Michael Sussmann’s Lawyers Complain of “Wildly Untimely” Notices from John Durham [Updated, with Confirmation]

Republished given confirmation that Durham is trying to point to privilege claims to insinuate wrong-doing. 

On March 31, there was a combined motions and status hearing in the Michael Sussmann case. The parties started by arguing Sussmann’s motion to dismiss (response; reply) based on a claim his alleged lie was not material. Here’s my live-tweet of the hearing.

Judge Christopher Cooper observed that the dispute was “Well briefed and argued on both sides” and promised to rule quickly. But the odds are still really good that he’ll rule against Sussmann because the standard for materiality is so thin. So that argument was perhaps more interesting for a few details that came out in the process, such as that the claim is that Sussmann offered up that he had no client, and that in all the discovery Sussmann has received, there’s no evidence anyone every asked the source of the DNS data he shared with the government even while they repeatedly recognized that Sussmann was a lawyer for the DNC.

We don’t think Baker or anyone else at FBI ever asked, btw, where’d this info come from. If source mattered so much, you’d think someone would have said, where’d this come from, how’d they get it.

Both details would help Sussmann defeat a materiality claim at trial, but Cooper can’t take it into account.

It was in the status discussion where things got more interesting. Cooper asked why he hadn’t seen any 404(b) notices (which is notice that the government wants to use otherwise incriminating information to prove its case in chief, often to prove motive), and AUSA Andrew DeFilippis said they had provided it to the defense. Sussmann’s lawyer, Sean Berkowitz, described that they were going to file motions in limine about the notices, but observed that “one was untimely,” meaning Durham’s team missed the March 18 deadline.

DeFilippis then asked for extra time to deal with Sussmann’s CIPA 5 motion, which is where he asks for classified information to be declassified to use at trial. Sussmann had little problem with that.

Then Berkowitz complained about an expert the government just informed Sussmann they wanted to call — an FBI agent whose primary purpose would be to explain the DNS and Tor technologies at the core of the tip Sussmann shared with the FBI. Cooper quipped, “aren’t we going to have the jury understand the technical” aspects of the trial, and suggested he, himself, needed such a tutorial as well. Berkowitz noted that that deadline had passed weeks ago and the late notice didn’t give Sussmann enough time to qualify their own expert to respond.

The real issue, it soon became clear, was that the government wants to reserve the right to use this witness to rebut any claim Sussmann would make that the data was “real.” DeFilippis argued they need to be able to rebut Sussmann’s claim that the allegation he made was “unsupported.” “That’s different,” Judge Cooper noted, “than whether the data was accurate.”

It’s clear, based on what DeFilippis said, that he intends to conflate accurate data — a real, still unexplained anomaly — with an unpersuasive hypothesis about what that anomaly might be. DeFilippis countered that if the data were “cherry picked or fabricated” — neither of which he has charged — then it might suggest a motive for Sussmann to lie. But Berkowitz argued that the only thing that matters it that Sussmann believed the data was accurate. Importantly, Durham’s indictment falsely suggests that Sussmann was privy to some of the researchers discussion about this.

Berkowitz’s frustration with all that was nothing compared to his fury that, just the night before, prosecutors had told them that they intended to use a motion in limine (which is supposed to deal with what evidence can and cannot be introduced at trial) to try to breach privilege claims that various witnesses have made. As Cooper noted, that’s not a motion in limine, it’s a motion to compel.

Berkowitz: We learned last night that SC is challenging privilege. Only last night we learned they do intend to challenge privilege in motion in limine. Wildly untimely. Implicates underlying case.

DeFilippis: We’ve been working with asserted privilege holders. Those holders would be Tech Executive-1, Clinton campaign, another political organization. We have tried to understand theory of privilege. Unable to get comfort. We now intend to call witnesses from [Fusion] and [Perkins Coie].

Cooper: Not a motion in limine, it is a motion to compel.

Berkowitz: This issue is an issue that has been discussed for well over a year. Honestly to only now bring it up, 6 weeks before trial. Violations of due process, we’re going to get new info, it’s an ambush.

It’s really hard to view this as anything but a stunt to try to save Durham’s conspiracy theories.

In a normal situation involving a big law firm like Perkins Coie, well-lawyered people associated with the Hillary campaign (because of PC’s role as Sussmann’s former employer, Hillary and the DNC would count as separate entities), as well as Fusion GPS (which has been fighting similar issues from Russian oligarchs for years now), such privilege claims would take at least three months to work out.

For sake of comparison, John Eastman’s privilege fight, for a legal argument with none of the formal retainer agreements like those PC has, for emails inappropriately stored on Chapman University’s cloud, in which there’s substantive evidence — now affirmed by a judge — that Eastman himself has criminal exposure, has been going on since January 20, and it is nowhere near done.

As Berkowitz notes, the trial is six weeks away.

