John Durham’s Lies with Metadata

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I’d like to thank John Durham for showing us back in April how he was going to mislead the jury with metadata.

He appears to have done just that, yesterday, with several exhibits entered into evidence. And I fear that unless Durham’s lie is corrected, he will gravely mislead the jury.

As I pointed out in April, because of the email system at Fusion GPS, the first email in any thread they produced to Durham renders as UTC; the rest render as ET. So, for the emails on which one could check, the first email in every thread they released in April was four hours later than the time the email was actually sent.

Durham has revealed that his exhibit has irregularities in the emails pertaining to a key issue: whether Fusion sent out a link to April Lorenzen’s i2p site before Mark Hosenball sent it to them.

This shows up in the timestamps. In the exhibit, the lead email for each appearance appears to be set to UTC, whereas the sent emails included in any thread appear to be set to ET.

For example, in this screencap, the time shown for Mark Hosenball’s response to Peter Fritsch (the pink rectangle) is 1:35 PM, which is presumably Eastern Time.

In this screencap, the very same response appears to be sent at 5:36PM, which is presumably UTC.

Both instances of Peter Fritsch’s email (the green rectangle), “that memo is OTR–tho all open source,” show at 1:33PM, again, Eastern Time.

To be clear: this irregularity likely stems from Fusion’s email system, not DOJ’s. It appears that the email being provided itself is rendered in UTC, while all the underlying emails are rendered in the actual received time.

That means if you show someone only the first email in a thread, you will be misrepresenting what time that email was sent.

That’s what Durham did yesterday with a bunch of Fusion-produced emails he submitted during Laura Seago’s testimony, including (but not limited to):

Over and over, Andrew DeFilippis showed these to Laura Seago and asked her to state what date and time the emails were.

MR. DeFILIPPIS: Okay. And, Your Honor, if there’s no objection from the defense, we’ll offer Government’s Exhibit 612.

MR. BERKOWITZ: No objection.

THE COURT: So moved.

Q. Okay. So what is the date and time of this email?

A. October 5, 2016, at 5:23 p.m.

Q. And the “Subject” line?

A. “Re: so is this safe to look at” — excuse me — “so this is safe to look at.”

While these emails appear to have been produced to Durham at a later time (their Bates numbers from Fusion are about 3000 pages off some of the earlier ones), they’re from the same series and produced by the same custodian, so we should assume that the same anomaly that existed on the earlier ones exists here.

Seago hasn’t seen these emails for years and — because they were treated as privileged — she can only see the first email in a thread, even if there are replies in that thread (and there clearly are, in some of them). She had no way of knowing if she was looking at UTC time!

But Andrew DeFilippis surely does. Indeed, he’s prepping an attack on Sussmann for not understanding that Durham turned over Lync files from the FBI without making clear they, also, get produced in UTC. So he’s aware of which exhibits he has sent to Sussmann without clarifying the correct time. Yet over and over again, DeFilippis asked Seago what time these emails were sent, even though he likely knows (especially since these are files that are no longer privileged, so he has seen those that are threads) that he was deceiving her.

And the timing of these Fusion emails — and possibly some earlier ones exchanged with Rodney Joffe — almost certainly matter.

As I showed in my earlier post, because Durham didn’t fix the anomaly in these emails, they have created the false impression that an October 5 email from Mark Hosenball that shared public links to Tea Leaves’ files came in after Fusion sent it out to Eric Lichtblau. They appear to be prepping another deceit, this one conflating a link that Hosenball sent with one Seago found on Reddit.

Assuming the emails released yesterday share this same anomaly, here’s how the timeline would work out. I’ve bolded the ones that would be grossly misleading taken out of order.

5:23PM (could be 1:23?): Seago to Fritsch, Is this safe?

1:31PM: [not included] Fritsch to Hosenball email with Alfa Group overview

1:32PM: Fritsch sends Isikoff the September 1, 2016 Alfa Group overview (full report included in unsealed exhibit)

1:33PM [not included] Fritsch to Hosenball, “that memo is OTR — tho all open source”

1:35/1:36PM: Hosenball replies, “yep got it, but is that from you all or from the outside computer experts?”

1:37PM: Fritsch responds,

the DNS stuff? not us at all

outside computer experts

we did put up an alfa memo unrelated to all this

1:38PM: [not included] Hosenball to Fritsch:

is the alfa attachment you just sent me experts or yours ? also is there additional data posted by the experts ? all I have found is the summary I sent you and a chart… [my emphasis]

1:41PM: [not included] Fritsch to Hosenball:

alfa was something we did unrelated to this. i sent you what we have BUT it gives you a tutanota address to leave questions.  1. Leave questions at: [email protected]

1:41PM: [not included] Hosenball to Fritsch:

yes I have emailed tuta and they have responded but haven’t sent me any new links yet. but I am pressing. but have you downloaded more data from them ?

1:43PM: [not included] Fritsch to Hosenball, “no”

1:44PM: Fritsch to Lichtblau:

fyi found this published on web … and downloaded it. super interesting in context of our discussions

[mediafire link] [my emphasis]

2:23PM: [not included] Lichtblau to Fritsch, “thanks. where did this come from?”

2:27PM: [not included] Hosenball to Fritsch:

tuta sent me this guidance

[snip]

Since I am technically hopeless I have asked our techie person to try to get into this. But here is the raw info in case you get there first. Chrs mh

2:32PM: Fritsch to Lichtblau:

no idea. our tech maven says it was first posted via reddit. i see it has a tutanota contact — so someone anonymous and encrypted. so it’s either someone real who has real info or one of donald’s 400 pounders. the de vos stuff looks rank to me … weird

6:33PM (likely 2:33PM): Fwd Alfa Fritsch to Seago

6:57PM (like 2:57PM): Re alfa Seago to Fritsch

7:02PM (likely 3:02): Re alfa Seago to Fritsch

3:27PM: [not included] Fritsch to Hosenball cc Simpson: “All same stuff”

3:58PM: [not included] Hosenball to Fritsch, asking, “so the trumpies just sent me the explanation below; how do I get behind it?”

4:28PM: [not included] Fritsch to Hosenball, “not easily, alas”

4:32PM: Fritsch to Hosenball, cc Simpson:

Though first step is to send that explanation to the source who posted this stuff. I understand the trump explanations can be refuted.

 

 

What Durham will completely and utterly misrepresent if it doesn’t clarify this anomaly (and this is the second time they have declined to) is that Seago and Mark Hosenball both accessed different packages of the Tea Leaves materials, one of which then got sent out to Lichtblau. Between 2:33 and 2:57, Seago appears to have compared the files and told Fritsch, who then told Hosenball, that the packages were “all the same stuff.”

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

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Andrew DeFilippis has done several arguably unethical things in an attempt to win the Michael Sussmann trial.

He repeatedly attempted to get Marc Elias to repeat something Elias shouldn’t have said in the first place: that the only way to understand whether Sussmann had gone to the FBI to benefit the Hillary campaign would be to ask him (in response to which stunt Sussmann is asking for a mistrial).

DeFilippis also set up a ploy to get a non-expert to offer opinions that only an expert should offer (more on that later).

At times (such as during Neustar employee Steve DeJong’s testimony), DeFilippis seemed more focused on eliciting testimony that might help him make a case against Rodney Joffe than obtain a guilty verdict against Sussmann.

And in direct examination yesterday of Fusion’s Laura Seago (my reading of the transcript is here), he did both, violating Judge Cooper’s orders in an attempt to set up his ongoing investigation in a way that did nothing to help him win the trial against Sussmann.

For all the anticipation for it, Seago’s testimony was not all that helpful to Durham’s team. She described having about as much awareness of which Democratic entity Fusion’s ultimately client was as the FBI did on Carter Page’s FISA applications. She indicated that the Alfa Bank allegations were just one of a whole bunch of possible ties to Russia that Trump had. She described how, to the extent Fusion could assess the Alfa Bank allegations, they found them credible. In discussing Fusion’s pitch to Franklin Foer on the Alfa Bank story, she described the other major data scientists who had backed the Alfa Bank allegations, identities that Durham has always suppressed because they kill his conspiracy theory.

Q. And what was discussed? What did you say, and what did they say?

A. I really don’t remember the specifics six years on. We talked about the allegations between the Trump organization and Alfa-Bank. We talked about highly credible computer scientists who seemed to think that these allegations were credible.

Q. And by that, are you referring to Mr. Joffe or somebody else?

A. There were others that ended up being cited in Mr. Foer’s article. He cited L. Jean Camp and Paul Vixie, who invented the DNS system.

During cross-examination by Sussmann lawyer Sean Berkowitz, Seago made it clear she didn’t tell Foer about the FBI investigation into these matters.

Q. And with respect to your meeting with Mr. Foer, did you tell Mr. Foer that the FBI was investigating these allegations?

A. No. I had no knowledge of that investigation.

Q. So before your meeting with Franklin Foer, did you have any information that the FBI was involved in any way?

A. No.

Q. All right. Did Mr. Fritsch or anyone else at the meeting say, “The FBI is looking into this”?

A. Not that I can remember.

Also on cross, Seago described that her impression from having dealt with Joffe is that he really did believe the allegations too.

Q. And your impression of Mr. Joffe that was made at that meeting was that he was — he seemed reliable?

A. Yes.

Q. And he seemed well-placed to have knowledge and information about the server issues?

A. Yes, he did.

Q. And you understood that Mr. Joffe supported the suggestion that there was at least potential contact between Trump servers and Alfa-Bank servers?

A. Yes, I did.

MR. DeFILIPPIS: Objection, Your Honor.

THE COURT: Overruled.

