John Durham Is Likely to Supersede the Michael Sussmann Indictment

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 his motions in limine submitted Monday, John Durham included a text Michael Sussmann sent to James Baker that he belatedly discovered on the Baker phone he never bothered to look for.

Jim – it’s Michael Sussmann. I have something time-sensitive (and sensitive) I need to discuss. Do you have availibilty for a short meeting tomorrow? I’m coming on my own – not on behalf of a client or company – want to help the Bureau. Thanks. (emphasis added).

The text seems really damning — and both Charlie Savage and the frothers have treated it as such.

But it creates one real problem and may not help as much as they assume.

That’s true, first of all, because Durham accused Michael Sussmann of lying to James Baker on September 19. He did not accuse him of lying on September 18. Every single witness Durham is relying on to prove this lie either doesn’t remember Baker relaying that Sussmann had claimed at the meeting not to be representing a client (as is the case for Bill Priestap and Trisha Anderson), or has given wildly conflicting testimony about it (as is the case for Baker). Durham can’t rule out that Sussmann did not repeat that claim at the meeting on September 19. And, indeed, that might explain why Baker’s testimony conflicted so wildly and also might explain why Priestap’s notes recording “said not doing this for any client” (note the apparent strike-out; h/t ML) appears to have been written after the fact.

Indeed the Priestap and Anderson notes Durham is fighting to rely on support an inference that the meeting emphasized the motive Sussmann said he had — to help the FBI. Both prominently focus on the upcoming NYT story, which is what Sussmann explained, in sworn testimony to HPSCI, he went to warn Baker about: that there would be an upcoming story that might be awkward for the FBI.

Q And when did that conversation occur on or about?

A Middle of September 2016.

Q And what did Mr. Baker advise you to do?

A Advise me to do?

Q Yeah. Or what was what did he – how did he respond to the information that you conveyed to him?

A He said thank you.

Q Did he offer any follow-on

A No.

Q engagements, or did he promise that he would pass it on?

A But to be clear, I told him I didn’t want any. I mean, I was sharing information, and I remember telling him at the outset that I was meeting with him specifically, because any information involving a political candidate, but particularly information of this sort involving potential relationship or activity with a foreign government was highly volatile and controversial. And I thought and I remember telling him that it would be a not-so-nice thing ~ I probably used a word more stronger than “not so nice” – to dump some information like this on a case agent and create some sort of a problem. And I was coming to him mostly because I wanted him to be able to decide whether or not to act or not to act, or to share or not to share, with information I was bringing him to insulate or protect the Bureau or — I don’t know. just thought he would know best what to do or not to do, including nothing at the time.

And if I could just go on, I know for my time as a prosecutor at the Department of Justice, there are guidelines about when you act on things and when close to an election you wait sort of until after the election. And I didn’t know what the appropriate thing was, but I didn’t want to put the Bureau or him in an uncomfortable situation by, as I said, going to a case agent or sort of dumping it in the wrong place. So I met with him briefly and

Q Did you meet — was it a personal meeting or a phone call?

A Personal meeting.

Q At the FBI?

A At the FBI. And if I could just continue to answer your question, and soI told him this information, but didn’t want any follow-up, didn’t ~ in other words, I wasn’t looking for the FBI to do anything. I had no ask. I had no requests. And I remember saying, I’m not you don’t need to follow up with me. I just feel like I have left this in the right hands, and he said, yes.

And FBI availed themselves of the help Sussmann offered, asking and getting him to share Eric Lichtblau’s name, thereby giving the FBI an opportunity to kill the story that Sussmann had directly seeded.

Q The conversations you had with the journalists, the ~

A Oh, excuse me. I did not recall a sort of minor conversation that I had with Mr. Baker, which I don’t think it was necessarily related to the question you ‘asked me, but I just wanted to tell you about a phone call that I had with him 2 days after I met with him, just because I had forgotten it When I met with him, I shared with him this information, and I told him that there was also a news organization that has or had the information. And he called me 2 days later on my mobile phone and asked me for the name of the journalist or publication, because the Bureau was going to ask the public — was going to ask the journalist or the publication to hold their story and not publish it, and said that like it was urgent and the request came from the top of the Bureau. So anyway, it was, you know, a 5-minute, if that, phone conversation just for that purpose.

Q Thats good to know. Was that information the same information that you talked to Mr. Baker about?

