The Posture of the Michael Sussmann Case
There have been a slew of developments in the Michael Sussmann case, and in advance of two of them, I wanted to lay out what the posture of the case is. One thing that those swooping in for the conspiracy theories seem to miss is that what happens between now and the trial — scheduled to start on May 16, though Durham is trying a number of stunts to delay it — will be dictated by a bunch of rules, and no matter how guilty or innocent or sleazy-but-not-criminal you think Sussmann is (and I think one can make the case for any of the three), the evidence the jury will see will be decided in the next few weeks according to the rules of criminal procedure.
The questions to be decided in the next few weeks are, generally, the following:
- Whether to penalize Durham for breaking the rules
- Whether the Alfa Bank DNS anomaly is real and whether the inferences about it are reasonable
- Whether Judge Christopher Cooper will review privilege claims
- How much of Durham’s conspiracy theories will be admitted
- Whether to immunize Rodney Joffe
Whether to penalize Durham for breaking the rules
A question that won’t be decided until after a status conference next Friday, but which dictates the answer to many of the others, will be whether John Durham will be penalized for ignoring deadlines and other rules. To a greater or lesser degree, even after getting an extension on his discovery and CIPA deadlines, Durham blew off the following deadlines without asking for permission:
The identity of his expert testimony and the scope of his testimony: In this case, Durham didn’t blow off a hard deadline imposed by Cooper, but he broke the rules of comity by ignoring repeated requests for a description of his use of expert testimony and, thus far, providing only cursory description of what his expert, Special Agent David Martin, will testify to. Durham has tacitly admitted he didn’t provide this in timely fashion; his defense of Martin stated, “the Government intends to provide defense with a supplemental disclosure regarding his training and experience with DNS and TOR.” That description is what should have been provided to Sussmann months ago, so he could find a better expert — and with all due respect to the investigative expertise of Martin, there are far better qualified experts out there.
According to Durham’s filing, Martin has not tried to replicate the DNS anomaly, nor does it appear he plans to, which is the basis every other expert has used to test theories about the anomaly. Further, as Durham describes it, Martin will explain the sources of DNS data generally, not the DNS data available to the various researchers who worked on the anomaly. This latter point is a big tell, because Durham has made all sorts of misleading claims about the sources of the data.
There will, undoubtedly, be some kind of expert to explain what DNS and Tor are; Cooper has said he needs that information himself. But Cooper would be in his right to use Durham’s late notice to limit Martin’s testimony to those topics. Some of this is likely to get decided in a hearing today, so Sussmann can get an expert of his own accordingly.
404(b) notice for two claims: Durham submitted one 404(b) notice (of evidence he’d like to submit but which may not be direct evidence of a crime) in timely fashion, on March 18. It was very cursory, but it listed 4 topics he wanted to introduce:
- Sussmann’s February 9, 2017 meeting at the CIA
- Perkins Coie’s 2018 statements to the press about Sussmann’s meeting with James Baker
- Sussmann’s 2017 testimony about the meeting to HPSCI
- Durham’s now disproven accusation that Sussmann got rid of texts he was required to keep under Perkins Coie’s retention policy
But then, five days later, Durham submitted what he called a “supplement.” That expanded the description — and with the expanded description, expanded the scope — of the four topics he had already noticed, and then added two more:
- The origins of the data
- Evidence about whether the inferences researchers made about the data were reliable
Those last two topics failed to meet Cooper’s deadline, and he could reject their admission on that basis alone.
Communications over which Sussmann’s clients claimed privilege: Sussmann’s opposition to Durham’s effort to pierce privilege lists three rules Durham broke when he told Sussmann a month before trial he wanted to pierce privileged communications:
- A failure to meet either Durham’s original discovery deadline or his expanded one
- A failure to go through Beryl Howell as part of the (secret) grand jury investigation
- Use of a grand jury to get evidence on an already-charged indictment
Normally, such privilege fights take place over the course of months (like the thus far four months that January 6 Committee has been trying to get John Eastman’s documents over which he has made weaker privilege claims or the year that SDNY spent doing a privilege review of Rudy Giuliani’s devices). Here, Durham attempted to pull a stunt to find a way to do this at the last minute. Cooper even called him out for that stunt, noting that this effort requires a motion to compel, not the motion in limine Durham claimed he was going to use. And Cooper called him out (after putting Durham on notice in response to his inflammatory conflicts motion earlier this year), before being presented with the other ways Durham has abused process in an attempt to pierce privilege claims on the eve of trial. While the third of these is less serious than the other two (Durham will claim he was investigating additional crimes), Cooper could deny Durham’s entire effort based on these rule violations.
Whether the anomaly is real and whether the inferences about it are reasonable
Sussmann has argued that the only thing that matters to the false statement charge against him is his own state of mind of whether the anomaly was real and the inferences in the white papers he shared were reasonable. Durham is using a variety of late-hour tactics to insinuate both the anomaly itself and the inferences drawn from it were a set-up designed to impugn Trump. Importantly, he appears to want to do so not by calling the various researchers who found the inferences reasonable, but instead to talk about what other people looking at other (and usually, far less) data thought of it. He is attempting to do this in three ways:
- Introducing hearsay documents to which Sussmann was not a party
- Asking his late-notice expert to talk about the topic without having done the research to address it
- Calling FBI and CIA witnesses, who also did not replicate the claims, to ask their opinions about it
One way Durham could get to this is by calling Rodney Joffe. He’s literally the only one who would know whether he, Joffe, believed the data were reliable and asked Sussmann to share it believing it represented a national security threat, or whether he knew it was a cock-up and cared more about getting Donald Trump investigated. Joffe is also far more expert than Special Agent Martin. But to do that, Durham would have to immunize Joffe, and he is refusing to do that.
Sussmann has raised really good reasons why the way Durham wants to present the question of the reliability of the data is not only irrelevant to his own state of mind, but also violates rules of criminal procedure. Cooper could reject at least some of these efforts based on those rules. And he could put real limits on these claims at a hearing today.
Whether Cooper will review privilege claims
Right now, Durham has only asked Cooper to review privilege claims behind a bunch of documents he wants to enter, though if Cooper were to do that, it would delay the trial considerably (which may be part of Durham’s intent). If Cooper did review the documents, then there’d be a separate fight about whether the documents are admissible in this trial.
But given the explanations in the court filings, most of the communications in question are totally irrelevant to the false statement charge against Sussmann. Many would count as hearsay, inadmissible unless Cooper accepts Durham’s claims that this amounts to a (legal) conspiracy. Just four — communications with Fusion’s Laura Seago — involve Rodney Joffe, the one person who could speak to Sussmann’s own understanding of the reliability of the data. And many if not most of the documents post-date the date of Sussmann’s meeting with James Baker. So in addition to Durham’s rampant rule violations in making this request, Cooper could reject the effort (at least with respect to most of the documents) based on procedural reasons.
How much of Durham’s conspiracy theories will be admitted
Under the guise of proving a motive wholly incompatible with the now proven willingness on the part of Sussmann and Joffe to help the FBI kill the NYT story, Durham wants to treat the Democrats’ parallel efforts (the Steele dossier and the Alfa Bank anomalies) as one giant conspiracy.
He has not alleged that the conspiracy, if true, amounts to a crime. Indeed, he has ignored that many of the suspicions that he points to as proof of maliciousness — suspicions that Paul Manafort was laundering money from Oligarchs close to Putin, suspicions that family members of Alfa Bank Oligarchs were helping Manafort launder those relations, suspicions that Trump had secret communications directly with the Kremlin — all turned out to be 100% true.
Durham’s ability to make this argument at all really pivots on Joffe’s claims about his relationship with Fusion; he says it was not one of common interest but instead consulting work through Sussmann. That’s undoubtedly the sketchiest claim in this entire house of cards (and because of Joffe’s key role, may be one that Cooper tests).
But even if Cooper finds Joffe’s claims suspect, even if there were a coordinated effort to understand a now-proven effort by Russia to exploit various real relationships with people close to Trump and a now-proven effort to repeatedly hack Hillary, including in response to Trump’s request, it’s not clear that any of that matters to the single false statement charge against Sussmann.
From the very first, I observed that Durham obviously wanted to build a conspiracy charge against the Democrats, and that his case against Sussmann would be stronger if he did. That’s all still true (though evidence submitted thus far make me less convinced the conspiracy is what Durham thinks it is, and more convinced that if he were to charge it, we’d finally get the trial of Donald Trump for 2016 we deserve). But because Putin’s invasion of Ukraine led Durham to lose his trusty Alfa Bank partners in this effort, Durham is left trying to stick a bunch of procedurally square pegs in round holes, and doing so having missed deadlines to do it in proper fashion.
Durham may be legally entitled to get an interlocutory appeal on some of the decisions Cooper is likely to make in the next two weeks. That would delay the trial, something he has been trying to do from day one. But that would also require the assent of Lisa Monaco, and if his appeal was obviously abusive — as an appeal based off his own failure to follow the rules would be — he might not get that chance.
Even if you’re 100% sure there was a conspiracy here, even if you’re 100% sure Durham could find some unlikely hook on which to make that conspiracy criminal, that doesn’t mean he’ll be able to obtain — much less present — the evidence to make his case. Normally, prosecutors take that into account before charging people. Durham rather flamboyantly did not.
