Adventures in Cut-and-Paste: John Durham says, “no specific client” is the same as, “not doing this for any client”

John Durham’s team has responded to Michael Sussmann’s request for a May trial date with a bunch of mostly nonsense.

AUSA Andrew DeFilippis does the following:

  • Blows off Susssmann’s observation that Durham promises to be ready for Igor Danchenko’s EDVA trial, which will involve far more complex classification issues, in April, even while saying classified discovery is what requires a later trial date in this case.
  • Does not deny Durham only belatedly provided Brady, while accusing Sussmann of “cherry-picking excerpts,” when Durham is the one providing excerpts.
  • Complains that Sussmann doesn’t note “law enforcement reports of Mr. Baker’s subsequent three interviews with the Special Counsel’s Office in which he affirmed and then re-affirmed his now-clear recollection of the defendant’s false statement,” which seems to suggest that like the one fragment already provided (which shows at least one sign of irregularity), Durham is claiming interview reports are more accurate than transcripts.
  • Complains that Sussmann didn’t mention a second potentially inadmissible hearsay document, written by someone else in the General Counsel’s office.
  • Accuses Sussmann of neglecting to mention a CIA report about a different meeting that Sussmann already discussed at length (indeed, Durham was the one withholding information on it when last it came up) — and which Durham admitted was based off notes that have been destroyed.
  • Mentions “three grand jury transcripts” but doesn’t describe any of them as Baker’s.
  • Invokes “serious national security equities” in a case that criminalizes reporting a cybersecurity concern.

To look on Durham’s case in the best light: After Baker reviewed notes that others took, he came to remember that Sussmann affirmatively said he was not representing a client at the meeting (though Durham doesn’t claim to have the specific words Sussmann said, nor does he quote any in his discussion of the three other 302s).

And Durham does not deny that he’s slow-walking Brady material.

But I want to look at DeFillippis’ cut-and-paste again. In the response to Sussmann, DeFillippis suggests that this second hearsay document from someone in his office matches the first, Bill Priestap’s notes taken immediately after the meeting.

Those notes, like the notes cited in the Indictment taken by an FBI Assistant Director, reflect that the defendant told Baker he had “no specific client.” [my emphasis]

Except that’s not what the indictment says Priestap’s notes say. Those say:

Michael Sussman[n] — Atty: [Perkins Coie] — said not doing this for any client

  • Represents DNC, Clinton Foundation, etc.

“Not doing this for any client,” and “no specific client,” are undoubtedly close, but they are not the same thing, particularly given the great stake Durham and others have placed on whether Sussmann believed he was doing something important for cyber security, particularly given that neither mentions billing or representing. The differences suggest that even in these near-contemporaneous records taken by professional note-takers of what Baker said, either he himself was not consistent in the language he used to relay what happened, or the meaning his interlocutors took from it was not. Probably that’s because none of them accorded it the great import that Durham has, in part because they were all trying hard to deal with a very real cyberattack by Russia.

Maybe these quotes look more similar in context. Right now, Durham seems to be desperately trying to show that he has quotations of something.

But John Durham accused Michael Sussmann of cherry picking. And right now, his own cherry picking reaffirms that there are differences in the exact quotations that he claims are the same. He may, in fact, have reason to believe Sussmann lied. Sussmann may have lied. But the question is whether his evidence — even assuming he’ll find a way to get hearsay admitted — is strong enough to rebut Baker’s repeated contradictory statements.

37 replies
  1. Silly but True says:

    If Sussmann did his work for the Clinton Foundation, while telling Brady either that 1) he was not doing the work for any specific client, or 2) telling Brady he had no client still really doesn’t help Sussmann. What really helps Sussmann is being able to prove he wasn’t doing the work for Clinton Foundation; no, that’s not and shouldn’t be Sussmann’s burden, but here we are and if he presents the smoking gun for that truth this all goes away for him.

    This also shows a bit of Durham’s hand that it looks like Brady has affirmed his belief to Durham that he was lied to, multiple times, and recently; Durham’s not going off dusted off transcripts — he interviewed Brady who is sticking to that story.

    Regardless of whether Sussman lied or not, it may come down to Brady’s vs. Sussmann’s word. And this would be good test to see if Trump undermining FBI’s credibility has taken root or not.

    • bmaz says:

      “Telling Brady”?? Brady is a certain subset of evidence, not a person, you nitwit. Also, this has nothing whatsoever to do with “the Clinton Foundation”, that is just beyond bad faith pleading and analogy.