The most likely outcome of this effort would either be a delay of the trial and/or some inconclusive outcome, which Durham would undoubtedly use to sow more conspiracy theories without charging them, pointing to Democrats’ defense of privilege to insinuate the privilege claims must hide some proof of conspiracy.

But it looks all the more intentional given the now-famous delayed waiver motion Durham went through in February. The waivers covered by Durham’s filing include several of the witnesses he has belatedly said he wants to pierce privilege now:

  • Whether Perkins Coie (which Latham represented along with Sussmann in the Durham investigation) knew how Sussmann was billing his time
  • Perkins Coie’s past claims about the DNC’s activities
  • The advice Kathryn Ruemmler gave Sussmann when Kash Patel raised his meeting with the FBI in a December 2017 HPSCI appearance
  • What Latham told a PR firm regarding public statements about the meeting in 2018

That is, more than six weeks before telling Sussmann that, after not formally attempting to pierce privilege in the last year, Durham now wants to do so, Durham made Sussmann waive any conflict with all the privileged relationships that Durham wants to pierce.

As I noted at the time, Durham was asking Sussmann to waive conflicts even without having pierced privilege.

Latham also provided Perkins Coie advice regarding a PR statement that, Durham admits, he’s not been able to pierce the privilege of and he knows those who made the statement had no knowledge that could implicate the statement in a conspiracy.

He’s now trying to do that. It’s really hard to believe that’s a coinkydink.

And unlike the attorney-client waiver used in the Paul Manafort case, Durham is not citing independent proof that Sussmann lied to his lawyers. Unlike the waiver with Eastman or with Michael Cohen’s hush payments, Durham is not citing participation in a conspiracy.

This is still a false statements case that Durham is sure, absent the evidence to charge it, is a conspiracy. And now at the last minute, he’s attempting to salvage that conspiracy.

Update: A motion in limine from Sussmann confirms I was totally right about Durham’s ploy. He wants to submit privilege logs to the jury — privilege logs to which Sussmann is not the privilege holder and therefore is helpless to waive — to insinuate that he’s covering something up.

Again, there can be no mistake as to the purpose for the Special Counsel’s tactics here. The animating theory of the Special Counsel’s Indictment is that, in meeting with the FBI and Agency-2, Mr. Sussmann sought to conceal that he was secretly working on behalf of the Clinton Campaign and Mr. Joffe. Lacking actual evidence of Mr. Sussmann’s guilt, the Special Counsel seeks instead to convict Mr. Sussmann by insinuating to the jury that such evidence must exist— by inviting them to draw the inference that, because Mr. Sussmann’s alleged clients and co-conspirators have chosen to withhold information relating to the very same relationship the Special Counsel alleges they and Mr. Sussmann sought to conceal, that information must be inculpatory.

Permitting the Special Counsel to prejudice Mr. Sussmann and to shirk his burden of proof by leading the jury to an adverse inference would be impermissible under any circumstance. But it is particularly egregious here, because Mr. Sussmann is not the privilege holder. The Special Counsel’s tactics would accordingly penalize Mr. Sussmann for another party’s invocation of their own right to assert the privilege, a decision that was not his to make. Convicting him on the basis of such fundamentally unfair circumstances would amount to a miscarriage of justice.

43 replies
  1. JVO says:

    What’s the damage being done by allowing Durham to continue this charade and create more chum for the Qnut base versus the damage that would ensue if Durham’s investigation (only remaining active case?!) is shutdown?

    • skua says:

      Dog tail-chasing to make good pro-Trump propaganda?

      Which demands the sorry tale of the husband at the cocktail party who, when his wife’s dress malfunctioned, quickly pointed out the window and shouted, “Everyone, look! Out there!”.
      An effective ruse that could have preserved modesty but for the dogs copulating on the other side of the glass.

      • ducktree says:

        Postcards From the Edge dialogue:

        “You lifted up your skirt.”
        “It twirled up!”
        “You weren’t wearing any underwear!”

  2. Peterr says:

    I wouldn’t say Durham is trying to salvage a conspiracy – he’s trying to create one.

    • TooLoose LeTruck says:

      Right… if he’s trying to salvage anything, it’s his reputation and credibility…

    • Rayne says:

      You know, I think it’s something else. The technical stuff is so abstruse and arcane for the average citizen they won’t grasp the problem with Durham’s prosecution let alone the argument Durham’s trying to make.

      This looks more like a form of SLAPP — not a defensive move but an offensive move, its purpose to prevent anyone from looking deeper by generating a lot of churn, muddying visibility, while discouraging anyone who might be interested in the core concept that network traffic logs might show something strange going on during 2016. Or perhaps even earlier. It’s also intended to discourage anyone from looking at traffic after that period of time by making it painful to defend one’s efforts afterword, punishing patriotic citizens who do the right thing by reporting to federal law enforcement what looks like a potential cyberattack.

