John Durham Flew to Italy to Get Joseph Mifsud’s Blackberries But Never Walked Across DOJ to Obtain James Baker’s Phones He Forgot He Knew Were There

Back in 2019, when John Durham undercut DOJ Inspector General Michael Horowitz’s conclusion that, for all the problems in the Carter Page FISA, the investigation itself was properly predicated and there was no evidence that the investigation into Trump’s associates had been politicized, Durham pointed to what he claimed was the broader scope of his own investigation that gave him reason to believe the predication was not clearcut.

I have the utmost respect for the mission of the Office of Inspector General and the comprehensive work that went into the report prepared by Mr. Horowitz and his staff.  However, our investigation is not limited to developing information from within component parts of the Justice Department.  Our investigation has included developing information from other persons and entities, both in the U.S. and outside of the U.S.  Based on the evidence collected to date, and while our investigation is ongoing, last month we advised the Inspector General that we do not agree with some of the report’s conclusions as to predication and how the FBI case was opened.

Durham pointed both to his review of other agencies — such as the CIA review he has now completed without results — and the boondoggles he took with Billy Barr overseas as the basis (he claimed) to know more than Michael Horowitz.

Durham’s statement came shortly after he obtained two Blackberriesone dating to 2011 and the other to 2014 — that once belonged to Joseph Mifsud. By all reports, the George Papadopoulos conspiracy theories that Barr and Durham were chasing on the trip to Italy where they got those phones amounted to nothing. Taxpayers paid for Durham to fly overseas to collect information that predates the Russian operation by years, all because a sworn liar invented excuses for his crime after the fact.

It’s not that Horowitz ignored the Coffee Boy’s conspiracy theories. Rather than taking a junket to Italy to rule out Papadopoulos’ fevered speculation, Horowitz just looked in the FBI’s informant database and called the CIA.

164 During October 25, 2018 testimony before the House Judiciary and House Committee on Government Reform and Oversight, Papadopoulos stated that the source of the information he shared with the FFG official was a professor from London, Joseph Mifsud. Papadopoulos testified that Mifsud provided him with information about the Russians possessing “dirt” on Hilary Clinton. Papadopoulos raised the possibility during his Congressional testimony that Mifsud might have been “working with the FBI and this was some sort of operation” to entrap Papadopoulos. As discussed in Chapter Ten of this report, the OIG searched the FBI’s database of Confidential Human Sources (CHS), and did not find any records indicating that Mifsud was an FBI CHS, or that Mifsud’s discussions with Papadopoulos were part of any FBI operation. In Chapter Ten, we also note that the FBI requested information on Mifsud from another U.S. government agency, and received a response from the agency indicating that Mifsud had no relationship with the agency and the agency had no derogatory information on Mifsud.


484 Papadopoulos has stated that the source of the information he shared with the FFG was a professor from London, Joseph Mifsud, and has raised the possibility that Mifsud may have been working with the FBI. As described in Chapter Ten of this report, the OIG searched the FBI’s database of Confidential Human Sources (CHSs) and did not find any records indicating that Mifsud was an FBI CHS, or that Mifsud’s discussions with Papadopoulos were part of any FBI operation. The FBI also requested information on Mifsud from another U.S. government agency and received no information indicating that Mifsud had a relationship with that agency or that the agency had any derogatory information concerning Mifsud.

This comparison is one reason it is so damning that Durham just admitted that he never sought to obtain (and falsely claims he never knew about) two phones formerly used by James Baker that were in the custody of DOJ IG all that time.

[I]n early January 2022, the Special Counsel’s Office learned for the first time that the OIG currently possesses two FBI cellphones of the former FBI General Counsel to whom the defendant made his alleged false statement, along with forensic reports analyzing those cellphones. Since learning of the OIG’s possession of these cellphones, the Government has been working diligently to review their contents for discoverable materials. The Government expects to make those materials available to the defense later this week.

The John Durham investigation made a big effort to obtain two dated phones based on a conspiracy theory, but didn’t even seek to obtain phones he should have known were in DOJ possession before indicting someone based off the single witness testimony of that person. Crazier still, in an update to the Court, Durham admitted that he learned but then forgot that Horowitz had obtained one of them during his prior investigation of Baker for a suspected leak.

This is not the only damning admission of investigative negligence in John Durham’s request for an extension of the deadline — which turns out to be a request for the deadline he originally requested — for what he calls discovery (but what is actually basic investigative steps he should have taken long before indicting Sussmann).

For example, in his indictment of Michael Sussmann, Durham gives the impression that Rodney Joffe only obtained data from the US in 2016 to hunt down damning data about Donald Trump. But in response to a Sussmann request, Durham conducted a review of all the 17,000 unclassified emails involving the email domain from one of Joffe’s companies, finding 226 from 2016 alone that pertain to this issue. As Sussmann has argued, lying to hide Joffe’s involvement in this would be counterproductive given how closely he works with FBI.

[T]o the extent the Indictment alleges that the FBI General Counsel and FBI might have done various things like ask “further questions,” taken additional or more incremental steps,” “allocated its resources differently or more efficiently,” or “uncovered more complete information” but for Mr. Sussmann’s purported false statement, the Special Counsel should be required to particularlize those potential questions, additional steps, resource allocations, or more complete information. Id. This is particularly necessary because [Joffe] — far from being a stranger to the FBI — was someone with whom the FBI had a long-standing professional relationship of trust and who was one of the world’s leading experts regarding the kinds of information that Mr. Sussmann provided to the FBI. The notion that the FBI would have been more skeptical of the information had it known of Tech Executive-1’s involvement is, in a word, preposterous.