      I have been approving your comments recently, but this is as discombobulated and off the rails as any of yours ever. Thanks.

    • RLHall says:

      I think you mean Baker, not Brady.
      Durham says Sussman lied to Baker when he brought him information on the Russian hack.
      As I understand it, Brady material is exculpatory evidence, which Durham is obligated to provide to Sussman.

  2. earlofhuntingdon says:

    The distinction you raise between these two phrases is a bread-and-butter issue inside the Beltway.

    “No specific client” sounds like a common fudge, an attempt to avoid disclosing a not yet public representation or its scope. Or that more than one client has an interest in obtaining information or pursuing a legal action. Or that a high-profile lawyer is doing research to prepare and compete for a significant client. Highly competent lawyers engaged in high-stakes matters – routine work inside the Beltway – would seek to do avoid such a disclosure, if the questions asked of them were imprecise and left them wriggle room.

    “Not doing this for any client” is a definitive statement, one that Sussmann, on any reasonable reading of a conflicting record, does not seem to have made. On this record, Durham seems a helluva long way from being able to prove fuckall beyond a reasonable doubt.

    • emptywheel says:

      Not doing this for any client could also refer just to the meeting.

      As Sussmann noted, discovery that Durham either didn’t have or hadn’t turned over yet shows he paid his own taxi.

      • Badger Robert says:

        Which might be the defense’s best lane. He was paid to look into it, but he decided on his own to disclose what he had to the FBI.

        • Desider says:

          Huh? Why is that better than “sure i had different clients, but this suspicious cyber activity was potentially a serious matter of national security, beyond partisanship and client duties, simply a citizen’s obligation”?

      • earlofhuntingdon says:

        If he had a client, he might have used a limo service. Status perks inside the Beltway go as far as they do in the Hamptons,

      • The Old Redneck says:

        That’s exactly the issue, and a huge problem for Durham. Sussman’s statements are not about a discrete fact, but about his motive. In other words, he just thought the FBI ought to know, i.e., he was just trying to do a public service. I don’t see how Durham can refute that when there’s so much apparent confusion about the actual words used.

      • Ginevra diBenci says:

        I have always assumed that “this” (as in “I’m not doing this for any client”) referred only to bringing the information to FBI. If Sussman even said it, it never sounded like proof of any transgression–the opposite, in fact.

        • emptywheel says:

          Sussmann tried to nail Durham down on that, too.

          We shall see whether Cooper orders them to do so.

  3. Leoghann says:

    This has gone from a suspicion of a bad-faith prosecution to the appearance of. If he’s going to prosecute questionable quotations, why doesn’t Durham just claim Sussman said, “I’m not doing this . . . “? Because that part’s pretty obvious, and it’s clearly untrue.

    My mind keeps going back to the time Durham was appointed to Special Prosecutor. A couple of Radioheads (I don’t do TV news anymore) were discussing his reputation, and seemed to agree that he’s slow and very careful, with high attention to detail. They must have been conflating him with some other Durham, because this shit clearly doesn’t evince any attention to detail at all.

    • earlofhuntingdon says:

      Durham’s claims are supposed to be supported by facts he can persuasively present in court to prove beyond a reasonable doubt that a crime worth prosecuting was committed.

      This prosecution looks more like Durham is batting clean-up for Barr and Trump. Perhaps that’s his ticket to a partnership in Giuliani Powell & Associates or being hired as general counsel to work for Devin Nunes.

  4. Dopeyo says:

    (snark tag) This is all so unfair! Durham has a plan. And that plan is to demonstrate that the FBI was outsmarted by a bunch of pointy-headed geeks, and some crooked Democrat (sic) lawyers with their routing tables and time stamps!

    Well, not “demonstrate,” exactly. Durham is hoping to pry Sussman open and get contacts and records, which will lead to fishing expeditions and lazy indictments, just in time to muddy the waters in the lead up to 2022 mid-term elections, and discourage blue voters. (“Just leave it up to me + R congressmen.”)

    It’s a complicated plan, and no one can expect a busy prosecutor to manage all the little details, such as what lie Sussman actually told, and what Baker heard, and the 18 minute gap in the recording of Sussman and Baker’s conversation.

  5. Bay State Librul says:

    My prediction

    The judge will rule, “In reaching our decision, we have considered all arguments made, we conclude they are moot, irrelevant, or without merit. To reflect the foregoing, the DOJ will place Mr. Durham on administrative leave for being a hopeless hack.”