A Yes

Q Okay. So the FBI then — so, at some point, the FBI was very concerned about that actually appearing in the New York Times. Is that correct?

A Yes, yes. My understanding is they —

Q Did he explain why they were so concerned?

A No. He just didn’t want — just didn’t want it to be revealed publicly.

All the discussions about materiality should include the decision that FBI made: not just to open an investigation or not, but also to intervene and kill a damaging story about Trump.

This is one reason that April Lorenzen’s largely independent efforts to push this story (which Durham treats as part of the same conspiracy) are important. Because Sussmann’s efforts actually had the opposite effect of what Durham claims he wanted, a big story to sway the election.

Durham has an easy fix to his first problem though: He can simply supersede the indictment.

If I were him, especially if I were as much of a douchebag as he has been, I’d wait until after Christopher Cooper rules on the motions in limine to supersede, tailoring the charges that Durham will have to prove to those decisions.

Indeed, that may be one reason Sussmann cheekily submitted a redlined indictment as it would appear without all Durham’s conspiracy theorizing: to get Cooper to rule in on what a reasonable indictment would look like.

In any case, because that text creates temporal problems with the most compelling evidence that Durham has, I expect he’ll supersede the indictment before trial.

Update: Charlie Savage noted to me, persuasively, that the statute of limitation has expired on charging Sussmann with lying on September 18. I still would not be surprised if Durham attempted to fix this error by superseding, perhaps by adopting “on or about” language. But if Durham can’t include September 18 in his indictment, he may have a real problem.

Update: A reader notes that Durham’s filing claims that U.K. Person-1 — Christopher Steele — is referred to in the indictment.

For example, in the summer of 2016, the defendant met in Law Firm-1’s offices with the author of a now well-known dossier regarding Trump (referred to in the Indictment as “U.K. Person-1”) and personnel from the U.S. Investigative Firm.

He’s not in the known Sussmann indictment, as Sussmann notes in his counterpart filing.

The Special Counsel also indicated during a telephone conference on March 11, 2022 that he intends to introduce evidence and argument pertaining to reports and information that Christopher Steele separately provided to the FBI—i.e., the so-called “Steele Dossier.” Not only that, but the Special Counsel also produced witness statements for Mr. Steele pursuant to 18 U.S.C. § 3500, presumably because the Special Counsel seeks to call Mr. Steele as a witness at trial. However, the Indictment contains no reference to Mr. Steele or the inflammatory Steele Dossier. The Indictment similarly contains no allegations—nor is there any evidence of—Mr. Sussmann’s knowledge, awareness, or involvement in any of Mr. Steele’s efforts to provide information to the government.

I wonder if Durham asked to file the conspiracy charges he’s been pursuing between March 18 and March 23, but was denied, after which he filed his delayed 404(b) notice pertaining to Steele and Joffe.

67 replies
  1. Peterr says:

    In most cases, a superseding indictment reflects new information that has come to light, or new connections that have been made between already known information. Durham, on the other hand, looks like the schoolboy who realizes that the essay he wrote for the final exam is going to get him failed, and so he tries to submit new ones that will get a better result.

    Is there a point at which Cooper tells Durham “Quit wasting the Court’s time”?

    • Charlie says:

      The text message with the 9/18/16 date is recent insights from Baker’s phone which was recently handed over from the DOJ OIG. That detail was conveniently ignored in this entire post. Charlie Savage has consistently been wrong on this story for years. A Venn diagram of Savage’s sources on this story and the core co-conspirators that Durham is investigating would be a single circle.

      [Welcome to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Charlie,” “Charley,” or “Charles.” Thanks. /~Rayne]

      • civil says:

        This post didn’t ignore that detail. That’s what she was referring to by “the Baker phone [Durham] never bothered to look for.”

        • harpie says:

          Oh! I’m sorry civil, your very timely comment wasn’t visible to me when I posted mine.

        • civil says:

          Re: the update “I still would not be surprised if Durham attempted to fix this error by superseding, perhaps by adopting “on or about” language,” the “on or about” language was already part of the one count of violating 18 USC § 1001 (a)(2) that Sussmann’s charged with. The indictment overview refers to “a meeting that MICHAEL A. SUSSMANN … requested and held with the FBI General Counsel on or about September 19, 2016 at FBI Headquarters in the District of Columbia,” but IANAL and don’t know whether that single reference to the request is sufficient to place the text within what was already charged, as Durham more than once alleges that the false statement was made “During the meeting,” not at some other time.

