Donald Trump Suggested Michael Sussmann Should Be Killed because Rodney Joffe “Spied” on Barack Obama

Michael Sussmann has filed his response to John Durham’s transparent attempt to inflame the frothers. In it, he notes what I did: Durham used an unrelated filing (one that, Sussmann’s filing noted, had already been addressed between the parties) to make claims that were not charged.

Importantly, he notes that Durham misrepresented the dates of the anomalous data found at the Executive Office of the Presidency that Sussmann presented at a February 9, 2017 meeting with the CIA. The data predates the Donald Trump inauguration.

In his Motion, the Special Counsel included approximately three pages of purported “Factual Background.” See Dkt. No. 35 at 2–5. Approximately half of this Factual Background provocatively—and misleadingly1 —describes for the first time Domain Name System (“DNS”) traffic potentially associated with former President Donald Trump, including data at the Executive Office of the President (“EOP”), that was allegedly presented to Agency-2 in February 2017. See id. at 3–4. These allegations were not included in the Indictment; these allegations post-date the single false statement that was charged in the Indictment; and these allegations were not necessary to identify any of the potential conflicts of interest with which the Motion is putatively concerned. Why then include them? The question answers itself.

1 For example, although the Special Counsel implies that in Mr. Sussmann’s February 9, 2017 meeting, he provided Agency-2 with EOP data from after Mr. Trump took office, the Special Counsel is well aware that the data provided to Agency-2 pertained only to the period of time before Mr. Trump took office, when Barack Obama was President. Further—and contrary to the Special Counsel’s alleged theory that Mr. Sussmann was acting in concert with the Clinton Campaign—the Motion conveniently overlooks the fact that Mr. Sussmann’s meeting with Agency-2 happened well after the 2016 presidential election, at a time when the Clinton Campaign had effectively ceased to exist. Unsurprisingly, the Motion also omits any mention of the fact that Mr. Sussmann never billed the Clinton Campaign for the work associated with the February 9, 2017 meeting, nor could he have (because there was no Clinton Campaign). [my emphasis]

Not only must Durham know the true dates of the data involved but so — as I’ve noted — must Kash Patel, who has known about this issue for four years. That means Patel insinuated that Hillary’s associates hacked Trump, knowing full well the claim was false.

And it led the former President to claim that those involved should be killed.

Sussmann has asked Judge Christopher Cooper to strike the improper language from the motion.

He has also provided yet more evidence that Durham didn’t take basic investigative steps necessary to vet the allegations he made in the indictment before actually indicting Sussmann. Durham didn’t interview any Clinton Campaign staffer to find out whether Sussmann coordinated with the campaign until after the indictment.

[T]he Special Counsel has been investigating for years, and some of the Special Counsel’s “ongoing” investigation seems to be work that should have been completed before indicting Mr. Sussmann. For example, the Special Counsel has alleged that Mr. Sussmann met with the FBI on behalf of the Clinton Campaign, but it was not until November 2021—two months after Mr. Sussmann was indicted—that the Special Counsel bothered to interview any individual who worked full-time for that Campaign to determine if that allegation was true. It is not.

As I noted earlier, Durham had to admit that he had no basis to substantiate claims of coordination with the Hillary Campaign in a filing last year. But that was October. It was not until after he had to confess he had overblown that claim in the indictment that Durham first interviewed a Hillary staffer.

In his filing, Sussmann makes it clear he intends to move to dismiss the indictment.

In addition, Mr. Sussmann reserves all rights to submit appropriate motions and seek appropriate relief concerning this conduct should the Indictment not be dismissed and should the case proceed to trial, including by seeking extensive voir dire about potential jurors’ exposure to prejudicial media resulting from the Special Counsel’s irresponsible actions.

If he keeps to the original filing deadline, that motion will be submitted this Friday. While not normally a basis to dismiss an indictment, Sussmann will be able to present entire swaths of proof that Durham didn’t take basic investigative steps before accusing Sussmann of things that turned out not to be true.

And now he’ll be able to point back to this filing to show that Durham misrepresented basic facts that might get someone killed.