Q. You answered the question?

A. Yes, I did understand that.

But it was in DeFilippis’ treatment of emails that Judge Cooper granted Durham’s team access to, but did not permit them to use at trial, where he got particularly obnoxious. Remember: while Durham’s team maintained from the start that the privilege claims behind these emails were not proper (because they were largely about communicating with the press, not about providing research assistance to the Democrats), the reason they didn’t get access to them was their own incompetence. They didn’t ask for a privilege review until right before trial.

DeFilippis has no one to blame but himself, but in true right wing fashion, he’s lashing out.

Perhaps in an attempt to make some drama out of documents that Cooper described “not very revelatory,” DeFilippis walked Seago through all the ones she was privy to, including those with Joffe that Cooper ruled were privileged.

Generally, such exchanges went something like this:

Q. Ms. Seago, does this appear to be part of the same chain as the prior email exchanges?

A. It has the same “Subject” line and says “Re,” so that is what it appears to be. I have no independent recollection of this email.

Q. And what, if any, connection in your mind did the Alfa Bank issue have to New York? I ask because “New York” is in the “Subject” line. Any sense?

A. I don’t know.

Q. And the attachment on this email, any sense of what that was?

A. I don’t know.

Note: there’s no reason to believe Seago has reviewed these emails recently.

That was all setup for DeFilippis’ last set of questions:

Q. Did you ever receive instructions that you couldn’t disclose your affiliation with Fusion GPS to the media?

A. No. I don’t remember hiding that affiliation from the media ever.

Q. Do you ever remember hiding or considering hiding that affiliation from anyone?

A. No.

Q. How certain are you of that?

A. I’m quite certain. You know, we don’t go around advertising who we are and where we work, but I certainly don’t lie to people, and I don’t lie to the press about where I work.

Q. Okay. So you’re fairly certain you never sought to conceal that?

A. Not that I can recall.

Immediately after Seago left the stand, DeFilippis asked for a bench conference (the DC Court adopted phones for the purpose during COVID and all the judges love them, so they’re keeping them). Seago’s answer to the question, DeFilippis noted, was inconsistent with the content of the email, which referenced Tea Leaves.

MR. DeFILIPPIS: Your Honor, could we speak to you on the phone?

THE COURT: Excuse me?

MR. DeFILIPPIS: Could we speak to you on the phone?

THE COURT: Yes. (The following is a bench conference outside the hearing of the jury)

MR. DeFILIPPIS: Your Honor, can you hear me now?

THE COURT: Yes.

MR. DeFILIPPIS: So we have an issue with regard to Ms. Seago’s testimony. The government followed carefully Your Honor’s order with regard to the Fusion emails that were determined not to be privileged but that the government had moved on.

As Your Honor may recall, there was an email in there in which Ms. Seago talks very explicitly about seeking to approach someone associated with the Alfa-Bank matter and concealing her affiliation with Fusion in the email. When we asked her broadly whether she ever did that, she definitively said no when I, you know, revisited it with her. So it raises the prospect that she may be giving false testimony.

And so we were — you know, I considered trying to refresh her with that, but I didn’t understand that to be in line with Your Honor’s ruling. So the government is — we’d like to consider whether we should be — we’d like Your Honor to consider whether we should be able to at least recall her and refresh her with that document?

THE COURT: I don’t remember that question, but the subject matter was concealing Fusion or her identities in conversations with the press. If I recall correctly, that email related to “tea leaves,” correct?

MR. DeFILIPPIS: Your Honor, I thought I had phrased it more broadly. We can go to the transcript.

THE COURT: Mr. Berkowitz?

MR. BERKOWITZ: Judge, I’m not familiar with the specifics. I’m happy to take a look at the transcript. I certainly got the impression he was asking if she had ever concealed Fusion as an entity from the press. That was what was asked in her deposition, and she answered the same way in her deposition. One thing, just to note, some of our paralegals can hear Mr. DeFilippis talking, so I suggest, just as a reminder, to keep your voices down.

MR. DeFILIPPIS: Sure, sure.

THE COURT: All right. Let me look at the transcript.

(Pause)

THE COURT: Can you hear me?

MR. DeFILIPPIS: Yes, Your Honor.

THE COURT: All right. Looking at the transcript, I think you did ask a more open-ended question. She said, “I don’t remember hiding that affiliation from the media ever.” And then you followed up, “Do you ever remember hiding or considering hiding that affiliation from anyone?” And she answered, “No.” I would — so I think that she — I think the email is inconsistent with her answer, Mr. Berkowitz. But the question now is whether they can refresh her with that email notwithstanding the Court’s order. And now she’s gone.

How are we going to do that even if we were to allow it? Is it worth the candle of calling her back?

MR. DeFILIPPIS: Your Honor, I understand she’s still in the building.

MR. BERKOWITZ: Your Honor, is this email privileged?

MR. DeFILIPPIS: This was one of the emails that was determined not to be privileged by Your Honor.

MR. BERKOWITZ: So why didn’t they impeach her with it when they had the chance?

MR. DeFILIPPIS: Your Honor, the reason is because I didn’t want to violate Your Honor’s order that we couldn’t use those affirmatively.

THE COURT: Well, I think the time to have asked the Court whether using the document to refresh was consistent with the order was before she was tendered and dismissed. So I think you waived your opportunity. All right? So we’re going to move on.

Frankly, I think using the formerly privileged emails to impeach was beyond the scope of Cooper’s order, too. This was an affirmative use of the email!

But this was nothing more than a perjury trap, and with it an attempt to get the content of the email DeFilippis had been prohibited from using before the jury. Cooper didn’t allow it in, though he shouldn’t have allowed that line of questions in either (had such questions been permitted, then Seago should have been permitted to refresh her own memory of them).

Probably, DeFilippis will consider charging her with perjury over this. I think the fact that both Judge Cooper and Berkowitz had the impression that the question pertained solely to outreach to the press, Seago’s reiteration that, “I don’t lie to the press about where I work,” reinforcing that understanding, plus her last minute caveat, “Not that I can recall,” would make such a case as flimsy as this one. Probably, DeFilippis will use this exchange as part of his bid to get access to some subset of the 1,500 other not very revelatory emails that Democrats have claimed privilege over.

But this was a stunt. It wasn’t about getting, or sharing, the truth with the jury (and any scenario in which I can imagine Seago trying to hide her identity with Tea Leaves would suggest a more distant relationship than even I imagined Fusion had, though I would love to know what it was).

When a prosecutor engages in as many stunts as DeFilippis has, it’s a confession he knows the facts are not on his side.

Like the January 6 Investigation, the Mueller Investigation Was Boosted by Congressional Investigations

Midway through an article on which Glenn Thrush — who as far as I recall never covered the Russian investigation and has not yet covered the January 6 investigation — has the lead byline, the NYT claims that it is unusual for a congressional committee to receive testimony before a grand jury investigation does.

The Justice Department has asked the House committee investigating the Jan. 6 attack for transcripts of interviews it is conducting behind closed doors, including some with associates of former President Donald J. Trump, according to people with knowledge of the situation.

The move is further evidence of the wide-ranging nature of the department’s criminal inquiry into the events leading up to the assault on the Capitol and the role played by Mr. Trump and his allies as they sought to keep him in office after his defeat in the 2020 election.

[snip]

The Justice Department’s request for transcripts underscores how much ground the House committee has covered, and the unusual nature of a situation where a well-staffed congressional investigation has obtained testimony from key witnesses before a grand jury investigation. [my emphasis]

That’s simply false. This is precisely what happened with the Mueller investigation, and there’s good reason to believe that DOJ made a decision to facilitate doing the same back in July, in part to avoid some evidentiary challenges that Mueller had difficulties with, most notably Executive Privilege challenges.

First, let’s look at how Mueller used the two Congressional investigations.

At the start, he asked witnesses to provide him the same materials they were providing to Congress. I believe that in numerous cases, the process of complying with subpoenas led witnesses to believe such subpoenas were the only way Mueller was obtaining information. Trump Organization, especially, withheld a number of documents from Mueller and Congress, including direct contacts with Russian officials and a Steve Bannon email referencing Russian involvement in the election. By obtaining a warrant for Trump Transition materials held by GSA and the Trump Organization emails of Michael Cohen hosted by Microsoft, Mueller got records the subjects of the investigation were otherwise hiding. Steve Bannon, too, falsely told Mueller he didn’t use his personal accounts for campaign business, only to discover Mueller had obtained those records by the time of his October 2018 interview. Surprising witnesses with documents they had been hiding appears to have been one of the ways Mueller slowly coaxed Bannon and Cohen closer to the truth.

We should assume for key figures in the vicinity of Ali Alexander and John Eastman, the same is happening with the January 6 investigation: the very people who’ve been squealing about complying with subpoenas or call records served on their providers are likely ones DOJ obtained covert warrants for.

Then there are the prosecutions that arose entirely out of Congressional interviews. There were three Mueller prosecutions that arose out of Committee investigations.

Perhaps the most interesting was that of Sam Patten — whose interview materials are here. He had an interview with SSCI on January 5, 2018, where he appears to have lied about using a straw donor to buy Inauguration tickets for Konstantin Kilimnik. By March 20, the FBI attempted their first interview of Patten, after which Patten deleted some emails about Cambridge Analytica. And when Mueller did interview Patten on May 22, they already had the makings of a cooperation deal. After getting Patten to admit to the straw purchase and also to violating FARA — the latter of which he would plead guilty months later, on August 31 — Patten then provided a ton of information about how Kilimnik worked and what he had shared with Patten about his role in the 2016 operation, much of which still remained sealed as part of an ongoing investigation in August 2021. Patten had two more interviews in May then appeared before the grand jury, at which he shared more information about how Kilimnik was trying to monitor the investigation. He had two more interviews before pleading guilty, then at least two more after that.

