatening to put Joe Biden on the stand to talk about how this case was targeted at him, not Hunter.

He said Joe Biden would undoubtedly be a witness at trial because of leaks about the probe. He wrote that just a few weeks before sending his letter, there had been two back-to-back leaks related to Hunter Biden and the gun issue. First, someone told The Washington Post that investigators thought Biden deserved tax and gun charges. Then a few days later, The Daily Mail reported on a voicemail Joe Biden left for his son in the window of time when he allegedly owned the gun. Surely the back-to-back leaks were part of a coordinated campaign to push the Justice Department to charge his client with crimes. And, Clark said, the leaks prompted the president to address his son’s legal woes the next day on CNN.

“There can be no doubt that these leaks have inserted President Biden into this case,” he said.

On April 26, Associate Deputy Attorney General Bradley Weinsheimer met with Hunter’s lawyers, which immediately preceded the efforts to reach a plea deal.

On May 11, Weinsheimer thanked Clark for the meeting and told him Weiss would handle the next steps. The prosecutors appeared to be nearing the end of their investigation, and they were ready to make a deal. This type of process is not unusual in high-profile white collar investigations where the targets of the probes have engaged with the government and signaled openness to pretrial resolution.

On May 18, another lawyer for Biden sent two Delaware prosecutors — including Lesley Wolf, a senior prosecutor in the Delaware U.S. Attorney’s Office — the first draft of a proposed deal, structured so it wouldn’t need a judge’s sign-off and wouldn’t require a guilty plea from Biden.

As noted, Weiss may have used Weinsheimer’s intervention to justify his request to be appointed Special Counsel, but if he did it may backfire.

At each stage, after another wave of pressure from Republicans, the ask from prosecutors got bigger and bigger, first to include the gun, then to include a guilty plea with diversion.

That’s what the anonymous senior law enforcement official claims was just “ebb and flow.”

On June 7, the immunity agreement was written as follows.

The United States agrees not to criminally prosecute Biden, outside of the terms of this Agreement, for any federal crimes encompassed by the attached Statement of Facts (Attachment A) and the Statement of Facts attached as Exhibit 1 to the Memorandum of Plea Agreement filed this same day. This Agreement does not provide any protection against prosecution for any future conduct by Biden or by any of his affiliated businesses.

In the wake of the failed plea, prosecutors demanded that all immunity language be stripped, a truly insane ask.

No wonder Hunter’s lawyers are furious.

No wonder Clark dropped off the case, to be replaced by a far more confrontational Abbe Lowell, so he could lay all this out.

NYT describes that David Weiss thought that being provided Special Counsel status, “could provide him with added leverage in a revamped deal with Mr. Biden,” which is not something included in the Special Counsel regulations. Those regulations especially don’t envision getting that status for the purpose of reneging on already signed deals.

Abbe Lowell (who is not named in either of these stories) has something else entirely in mind.

Gary Shapley used notes that utterly contradict his public claims to dupe credulous reporters like Broadwater to build pressure on Weiss. Hunter’s team laid out that long before that, they had made the case that this prosecution was designed to target Joe Biden. Since then, they’ve identified at least one witness who could testify that Weiss is pursuing charges he knows other Americans wouldn’t face and learned of another — Ziegler’s first supervisor — who documented improper political influence from the start.

That’s before getting discovery that may show how Ziegler sat and watched as Hunter Biden’s digital identity got stolen and rather than doing anything to halt that attack in process, instead responded by deciding to charge Biden, not those tampering with his identity.

Sure. Weiss can charge the President’s son now — and he may well have already refiled tax charges in California.

But like his bid to renege on the original terms of the plea deal, that may not work out the way he thinks.

The Overt Investigative Steps into Trump’s Co-Conspirators TV Lawyers Ignored

The first overt act in the investigation into Donald Trump’s six co-conspirators happened on January 25, 2021.

The Jeffrey Clark investigation started at DOJ IG

On that day, DOJ Inspector General Michael Horowitz announced that he was opening an investigation, “into whether any former or current DOJ official engaged in an improper attempt to have DOJ seek to alter the outcome of the 2020 Presidential Election.” The announcement came three days after Katie Benner did a story laying out Jeffrey Clark’s efforts to undermine the election results. Horowitz explained that he made the announcement, “to reassure the public that an appropriate agency is investigating the allegations.”

We don’t know all the details about what happened between Horowitz’s announcement of that investigation and last week’s indictment describing Clark as co-conspirator 4. Probably, when Merrick Garland arranged for Joe Biden to waive Executive Privilege so Jeffrey Rosen and others could tell the Senate Judiciary Committee what happened in July 2021, that freed up some communications to DOJ IG. For the record, I raised questions about why it took so long — though I suspect the delay in restoring the contacts policy at DOJ was part of it. Some time before May 26, 2022, DOJ obtained warrants for a private Jeffrey Clark email account and on May 26, Beryl Howell approved a filter process. On June 23, 2022, the FBI seized Clark’s phone — with some involvement of DOJ IG — and the next day DOJ seized a second email account of Clark’s. When FBI seized Clark’s phone, I predicted it would take at least six months to fully exploit Clark’s phone, because that’s what it was generally taking, even without a complex privilege review. Indeed, five months after first seizing some of Clark’s cloud content, on September 27, 2022, he was continuing to make frivolous privilege claims to keep his own account of the events leading up to January 6 out of the hands of investigators.

The first overt act in the investigation into one of Trump’s co-conspirators happened 926 days ago. Yet TV lawyers continue to insist the investigation that has resulted in an indictment including Clark as Donald Trump’s co-conspirator didn’t start in earnest until Jack Smith was appointed in November 2022.

A privilege review of Rudy’s devices was set in motion (in the Ukraine investigation) in April 2021

Clark is not the only one of Trump’s co-conspirators against whom investigative steps occurred in 2021, when TV lawyers were wailing that nothing was going on.

Take the December 6, 2020 Kenneth Chesebro memo that forms part of the progression mapped in the indictment from Chesebro’s efforts to preserve Wisconsin votes to trying to steal them. NYT liberated a copy and wrote it up here. It’s not clear where DOJ first obtained a copy, but one place it was available, which DOJ took steps to obtain starting on April 21, 2021 and which other parts of DOJ would have obtained by January 19, 2022, was on one of the devices seized from Rudy Giuliani in the Ukraine influence-peddling investigation. The PDF of a December 6 Kenneth Chesebro memo shows up in Rudy’s privilege log in the Ruby Freeman suit, marked with a Bates stamp from the Special Master review initiated by SDNY.

While Rudy is claiming privilege over it in Freeman’s lawsuit, it is highly likely Barbara Jones ruled that it was not (only 43 documents, total, were deemed privileged in that review, and there are easily that many emails pertaining to Rudy’s own defense in his privilege log).

The way in which SDNY did that privilege review, in which SDNY asked and Judge Paul Oetken granted in September 2021 that the review would cover all content post-dating January 1, 2018, was public in real time. I noted in December 2021, that Rudy’s coup-related content would be accessible, having undergone a privilege review, at any such time as DC investigators obtained probable cause for a warrant to access it.

Since then, Rudy has claimed — to the extent that claims by Rudy are worth much — that all his coup-related content would be available, and would only be available, via materials seized in that review. (In reality, much of this should also have been available on Gmail and iCloud, and Rudy’s Protonmail account does not appear to have been captured in the review at all.)

But unless you believe that Rudy got designated co-conspirator 1 in the indictment without DOJ ever showing probable cause against him, unless you believe DOJ decided to forego directly relevant material that was already privilege-reviewed and in DOJ custody, then we can be certain January 6 investigators did obtain that content, and once they did, the decisions made in April and August and September 2021 would have shaved nine months of time off the investigation into him going forward.

Indeed, those materials are one likely explanation for why DOJ’s investigation, as represented by subpoenas sent starting in May 2022, had a slightly different focus than January 6 Committee did. The first fake elector warrants sent in May 2022 as well as those sent in June and November all included Victoria Toensing and Joe DiGenova. Rudy’s known J6C interview included the couple as key members of his post-election team. But no one else seems to have cared or figured out what they did. After Rudy listed them in his January 6 interview, the Committee never once raised them again. But they were always part of a sustained focus by DOJ.

The more explicit investigative steps targeting Rudy have come more recently. Rudy was subpoenaed for information about how he was paid in November 2022. He sat for an interview in June.

But a privilege review on the coup-related content on seven of Rudy’s devices would have been complete by January 19, 2022 — the day before the long privilege battle between J6C and John Eastman started.

DOJ’s investigation of Sidney Powell’s graft was overt by September 2021

The investigation into one more of the six co-conspirators described in Trump’s indictment was also overt already in 2021: Sidney Powell.

Subpoenas sent out in September — along with allegations that Powell’s associates had made damning recordings of her — were first reported in November 2021. The investigation may have started under the same theory as Jack Smith’s recent focus on Trump: That Powell raised money for one thing but spent the money on something else, her legal defense. Molly Gaston, one of the two prosecutors who has shown an appearance on Trump’s indictment and who dropped off her last crime scene cases in March 2021, played a key role in the investigation.

By the time of DOJ’s overt September steps, both Florida’s Nikki Fried and Dominion had raised concerns about the legality of Powell’s graft.

According to Byrne, Powell had received a wave of donations in the aftermath of the election after being praised by mega-popular right-wing radio host Rush Limbaugh. But the donations were often given haphazardly, sometimes as a dollar bill or quarter taped to a postcard addressed to Powell’s law office. Byrne claims he discovered that Powell had amassed a fortune in contributions, somewhere between $20 and $30 million but provided no evidence to support the claim. A projected budget for Defending the Republic filed with the state of Florida lists only $7 million in revenue for the group.

Defending the Republic’s funds weren’t going towards the pro-Trump goals donors likely envisioned, according to Byrne. Instead, he claimed they were spent on paying legal bills for Powell, who has faced court disciplinary issues and a daunting billion-dollar defamation lawsuit from Dominion Voting Systems.

“It shouldn’t be called ‘Defending the Republic,’” Byrne said in the recording. “It should be called ‘Defending the Sidney Powell.’”

Attorneys for Dominion have also raised questions about the finances for Defending the Republic, which the voting technology company has sued alongside Powell. In court documents filed in May, Dominion accused Powell of “raiding [Defending the Republic’s funds] to pay for her personal legal defense.”

Dominion attorneys claimed in the filing that Powell began soliciting donations to Defending the Republic before officially incorporating the group. That sequence, they argued, meant that donations for the group “could not have been maintained separately in a bank account” and “would have necessarily been commingled in bank accounts controlled by [Powell].”

[snip]

Defending the Republic’s finances first attracted the scrutiny of regulators in Florida shortly after Powell founded the group in November 2020 when authorities received a complaint and subsequently issued a subpoena to internet hosting service GoDaddy for information about the group’s website.

In a June press conference, Florida Agriculture Commissioner Nikki Fried said Defending the Republic was “found to be soliciting contributions from the State of Florida or from persons within the State of Florida” on the internet “without having filed in the State of Florida” as a charitable organization.”

On Aug. 24, Defending the Republic paid a $10,000 fine as part of a settlement agreement with Florida authorities over its fundraising.

