Durham Prosecutor Andrew DeFilippis Confirmed to Rodney Joffe He May Continue Indefinitely

On Monday, both John Durham and Michael Sussmann submitted their motions in limine, which are filings to argue about what can be admitted at trial. They address a range of issues that I’ll cover in several posts:


Durham wants to:

  • Admit witnesses’ contemporaneous notes of conversations with the FBI General Counsel
  • Admit emails referenced in the Indictment and other, similar emails (see this post)
  • Admit certain acts and statements (including the defendant’s February 2017 meeting with a government agency, his December 2017 Congressional testimony, and his former employer’s October 2018 statements to the media) as direct evidence or, alternatively, pursuant to Federal Rule of Evidence 404(b)
  • Exclude evidence and preclude argument concerning allegations of political bias on the part of the Special Counsel (addressed in this post)
  • Admit an October 31, 2016 tweet by the Clinton Campaign

I will link my discussions in serial fashion.

In a motion to dismiss, Michael Sussmann just requested that Judge Christopher Cooper give Special Counsel Durham a choice: either immunize Rodney Joffe, or dismiss the case.

Sussmann wants to call Joffe to provide exculpatory testimony.

Mr. Joffe would offer critical exculpatory testimony, including that: (1) Mr. Sussmann and Mr. Joffe agreed that information should be conveyed to the FBI and to Agency-2 to help the government, not to benefit Mr. Joffe; (2) the information was conveyed to the FBI to provide a heads up that a major newspaper was about to publish a story about links between Alfa Bank and the Trump Organization; (3) in response to a later request from Mr. Baker, Mr. Sussmann conferred with Mr. Joffe about sharing the name of that newspaper before Mr. Sussmann told Mr. Baker that it was The New York Times; (4) the researchers and Mr. Joffe himself held a good faith belief in the analysis that was shared with the FBI, and Mr. Sussmann accordingly and reasonably believed the data and analysis were accurate; and (5) contrary to the Special Counsel’s entire theory, Mr. Joffe was neither retained by, nor did he receive direction from, the Clinton Campaign.

But after Joffe’s lawyer Steven Tyrell received Sussmann’s trial subpoena, he asked Andrew DeFilippis if he remained a subject of the investigation — more than five years after his last action in this case — DeFilippis stated that he continued to chase vague claims about the YotaPhone allegations shared in the February 9, 2017 meeting with the CIA.

On March 31, the day after receipt of the subpoena, I spoke by telephone with representatives of the Office of Special Counsel (“OSC”) in an effort to obtain sufficient information from which I could assess and advise my client whether he has a credible fear of prosecution. I then explained that I had requested an update because my client had received your trial subpoena. Given the impending trial date, I stated that we wished to inform you as soon as possible whether Mr. Joffe intends to invoke his Fifth Amendment rights if called to testify. I indicated that Mr. Joffe has a desire to testify, but he has concerns about doing so ifhe is a subject of the OSC’s investigation. In response, Mr. Defilippis confirmed that Mr. Joffe remains a subject of the investigation (as he has been since our first contact with the OSC fifteen months ago). I then asked if Mr. DeFilippis could explain what basis remains for Mr. Joffe’s possible prosecution. Rather than provide any additional information to aid in our assessment of the risk of prosecution, Mr. Defilippis stated that in his view, Mr. Joffe’s status in the investigation was sufficient to establish a good faith basis to invoke the privilege against self-incrimination. Mr. Defilippis further stated that OSC did not want to get into any more detail, and presumed that Latham would understand if Mr. Joffe decided to invoke.

I then stated to Mr. DeFilippis that more than five years has elapsed since the events that are described in the indictment against your client and the OSC’s related public filings, including the September 19, 2016, meeting with the FBI and the February 9, 201 7, meeting with , and asked what other basis the OSC might have to charge Joffe with criminal conduct. Mr. Defilippis replied in general terms that while it was fair to say that the Alfa-related allegations tied back to Sussmann’s September 19, 2016 meeting, the Yota phone-related allegations continued to “percolate through various branches of the government and around the private sector after that date, in various forms.” Defilippis further noted that certain fraud statutes have longer than a five-year limitations period, although he did not specify what statutes might be implicated by the events in question. Beyond that, Mr. Defilippis was unwilling to comment further. In light of Mr. Defilippis’ unwillingness to provide additional information, I asked whether he ever envisioned an end to my client’ status as a subject of the OSC’s investigation, and if so, when that might be. Mr. Defilippis indicated that he was unable to put an end date on the investigation at this point, and that it would depend upon various factors, including the conduct in question and the applicability of various limitations periods. [my emphasis]

According to Sussmann attorney Sean Berkowitz, just weeks ago, Durham was pressuring Joffe to testify against Sussmann.