And for all the people who’ve spent three years falsely claiming that the Mueller Report showed no evidence that Trump conspired with Russia, you should think a lot more about how much more evidence of a conspiracy Mueller was able to show than Durham has, with an extra year to gather the evidence. Because all that evidence might become admissible if Durham continues to chase his own conspiracy theories.
Whether to immunize Rodney Joffe
As made clear above, some of these questions would be simplified if Joffe were called as a witness. Sussmann says that Joffe is a necessary witness to his defense, and Durham’s claims that he might still charge Joffe are just an abusive attempt to prevent Joffe from providing exculpatory testimony. Durham claims he hasn’t offered use immunity in a discriminatory way (he has given it to David Dagon and may give it to someone at Fusion), and claims that retaining Joffe as a subject of the investigation even after a five year statute of limitation on his actions has expired is not abusive. In a fairly ridiculous passage, Durham further claims that Joffe’s testimony would not be that helpful — but he ignores that Joffe would testify about his joint decision, with Sussmann, to help the FBI kill the NYT story.
Finally, the defendant fails to plausibly allege – nor could he – that the Government here has “deliberately denied immunity for the purpose of withholding exculpatory evidence and gaining a tactical advantage through such manipulation.” Ebbers, 458 F. 3d at 119 (internal citation and quotations omitted). The defendant’s motion proffers that Tech Executive-1 would offer exculpatory testimony regarding his attorney-client relationship with the defendant, including that Tech Executive-1 agreed that the defendant should convey the Russian Bank-1 allegations to help the government, not to “benefit” Tech Executive-1. But that testimony would – if true – arguably contradict and potentially incriminate the defendant based on his sworn testimony to Congress in December 2017, in which he expressly stated that he provided the allegations to the FBI on behalf of an un-named client (namely, Tech Executive-1). And in any event, even if the defendant and his client did not seek specifically to “benefit” Tech Executive-1 through his actions, that still would not render his statement to the FBI General Counsel true. Regardless of who benefited or might have benefited from the defendant’s meeting, the fact still remains that the defendant conducted that meeting on behalf of (i) Tech Executive-1 (who assembled the allegations and requested that the defendant disseminate them) and (ii) the Clinton Campaign (which the defendant billed for some or all of his work). The proffered testimony is therefore not exculpatory, and certainly not sufficiently exculpatory to render the Government’s decision not to seek immunity for Tech Executive-1 misconduct or an abuse.6 The defendant therefore has not met his burden of demonstrating, among other things, that the evidence provided by an immunized witness would tend to show he is “not guilty.” Ebbers, 458 F.3d at 119.
6 The defendant’s further proffer that Tech Executive-1 would testify that (i) the defendant contacted Tech Executive-1 about sharing the name of a newspaper with the FBI General Counsel, (ii) Tech Executive-1 and his associates believed in good faith the Russian Bank-1 allegations, and (iii) Tech Executive-1 was not acting at the direction of the Clinton Campaign, are far from exculpatory. Indeed, even assuming that all of those things were true, the defendant still would have materially misled the FBI in stating that he was not acting on behalf of any client when, in fact, he was acting at Tech Executive-1’s direction and billing the Clinton Campaign.
Thus far, Cooper has not done the one thing I would imagine he’d do if he’s considering this seriously — to order Durham to provide an ex parte description of what Durham really thinks Joffe is still at risk for.
But even on its face, Durham’s claim that Joffe would not be helpful is particularly problematic given that many of Durham’s evidentiary difficulties would be made easier if Joffe could be called to testify (for example, about documents he was party to but Sussmann was not).
If Cooper were to decide to make Durham choose to immunize Joffe or drop the prosecution — a decision that would not come before next Friday — all the other decisions would fall into place much more easily.
Update: Added Joffe immunity discussion.
Update: No fireworks at the hearing on a tech expert. Andrew DeFilippis did repeatedly misstate the FBI conclusion and did repeatedly backtrack on DOJ’s claim they don’t want to make the veracity of the claimed tie between Trump and Alfa an issue. He also admitted there’s no evidence in the email headers and billing records to prove his case, which is why he wants to talk about the creation of the data. Sean Berkowitz called the third white paper, created by Fusion, the equivalent of a WikiPedia page. There was also a reference to a meeting between Marc Elias and Joffe where the former allegedly talked about pushing the Trump-Russian line.
The most interesting details is that Durham has withdrawn the CIA guy who concluded the data was human created from their witness list; that’s also a conclusion he says the FBI doesn’t necessarily share. In any case, the conclusion sounds like it is about the same complaints others had about missing columns in the CSV tables.
Update, 4/25: Judge Cooper has issued an initial ruling on Durham’s expert witness. It limits what Durham presents to the FBI investigation (excluding much of the CIA investigation he has recently been floating), and does not permit the expert to address whether the data actually did represent communications between Trump and Alfa Bank unless Sussmann either affirmatively claims it did or unless Durham introduced proof that Sussmann knew the data was dodgy.
Finally, the Court takes a moment to explain what could open the door to further evidence about the accuracy of the data Mr. Sussmann provided to the FBI. As the defense concedes, such evidence might be relevant if the government could separately establish “what Mr. Sussmann knew” about the data’s accuracy. Data Mot. at 3. If Sussmann knew the data was suspect, evidence about faults in the data could possibly speak to “his state of mind” at the time of his meeting with Mr. Baker, id., including his motive to conceal the origins of the data. By contrast, Sussmann would not open the door to further evidence about the accuracy of the data simply by seeking to establish that he reasonably believed the data were accurate and relied on his associates’ representations that they were. Such a defense theory could allow the government to introduce evidence tending to show that his belief was not reasonable—for instance, facially obvious shortcomings in the data, or information received by Sussmann indicating relevant deficiencies.
Ultimately, Cooper is treating this (as appropriate given the precedents in DC) as a question of Sussmann’s state of mind.
Importantly, this is what Cooper says about Durham blowing his deadline (which in this case was a deadline of comity, not trial schedule): he’s going to let it slide, in part because Sussmann does not object to the narrowed scope of what the expert will present.
Mr. Sussmann also urges the Court to exclude the expert testimony on the ground that the government’s notice was untimely and insufficiently specific. See Expert Mot. at 6–10; Fed. R. Crim. P. 16(a)(1)(G). Because the Court will limit Special Agent Martin’s testimony largely to general explanations of the type of technical data that has always been part of the core of this case—much of which Mr. Sussmann does not object to—any allegedly insufficient or belated notice did not prejudice him. See United States v. Mohammed, No. 06-cr-357, 2008 WL 5552330, at *3 (D.D.C. May 6, 2008) (finding that disclosure nine days before trial did not prejudice defendant in part because its subject was “hardly a surprise”) (citing United States v. Martinez, 476 F.3d 961, 967 (D.C. Cir. 2007)).
This suggests Cooper may be less willing to let other deadlines slide, such as the all-important 404(b) one.
Deadlines for recent and coming days:
March 31: Status hearing at which Cooper catches Durham trying to do a motion to compel as a motion in limine
April 4: Sussmann submits MIL to exclude privileged documents, MIL to exclude hearsay FBI records, and Durham’s theories of conspiracy; Sussmann moves to immunize Rodney Joffe or dismiss the case; Durham omnibus MIL to do everything Sussmann objects to, plus include 404(b) broadly defined
April 6: Government moves to compel privileged documents
April 8: Sussmann moves to exclude government expert
April 11: Judge Christopher Cooper sets April 27 hearing for motions (making it clear he won’t dismiss case)
April 13: Cooper denies Sussmann’s motion to dismiss case
April 14: Sealed CIPA 6 hearing (for Durham to argue for substitutions)
April 15: Exchange of case-in-chief exhibits and exhibit lists by both parties
April 15: Production of trial witness list by the Special Counsel to the Defendant
April 15: Sussmann submits omnibus MIL response and opposition to government expert; Durham submits omnibus MIL response and defense of expert witness
April 18: Sussmann response to Durham’s bid to compel privileged documents
April 19: Motions to intervene by privilege holders: Hillary for America, Rodney Joffe, Perkins Coie, Fusion; subpoena to Hillary and DNC witnesses
April 20: At request of Sussmann, Cooper schedules hearing to address how much of Durham’s treatment of validity of claims (expert witness and accuracy of data); Cooper reiterates April 27 hearing for other topics
April 25: Government reply on motion to compel due
April 27: Motions hearing — specific topics TBD
April 29: Production of trial witness list by the Defendant to the Special Counsel
May 4: Hearing on privilege issues
May 5: Objections to case-in-chief exhibits due
May 9: Proposed jury instructions and verdict form due
May 9: Pre-trial conference and CIPA Section 6 hearing (if necessary)
May 10: Placeholder for further hearing (if necessary)
May 11: Administration of jury questionnaire
May 16: Jury selection
“the evidence the jury will see will be decided in the next few weeks according to the rules of criminal procedure” one-hunnert-pracenT!
“nothing that this effort requires” SB ‘noting’
“earlier this year, before being” SB ‘earlier this year) before being’
Collectively, odds in federal cases are still a 97% percent chance Sussmann stands before a federal judge for sentencing.