All that graft would directly overlap with the sole focus on Powell in the indictment: on her false claims about voting fraud, particularly relating to Dominion. Aside from a claim that Powell was providing rolling production of documents in January 2022, it’s not clear what further steps this investigation took. Though it’s not clear whether Powell showed up on any subpoenas before one sent days after Jack Smith’s appointment in November.

Unlike Clark and Eastman, there have been no public reports that Powell had her phone seized.

DOJ may have piggybacked off John Eastman’s legislative purpose subpoena

DOJ’s overt focus on John Eastman came after the January 6 Committee’s long privilege battle over his Chapman University emails. Two months after Judge David Carter found some of Eastman’s email to be crime-fraud excepted (at a lower standard for “corruptly” under 18 USC 1512(c)(2) than was being used in DC District cases already), DOJ obtained its own warrant for Eastman’s emails, and a month later, his phone.

While it seems like DOJ piggybacked off what J6C was doing, the phone warrant, like Clark’s issued on the same day, also had involvement from DOJ IG.

Whatever the import of J6C, it’s notable that J6C was able to get those emails for a legislative purpose, without first establishing probable cause a crime had occurred. DOJ surely could have subpoenaed Eastman themselves (though not without tipping him off), but it’s not clear they could have obtained the email in the same way, particularly not if they had to show “otherwise illegal” actions to do so, which was the standard Beryl Howell adopted in her first 1512(c)(2) opinion, issued orally on January 21, 2022.

DOJ’s focus on Kenneth Chesebro (whom J6C didn’t subpoena until July 2022, months after DOJ was including him on subpoenas; see correction below) and whoever co-conspirator 6 is likely were derivative of either Rudy and/or Eastman; J6C subpoenaed Rudy, Powell, and Epshteyn on January 18 — though Epshteyn did not comply — and Mike Roman on March 28. Epshteyn shows up far more often in Rudy’s privilege log than Roman does.

But of the four main co-conspirators in Trump’s indictment, DOJ opportunistically found means to take investigative steps — the DOJ IG investigation, probable cause warrants in another investigation, and a fundraising investigation — to start investigating at least three of the people who last week were described as Trump’s co-conspirators. Importantly, with Clark and Rudy, such an approach likely helped break through privilege claims that would otherwise require first showing the heightened probable cause required before obtaining warrants on an attorney.

We know a fair amount about where and when the investigation into four of Trump’s six co-conspirators came from. And for three of those, DOJ took investigative steps in 2021, before the January 6 Committee sent out their very first subpoena. Yet because those investigative steps didn’t happen where most TV commentators were looking — notably, via leaks from defense attorneys — those steps passed largely unnoticed and unobstructed.

Update, August 20: The J6C sent a subpoena to Chesebro in March, before the July one that was discussed at his deposition.

DOJ Inspector General Report on the Tensions Created by Parallel Construction

Before you read this report on tensions between FBI Office of General Counsel’s National Security and Cyber Law Branch (NSCLB)  and DOJ’s National Security Division (NSD), remember the following things:

  • In significant part because of jurisdictional limitations, DOJ Inspector General blamed FBI for everything that went wrong with the Carter Page FISA applications, and in the wake of that report, Bill Barr, Trump, and his allies in Congress used it to damage the career every single person at FBI who had been involved with the Russian investigation (except for the two guys who made multiple mistakes in dismissing the Alfa Bank allegations).
  • John Durham then used that damage to attempt to coerce testimony, sometimes false, from FBI figures in his never-ending witch-hunt.
  • For the same jurisdictional limitations, any abuse John Durham engages in or Andrew DeFilippis engaged in can only be reviewed by DOJ’s feckless Office of Professional Responsibility, not by DOJ IG.
  • After that report, DOJ IG developed proof that Carter Page was not special; by some measures, his FISA application was better than those of people who hadn’t been fired by a future President for precisely the same foreign ties that the FISA was meant to assess.
  • The NSD then dismissed those findings from DOJ IG, largely by adopting a standard different from the one that had been adopted with Carter Page (it’s unclear whether DOJ IG is still trying to resolve these discrepancies or not).
  • None of the stuff that happened thus far addresses the substantive problems with the Page applications.

The report talks about the “historically strained” relationship between these two sets of lawyers, without laying out the role that the Carter Page review — and the Trump DOJ’s use of DOJ IG to punish his enemies generally — did to make things worse.

That tension plays out in the report. For example, Horowitz only provides recommendations to NSCLB and FBI’s OGC, not NSD. In each case, FBI is directed to coordinate with NSD, without the counterpart recommendation. The tension is particularly critical to something that DOJ IG cannot, therefore, recommend: That NSD have access to FBI case files, which would allow them to play a more proactive role in the vetting of FISA applications. It would also make NSD share in accountability for any problems that arise (as they should have with Page), though, and unsurprisingly NSD doesn’t want that.

NSCLB attorneys expressed their concern that although NSD attorneys assist agents in drafting the FISA applications submitted to the FISC, they do not share accountability when compliance incidents are reported to the FISC. Although NSCLB officials acknowledged the oversight role that NSD has related to FISA, they emphasized the need for FISA to be a team effort and not an adversarial relationship and stated their belief that the number of compliance incidents would be reduced if NSD would review the FISA-related documents housed in the FBI’s IT systems. However, according to NSCLB attorneys, NSD has expressed disinterest in ensuring FISA compliance on the front end and has said that it is the agent’s responsibility to identify in the first instance, anything that is necessary to be reported to the FISC. We were also told by NSCLB attorneys that NSD has said that it is concerned that an appearance of NSD attorneys having knowledge of the underlying documents would imply that they have full knowledge of all of the supporting documents, which would not be practicably feasible for them to have.

A senior NSD official that we spoke with told us that NSD has limited resources, and it does not have direct access to FBI systems.

NSD wants none of this accountability and DOJ IG can’t make them.

For all the tensions, though, it’s a fascinating report, as useful for providing both historical and bureaucratic background on this process as anything else. Much of this tension arises out of DOJ’s admitted parallel construction — using alternative sources for certain facts to protect sources and methods. There’s even a paragraph that describes NSCLB’s role as such (though not by name).

For instance, we were told that NSD relies on NSCLB to review documents such as search warrants and criminal complaint affidavits for law enforcement or other sensitivity concerns before they are filed with the court by prosecutors. When this process is not followed, it can become particularly problematic if NSCLB later finds that sensitive information was contained in the court filing. For example, if the FBI used a sensitive platform to obtain information, prosecutors may decide that a description of the platform is needed to support the search warrant or complaint. In such instances, NSCLB may ask prosecutors to anonymize that information. However, if NSCLB does not review the case agent’s draft affidavit in support of a search warrant or complaint before the agent provides it to the prosecutor, sensitive information may be exposed. Also, senior NSCLB officials told us that including an NSCLB attorney early in this process can provide an effective means of ensuring prosecutors have information necessary to support their case. Specifically, NSCLB can help identify which information may be difficult to use from a classification and sensitivity perspective and provide suggestions to obtain the information from an independent source without implicating sensitive techniques.

The report claims the particular roles of each side are not well-defined. I’m not convinced that’s the case, though. As described, NSCLB protects national security and the secrets that go along with that (including secret intelligence techniques). And NSD fulfills the needs of prosecutions as well as “protect[ing] FISA as a tool so the FBI can continue to use it.”

In one telling explanation,

NSCLB senior officials highlighted the fact that criminal prosecution is not necessarily the FBI’s aim in every national security investigation and that the FBI sometimes appropriately pursues investigations with the aim of disrupting threats or collecting intelligence.20

These are tensions, but they are not necessarily bad tensions. And it doesn’t seem like this report considers how this compares to the relationship between a prosecutor and a case agent where there are none of the national security (and classification) concerns.

In any case, the report attributes that tension for two radically different understandings about the standards involved in two FISA concepts, including one — material facts that must be disclosed to the FISA Court — that was at the core of the Carter Page case.

In the case of materiality, the FBI seems to be playing dumb (perhaps to avoid opening a whole historical can of worms given the aftermath of the Page IG Report).

The 2009 Accuracy Memorandum defined material facts as, “those facts that are relevant to the outcome of the probable cause determination.” The FBI had interpreted this standard as facts that are outcome determinative, or facts that would invalidate the legal determination. However, NSD had applied a broader standard than the FBI, with NSD’s interpretation of material facts being facts that are capable of influencing the requested legal determination. An NSD senior official told us that the FBI’s viewpoint was based on the FBI’s involvement in the criminal law enforcement arena where the threshold for materiality in a criminal search warrant is outcome determinative. This official also stated that most material errors reported to the FISC do not invalidate the legal determination, and that the FISC still expects for these types of errors to be reported to them.

Senior NSD officials stated NSD had applied the same standard for at least 15 years and NSCLB had known of NSD’s application of the standard because it was reflected in previous Rule 13 notices filed with the FISC. For example, in the OIG’s report on the FBI’s Crossfire Hurricane Investigation, NSD supervisors stated that “NSD will consider a fact or omission material if the information is capable of influencing the court’s probable cause determination, but NSD will err on the side of disclosure and advise the court of information that NSD believes the court would want to know.”41 Similarly, in a FISC filing on January 10, 2020, NSD referred to this statement in the OIG report while describing its oversight and reporting practices when errors or omissions are identified.42 However, senior NSCLB officials told us that NSCLB was first made aware of NSD’s interpretation of the materiality standard in the OIG’s Crossfire Hurricane Investigation report and NSD’s subsequent January 2020 FISC filing.43

In the case of the claimed differing understand of  querying techniques under 702 (in which, by my read, both sides were pretending this hasn’t dramatically changed as FISC became aware of how 702 collection was really used), NSD seems to engage in the knowing bullshit.

In contrast, NSD told us that the query standard has been the same since 2008. A senior NSD official stated that the FBI had a fundamental misunderstanding of the standard and that compliance incidents were not identified sooner because NSD can only review a limited sample of the FBI’s queries and NSD improved upon its ability to identify non-compliant queries over time.

I knew the standard the FBI was using. It is not credible that I knew what it was and NSD did not.

In both cases, this claimed disagreement seems to be an effort to avoid applying the standards adopted post-Page to the FISA approach (and not just on individualized orders) applied before then.

The report confirms something that had been obvious from heavily redacted sections of the last several 702 reauthorizations: FBI had been using 702 collection (and FISA collection generally) to vet potential confidential human sources.

For example, we were told disputes occurred related to queries conducted for vetting purposes.52 Specifically, according to the FBI, it was concerned that as a result of the change to the query standard it could no longer perform vetting queries on raw FISA information before developing a confidential human source (CHS). FBI officials told us that it was important for agents to be able to query all of its databases, including FISA data, to determine whether the FBI has any derogatory or nefarious information about a potential CHS. However, because of the implementation of the 2018 standard, the FBI is no longer able to conduct these queries because they would violate the standard (unless the FBI has a basis to believe the subject has criminal intent or is a threat to national security). According to the FBI, because its goal is to uncover any derogatory information about a potential CHS prior to establishing a relationship, many agents continue to believe that it is irresponsible to engage in a CHS relationship without conducting a complete query of the FBI’s records as “smoking gun” information on a potential CHS could exist only in FISA systems. Nevertheless, these FBI officials told us that they recognize that they have been unsuccessful when presenting these arguments to NSD and the FISC and, as noted below, they follow NSD’s latest revision of query standard guidance.