Similarly, the indictment makes much of the fact that Sussmann shared information with the NYT that ultimately led to an infamous October 31 story. It suggests without evidence that Sussmann — or even the Congressional sources who obviously played a role in the story — were the only ones pushing the Alfa Bank story to the NYT. It further suggests, falsely, that all the material NYT obtained on Alfa Bank came from Joffe’s effort. Crazier still, until Sussmann asked, Durham hadn’t pulled the details from a meeting the FBI (one that included James Baker and Bill Priestap, almost certain to be witnesses at Sussmann’s trial) had with the NYT.

On September 27, November 22, and November 30, 2021, the defense requested, in substance, “any and all documents including the FBI’s communications with The New York Times regarding any of [the Russian Bank-1] allegations in the fall of 2016.” In a subsequent January 10, 2022 letter, the defense also asked for information relating to a meeting attended by reporters from the New York Times, the then-FBI General Counsel, the then-FBI Assistant Director for Counterintelligence, and the then-FBI Assistant Director for Public Affairs. In response to these requests, the Special Counsel’s Office, among other things, (i) applied a series of search terms to its existing holdings and (ii) gathered all of the emails of the aforementioned Assistant Director for Public Affairs for a two-month time period, yielding a total of approximately 8,900 potentially responsive documents. The Special Team then reviewed each of those emails for relevant materials and produced approximately 37 potentially relevant results to the defense.

Pulling these records would have been just the first step Durham should have taken to figure out what other entities might have been pushing this story to the NYT and what specific allegations those entities were pushing to test some of the insinuations Durham makes in the indictment. Yet Durham never thought to look for these records before he indicted Sussmann.

Still, Durham’s failure to do anything to understand what DOJ IG had done in its parallel investigation is the most remarkable.

Before Durham was formally appointed, Billy Barr’s top aide Seth DuCharme seemed to be attempting to deconflict the investigation by bringing the two men together to talk about scope.

Perhaps Durham’s public rebuke of Horowitz undermined any cooperation since then (though Durham was certainly happy to take the Kevin Clinesmith case that Horowitz had wrapped up in a bow and claim it as his only visible sign of life for years).

But according to Durham’s filing, he didn’t reach out to Horowitz’s office until three weeks after indicting Sussmann (and perhaps more importantly, less than four weeks before indicting Igor Danchenko, in whose prosecution the DOJ IG investigation plays a central role). Durham presents his team reaching out to another unit at DOJ that he knew to have relevant material as some great feat of diligence rather than something he should have done years earlier.

On October 7, 2021, at the initiative of the Special Counsel’s Office, the prosecution team met with the DOJ Inspector General and other OIG personnel to discuss discoverable materials that may be in the OIG’s possession. The Special Counsel’s office subsequently submitted a formal written discovery request to the OIG on October 13, 2021, which requested, among other things, all documents, records, and information in the OIG’s possession regarding the defendant and/or the Russian Bank-1 allegations. The Special Counsel also requested any transcripts or other documents within the OIG’s possession containing certain search terms. In response, the OIG provided, and the Government has produced to the defense in redacted form, relevant transcripts of interviews conducted by the OIG during its review of the FBI’s Crossfire Hurricane investigation.

That’s what led Durham to discover, for the first time, the anonymous tip of the same sort — weird forensic data discovered by Joffe — that Sussmann shared with DOJ IG in the same time period Durham was investigating.

It wasn’t until Durham asked the FBI Inspection Division for call data associated with Baker’s phone this month that they told him — because Durham had apparently never asked, not even given the endless focus on Peter Strzok and Lisa Page texts Horowitz obtained way back in 2017 — that DOJ IG had two phones that Baker had used. After Durham publicly claimed not to have known about the phones, DOJ IG then informed him that he learned DOJ IG obtained one of them in 2018 during a different investigation of Baker.

Durham’s belated outreach to DOJ IG may in fact be what first led Durham to discover the interview DOJ IG did with Baker on July 15, 2019 — shortly after deconfliction meetings in advance of Durham’s appointment — in which Baker said something that materially conflicts with the statements Baker has made to Durham, statements that in fact confirm Sussmann’s story.

Durham also obtained a transcript — the only one he provided to Sussmann in unredacted form — about some other investigation that Horowitz is currently conducting.

the transcript of an interview conducted by the DOJ Office of Inspector General in connection with an administrative inquiry that is currently ongoing;

And now, part of the reason Durham is asking for a delay in his existing deadline is that requests of Horowitz he should have made at the beginning of any investigation into whether Sussmann falsely set up Trump are proving too onerous for DOJ IG (which is working on a slew of reports on events that aren’t five years past) to do on their own.

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

At this point, four months after indicting Michael Sussmann and two years after claiming he knew better than Michael Horowitz, Durham doesn’t know whether he even consulted the same records that Horowitz did.

As noted, if the same is true with respect to the Danchenko case, it is potentially lethal to Durham’s case, because his investigative theory (which is that Danchenko is responsible for FBI’s failure to act on problems with the dossier) is fundamentally incompatible with Horowitz’s (which is that it was FBI’s fault for not acting).

Durham does know, however, that he didn’t consult something that Horowitz did: Baker’s actual phones.