Update: I managed a whole appearance on MSNBC without potty mouth.

44 replies
      • emptywheel says:

        Not sure if you saw on Twitter, but before I came on they were all talking about what a Clusterfuck this was, but practicing how now to say fuck.

        It was dangerous territory.

    • Timmer says:

      Yaahy, Marcy! I have sent multiples of messages to various MSNBC talkin’ heads to get Marcy on. Too bad it had to be on that f’n Joe Scar bro

      • MB says:

        Even usually-a-blowhard Joe S. semi-regularly calls out GQP tactics as “fascist” on various segments lately. That’s progress.

        Having Marcy on at all is welcome progress. They even seem to be a little more lax on some of the potty-mouth stuff these days, i.e. they’ll show somebody’s tweet with the word “bullshit” spelled out for all to see and when the anchor reads it out loud, they say something like “bull-you-know-what”, with a slight wink…

  1. Jenny says:

    Thank you Dr. Marcy. There is a pattern to Trump whining about spying. He accused Obama of spying on his campaign in 2016 (“had my ‘wires tapped’ in Trump Tower”) and accuses Clinton of spying. Are there others he has accused of spying?

    SPYGATE could be one of the biggest political scandals in history!
    — Donald J. Trump (@realDonaldTrump) May 23, 2018

    • Jenny says:

      EXCELLENT interview on MSNBC Dr. Marcy.
      Last statement succinct:
      “Kash Patel garbage in, Kash Patel garbage out and then Trump threatening to kill people as a result. It’s that simple.”

  2. harpie says:

    TRANSCRIPT: MARCY on Morning Joe, today:

    [0:43] WHEELER: Well, Tom mentioned, a filing from Sussman overnight, and one of the things he revealed in that, which I have heard from other people, is this claim that Rodney Joffe was accessing data from the White House. All of that data precedes Trump’s inauguration. So you’ve got Trump out there calling for these people to be put to death when really what happened is Rodney Joffe was trying to keep Barack Obama safe from hackers. That’s all it is. That’s why Trump wants these people killed. And, Durham knows that. Durham knows that this data precedes Trump, he didn’t include that in the filing.

    So he’s got everyone all worked up on Fox News. John Ratcliffe, you showed him earlier. Kash Patel is the source of many of these false claims. They were both witnesses to John Durham. And Kash Patel has known about this allegation going back to December of 2017, because he’s the one who first asked Michael Sussman about it. Michael Sussman was honest about it back in December 2017. And Kash Patel, when he was an Intelligence Committee staffer, when he was working in the White House, when he was the chief of staff for DOD, he did nothing about this because he knew that all that Rodney Joffe was doing was trying to keep the White House safe from hackers. That’s what this is about.

    [2:05] HEILMAN: Well, I’m just curious, Mary, where do you think – to the extent you can kind of discern, A, what the motivations are of some of these players, of Durham, for instance, and where does this go from here in the pseudo scandal we’re seeing?

    [2:26] WHEELER: Well, the Durham investigation is in real trouble. One of the things that, and Tom mentioned this briefly, but one of the things that Sussman revealed overnight is that Durham didn’t interview, like one of the allegations in the indictment is that Sussman was coordinating with the Hillary campaign on these Alfa Bank allegations. Back in October, Sussman was, like, name the people. In October, Durham said, ‘I don’t have any people.’ In November, he first interviewed a Hillary staffer, he hadn’t actually investigated this.

    We also learned recently that even though Durham and Bill Barr flew to Italy to get the phones from Joseph Mifsud, who remember, is that Italian who was talking to George Papadopoulos. He never walked across DOJ to get the phones from James Baker, who is the single witness to this conversation with Michael Sussman. He didn’t find out that DOJ IG had two of the phones until January. And then, after he revealed that he had these phones, that he should have looked for years ago, he then had to disclose that he had been told about one of the phones back in 2018 but he didn’t remember it anymore. So, what you’ve got, and those aren’t the only things that Durham has had to admit that he didn’t do before charging Michael Sussman.