Using back door searches to vet informants is an approved use on the NSA and, probably, CIA side. In the FBI context, my understanding is that informants understand they’re exchanging Fourth Amendment protections as part of their relationship with the FBI. Perhaps if the FBI had simply made this public, it could have been an approved use. Instead, we’re playing all these games about the application.

The report describes — but doesn’t really address — how the tension between NSCLB and NSD undermined National Security Reviews which,

examine (1) whether sufficient predication exists for FBI preliminary and full investigations, (2) whether a sufficient authorized purpose exists for assessments, (3) whether tools utilized during or prior to the assessment are permitted, and (4) all aspects of National Security Letters issued by the FBI.

There was a huge backlog of these until NSD hurriedly closed a bunch of them in 2020, which is the kind of thing that when Bush did them with FISA tools in 2008 was itself a symptom. So, too, may be some policy memos that happened in Lisa Monaco’s first days and John Demers’ last ones.

The section I found to be most interesting (and one that DOJ IG could not or chose not to address in recommendations) pertains to the tension over declassification of material for prosecutions.

According to the FBI’s Declassification of Classified National Security Information Policy Guide, NSCLB must participate in the approval of discretionary declassification decisions concerning FBI classified information. NSCLB assists in ensuring that the declassification of either FISA derived material or other FBI classified information is: (1) necessary to protect threats against national security; (2) will not include classified materials obtained from foreign governments; (3) will not include classified materials obtained from other U.S. agencies (unless authorized by the originating agency); (4) will not reveal any sensitive or special techniques; and (5) will not adversely impact other FBI investigations.

[snip]

Despite the FBI’s limited support role, NSD and DOJ staff we spoke with told us that they believe NSCLB has involved itself inappropriately in discovery matters. For example, an NSD senior official told us that NSCLB has attempted to second guess discovery decisions made by prosecutors. This NSD official believed that NSCLB’s role is not to participate in the determination of how the prosecutors choose to protect a piece of classified information, but instead to identify information that is classified, its level of classification, and how a declaration from the owner of that information would explain to a court why the information presents a national security concern. According to this official, NSCLB may rightfully conclude the information is too sensitive to provide in discovery and, as a result, prosecutors may have to dismiss that case. However, we were told that discovery issues do not generally reach that point. We also were told by some AUSAs that they have had to remind NSCLB attorneys that AUSAs have the discovery obligations to courts and will make discoverability determinations.

An official from one USAO told us that, while it is understood that satisfying discovery obligations is the responsibility of the prosecutor, the FBI’s interest in protecting its equities may justify challenging a prosecutor’s discovery decisions. The official explained that such back and forth may be necessary to reach a balance between the needs of discovery and the protection of sensitive information; however, when the FBI’s role in the process extends into making assessments of what is discoverable it can slow the process down and necessitate the prosecutor asserting authority over discovery decisions.

[snip]

By contrast, senior NSCLB officials noted that several factors outside of NSCLB’s control can cause the declassification process to take a considerable amount of time. According to these officials, the FBI addresses the risk of disclosing information that could cause significant harm to the American public by using a thorough, deliberate process which can be impacted by the volume of information, the sensitivities involved, and the resources available to conduct a review. In defending NSCLB’s role in the discovery process, a senior NSCLB official expressed the view that AUSAs tend to err on the side of making material discoverable, even when it involves national security information, and do not appreciate how the disclosure of information may affect other FBI or USIC operations. This official told us that NSD often prefers to declassify all information that could be relevant, necessary, or discoverable to ease the prosecution of the case or the discovery process. .

This is, in my opinion, the description of what lawyers for an intelligence agency would do. That seems to be the role NSCLB is playing, for better or worse. In light of the cases described out of which the more specific tensions arise, I find the complaint that NSCLB is delaying discovery rather telling. If prosecutors choose to make a case that NSCLB believes would have been better handled via disruption, for example, or are entirely frivolous, such tensions are bound to surface. That said, if FBI’s General Counsel’s Office has been coopted people trying to protect sources and methods, NSD lawyers are going to look like the only ones guarding due process (though I’m sure they would with CIA’s lawyers, too).

There’s a lot of worthwhile observations in this report. But it’s hard to shake the conclusion that the most important takeaway is that DOJ cannot continue to have such asymmetry in the oversight that FBI and DOJ experience.

“All Texts Demanded!” Right Wingers No Longer Worried about “Wiped” Phones, John Eastman Edition…

As noted in the last thread, more than twelve hours later on the same day that federal agents conducted a search on Jeffrey Clark’s home in Virginia, FBI agents seized John Eastman’s phone as he was leaving a restaurant in Santa Fe. He has launched a bozo lawsuit attempting to get the phone back. And as part of that, he released the warrant used to seize his phone.

Orin Kerr has a long thread treating the bozo lawsuit seriously herenoting among other things that Constitutional law professor John Eastman forgot he was in New Mexico and therefore in the Tenth Circuit, not the Ninth. File411 has a post treating it like the bozo suit it is here.

But I’m interested in the warrant itself. As many people have noted (including Eastman himself), the warrant is from DOJ IG’s Cyber Division, not DC USAO. CNN has a helpful explanation for that: at least on the Eastman search, DOJ IG is engaged in fairly unusual coordination with the USAO (which explains all the squirreliness about which Federal agents had searched Clark’s home).

Federal agents from the Justice Department’s Office of Inspector General, which is coordinating with the wider FBI and US attorney investigation into January 6, 2021, last week raided the home of former DOJ official Jeffrey Clark, a source familiar previously told CNN. That search — during which the Justice Department inspector general’s participation had not been previously reported — came the same day as Eastman’s.

The inspector general investigates accusations of legal violations by Justice Department employees and has the ability to conduct searches and seizures. After investigating, the inspector general can refer possible criminal matters to prosecutors.

That makes a reference in the search warrant more interesting. This is just a seizure warrant, not a warrant authorizing the search of the phone. And it states that agents will bring the phone either the DOJ IG forensic lab in Northern Virginia or to some unidentified location in DC; it doesn’t mention the FBI’s Quantico facility, though that is also in NoVA and even experts on DOJ IG aren’t aware of any dedicated forensic lab DOJ IG has.

This warrant would be consistent with use in parallel investigations, the DC (or Main) investigation into Trump and Eastman as well as a DOJ IG investigation into January 6 that Michael Horowitz announced in early 2021. I’ve been wondering whether DOJ IG’s investigation(s), which can be quite slow, have delayed the review of DOJ’s conduct. This may be the solution: coordinated investigations. In his January 2021 announcement, Horowitz addressed that concern.

The DOJ OIG is mindful of the sensitive nature of the ongoing criminal investigations and prosecutions related to the events of January 6. Consistent with long-standing OIG practice, in conducting this review, the DOJ OIG will take care to ensure that the review does not interfere with these investigations or prosecutions.

In other words, this seizure may actually reflect at least two underlying search warrants, and as such may be an attempt to obscure (like the original Rudy Giuliani warrants would have) the focus of the underlying January 6 investigation. That is, DOJ IG could hand Eastman a warrant for an investigation into Jeffrey Clark, and that would be sufficient to answer his demands for a warrant, even if there were a more substantive warrant for the DCUSAO investigation.

That’s why the timing is of interest. As File411 notes, it was authorized on June 17, so after the Big Lie January 6 Committee hearing, but five days before it was executed on June 22. If this warrant was a response to the January 6 Committee hearings, it wasn’t a response to the hearing focused on Jeffrey Clark, but rather on one focused on Eastman.

In the days ahead, you will hear wailing about how poor Constitutional attorney John Eastman had his privacy abridged — that’s the point of the bozo lawsuit, just like Russian oligarchs do. But the very same people who’ll be whining were huge fans of DOJ IG’s best known cyber worka 2018 report explaining why the FBI’s text archiving system hadn’t captured 19,000 texts between Peter Strzok and Lisa Page.

Trump Strzok Text

That investigation, like this one, appears to be focused on a DOJ employee who has already resigned (though the earlier report was started when Strzok and Page were still at FBI). And given the seizure of devices, it may be focused on inappropriate politicization of DOJ — the allegation at the core of investigations into Strzok and Page, yet for which DOJ IG never substantiated proof.

Both Rudy and Trump are on the record supporting such DOJ IG investigations into phones for evidence of improper politicization. Chances are they’re going to be less enthusiastic now that the subjects of the investigation are John Eastman and Jeffrey Clark.

There Was No Crime Predicating the Durham Investigation

Deep in a NYT piece that suggests but does not conclude that John Durham’s purpose is to feed conspiracy theories, Charlie Savage writes,

Mr. Barr’s mandate to Mr. Durham appears to have been to investigate a series of conspiracy theories.

That’s as close as any traditional media outlet has come to looking at the flimsy predication for Durham’s initial appointment.

Billy Barr, however, has never hidden his goal. In his memoir, he describes returning to government — with an understanding about the Russian investigation gleaned from the propaganda bubble of Fox News, not any firsthand access to the evidence — with a primary purpose of undermining the Russian investigation. He describes having to appoint Durham to investigate what he believed, again based off Fox propaganda, to be a bogus scandal.

I would soon make the difficult decision to go back into government in large part because I saw the way the President’s adversaries had enmeshed the Department of Justice in this phony scandal and were using it to hobble his administration. Once in office, it occupied much of my time for the first six months of my tenure. It was at the heart of my most controversial decisions. Even after dealing with the Mueller report, I still had to launch US Attorney John Durham’s investigation into the genesis of this bogus scandal.

In his shameless excuses for bypassing MLAT to grill foreigners about their role in the investigation, Barr describes “ha[ving] to run down” whether there was anything nefarious about the intelligence allies shared with the US — a rather glorified description for “chasing George Papadopoulos’ conspiracy theories around the globe.”

Durham’s investigation was up and running by the late spring. Pending IG Horowitz’s completion of his review of Crossfire Hurricane, I asked Durham to focus initially on any relevant activities by the CIA, NSA, or friendly foreign intelligence services. One of the more asinine aspects of media coverage about Durham’s investigation was all the heavy breathing during the summer as news seeped out that I had contacts with foreign governments on Durham’s behalf. Various journalists and commentators claimed this indicated that I was personally conducting the investigation and suggested there was something nefarious about my communicating with allied governments about Russiagate. [sic] This coverage was a good example of the kind of partisan nonsense that passes as journalism these days.

One of the questions that had to be run down was whether allied intelligence services had any role in Russiagate [sic] or had any relevant information. One question was whether US officials had asked foreign intelligence services to spy on Americans. Various theories of potential involvement by British, Australian, or Italian intelligence agencies had been raised over the preceding two years. Talking to our allies about these matters was an essential part of the investigation. It should not surprise anyone that a prosecutor cannot just show up on the door- step of a foreign intelligence agency and start asking questions. An introduction and explanation at more senior levels is required. So— gasp!—I contacted the relevant foreign ambassadors, who in turn put me in touch with an appropriate senior official in their country with authority to deal with such matters. These officials quite naturally wanted to hear from me directly about the contours of the investigation and how their information would be protected.