Third, given the Special Counsel’s repeated entreaties to Mr. Joffe to cooperate in the Special Counsel’s investigation against Mr. Sussmann, including only weeks ago, the Special Counsel’s refusal to confer immunity on Mr. Joffe, and the Special Counsel’s insistence that Mr. Joffe continues to face criminal exposure, seems to be not only retaliatory, but tantamount to a “deliberate[] deni[al] [of] ‘immunity for the purpose of withholding exculpatory evidence and gaining a tactical advantage through such manipulation.’” Ebbers, 458 F.3d at 119 (citation omitted). As in Smith, “[i]f the witness were guilty of [the threatened offenses], he should have been charged with those offenses whether he testified or not. The [Special Counsel is] obviously threatening the witness to stop him from testifying-even truthfully.” Simmons, 670 F.2d at 369 (describing Smith, 478 F.2 at 979).

The message is clear: John Durham will keep his investigation open indefinitely so he can threaten to prosecute anyone for testimony that doesn’t confirm his preconceived prior beliefs, even on things that make the strained Sussmann charge look conventional by comparison.

Durham doesn’t want truthful testimony. He wants testimony that will bolster his conspiracy theories. And he’s willing to continue indefinitely to get it.

20 replies
  1. David2022 says:

    There is nothing unusual or unethical in what Durham’s team is doing. It’s how sound federal investigations proceed — at their own pace and with pressure used to obtain cooperation. If someone like Joffe pleads the Fifth, it’s over for Sussmann obtaining his testimony, and there is nothing a good federal judge will do about it. Sussmann can, of course, testify himself and provide the same information. But, like Joffe, he won’t. It’s simply too risky. Let’s get this trial started so we can at last learn the truth about what Durham has and what he can prove.

    • emptywheel says:

      Didn’t we already scold you for making obviously false claims that ignore the public record?

      Is Johnny D paying people to try to rehabilitate his reputation?

        • David2022 says:

          Scolding doesn’t really work against those raising common sense points that you simply don’t want to hear.

        • bmaz says:

          Well, you won’t like the alternative. And I do not give a shit what “you” think is “common sense”. You are clearly trolling this site, and that is not going to work, and it never has.

      • BobCon says:

        Durham’s not the paymaster for David — “David” is a part of the PR operation that takes the scraps coming out of Durham and tries to massage them for the right wing press.

        What’s funny is that this “David” is different from the first one, which was presenting itself with the language of an old colleague who didn’t know the details but wanted to vouch for Durham’s integrity. This “David” is much more sure of the details of the case.

        That doesn’t mean that there isn’t a single person behind both versions, but like Terry O’Quinn’s character in the movie The Stepfather has trouble keeping his personas straight.

        These people want to think, like Joel Kaplan running his anti TikTok scheme, that people can’t see the PR operations behind the fake voices. But the language of PR flacks is as easy to pick out as a fake American accent in a British sitcom.

    • WilliamOckham says:

      Ok, I’ll play. Is it your view that a sound federal investigation includes making inflammatory false claims in a public court filing? Simple yes or no is all I’m asking for.

      For context, I’m referring to the bullshit about the Yotaphone DNS entries that Durham and his team pushed out and then just dropped. You need only look at the reaction to the filing to see how inflammatory the claim was. And I personally know the claim was false.

  2. Zinsky says:

    It has become clear that Durham’s main role is to throw chum into the right-wing propaganda machine. Every time Durham farts, it is on the splash page of Fox News’ website. This is all part of the loathsome Steve Bannon’s “fog of disinformation” paradigm. Throw enough garbage and disinformation into the air and the average citizen gives up and concludes that the truth is unknowable and not worth pursuing. Thanks to Marcy and team for helping to dispel this fog on a daily basis!

  3. HanTran says:

    Great work as always, just noting that the 2nd link in this post “addressed in this post” seems to link to this current post instead of to a post you were trying to refer to.

  4. Riktol says:

    You mentioned before that Durham needs Sussman to be convicted, so he has something to hang a later conspiracy charge on. Therefore it follows that all the people who are connected to Sussman (like Joffe) would be safe from prosecution if Sussman goes to trial and is acquitted.
    So wouldn’t it be beneficial for Joffe etc to testify in Sussman’s defence, increase the chance of an aquittal, and therefore negate the possibility of indictment down the road?
    To look at it from the other angle, if they don’t testify now, don’t they increase the chance of Sussman being convicted and thereby increase their own risk from a prosecution down the road?

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