With plan for aggressive schedule in place, which may already have shown Cooper’s hand a bit, the only problematic area becomes the privilege discovery fight. That’s not to say the other rules violations aren’t significant; it’s balance of how much impact on Sussman the violation has, and there’s still ample time for instance for Sussman to get an expert. Sussmann might try and submit motion “I was just unable to in time allowed,” and the solution would be a delay, something Sussmann doesn’t want but would surely be necessary because he doesn’t not want his own expert.
On privilege, Cooper may choose what to do after he’s seen it, and in the spectrum of innocuousness vs. scumbaggery might only then determine what can be used. If what he sees shocks him, he might be inclined to allow it. If it shows nothing and feeling builds Sussmann is railroaded then he might go other ways.
But regardless, there has always been 97% chance Sussmann sees sentencing. That average includes all the other times federal prosecutors broke local rules, and had privilege fights, and had untimely discovery and witness motions. It’s more indictment on unfairness of federal system, that more often than not these decisions go to the prosecution. Sussman isn’t first to have an unfair prosecution and until things change, he won’t be the last.
That is a bogus statistic. guilty pleas and jury trial verdicts are quite separate things. Don’t conflate the two, and don’t think all jury trials are the same. Saying Sussman stands a “97%” chance of being sentenced is ridiculous. Let’s let the jury decide, instead of you in a blog comment section, mmmkay?
Prognosticating outcomes for case watching is half the fun though!
Certainly his chances dramatically improve when this goes to trial. But he’s not quite there yet.
Yes, 3/4 of federal jury trials end in a conviction. Sussmann’s lucky he only has a single charge, so there’s no chance of a dump conviction on any lesser charge here.
Surely everyone is aware the composite average can’t be taken to mean every case will end this way, but whether it’s 97% pre-trial, or 75% of jury trials, that magnitude speaks to the overwhelming asymmetry between federal prosecution vs. defendants.
Well, darn, how silly of defense lawyers and their clients to ever take a case to trial! Heck, we might lose! Be afraid! FWIW, for a number of reasons, Sussman’s odds are way better than 75%. How much better is impossible to know, but it is not your average case, as Marcy has unfailingly documented.
Dontcha just love it when people show just how little courtroom experience they have, and to real lawyers, too?
Even if unlikely to win, if the putative sentence will be the same, or maybe even less, than the over confident offer of the prosecutor, go try the thing. Leaves a mark that you will take up a week or three of their time. and that is always a good thing for them to know. It makes future offers better, I got taught that my first year.
I suspect Sussman is ok financially, but the defendant has to be able to pay for this strategy. I am not a lawyer though. Would an attorney representing a less financially secure defendant or a public defender have the same resources/motivation to pursue this kind of strategy? Obviously this question is not about Sussman per se but a more general question about our justice system.
Yes and no. To do it right with a private counsel costs real money, both as to the atty and the resources for other things. As to PDs, they have such resources available theoretically, but have to beg for them.
But the bigger point is whether or not the likely sentence would be worse if you tried it, not how lavishly you try it. You may be going to lose, and that is okay.
PS: Although I don’t know for sure, my bet is that the Perkins Coie malpractice carrier covers a lot, if not all, of this. If not, he should make such a claim on them.
Love the description.
Took me a little longer than a year to learn it, tho’, being taught by opponents.
Unless a situation is random, it’s generally a mistake to think of an average as a predictive analytic. If, on average, it rains 113 days per year in DC, that does not imply that the odds of it raining tomorrow are 113/365; the likelihood of rain tomorrow in DC depends on a bunch of specific current weather factors, and the fraction of days that it rains annually isn’t one of them. Same with a trial: the odds of a specific person losing at a trial will depend on a bunch of factors specific to the case, and the national average isn’t all that significant.
I’m hoping that Cooper looks at the big picture here. Durham’s clear and consistent pattern of misleading filings, ignoring deadlines, and disregarding the obvious — that Sussmann helped the FBI kill the NYT story — merits a major slapdown from the Court for wasting the Court’s time and the people’s money.
Or look at it this way: if Sussmann’s goal was to create a political scandal to hurt Trump and boost the Dems, and he lied to the FBI to make that scandal happen, then why would he help the FBI kill the story at the NYT?
Until Durham can plausibly answer that question, he’s toast.
Sussmann wanted to kill the NYT story for one of two reasons:
1) The timing of the reporting would be too early for an October surprise for a political killshot to the Trump campaign.
2) Getting the FBI to contact the NYT to quash a story about an investigation is actually an excellent way to promote the story and get the NYT to report it or an independent journalist to launder the investigation for maximum political effect, sort of like buzzfeed with the publication of the pee-pee dossier.
The only way to figure this out is reviewing the correspondence between Sussmann, HRC campaign, and FusionGPS.
You left out the qualifier that these are the two least likely and most ridiculous conspiracy-theory based reasons…
Wasn’t Sussmann’s job as a consultant to the HRC campaign to provide opposition research to damage Trump’s political campaign?
I don’t understand why you think it’s not likely Sussmann was working to political ends.
Sussman provided cybersecurity advice to the Clinton campaign and, as part of his employment with “Law Firm-1”, provided general political advice to the campaign, according to [checks notes] John Durham. Durham never claims that Sussman’s job was to provide opposition research. Which is actually pretty interesting considering that Durham is alleging that that is what Sussman did.
Durham’s evidence connecting the Clinton campaign to the Sussman/Baker meeting is really weak.
Hence why Durham is seeking communications between the relevant parties to show that the cyber security facade was a way to cover for plainly political goals. The communications that Durham has already shown in his filings reveal the researchers aim was not to show a legitimate concern about a secret server but rather a way to infer a connection that could be used to buttress a political accusation that Trump was conspiring with Russia/Putin, which is clearly understood from the HRC campaign tweets right before the 2016 election.
Shielding crimes from prosecution by invoking attorney-client privilege is not a new phenomenon. Claiming “evidence is weak” without acknowledging the evidence is hidden behind privilege claims is really disingenuous.
[Note: I’m just toying with the troll for my own amusement. I’ll stop if the proprietors ask.]
I noticed how you backed off the false claim about what Durham’s job was when I called you on it. Now let’s deal with your new set of bogus claims.
So, what do you call it when a prosecutor knows that they need this alleged evidence, has months to ask for it under the rules, and doesn’t? There’s got to be a stronger word than disingenuous for that.
Are you making a claim for a crime fraud exception? As I understand it, Durham hasn’t made that claim. What do you know that he doesn’t? As I, a non-lawyer, understand it, the first step in the analysis is determining whether these communications are actually covered by privilege.
I suppose if the only thing you knew about the situation was what you read in Durham’s filings, that paragraph would make sense. The problem is that you’ve fallen for his innuendo and not paid attention to the claims he’s actually making. He never says that Sussman’s cybersecurity work was a facade; he’s selectively quoted from emails to make create a narrative about “narrative”; and the connection to the campaign tweets exists, from an evidentiary standpoint, only in Durham’s mind, at least at this point. A federal prosecution is not the place to demonstrate one’s apophenia.
I think your correspondent has misread which party in this prosecution has an abusive political agenda.
One correction: The first sentence should read Sussman’s job, not Durham’s job. I regret the error.
Apophenia is the tendency to perceive meaningful connections between unrelated things.
The term (German: Apophänie from the Greek verb ἀποφαίνειν (apophaínein)) was coined by psychiatrist Klaus Conrad in his 1958 publication on the beginning stages of schizophrenia. — Wikipedia
Congrats, Peterr — you struck a nerve with a troll!
As example of just one small area of the asymmetry: Baker’s cellphone / initial email from Sussmann.
We’re exactly four years after Baker resigned from FBI, some 4-1/2 to 5 years after DoJ OIG obtained his cellphone (not associated to Sussmann’s alleged crime).
By all rights, why in Jan. 2022(?) should Baker’s cellphone even still exist? Why was it even still around all this time such that Baker’s email could even be provided now? Because the federal government essentially has infinitely deep pockets; Sussmann gets to experience first-hand the humor of the final scene of Raiders of the Lost Ark. That’s collectively why 97% of federal cases end in sentencing, and why Sussmann’s hill out of this still remains a steep one to climb, regardless of the lightness of the case against him.
>By all rights, why in Jan. 2022(?) should Baker’s cellphone even still exist?< Which rights? Has entropy accelerated in the past few years? You should consider a new moniker: Stupid but Tedious Because while you are silly, you are never truthful; however, you are always stupid and exceptionally tedious.
Eh, let’s not do that.
It’s actually a good question: cell phones go out of date fairly quickly, and anything that worked more than 3 years ago may not work now: the systems have changed that much.
It would still be very easy to plug a five-year-old cellphone into a computer and dig into whatever data storage it has. That’s both easy, and it exposes the data storage to whatever tools someone might use to do forensic analysis.
To clarify Troutwaxer’s point even further, old cell phones are not kept by governmental investigative agencies for reuse. Nobody is going to run back to the Old Phone Locker to make a call or send a text. They are kept as a repository of data. Since they’re government property, that data never requires a court order.
Again with the 97%? Can you post a governmental document that verifies your 97% claim here?