      A lot of folks have forgotten both Defense and State Depts as well as the White House were hacked between 2014-2016 after all. It didn’t end then, either.

      • PhoneInducedPinkEye says:

        This is a very good point and I think is very close to the mark. The Animus has appeared to me for a long time to be, “How dare you investigate our clan, and so publicly?”

        This is rawenge. I can’t help but think Strozak, Page, everyone else, will have a chilling effect on any future investigations of GOP politicians for fear of later retribution.

      • Leoghann says:

        Exactly. His job is to lend credibility to a conspiracy theory that was created to discredit both the real conspiracy and those who tried, or try, to point it out.

      • Xboxershorts says:

        How critical to this “theory” Durham’s chasing is the notion that the data collected by these professional geeks is fabricated?

        Here’s one of the researchers who found the anomalous DNS data with a blog post containing the data found, Alfa Bank’s response(s) and a great README with the critical questions that arose once the data was published.

        Durham would do well to read the section titled “Ethical Considerations”


  3. Hoping4Better_Times says:

    On what basis can the Judge dismiss the case?
    Prosecutorial misconduct? Violation of due process?
    DeFillipis keeps trying to drop surprises on the Defense.

  4. David F says:

    I don’t understand how Durham can now seek evidence from Perkins Coie after the indictment. Isn’t he supposed to assemble all the evidence he needs to establish guilt beyond a reasonable doubt prior to the indictment?

      • EdwardB says:

        I respectfully disagree. The question is, shouldn’t Durham have gathered evidence sufficient to prove the charges BARD before the indictment? My opinion, the answer is yes. I understand that investigations continue post-indictment, but it’s fairly clear that some of the things Durham is now doing should have been done prior to charges being filed (See the 2/16 story Indict First Interview Later). Going after potentially privileged communications is potentially time-consuming, as noted above. Bringing it up weeks before the trial is, at best, sloppy. It smacks of hasty backfilling. For context I am a Deputy District Attorney in a small rural county in Northern California. I know California law and procedure, not so much Federal practice, but these principles should be the same. I don’t charge a case until all the evidence I need is there. But I am Triple A at best, maybe a big league hotshot like Durham does things differently.

        • bmaz says:

          Oh, Durham’s case was shit from the start. I literally laughed at his fatuous indictment from day one. But he has immunity and did get an indictment; investigations never stop there. He would be in a lot less hot water if he had done a regular “just the facts ma’am” indictment instead of demonstrating he is a boob. But, hey, that’s just me.

    • Chirrut Imwe says:

      Did Durham collect _any_ evidence to establish guilt beyond a reasonable doubt prior to the indictment?

      • bmaz says:

        That is not how it works. Only a real jury, with the evidence admitted and presented, can determine that. DOJ protocols only contemplate thinking that in the charging determination.

        • Rugger9 says:

          Between you and EW, did the judge decide whether this was a motion in limine or a motion to compel? It would seem to me if he decided it was the latter, it would be tossed on timeliness grounds.

        • bmaz says:

          Cannot speak for Marcy. But sometimes it just is what it is. The nominal caption of a pleading is not necessarily more important than the substantive effect. Doubt it matters on this one though.

        • Leoghann says:

          After reading Marcy’s live tweet of the hearing, it appears that Judge Cooper left the issue hanging. I would expect his ruling, which he promised would come soon, will cover it.

  5. Badger Robert says:

    Thank you for letting us follow along. I think Judge Cooper may deny the motion to dismiss, but in the process is going to conclude some issues are undisputed. But judges have a way of clearing their calendars of cases they think are a waste of time.

  6. Doctor My Eyes says:

    Speaking of ongoing efforts to pretend Russian undermining our democracy were something else altogether, have any of you tech-savvy people seen the deeply embarrassing abomination in the Washington Post–“Here’s How the Washington Post Analyzed Hunter Biden’s Laptop”? Starting with the title, which is a lie because they analyzed not a laptop but a hard drive given them by a Republican operative, virtually every sentence is cringe worthy.


    Subtitle: “Two experts confirm the veracity of thousands of emails.”

    Paragraph 36: “The drive is a mess,” [expert] Green said.

    Paragraph 44: Analysis was made significantly more difficult, both experts said, because the data had been handled repeatedly in a manner that deleted logs and other files that forensic experts use to establish a file’s authenticity.

    Paragraph 45: “No evidence of tampering was discovered, but as noted throughout, several key pieces of evidence useful in discovering tampering were not available,” Williams’ reports concluded.

    Paragraph 57: Soon after that period of inactivity — and months after the laptop itself had been taken into FBI custody — three new folders were created on the drive. Dated Sept. 1 and 2, 2020, they bore the names “Desktop Documents,” “Biden Burisma” and “Hunter. Burisma Documents.” [A folder “Evidence of Guilt” has not yet been discovered.]