Not only did Patten share information that likely served as part of a baseline for an understanding about Russia’s use of Ukraine to interfere in US politics and provided investigators with an understanding of what the mirror image to Paul Manafort looked like, but this remained secret from much of the public for three months.

It’s less clear precisely when SSCI shared Cohen’s lies with Mueller. But in the same period, both Mueller and SDNY were developing parallel investigations of him. But by the time Cohen pled guilty in SDNY (also in August 2018), Mueller had the evidence to spend almost three months obtaining information from Cohen as well before he entered into a separate plea agreement with Mueller in which he admitted to the secret communications with the Kremlin that he and Trump lied to hide.

Meanwhile, HPSCI’s much more hapless investigation proved a way to get a limited hangout prosecution of Roger Stone. By May 2018, when Mueller developed evidence showing not just ways that Stone was obstructing his own investigation but also how Stone attempted to craft lies to tell to the Committee — coordinated with Jerome Corsi and reliant on threats to Randy Credico — it provided a way to prosecute Stone while protecting Mueller’s ongoing investigation into whether Stone conspired with Russia.

And by all public appearances at the time, it appeared that Congress was acting while Mueller was not. But that was false (and is probably false now). The entire time during which SSCI and HPSCI were taking steps with Cohen and Stone that would late become really useful to the criminal investigation, Mueller was taking active, albeit covert, steps in his own investigations of the two men (whether he was investigating Patten personally or just Kilimnik is uncertain). Mueller obtained his first warrants against Cohen and Stone in July and August, respectively. But no one knew that until the following spring. That is, Cohen and Stone and everyone else focused on Congress while Mueller got to investigate covertly for another nine months.

We should assume the same kind of thing is happening here. All the more so given the really delicate privilege issues raised by this investigation, including Executive, Attorney-Client, and Speech and Debate. When all is said and done, I believe we will learn that Merrick Garland set things up in July such that the January 6 Committee could go pursue Trump documents at the Archives as a co-equal branch of government bolstered by Biden waivers that don’t require any visibility into DOJ’s investigation. Privilege reviews covering Rudy Giuliani, Sidney Powell, and John Eastman’s communications are also being done. That is, this time around, DOJ seems to have solved a problem that Mueller struggled with. And they did so with the unsolicited help of the January 6 Committee.

Even those of us who’ve been covering DOJ’s January 6 prosecution day-to-day (unlike Thrush) have no way of saying what DOJ has been doing covertly in the last year — though it is public that they’ve been investigating Alex Jones, the purported new thrust of this investigation, since August.

What we know from recent history, however, is that DOJ’s use of Congress’ work in no way suggests DOJ hasn’t been doing its own.

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

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.

I’m still waiting on the second transcript from the Michael Sussmann trial, after which point I’ll lay out what Andrew DeFilippis already did to give Sussmann cause for appeal, if he were to lose.

Until then, I want to share the unbelievably crazypants belief that Durham’s prosecutors are attempting to sell to a jury. AUSA Brittain Shaw laid out the framework Durham’s team will use this way:

So what will the evidence show? The evidence will show that defendant’s lie was all part of a bigger plan, a plan that the defendant carried out in concert with two clients, the Hillary Clinton Campaign and Internet executive Rodney Joffe. It was a plan to create an October surprise on the eve of the presidential election, a plan that used and manipulated the FBI, a plan that the defendant hoped would trigger negative news stories and cause an FBI investigation, a plan that largely succeeded.

How did the defendant execute this plan? Through his two clients.

First, the Clinton Campaign. You’re going to hear that in the summer of 2016, as the presidential election was heating up, the defendant was working at a major D.C. law firm which was acting as legal counsel for the Clinton Campaign. You’re also going to find as part of — hear that as part of their campaign efforts they were hired and were paying an investigative firm called Fusion GPS that was hired to do what’s called opposition research.That’s where the defendant’s plan took shape, and the evidence will show that the plan had three parts: a look, a leak, and a lie.

[claims about Fusion GPS and Rodney Joffe’s efforts, the latter of which, especially, are badly wrong]

First the look. The evidence will show that as Sussmann and Joffe met and coordinated with representatives of the Clinton Campaign and Fusion GPS, they looked for more data. You will hear that Joffe instructed people at his companies to scour Internet traffic for any derogatory information they could find about Trump or his associates’ online Internet activities, including potential ties to Alfa-Bank or to Russia. And you will see that Fusion GPS did the same using their access to other information.

Second, the leak. You will hear from the evidence that the defendant and Joffe then leaked the Alfa-Bank allegations to a reporter at the New York Times with the hope and expectation that he would run a story about it.

Third, the lie. You will see that when the reporter didn’t publish this story right away, the defendant and others decided to bring this information to the FBI and to create a sense of urgency, to also tell the FBI that a major news organization was running a story within days. That’s when the defendant requested the meeting with the FBI general counsel and told him that he was not doing this for any client.

The evidence will show you that the defendant had at least two reasons to lie.

First you’re going to hear that the defendant was a cyber security lawyer who had been hired earlier that year by the Democratic National Committee to represent them in relation to a computer hack where they’d been the victim. Because of this, the defendant was in frequent contact with the FBI about the hack investigation. They considered him to be the DNS — I mean, the DNC attorney for that matter. Because they viewed him as the DNC lawyer for the hack, the defendant knew that if he came in and told them that he was representing a political candidate at this time, weeks before an election, they might not meet with him right away, let alone open an investigation.

Second, the defendant knew that if he could get the FBI to investigate the matter and reach out to the press to try to stop the story, that that would make the story more attractive to the press, and they would report on it. [my emphasis]

I get that this is supposed to be catchy for jurors. But this is a child’s fantasy (and Sussmann’s lawyer, Michael Bosworth, noted that Sussmann going to the FBI was, “The exact opposite of what the Clinton Campaign would want”).

Start with Shaw’s claims about “the look.” Not only is it false that Joffe was looking for new information after such time as Sussmann was aware of it, not only won’t the witnesses Durham plans to call explain all of where the data came from, but already, DOJ has submitted two exhibits showing that the focus on late data gathering was on Alfa Bank, not Trump. And those late data collection efforts even included dcleaks (I’m virtually certain that Durham has not provided Sussmann discovery on all the things, such as the FBI’s suspicions that Roger Stone had advance awareness of the dcleaks operation, for them to submit evidence about it).

Next, Shaw calls sharing information with a journalist who had called a lawyer known to be grappling with serial hacks by Russia and asked about Russian hacks, “a leak,” as if there’s something untoward about sharing information with the press, as if Sussmann would “leak” information and then go tell the FBI about “leaking” it, which he did. This is just word salad!

Then Shaw claimed that Sussmann lied to provide urgency to the story. Based on my understanding, Shaw is wrong about the NYT’s plans for publication of the story. My understanding is that Dean Baquet would have happily published the story in September, when Eric Lichtblau was ready to publish and when Sussmann helped kill the story, but by October, he would only publish if reporters could prove substantive communications had taken place. That’s consistent with what Dexter Filkins reported.

The F.B.I. officials asked Lichtblau to delay publishing his story, saying that releasing the news could jeopardize their investigation. As the story sat, Dean Baquet, the Times’ executive editor, decided that it would not suffice to report the existence of computer contacts without knowing their purpose. Lichtblau disagreed, arguing that his story contained important news: that the F.B.I. had opened a counterintelligence investigation into Russian contacts with Trump’s aides.

So none of her basic claims are true.

But the thing that is breathtakingly ridiculous is Shaw’s claim that Sussmann’s purported plan to create, “an October surprise on the eve of the presidential election … largely succeeded.”

What Sussmann got for his troubles of helping to kill the story in September was a story at Slate rather than NYT, immediate pre-election pushback from several entities (including me), and a NYT story that made multiple claims that were true at the time but that we now know to be false.

The story claimed there was no tie between Trump and the Russian government; but Trump and Michael Cohen were lying to cover up (among other things) a call with the Kremlin about doing a real estate deal with a sanctioned bank and a former GRU officer.

The story claimed there was no secret email communication between Trump and Russia, but Trump’s rat-fucker was communicating with the GRU persona behind the hack and (as noted) may have had advance knowledge of precisely the information operation that Joffe and the researchers were investigating in August 2016.

The story claimed that Russia hacked Trump only to disrupt the election, when subsequent reports have concluded Russia had by that point come to favor Trump (though, I suspect, that was partly because they knew how damaging Trump would be for the country).

Democrats I know place varying blame for Hillary’s loss. Virtually all put the FBI’s sabotage of her campaign as the most important cause (of which Devlin Barrett’s October Surprise, the successful leak of a criminal investigation into Hillary as compared to the opposite here, was a small part). Shaw asserted that, “the FBI is our institution that should not be used as a political tool for anyone,” and yet the Clinton email investigation, the Clinton Foundation investigation, and Durham’s own investigation are all more obvious — and wildly more successful — efforts to use the FBI as a political tool than sharing an anomaly with the FBI and helping to kill a story about it.

But no matter who Democrats blame for Hillary’s loss, most point to that NYT story as one of the most damaging stories of the campaign.

And Durham’s entire prosecution is based on the opposite, that the story that most infuriates Democrats was, instead, entirely the point.

EDNY Accuses Tom Barrack of “Harvesting Assets” by Crafting Policy to Help UAE in a Trump Presidency

DOJ has superseded Tom Barrack’s indictment. It did not charge any of his not-yet charged co-conspirators, though it added language pertaining to Paul Manafort’s role, making him US Person 1 and demoting Steve Bannon to US Person 2. Two new paragraphs about Manafort’s role describe him crafting Trump’s platform to take out a promise to release 28 pages of the 9/11 Report implicating the Saudis.