    [3:49] He didn’t investigate how the FBI killed the story that the New York Times was going to come out with before the election, partly because of what Sussman did, which counters all of the motivation that Durham says he’s working on. Durham didn’t investigate that until after he had charged Sussman either.

    [4:07] So, Sussman on Friday probably, is going to submit a motion to dismiss the entire indictment. And probably what last Friday’s stunt was about for Durham, was an attempt to preempt that, an attempt to pretend that this investigation isn’t kind of post-hoc a discovery of things. For example, he didn’t investigate what FBI’s relationship is with Rodney Joffe before he charged Michael Sussman. He only pulled those communications when Sussman said, ‘Why don’t you find out what kind of relationship the FBI really has with Joffe.’ And, he discovered there were thousands of communications. So, Durham is very close to a position where Sussman is going to have the opportunity to say, ‘You didn’t do an investigation before you charged me.'”

    [4:52] And, a week before he probably is going to have to do that, this stunt comes out and you have all of these people who are witnesses, who fed these conspiracy theories to Durham on the front end, who then go on Fox News and make false claims about it. That’s what the story is about. It’s Kash Patel garbage in, Kash Patel garbage out, and then, Trump threatening to kill people as a result. It’s that simple. [5:16]

    • Desider says:

      I noted recently that Durham’s charging Sussmann for supposedly not divulging info that would have ostensibly saved the FBI a ton of time, and then Durham goes & ignores bunches of info at his disposal, already known, or across the hall. “But if only Sussmann had made it clear…” – right, Jan.

    • harpie says:

      In HEILMAN’s question, I omitted the words aftermath of the
      > where does this go from here in the [aftermath of the] pseudo scandal we’re seeing?

      • Ginevra diBenci says:

        harpie, thank you for supplying that transcript. I spend so much time trying to capture words spoken on TV in writing–rewinding over and over to make sure I’m getting human speech as close to as-spoken as possible–that I really appreciate your effort. It is much more accurate than others I’m seeing pop up. Dr. Wheeler is such a crisply syntactical speaker she raises the level of discourse around her; I think her presentation helped focus others’ (especially Heileman’s) questions.

        The semioticizer in me must add that her visuals were carefully chosen to supplement the segment–the subtle echo of those green glasses frames in her blouse gave a sense of order, while the red lipstick conveyed that she is going to use her voice whether others like it or not. (I can’t wait for women to get past the current moment, where false eyelashes seem mandatory while our mouths–as stipulated by the editorial sections and ads in Vogue, etc.–pale to the point of vanishing, along with our rights.)

    • Eureka says:

      The harpinator! Thank you for transcribing.

      Great interview EW, especially given the contexts (one of which is pulling sharp concision from a bathtub full of moldy, cut flowers).

  3. Badger Robert says:

    I agree with Ms. Wheeler that the defense will probably not get a dismissal.
    But the court may impose strict limitations on what can and cannot be presented in evidence.
    Anything not material to the elements of the crime will be barred, even for purposes of impeachment.
    Sussman will have an open opportunity to testify that the questions were confusing and that he answered to the best of his ability.
    At some point the court is likely to ask, what evidence is there that these answers were material to any government decision? That’s the question that creates the most problems for the prosecution.

    • bmaz says:

      “But the court may impose strict limitations on what can and cannot be presented in evidence.”

      That happens in every trial. I am not sure this case will really see a trial though.

      • Peterr says:

        Yes, but that’s because those strict limits and other considerations will be imposed via pre-trial hearings. As Marcy notes in the next post, Sussman’s team now has reason to subpoena both Ratcliffe and Patel, and their testimony will not be helpful to the government in the least.

        Sooner or later, either the judge will dismiss the case or Durham will with draw it. Not sure which way I’d bet, but your conclusion is correct. This case will not see a trial.

        • Leoghann says:

          I don’t know which would be worse on Durham’s psyche–a dismissal, or having to say, “oops, never mind; but I need another $5M.”

        • bmaz says:

          I honestly do not know. It is a shit case though, and hard to see it going all the way. But who the heck knows?