Much later, when Barr claimed that Durham would not lower DOJ standards just to obtain results, Barr again described an investigation launched to “try to get to the bottom of what happened” rather than investigate a potential crime.

I acknowledged that what had happened to President Trump in 2016 was abhorrent and should not happen again. I said that the Durham investigation was trying to get to the bottom of what happened but “cannot be, and it will not be, a tit-for-tat exercise.” I pledged that Durham would adhere to the department’s standards and would not lower them just to get results. I then added a point, meant to temper any expectation that the investigation would necessarily produce any further indictments:

[W]e have to bear in mind [what] the Supreme Court recently re- minded [us] in the “Bridgegate” case—there is a difference between an abuse of power and a federal crime. Not every abuse of power, no matter how outrageous, is necessarily a federal crime.

And then Durham lowered DOJ standards and charged two false statement cases for which he had (and has, in the case of Igor Danchenko) flimsy proof and for which, in the case of Michael Sussmann, he had not tested the defendant’s sworn explanation before charging. Durham further lowered DOJ standards by turning false statement cases into uncharged conspiracies he used to make wild unsubstantiated allegations about a broad network of others.

This entire three year process was launched with no evidence that a crime was committed, and it seems likely that only the Kevin Clinesmith prosecution, which DOJ Inspector General Michael Horowitz handed Durham months after he was appointed as a fait accompli and which could easily have been prosecuted by the DC US Attorney’s Office, provided an excuse to convene a grand jury to start digging in the coffers of Fusion GPS and Perkins Coie.

There was no crime. Durham was never investigating a suspected crime and then, as statutes of limitation started expiring, he hung a conspiracy theory on a claimed false statement for which he had no solid proof. Eight months into Durham repeating those conspiracy theories at every turn — conspiracy theories that Durham admitted would not amount to a crime in any case! — a jury told Durham he had inadequate proof a crime was committed and that the entire thing had been a waste of time and resources.

“The government had the job of proving beyond a reasonable doubt,” she said, declining to give her name. “We broke it down…as a jury. It didn’t pan out in the government’s favor.”

Asked if she thought the prosecution was worthwhile, the foreperson said: “Personally, I don’t think it should have been prosecuted because I think we have better time or resources to use or spend to other things that affect the nation as a whole than a possible lie to the FBI. We could spend that time more wisely.”

Compare that to the Russian investigation, which was started to figure out which Trump associate had advance knowledge of Russia’s criminal hack-and-leak operation and whether they had any criminal exposure in it. Here’s how Peter Strzok described it in his book:

[A]gents often don’t even know the subject of a counterintelligence investigation. They have a term for that: an unknown subject, or UNSUB, which they use when an activity is known but the specific person conducting that activity is not — for instance, when they are aware that Russia is working to undermine our electoral system in concert with a presidential campaign but don’t know exactly who at that campaign Russia might be coordinating with or how many people might be involved.

To understand the challenges of an UNSUB case, consider the following three hypothetical scenarios. In one, a Russian source tells his American handler that, while out drinking at an SVR reunion, he learned that a colleague had just been promoted after a breakthrough recruitment of an American intelligence officer in Bangkok. We don’t know the identity of the recruited American — he or she is an UNSUB. A second scenario: a man and a woman out for a morning run in Washington see a figure toss a package over the fence of the Russian embassy and speed off in a four-door maroon sedan. An UNSUB.

Or consider this third scenario: a young foreign policy adviser to an American presidential campaign boasts to one of our allies that the Russians have offered to help his candidate by releasing damaging information about that candidate’s chief political rival. Who actually received the offer of assistance from the Russians? An UNSUB.

[snip]

The FFG information about Papadopoulos presented us with a textbook UNSUB case. Who received the alleged offer of assistance from the Russians? Was it Papadopoulos? Perhaps, but not necessarily. We didn’t know about his contacts with Mifsud at the time — all we knew was that he had told the allied government that the Russians had dirt on Clinton and Obama and that they wanted to release it in a way that would help Trump.

The answer, by the way, was that at least two Trump associates had advance knowledge, George Papadopoulos and Roger Stone, and Stone shared his advance knowledge with Rick Gates, Paul Manafort, Steve Bannon, and Donald Trump, among others. By all appearances, DOJ was still investigating whether Stone had criminal exposure tied to his advance knowledge when Barr interfered in that investigation in February 2020, a fact that Barr hid until the day before the 2020 election.

With the Russian investigation, there was a crime: a hack by a hostile nation-state of a Presidential candidate, along with evidence that her opponent at least knew about the related leak campaign in advance. With the Durham investigation, there were only Fox News conspiracy theories and the certainty that Donald Trump shouldn’t be held accountable for encouraging Russia to hack his opponent.

The fact that this entire three year wild goose hunt was started without any predicating crime is all the more ridiculous given Durham’s repeated focus both on the predication of Crossfire Hurricane (in criticizing Horowitz’s report on Carter Page) and the Alfa Bank inquiry (during the Sussmann trial). John Durham, appointed to investigate conspiracy theories, deigns to lecture others about appropriate predication.

And that’s undoubtedly why, in the face of this humiliating result for Durham, Billy Barr is outright lying about what Durham’s uncharged conspiracy theories revealed about the predication of the Russian investigation.

He and his team did an exceptionally able job, both digging out very important facts and presenting a compelling case to the jury. And the fact that he … well, he did not succeed in getting a conviction from the DC jury, I think he accomplished something far more important, which is he brought out the truth in two important areas. First, I think he crystalized the central role played by the Hillary campaign in launching — as a dirty trick — the whole RussiaGate [sic] collusion [sic] narrative and fanning the flames of it, and second, I think, he exposed really dreadful behavior by the supervisors in the FBI, the senior ranks of the FBI, who knowingly used this information to start an investigation of Trump and then duped their own agents by lying to them and refusing to tell them what the real source of that information was.

That’s not what the trial showed, of course. Every witness who was asked about the centrality of the Alfa Bank allegations responded that there were so many other ties between Trump and Russia that the Alfa Bank allegations didn’t much stick out. Here’s how Robby Mook described it in questioning by Michael Bosworth.

[I]t was one of many pieces of information we had. And, in fact, every day, you know, Donald Trump was saying things about Putin and saying things about Russia. So this was a constituent piece of information among many pieces of information, and I don’t think we saw it as this silver bullet that was going to conclude the campaign and, you know, determine the outcome, no.

Q. There were a lot of Trump/Russia issues you were focused on?

A. Correct.

Q. And this was one of many?

A. Correct.

In response to questioning by Sean Berkowitz, Marc Elias traced the increased focus on Russia to Trump’s own request for Russia to hack Hillary.

Q. Let’s take a look — let me ask a different question. At some point in the summer of 2016, did Candidate Trump make any statements publicly about the hack?

A. Yes.

Q. What do you recall him saying and when?

A. There was a publication of emails, of DNC emails, in the days leading up to the Democratic National Convention. And it was in my opinion at the time clearly an effort by Russia to ruin what is the one clean shot that candidates get to talk to the American public. Right? The networks give you free coverage for your convention. And in the days before the convention, there was a major leak. And rather than doing what any decent human being might do and condemn it, Donald Trump said: I hope Russia is listening and, if so, will find the 30,000 Hillary Clinton emails that he believed existed and release them. That’s what I remember.

Q. Did you feel the campaign was under attack, sir?

A. We absolutely were under attack.

Q. And in connection with that, were there suggestions or possibilities at least in your mind and in the campaign’s mind that there could be a connection between Russia and Trump?

A. Again, this is, you know — this was public — Donald Trump — you know, the Republican Party historically has been very anti-Russia. Ronald Reagan was like the most anti-communist, the most anti-Soviet Union president.

And all of a sudden you had this guy who becomes the nominee; and they change the Russian National Committee platform to become pro-Russian and he has all these kind things to say about Putin. And then he makes this statement.

And in the meantime, he has hired, you know, Paul Manafort, who is, you know, I think had some ties to — I don’t recall anymore, but it was some pro-Russia thing in Ukraine.

So yeah. I thought that there were — I thought it was plausible. I didn’t know, but I thought it was an unusual set of circumstances and I thought it was plausible that Donald Trump had relations with — through his company with Russia.

Democrats didn’t gin up the focus on Trump’s ties to Russia, Trump’s own begging for more hacking did.

The trial also showed that this wasn’t an investigation into Trump. Rather, it was opened as an investigation into Kirkland & Ellis client Alfa Bank, which FBI believed had ties to Russian intelligence.

The investigation even considered whether Alfa Bank was victimizing Trump Organization.

Barr is similarly lying about whether supervisors revealed the source(s) of this information and what it was.

The source for the allegations was not Hillary, but researchers. And the trial presented repeated testimony that David Dagon’s role as one source of the allegations being shared with investigative agents. That detail was not hidden, but agents nevertheless never interviewed Dagon.

And even the purported tie to the Democrats was not well hidden. Indeed, the trial evidence shows that the FBI believed the DNC to be the source of the allegations, and that detail leaked down to various agents — including the two cyber agents, Nate Batty and Scott Hellman, whose shoddy analysis encouraged all other agents to dismiss the allegations — via various means.

Andrew DeFilippis made great efforts (efforts that lowered DOJ standards) to claim differently, but the evidence that key investigators assumed this was a DNC tip was fairly strong.

Three years after launching an investigation into conspiracy theories, Barr is left lying, claiming he found the result he set out to find three years ago. But the evidence — and the jury’s verdict — proves him wrong.

For years, Durham has been seeking proof that the predication of the Russian investigation was faulty. The only crime he has proven in the interim is that his own investigation was predicated on Fox News conspiracy theories.

Apprehension and Dread with Bates Stamps: The Case of Jim Baker’s Missing Jencks Production

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I’ve done a couple of posts showing how much fun one can have with Bates stamps — the serial numbers stamped onto every page of discovery that tells you a little bit about how any document was treated. In this post, for example, I showed that when John Durham accidentally-on-purpose released an exhibit with a bunch of Fusion GPS documents, he wasn’t doing so primarily to get them admitted at trial, because he had no intention of using most of them at trial. In this post, I showed that Durham hadn’t looked at key investigative documents that Michael Horowitz had relied upon in the Inspector General investigation into Crossfire Hurricane before Durham claimed he knew better than Horowitz about the predication of the Russian investigation. As of now, by the way, Horowitz is on the schedule to be a witness for Michael Sussmann. Ostensibly he’ll just talk about how valuable an anonymous tip that Sussmann once shared on behalf of Rodney Joffe proved to be, but who knows whether he’ll get a question about comments Durham has made about knowing better than Horowitz about things he hadn’t done the work to understand?

This post about Bates stamps won’t be so fun. It fills me with dread.