Okay, perhaps a stupid question here: If the statute of limitations has expired for Joffe, and his testimony could help clarify his and Sussman’s actions and further provide expertise on the DNS & TOR anomalies, why wouldn’t Sussman’s lawyers call on him to testify?
INAL (obviously) but I thoroughly enjoy all of the work put in by the EW team.
That was my question also. Isn’t the question of immunity for Rodney Joffe separate from whether his testimony, and that of other experts, would place sufficient grounds for doubt in the minds of jurors as to Sussman’s state of mind? Could Sussman show that he found Joffe’s research to be credible, and sufficiently concerning such that he would bring it to the General Counsel of the FBI? In addition, couldn’t the defense call some of the outside experts, like Jean Camp, Steve Bellovin, or Paul Vixie? No offense to David Martin (motion to exclude notwithstanding), but these experts are likely to be seen as more credible than he would be.
The problem is, of course, if Joffe takes the 5th when what you want him to do is testify as to Sussman’s innocence. I think it was mentioned somewhere else that Durham has left Joffe hanging on the possibility of being charged in various ways, some of which might be perjury charges… Even if they’re completely bogus (or not) the threat of such charges might get Joffe to invoke the 5th under examination…anyways, that’s my understanding of where this all stands at the moment.
IANAL, but my understanding is that if Durham indicts for conspiracy, then the SoL is from the last crime committed by any member of the conspiracy, so even though the SoL has expired for Joffe were he to be individually charged for something else, the SoL need not be expired if Joffe is charged as part of the conspiracy.
There are also other fraud statutes that deal with monetary damages to the federal government related to programs worth $1,000,000 and above with a different statute of limitations: 7 years.
Major fraud involving at least $1 million against the federal government (U.S. Code 18 Section 1031) – 7 years
Sussmann and Joffe were involved in DARPA research with limits on its use, so misusing DARPA resources would be another crime that Joffe would be well within the SoL for prosecution.
He will take the 5th, which although it is unfair, hurts Sussman when you call your client who takes the 5th.
Statute of Limitations for major fraud is 7 years. And this doesn’t account for a likely charge of conspiracy.
It is not “major fraud” by my eye. To say that it could “not” be part of a conspiracy charge is simply not correct though, that is possible. Arguably unlikely at this point, but still possible.
I only mentioned major fraud because the SoL is 7 years, and Joffe was already shown to be misusing DARPA grant resources (over $1,000,000) via Dagon and Atonakakis (GA tech researchers) for personal gain (political benefits for his candidate of choice).
Okay. Did he engage in pedophilia too? Hey, maybe that is in there if you are dead set on enlarging Durham’s remit.
They have not been shown to misuse DARPA grant resources.
According to the indictment, Joffe “exploited his access to non-public data at multiple Internet companies to conduct opposition research concerning Trump and enlisted the assistance of researchers at Georgia Tech who were receiving and analyzing Internet data in connection with a pending federal government cybersecurity research contract.”
If you’re receiving and exploiting internet data *pending* a research contract, you’re probably misusing access to government property.
Besides using data you’re not authorized to use before the contract is fully approved, you’re also likely using it for reasons not within the scope of the future contract, namely political opposition research not legitimate cyber security.
Lol, is that a completing the story allegation, or an actual charging allegation? Do you know the difference?
Repeating my comment upthread about popinjays loudly showing off their lack of courtroom experience and to real lawyers.
I’m talking about Joffe and the Georgia Tech researchers, who haven’t been charged yet, so no it’s not an actual charging allegation.
I’m also speaking towards a possible federal major fraud indictment with a 7 year statute of limitations that Joffe would still be in.
You don’t seem to understand how research contracts work. The idea that there was fraud in the research contract is laughable. First, they couldn’t/didn’t misuse any funds by working on a side project with the data. Funds are allocated to be spent on computers, analytical programs, security software, paying for a % of the researchers’ salaries, etc. Second, because data is provided for *research purposes*, research contracts typically have one to three main projects…I.e., use of the data to look for specific things or answer specific questions. However, because when you are doing research, you don’t always know what you will find in the data, there is a lot of freedom to do side-projects for no additional funds. Thus, as long as the researchers fulfill the obligations of the primary one to three projects, there is *a lot* of freedom to examine other things. It’s actually encouraged quite a bit bc whoever gives them the data *also gets results of the side projects* *****for free***** (I.e., no additional funds provided for side projects). The contracts are written in such a way that you do not have to ask for permission to work on these side projects. Thus, it is very, very, very unlikely that there were any restrictions on side projects. However, there are usually restrictions on data security and data sharing in research contracts because the researcher doesn’t “own” the data and since it is being shared with the researcher, they are required to keep it safe and confidential. However, data security and data sharing restrictions are typically only for the raw data…not the results of analyses. That is because peer review is extremely important in research. You can share the results of your analyses and ask others about whether they think you did everything correctly, whether your results make sense, and whether your interpretation of the results is plausible or makes sense, etc. I am a researcher who has received research contracts so I have direct personal experience with this. Fourth, when I read the emails between the researchers, it all seemed very normal. A research manuscript has a narrative and tells a story of your project: the background (i.e., prior knowledge, premise of question, why it may be important), your methods, analyses, results, and interpretation of the results. Researchers call this a narrative when writing, even though it is not a narrative in the same way ppl describe it in politics. It is typical for you to share your paper and ask others if the narrative “flows” (in terms of writing, logic, and ease of understanding). It is also typical to ask others if your interpretation is plausible, or if they can identify any obvious counter-arguments or weaknesses that you should preemptively address or alternatively try to avoid or limit in your narrative/discussion. Because I am not fully aware of what the researchers shared, it is possible that they could have potentially breached their contract in terms of data security/sharing. However, that is *extremely* easy to prove and probably would have resulted in the immediate cancellation of the contract with the university, along with a number of other regulatory penalties for both the researchers and the university that could have put *all* research at the **entire university** in jeopardy. We have seen no indications that any penalties or anything like that happened to those researchers or to the university. From what I’ve seen, everything the researchers did was completely fine.
DARPA project data that includes Executive Office of the President of the United States can be used in a side project with primarily political aims?
Where does the research contract specify that the subject is the Executive Office and the output is for ‘primarily political aims’?
You do realize that research can identify issues even if not the primary focus of the research? Issues can arise on an incidental basis?
It feels increasingly like you’re doing your own identification of incidental issues to drag this thread around.
Rayne, that’s not what I said or implied. I’m merely pointing out that it is highly doubtful that DARPA would be ok with allowing access to partisan researchers and give them free range to investigate political opponents, and to use those data to interfere in a political process.
And I’m pretty sure Artemis already elaborated on that.
This ziggurat is done; don’t add more. If you have something new, start a new comment at the root.
Thank you, Artemis, that was very informative!
The first problem I see is that you believe Durham’s indictment.
Maybe his/her job depends upon it.
You noticed that too, huh?
Also, there is absolutely no way the government would provide access to data before a contract was signed. I think Durham is either overstating or misleading in this claim. Either the researchers already had the data through a different contract (where side projects are allowed & encouraged) or they had access to the data through an existing contract that was in the process of being renewed (also where side projects are allowed & encouraged). Usually, the contract is renewed before the prior version lapses (thus Durham is being misleading). Again, why on earth would the govt provide access to sensitive data before a contract was signed?! The govt isn’t that stupid.
When a contract is signed, the granting of access to the data is a big deal. The owner of the data either securely transfers this very large dataset to a secure server owned by the university (that has to meet a number of data security requirements that you have to prove/verify before the transfer occurs), or the data is stored on the govt’s secure server, and the researchers are granted access with a login/password with multiple authentications. The secure transfer or granting access to data is a whole thing, and definitely isn’t done without a contract in place. Unless these researchers have insane hacking skills and committed a major felony by hacking into the most secure and sensitive govt servers, they already had access to the data from an existing contract and were totally fine using the data for a side project. Durham is just trying to make it sound nefarious. Heads would be rolling at the govt if they shared sensitive data without any contract in place/signed. That would be an insane scandal. 5 years and crickets about the researchers, university, & DARPA program wouldn’t happen. There would be huge & immediate consequences.
The director of DARPA in 2016, Arati Prabhakar, was interviewed by Durham prior to the indictment of Sussmann. Ms Prabhakar is a Democrat with an extensive donation history for exclusively Democrat politicians. She gave $2700 to Hillary in 2016.
You think it’s not possible that partisan Democrats were granted access to DARPA data before the contract was started by a partisan Democrat who was a Hillary Clinton voter and supporter?
I’m not saying it is what actually happened, but it’s a realistic possibility considering the history of government bureaucrats in 2016 of actively helping Hillary Clinton and hurting Donald Trump.
It’s also being reported today that Angelos Keromytis and Tejas Patel are possibly involved in this somehow.
Again, I have no idea the significance of all this, but if DARPA employees were working on a “side project” in addition to GA Tech researchers, for political causes, this brings up a lot of questions and gives credence to the idea that a major fraud is being investigated, which would make a 7 year statute of limitations relevant for Joffe.