    Paragraph 58: Williams also found records on the drive that indicated someone may have accessed the drive from a West Coast location in October 2020, little more than a week after the first New York Post stories on Hunter Biden’s laptop appeared.

    The Post somehow did not conclude that the hard drive looked precisely the way one would expect it to look if the most obvious story of its provenance were true.

    • mospeck says:

      Post does not get everything right, but in defense of the WaPo, just today they said Khodorkovsky said these men and others should shake off their fear and speak out, even if it means putting their own lives in danger. “This is a real war. People are dying every day,” he said. “The regime for which you worked is killing people. Your personal fate compared to this does not mean so much. Take the risk.”
      Yea, it doesn’t mean a hill of beans. But then it sure looks like right now is the Russians time to shine

    • P J Evans says:

      What I’d have expected the FBI to do was to image that hard drive and then work from the image, so as not to tamper with the original evidence…such as it was.
      Who TF thought it was okay to create folders on the original drive, while it was in FBI custody?

      • skua says:

        AIUI: Timeline based on above account
        ??/??/????: Shop has laptops.
        ??/??/????: Copy/s of drive made by persons unknown.
        ? July 2020: FBI takes possession of putative originals.
        1 & 2 September 2020: the specific copy (copy of copy of …?) of the drive which WaPo reports on gets new folders put on it.
        ? October: NYP prints laptop story.
        Later in October: Specific copy of drive accessed over internet from West Coast.

        Why do you think something significantly different happened?

        • skua says:

          This isn’t a rhetorical question.

          If you understand WaPo to be writing about a copy that has been changed by the FBI then others will have that same understanding too. Getting specific about how that happened could be useful.

        • skua says:

          The above timeline assumes that the WaPo copy originated at or after the shop.
          But of course the WaPo copy (or its ancestor) could have been made by the person/s unknown who had the laptops before they were delivered to the shop.

          If considerable trouble and expense had created faked/salted/altered Hunter Biden laptops then backups, so that if the shop accidentally wiped the faked data then it could be replaced, would be made by competent people.

  7. Scott Johnson says:

    Might the SP be angling for a delay, by dropping a last minute matter a few weeks before trial, then reluctantly (heh) agreeing to a delay so as not to prejudice the defendant. Given the weakness of the case, it seems that having this still be a live matter in November might be useful, whereas having a summary acquittal (doubt the defense will get dismissal, but SJ seems a possibility) during the summer campaign season might look bad.

    A lot of people who have been attacking the Attorney General for the alleged delays in prosecuting the upper levels of the 1/6 conspiracy… seem to think that line DOJ prosecutors should behave in the same way that recent GOP-appointed special prosecutors have done; engaging in political witch hunts, getting flimsy indictments, and using the prosecutorial function to embarrass and harass political opponents rather than seek justice. Certainly the often-cited standard that Justice should not seek an indictment unless conviction is a probable outcome, is not being followed by Durham, who is busy wasting everyone’s time.

    Now, I don’t think that Democrats should abuse the prosecutorial function in this matter. But given the repeated bad-faith behavior of the other side, and the fact that they seem to not pay any price for it, it is frustrating. Of course, given the state of our press corps, I’m rather certain that if Justice were found to not be dotting every i and crossing every t, the “left” would receive tremendous blowback. Which, unfortunately, is just the media environment we live in.

  8. Ewan says:

    Learned a new legal word, coinkydink — I looked it up. One always one learns something on emptywheel :)

  9. harpie says:

    Just a suggestion: to clarify timing, it might be good to indicate when the post was originally published, [the first word is “Yesterday” meaning 3/31] and also when the update occurred.

  10. Bay State Librul says:

    The Durham Dance as the Cuckoo Bird sings?

    Did I hear that Durham wants to call Steele as a witness, or did I dream that?

  11. The Old Redneck says:

    Privilege logs are used in the discovery phase to help a judge or special master figure out whether a privilege claim is valid. But discovery papers don’t come in at trial. In fact, you don’t talk about what happened in discovery during a trial at all. All that is supposed to be sorted out before the trial starts.
    I have never, ever heard of anyone trying to use a privilege log as evidence. It would be a terrible precedent to allow it – especially when the privilege log wasn’t even created by the person being charged.
    This is epic chickenshit.

  12. earlofhuntingdon says:

    GG takes offense at satirical parody aimed at him by Rick Wilson, using the restraint he usually reserves for female journalism interns. His projection burns like a white phosphorous grenade:

    “Rick Wilson’s followers, by definition, are fucking morons, not intelligent people, which is why so many people believed the quote and why so many have transferred their paychecks to him and made him rich.”

    (Avoiding direct link to GG)

    • bmaz says:

      Yes, it really should be, because that is what the elements of the crime and burden of proof require.

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