        • civil says:

          Re: the update “I still would not be surprised if Durham attempted to fix this error by superseding, perhaps by adopting “on or about” language,” the “on or about” language was already part of the one count of violating 18 USC § 1001 (a)(2) that Sussmann’s charged with. The indictment overview refers to “a meeting that MICHAEL A. SUSSMANN … requested and held with the FBI General Counsel on or about September 19, 2016 at FBI Headquarters in the District of Columbia,” but IANAL and don’t know whether that single reference to the request is sufficient to place the text within what was already charged, as Durham more than once alleges that the false statement was made “During the meeting,” not at some other time.

        • civil says:

          harpie, no problem, my comments don’t become visible until a mod approves them.

          My comment about the “on or about” language wasn’t supposed to have been threaded here. I posted it unthreaded, but it showed up as a reply here, and I deleted it, or so I thought. Either some tech glitch removed my earlier comment to harpie instead of the one I was trying to delete, or I made a mistake.

      • harpie says:

        And why was that so “recent”?
        YOU have some catching up to do. You can start here:
        January 28, 2022

        And Marcy covered that in the first sentence:

        In his motions in limine submitted Monday, John Durham included a text Michael Sussmann sent to James Baker that he belatedly discovered on the Baker phone he never bothered to look for.

      • P J Evans says:

        Nice try, but ew has been following this for months, and pointed out that Durham didn’t bother to get that phone until recently, though he’s been working on this for two years and has next-to-nothing to show for all that time (and money).

    • Rugger9 says:

      It’s why I asked about a trial date in an earlier post, because it would seem to me after reading the various analyses that Judge Cooper will not kill the prosecution here because materiality to continue the process has a lower bar. IANAL, but from other cases I’ve followed the in limine motions set the ground rules for the trial which would then follow in short order. So, if there is trial in the near future, Judge Cooper may in effect be doing Sussman a favor by getting an acquittal and the ability to invoke double jeopardy defenses in the future.

      Any idea from the legal beagles here on how that timeline would work, i.e. will this be wrapped by Labor Day? If so, it would help to limit the effect of Durham trying to feed more chum to the RWNM which I suspect is the real purpose of all of this legal bilge water.

      OT, it has been noted elseweb that Tucker Carlson couldn’t find time to talk about Bucha but plenty for Hunter Biden and M&Ms. No wonder we see the interviews of the MAGA types that prefer Putin to Biden. Ye gods.

    • Artemis says:

      I’m not a lawyer, but I think the point Charlie is missing is that even if the phone was “recently” discovered by Durham (due to sloppiness), the statute of limitations would still prevent a superseding indictment…unless as emptywheel noted, Durham tries to wiggle around it by not including the date of the text. That is why emptywheel keeps commenting about how incompetent and sketchy Durham is. He keeps making these stupid mistakes and then acting unethically to try to overcome them. With statutes of limitations, it doesn’t matter if you find slam-dunk evidence of guilt…you still aren’t allowed to charge them. Which is why it is so egregious that Durham never bothered to go after the phone until recently (after he charged Sussmann), even though he was told about its existence at least twice in the past (I think maybe 2 years ago, but can’t remember exactly- you would have to read emptywheel’s post on it).

      • John Colvin says:

        Agree with your statute of limitations points, which may turn out to be very important.
        Having not reviewed Baker’s cell phone, my guess is that – based on info in the notes of third parties who were not in attendance at the Sussman interview and who were told by Baker post interview about Sussman’s “non-representation” – Durham mistakenly believed that this was conveyed by Sussman on September 19, 2016. Using the notes of these third parties as a cudgel, Durham may have “refreshed” Baker into agreeing that this is what must have happened. It will be interesting to see how this plays out.

  2. Yogarhythms says:

    Prescient, clairvoyant and honesty. Johnny, supersedes Indictment for an October surprise months early.

  3. klynn says:

    When the FOX article on the text came up in Flipbook, I shook my head and started looking at the clock hoping you would walk them through their mis-frothing sooner rather than later!

    Thank you. Great post.

    • Leoghann says:

      Yep, The Hill reported on that last night, about three hours after the order came down. I made a comment about it on another thread. Last night and this morning, it’s been fun to read Moseley’s comments about it to various media entities.