The big addition to the indictment, however, focuses on Barrack’s payoff: investment by UAE’s Sovereign Wealth Fund in Colony Capital (remember, Colony is paying for Barrack’s defense). In the two years after Barrack helped UAE craft Trump’s policies, Colony got commitments for $374 million in investments from the SWF.

According to records maintained by Company A, Company A raised no new capital from United Arab Emirates sovereign wealth funds between 2009 and 2016. However, in2017 and 2018, in part as a result of the efforts of the defendants THOMAS JOSEPH BARRACK and MATTHEW GRIMES and the assistance of the defendant RASHID SULTAN RASHID AL MALIK ALSHAHHI and United Arab Emirates officials, Company A raised approximately $374 million in capital commitments from United Arab Emirates sovereign wealth funds.

The superseding indictment describes how Colony set up a fund with the intent of “harvesting assets” that will benefit from a Trump presidency, garnering political credibility by contributing to Trump’s policies.

On or about December 13,2016, the defendant MATTHEW GRIMES emailed himself a document summarizing the structure of the proposed investment fund, which stated in relevant part that “[w]hile the primary purpose of the [investment fund] [will be] to achieve outsized financial returns, it will also accomplish a secondary mandate to garner political credibility for its contributions to the policies of [the President-Elect]. . . . We will do so by sourcing investing, financing, operationally improving, and harvesting assets in . . . those industries which will benefit most from a [President-Elect] Presidency.” [my emphasis]

There are no charges tied to “harvesting” the Trump policies that Barrack would push (though it makes the forfeiture allegations far meatier). It does, however, make it clear that’s what the Trump presidency was about: selling policy to rich autocrats around the world.

And particularly given the way Barrack ensured that Mohammed bin Salman would be treated as if he were already Crown Prince by the Trump administration, it makes Jared Kushner’s similar “harvesting” of Trump policies look all the more suspect.

Comings and Goings on the Proud Boy Leaders Prosecution

When DOJ finally added Enrique Tarrio to the Proud Boy leader conspiracy, I noted that the way DOJ has structured the prosecution team for the Proud Boys made it really hard to understand where things were headed.

I’ve been expecting and predicting this indictment since December 28. But for the life of me, I’m not sure where DOJ expects to go from here.

This indictment describes the numbers of people massed at several stages of the operation. 65 members on the Ministry of Self Defense (MOSD) Members Group. 90 people in the New MOSD members group created on January 4. Approximately 100 Proud Boys who met at the Washington Memorial the morning of the attack. Donohoe bragging at 12:00PM on January 6 that “WE ARE WITH 200-300 PBS,” just before they kicked off the riot.

Perhaps this framework is meant to provide a way to implicate all those others, 300 people who agreed, by signing up, that they were following a plan that DOJ has now shown (and that Matthew Greene’s cooperation was designed to show) was a plan to occupy buildings from the start.

But otherwise, this still feels really dispersed, and the prosecution team (which consists of three visible members for the leadership conspiracy, including Erik Kenerson, Jason McCullough, and Luke Jones, and about four detailees from other offices for satellite cases; a fourth prosecutor who had been on the core cases, Christopher Berridge, left immediately after [Matthew] Greene pled) has a far harder caseload than the significantly larger team on the Oath Keepers.

Perhaps something will really start to crystalize as some of these continuances end in April. Or perhaps DOJ will be serially prosecuting Proud Boys for the foreseeable future.

That remains true. But on Friday, there were several minor structural changes worth noting. I’ve attempted to summarize the status of some key Proud Boy and related cases here (I’ve only listed a judge if it is someone other than Tim Kelly).

First, Trial Attorney Conor Mulroe filed a notice of appearance in the Proud Boy Leaders and the Biggs Co-Traveler cases. He hasn’t shown up on any January 6 cases before this. It’s likely he was added because on April 22, Judge Kelly set a trial date in the Proud Boy leaders for August 8. That is, it’s likely he was added to start preparing for trial. But the Biggs co-travelers, on whose case he also filed an appearance, won’t be going to trial anytime soon. That’s partly because three of the defendants have to work through the conflict created by John Pierce’s representation of three of them — Paul Rae, Kevin Tuck, and Nate Tuck (though Pierce recently ceded representation to William Shipley for the Tucks). In hearings, prosecutors have said that at least three of the defendants are considering plea deals.

Then Luke Jones, who has been part of the Leaders case from the start, dropped off the case (he recently dropped off an unremarkable misdemeanor case as well though remains on the Ryan Nichols and Alex Harkrider case). Jones had been focusing on Zach Rehl’s prosecution, and he remains on the Rehl co-traveler case, which has not yet been indicted. I don’t know what to make of his departure (perhaps a recognition that his efforts to flip Rehl won’t ever come to fruition?). Jones has, in the past, worked on national security cases, and in fact was listed as prosecuting Russian hacker Evgeny Viktorovich Gladkikh in the press release (though not the docket). That case will never go to trial (because the US is not about to get custody of Gladkikh anytime soon). But it suggests that Jones may have spent time last June helping co-counsel present that case to a DC grand jury.

I’m most interested in the addition of Nadia Moore to the Leaders case. She’s a Brooklyn-based prosecutor, among five or so prosecutors from around the country who’ve been working the Proud Boy cases (in this table, William Dreher is from Seattle, Alexis Loeb is from San Francisco, Michael Gordon is from Tampa, and Christopher Veatch is from Chicago). And as the table makes clear she has been working the Florida-based Proud Boy and related cases, as well as the case of Steven Miles and Matthew LeBrun, who spent January 6 with Florida Proud Boys AJ Fischer and friends, and the former of whom is accused of helping to bust open the other side window in the original breach of the Capitol. This may suggest the government believes they’ll obtain the testimony of multiple Floridians against Biggs and Tarrio.

Meanwhile, a slew of these cases have just one (listed) prosecutor, including the Kansas City case with its five remaining defendants.

We’ll still see some significant movements in the Proud Boys cases. But for now, the focus — as so much of the January 6 investigation is — may be on Florida.

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

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. 

In this post, I laid out the elements of the offense, a single count of a false statement to the FBI, which will drive the outcome of the Michael Sussmann trial, in which jury selection begins today. As I showed, John Durham has to prove that:

  • Michael Sussmann said what Durham has accused him of saying, which is that he was not sharing information with the FBI on behalf of any client
  • Sussmann said that on September 19, not just September 18
  • Sussmann meant his statement to be understood to mean that no client of his had an interest in the data, as opposed to that he was not seeking any benefit for a client from the FBI
  • The lie made a difference in how the FBI operates

In this post I’d like to say a bit about the expected witnesses. Before I do, remember the scope of the trial, as laid out in several rulings from Judge Cooper.

  • Durham can only raise questions about the accuracy of the Alfa Bank anomaly if Sussmann does so first
  • He generally can only discuss how the data was collected via witnesses; with one exception, Cooper has ruled the emails between Rodney Joffe and researchers to be inadmissible in a trial about whether Sussmann lied
  • While Cooper found that 22 of 38 Fusion emails over which Democrats had claimed privilege were not privileged, he also ruled that because Andrew DeFilippis got cute in delaying his request for such a review, Durham can’t use those emails or pierce any related claims of privilege at trial
  • That leaves the unprivileged emails between Fusion and journalists, which Cooper has ruled admissible; he even considered changing his decision and letting a tweet from Hillary come in as evidence (though note that the emails Durham got pre-approved barely overlap with the emails Durham wants to use at trial, so there still could be problems admitting individual emails at trial)
  • Cooper ruled the communications between Rodney Joffe, the person who shared the DNS anomaly with Michael Sussmann, and Laura Seago, his connection with Fusion, were privileged
  • Cooper ruled that Sussmann can elicit testimony from witnesses, including Robby Mook and Marc Elias, about how Trump’s request that Russia hack Hillary some more made him not just a campaign opponent, but a threat to national security

As I noted, a dispute over the final jury instructions suggests that Durham is beating a tactical retreat from his charged claim that Sussmann lied to cover up that he was representing both Hillary and Rodney Joffe.

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.

Durham wants to be able to get a guilty verdict if the jury decides that Sussmann was hiding Hillary but not hiding Joffe. What Durham will really need to prove won’t be finalized until sometime next week, meaning both sides will be arguing their cases without knowing whether Durham will have to prove that 1) the allegations pertained to Donald Trump personally 2) Sussmann had two clients 3) he lied to hide both of them, or whether he has to prove only that Sussmann lied to hide one or more client.

Durham’s tactical retreat is likely dictated by the scope set by Cooper and will dictate the witnesses he wants to call.

This post laid out whom, as of last week, each side planned to call. Remember that it’s not uncommon for a defendant not to put any witnesses on the stand (though I would be surprised if that happened in this case). Normally, the scope of a witness’ testimony is set by the Direct examination of them. So, for example, if Durham puts Marc Elias on the stand to talk exclusively about his decision to hire Fusion GPS, then Sussmann could not ask him questions about other topics. But Sussmann incorporated Durham’s entire witness list, and Cooper ruled that he would rather not have to call people twice. So for at least the Democratic witnesses, Sussmann will have the ability to ask about things that Durham would really prefer not to appear before the jury even though Durham called that witness as a government witness. Because Durham doesn’t understand much of what really went on here, that may be a really useful thing for Sussmann to exploit.