And that may have a real impact at trial.

At a status conference, Durham’s prosecutors dismissed the possibility that they had bullied Baker into telling the story they wanted him to tell on threat of prosecution: that Sussmann affirmatively lied about having a client, which conflicts with several other claims he had previously made under oath. They said (in a scheduling motion), instead, that once Durham’s prosecutors refreshed Baker’s memory with notes from Bill Priestap and someone else he spoke with after the Sussmann meeting, Baker remembered that Sussmann had actually affirmatively lied.

Mr. Baker made these statements before he had the opportunity to refresh his recollection with contemporaneous or near-contemporaneous notes that have been provided to the defense in discovery. Indeed, the defendant’s motion entirely ignores 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.

Effectively, they claimed they had better information when questioning Baker than anyone previously had.

Durham is going to have to present that to the jury, probably through the testimony of one of the FBI agents involved.

But that claim only works if Durham’s team had a more complete record than Horowitz’s team did when they asked the same questions. Durham doesn’t know whether that’s true or not yet, because he never bothered to figure out what Horowitz had. The delay Durham wants to do investigative work he should have done years ago is a delay, in part, to see whether that claim has any basis in fact. (And at least in December, Durham had only provided a heavily redacted transcript of what went on between Baker and the IG.)

All parties know one thing, however: That when Horowitz conducted questioning of Baker in 2019 about this topic, unlike Durham, he had consulted with Baker’s own phone. Durham can no longer claim to have been more thorough than Horowitz, because he just admitted he didn’t even bother consulting Baker’s phones and is only now getting around to checking what else Horowitz might have consulted that he did not.

John Durham indicted Michael Sussmann on the last possible day he could have under the statutes of limitation. And now, he’s asking for a delay in discovery deadlines (if not a delay in Sussmann’s trial), so he can do basic investigative work he should have done before the statutes of limitation tolled.

Update: Judge Cooper has granted Durham’s extension.

Update: Holy shit it gets better! Durham just had to admit that, in an earlier investigation of Baker, he learned DOJ IG had obtained this phone.

After reviewing the Special Counsel’s Office’s public filing, the DOJ Office of Inspector General (“OIG”) brought to our attention based on a review of its own records that, approximately four years ago, on February 9, 2018, in connection with another criminal investigation being led by then-Acting U.S. Attorney Durham, an OIG Special Agent who was providing some support to that investigation informed an Assistant United [sic] Attorney working with Mr. Durham that the OIG had requested custody of a number of FBI cellphones. OIG records reflect that among the phones requested was one of the two aforementioned cellphones of the then-FBI General Counsel. OIG records further reflect that on February 12, 2018, the OIG Special Agent had a conference call with members of the investigative team, including Mr. Durham, during which the cellphones likely were discussed. OIG records also reflect that the OIG subsequently obtained the then-FBI General Counsel’s cellphone on or about February 15, 2018. Special Counsel Durham has no current recollection of that conference call, nor does Special Counsel Durham currently recall knowing about the OIG’s possession of the former FBI General Counsel’s cellphones before January 2022.

This post has been updated to reflect how Durham learned he already knew of the phones.

Timeline of Sussmann discovery

September 16, 2021: Michael Sussmann indictment

September 27: Sussmann asks for:

  • All evidence from wiretaps or eavesdropping (there appears to be none)
  • All communications regarding Sussmann’s security clearance reviews (900 pages)
  • Any documents pertaining to FBI treatment of anonymous tips (with repeated follow-ups)
  • All FBI communications with the NYT regarding Alfa Bank allegations in 2016 (with repeated follow-ups)
  • Materials regarding relationship between Joffe’s companies and government agencies; FBI results for 2016 result in 226 emails

October 7: Durham team meets with DOJ IG to discuss discoverable material in DOJ IG possession

October 13: Durham issues a formal discovery request to DOJ IG

October 13: Sussmann asks for Priestap’s notes

October 20: Sussmann reviews Priestap’s notes

October 25: Sussmann reply memo reveals he still hasn’t received taxi billing records and other identifiable Brady material, including an “unclassified grand jury testimony of an immunized witness, that either exculpate[s] Mr. Sussmann or conflict[s] with the core allegations that the Special Counsel has made against him”

October 29: Sussmann’s team obtains clearance

November 3: Igor Danchenko indictment

Week of November 15: Durham turns over some, but not all, of Baker’s statements, including conflicting DOJ IG fragment

November 22: Sussmann follow-up on request for FBI communications with NYT; after previously accepting June trial date, Durham proposes July 25

November 30: Sussmann follow-up on request for FBI communications with NYT; says Durham is missing some of the CIA employees in February 9, 2017 meeting

December 6: Sussmann moves for trial date, describing that Durham needs four more months for discovery

December 7: Durham response; Sussmann first gets Baker grand jury transcripts; just three grand jury transcripts provided by that point

December 8: Status conference at which Sussmann attorney reveals they’ve just seen Baker grand jury transcript

December 10: Sussmann asks for records “any records reflecting any consideration, concern, or threats from your office relating to those individuals’ or their counsels’ conduct. . . and all formal or informal complaints received by you or others”

December 14: Scheduling order

December 17: DOJ IG gives Durham forensic report arising from previous Sussmann tip

December 23: Durham gives Sussmann forensic report from DOJ IG tip

Early January 2022: OIG says it can’t get through the discovery on Crossfire Hurricane investigation by itself