Here is what Defillipis asked Georgia Tech researcher Atonakakis:
“Do you believe that DARPA should be instructing you to investigate the origins of a hacker (Guccifer_2.0) that hacked a political entity (DNC)?”
“That’s a question for DARPA’s director.”
DARPA’s response to the media inquiry:
“DARPA was not involved in efforts to attribute the DNC hack. Dr. Antonakakis worked on DARPA’s Enhanced Attribution program, which did not involve analysis of the DNC hack. Further, DARPA was not involved in efforts to attribute the Guccifer 2.0 persona, nor any involvement in efforts to attribute the origin of leaked emails provided to Wikileaks. The meeting between DARPA and special counsel Durham was to provide a high-level overview of the Enhanced Attribution program. During the course of that meeting, DARPA did not discuss matters related to the DNC hack, Guccifer 2.0, or leaked DNC emails provided to Wikileaks. to the best our knowledge, no DARPA-funded researchers investigated the DNC hack.”
Your handle “Obsequious” is apt. You are “obedient or attentive to an excessive or servile” extent to Durham and his bogus charging. It appears to be your only reason for being here (and, yes, I have checked your record). Just so people know who you are and what you are doing.
bmaz, thank you for allowing me to continue posting here. I’ve been trying my best to stay abreast of Durham, and the takes here on the evidence and motions are absolutely fascinating, the group here is very contrarian to what I’ve been reading elsewhere. I enjoy asking the questions and trying to get the ground truth on what’s actually happening and what we can maybe expect coming down the pike.
What does the investigation of the DNC hack have to do with the charge that Sussman lied about the Alfa bank stuff? A bit of bait and switch going on here.
William, we’re not sure yet why Special Counsel is investigating that, there is controversy that the DNC “hacked” server was not evaluated by the FBI but rather a private company called Crowdstrike which concluded that the hack was a Russian operation.
Sussmann was the one who tasked Crowdstrike to investigate the server. If Sussmann was involved in that process, and the GA Tech researchers were involved as well, there’s a serious question as to the conclusion that the DNC server was actually hacked by Russia based on the conduct of all those parties in relation to the Alfa white paper.
It’s clear from Durham’s questioning that there is more than just a lie to FBI James Baker..
Lol, still obsequious I see. For the uninitiated, this “obsequious” character is working overtime to spam this blog with pro-Durham cowpies.
Hey obsequious, the fact that Sussmann called Crowdstrike after the DNC servers were hacked has a pretty simple explanation. Here it goes: The DNC was hacked. They called their outside counsel, who was Michael Sussman. He did what any outside counsel would advise his client to do, which is to call in a digital forensics firm to contain and evict the attacker, preserve evidence, and attribute the attack to somebody, if possible. The firm he called was Crowdstrike, and they are very good at it doing all of these things. The likelihood that your allegation that “if” the GA Tech researchers “were involved as well” is true is… exactly zero. The matter would have been under privilege and there is no chance any other private party was involved in the investigation.
It’s also totally irrelevant to your other claims related to Alfa Bank. So you can put the squid ink away.
FOIA’d emails from Georgia Tech’s Atonakakis showed that in his own words, he was asked why DARPA would task him with investigating the DNC hack, and Atonakakis acknowledged that he did investigate the DNC hack but that the ethics/legal/rules for doing so was not his call but the director of DARPA.
You should read Atonakakis’s emails, they’re fascinating and really help put this in context.
I’ll give you one thing “obsequious”, you are a relentless one subject troll. Is there anything else in the world you care about, or just here to prop up Durham? Genocide in Ukraine, or is that too oblique for a Durham troll? Pretty sure I know the answer, I just want to make sure everybody else here does.
Durham’s investigation and even before his investigation, the facts surrounding the 2016 election, everything was very interesting to me and I tried to pay attention to every detail I could. Now there’s a lot of action, and I’m trying my best to understand all the details and how everything ties in together.
If Sussman were found guilty, is he facing the laughable one month sentence Alex van der Zwaan got? One month!
This is just politics by other means. All the signs are there.
Recall also Durham’s other “huge win,” Clinesmith got probation + 400 hours of community service.
And what Clinesmith actually admitted to doing was arguably far more explicitly wrong and willful than what Sussmann is alleged to have done.
While van der Zwaan did not cooperate with Mueller, he did plead guilty. Sussman is clearly not doing that. IANAL, but if he were convicted, I assume that his refusal to fess up could add to his sentence. Given what I know about the case, which is almost totally thanks to EW, I can’t see him being found guilty. Stranger things have happened though.
I practice in California, and under California law, an early admission of guilt is a mitigating factor in sentencing, but not pleading out and taking a case to trial cannot be used to aggravate a sentence. After all, one has an absolute right to take a case to trial, would hardly be fair to hold that against a person who stands on his or her rights.
Federal law differs in this regard: the feds will frequently seek an “obstruction of justice” enhancement for those defendants who take cases to trial rather than plead out. That enhancement – which does not have to be proven beyond a reasonable doubt to a jury – serves to up the score the Sentencing Guidelines generate, consequently adding to the time behind bars.
That’s a real oversimplification. Last time I checked, the softbound guidebook book for federal sentencing, annotated, was somewhere around 2,000 pages. Something you could really hurt your back with, should you not lift it correctly.
Same in state law too; if the court really wants to screw your client, they can under a myriad of sentencing factors. Most don’t do that any more. But there are still some (and occasionally the client may deserve it!).
Laughable? That sentence just establishes that you do not do much, if any, of this. That is an incredibly common sentence for a defendant on a false statements charge and no prior convictions. Assuming the defense atty does not talk the court into straight probation, which also occurs regularly. Not to mention van Der Zwaan forfeited his US law license and was immediately deported.
Sussmann would be much more concerned about losing his law license than getting probation or a short sentence.
Oh no, it probably goes bye bye with any conviction anyway for Sussman. But with van Der Zwaan, it was a throw in, the immediate deportation was more critical, because that means he will not be coming back here.
Kindly take a step away from your GOP tough-on-crime, state-office-seeking, we-don’t-fool-around soapbox, and remember that these are federal charges. They are levied toward someone whose entire career has been involved with national politics. In this and most similar cases, it’s not so much about the days in jail as it is the repercussions.
I wasn’t advocating for tough sentencing.
Trying to capture the absurdity from the ianal side.
I expect today’s hearing will probably give a pretty good indication how much leeway that Cooper is going to give Durham. If cooper rules that Durham’s expert is limited to generally explaining DNS, that’s a pretty good signal that the broader conspiracy theory isn’t getting in.
There’s a related question I have and I’m ignorant of the rules and tactics — what are Sussman’s opportunities to discredit Durham’s witness?
I don’t know to what extent this might be handled in a cross examination, whether a defense expert is allowed, and whether it makes sense in terms of tactics to agressively go after Durham’s technical arguments.
The expert needs to not only explain DNS, but DHCP, which is the process by which most devices receive their DNS information, and access to a particular DNS server. (Sussman’s attorney should definitely study DHCP and figure out what questions need to be asked – this is probably something Durham doesn’t understand, and the chances of asking “how does a device know which DNS server to use?” might allow the defense to dump a whole can of worms on the prosecution.)
What is your take after listening to the hearing, re: Conspiracy…? Thanks
Marcy’s live tweeting:
10:31 AM · Apr 20, 2022
Took me a bit to realize DeF is Defilippis, not defense. Perhaps I need more coffee.
I shudder to think of all of the money Sussman has spent for his defense. Talk about the government grinding someone into the ground just because they can.
In one of the Durham quotes above, he claims “even if the defendant and his client did not seek specifically to “benefit” Tech Executive-1 through his actions, that still would not render his statement to the FBI General Counsel true.” IANAL and haven’t been successful in my attempt to look up the legal meaning(s) of “on behalf of.” My sense is that there is more than one — that the phrase can mean both “representing” and also “seeking benefit for.” Is that correct? I’m trying to figure out whether there’s necessarily a conflict between “I’m coming on my own – not on behalf of a client or company – want to help the Bureau” that Sussmann texted to Baker on 9/18/16 and Sussmann’s HPSCI testimony on 12/18/17 that “I don’t want to imply that I was sort of directed to do something against my better judgment, or that we were in any sort of conflict, but this was — I think it’s most accurate to say it [the meeting with Baker] was done on behalf of my client.”
“… the phrase can mean both ‘representing’ and also ‘seeking benefit for.’ Is that correct? “
I think that’s correct. I also am not a lawyer, but I think Sussman made that point.
My post from a few hours ago wasn’t posted. Was there a problem with it?
[It’s taken me a while to follow up on this but it appears 1) you are a first time commenter and the system didn’t recognize you; 2) you used an emoji which the system may have considered suspect (I replaced it with text instead in the copy bmaz cited); 3) there’s a possibility either your IP address or a trigger word in your comment kicked up the security. You need to understand this site has multiple layers of security, the last being the moderators here and we’re unpaid volunteers. We get a fair number of trolls given the topics addressed at this site. If you don’t have the patience for this, this is not where you’ll be comfortable commenting. /~Rayne]
Yes. I have no idea who you are, and your comment got caught in our filters. Also, thought your comment kind of full of dubious assumptions and somewhat ill informed statements. Do you take umbrage at that? Because we are all busy and do not live moment to moment to monitor and approve “your” comments.