Summary Witness: It is typical for prosecutors to call one of their FBI agents at trial as a sort of omniscient narrator who can both introduce a vast swath of evidence (such as records the accuracy of which have been stipulated for emails that can be introduced without witness testimony) and provide some interpretation of what it all means. Usually, that agent is not the lead agent, because the lead agent knows things that the prosecutor wants to keep from the defendant and the public, either details of an ongoing investigation or major investigative fuck-ups that haven’t been formally disclosed to the defendant. As of last week, DeFilippis maintained that, “It may be an agent who’s our summary witness, but we’re not looking to put a case agent on the stand.” That suggests there is no agent on his team that is sufficiently compartmented from his secrets to take the stand. Judge Cooper seemed a bit surprised by that.

Jim Baker: Jim Baker is the single witness to Michael Sussmann’s alleged crime. Durham is going to have a challenge walking him through the version of this story Durham wants to tell, not least because the materiality parts of it — whether Baker thought it unusual to hear from Sussmann, whether he thought it mattered who Sussmann’s client was — are also recorded in Baker’s past sworn testimony. Given the late discovery of a text showing that Sussmann wrote Baker on September 18 telling him he wanted to benefit the FBI, and given the even later discovery of March 2017 notes recording that the FBI understood that Sussmann did have an (undisclosed) client, Sussmann doesn’t even have to trash Baker to call into question his memory: he can allow Baker to admit he can’t separate out what happened in which of at least five communications he had with Sussmann that week, the sum total of which show that Sussmann wasn’t hiding the existence of a client, did represent that he was trying to help the FBI, and did help the FBI. The cross-examination of Baker will, however, be an opportunity for Sussmann to implicate Durham’s investigative methods, both for building an entire case around Baker after concluding, years earlier, that he wasn’t credible, and then, for refreshing Baker’s memory only with the notes that said what Durham wanted Baker to say, and not what the FBI ultimately came to know.

Bill Priestap and Tisha Anderson, Mary McCord and Tasha Gauhar: This trial is expected to feature two sets of witnesses — the first set called by Durham and the second called by Sussmann — who will be asked to reconstruct from their own notes what was said in a meeting attended by Baker. Priestap and Anderson will say that the day of Baker’s meeting with Sussmann, they wrote down that Sussmann didn’t have a client (but not in the words Sussmann is known to have used or the words that Durham has charged). McCord and Gauhar will say that in March 2017, Andy McCabe stated, in front of Baker and with no correction, that the FBI did know Sussmann had a client. The only notes in question that use the same phrase — “on behalf of” — that Durham used in the indictment say that Sussmann did say he was meeting with FBI on behalf of someone. I expect at least several of these witnesses will be asked materiality questions: If they didn’t ask who the client is, doesn’t that prove it didn’t matter? The notes of everyone involved, importantly, emphasized the import of Sussmann sharing an imminent newspaper article. Sussmann will also ask Priestap how and why he asked the NYT to hold the Alfa Bank story.

Agents Heide, Sands, and Gaynor, plus Agent Martin: Durham plans to call three of the FBI Agents who investigated the anomaly — for a couple of hours each, in the case of Heide and Sands — to talk about how they did so. Let me suggest that not only is this overkill, it may backfire in spectacular fashion, because the March 2017 notes make it clear that these agents did not take very basic steps to chase this anomaly down and Heide, at least, is not a cyber agent (in the same period he was also investigating George Papadopoulos). In addition to having those hours and hours of testimony, Durham will call Agent Martin, ostensibly to explain what one could learn from the anomaly, though there’s still a fight about the scope of his testimony,  particularly with respect to misleading claims he would make about the scope of the data accessed to find the anomaly in the first place.

Antonakakis, Dagon, DeJong, and Novick: According to what DeFilippis said last week, in the wake of Cooper’s ruling excluding all but one of the researchers’ emails, he likely will not call David Dagon, may or may not call Manos Atonakakis, but will call two employees of Rodney Joffe whom, DeFilippis claims, were “tasked by” Joffe, in the first case to pull some but not all of the data researchers used to test the anomaly, and in the second case to do research that may not have been presented to the FBI. If these decisions hold, his presentation of the data will be, as I understand it, affirmatively false. For that reason, Sussmann might have been able to challenge Durham’s reliance on these witnesses in the absence of others; that Sussmann is not doing so may suggest he knows that the witnesses won’t do what Durham thinks they will. If Durham persists in this plan, it means he’ll have FBI agents spend 5 hours describing how they chased down an anomaly, without ever really explaining what the anomaly is (and how it could have easily been investigated using about two different steps that the FBI didn’t take). Perhaps (given his tactical retreat), Durham may want to eliminate virtually all discussion of the anomaly at the heart of this case. Alternately, this is a tactical move to force Sussmann to call David Dagon (whom Durham has immunized) or Manos Antonakakis (whose status is unknown) in hopes that they’ll help him make his YotaPhone case or explain the full scope of the data accessed (particularly if he gets Martin to make misleading comments about that topic first). But if Durham forgoes his chance to call the researchers and Sussmann does so himself, it may allow Sussmann to rebut Durham’s claims about what the anomaly was and what went into the two white papers presented to the FBI. In addition, Sussmann can have these witnesses explain how far before the involvement of the Democrats this research started and how Trump’s open invitation to Russia to do more hacking meant the anomaly posed a possible national security threat worthy of sharing with the FBI.

Robby Mook, Marc Elias, and Debbie Fine: Rather than talking about the anomaly, Durham wants to talk about the Hillary campaign. At least as of last week (before Cooper excluded some of this stuff on privilege and belated privilege challenges), Durham will definitely call Mook, may call Elias, but may rely instead on a Hillary lawyer named Debbie Fine, who was on daily calls with Fusion. Durham wants to claim,

[T]he strategy, as the Government will argue at trial, was to create news stories about this issue, about the Alfa-Bank issue; and second, it was to get law enforcement to investigate it; and perhaps third, your Honor, to get the press to report on the fact that law enforcement was investigating it.

Sussmann, by contrast, knows he has a witness or witnesses who will rebut that.

[I]t’s not the truth; and in fact, it’s the opposite of the truth. We expect there to be testimony from the campaign that, while they were interested in an article on this coming out, going to the FBI is something that was inconsistent with what they would have wanted before there was any press. And in fact, going to the FBI killed the press story, which was inconsistent with what the campaign would have wanted.

As suggested above, Elias is a witness Sussmann will call even if Durham does not. Among other things, Sussmann will have Elias explain what it was like to have Donald Trump openly asking Russia to hack Hillary some more.

Laura Seago: Before Cooper ruled on privilege issues, DeFilippis (who doesn’t know how to pronounce her last name) said he would call Seago. She was the pivot point between Fusion and Rodney Joffe. According to Fusion attorney Joshua Levy, Seago knows little about the white paper from Fusion that Sussmann shared with the FBI. “Seago didn’t contribute to it, doesn’t know who did, doesn’t know who researched it, doesn’t know who wrote it, doesn’t know its purpose; and the government’s aware of all that.” So it’s unclear how useful she’ll be as a witness.

Eric Lichtblau: As I noted the other day, Durham is trying to prevent Lichtblau from testifying unless he’s willing to testify to all his sources for the Alfa Bank story (which would include a bunch of experts never named in any charging documents). My guess is that Cooper will rule that forcing Lichtblau to talk about communications with Fusion would be cumulative, though he might force Lichtblau to talk about an in-person meeting he had at which Fusion shared information that did not derive from Joffe. If Sussmann succeeds in getting Lichtblau’s testimony, however, he will be able to talk about what a serious story this was and what a disastrous decision agreeing to hold the story was for his own career and, arguably, for democracy.

Perkins Coie billing person and McMahon: As Durham has repeatedly confessed, most of the substance of his conspiracy theory is based off billing records. But there’s a dispute about whether Sussmann fully billed his meeting with Baker (Sussmann has noted, for example, that he paid for his own taxi to and from the meeting). Durham will have a Perkins Coie person explain how they track billing and will call a former DNC person with whom Sussmann had lunch immediately before his Baker meeting, either because Sussmann said something to him about the Baker meeting, or because he needs to rule out that Sussmann billed for the lunch meeting but not Baker.

Agent Grasso: In addition to the hours and hours of testimony about how the FBI did investigate the anomaly, Durham also wants to call an Agent Grasso, with whom Joffe shared a piece of the Alfa Bank allegations directly. This may actually be an important witness for Durham, because it might show that the packaged up allegations shared with Baker were substantially different than what Joffe was sharing when his identity was not hidden.

Kevin P: Durham only plans to call one of the two CIA personnel at the meeting in January 2017 (ironically meaning a meeting in March 2017 will get far more focus than a meeting that played a central role in the indictment). It sounds like Sussmann will get the one person to validate an email from another person who also recorded Sussmann saying he had a client.

Agent Gessford: One FBI Agent Sussmann will call will authenticate emails Sussmann will use with other witnesses to show what FBI’s understanding of Sussmann’s activities were in 2016. Not only will he use these emails to prove that the FBI knew well he was representing Hillary on cyber issues, but he will likely also use these emails to talk about what it looks like for a campaign to be systematically attacked through the entirety of a campaign by a hostile nation-state, which will make the potential seriousness of the Alfa Bank anomaly quite clear.

Agent Giardina: This is someone the scope of whose testimony Durham may have actually tried to limit by calling him himself. Sussmann will have Giardina explain that after the Frank Foer article, he tried to open an investigation, which Sussmann will use to prove that the FBI would have opened an investigation whether or not he shared the tip with the FBI.

Jonathan Moffa: Moffa, a senior FBI agent involved in the Crossfire Hurricane and Alfa Bank investigations will address materiality. He’ll explain how, given the UNSUB investigation open to find out who in Trump’s camp got a heads up to the hack-and-leak investigation, it was inevitable they would chase down this tip and treat it, like the CH investigation itself, as a Full Investigation.