January 5: Durham asks FBI Inspection Division about call log data for Baker’s phone

January 6:  FBI Inspection Division tells Durham that DOJ IG has Baker’s phones

January 7: Durham asks DOJ IG about the phones

January 10: DOJ IG provides the information on Baker’s phones; Sussmann asks for information regarding meeting with NYT, James Baker, Bill Priestap, and Michael Kortan (result did not come up on searches, so Durham had to search through 8,900 pages of Kortan’s records, resulting in 37 results)

January 20: Durham asks to have until “the end of March” for discovery (effectively, his originally requested deadline); Sussmann tells Durham he met with DOJ IG in person in March 2017 about anonymous tip

January 21: Sussmann response agreeing to February 11; DOJ IG confirms they did meet with Sussmann

January 25: Durham submits filing claiming he never knew DOJ IG had Baker’s phones (in response DOJ IG reminds Durham he already knew of one of the phones)

January 26: DOJ IG provides second forensic reports on the phones to Durham

January 28: Unclassified discovery originally due; Cooper grants extension to March 18 in the morning; Durham provides initial forensic reports to Sussmann and then (at 11:52PM) informs court he had previously been informed of Baker’s phone years ago

February 11: Classified discovery due

February 18: Motion to Dismiss due

March 18: 404(b) and remaining Jencks and Giglio due

March 25: Durham’s initial and second requested discovery deadline

May 16: Existing trial date


137 replies
  1. Zirc says:

    It seems that not only has Durham withheld vital evidence from the defendant, he has withheld it from himself.


    • Desider says:

      Did someone tell Aaron Maté, Matt Taibbi & Glenn Greenwald? They might be working on a correction, being the conscientious journalist type, among a few other sites that were a bit hard on Sussman (and Clinton)

    • J R in WV says:

      Is this Durham’s public display of incompetence sufficient to cal for his resignation, and raking back all the money he earned while falsely claiming to be a competent prosecutor?

      I mean if he obviously and publicly can’t do the job correctly, he shouldn’t get the money and accrue pension benefits, right? What a dork!

    • Tim Tuttle says:

      Another brilliant piece by EW.

      I keep wondering if Durham is really this incompetent? Or worse, this shady?

      By all accounts he was a great student at Colgate but ended up at UConn law.

      My brother was in his class at CU. A small school. He didn’t meet him in 4 years. Nobody he knows met him in 4 years either. They searched the 5 year alumni gatherings. Nope.

      All I can find is his heavy Catholic works in Connecticut. Which is nice but basically leads me to the resident Opus Dei wannabe fascist theocrat…Billy Barr.

      Call me crazy. Call me concerned about Barr, Kavs, Roberts, Alito, Gorsuch, Leonard Leo, the USCCB, The Federalist Society, Notre Dame Law…

      And then Durham.

      Something’s rotten in Denmark.

      Just my dark opinion. It’s probably nothing.

      • Ginevra diBenci says:

        It’s not crazy; extreme right-wing Catholicism has swept from European strongholds like Orban’s Hungary back into this country’s power centers. But you have to be careful through whom you trace it. Leonard Leo and his wife have dressed up like late 19th century military courtiers for such events as their daughter’s NYC coming-out party, but as ominous (and absurd) as that looks, they weren’t beheading infidels in Long Island City.

  2. Alan says:

    > …so he can do basic investigative work he should have done before the statutes of limitation tolled.

    I think you mean expired, not tolled?

    (Please feel free to delete this comment if you make a correction, or if the original is correct, either way…)

    • Lindy says:

      Tolled worked just fine for me.

      [Welcome back to emptywheel, it’s been a while. Please use the same username each time you comment so that community members get to know you. This is your second user name. Thanks. /~Rayne]

      • Lindy says:

        Hi, Rayne. I visit and share the links frequently but comment infrequently. I’m also retired, have had heart surgery and don’t remember my first user name. I use this one across several sm accounts, though and will continue to use it. You can delete this comment if you want. I just wanted to say hi. I remember you from FDL.

        • bmaz says:

          You are fine, and thank you much for joining and commenting. Please keep doing so, even if name consistency is a good thing.

  3. Peterr says:

    This is not the only damning admission of investigative negligence in John Durham’s request for an extension of the deadline — which turns out to be a request for the deadline he originally requested — for what he calls discovery (but what is actually basic investigative steps he should have taken long before indicting Sussmann).

    I love the phrase “investigative negligence” but I’m also wondering if this is something worse.

    Durham’s actions increasingly remind me of what Trump said to the acting AG about the election results: “Just say that the election was corrupt + leave the rest to me and the R. Congressmen.” At this point Durham ought to be worried that Sussmann’s lawyers are going to lay things out in court in such a way that the judge wonders if this is not investigative negligence nor prosecutorial incompetence but part of a planned effort to weaponize the legal system in service of a political goal.

    • klynn says:

      “…but part of a planned effort to weaponize the legal system in service of a political goal…”

      Yep. Now you have me contemplating the 4W’s + how + to what extent of a planned effort.

    • PieIsDamnGood says:

      I was wondering exactly the same thing.
      Is Durham just bad at his job? Did he drink the russiagate flavor-aid?

      • emptywheel says:

        He definitely drank the kool-aid (tho the term “russia-gate” is itself part of the propaganda designed to undermine the real allegations).

      • Spencer Dawkins says:

        Durham does NOT inspire confidence. I think I’ve been muttering “what a tool!” to myself since Marcy’s first post on the Durham appointment.