In this post and these two threads (Thursday nightFriday morning), I tried to summarize the Greek tragedy of Sussmann lawyer Sean Berkowitz’ cross-examination of Jim Baker. The short version of it is that these two men, men who used to be friends, are stuck in some nightmare Hunger Games created by a right wing mob led by Donald Trump. After years of being dragged through the mud because they dared to try to protect the United States from Russia in 2016, the survival of each depends on taking out the other. Jim Baker only avoids prosecution if he adheres obediently to John Durham’s internally contradictory script. Sussmann only gets his life back if he takes Baker out. While just Sussmann’s lawyer, Sean Berkowitz, and Jim Baker appear on this stage, it’s quite clear that Durham and DeFilippis set it.

Berkowitz started by quoting Baker’s explanation, from his earlier testimony, for why he had never searched his own files for texts with Sussmann.

Q. It’s your investigation, you said. I’m just here to answer the questions. Right? It’s Mr. DeFilippis’ investigation. You’re just here to answer the questions. Is what you said?

The context of that statement, from Andrew DeFilippis’ direct questioning of Baker, is crucial to understanding what follows.

The comment was Baker’s explanation to Durham’s lead prosecutor for why he only found a September 18, 2016 text from Michael Sussmann in March of 2022, almost six months after an entire indictment had been built around what Sussmann had said, instead, on September 19. As teed up by DeFilippis, Baker went looking for and found that text because Durham was just trying to comply with Jencks obligations, the requirement that prosecutors provide the prior statements of government witnesses in their possession to defendants.

Q. Are you familiar with the concept of Jencks materials or 3500 materials?

A. Yes.

[snip]

A. Correct. Yes. It’s an act of Congress that requires that — the reference to 3500 is a section in the U.S. Code.

Q. So did there come a time when you were asked by the Government to give any statements you might have on the subject of your testimony today?

A. Yes.

Q. And just tell us how that happened and then what you did in response.

A. There was a phone call with the Government. I think it was in March of this year. And it was to discuss discovery-related matters in part in the conversation. And I think it was Mr. Durham who asked me, you know: You need — we have an obligation to hand over discovery to the defense in this case. And can you go look for emails and other communications that you might have had with Mr. Sussmann?

And so in response to that, I — after we got off the phone, I immediately went to my phone and started looking through emails and then I looked for texts. And I did a search for texts with Michael’s last name; and texts came up, and I scrolled through them. They took a while to down — it was clear to me at least that they were downloading from the cloud.

And as I scrolled through and got to the beginning of my set of communications with Michael, this is the first one that I had.

Q. Now, had you — have you spoken to and met with the Government in connection with this case previously?

A. Yes.

Q. And had you previously located this text message here?

A. Not to the best of my recollection. No.

Q. What, if anything, was the reason for that?

A. It’s — I was not — I mean, the way I thought about it was that frankly, like, I am not out to get Michael. And this is not my investigation; this is your investigation. And so if you ask me a question, I answer it. If you ask me to look for something, I go look for it. But to the best of my recollection, nobody had asked me to go look for this material before that. [my emphasis]

Nobody had ever asked him to go look for evidence in his own possession related to the defendant against whom he was the key witness before, Baker testified. There’s a lot that’s unsaid — and batshit crazy — about this. One is that Durham only asked for communications directly with Sussmann, at least as Baker described events that happened just a few months ago.

Anyway, that was Durham’s explanation for how this text got shared with the government in March, six months after Durham had charged Sussmann for lying to hide what Durham imagines were Sussmann’s self-interests in a meeting with Baker on September 19, 2016. And by Baker’s telling, this belated request wasn’t just an example of DeFilippis trying to cover up his past incompetence (again). Durham was personally involved in this.

The only Bates stamp on this exhibit looks like this:

As you can see from Sussmann’s challenges to Durham’s exhibits submitted earlier this month, SCO-###### is one of two standard Bates stamps that Durham uses, the other being SC-########. Note both have a dash.

I knew as soon as I read the transcript that DeFilippis’ suggestion that this was about Jencks was intentionally misleading. Almost certainly, Durham found this text because they were still trying to comply with Sussmann’s demands, first made immediately after the indictment and then over and over after that, that prosecutors find  the communications about Sussmann’s role in killing a NYT story that he knew must exist. Besides, Jencks is an obligation to turn over statements about an investigation in the government’s possession. These texts weren’t, until Durham asked for them, in the government’s possession.

I mean, I guess if they were, and Durham had been sitting on them for six months, then Durham has even bigger problems, which I don’t rule out.

That’s the background to the way Sussmann’s lawyer began his cross-examination. After reminding Baker of this statement, Berkowitz then laid out that, while Baker had met over ten times with Durham’s team, he had declined to meet with Sussmann’s team. Berkowitz introduced a letter he had sent Baker’s lawyer on April 20, asking to meet.

That letter had no Bates stamp. Just the Exhibit number submitting it into evidence.

That suggests Durham’s team hadn’t seen this letter yet — though I’m sure nothing about the letter was a surprise to them. Baker has met with Durham’s team at least twice since Berkowitz sent this letter. Berkowitz asked if Baker knew about the letter but Baker dodged, saying only that he had delegated the decision about meeting with Sussmann’s team to his lawyer, Dan Levin.

Then Berkowitz asked whether Baker knew what it was like to be under criminal investigation.

A. Yes.

Q. That’s Mr. Durham?

A. Yes.

They talked for a while about an earlier Durham investigation, one that lasted from 2017 until 2019 (Berkowitz made Baker repeat the dates), into whether information about surveillance that Baker had shared with a journalist had, or had not, been an authorized disclosure. Berkowitz talked about what might have happened had Baker been charged.

Loss of his legal career.

Being prosecuted.

Berkowitz talked about how that investigation basically boiled down to several conflicting versions of a phone call that other witnesses had given Durham. Their word against Baker’s.

Q. So at least one of their recollections was inconsistent with yours. Right?

A. Yes. Yes.

Q. Memories are a difficult thing, aren’t they, sir?

A. That’s a difficult question to answer. That depends.

That’s how Berkowitz prefaced the first of a long list of things Baker had said in Michael Sussmann’s trial that conflicted with things he had said in the past, a list that carried into a second day (actually Baker’s third day on the stand). At this point, Berkowitz mentioned just one of them — Baker’s inconsistent testimony to the Inspector General in July 2019 — then interrupted.

He put up a text to Ben Wittes that Baker sent the day after Durham was appointed in this matter (so weeks before that particular interview with the IG). Wittes and Baker were talking about TV appearances, but Baker seemed preoccupied by the Durham appointment.

MR. BERKOWITZ: The date, Mr. Cleaves.

THE WITNESS: There we go. Okay. Sorry. May 14th, 2019. Thank you.

BY MR. BERKOWITZ:

Q. And you write: “It went well. It was about the Love piece which was good. CNN Tonight was okay but didn’t cover that at all. And now I get to be investigated for another year or two by John Durham. Lovely.” Correct?

A. Right.

Q. So you expected to be investigated further by Mr. Durham. Correct?

A. Yes, I did.

I’ll come back to the metadata on the text in just a bit.

The text makes it clear how, after being investigated by John Durham from 2017 to 2019, upon learning that Durham had just been appointed to investigate other matters implicating Baker, FBI’s former General Counsel immediately realized the investigation would continue for another two years.

Baker was wrong about the timing. Durham’s investigation just celebrated its third birthday.

This text frames all of Baker’s subsequent cooperation in that light — in Baker’s immediate recognition that the hell he had been going through for the previous two years would continue another two. Or three. Or longer.

This is brilliant lawyering on Berkowitz’s part. But remember as you read along that this is really a Hunger Games conflict staged by Trump and Bill Barr to exploit the US Justice system to create a never-ending supply of revenge theater that will incite the base and lead the press to do shitty reporting for easy clicks. This is an act of revenge targeting anyone who has ever dared to question Trump’s corruption. Or even, question the dangers of Russian interference in American democracy.

Back to Berkowitz. After showing Baker the text reflecting his immediate dread about being investigated by Durham for two more years, Berkowitz described how, the day after Durham’s appointment (actually it was about three days after, and so two days after this text), Baker had his lawyer reach out to Durham and offer to cooperate.

The letter is actually kind of funny. It shows Levin emailing and saying, “Jim asked me to reach out and let you know that he is available if you wish to interview him (he just spoke to the IG today).” Durham seems to have forwarded that email from one of his DOJ emails to another. I sort of wonder if there was a BCC, because Durham was in really close contact with Bill Barr’s office in these weeks. Durham then attempted to write back to Levin but at least as it appears (because he forwarded the email to himself rather than simply replying with a CC to his second DOJ account), Durham simply wrote to himself, responding into a void about meeting with “tour client” soon.

The Bates stamp for this exhibit looks like this:

DX-811 is the exhibit number for this trial (DX shows that it is one of Sussmann’s exhibits, as opposed to one of the government’s).

LW-06_0001 may reflect Sussmann’s Latham & Watkins’ lawyers sharing their proposed exhibits with Durham and Judge Cooper before the trial.

SCO-012114 is the regular Bates stamp associated with Durham’s production to Sussmann. It’s part of the same series (though much earlier in) the Bates stamp of the text that Baker turned over to Durham on March 4. SCO dash ######.

And SCO-3500U-4007 seems to be a Bates stamp specifically tied to Jencks discovery, which as noted above is called Rule 3500. That’s a really handy Bates stamp because it may indicate what Durham is treating as Jencks discovery. It appears in other direct statements made by Durham’s witnesses about this investigation. The calendar entry for the September 19, 2016 meeting between Baker and Sussmann, for example, has one of those 3500 stamps.

The text that, DeFilippis suggested, Durham had only asked for out of a diligent desire to comply with Jencks obligations doesn’t have one of these 3500 Bates stamps. Here it is again, SCO dash ######.

Having shown those three documents — Berkowitz’s request for a meeting with Baker, Baker’s text to Wittes dreading two more years of investigation by Durham, and Levin’s letter to Durham immediately after his appointment offering to come in for an interview — Berkowitz then resumed talking about inconsistencies in Baker’s testimony. He alluded, briefly, to a sworn statement Baker made to the grand jury under questioning from DeFilippis about the role that the General Counsel would have in FBI investigations. Then, after going through what Baker’s current testimony is, Berkowitz asked,

Q. The fact that Mr. Sussmann stated specifically in his message that he was acting on his own and not for a client did not factor heavily into your decision to meet with him. Correct?

This statement is inconsistent with the testimony Baker gave on the stand. Baker disavowed it.

A. I disagree with that.

So Berkowitz did what’s known as “refreshing” a witness’ memory, first by reading him what the 302 memorializing an FBI interview said.

Q. All right. Do you remember speaking with these folks in March of this year — by these folks to be, correct for the record, the prosecution team, Mr. DeFilippis?

A. In March of this year, I spoke to them, yes.

Q. Okay. And in March of this year, is it not true that you told them you do not believe that the fact that Sussmann stated specifically in his texts that he was acting on his own and not for a client factored heavily into your decision to meet with Michael Sussmann the very next day. You told them that?

A. Can you repeat the first part of that again? Sorry.

Q. “Baker does not believe that the fact that Sussmann stated specifically in his text message that he was acting on his own and not for a client factored heavily into his decision to meet with Sussmann the very next day”?