Gee bmaz, tell me how you really feel!
I have enjoyed reading this blog over the past few months and thought I would post my first comment. I didn’t realize you needed to know who I am and that you had to agree with all my dubious assumptions and ill founded statements.
I take no umbrage, I’ll let you get back to your busy life. Enjoy “your” echo chamber.
Oh, I see. You have been reading here for the past few months and, yet, did not pick up on how many new commenters we have coming out of the woodwork and that really are problematic? You did not notice that? That is literally how almost every troll walks in the door. Please.
Did you also miss that we don’t really have time to coddle people just because they assert they have been reading for a long time, but are suddenly just now commenting? You did not catch any of that? How about that we are all in different time zones and doing other work, so that your immediate comment approval is not our primary concern? So, please, take your “echo chamber” baloney and shove it, this is not your personal message board, nor that of any of the others that relentlessly try this tact.
Ahem to your ahem.
And, by the way, here is the critical first comment Pedro thought was so important as to complain and then petulantly tell this forum we are an “echo chamber”:
i like being in an “echo chamber” of truth and facts. Thank you for all your hard work Marcy. And i appreciate the gate keepers as well because i don’t always pick up on all the trolling, and it is valuable to my understanding of the issues.
This is not an echo chamber, but can spot dubious things.
And we thank you for it!
“pushback from Dean Baquet, who is the real reason the story didn’t run.”
That’s a good tell this is a person is working off of talking points — aka a troll — and not even bothering to read what appeared in the Times.
Baquet literally printed a refutation of the Alfa Bank angle in the notorious article, saying that it was unproven.
Whether the trolls are stupid, lazy, or pushing a specific line for disinformation purposes isn’t clear. But they’re obviously scrambling to account for Sussman’s sharing with the FBI the fact of Lichtblau’s work, since along with the two ridiculous reasons “obsequious” came up with we get this person’s easily disprovable claim.
This didn’t make it in the echo chamber because steaming piles of shit have no echo.
“… delay …”
Tuesday, November 8, 2022 sees the midterm election.
Durham may see the fortnight before as the ideal time for loud froth and bubble Sussman-indictment-like announcements designed to frighten voters away from the Dems.
Though his work product could also be ideal for “both-siding” the situation if/when high level GOP involvement in a Jan6 conspiracy is indicted.
Durham exhibits excessive creativity, shamelessness, procedural laxness and enough flexibility in standards of reasoning to let him deliver in both missions. (The man must have been an absolute tiger in his early-career intra-section desk placement struggles.)
11 min ago the Capitol was evacuated due to an airplane flying above. AP reports. I apologize for OT, but am concerned. anything?
tyvm MB. I got scared. ty.
People parachuting into the Washington Nationals’ game.
The Army Golden Knights parachute team, FWIW. https://www.sportsnet.ca/mlb/article/parachute-demonstration-at-nationals-game-leads-to-evacuation-of-u-s-capitol/
Apparently they forgot to let the Capitol Police know. (Shouldn’t it have been in the sports news ahead of time?)
There was a pilot flying a plane before they jumped out. There is copilot in the world that doesn’t know the airspace around DC is as heavily controlled as there is in the world.
I think you mean “There isn’t copilot in the world…”
I’d say it is the primary duty of the pilot to know the control area and applicable NOTAMS. But, sure in military, co-pilot too.
But you wrote “There is copilot in the world that doesn’t know the airspace around…” Should be “There isn’t a copilot in the world…”
Horrible proofing on the original comment on my part! Lol, should have read “there isn’t a pilot in the world…” Sorry about that!
This article clears up a lot here.
As we say there is always 10% who don’t get the word, and in this case it’s the Capitol Police. I’m sure the pilot and controller, in this case DCA Tower knew what was going on, they were talking to each other and it was legit, because Tower didn’t tell him to exit the airspace. Otherwise he would have been alerting the AirForce response to such incidents. Undoubtedly the pilot had a transponder code pre-issued or a Whiskey Number or it’s equivalent to allow the aircraft into the airspace in the first place.
“A law enforcement official said the FAA did not provide the required notification to the Capitol Police that a plane would be circling overhead”
Without knowing which law enforcement agency, it’s hard to know what this means exactly. If it’s a Capitol Police source, I’d be careful.
It may be the Capitol Police truly didn’t get the alert, but there may be an IT or procedural breakdown along the way where one or both sides, or a third party, are at fault for the Capitol Police not getting the alert.
These things can be a lot more complicated than someone just keying in a few codes and pressing send, and digging out the root cause can be difficult.
Sure the failure with the Capitol police knowing can be internal or external, someone somewhere dropped the ball, however tower and the aircraft had established two way communications for an aircraft flying in that airspace, there were no doubts. Tower knew the aircraft was coming they didn’t just show up unannounced and say “here I am Army 12345 to do a drop of the Golden Knights” a whole lot of planning and coordination go into one of these drops. FAA and the military are investigating as I’m sure Capitol police are also.
I saw a map of the plane’s track. They were southeast of Capitol Hill.
That is still seriously controlled airspace. Frankly, it is not just the pilot, it is also the FAA too. But the panic this stupid exercise caused was entirely unnecessary. Sporting events do not need Blue Angel flyovers and Golden Knight parachute drops. It is hard to understand why that is necessary.
“Patriotism” displays and “support our military” displays. Along with all they other patriotic stuff that started creeping in in the mid-60s and has only gotten worse in the last 40 years. It’s all theater.
Unnecessary, I agree. But you know better than most of us how profitable it is for pro teams to let the DoD market themselves at sporting events.
The reporting and commentary on this has been atrocious.
Yes, this airspace is subject to restrictions within restrictions within restrictions. There are procedures that must be followed. Every pilot in the area knows this. AFAICT the aircraft did follow proper procedures, as did the parachutists, as did the ballpark, as did the FAA.
The Capitol Police do not control the airspace. That’s not their job. However it is their job to know who is in control. They have had years to work out procedures for handling a questionable aeronautical situation. They could have used a $20 scanner to monitor communications between the aircraft and Air Traffic Control. Or just clicked on liveatc dot net. Or phoned ATC. Or phoned NORAD. Or ….
I realize they have “sensitive feelings”. They should seek professional care for that. OTOH that is no excuse for not doing their job properly.
Two wrongs do not make a right. Wildly over-reacting to the parachute ceremony does not cancel out under-reacting to previous incidents.
I was surprised at how fast Pelosi jumped on the FAA like a knee jerk reaction after she got an answer that her guys had NFClue. Pilots who fly the Knights are assigned long term not randomly when they need them and are among the best of the best. In other words like pilots assigned to Thunderbirds or Blue Angels they do this stuff for a living. So they rarely make mistakes and have their ducks all in a row when performing any demonstration.
There used to be an Army helicopter demonstration act, It was shut down because the Army already had a demonstration act the Golden Knights. I saw the helicopter act once and it was as thrilling as any aviation demonstration I’ve seen. Too bad.
A note on codes. All IFR aircraft have a four digit transponder code which can be read out on controllers screens and follow the aircraft until it destination and then is canceled. A VFR aircraft entering Class B airspace will also be given a code such as 0213 prior to entry which is what happened to the Golden Knight aircraft, so Reagan Tower knew precisely who and where they were. When departing Class B airspace they will be told to squawk VFR 1200.
Finally your phone list to include Reagan Tower is probably in their standard operating procedures and I can only wonder why no one was called.
I want you to step into Pelosi’s shoes for a moment and think about the situation: a plane in airspace over the Capitol, a known no-fly zone. What is the first thing you think? That the FAA which is responsible for air space oversight had a problem? That the FAA didn’t contact the Speaker and Senate Leader ASAP? Is she supposed to immediately blame the people she rubs shoulders with every day, all day — the Capitol Police, who don’t regulate air space usage? I’m kind of fed up with the bashing Pelosi when there are perfectly good reasons why she’d respond the way she did.
DoD has a HUGE role in this SNAFU and I don’t see anybody pointing fingers at them, either.
Oh, I did.
If I were in Nancy Pelosi’s shoes then I would think I would be obligated to pursue the truth, no matter where the chips may fall. I don’t think like you at all, so the first thing I thought is that the pilots of the Golden Knights aircraft had an absolute right to be where they were and were not operating without authorization in this “seriously controlled airspace”, which is an amateurs view of what professional aviators do all the time, operate in “seriously controlled airspace”. As to the other questions of whether there was an internal failure or another failure from the outside, time will tell whether DOD, FAA, or some other agency to include the Capitol Police were responsible for the SNAFU.
Yeah, well somebody dropped the ball. And, no, DC is most certainly not like other controlled airspace.
You criticized Pelosi’s initial response. Don’t go off blah-blah about the Golden Knights or the pilots or anybody else who was in the air over the Capitol.
The House Speaker’s initial response was based on her understanding that U.S. airspace is regulated by one agency: the FAA.
The House Speaker’s secondary response should be investigating what happened that Congress wasn’t notified in advance about the event.
Right. Anytime there is any, and I mean any, unexplained activity in the DC airspace, people freak out. Twitter lights up from people in DC with “Hey, anybody know what the hell is up with that plane overhead?”