      • Marinela says:

        Could be that he is really good at his job, but not the official take.
        He is behind on the tasks of the special counsel official job, while using his position to cover up for more nefarious things?
        Who is he reporting to? Mueller had to report to Rosenstein, I assume Durham reports to somebody at DOJ?
        Seems fishy DOJ lets him play incompetence without any checks…

      • Commander Ogg says:

        This investigation reminds me of the Whitewater affair and a Gentleman by the name of Kenneth W. Starr.

        A former Appeals Court Judge and US Soliciter General, Starr traded in his reputation because he thought it would lead to a Seat on the Supreme Court. Instead he ended up a disgraced liar who violated Rule 6(e) by repeatedly leaking Grand information in order to damage the Clinton Presidency (
        Durnham appears to be heading down this dark path. Sad.

        • Desider says:

          Starr was 50. Durham’s almost 72. And it’s unclear whether Durham’s already retired on the job.

      • Peterr says:

        AG Mukasey appointed Durham to investigate the destruction of the CIA’s torture tapes . . . and he found no reason to file charges.

        AG Holder appointed Durham to investigate torture more broadly, and (with Holder’s decision that CIA officers acting “in good faith” were immune from prosecution) again found no reason to file charges.

        Point is, Durham has been around a long time, and (from where I sit) has been quite ready to defend the institution of the DOJ narrowly and the executive branch more broadly. Here, though, it seems he has gone from institutional defense to personal defense of whatever would threaten the president and his reelection, whether it is his investigation into Crossfire Hurricane, the origins of the Muller investigation, or anything else.

        I’m beginning to wonder if/when Trump told Durham, “I would like you to do us a favor, though.”

        • timbo says:

          Basically, yep, Durham seems to be someone who is there to do the bidding of those who want to undermine the rule-of-law in the US. Basically, he carries the water for whatever hatchet job the GOP will assign him to.

    • youngetal says:

      My thought exactly (“…part of a planned effort…”), I see conspiracy everywhere I look. Ugh. But honestly, “If it’s what you say, I love it.”

    • Onymous says:

      I’ve always thought Durham’s slow walking the investigation was directed at bringing it to some spectacular public outbreak in an election season. It doesn’t matter if the suit fails, that nicety will be overlooked by the cultists enraged again about “Russiagate.” It’s always been nothing but bs of the rankest kind.

    • Eastern Ash says:

      With that carry-on mustache and the portmanteaus of chew-over discovery material, the pasta pilgrim should have been assessed the Masticated Durum Tariff.

  4. Rugger9 says:

    Official incompetence is not criminal as a rule, but lawbreaking is when handling cases involving official duties like this one. IANAL but it would seem to me that any prosecution of Durham for misconduct under color of authority (remember the GQP wants people locked up for a lot less) would have to show intent or gross incompetence / depraved indifference in some form. I don’t know this is at that point yet, but it is certainly closer than it should be.

    Maybe there needs to be a smoking gun from the WH to Durham about how to time the filing (it does have the stench of firing an FBI agent on the last day before eligibility for retirement to it) before that line is crossed. and perhaps the reason we are seeing this activity now aside from other existing deadlines is that the J6 committee has the archivist records having established the fact the the WH cannot withhold records from a Congressional investigation. I do not think it likely that the J6 records have our smoking gun, but since the precedent is now laid out, someone will ask beyond Sussman’s team.

    I would be extremely surprised to learn that the FBI does not have a procedure and checklist that Durham trained to, precisely to avoid this kind of error leaving egg on the face of the government at trial. So even allowing for my observation that this whole case is for publicity rather than prosecution, there will be a paper trail and/or string somewhere that shows an attempt was made to follow procedure and Durham went off on his own snipe hunt. Finding that documentation would go a long way to prove intent to abuse his authority.

    Also, since it appears from the legal filings that Durham’s crew has presented claims of certainty in the past, I would guess that the judge will have seen enough pretty soon and will just dismiss with prejudice on a directed verdict (however the feds do that), and maybe some sanctions and bar referrals to go with it. The lawyers here will know.

        • Peterr says:


          When I was an exchange student in (West) Germany, I knew my language skills were getting good when I could understand jokes made by others and make puns of my own in German.

          *raising a glass*

          To multi-lingual humor!


        • emptywheel says:

          When I studied in France the father of the family I boarded with always responded, when I asked what the French term for the specific fish we were eating, “Tu connais un poisson nommé Wanda?” riffing on the film A Fish Called Wanda.

          He was a fucker. But eventually I got the joke.

        • punaise says:

          When I was first living in France, along with another American friend we played a silly word game based on the mispronunciation or anglicization of French place names. It started off something like “Normandy I don’t do this sort of thing”… and after a good long time it ended with “OK I’m Bordeaux this, Verdun.”

        • punaise says:

          Yes, we Cannes! I hate to Bruges in and be Antwerp about this, but all of Europe is fair game…

          ETA: “Are we Dunkerque? Verdun.

        • Alexi says:

          Ouch. (I hope I’m not the only one who got that)

          PS. Thanks for all the work you do. It’s helpful. Confusing at times too. ;-)

  5. Molly Pitcher says:

    On an interesting side note, from the NYT:

    “WASHINGTON — The House committee investigating the Jan. 6 Capitol attack issued 14 subpoenas on Friday to people who falsely claimed to be electors for President Donald J. Trump in the 2020 election in states that were actually won by Joseph R. Biden Jr., digging deeper into Mr. Trump’s efforts to overturn the results.