  4. Zirc says:

    “I’m coming on my own – not on behalf of a client or company – want to help the Bureau.” I don’t see what’s so damning about this statement, even without the dates/information EW provides to give context. Why is it so difficult to believe someone can have a job/client and stumble across some information that could be interesting to a third party, and then present that information to the third party (in this case the FBI) saying “Look, I’m doing this for you as an individual not as a representative of anyone else”? That third party can take your report with a grain of salt and do its own research, but altruism is not completely and utterly dead. Durham seems so intent on finding ulterior and malign motives that he just assumes them.


    • jhinx says:

      I agree. Also, as I recall, Sussman and Baker have a relationship. So why weave a lie into such a critical and sensitive situation and jeopardize that relationship, potentially permanently?

    • BobCon says:

      One thing to watch out for is to what degree the press will be flipping the script they use for Trump, which reasonably notes the difficulty in turning his statements into evidence for a criminal conviction.

      There are very strong reasons Durham is pushing a case that will be extremely hard to get a jury to accept. But it’s unclear whether that framing gets much play from the DC press, which is heavily biased toward GOP reframing.

    • civil says:

      It’s “damning” because in his HPSCI testimony, Sussmann said that his September 2016 meeting with Baker and his early February 2017 meeting with the CIA were “done on behalf of my client” (singular), and Sussmann’s lawyers have said things like “Mr. Sussmann has consistently maintained—including in testimony under oath—that he met with Mr. Baker on behalf of a cyber expert client.”

      But Sussmann also told the HPSCI that his early Feb. 2017 “contact [redacted] did not relate to my specific representation of the DNC, or the Clinton campaign, or the Democratic Party,” which seems to be a reference to his February 9, 2017 meeting with the CIA, and Durham keeps alleging that Sussmann was also working on behalf of the Clinton Campaign in the meetings with Baker and the CIA, so — given Durham’s allegations — I’m puzzled that Durham hasn’t also charged Sussmann with making a materially false statement to the HPSCI.

      • obsequious says:

        Durham’s goal is to get a conviction on false statement to FBI, then move onto Danchenko’s false statements, then tie everyone in on a criminal conspiracy. The conspiracy part is the most important, which is why ancillary issues like lying to the HPSCI is not really important for prosecution.

        Who would be in the conspiracy? Sussmann, Joffe, GA tech researchers, HRC campaign, DNC.

    • Adam says:

      I thought that Sussmann’s story was that he was in fact representing Joffe (but not the Clinton campaign as alleged in the indictment)?

    • Artemis says:

      I think the reason it is considered “damning” by the froth is because the only other evidence of Sussmann’s statement is so very weak. Since the statement is the very basis of the charge, Durham needs something solid like a recording or written statement. Only Sussmann and Baker were in the meeting, so no 3rd witness and there was also no recording. The notes taken about the meeting (I think not even written by Baker) were unclear on the exact wording of the statement and there was a word crossed out, which all suggests that the note-taker wasn’t super clear on what Sussmann said about a client. Further, I believe Baker later testified both ways as to whether Sussmann even made the statement…which taken together means that whether Sussmann ever made the statement and whether the statement was vague or explicit are both seriously in question and would virtually guarantee a not guilty verdict. The text provides a written statement and exact wording, so it does help Durham’s case. However, as emptywheel noted in this post (which was very insightful and enlightening!), the text doesn’t completely “solve” Durham’s issue with the notes because it still doesn’t prove what Sussmann said at the meeting the next day (altho I do think the jury would infer he said the same thing), which is what he was charged with, and Durham can’t charge Sussmann for lying in the text bc of statute of limitations altho she suggests he will try. Given the text, Sussmann could argue that after saying it in the text, he didn’t repeat it at the actual meeting and Baker didn’t explicitly ask (which is kind of where Sussmann has been pointing with materiality claims). Emptywheel also notes that Sussmann still has the defense that he was primarily warning Baker about an upcoming article on the topic and not giving a tip as much as a heads up that some info is about to become public, and in that case it would be counterproductive for his supposed client if he told the FBI so they could kill the story before it was published.

      • Leoghann says:

        Sussman’s claims about (non)materiality are based on the precedent that a false statement is only material if it resulted in action in an investigation (investigations, charges, etc.). The FBI would have investigated this matter whether or not they thought he was representing the Clinton campaign in making the tip, and they did so.