  4. Marinela says:

    About Durham prosecution, for people to have trust in DOJ as a heathy institution, I still think that the AG should get him to close shop before he puts more stains on DOJ. I understand it is tricky business, but the DOJ should be able to protect the institution and MG is an institutionalist after all.
    It is one think if Durham investigates as a prosecutor should do, another that he chases conspiracy theories.

  5. Mike says:

    Thanks for all the explanation, it is extremely helpful to a non-lawyer.

    I wonder if this goes to trial if Sussman will be able to call Patel and Radcliff to testify. This would put them on the spot where if they lie they could face criminal prosecution and if they tell the truth they look like fools.

  6. Steve in MA says:

    Perhaps slightly OT, but could Garland fire Durham for his (at least to me) obvious incompetence or unprofessional conduct? Or is Durham essentially untouchable? Sure there would be political fallout (Republicans gnashing teeth, Fox News bloviating), but in his stead, could Garland appoint a successor (that is, not killing the investigation, simply changing horses midstream), who could then wrap up this charade, and also point out the numerous errors Durham made that tainted any prosecution?

    • skua says:

      Removing Durham would be to publically acknowledge that at least one senior figure (Durham) in DoJ is either very incompetent, very corrupt, very deluded or some combination of these. I doubt that an institutionalist, which is what Garland seems to be for better or worse, would do that.
      Pressure on Durham to wrap things up sooner and quietly would seem to protect DoJ’s reputation better.
      Though if Durham insists on parading naked?

      • Eureka says:

        I thought he already was parading naked. [Along those lines, he might be about to catch a chill from the court.]

        Of course I already see him emerging from the stale tub of his flotsam-jetsam making…maybe he’ll be left off to de-shrivel quietly…

      • timbo says:

        Is it possible that Garland would prefer the Federal courts to hit Durham where it hurts rather than have to do it from the executive side?

        Seems to me that some Federal judges might not appreciate having garbage of this quality placed in their dockets, particularly when it’s obviously being put there for political purposes unrelated to any good public policy, and doubly particularly when it comes to selective prosecution for political purposes by ginning up an imaginary villain out of a real person for batty reactionaries to use as a troll fodder pinata. I mean, an apology is in order at the very least… ;D

        • Marinela says:

          What do we know about the judge? Is he sympathetic to the Durham garbage?
          Also, if the court acts accordingly, I would think that DOJ reputation is tarnished via Durham so why MG would allow for this to happen?
          But I can see this being a lose-lose situation for DOJ at this point.

  7. Grant G says:

    Seems to me there is collusion…Collusion between rightwing media(You were great on Morning Joe)

    I have no problem with anybody reporting on Durham’s filing, however, it now appears very clear that Newsmax/Glenn Beck/Fox etc etc have made the same factual errors…”Trump as president was spied on…….Hillary Clinton paid to infiltrate ……..”

    Looks like Durham’s filing is/was more of an outline for rightwing talking points than anything else(No legal heavyweight in that filing, amateur hour filing riddled with errors, scant on facts, heavy on conspiracy).

    Lastly, Sussman is right….It should be thrown out, …..Not one charge will stand the scrutiny of an honest court.

    Methinks….This has the feel of a last hurrah from Durham….Sussman’s charge will be thrown out….Durham walks away having thrown Trump a final meatless bone…..Durham gave the “frothy right” one last cheap thrill, Durham will be safe from “revenge of the Magas” and quietly goes away(Also, Durham has to see by now that Trump is in a world of hurt and is in no position to advance HIS future)

    Thanks for another good clean read.

    Cheers Eyes Wide Open

  8. Zinsky says:

    I am late to the party again, but just wanted to say how great Marcy was on Morning Joe! Outstanding! You made such great points so succinctly and definitively, that all the other guests had nothing to add. You may have single-handedly destroyed Durham’s ridiculous hatchet job disguised as a legal filing. Thank you for being the voice of truth.

  9. George Stewart says:

    This is similar to another GOP who was afraid that recording devices were planted around the White House between 1968 and 1974, as the GOP had done at. The Watergate Hotel where the Democratic Convention was held.

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