    The subpoenas target individuals who met and submitted false Electoral College certificates in seven states won by President Biden: Arizona, Georgia, Michigan, New Mexico, Nevada, Pennsylvania and Wisconsin.”

  6. dejavuagain says:

    Great article. In an effort to encourage journalists from WaPo and NYT, who copy your articles without adequate credit, I hereby provide to them citation to the Sussman case and a CourtListener citation to the docket. It is my wish that journalistic articles provide the necessary information for readers to locate court documents discussed in the article, and that at the end of each article, the journalists add the following (with or without the CourtListener Cite.) It is really tiresome to read accounts of court cases and statements by judges, when the articles do not even naming the judge or the court. So, this is for the lurking journalists, especially those who do not credit Empty Wheel.

    United States v. Sussmann, No. 1:21-cr-00582-CRC (D.D.C. Filed September 16, 2021). Hon. Christopher Reid Cooper.

    And thanks to Empty Wheel for the links to CourtListener. Please support RECAP and the Free Law Project.

  7. John Paul Jones says:

    This bothers me:

    “The OIG therefore requested that the Special Counsel’s Office assist in searching these materials.”

    Wouldn’t that be a (sort of) conflict of interest? I mean, I understand that the SCO and OIG are “on the same side,” technically speaking, but if members of Durham’s team have also sipped the Kool-Aid they would have motive to mess with the searches, to conceal or otherwise mislead in what they selected, and how they later presented it.

      • Peterr says:

        Not a legal mind here, but I speak bureaucratese . . .

        This is a big slap-down by the OIG, telling the Special Counsel’s Office to do their own damn work, quit disparaging the work of the OIG, and don’t try to drag us into the mess you are making. They are saying “We are NOT going to do your job for you, especially since you don’t care for the work we’ve done already. Go. Pound. Sand.”

        • emptywheel says:

          It also makes Durham responsible for any failures.

          Durham asked for discovery, and then Horowitz made them put it in writing. Presumably, they didn’t include Baker’s phone. So they didn’t get Baker’s phone.

          Then they learned (again) about Baker’s phone and are trying to blame Horowitz. And that appears to be when Horowitz said, “find your own damn discovery.”

        • Peterr says:

          . . . and laughed. You know that Horowitz had to be laughing.

          Makes me wonder if Durham was this bad at his job when investigating the destruction of the torture tapes, or torture more broadly. OK, I don’t really wonder that much, as he’s making it abundantly clear. What I do wonder is *how* Durham screwed up those investigations, and whether they could be resuscitated because of his mistakes.

  8. obsessed says:

    Off-Topic: While we wait for more action on the 1/6 front, the media seems focused on the slates of forged electors. How do you guys see this? Is it a Steele Dossier/shiny object-type item that you don’t think will amount to much or is there some there there? There’s so much animosity towards Maddow here that I’ve started second-guessing this whole story. Where do people the best hope of accountability for Trump currently lies? 1/6 in the courts? 1/6 in Congress? Georgia? Manhattan? And I still don’t understand why Mueller’s obstruction issues have died on the vine. I guess there must be some reason that hope has shifted to new investigations. I’m thinking of changing my 20-year old handle from “obsessed” to “depressed”.

    • Rugger9 says:

      The “there” that is there is covered elsewhere…

      OT, any comment on Avenatti’s bad day in court for those who need a laugh?

    • Rayne says:

      WRT to the question of the “forged” electors. Ignore the Maddow-animosity thing. There’s definitely a problem with the “alternate” electors. At least two states added caveats which might keep them out of trouble with their fraudulent “alternate” certification, but the other five states have exposure.

      WRT to the rest: we’re not here to help you hedge your bets. Stop whining about not getting results the way you want them when you want them. If this is to be a democracy, a nation of laws, then the laws must be followed to realize justice which takes time.

    • Peterr says:

      The “forged electors” is a misnomer — what is really going on is fraud, not forgery.

      Best hope for accountability? Georgia is the most narrowly defined case, and appears to be the most open-and-shut case against him. NY (either state or NY DA) appears to be the most document-oriented case, and thus least susceptible to a “but it’s all politics” defense. (“You said this on your filing with the state about the value of your assets, but you said that on your filing with the bank about the very same assets.”) The Jan 6 select committee seems very aware that congressional committees can screw up Department of Justice court cases, and are trying their best to avoid making problems for the DOJ and their investigation. At this point, Muller’s investigations have (for better or worse) been tarred as political, and so at best they can support other cases but a US Attorney would have more trouble pushing them forward on their own.

      To me, the combination of DOJ and Jan 6 House committee investigations appear to be a remarkably good pincer movement to come to accountability. As Marcy has noted, the DOJ stuff is not simply picking off the cannon fodder who stormed the Capitol, but has higher level folks in their cross hairs as well. Similarly, the Congressional committee work has been effective at keeping the larger conspiracy before the American public, even as they move to hold specific individuals accountable.

      Don’t move to “Depressed.” If you’re going to change your handle, perhaps “Persistent” might be appropriate.

      • Bay State Librul says:

        Raskin said Mid-April for hearings.
        My concern — we go to war with Russia, and all bets are off.
        The Republicans/Fox News will sidetrack the hearings.
        The 71 million morons who voted for Trump will be pumped.
        Aleve or Motrin?