        • Artemis says:

          Yes. I only pointed to the materiality claims to further my point that the notes and recollections regarding the wording of the statement about no client were so vague and contradictory that Sussmann argued in the motion about materiality that it couldn’t have been that material to the FBI because they didn’t make a big point about asking, or make a big point of clearly outlining his response in their notes. It was treated more like an afterthought exactly bc they would investigate either way. The overarching point I was trying to make was that the first step in proving his statement was a lie is proving *exactly* what the statement was. If they aren’t even sure of exactly what he said, how can they get a jury to convict him for that statement being a lie? The text provides the evidence needed for that first step, and like I mentioned, I do think the jury would infer he said the same thing the next day at the actual meeting. Before the text came up, I think the jury would be forced to find Sussmann not guilty bc of the vagueness and contradictions in the notes and testimony about the statement. Can you really find someone guilty of lying if you aren’t even exactly sure of what they actually said? That would be an easier trial. Now, I think the jury will have to focus more on the conspiracy Durham imagines…whether it was actually a lie (was it heads up about story about to be published or an effort to discredit trump?) and if it was an effort to discredit Trump, was there sufficient motive to conceal his client (ie, Durham trying to show doubts about veracity of the data and including a larger group of conspirators working together who didn’t want to be found out). As I mentioned above, I think the defense about giving a heads up on a story to be published is a good one and is supported by other evidence at the time, as is his knowledge & basic facts about sketchy Trump-Russia ties, and the fact that Durham’s “evidence” that they doubted their own claims is total bunk, and I think Durham has a serious problem tying all these ppl into conspiracy…so I still think Sussmann has a good chance, but honestly there will be so much extra info and junk thrown at that jury that you never know. It feels like this trial will be a lot like a Tucker Carlson or Sean Hannity show…so much shit thrown at you so fast that you get confused and can’t clearly think through it all. I think bc it is not just Fox viewers watching and instead a jury who will realize that their verdict has specific real-world consequences, they will try to figure it all out and find truth with more objectivity, but the entire trial sounds more and more like it will be a circus and there might be real consequences for the election if he is found guilty beforehand, or maybe no matter what just bc Fox will weaponize the trial.

        • obsequious says:

          You’ll have testimony from FBI experts at Sussmann’s trial that indicate the level of investigation that would be done if Sussmann’s work on behalf of clients like the Clinton Campaign and Rodney Joffe vs. on behalf of nobody besides a “good citizen.”

        • bmaz says:

          No, you will not. Not unless they are fact witnesses alone. What you are describing will not happen. Why are you suddenly here? And if you just keep blathering BS, you will not be here.

        • obsequious says:

          Durham already wrote that in his discovery update and follow-up to Sussmann’s defense team including who has given grand jury testimony and interviews to the SC and what they are testifying to.

  5. Lawnboy says:

    (Off topic trash talk)
    If Durham had a song playing when walks up to the plate….I have an ear worm of U2 , “ Still haven’t found what I’m looking for “.
    Can’t make it stop,

    Lb has a ton of vintage vinyl
    This is a stolen open thread.

    [Ordinarily I’d be okay with this, but this particular thread isn’t a good place for off-topic material. Don’t reply, just avoid more off-topic material in this thread. Thanks. /~Rayne]

  6. Silly but True says:

    There are some related concerns: 1) this email _IS_ pretty damning. My take away from that email is that it probably is more true than not that Sussmann lied to Baker. That’s irrespective of what Sussmann can be prosecuted for in 2022 which is different problem.

    2) if the statute of limitations has expired, then Sussmann should count himself lucky he might get loopholed out of his crime.

    3) _IF_ Sussmann did lie, and various DOJ parties have known that, but incompetently coordinated, some serious review needs to be done on what the heck is going on over there that the OIJ and Special Counsels can’t talk to each other.

    Sussmann (apparent) evidence of lying to FBI implicates the FBI as being incompetent more than less.

  7. Rayne says:

    Moderator’s observation: We have a greater than usual number of first-time or infrequent commenters who appear to be located within 50 miles of Washington D.C.

    Don’t think this isn’t noticed or that attempts to deposit bullshit here will be tolerated.