DOJ IG Michael Horowitz: On paper, Horowitz’s testimony will be limited to explaining how an anonymous tip from Joffe via Sussmann is supposed to work, which is that someone in a position to direct a tip to the right person does so and succeeds in addressing a national security concern. Joffe provided a tip to Horowitz in January 2017 that — we can assume given Horowitz’s testimony — proved to be valuable. This tip will also demonstrate that DNS research is not as limited as Agent Martin will claim it is. But given the way that Durham has failed to understand basic aspects of Horowitz’s investigation, including ones that disproved large swaths of Durham’s conspiracy theories, this testimony might be somewhat contentious.

Update, 5/22: Very belatedly added Moffa after writing this post.

Will KleptoCapture Catch John Durham, Along with the Russian Spies and Oligarchs?

I’ve been right about a lot of things regarding John Durham’s investigation (though not, apparently, that he would supersede the indictment against Michael Sussmann — maybe he was afraid of getting no-billed if he corrected the things in the indictment he has since discovered to be false?).

Perhaps the most prescient observation I’ve made, though, was that Durham had no fucking clue where to look for evidence related to his already-charged allegations.

I’ve seen reason to believe Durham doesn’t understand the full scope of where he needs to look to find evidence relevant to that case.

I said that in November. Since that time in the Sussmann case, Durham has had to publicly confess he had not:

Effectively, Durham spent most of three years speaking to those who would confirm his conspiracy theories, and not consulting the actual evidence. It took until six months after Durham charged Sussmann before Durham tested Sussmann’s sworn explanation for his Baker meeting — and when he checked, he found the evidence backed Sussmann’s explanation.

Six months after indicting Igor Danchenko, Durham asked to extend discovery another month

It’s that record that makes me so interested in Durham’s second bid to extend deadlines for classified discovery in the Igor Danchenko case.

After Danchenko argued he couldn’t be ready for an April 18 trial date, Durham proposed a March 29 deadline for prosecutors to meet classified discovery; that means Durham originally imagined he’d be done with classified discovery over six weeks ago. A week before that deadline, Durham asked for a six week delay — to what would have been Friday. Danchenko consented to the change and Judge Anthony Trenga granted it. Then on Monday, Durham asked for another extension, this time for another month.

When Durham asked for the first delay, he boasted they had provided Danchenko 60,000 unclassified documents and promised “a large volume” of classified discovery that week (that is, before the original deadline).

To date, the government has produced over 60,000 documents in unclassified discovery. A portion of these documents were originally marked “classified” and the government has worked with the appropriate declassification authorities to produce the documents in an unclassified format.

[snip]

Nevertheless, the government will produce a large volume of classified discovery this week

This more recent filing boasts of having provided just one thousand more unclassified documents and a mere 5,000 classified documents — for a case implicating two known FISA orders and several past and current counterintelligence investigations.

To date, the Government has produced to the defense over 5,000 documents in classified discovery and nearly 61,000 documents in unclassified discovery. The Government believes that the 5,000 classified documents produced to date represent the bulk of the classified discovery in this matter.

Danchenko waited six weeks and got almost nothing new.

See this post for an explanation of all the classified information that Danchenko should be able to demand and the onerous process that using it requires, called Classified Information Procedures Act. Even in November, I showed that Danchenko could likely make a case that he should get discovery from the FBI and NSA, and probably CIA and Treasury. There is no way Durham is getting through this case with just 5,000 classified documents.

As he noted in his opposition to this latest request for an extension, with each request, Durham’s proposed schedule was shrinking the time afforded Danchenko to review classified discovery before providing a list of the classified information he wanted to use at trial (called a CIPA 5 notice), first from 60 days to 40, and then from 40 days to 22.

On March 22, 2022, the Special Counsel filed a Consent Motion to Adjourn the Classified Discovery and CIPA Schedule. Dkt. 44. In his Motion, the Special Counsel sought to extend the deadline to produce classified discovery from March 29, 2022, to May 13, 2022. Id. at 2. The Special Counsel’s motion also sought to extend the dates for various CIPA filings and hearings. Id. Importantly, the Special Counsel’s proposed schedule reduced the amount of time within which Mr. Danchenko had to file his Section 5(a) written notice from approximately 60 days after the close of classified discovery to approximately 40 days.

[snip]

On May 9, 2022, the Special Counsel filed his Second Motion to Adjourn the Classified Discovery and CIPA Schedule. Dkt. 48. In his motion, the Special Counsel now tells the Court that he can provide the outstanding classified discovery by “no later than” June 13, 2022. See id. at 2. He also proposes a June 29, 2022, deadline for Defendant’s Section 5(a) written notice. Id. Therefore, the Special Counsel has essentially asked this Court to enter an Order that will now decrease Mr. Danchenko’s time within which to file his Section 5(a) written notice from approximately 40 days after the close of classified discovery to approximately 22 days.

[snip]

Mr. Danchenko would be substantially prejudiced by the Special Counsel’s proposed schedule because it significantly shortens the time period within which Mr. Danchenko can review any final classified productions and file his CIPA Section 5(a) notice. That is of particular concern to Mr. Danchenko because the Special Counsel has not provided sufficient notice of how much additional classified discovery may be forthcoming other than his “belie[f]” that the “bulk” of the classified discovery has already been produced.

Shrinking Danchenko’s deadlines would make the additional discovery that is still outstanding far less useful. In the Sussmann case, for example, it took over a month for Sussmann’s team to find the documents that disprove Durham’s case buried among 22,000 other documents provided on his extended deadline. So while Durham might be trying to comply with discovery obligations, arguing that the proper solution to his struggles fulfilling discovery is to shrink Danchenko’s own time to review the evidence suggests he’s not doing so in good faith.

Judge Trenga must have agreed. While he granted the government’s request for an extension, he gave Danchenko 42 days to submit his CIPA 5 notice.

A Russian dog named Putin ate Durham’s classified homework

I’ve noted how the post-invasion sanctions on Alfa Bank deprived John Durham of a second investigative team, Alfa Bank’s Skadden Arps lawyers, whose filings a judge observed seemed to be “written by the same people” as Durham’s.

But the aftermath of Putin’s attempt to overthrow Ukraine may be causing Durham even bigger problems in the Danchenko case.

When Durham asked for an extension of his CIPA deadline in the Sussmann case days after Russia extended its invasion of Ukraine, he explained that the people who had to write declarations in support of CIPA (usually agency heads like CIA Director William Burns or NSA Director Paul Nakasone) were busy dealing with the response to Ukraine.

However, the Government’s submission includes not only the Government’s memorandum but also one or more supporting declarations from officials of the U.S. intelligence community. The Government’s review of potentially discoverable material is ongoing, and these officials cannot finalize their declarations until that review is complete.

Moreover, recent world events in Ukraine have further delayed the Government’s review and the officials’ preparation of the supporting declaration(s). As a result, the Government respectfully submits that a modest two-week adjournment request to its CIPA Section 4 filing deadline is appropriate and would not impact any other deadlines, to include the currently scheduled trial date

Effectively, this request moved the CIPA deadline from a week before Durham’s classified discovery deadline to a week after; yet Durham just committed, once again, to finalizing his CIPA 4 submission almost a week before his classified discovery deadline in the Danchenko case.

That’s important because Durham overpromised when he said he could finish a CIPA filing before the discovery deadline. Durham filed a supplement to his CIPA 4 notice on May 7 (nine days before trial) that, unless Judge Cooper ruled orally at a closed hearing last week, remains outstanding. That’s not entirely unusual in a case that relies on classified information, but if Cooper were to rule this classified information was necessary for Sussmann’s defense, it would give Sussmann no time to actually prepare to use it.

Durham cited the Ukraine response again on March 22, a month after Russia launched its failed attempt to take Kyiv, when he asked for an extension on his classified discovery deadline.

However, recent world events in Ukraine have contributed to delays in the production of classified discovery. The officials preparing and reviewing the documents at the FBI and intelligence agencies are heavily engaged in matters related to Ukraine.

Importantly, these people focusing on keeping us safe from Russian aggression rather than, as Durham is, making us safe for Russian aggression, are different than the people cited in the Sussmann case. These aren’t senior officials, but instead those “preparing and reviewing the documents at the FBI and intelligence agencies.” That’s not William Burns, that’s FBI counterintelligence agents, among others.

In last week’s request for an extension, Durham didn’t mention Ukraine, but his reference to “overseas activities” suggests the response to Ukraine remains the problem.

However, recent world events continue to contribute to delays in the processing and production of classified discovery. In particular, some of the officials preparing and reviewing the documents at the FBI and intelligence agencies continue to be heavily engaged in matters related to overseas activities.

Unsurprisingly, Danchenko asked Trenga to require Durham to provide some kind of explanation for why “overseas activities,” probably Ukraine, continue to delay classified discovery in a case criminalizing an attempt to fight Russia’s attack on democracy in 2016.

Moreover, the Special Counsel has failed to adequately explain how “recent world events” (Dkt. 48 at 2) have specifically made it impossible for him to meet his discovery obligations. While it seems unlikely that the same government officials charged with declassifying discovery are also responding to events overseas, it certainly is possible. But, even if that is the case, the Special Counsel must offer more explanation than he has, especially in light of the fact that his prior motion to extend the discovery deadline was based on the events in Ukraine, and the ongoing nature of that conflict must or should have been considered when he requested the May 13 deadline.

Sadly, Trenga didn’t order up an explanation for why this delay, probably Ukraine-related, is causing so many difficulties for Durham’s prosecution of Danchenko.

KleptoCapture threatens at least one and possibly up to three key Durham figures

One reason I would have liked Trenga to force Durham to explain how a dog named Putin ate his classified homework is because the public response to Russia’s attempt to conquer Ukraine has already implicated three figures who are key to Durham’s case. While I need to update it, this post attempts to capture everything that the US government and some partners have done since the expanded invasion.