    • BobCon says:

      As far as waiting for developments and media chasing shiny objects, I was struck by this Washington Post article on Gaetz which seems to be narrowly focused on the underage sex angle:

      It relies heavily on the reporting of Matt Zapotosky, who MW has documented as bending over backwards to avoid connecting any dots between 1/6 and Trump and his crew.

      And by no coincidence, this Post piece on Gaetz bends over backwards to not mention connections between Gaetz, Greenberg and Roger Stone, including offers of large payments in exchange for pardon help right before 1/6.

      There’s an obvious question of who was funding Stone’s ground troops in the weeks prior to 1/6, and the Greenberg offer of $250K as just one of the suspicious pardon bids during that time seems to potentially slot into that need.

      I get that the underage exploitation angle is easy for reporters to focus on, but it sure seems questionable for the Post to ignore the well known Stone angle to the point that they don’t even mention his name.

      Not surprisingly, NY Times reporters including Michael Schmidt have barely mentioned the Greenberg-Stone connection in the Gaetz case, despite more extensive coverage elsewhere.

      I don’t think Zapotosky and Schmidt are unaware of the potential for the Gaetz case to open up a new front on Stone. I think they just are hoping really hard it doesn’t.

    • emptywheel says:

      No. It’s really important. DOJ can only investigate a crime. Here, you’ve got 7 crimes (fraud and forgery), that are obviously coordinated. It gives DOJ the lever to get to the Willard stuff.

      • harpie says:

        WILLARD stuff like connections with KERIK [> GIULIANI] noted in this article by Hunter Walker you retweeted yesterday:

        Trump Campaign Aide Among 14 ‘Alternate Electors’ Subpoenaed By January 6 Committee The list also included multiple local Republican Party officials. Hunter Walker 1/28/22

        Lisa Vranicar Patton, who identifies herself as the Pennsylvania state events director for former President Trump’s 2020 campaign […]

        In a message posted to Twitter on December 4, 2020 [12/4/20], Patton posted pictures indicating she attended a private holiday party where she met former Vice President Mike Pence at his official residence. Eight days earlier [11/26/20], Patton made a post indicating she had just spent “the day” with former New York City Police Department Commissioner Bernard Kerik and Rep. Scott Perry (R-PA) […]

        • emptywheel says:

          Yes. And that’s just for starters.

          Plus there’s a ton of witnesses, some of whom already chose not to participate in all this. It won’t take much to get some of them to cooperate.

        • Peterr says:

          Talking to the GOP electors who were replaced on the false documents would be a nice place to start. Presumably they were replaced because they refused to be part of the fraud, and they would have some very interesting stories to tell.

        • Marika says:

          It is looking to me that the Jan 6 commission is going for people that they can give immunity to without damaging criminal cases against others, i.e. the electors who refused to go along with it and had to be replaced. Thanks for your attention to detail in all this. I find it good to re read your articles to understand all the nuances. The Durham investigation stories are particularly intricate. I see it blowing up in his face at some point. Garland appears to be letting him twist in the wind.

    • emptywheel says:

      Right? For good reason, though. The Danchenko case, at least, has the risk of exposing Horowitz, in addition to Durham.

      Which may be why things went south after he was indicted.

  9. Savage Librarian says:

    Those fools in a tub,
    Who do you think they be?
    The botcher, the Baker,
    The gaslight maker,
    In idiots’ synchrony.

    • Ginevra diBenci says:

      SL, I only wish I had your ability to see things “slant,” as in “the botcher, the Baker”–it seems so simple but it just keeps boggling my excuse for a mind. I will spend a lot of time wondering who you meant by “the gaslight maker,” too. It’s one thing to use one (to gaslight) but another thing to create the means.

      Thank you for asking how I’ve been. Now that January’s almost over and the days last longer (but not too long), I’m looking forward to February which is my favorite month for the fab light and hints of change. It’s always wonderful to see you here. I will never stop marveling at your ability to juggle language into bright new things never seen before. I hope you are collecting these somewhere besides EW, which I just discovered we can’t search by individual posters while I was looking to respond to you. I can’t be the only one looking for a SL compendium.

  10. Molly Pitcher says:

    “Trump Tower Lawyer Veselnitskaya Accused of Brand New Crime in Leaked Docs ”

    “Trump Tower lawyer Natalia Veselnitskaya has been accused of an elaborate new plot to pervert the course of justice.

    Veselnitskaya, the pro-Kremlin lawyer who attended the notorious 2016 Trump Tower meeting with Donald Trump Jr. and Jared Kushner, allegedly doctored official documents, according to leaked files viewed by The Daily Beast.”

    New documents allege that Veselnitskaya or her team may have employed a similar strategy to tamper with supposedly independent evidence submitted to a court in a related case in Switzerland, where Veselnitskaya’s clients—Denis Katsyv and his company Prevezon—were at the center of a massive tax fraud and money-laundering investigation that was dropped last year.

  11. WilliamOckham says:

    This latest twist is almost too good to be true. How long do you think it will be before Sussman points out that Durham just admitted to making a false statement that is arguably more significant than the one Sussman is alleged to have made?

    • emptywheel says:

      Spouse and I took a drive out the Shannon. I spent much of it telling him the story, including the “refresh the memory” claim from the December status hearing.