  8. Lakeside says:

    After reading yesterday’s piece on the notes by Priestap and Anderson and seeing this mornings stories on the email and how it supposedly proves the lie, I went and read the in limine motions. It raised some serious issues in my mind for the prosecution. I reached the same conclusion about the alleged lie told in the email not being chargeable because of the statute of limitations. But the email may end up hurting Durham’s case more than it helps it. Durham is charging that the lie occurred during the meeting and the evidence is based on the notes by Priestap and Anderson. Neither can remember why they wrote that Sussman claimed to have no client. They have never been asked if they were told about the email. With no memory of why the wrote those words it is just as likely they wrote that because they were told about the email as it is that they wrote it because they were told Sussman said it during the meeting. Durham is left with no evidence supporting his argument that Sussman told the lie during the meeting other than Baker’s faulty memory and he could be remembering the email as well. Reasonable doubt becomes hard to overcome.

    If Durham somehow manages to get past the statute of limitations and turn the case into being a lie told in the email then his argument for materiality becomes even more dubious as he has to show beyond a reasonable doubt that the alleged lie told to get the meeting is material to the final decision by the FBI to investigate. The jury would have to accept that the convoluted path from the email to the meeting to the FBI investigation is all connected and the meeting and the FBI investigation wouldn’t have happened without the alleged lie.

    • Dmbeaster says:

      Text message, not email, which I think makes your point stronger. It’s on the phone – not in email. It’s more casual. Makes me wonder if someone asked after the meeting on whose behalf Sussman was there, resulting in the after the fact note about it. It also suggests it was not discussed in the meeting.

    • Leoghann says:

      In my mind, the very fact that Baker, Priestap, and other note-takers barely remember whether Sussman said who he was representing goes toward proof of the immateriality of it. Surely a statement of who he was or was not representing would have stuck in memory if it had mattered. It was common knowledge that Sussman did work for the campaign, and these are people who commit things to memory as part of their jobs.

      • Ginevra diBenci says:

        Leoghann, you just put your finger on exactly what I was thinking: if materiality ever existed, it would have been at the time Sussmann talked to Baker, and the Bureau’s treatment of that meeting indicates strongly that the issues Durham is hammering now did not seem central to them then. Everyone’s focus seems to have been on keeping the story out of NYT–not Sussmann’s motivation for handing it off.

  9. BobCon says:

    “the decision that FBI made: not just to open an investigation or not, but also to intervene and kill a damaging story about Trump.”

    To clarify, the traditional sense of “kill a story” isn’t what happened, which usually means convince the NY Times not to publish.

    The Times, for reasons they still won’t disclose, went much farther when editors rewrote Lichtblau’s reporting and claimed that not only were investigators having trouble verifying claims about Alfa, which was true, but that the FBI wasn’t investigating Trump and Russia wasn’t aiding Trump. Both of those claims inserted by Times editors were egregiously false.

    It’s still a mystery what led Times editors to add those points, but it’s highly doubtful they had anything to do with Sussman, at any rate.

  10. bawiggans says:

    So, perhaps among other things, Durham has to sell a jury:
    1. the notion that Sussman was acting on behalf of a client, ultimately the Clinton campaign, as opposed to no client or another client, and in its interest, when he informed the FBI of an upcoming NYT article whose publication could only be detrimental to Clinton’s opponent;
    2. the notion he did it with the expectation that the FBI would open an investigation into certain Trump-associated DNS anomalies;
    3. the notion he did it with the hope there would be no FBI response of moving to quash the article in spite of #2;
    4. the notion that Sussman, a former DOJ prosecutor who was surely aware of DOJ policy regarding public notice of FBI investigations of electoral candidates before an election, thought there was a very good chance that the investigation from #2 would somehow become public.

    Though Sussman claims he had no expectations at all, Durham could conceivably convince a jury of #1 and #2, but #4, essential as the payoff, will be a heavy lift even with the timely assistance of Jim Comey. Can Durham make the case that Sussman, acting on behalf of his client, would risk prompting the FBI to convince NYT not to publish its article for the chance of #4 coming to fruition? This could have as easily resulted in getting the article spiked and either no investigation or no leak of an investigation, the worst of all possible outcomes for his alleged client.

    • obsequious says:

      If the NYT is contacted by the FBI who says “please don’t comment on possible investigations, please do not publish this article”, don’t you think the NYT would try some other way to leak out that Trump is being investigated for a secret server?

  11. Marika says:

    Isn’t it conceivable that the email was about the warning to the FBI that the NYT was going to print a story and that is what he was telling them on his own and not for any client? Durham is contending Sussman lied about representing anyone over the actual information about Alpha bank not about the fact that the NYT was about to print a story. Does that make any sense?

  12. viget says:

    That actually does make sense. I can’t help but think that Sussmen is being punished for something. Perhaps he was asked to name some names and wouldn’t do it?