    It is so ordered.

  6. Peterr says:

    Except that’s not what the indictment says Priestap’s notes say.

    Sussman’s team should flip the language of the indictment around on Durham, in their motion to dismiss. “In motions and filings before this court, DURHAM lied about the language of the notes on which he bases his false allegations about what SUSSMAN told the FBI. DURHAM cannot keep his lies straight, as his story keeps changing with each subsequent filing. See x, y, and z. We ask for an immediate dismissal of the indictment.”

  7. Badger Robert says:

    How will the prosecution ever convince a jury that any of this, regarding Sussman’s representation was material? His evidence was either useful or not useful. And that probably in terms of common sense explains why the questions and the answers were not made more precise.

    • bmaz says:

      Correct. There are proof problems on pretty much every element of the charge. Also beyond dubious is whether it can be established that there even was a false statement and, if there was, it was made knowingly or intentionally. This case is pure garbage.

      • Peterr says:

        How long will a judge typically give the government to peddle pure garbage before telling them to quit wasting the court’s time and get the trash out of the court?

        • bmaz says:

          That is impossible to know, but Judge Cooper is fairly well thought of.

          Adding that was just a report from a friend, this is the first case with him I am aware of to the best of my recollection.

        • Badger Robert says:

          The participants who know federal motion practice could an offer an opinion about how likely it is that the court sharply limits the prosecution’s evidence.

        • bmaz says:

          Lol I have about 35 years of exactly that kind of experience and I wouldn’t deign to make such a prediction about what exactly Cooper will do here. There will likely be some in limine orders at some point, but how broad they are, nobody knows. We’ll see.

  8. Rugger9 says:

    As I’ve noted before elsewhere, the burden of proof remains with Durham, not Sussman and FWIW all of these adventures create lots of reasonable doubt in the mind of this ‘potential juror’, especially once the defense team explains it. That’s not why Durham brought this case. Durham wanted the 27 pages of drivel and aided this time by DeFillippis there’s more boogieman straw monsters to slay and talk about on the RWNM.

    I did see some internet drivel about why Gardner’s DOJ is derelict in their duties by allowing this case to be brought. AG Gardner has nothing to do with this, because Durham is a Special Counsel that is deliberately independent by law and was put into place by Bill Barr to cause havoc like this. It lasts as long as Durham’s grand jury ambit does.

    • Temp_Name_08DEC2021 says:

      I think you meant AG Garland. This is such a flimsy case, I think Judge Cooper should dismiss it immediately and AG Garland should tell Durham its time to find a good rocking chair and tetire before he embarrasses the DoJ with another meritless case based on hearsay and bad memories.

      [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This is your second user name since 2018; I’m changing it to a temporary holder because you’ve used a pseudonym in the past. Let me know in comments if you really want to use your real life name instead of your previous pseud. Thanks. /~Rayne]

  9. joel fisher says:

    One hopes the Judge makes a decision which includes requiring disclosure of the exact lie Sussman is alleged to have told. And that this disclosure occurs in the very near term.

  10. Out of Nowhere says:

    Is this the same Andrew DeFilippis associated with United States v. Ali Sadr Hashemi Nejad? Did OPR ever review the conduct of the attorneys in that matter?

  11. Bay State Librul says:

    Off point — but can I tell you how much I despise Cotton and Cruz, two cynical and morally corrupt senators.

    Rollins finally appointed
    “But Rollins, 50, a criminal justice reformer and former assistant US attorney in Massachusetts, immediately drew objections from Cotton, who linked her to policies he said have contributed to a jump in violent crime nationwide. He joined with his Republican colleague, Texas Senator Ted Cruz, to blast Rollins at a September Judiciary Committee hearing that ended in an 11-11 deadlock along party lines on her confirmation, with outraged Democrats strongly defending her.” Boston Globe

  12. HanTran says:

    BMAZ or anyone. What does “doing it for” as in “Not doing this for any client” actually mean? Would Durham have to show Sussmann made billable hours to a client for that particular meeting with Brady? (Excuse me if its known that he did so bill). I guess, not too get to Bill Clintonish, I also wonder what the meaning of “it” is? Is “it” simply this particular meeting or is “it” any of the work he did regarding the unusual server activity? If he didn’t bill this meeting is that enough to prove that his statement (any version we have seen) was not a lie?

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