      And JUST when I was about to deliver my punch line, he interrupts and says, “let me guess, Durham had to refresh his memory.” But instead, Durham claimed that contemporaneous records don’t, in fact, refresh one’s memory all that much.

  12. harpie says:

    MARCY, did you see this?:
    12:38 AM · Jan 29, 2022

    Seems like the Durham investigation filed an admission of a major fuckup around midnight on a Friday during a snowstorm. [link] [screenshot]

    Here’s the section of the underlying discovery update that the supplemental filing refers to; it discusses the potential DOJ OIG discovery materials in the Sussman case. Some of the dates are a little confusing given that Sussman wasn’t charged til Sep. 2021. [screenshot]

  13. harpie says:

    MARCY, did you see this?:
    12:38 AM · Jan 29, 2022

    Seems like the Durham investigation filed an admission of a major fVckup around midnight on a Friday during a snowstorm. [link] [screenshot]

    Here’s the section of the underlying discovery update that the supplemental filing refers to; it discusses the potential DOJ OIG discovery materials in the Sussman case. Some of the dates are a little confusing given that Sussman wasn’t charged til Sep. 2021. [screenshot]

    • harpie says:

      Just before the excerpt Marcy posts in the update:

      DURHAM: The Government wishes to provide some additional
      context for this statement.

      Earlier, he called it clarifying information. LOL!

    • Atomic Shadow says:

      ALL of my comments go to moderation and I never used any swear words.


      [You have a choice: Deal with it, don’t comment at all, or leave. This site’s security does what it needs to do and you’re obviously not the only person who gets caught in the net. DDoSing threads with unnecessary comments doesn’t help matters. /~Rayne]

    • John Paul Jones says:

      Para. 3: “Assistant United Attorney”. I’m guessing they mean an Attorney for the United States rather than United Airlines, but still. That is some filing; I laughed; I cried.

  14. Robert Walter says:

    Thing that never made sense to me about Barr’s (now Durham’s) putative travel to Italy was that they went in person when there was no need for that. (This would be like the CEO of GM making a house call to tighten a loose screw.)

    I mean, given that both have MLAT’s, LEGAT’s and Ambassadors available to assist, collect and facilitate (respectively) as necessary.

    I always thought Barr’s trip was cover for some kind of dodgy Trump bag job.

  15. Nigel Senna says:

    IANAL, but I have enough medals on my chest to break a Christmas tree, all I want to know is, what in the wild, wild world of sports is goin’ on around here?

    • bmaz says:

      Eh, we actually do sports here, including, very notably Formula One. So, as Earl said, what in the world are you talking about? And, yeah, I know who Nigel and Senna are, and even met them both.

        • Peterr says:

          Also, Denver hired the Packer’s offensive coordinator to be their new head coach, and the speculation is that Biff Elway did so at least in part to try to lure Aaron Rodgers to the Broncos. The Broncos GM vigorously denies that, but that won’t keep folks from speculating.

        • Rita says:

          I think Aaron Rodgers will go to the 49er’s. He wanted to be drafted by them. He can’t beat them in games that count. Might as well join them.

          OT – Whatever happened to the DOJ IG Report on DOJ alleged improprieties after the election? Or am I dreaming that one up?

        • Rugger9 says:

          Until this past year I might have agreed, especially if Jimmy G leaves. However, the vaxx issue is a helluva lot of baggage to try to hide and I really do not see Aaron Rodgers being able to pull it off.

  16. graham firchlis says:

    OT, but timely:

    Huge props to the Irish fishers who confronted the Russian navy and backed them down.

    Well done!

  17. Vinnie Gambone says:

    Solidarnosc-tic. Huh? Up the Irish!
    Reminds me of the old polish joke from Solidarnosc period,
    “Did you hear about the American Labor Movement?”
    “No, what ? ”
    “They only strike one industry at a time.”

  18. Zinsky says:

    Once again – WOW! How you can keep all of this information and it’s myriad entanglements straight, is beyond belief. Durham is so abusing of his investigative powers that it makes Ken Starr look judicious. Yet, go on Fox News and their spin is that Durham has single-handedly exposed the Russia-Russia-Russia investigation and the Steele dossier as a hoax and a fraud. It is really astonishing but thank you for writing the accurate history of these dark years of the Trump era.

  19. P J Evans says:

    And in 1/6 delusions: the former guy says he’ll pardon the 1/6 insurrectionists. How he’ll do that, when he isn’t in office, and most will be out before the end of this year, let alone before 2025…well, that’s the delusion.

    • Al Ostello says:


      Known as “Don the Con” for decades in New York City…Trump stokes the anger and fears of his gullible followers/sycophants and offers them a hot steaming pile of bullshit on the daily. That is his jam.

  20. Bay State Librul says:

    Bmaz at 3:08 PM

    Premature ejaculation for Brady.
    Your man Schefter lobbed up an eephus pitch?
    Probably true, but Brady wants to make the announcement.
    On the Hall of Fame vote — Whatever became of Debbie Clemens, who served up her alibiing for Roger, heard “round the world” confession
    Clemens is a lying sack of shit.
    He said he doesn’t care if he is Cooperstown bound.
    Fucking dribble while imitating Rogers Hornsby quip “It makes no difference where I go or what happens, so long as I can play the full nine.”

    • bmaz says:

      You know, occasionally even one of our comments ends up in moderation. You have no idea the security concerns this blog faces, and they are very heightened currently, and will be for the foreseeable future. People have to live with the occasional inconvenience.

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