This is not like Phoenix, or even LA, which I have flown into both (both Class B and heavily controlled. They are a pain in the ass). DC is different though. There was a breakdown somewhere, maybe multiple points. But lessons need to be learned. I think Pelosi very arguably should have asked more questions before popping off, but the questions are extremely valid and need be answered.
In the day and age of Slack and Discord and Twitch and group DMs in Twitter, there’s no goddamned excuse for all concerned parties not to have real-time awareness at the same damned time. This might be the one point on which Pelosi needs to check herself, but her Speaker’s staff has no excuses for not having group real-time comms.
That aside, the fact FAA can’t or won’t already tell the public what happened says something, more than a year after an assault on the Capitol when citizens are expecting more responsiveness about Capitol security across all government agencies.
Yes ma’am that is correct, she jumped the gun and this is what you’re accusing me of going off blah blah blah. You wrote.
“What is the first thing you think? That the FAA which is responsible for air space oversight had a problem? That the FAA didn’t contact the Speaker and Senate Leader ASAP? Is she supposed to immediately blame the people she rubs shoulders with every day, all day — the Capitol Police, who don’t regulate air space usage?” Kinda blah blah blah because all these first things you think right now have no bearing in reality. There are procedures which do.
So you asked me what is the first thing you think, and I told you so what’s your problem? I answered from my training and experience, the perception given initially that the pilot was somehow in airspace he wasn’t supposed to be in was false. Now you can either understand that or continue to blah blah blah.
The pilot and aircraft were legal and that needs to be understood. The problem is on the ground.
To bmaz down below, you wrote’ I think Pelosi very arguably should have asked more questions before popping off, but the questions are extremely valid and need be answered.”
And finally are you saying you have flown into Phoenix and LA as a pilot in command or along for the ride with your flight instructor?
Pilot. And I hated it. Especially LA, and I only flew into Santa Monica, but it might as well have been LAX for all the hassle. Phx easier, but I mostly avoided it by flying in and out of Chandler.
Yeah and ATC doesn’t make it easier around class B sometimes C if you’re not experienced. It’s actually easier to fly into Lax on instruments from the north than VFR for a fully instrument equipped helicopter which I flew. That’s not true of either New York or DC where EWR, LGA or JFK can be reached easier by helicopter routes into and out of the Class B. Prior to 911 helicopter routes to Reagan were common I used to come down the Anacostia around the point where it empties into the Potomac and then I would head up to the Memorial Bridge cross over the Potomac and then land at Reagan or be held at Crystal City while an airliner or corporate jet landed. Right after 911 it was bonkers for aviation around big cities, I moved to the west coast and did the oil platform scene with an occasional trip in the LAX class B.
Now that is some professional piloting. I was never that, just a recreational private pilot. Mostly in a Cessna 208 and Cardinal 177RG. The former we took as payment by a drug client (had to fight off an attempted forfeiture first). An older lawyer in the firm was a licensed instructor on both fixed and rotor wings. But then I left the firm and they sold the plane. It was seriously sweet, with every bit of IFR and other electronics, including color radar. But I was never IFR certified. The Cardinal was a plane available for rent at my little airport, but usually available as most people went for the cheaper 152 or 172. I long ago let my cert lapse. Sometimes fly right seat with friends, but not too much lately.
This discussion has brought back memories. I first flew privately into PHX to check having done so off the list when getting my cert. It was harrowing. They lined me up behind some big ass jet, and the wash was ridiculous. But they had a great restaurant right off the north side literally called “The Left Seat”. Had great burgers and fries, so I would occasionally drop in just for that. There are a lot of airports with something like that. The Sedona airport restaurant was also awesome.
We’re done with this. There’s only one federal agency regulating US airspace no matter whether you or I have had any flight training.
And I absolutely get it that like a lot of mostly men before you who’ve expressed displeasure with her, you don’t like Madame Speaker. Crystal.
p.s. Check yourself when you type your username/email/url to comment. I’m getting rather fed up with having to bat cleanup.
Meh, Pelosi is the best vote counter of Dem Speakers, arguably in history. Her conduct as to impeachments 1 and 2 was craven and despicable. And her taking things “off the table” throughout her tenure is the same. And I would easily say that irrespective of my particular sex. Like Feinstein, it is time for Pelosi to retire. Like Feinstein, she won’t. The Dem leadership is completely fossilized, and they wonder why they are losing young voters. If I was a young person, I would not support these octogenarian stuck in a former time geezers either. It is pathetic.
I really dislike it when people on the left use a broad generalization, “The Dem leadership,” when something very specific is meant. You’ve been talking about the aged senior members of the Democratic Congressional Caucus, which is not the same as the Democratic Party itself, helmed by 46-year-old Jaime Harrison.
As for removing the senior members of the caucus, the voters have something to say about that along with the state and county parties. We should be asking what the fuck they are going to do because Feinstein’s family and staff have failed her, and the state/local party hasn’t mustered an obvious succession plan for their representatives in Congress. This is still a democracy, isn’t it?
Well my last attempt also, there is military airspace not controlled by FAA but the military and you’re free to believe what you want. I never implied you had any flight training I have had ongoing flight training since 1970. It’s an ongoing process for both military and civilian pilots and I’ve been both. Airspace is an emphasized subject area because of the potential for pilots to be violated if they don’t comply with procedures.
I like Madame Speaker better than than any potential Republican speaker to include McCarthy.
If you have a problem with my sign in please let me know what the problem is so I can correct it.
There was a WaPo report last night, that I saw this am, that appears to put the fault squarely on the FAA for not coordinating properly with the area multi-agency task force that disseminates such into to all the relevant agencies, of which Capitol Police is one. It is literally the job of the task force and all its members. Finger not pointed as hard at DOD, a key member too, but I would think they too would have had a duty to disclose to the task force too. Still a lot of questions. And with that I am done too.
We are accustomed to seeing MW collect tons of information and then connect the dots. I don’t expect ordinary mortals to exhibit the same degree of good judgment, but they should please make “some” effort in that direction. Whoever panicked over the Golden Knights flight failed to do this.
Here’s one way it could have gone down:
1) A Golden Knights jump plane is normally high enough that you would not hear it or see it. Therefore I surmise that Joe Schmoe was watching air traffic on an app such as FlightRadar24 dot com. This showed the Golden Knights aircraft plus lots of other air traffic in the vicinity.
(Another possibility is that somebody saw the parachutists with their golden canopies and multicolored smoke streams, without ever seeing the plane.)
2) Contrary to what some non-experts have claimed, sometimes aircraft do fly over downtown DC. This happens multiple times per day. This includes military aircraft, airliners, and even private aircraft. Anybody who doesn’t realize this has no business expressing opinions about what’s routine and what’s a terrorist threat.
3) By far the easiest way to ascertain that an aircraft is circling (as opposed to just passing straight through) is to ask the app to show the track. This can be done with a single click. I surmise this was done.
4) The same track showed that the aircraft in question took off from Joint Base Andrews. Terrorist aircraft usually don’t do that.
5) The aforementioned click also displayed registration information, revealing that it was a military aircraft of the United States.
6) It is virtually certain that a FRZ flight plan was filed with and approved by Washington Center. A 4 digit squawk code was generated to identify the flight and link it to the flight plan. So not only the past track but also the future intentions of the flight were known.
7) It is virtually certain that the aircraft was visible to secondary radar at all times, since before it took off.
8) It is virtually certain that the aircraft maintained two-way radio communications with ATC at all times, since before it took off.
9) There are apps such as LiveATC dot net that let you listen to ATC radio communications in real time.
10) Hypothetically, if an unauthorized flight was approaching DC, it would get warned off long before it got anywhere near the city line.
11) Hypothetically, if an authorized flight deviated from its flight plan, or stopped communicating, or otherwise did anything suspicious, NORAD would have gotten involved, long before Mr. Schmoe found out about it. They would have scrambled interceptors from Joint Base Andrews, at which point, yeah, there would have been reason to be concerned.
In contrast, non-hypothetically, routine traffic continued in and out of KDCA, which is less than 4 miles from Nationals Park. This should have raised the question of why ATC was not worried about the circling aircraft. As a general rule, if ATC is not worried, people who are less well informed should please not panic.
12) All the previous items are easily available without even picking up the phone. The next step would be to call Reagan Tower, Washington Center, or NORAD etc. and ask if they know who’s circling over southernmost DC. Anybody who doesn’t know how to do that has no business being in this business.
13) Interested parties have had years to work out suitable procedures. Readiness exercises are held every so often.
*) Bottom line: All the previous items (and more besides) are available whether or not any advance notice was given. Quite possibly there is enough blame to go around, but even so, anybody who tries to escape blame by saying “We didn’t get advance notice” is just making their own team look terrible. That’s because there were at least a dozen dots, and whoever pushed the panic button failed to connect any of the dots. They exhibited spectacularly bad judgment.
To paraphrase Michael Sussmann, there is nothing political about anything I’ve said.
Except that this is complete bullshit:
And quoting Sussman is asinine.
Here is a flight track over the middle of DC. From a few hours ago.
“Dear Tom R”, I have seen it, and it does not establish dick about where the ball was dropped. Thanks.