Baker, perhaps realizing that this interview from a few months ago conflicts with the testimony he has just given, had forgotten the question.

A. So, I’m sorry. What’s your question?

Q. You told them that on March 4th of 2022.

Baker didn’t recall giving that conflicting testimony.

A. Sitting here today, I don’t recall telling them that.

Berkowitz offered to show him the proof: a 302 interview report that, unlike the meeting between Baker and Sussmann on September 19, 2016, actually documents what was said.

Q. Refresh your recollection to see the 302 of your meeting, sir?

A. Sure. I haven’t seen that 302 before.

This is an opportunity for Berkowitz to explain, as he did when he used one to refresh Scott Hellman’s memory earlier in the week, what a 302 is and how FBI always creates 302s for fact witnesses.

Q. All right. And to orient the jury is when an agent is present and take notes. Correct?

A. It’s a report of an interview.

Q. And when a witness is interviewed by the FBI, an agent is there to take notes, if it’s a fact witness, and put it into a report. Correct?

A. Correct.

Q. You didn’t do that with Mr. Sussmann. Right?

A. Correct.

Berkowitz asked Baker if he remembered making the statement on March 4. DeFilippis’ single witness to Sussmann’s alleged crime professed, for the second time in short order, not to remember something that happened just a few months ago.

Q. Does it refresh your recollection that, on March 4th of 2022, you told the FBI and Mr. DeFilippis that you didn’t believe the fact that Mr. Sussmann stated specifically in his text he was acting on his own and not for a client factored heavily into your decision to meet with Mr. Sussmann the next day?

A. I don’t recall making that statement sitting here today.

Q. And it’s your testimony

MR. BERKOWITZ: You can take that down.

BY MR. BERKOWITZ: Q. It’s your testimony that that’s not accurate. Correct?

A. It’s my testimony today that, as I think about it today, that that’s not accurate.

More than just forgetting what he said a few months ago, Baker is showing the jury how, if his current belief conflicts with a past one shared under threat of false statements charges, he’ll simply say his past truth is not the truth. Not accurate.

Then Baker thinks of something: the significance of the date.

A. Can I ask you a question? When was that 302? What was the date? What meeting or what interview was that pertaining to?

Q. There’s a lot of different meetings and interviews here. This one was a couple of months ago on March 4th of 2022 —

A. Okay.

Q. — in connection with your trial preparation for today.

A. That was the date that I found the text, yes.

Q. Okay. Did that change your recollections at all or —

Baker explains that discovering a text in which Sussmann had stated that he wasn’t asking for the September 19, 2016 meeting “on behalf of any client,” but wanted to help the FBI had upset him, suggesting that might explain why he gave testimony a few months ago that substantially differs from the testimony he gave on the stand.

A. Well it’s just it was a very — it was a very difficult day for me and it was a bit upsetting.

As a reminder, this day was not just a stressful one for Baker. While I can’t think of an evidentiary basis by which Sussmann could share this with the jury, after Baker found a text that greatly complicated Durham’s prosecution, Durham accused Sussmann of hiding evidence, a stance he was forced to drop after Sussmann obtained a subpoena on his own to disprove that accusation.

Anyway, after noting that Baker met with Durham in spite of the stress of having found the text, Berkowitz asked Baker, for the first time in this Hunger Games conflict, whether he was aware that it was a crime to lie to the FBI.

A. I know very well it’s a crime to make a false statement to the FBI if that’s what you are getting at. Whether they say it or not, I know it.

At that point, Berkowitz pulled out a white board and starting writing down the things that Baker was committing to believing were the truth. He started with “the elephant in the room,” the memory that, if the jury finds it shaky, will sink this entire prosecution.

Q. Let’s start with the elephant in the room. Sitting here today, what is your testimony about what Mr. Sussmann told you relative to clients?

A. At the meeting in person on the 19th of September?

Q. Yes.

A. Okay. My testimony is that he said that he was not there on behalf of any particular client or words to that effect.

Q. Oh, now it’s “words to that effect.” Okay.

DeFilippis objected.

He didn’t want Berkowitz to write this down, I’m sure, because any juror taking notes is going to write down exactly what Berkowitz writes down, thereby solidifying the points in their memory. That’s how my memory works anyway: If I write it down, I’m far more likely to remember it. People think I have a really good memory, but in actuality, I just write a lot more than most people.

DiFilippis probably also didn’t want Berkowitz to write this down because it’ll isolate the key claims that Baker has made, thereby making it easier for jurors to compare his currently operative statements with what he had said in the past. DeFilippis wanted just the court reporter to write this down, in a transcript that won’t ever be shared with the jury.

MR. DeFILIPPIS: Objection, Your Honor, we do have a court reporter.

THE COURT: Overruled.

Berkowitz walked Baker through his currently operative story for the following:

  • What Sussmann said on September 19 about having a client
  • Whether Baker knew Sussmann worked for Hillary that day
  • How long the meeting was
  • What Sussmann said about a news organization ready to publish a story
  • Whether he identified any particular cyber experts
  • Whether those experts — Steve Bellovin, Matt Blaze, and Susan Landau — had vouched for the data
  • Whether Baker or Sussmann had taken notes
  • Whether he had refused to share Sussmann’s name when Scott Hellman and an FBI administrative person  named Jordan Kelly had come to obtain the materials, as Scott Hellman testified earlier in the week

That’s when they break for lunch. After lunch they go over Baker’s meeting with Bill Prietsap, his calls to get Eric Lichtblau’s name later in the week, and his foggy memory about the details from the the March 6, 2017 when the Alfa Bank allegation comes back up. I’m not sure whether this got written onto a white board or not (it sounds like Berkowitz had filled the white board before lunch).

Berkowitz then returned to the many times Baker had given conflicting testimony under oath, starting with his testimony before Congress.

Q. And when you gave voluntary information to Congress, you understood that you were under oath?

A. I don’t think I was under oath, but I understood that it’s a crime to make false statements to Congress.

Q. So you tried to be as careful as you could. Correct?

A. I tried to be as careful as I could in that environment, yes, sir.

Q. You tried to be as truthful as you could?

A. (No response)

Q. Tried to be as truthful as you could?

A. Yes, sir.

Berkowitz then went through and laid out how his prior testimony conflicts with what he’s just laid out on the whiteboard and after lunch.

Again, great lawyering, but the reason this is so dreadful is because this is precisely the kind of Hunger Games conflict that Reality TV show star Donald Trump uses to accrue power.

Berkowitz reminded Baker that his two appearances before Congress in October 2018 could be subject to false statement prosecution, his 2019 interview with the Inspector General (which Baker calls “the I.G. thing”), the two meetings with Durham at which Sussmann was raised in June 2020 (at such time as Trump and Barr were pressuring Durham for pre-election results). All potentially subject to prosecution as false statements or perjury.

Berkowitz ended the day by asking about threats, returning again to the possibility that any single one of these inconsistent statements — the most recent of which discussed thus far was on March 4, 2022, the statute of limitation for which would not expire until 2027 — could be charged as a false statement.

Q. Did they threaten you, sir, with anything — based on the fact that you had previously told folks under oath or subject to perjury — that you had said inconsistent things?

A. Mr. Durham and his team have never threatened me in any way.

Q. But you understood, sir, did you not, as a lawyer, that if you had said something that someone determined was false, under oath, or subject to perjury, you could be prosecuted. Correct?

I suspect that, by the end of the week, Berkowitz will argue that several of Durham’s witnesses have made more easily provable false statements — and more material — to the Special Counsel and others than Sussmann, but Durham is not choosing to prosecute the ones who tell the story he wants told, the story he chooses to refresh. Remember, there are at least three documents already introduced that Durham chose not to use to refresh Baker’s memory to something different than he delivered on the stand last week.

Which brings me back to DeFilippis’ excuse for finding a text that Sussmann was asking for but which Durham had never bothered to look for, and the inconsistent statement — that Sussmann’s notice that he was not there on behalf of any client had a big role in him taking the meeting — and Baker’s attribution of his now-inconsistent answer to stress.

Durham discovered on March 4 that Baker had relevant texts he never bothered to ask for in 16 months of investigation before he charged Sussmann. DeFilippis introduced that text by claiming prosecutors had discovered it by asking — John Durham asked himself, according to Baker — for Jencks material.

That text has no Bates stamp reflecting that it is Jencks material.

There’s something else about that text. It looks nothing like the text that Berkowitz entered describing Baker’s dread as he realized Durham was going to be investigating for two more years. Here’s the text Baker turned over in March, in response to Durham’s request for any communications involving Sussmann, but only communications involving Sussmann.

Here’s the text to Wittes expressing certainty that Durham would investigate him for two more years.

These are both iMessage texts! They look entirely different, though, because one is a screen cap turned over by Baker, and the other was obtained via legal process served on Apple (which is where all the extra metadata comes from).

More interesting still, however, is the Bates stamp on the set of texts involving Wittes. The Bates stamp on that text looks like this:

There’s the red stamp that, I’m guessing, is the stamp associated with a pre-trial proposed exhibit.

There’s the trial exhibit stamp, DX-810.

And then there’s a Bates stamp that does not match any Durham Bates stamp I’ve seen. SCO_######. Underscore, not dash.

Although this is a statement by a witness — the key witness!! — about this very investigation, there’s no Jencks stamp.

Mind you, the government only has to turn over statements about an investigation under Jencks if it is in their possession. So maybe this was never in their possession? If it was, it’d be a Jencks violation and Sussmann could ask to have the entirety of Baker’s testimony thrown out. All of it.

I have no idea where this text string comes from. Perhaps it came from an FBI Inspection Division investigation of all these same people; such material was among the stuff that Durham was permitted to turn over late. Perhaps, as Latham & Watkins did when Durham accused Sussmann of hiding this text, they got a subpoena and obtained it themselves. But it appears, at least, that it didn’t come from Durham.

If that’s right — if, even after discovering that Baker had texts that were absolutely critical to this investigation that he had never turned over, Durham didn’t choose to obtain these texts directly from Apple themselves, or at the very least ask Baker to turn over all texts pertinent to his investigation — there are several implications. First, it’s proof that Durham never ever subjected Baker, the guy who offered to cooperate on day three, to investigative scrutiny for his role in the events from September 19, 2016 that Durham has chosen to criminalize. Nor has Durham tested what might be behind any of Baker’s subsequent inconsistent statements. And when Durham discovered that Baker had had texts that were critical to his investigation almost three years into the investigation, his first response was to attempt to blame Sussmann. When that didn’t work, it appears, Durham didn’t put his prosecution at risk to see what other texts, texts that might be critical to Durham’s investigation but which didn’t involve communications between him and Sussmann, might be in Baker’s iCloud account.

This is brilliant lawyering. But it’s all just a part of Donald Trump’s Hunger Games, revenge theater targeting the people who questioned his complicit ties with Russia. And the wrong people are going to get hurt.