Dmitry Peskov

Perhaps the response least damaging to Durham’s case — but one that will affect discovery — involves Dmitry Peskov. As I explained in this post, Durham made Peskov’s relationship with Chuck Dolan and Olga Galkina a key part of his indictment against Danchenko.

In his role as a public relations professional, [Dolan] spent much of his career interacting with Eurasian clients with a particular focus on Russia. For example, from in or about 2006 through in or about 2014, the Russian Federation retained [Dolan] and his then-employer to handle global public relations for the Russian government and a state-owned energy company. [Dolan] served as a lead consultant during that project and frequently interacted with senior Russian Federation leadership whose names would later appear in the Company Reports, including the Press Secretary of the Russian Presidential Administration (“Russian Press Secretary-I”), the Deputy Press Secretary (“Russian Deputy Press Secretary-I”), and others in the Russian Presidential Press Department.

[snip]

In anticipation of the June 2016 Planning Trip to Moscow, [Dolan] also communicated with [Peskov] and Russian Deputy Press Secretary-I, both of whom worked in the Kremlin and, as noted above, also appeared in the Company Reports.

[snip]

Additionally, on or about July 13, 2016, [Galkina] sent a message to a Russia-based associate and stated that [Dolan] had written a letter to Russian Press Secretary-1 in support of [Galkina]’s candidacy for a position in the Russian Presidential Administration.

On March 3, the State Department added Peskov to the sanctions list under a 2021 Executive Order President Biden signed, in part, to target those who (among other things), “undermine the conduct of free and fair democratic elections and democratic institutions in the United States and its allies and partners.” On March 11, Treasury added Peskov’s family members to the sanctions list. The package used to sanction Peskov would have been the product of intelligence reports circulated within the US government.

While the legal reason Peskov was sanctioned pertained to his official role in the Russian government (and the lavish lifestyles his family enjoys even with his civil service salary), State also described Peskov as “the chief propagandist of the Russian Federation.” That, by itself, would be unremarkable. But if — as even Durham alludes — Peskov had a role in feeding Galkina disinformation for the Steele dossier, particularly if he crafted disinformation to maximally exploit Michael Cohen’s secret call with Peskov’s office in January 2016, that could be a part of the sanctions package against Peskov. If it were, then it would be centrally important discovery for Danchenko.

Oleg Deripaska

Then there’s Oleg Deripaska. This post lays out in depth the reasons why Danchenko would have reason to demand information on Deripaska’s role in the dossier, including:

  • Evidence about whether Oleg Deripaska was Christopher Steele’s client for a project targeting Paul Manafort before the DNC one
  • All known details of Deripaska’s role in injecting disinformation into the dossier, up through current day
  • Details of all communications between Deripaska and Millian

Given his blissful ignorance of the actual results of the Mueller investigation and the DOJ IG Carter Page investigation, Durham was always going to have a nasty discovery surprise in complying with such requests. Plus, a search last October of two Deripaska-related properties made clear that the most likely source of disinformation in the dossier was under aggressive criminal investigation for sanctions violations.

A recent Bloomberg story reported that that criminal investigation has now been moved under and given the prioritization of the KleptoCapture initiative started in response to the Ukraine war.

Deripaska has been sanctioned since 2018 for his ties to Vladimir Putin, and the seizures at a Washington mansion and New York townhouse linked to him predate the invasion of Ukraine. But the investigation of Deripaska’s assets is now part of an escalating U.S. crackdown on ultra-rich Russians suspected of laundering money and hiding assets to help finance Putin’s regime.

The raids were key steps to unearth information that may determine whether — and how — Deripaska moved money around. Among the mishmash of items taken from the New York and Washington properties were half a dozen works of fine art, sunglasses, hiking boots, housewares, financial records, telephone bills and other documents, according to the people, who asked not to be identified because the investigation hasn’t been made public.

The Deripaska inquiry is now part of a special U.S. Department of Justice task force dubbed “KleptoCapture,” according to New York federal prosecutor Andrew Adams, who is heading up the group.

“As Russia and its aggression continues, we have our eyes on every piece of art and real estate purchased with dirty money,” Deputy Attorney General Lisa Monaco said at a recent news conference.

If DOJ plans on indicting Deripaska — for sanctions violations and anything else on which the statute of limitations has not expired — they might delay discovery cooperation with Durham until they do so. And if such a hypothetical indictment mentioned Deripaska’s role in facilitating the 2016 election interference and/or successful efforts to exploit the dossier to undermine the Russian investigation, it might make Durham’s charges against Danchenko unsustainable, even if he is able to otherwise fulfill his discovery requirements. Durham’s theory of prosecution is that Danchenko is the big villain that led to FBI confusion over the dossier, but Deripaska seems to have had a far bigger role in that.

Sergei Millian

Finally, there’s Sergei Millian, who happened to meet with Deripaska in 2016 at an event, the St. Petersburg International Economic Forum, that played a key role in the election operation.

In the same week Millian met Deripaska, a bunch of cybersecurity experts first started looking for evidence of Russian hacking in DNS data and Igor Danchenko was in Moscow meeting with Chuck Dolan and his other named Steele dossier sources.

As the DOJ IG Report and declassified footnotes make clear, FBI opened a counterintelligence investigation into Millian in October 2016. All the evidence indicates that the investigation did not arise from Crossfire Hurricane and, given that Millian’s ID was hidden in the dossier reports shared with NYFO on their way to HQ, and given that other information on Millian was fed into DC, not NY, was probably predicated completely independent of Crossfire Hurricane.

In addition, we learned that [Millian] was at the time the subject of an open FBI counterintelligence investigation. 302 We also were concerned that the FISA application did not disclose to the court the FBI’s belief that this sub-source was, at the time of the application, the subject of such an investigation. We were told that the Department will usually share with the FISC the fact that a source is a subject in an open case. The OI Attorney told us he did not recall knowing this information at the time of the first application, even though NYFO opened the case after consulting with and notifying Case Agent 1 and SSA 1 prior to October 12, 2016, nine days before the FISA application was filed. Case Agent 1 said that he may have mentioned the case to the OI Attorney “in passing,” but he did not specifically recall doing so. 303

301 As discussed in Chapter Four, [Millian] [redacted]

302 According to a document circulated among Crossfire Hurricane team members and supervisors in early October 2016, [Millian] had historical contact with persons and entities suspected of being linked to RIS. The document described reporting [redacted] that [Millian] “was rumored to be a former KGB/SVR officer.” In addition, in late December 2016, Department Attorney Bruce Ohr told SSA 1 that he had met with Glenn Simpson and that Simpson had assessed that [Millian] was a RIS officer who was central in connecting Trump to Russia.

303 Although an email indicates that the OI Attorney learned in March 2017 that the FBI had an open case on [Millian], the subsequent renewal applications did not include this fact. According to the OI Attorney, and as reflected in Renewal Application Nos. 2 and 3, the FBI expressed uncertainty about whether this sub‐source was Person 1. However, other FBI documents in the same time period reflect that the ongoing assumption by the Crossfire Hurricane team was that this sub‐source was [Millian].

Plus, Mueller found plenty on Millian to raise separate issues of concern.

Given several other counterintelligence cases developed in NYFO, the predication likely had more to do with Russia’s effort to use cultural and other diaspora groups as a way to covertly extend Russian influence.

And in fact, Millian’s group — the Russian American Chamber of Commerce — has already made a cameo appearance in one such prosecution, that against Elena Branson, a complaint that was rolled out in the same week as the sanctions against Peskov.

a. On or about January 30, 2013, BRANSON received an email from an individual using an email address ending in “mail.ru.” Based on my review of publicly available information, I have learned that this individual was a Senior Vice President of the Russian American Chamber of Commerce in the USA. This email had the subject line “Problem.” and the text of the email included, among other things, a portion of the FARA Unit’s website with background on FARA. In response, BRANSON wrote, in part, “I am interested in the number of the law, its text in English[.]” The sender then responded with “Lena, read …” and copied into the email background on FARA and portions of the statute.

This awareness and flouting of registration requirements is the kind of thing that often features in prosecutions for 18 USC 951 violations. And, at least in the case of Branson, the statute of limitations can extend so long as the person in question continues to play a role in US politics, though in Branson’s case, she only fled the country 18 months ago.

If the FBI believed Millian was an unregistered foreign agent who fled to avoid an investigation in 2017, his ongoing involvement in efforts to gin up an investigation into the investigation — particularly claims that, even according to Durham, misinterpreted facts his own prosecutors filed and thereby contributed to death threats against witnesses in the investigation — then it wouldn’t rule out an investigation into Millian himself, an investigation that would have preceded Durham’s reckless reliance on him (or rather, Millian’s unvetted Twitter feed) as a star witness against Danchenko.

Even Millian’s public claim (albeit one offered by someone the FBI considers an embellisher) that he called the White House directly to elicit this investigation could be of interest.

We can now say with great certainty that Durham didn’t check the most obvious sources of evidence against key players involved in the Steele dossier, such as DOJ IG’s backup files in the Carter Page investigation that is the primary focus of Durham’s Danchenko indictment. That makes it highly likely he never bothered to see whether other parts of DOJ considered key players in the Steele dossier to be actual threats to democracy.

One of those key players is undoubtedly Oleg Deripaska. And the renewed focus on Russian influence operations may expand beyond that.