  13. greenbird says:

    i have a little gurney;
    especially to be
    lying on to recover
    from the surgical words i read;
    and the smarties that don’t get dizzy
    and fall and hit their head,
    because i am determined
    to KNOW what marcy said.
    i lie upon my gurney
    to help get free alone
    from all the juggling thinkers
    to reach the end – wherever –
    and yell, at last, ” I KNOW ! ”
    (jeepers it’s just Winsdie!)

    • greenbird says:

      missed off-topic ban up thread … but …
      Apr 6, 2022

      MINUTE ORDER: The Court will hold a sealed, ex parte conference regarding the government’s 52 Classified Motion for a Protective Order Pursuant to CIPA Section 4 on April 14, 2022 at 1:00 PM in person before Judge Christopher R. Cooper. Signed by Judge Christopher R. Cooper on 4/6/2022. (lccrc1)

    • greenbird says:

      also, did this appear today ? not found yet …
      Apr 4, 2022

      At the request of the parties, the Court hereby sets the following briefing schedule.
      Defendant shall file his expert motion by Friday, April 8.
      The government shall respond by Friday, April 15. The Court will determine whether a reply brief is necessary after reviewing the briefing.
      * The government shall file its privilege motion by Wednesday, April 6. *
      The Court will set a deadline for the defendant’s opposition after reviewing the motion. Signed by Judge Christopher R. Cooper on 4/4/2022. (lccrc1)


  14. DrDoom says:

    What little I know about this case I learned primarily from posts on this site. IANAL. My understanding is as follows: Durham has indicted Sussmann of lying to the FBI regarding possible Russian interference in 2016 election. A contentious issue has been whether he spoke with the FBI on his own behalf or on behalf of a client. I do not understand how the question of agency affects either the external truth of the alleged lies or Sussmann’s awareness of their falsity, if false. If Sussmann’s statements were factually correct, isn’t that sufficient to sink the prosecution regardless? If they were factually incorrect but it was plausible that Sussmann believed them to be correct, isn’t that also enough for Sussmann to prevail? Wouldn’t Durham’s burden of proof be to demonstrate BOTH falsity AND knowledge of such? And wouldn’t Durham also have to prove that the FBI behaved differently as a result of Sussmann’s statement than they would have in its absence? Based on what I see published here, I don’t understand why Durham’s prosecution is being taken seriously. I find it scary that a prosecutor can build a house of cards such as this one and force the accused to spend a great deal of time and expense to defending against seemingly specious charges.

  15. obsequious says:

    Sussmann is a former prosecutor. He knows that who brings information and why matters a lot, which is why Baker and Priestep made notes on that. Important details.

    Apparently Durham has several witnesses who will testify from the FBI that this matters significantly to how the investigation is conducted.

    • bmaz says:

      Lol, you are a trollish joke. Why are you here? Who is paying you “Obsequious”? Plus, your comment is a hollow joke. You picked the wrong place to try this nonsense. Run along.

      Don’t pay attention to this troll. This twatwaffle has exactly eleven comments here. All today. This is a targeted troll hit.

      • Rayne says:

        11 comments published using the same identity and under only two posts: those related to the Durham special counsel investigation.

        Follows a very similar pattern noted across an influx of new commenters, which a key reason why community members need to stay on topic in the Durham-related comment threads. It makes it easier to see which accounts are engaging in the same patterns and practices.

      • obsequious says:

        Nobody is paying me anything and I’m not trolling. I am a layperson who has paid attention to everything regarding Trump-Alfa and Steele Report since 2016. The reason why I’m coming to the site commenting today is because I have some free time while I’m sick with a stomach bug and I searched for Durham investigation updates in Google.

        • harpie says:

          If today is the first day you came to this site, then you have obviously NOT “paid attention to everything regarding Trump-Alfa and Steele Report since 2016,” and HAVE missed the most detailed reporting about it that’s available.

        • bmaz says:

          Uh huh. We are not rookies you know. Even if you were gauged slightly wrong initially, and I do not think you were, this is not going to be your sudden shitpost repository. Sorry.

    • EdwardB says:

      If Durham has witnesses from the FBI (or several witnesses who will testify from the FBI, whatever that means) as to how Sussmann’s client or lack of a client would affect how the Bureau approached the investigation, those witnesses should have been disclosed several weeks ago, along with the substance of their testimony.

Comments are closed.