OT, but very much related to many things we discuss here–Late this afternoon, a state grand jury in Harris County, Texas, indicted Steven Hotze for his role in the stalking, carjacking, and assault of a Houston HVAC repair tech. This involved one of the earliest voter fraud fiascos. Hotze has a long and nasty career as a far-right-wing activist, hate monger, and Texas GOP financier. The ex-cop who Hotze hired to do his dirty work, Mark Aguirre, is still out on bond, and was reindicted on the same charges as Hotze.
The observation of piles of steaming shit accumulating apparently virtually without sound can lead to some keen sense of understanding the bullshit. That’s good news.
Just so people are clear on this, here’s what happened. Steven Hotze, a local right-wing crank with money, power, and a substantial amount of control over the Republican party in Harris County (that’s Houston), hired a bunch of private investigators to follow up on a bunch of totally ridiculous voter fraud stories. Before dawn on October 19th, 2020, an ex-cop working for Hotze ran an AC repair truck off the road and held the AC guy at gunpoint while a buddy searched the truck, looking for thousands of fraudulent ballots.
What they found will amaze and shock absolutely no one except those deluded souls who bought into the big lie. They found… HVAC equipment and tools.
The very next day, Hotze paid the ex-cop over $200,000. And now, Hotze is in trouble for aiding and abetting the felonies committed by the ex-cop.
Thanks for the background. I see state assault and federal kidnapping charges, for starters. Hotze not only did not distance himself from the crimes, he rewarded the criminals, making him one of them. You can’t make this stuff up.
I kinda feel like there should be an add-on charge if the AC guy was on his way to fix someone’s AC. Interfering with an AC repair in Houston oughta be a crime, even in October. I checked the historical weather. The lows were around 75 F that week. With the Houston humidity, that’s pretty miserable without AC.
IIRC, they dropped a couple of charges against Aguirre not long after he was arrested. Seems like one of them was related to impeding. Because you’re right, “interfering with an HVAC repairman in the course of duty” should be a crime in most of Texas.
I thought that Chronicle article was a good summation, but there was no elaboration on just how much nasty shit Hotze has been involved in on the state level. He’s financed many a misinformation campaign.
Don’t forget the message he left for Gov. Abbott demanding he send the National Guard to Houston with orders to “shoot to kill” BLM protesters. I know that sounds crazy, but it’s true: https://www.texastribune.org/2020/07/03/steve-hotze-texas-greg-abbott-rioters/
“Mark Aguirre, is still out on bond”
I hope the former Mavericks player doesn’t have any problems because of confusion. You’d hope not, but people (and bots) will swarm the first search result they get.
Marcy: re this…
“Durham wants to treat the Democrats’ parallel efforts (the Steele dossier and the Alfa Bank anomalies)”
…I’ve always understood the origin of the Steele dossier to be GOP primary opponents of TFG, and after the GOP nom was wrapped up, the Dems took the ball & ran with it.
So why is the Steele dossier always blindly attributed to Dems & characterized as another Clinton machine dirty trick?
My impression was the initial opposition research was started to be collected by the GOP Washington Free Beacon through April 2016, but then DNC/HRC campaign/PC/FGPS took it over and started injecting the false information via Dolan and Danchenko to form what is now the Steele Dossier.
That’s according to appendix C from this British case: https://www.judiciary.uk/wp-content/uploads/2020/10/Gubarev-v-Orbis-judgment.pdf
Instead of “false information”, would “disinformation” (or, as I like to think of it, “two truths and a lie”) be more accurate?
I don’t know how much information in the dossier was validated and substantiated. The false information could be a form of disinformation, but I think irrelevant: the purpose was to have enough salacious detail that it would sink Donald Trump’s candidacy, both through announcing an FBI investigation into the substance, and the substance itself.
You stated that it is unlikely that the GA tech researchers would have had access to the data before the grant was obtained, however the Rhamnousia project grant was finalized in November 2016 after the election and after the Alfa allegations. It is possible there were other grants they were working off of, but if the indictment is somewhat based on reality, it’s highly unlikely the data came from an earlier project.
You also say you’re used to research projects and their rules. Would DARPA be different? Are there clearances you need to work with nonpublic data provided through DARPA?
You seem to have confused the allegations in the indictment with something else. Durham does not allege that Joffe had access to DARPA data. On the contrary, he makes it clear that data that was searched was data that had been collected by Internet Company-1 (Joffe’s employer) and another company that Joffe had an ownership interest in.
You must read the indictment closely and look for what’s not there. There’s no claim that the data that was searched belonged to DARPA. A whole bunch of people have been fooled by the way the indictment is written.
William, excellent point there. Where did Joffe get his information from? Executive Office of the President data streams, to me, sound like a very sensitive arrangement between Joffe and the US Government, whether that is through DoD, DARPA, NSA, CIA, etc. I don’t think anyone has an idea exactly where the data originated and the contracts at play.
The part that is really unclear to me is the changing story from Durham on these issues. The indictment says something which makes sense but then follow-up motions and pretrial evidence discussion adds subsequent details that almost seem like they’re coming from new sources, ie device records (James Baker’s phones), or immunized witness interviews (David Dagon).
Alright, you are close to done. You are a relentless troll, even if an apparently educated one, that thinks you can spam/DDOS our threads. That is not going to happen.
Or maybe Durham is just spewing bullshit? I know for a fact that in one case, that’s 100% true. I’ve written about it on this site. Durham made the following completely ridiculous claim:
Making that claim is evidence astounding incompetence, whether or not Durham and his team were aware of how bogus that statement is. If they knew it was bullshit, sanctions are in order. If they didn’t know it was bullshit, explain to me how they can pursue this claim for years without having a basic understanding of the technology at the heart of Durham’s conspiracy theory.
As I’ve pointed out, my family generated roughly the same amount of DNS lookups in the same time period. And there were just seven of us. Do you believe that seven people out of over 300 million is “far from rare”? Durham has to know that making that claim hurt his case against Sussman.
We can’t take anything that Durham says at face value. He’s showed us what he is. He’s full of shit.
“The indictment is somewhat based on reality” – no, it’s based on lies. You haven’t been following it here, or you’d know this already.
PJ, I am trying my best to understand the reality of the situation, and I’m really thankful for the commenters here. My assumption was that the evidence SC Durham has collected through Grand Jury subpoenas was not fabricated by SC Durham, and I’m testing his information with publicly available information as well as commentary from this site.
I hope my reasonable questions here help illustrate my desire to arrive at the truth. I’m open to whatever that truth is, but I need facts and reason to justify the true reality, which I’m sure the jurors will be asked to do very soon.
Naw, you are just full of shit, and truly “obsequious”. Don’t have the blithe temerity to soft sell what you are doing. We’ve been doing this a long while and know when we are dealing with people like you. Peddle that “I’m just asking questions” garbage elsewhere. And quit spamming our threads with your trolling.
Yeah, you can send this one packing. It isn’t even a good pinata.
I seriously think he is part of the trolling operation hitting MW’s Twitter feed. Similar level of chum mixed in with misleading truthful bits.
He’s a wannabe smart guy but doesn’t have the chops to land any serious blows.
The troll is strong with this one. These are not the factoids we’re looking for. (Apologies to George)
The civil version of Durham’s criminal conspiracy theory:
Last month, Alina Habba, trump’s New Jersey lawyer, filed a civil conspiracy lawsuit in Florida against Hillary Clinton and his enemies’ list (Comey, McCabe, Strzok…) for 2016 Russia “hoax.” Yesterday, Hillary’s lawyer filed a motion to dismiss (with prejudice) with the court in Florida.
Well, I darn well know who the Dem leadership in the House is, and the people do not vote for them or that. Pelosi is 82, Hoyer is 82, and Clyburn, the young spry one is 81. Clyburn was last seen working hand in hand with Lindsey Graham to undermine KBJ and have Biden appoint a genuinely horrible and unprepared District judge to SCOTUS. Jeffries and Katherine Clark are in their 50s and do nothing except for occasional TV hits to buck up the octogenarian assholes that run things with a tight fist. They can all, including Pelosi, go straight to retirement, or hell, whichever comes first. The “leadership” is pathetic.
What if Durham received new information recently that proves systemic abuses over years of the intelligence apparatus by Perkins Coie and by extension, the DNC?
Lol, what if the sky was green? You little Durham fan trolls are coming out of the woodwork and starting to get annoying. You are not a “whistleblower”, and your email laughably fake. Don’t bother coming back.
I read these posts with great interest, and I appreciate all the work that goes into the posts, and into helpful comments. I hope some of my comments are helpful enough that people continue to read them.
I do have one request. Doctor Wheeler has been taking the Durham “investigation” apart for some time, and he deserves it, for so many reasons that have justified a lot of different posts, almost all of which I’ve read carefully – but these posts have the same glowering picture of Durham on them.
I have the same goatee Durham does. I want to shave mine off every time I see that picture, so I’ll never be mistaken for him.
Is there anything else that would make a suitable picture? Leslie Nielsen as Frank Drebin in “Police Squad!” and the “Naked Gun” police procedurals would capture the degree of investigative competence that Dr. Wheeler is writing about, but that’s probably not the Emptywheel style …