DOJ Claims a Key Witness against Tom Barrack Was Being Paid $15,000 a Month as Part of His Defense Team

With the exception of the epic conflicts that Jan 6 lawyer John Pierce has accumulated by representing dozens of Jan 6 defendants, most of the conflicts that come up in prosecutions are waivable. Prosecutors ask the defendant to be alerted to the conflict to ensure it doesn’t provide a way for the defendant to blow up the case later. Or, in the case of John Durham, he uses claimed conflicts to float a bunch of conspiracy theories that elicit death threats.

But a conflict notice in Tom Barrack’s case is something else. EDNY explains, first of all, that Colony Capital is paying for Barrack’s defense as part of an employment agreement finalized in October. That part is another waivable conflict, not that surprising.

Where things get more interesting, EDNY reveals that Barrack’s former Executive Secretary, who played a key role in some of the charged conduct, and who provided materials to the government in the period leading up to the June 2019 interview where (EDNY alleges) Barrack lied to cover up his relationship with the Emirates, was on the payroll of his defense team until April 29. She was being paid $15,000 a month.

For example, the Witness played a role with Barrack in the planning and execution of the Presidential Inauguration of President Trump, including an event (the Chairman’s Global Dinner) that is specifically mentioned in the Indictment. The Witness also assisted Barrack in the preparation of materials submitted as part of his background investigation when Barrack was being considered for a potential appointment in the Trump Administration during the relevant time period. The government anticipates that these events and materials will be presented to the jury at trial.

Prior to the unsealing of the Indictment in this case, an attorney at Paul Hastings LLP (and one of Barrack’s attorneys at that time) (the “Paul Hastings Attorney”), advised the government that he also represented the Witness, and requested the opportunity to voluntarily provide certain requested materials to the government. On or about May 2, 2019, the Paul Hastings Attorney produced records to the government, and in a letter indicated that the Witness was his “client,” though in the same letter, he also indicated that he was “Counsel to Thomas J. Barrack, Jr.” It is the government’s understanding that the Paul Hastings Attorney’s representation of the Witness was paid for by Barrack.

On or about July 16, 2021, the Indictment in this matter was unsealed and Barrack was arrested. Several weeks later, in early August 2021, Barrack’s then-counsel, Paul Hastings LLP (who, as noted above, also represented the Witness in this investigation), hired the Witness as a litigation consultant. 3 Paul Hastings hired the Witness as a litigation consultant notwithstanding that the Witness has no legal education, is not a lawyer, and has never previously worked as a litigation consultant. When [O’Melveny & Myers] became the defendant’s counsel, OMM also hired the Witness as a litigation consultant. It is the government’s understanding that the Witness was paid approximately $15,000 a month for the Witness’ services and that the only matter the Witness was working on for OMM is the instant case. OMM has included the payments for the Witness in invoices submitted to Company A as legal costs. Company A raised concerns to OMM about whether the Witness’ costs were reasonable and appropriate under the terms of the Advanced Fees Agreement but ultimately, after speaking with OMM, agreed to pay the Witness’ costs. OMM first advised the government that it had retained the Witness as a litigation consultant on or about March 31, 2022, a few days prior to a scheduled interview of the Witness by the government.

2 A potential conflict already compounded by the fact that Company A is a current client of OMM.

3 The Witness was no longer working with Barrack or at his company by this time, and instead was working at an unrelated business venture.

Particularly given that Barrack’s lawyer involved this person in an effort to stave off indictment in 2019 that the government claims was an attempt to obstruct the investigation, I’m wonder what she was being paid $15,000 a month to not remember … and whether that will change now that Colony has stopped paying those bills?

Update:  Pronoun changed per John Paul Jones’ note of the footnote referring to the person as “her.”

The timing of this all suggests what kind of more valuable information this witness might have. EDNY says OMM first told them she was part of the defense team on March 31, days before EDNY was to interview her.

Ten days earlier, OMM had included this question in an agenda for a status hearing on March 22:

Defense counsel respectfully request that the Court inquire of the government whether it presently intends to present a superseding indictment to the grand jury before trial and if so, any information the government can provide as to the timing of the superseder.

The answer EDNY provided was yes, they reserve the right to supersede the indictment and it might happen in June. Then on April 5, EDNY responded to a bunch of Barrack’s complaints about discovery by suggesting that several of Barrack’s not-yet charged co-conspirators (Bannon is the most obvious) might still be charged.

Additionally, the investigation related to this case is ongoing (we note that one of the charged defendants is a fugitive and the indictment alleges conduct by several unindicted co-conspirators).

In other words, at around the time that EDNY would have been arranging an interview with the former Executive Secretary as part of an investigation into Barrack’s not-yet charged co-conspirators, OMM figured out that EDNY might supersede this indictment.

Which is probably one of the reasons they were paying her $15,000 a month to consult on this case: to find out whether EDNY was onto other, more damning Barrack actions. Money well spent!

Meanwhile, somewhere along the way, Colony Capitol — which is itself represented by OMM — balked at paying $15,000 for her costs, but kept paying anyway.

A month after informing EDNY that she worked for them, on April 29 (so about two weeks ago) OMM told EDNY that she no longer does.

Presumably, whatever “cooperation” she gave to EDNY in 2019 was a limited hangout, designed to protect more damaging information. That information is probably related to the substance of the crimes that EDNY was investigating when they tried to get her interview in March.

To Celebrate Its Third Birthday, the Durham Investigation Will Attempt to Breach Eric Lichtblau’s Reporter’s Privilege

Happy Birthday to Johnny D and his merry band of prosecutors! Today marks your third birthday! Quite a milestone for an investigation that has just one conviction — a gift wrapped up with a bow from Michael Horowitz — to show for those three years.

John Durham, however, had something much more ambitious planned to mark the milestone, it appears.

As Sean Berkowitz noted earlier this week, Sussmann’s team wants to call Eric Lichtblau as a witness in next week’s trial. They were able to get Lichtblau to agree to testify based on the understanding he would only testify about conversations with Michael Sussmann and Rodney Joffe. But Durham’s team — I guess to assert the newfound brattiness of a three-year-old — refused to limit their cross-examination to those who had waived confidentiality.

There is an issue here that I want to alert you to. We reached out to Mr. Lichtblau’s counsel, actually counsel for The New York Times, to explore their willingness in light of the First Amendment issues to testify at the trial. And we told him that both Mr. Sussmann and Mr. Joffe would waive any privilege associated with the press privilege; and that gave The New York Times comfort that, notwithstanding their normal policy of objecting, they would allow him to testify about his interactions with

Mr. Sussmann and Mr. Joffe, communications between the two as well as communications with the FBI that wouldn’t be protected by privilege because the FBI reached out to them to ask them to hold the story.

They did tell us that they would object to questioning Mr. Lichtblau about independent research he did in support of the story, you know, people he spoke with to verify sources and other types of things that were not communicated to Mr. Sussmann.

We told him from our perspective that seemed like a fair line to draw, and we would not get into that.

He’s reached out to the Government on that issue, and it appears there may be — again, I don’t want to speak for the Government — but it appears that they may not be in a position today to give The New York Times that assurance. And so we expect The New York Times sometime this week will be filing a motion on that issue to tee it up for your Honor.

I know you’re welcoming all this additional paper.

THE COURT: One more intervenor in the mix.

MR. BERKOWITZ: “All the news that’s fit to print.”

As a motion submitted by Lichtblau yesterday and a declaration from his lawyer Chad Bowman lays out, after Sussmann and Rodney Joffe waived their confidentiality with Lichtblau by April 21, Durham then took eleven days to consider whether they were willing to limit Lichtblau’s testimony to his conversations with the two of them. Predictably, Andrew DeFilippis was not.

On April 21, 2022, I spoke by telephone with Andrew DeFilippis in the Special Counsel’s Office, as well as several of his colleagues. I asked whether the prosecution similarly would be willing to limit examination to direct communications between Mr. Sussmann and Mr. Lichtblau, a journalist, particularly given the Department of Justice’s new policy restricting the use of compulsory process to obtain information from reporters, as memorialized in the Office of the Attorney General’s July 21, 2021 Memorandum, a true and correct copy of which is attached as Exhibit B and which is also available online at at https://www.justice.gov/ag/page/file/1413001/download. Mr. DeFilippis stated that the prosecution needed time to consider the request.

On May 2, 2022, during a follow-up telephone call, Mr. DeFilippis stated that the prosecution was unable to give “any assurance” that their cross-examination questioning of Mr. Lichtblau would be confined to his discussions with Mr. Sussmann. In particular, Mr. DeFilippis stated that certain of Mr. Lichtblau’s email communications with third parties were within the prosecutions possession, and that the prosecution might want to examine Mr. Lichtblau about other, unknown aspects of his reporting. He also indicated a view that any reporter’s privilege would be pierced by a trial subpoena.

This is, by all appearances, a naked attempt to keep a very devastating witness off the stand. There’s no way, even under prior guidelines, Durham would have been able to get Lichtblau’s testimony; particularly given that they’ve got the communications in question, they couldn’t show a need to get his testimony.

That’s all the more true given Merrick Garland’s prohibition on requiring testimony from reporters.

But Lichtblau’s testimony is pretty critical for Sussmann, not least because he’ll make it clear he reached out to Sussmann and that the interest in reporting on Russian hacking was in no way tied to animus towards Trump. Plus, he would explain what an impact that acceding to the request from FBI to hold the story was for his career.

Durham has long tried to hide that after the FBI requested, Sussmann and Joffe acceded to help kill the story. It kills his conspiracy theory. It corroborates Sussmann’s stated motivation for sharing the DNS anomaly, that he was trying to help the FBI. Particularly given that both Sussmann and Joffe have Fifth Amendment reasons not to want to testify, Lichtblau would provide a way to get the full extent of that process into the trial.

But Durham wants to prevent it from coming into evidence unless Lichtblau is willing to pay a needless price for doing so.

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