Other Sussmann trial coverage

Scene-Setter for the Sussmann Trial, Part One: The Elements of the Offense

Scene-Setter for the Sussmann Trial, Part Two: The Witnesses

The Founding Fantasy of Durham’s Prosecution of Michael Sussmann: Hillary’s Successful October Surprise

With a Much-Anticipated Fusion GPS Witness, Andrew DeFilippis Bangs the Table

John Durham’s Lies with Metadata

emptywheel’s Continuing Obsession with Sticky Notes, Michael Sussmann Trial Edition

Brittain Shaw’s Privileged Attempt to Misrepresent Eric Lichtblau’s Privilege

The Methodology of Andrew DeFilippis’ Elaborate Plot to Break Judge Cooper’s Rules

Jim Baker’s Tweet and the Recidivist Foreign Influence Cheater

That Clinton Tweet Could Lead To a Mistrial (or Reversal on Appeal)

John Durham Is Prosecuting Michael Sussmann for Sharing a Tip on Now-Sanctioned Alfa Bank

John Durham Is Prosecuting Michael Sussmann for Sharing a Tip on Now-Sanctioned Alfa Bank

Thanks to those who’ve donated to help defray the costs of trial transcripts. Your generosity has funded the expected costs. If you appreciate the kind of coverage no one else is offering, we’re still happy to accept donations for this coverage — which reflects the culmination of eight months work. 

During his cross-examination of Jim Baker, Michael Sussmann’s lawyer Sean Berkowitz introduced the Electronic Communication that opened the investigation pertaining to the Alfa Bank anomaly. He did so, ostensibly, to show that when DeFilippis elicited Jim Baker to explain the predication of investigations, Baker claimed not to remember that an investigation into the Alfa Bank anomaly had been opened, and claimed not to remember that the EC erroneously said the investigation was a referral from DOJ.

Q. And you were aware, though, because the government showed you a document, that a particular file number here was opened up, correct?

A. I don’t — did I see that? I don’t remember seeing that yesterday.

Q. Let’s show — I don’t think they showed it to you yesterday. They showed it to you in one of your preparation exhibits.

A. Okay. Okay.

Baker should have known it because he was shown the Electronic Communication during an interview with Durham, but he had forgotten it on the stand. So this appeared to be yet another attempt to show Baker’s hot-and-cold running memory.

When Berkowitz moved to enter it into evidence, DeFilippis noted it was a government exhibit, suggesting they weren’t hiding it (even though they hadn’t shown it to Baker on the stand). Probably they would have introduced it when Alfa Bank case agent Allison Sands testifies, probably Monday.

But introducing it with Baker gave Sussmann an opportunity to lay out several huge problems with Durham’s case against him and ensure that DeFilippis has to deal with this EC with Sands.

First, there’s this: When the FBI opened an investigation into this anomaly, they considered it an investigation into Alfa Bank.

This was an investigation into Alfa Bank. Not an investigation into Donald Trump.

In the part of the EC that explains why they opened it, they repeat, again, that it’s an investigation into Alfa Bank. But they also opened it because the FBI was still trying to figure out what Trump associate got an advance heads up that the Russians were going to intervene to hurt Hillary. But even in the context of the fact that one of the agents investigating Crossfire Hurricane had been pulled back to Chicago to work on this investigation, the investigation was not into biological human Donald Trump, it was into corporate human Trump Organization.

Based on the information above, FBI Chicago has predicated a Full Counterintelligence investigation into the activities of ALFA BANK, in order to conduct further investigation regarding the extent and nature of the network communications between ALFA BANK and the TRUMP ORGANIZATION. This investigation will attempt to determine the validity of the information that was provided by the third-party entity, and to assess whether or not pose a threat to either the TRUMP ORGANIZATION, or United States national security.

In addition, FBI investigation [redacted] [CROSSFIRE HURRICANE] was predicated based on an allegation that a member of the TRUMP campaign had received a suggestion from the Russian Government, indicating that the Russian government could assist the TRUMP campaign with an anonymous release of information during the campaign, which would be a detriment to the HILLARY CLINTON campaign. Investigation in [redacted] has surfaced additional ties between the TRUMP campaign team and the Russian government.

Investigation of the communications between the Russian ALFA BANK and the TRUMP ORGANIZATION could provide additional insight about the connections between the TRUMP ORGANIZATION and Russia, and help to determine whether those ties pose a threat to United States national security.

This matter is being treated as a Sensitive Investigative Matter based on the fact that the TRUMP ORGANIZATION is affiliated with a current U.S. Presidential candidate. As such, FBI Chicago requests that FBIHQ/NSLB coordinate with the US DEPARTMENT OF JUSTICE to provide all appropriate notifications required by the DIOG.

So it was sensitive because it related to Trump Organization, and only through that corporate human, to the biological human who was a presidential candidate. Even there, the EC at least envisioned, appropriately, that Trump might be a victim of this, as he would be if someone were trying to infiltrate the campaign or his company.

And in fact, Durham’s own evidence supports the predication against Alfa. The script that Durham falsely suggested (he will be disproven on this point later) were the basis for the research in the technical white paper was focused on Alfa Bank.

There is another that includes the anomalous mail server in question, right next to dcleaks — a query that may well have returned data on Roger Stone’s pre-public searches on the domain, and in any case, since this was entered as a government exhibit, should have obliged Durham to turn over details of these Stone searches.

It’s only a request from July 2017 — probably in conjunction with Dan Jones’ attempt to chase down this anomaly — that the searches were called “Trump query jobs,” and even there, one was focused on Alfa Bank.

The FBI viewed this as an investigation into Alfa Bank, and Joffe’s data requests actually reinforce that.

That creates three problems for Durham.

First, on redirect, DeFilippis got his star cyber agent Scott Hellman, to offer up this explanation for why he found the white paper crap when the counterintelligence people saw something more. It’s about the data, his star witness said.

Q. Now the counterintelligence division, when they look at information like this, are they looking at it with an eye towards the same issues or different issues from the cyber division?

A. Um, I think they’d probably be looking at it from the same vantage point, but if you’re not — you don’t have experience looking at technical logs, you may not have the capability of doing a review of those logs. You might rely on somebody else to do it. And perhaps counterintelligence agents are going to be thinking about other investigative questions. So I guess it would probably be a combination of both.

Never mind that the evidence shows that Hellman didn’t look closely at the data, which caused him to make a false claim in his own assessment of it. He should know that this tied in with the investigation into whom, in Trump’s camp, got advance notice that Russia was going to attack Hillary, because he was on an email that his boss, Nate Batty, sent laying out how the guy investigating George Papadopoulos had been called back to Chicago to also look at this.

Curtis has been working (TDY) the election issues and has been called back by CD to work matters related to this white paper. CG had a copy of the white paper I forwarded to you from CD channels, and was inquiring as to whether ECOU 1 had any logs or other data from the referenced server.

Sure, maybe his comment about “other investigative questions” covers Hellman here. But the reason CD looked at this differently is because they were hunting for the Trump associate who got advance notice of the hack-and-leak. Hellman knows that.

Another problem this creates for Durham is that — as laid out here — he accused Michael Sussmann of lying about sharing allegations about “a Presidential candidate.”

As Sussmann noted in a recent filing summarizing conflicting views on jury instructions, Durham’s indictment describes Sussmann’s alleged lie this way:

[O]n or about September 19, 2016, the defendant stated to the General Counsel of the FBI that he was not acting on behalf of any client in conveying particular allegations concerning a Presidential candidate, when in truth, and in fact, and as the defendant knew well, he was acting on behalf of specific clients, namely, Tech Executive-1 and the Clinton Campaign.

Never mind that Durham characterized the allegations as pertaining to “a Presidential candidate,” which presents other problems for Durham, he has also accused Sussmann of lying about having two clients.

Mr. Sussmann proposes modifying the last sentence as follows, as indicated by underlining: Specifically, the Indictment alleges that, on or about September 19, 2016, Mr. Sussmann, did willfully and knowingly make a materially false, fictitious, and fraudulent statement or representation in a matter before the FBI, in violation of 18 U.S.C. § 1001(a)(2), namely, that Mr. Sussmann stated to the General Counsel of the FBI that he was not acting on behalf of any client in conveying particular allegations concerning Donald Trump, when, in fact, he was acting on behalf of specific clients, namely, Rodney Joffe and the Clinton Campaign.5 The government objects to the defense’s proposed modification since it will lead to confusion regarding charging in the conjunctive but only needing to prove in the disjunctive.

4 Authority: Indictment.

5 Authority: Indictment.

Durham’s language about “conjunctive” versus “disjunctive” will likely be the matter for heated debate next week. Particularly in the wake of Cooper’s decision that the materials from the researchers won’t come in as evidence, Durham seems to be preparing to prove only that Sussmann lied about representing Hillary, and not about Joffe. Sussmann, meanwhile, seems to believe that Durham will have to prove that his alleged lie was intended to hide both alleged clients.

At least the people who opened this investigation didn’t see these allegations to pertain to Donald Trump, biological human They viewed them, first and foremost, as an allegation about Alfa Bank, and secondarily as an allegation about corporate human, Trump Organization.

This distinction will show up over and over again in the next week.

Finally, this goes to materiality. There was no way FBI was going to take allegations that might explain who got advance notice of the hack-and-leak attack on Hillary and not see if it answered that question. Durham wants to complain that this got opened as a Full Investigation when the allegations weren’t that strong. They weren’t! But the reason why it got opened as a Full Investigation is because Crossfire Hurricane had already been opened as a Full Investigation looking for the unknown subject who had gotten a heads up on Russia’s attack plans,

Sussmann has both Jonathan Moffa (who is included on this opening EC) and Michael Horowitz slotted as witnesses next week. He explicitly said that Moffa will address materiality and, depending on how things go, Horowitz’s determination that CH was properly predicated as a Full Investigation might become an issue as well.

In other words, Durham is going to have to talk about Crossfire Hurricane.

And from there, things could get worse, because we know Durham didn’t provide discovery to allow Sussmann to fully argue these issues.

John Durham is prosecuting Michael Sussmann because he brought allegations to the FBI about a bank that has now been sanctioned as part of an effort to halt Russia’s efforts to dismantle democracies in Ukraine and elsewhere, including the United States. Yet for months, he has claimed that such a tip did grave damage to Donald Trump.

Other Sussmann trial coverage

Scene-Setter for the Sussmann Trial, Part One: The Elements of the Offense

Scene-Setter for the Sussmann Trial, Part Two: The Witnesses

The Founding Fantasy of Durham’s Prosecution of Michael Sussmann: Hillary’s Successful October Surprise

With a Much-Anticipated Fusion GPS Witness, Andrew DeFilippis Bangs the Table

John Durham’s Lies with Metadata

emptywheel’s Continuing Obsession with Sticky Notes, Michael Sussmann Trial Edition

Brittain Shaw’s Privileged Attempt to Misrepresent Eric Lichtblau’s Privilege

The Methodology of Andrew DeFilippis’ Elaborate Plot to Break Judge Cooper’s Rules

Jim Baker’s Tweet and the Recidivist Foreign Influence Cheater

That Clinton Tweet Could Lead To a Mistrial (or Reversal on Appeal)

Thirty Months after Disputing Michael Horowitz, Durham’s Team Suggests They’ve Never Looked at the Evidence

In Michael Sussmann’s filing explaining that he couldn’t include highly exculpatory notes — written by Tashina GausharMary McCord, and Scott Schools — from a March 6, 2017 meeting in his motion in limine because John Durham had provided them to him too late to include, Sussmann claimed that the files were not among those for which Durham had gotten permission to provide late.

The Special Counsel neglects to mention that these handwritten notes were buried in nearly 22,000 pages of discovery that the Special Counsel produced approximately two weeks before motions in limine were due. Specifically, the Special Counsel produced the March 2017 Notes as part of a March 18, 2022 production. The Special Counsel included the March 2017 Notes in a sub-folder generically labeled “FBI declassified” and similarly labeled them only as “FBI/DOJ Declassified Documents” in his cover letter. See Letter from J. Durham to M. Bosworth and S. Berkowitz (Mar. 18, 2022). And although the Special Counsel indicated on a phone call of March 18, 2022 that some of the 22,000 pages were documents that made references to “client,” he did not specifically identify the March 2017 Notes or otherwise call to attention to this powerful exculpatory material in the way that Brady and its progeny requires.

[snip]

[T]he Special Counsel has also failed to explain why this powerful Brady material was produced years into their investigation, six months after Mr. Sussmann was indicted, and only weeks before trial.3

Sussmann was wrong.

When Durham got an extension to his discovery deadlines, he got special permission to turn over (among other things) materials from DOJ IG at a later date.

DOJ Office of Inspector General Materials. On October 7, 2021, at the initiative of the Special Counsel’s Office, the prosecution team met with the DOJ Inspector General and other OIG personnel to discuss discoverable materials that may be in the OIG’s possession. The Special Counsel’s office subsequently submitted a formal written discovery request to the OIG on October 13, 2021, which requested, among other things, all documents, records, and information in the OIG’s possession regarding the defendant and/or the Russian Bank-1 allegations.

[I]n January 2022, the OIG informed the Special Counsel’s Office for the first time that it would be extremely burdensome, if not impossible, for the OIG to apply the search terms contained in the prosecution team’s October 13, 2021 discovery request to certain of the OIG’s holdings – namely, emails and other documents collected as part of the OIG’s investigation. The OIG therefore requested that the Special Counsel’s Office assist in searching these materials. The Government is attempting to resolve this technical issue as quickly as possible and will keep the defense (and the Court as appropriate) updated regarding its status.

In the pre-trial hearing on Monday, Andrew DeFilippis explained that the files came from DOJ IG (and therefore were subject to that later discovery deadline).

We located those statements in the notes in February or early March, when we received a huge production from the DOJ Inspector General’s office. As soon as we noticed that in the notes, we put them on very rapid declassification at the FBI and turned them over to the defense about a week later.

DeFilippis offered an unconvincing excuse for burying belatedly provided Brady material two layers deep in file folders without specific notice. He described the decision to flag the materials as an internal Government decision, which is an odd description unless Michael Horowitz’s office — or those involved in declassifying the records — forced the decision:

We then, speaking internally as the Government, decided it would be important to flag those notes for the defense. And so the day that we produced them, we got on a call. We wanted to be in a position to flag it in a way that we didn’t just put it in the end of a paragraph of a discovery letter. We flagged for the defense that we were going to be producing notes and that that included notes in which the word “client” appeared. And we told them that we thought that would be relevant to them.

[snip]

Let me just say that there was absolutely no effort by the Government to delay here or to hide these in a large production. That is precisely why we got on a phone call and flagged it for the defense.

It’s almost like DeFilippis was hoping this would get no notice.

I can understand why. I’ve described how astounding it was that Durham did not go looking for evidence from DOJ IG until — by Durham’s own telling — October 7, more than two weeks after indicting Sussmann (and likely not long enough before indicting Igor Danchenko to learn key details that undermine at least one charge against him).

But this late provision of exculpatory evidence means one of two things:

  • Durham has always had the files, but did such a poor job of looking for it in discovery he didn’t find it in his own files even as he started hunting Michael Sussmann
  • Durham never had these files

The latter is the more likely possibility, which, as a threshold matter, would mean Durham never reviewed key files that DOJ IG had used in high level witness interviews before disputing Michael Horowitz’ conclusion that the investigation was predicated appropriately. Durham is, literally, only reviewing key files three years into his investigation.

Along the way, he’s learning that conspiracy theories he has been chasing for months and years are false.

The revelation that Durham is discovering exculpatory information in DOJ IG’s files is as important to the efforts to blow up the Mike Flynn prosecution two years ago as it is to the Sussmann prosecution. That’s because the Jeffrey Jensen review of the Flynn prosecution and the Durham investigation were believed to be closely aligned. Indeed, I have shown that the handwritten notes from the FBI that Durham will rely on at trial show the same markers of unreliability that documents that were altered in the Flynn case had.

As I explained in this post, Jensen’s documents started with the Bates stamp used throughout the Flynn prosecution.

But after a period of time, they used a Bates stamp with a different typeface, albeit continuing the same series, suggesting someone else was doing the document sharing.

But if they’re drawing on the same source documents, Durham should at least know notes of that meeting exists. Jeffrey Jensen received and relied on at least one set of notes — Jim Crowell’s notes — from the March 6, 2017 meeting. Those notes, along with Tashina Gauhar’s notes of an earlier briefing and all those that got altered, also have the fat typeface.

The Tashina Gauhar notes turned over to Sussmann (and the others turned over) not only are based off a scan of her original notes and have no post-it notes on them, but they bear both Durham’s Bates stamp (SCO-074095), but also one that likely comes from DOJ IG (SCO-FBIPROD_021529).

All of which seems to suggest there was the same cherry-picking that went into the Durham investigation and the Jensen “review.” Neither reviewed — neither could have!! — what really happened. They reviewed selected records and then (in the Jensen review) altered those records to make false claims that the former President used in a debate attack.

I’ll come back to the issue of what appears in the notes Sussmann released that conflicts with the Flynn releases.

But I’m also interested that Durham is stalling on providing other notes from the meeting.

2 The defense has requested that the Special Counsel search for any additional records that may shed further light on the meeting and certain of those requests remain outstanding. To date, the Special Counsel has represented that the only additional notes from attendees at the meeting that he has identified do not reference whether or not Mr. Sussmann was acting on behalf of a client. The absence in those notes of any reference to whether Mr. Sussmann was acting on behalf of a client also raises questions regarding materiality of the charged conduct: if the on behalf of information were truly material to the FBI’s investigation, presumably all note takers would have written it down. [my emphasis]

Durham can’t be withholding notes because they don’t mention Sussmann having a client. That’s because Scott Schools’ notes mention that the Alfa Bank tip came from an attorney, but don’t mention that he was there on behalf of a client (Schools’ notes may have been included because they are the only ones of the three provided that attributed this discussion to Andy McCabe).

There are at least two other sets of notes from this meeting that are known or presumed to exist:

And there were at least three other people present at the meeting known to take notes:

  • Bill Priestap
  • Andy McCabe
  • Dana Boente

Importantly, in Durham’s objection to admitting these notes as evidence, he makes it clear that James Baker (inexcusably as a lawyer) did not take notes of this or any other meeting, but he does not say whether Priestap (or Trisha Anderson) took notes.

Moreover, the DOJ personnel who took the notes that the defendant may seek to offer were not present for the defendant’s 2016 meeting with the FBI General Counsel. And while the FBI General Counsel was present for the March 6, 2017 meeting, the Government has not located any notes that he took there.

If Priestap took notes, one copy should be in Durham’s possession, in the notebook of Priestap’s notes already on Durham’s exhibit list.

DOJ has been trying to prevent anyone from looking at Andy McCabe’s notes for some time.

But one thing that turning over the DOJ IG retained notes for the others will show is whether alterations in the Strzok, Priestap, and McCabe notes were made.

It’ll also make it easy to test why Jensen’s review redacted a date and added one — albeit the correct one — in the Jim Crowell notes.

 

That is, I wonder if Durhams’ reluctance to turn over those materials stems not from any facts about his own investigation, but from an awareness of the cherry-picking — and possibly worse — that having turned over the past one reveals.

Three posts on the altered documents from the Mike Flynn case

The Jeffrey Jensen “Investigation:” Post-It Notes and Other Irregularities (September 26, 2020)

Shorter DOJ: We Made Shit Up … Please Free Mike Flynn (October 27, 2020)

John Durham Has Unaltered Copies of the Documents that Got Altered in the Flynn Docket (December 3, 2020)

The Witness List for the Michael Sussmann Trial

According to the transcript for the pre-trial hearing yesterday, here is the status of the witness lists. The most interesting one, to me, is Michael Horowitz, who presumably will testify that Rodney Joffe shared a worthwhile tip on the same terms that Sussmann attempted to do with James Baker.

Prosecution:

  • Trisha Anderson: Yes, for 30 minutes
  • Apple custodian: stipulation
  • Manos Antonakakis: “Possibly yes” for less than an hour of testimony
  • James Baker: Yes, for several hours
  • Special Agent Batty: Unclear
  • Mr. Chadason: Under a half hour
  • David Dagon: Likely no (possibly on rebuttal)
  • Mr. DeJong (who pulled data for Joffe): Probably yes, for half hour
  • Marc Elias: Possibly yes, for 45 minutes
  • Robby Mook: Yes, for 30 to 45 minutes
  • Special Agent Gaynor (on the course of the investigation): Yes, 30 to 45 minutes
  • Mr.Grasso (Special Agent whom Joffe provided a piece of the Alfa Bank allegations to): Yes, a half hour
  • Special Agent Heide (one of the case agents on the investigation): Yes, a couple of hours
  • Special Agent Hellman (who first analyzed the allegations): About half an hour
  • Agent Martin (expert): Under half an hour
  • Steven M: Unlikely to call in case in chief
  • Mr. Novick (CEO of one of Joffe’s companies): 45 minutes to an hour
  • Kevin P (CIA meeting): 30 minutes
  • Bill Prestap: 30 minutes
  • Ms. Sands (one of case agents): a couple of hours
  • Special Agent Schaaf: Unlikely on case in chief
  • Laura Seago: Perhaps an hour
  • Mr. McMahon (former DNC employe, had lunch immediately before Sussmann’s meeting with Baker): under 15 minutes
  • Perkins Coie billing department
  • Debbie Fine (Clinton lawyer who participated in daily Fusion GPS meetings): An hour or less
  • Not looking to put one of their own agents on the stand

Defense (may change in light of Prosecution decisions):

  • Steven M: May call
  • Marc Elias
  • Ben Gessford (LYNC messages involving Clinton hacks): 30 minutes
  • Marc Giardina (who wanted to open investigation in response to Slate article)
  • Tasha Gauhar: Under 30 minutes
  • Not Shawn Henry
  • Michael Horowitz: Referrals to law enforcement
  • Eric Lichtblau: An hour or so (concern about limits of privilege)
  • Mary McCord
  • Jonathan Moffa (as to Sussmann’s credibility)
  • Scott Schools (possible stip): 15 minutes
  • Character witnesses

Update: I had accidentally left Priestap out.

Update: I also accidentally left out McCord and Moffa.