John Durham May Lose His Battle But Gain New Ammunition to Fight His War

There were a number of things not said at yesterday’s hearing on the Democrats’ privilege claims in the Michael Sussmann case. The importance of having Russian-speaking experts when representing a client getting systematically attacked by Russia, for example, was not mentioned. Nor was the amount of research that Fusion did that was never released to the press. Nor were Durham’s two cheap stunts — falsely claiming an FEC settlement was not “public” in time to introduce it as part of the initial filings, and presenting exhibits without correcting for a time anomaly and thereby falsely suggesting Fusion sent a previously unpublished link to Tea Leaves’ postings to Eric Lichtblau — which made Durham’s case to pierce the Democrats’ privilege claims look stronger than it was.

Even on the issue of whether communications can have more than one purpose — an issue that Robert Trout, representing Hillary’s campaign, addressed directly — the argument could have been stronger. And when Judge Christopher Cooper asked if there were specific emails “that might support [the Democrats’] position that Fusion’s internal communications on these issues were for the purpose of providing legal support as opposed to pure opposition research and dissemination that is not covered by the privilege?,” Trout was caught flat-footed. Which is to say that the Democrats may not have presented their case as well as they could have.

It likely didn’t matter. Even before ruling that he will review the documents over which Democrats invoked privilege, Judge Christopher Cooper made it clear he was pretty skeptical of their privilege claims.

But there were a number of other things that were mentioned that may limit how much value Durham gets from this decision, even if Cooper determines that most of the Fusion documents were not privileged. Most importantly, both before and after Cooper had clearly decided he was going to review the documents, he raised the other procedural issues — which I raised in this post — that will dictate whether or not Durham can use them at trial.

The defense has raised some procedural objections to I think the use and introduction of the emails; namely, that you have waited too long after the assertion of the privilege — on the eve of trial now — to bring the issue to me.

I take it you’re saying that even if I were to agree with them about the specific emails that have been withheld, I would still have to deal with the privilege issue with respect to Ms. Seago’s testimony.

[snip]

That still leaves the relevance issues as well as the prejudice issues and the knock-on effects from the defense from the introduction and use of the emails, but I think that I’m probably going to have to deal with this issue nonetheless because of what the government may plan to ask Ms. Seago about. All right?

That is, even if Cooper agrees that the 38 documents Durham wants unsealed are not privileged, it may not mean Durham can use them at trial. The following are all possibilities, of greater or lesser likelihood:

  1. Cooper rules that one purpose of the emails was legal advice and so are privileged
  2. Cooper decides some or all of the emails are not privileged, but rules, based on representations made yesterday, that Durham violated local rules in his attempt to obtain them and so cannot get them
  3. Cooper rules that some or all of the emails are not privileged but rules that they are prejudicial, irrelevant, or hearsay to the charge against Sussmann, so Durham can have the emails, he just can’t use them at trial
  4. Cooper determines that Durham’s claims about the necessity or relevance of Laura Seago’s testimony are not only false, but Durham knew them to be false when he made them and, given that Durham has used as his excuse to pierce privilege at this late date, cannot introduce them at trial
  5. Cooper rules that the communications involving Rodney Joffe are privileged, even if the internal Fusion emails are not, adding further problems with Seago’s role as a witness
  6. Cooper rules the Fusion emails aren’t privileged, but at least some of them end up disproving Durham’s conspiracy theories

If I had to guess, I’d say a combination of 3, 5, and 6 are most likely. I’ll explain why, but if that turns out to be the case, it may mean that Durham finds a way to access the other 1,500 Fusion emails he says he wants to use in “other investigations,” but still can’t use many of the 38 emails at issue here in the trial against Sussmann. Durham’s conspiracy theories might live on, but his case against Sussmann might not.

As a reminder, Sussmann argued that Durham broke a number of rules by bypassing Beryl Howell and waiting until the last minute to try to get these emails — the procedural objections Cooper alluded to above. Cooper can’t be that impressed with the argument, or he wouldn’t have agreed to review the emails at all. But he did seem rather interested in Steven Tyrell’s assertion that he had made it clear there was never a way Durham was going to get the emails involving Joffe without litigation.

MR. TYRRELL: So if they wanted to challenge our assertion of privilege as to this limited universe of documents — again, which is separate from the other larger piece with regard to HFA — they should have done so months ago. I don’t know why they waited until now, Your Honor, but I want to be clear. I want to say without hesitation that it’s not because there was ever any discussion with us about resolving this issue without court intervention.

THE COURT: That was my question. Were you adamant a year ago?

MR. TYRRELL: Pardon me?

THE COURT: Were you adamant a year ago that —

MR. TYRRELL: Yes. We’ve been throughout. We were not willing to entertain resolution of this without court intervention.

THE COURT: Very well.

This is important because it supports Sussmann’s contention that this late bid for the emails is just an improper means of bypassing local rules and discovery deadlines. The same is not as true for Fusion, though, because they did make some concessions to Durham along the way.

Joffe’s intransigence about his privilege claims are all the more problematic for Durham, because (contrary to all my predictions!) Cooper seems far more convinced of Joffe’s privilege claims than the those of the Democrats.

With respect to the Joffe/Sussmann/Seago emails, I am dubious that the government has met its burden to pierce the privilege, but I will take a look at the emails nonetheless.

Indeed, at one point, Cooper noted that Durham’s entire theory of the case assumes, “Sussmann was in the [September 19, 2016 James Baker] meeting representing Joffe,” which would mean there was a privileged relationship between Sussmann and Joffe, and so therefore assumes Sussmann’s communications with Joffe about the topic would be privileged. If Joffe’s communications with Sussmann and Laura Seago aren’t privileged, then it’s proof that Sussmann was not representing a client. If they are privileged, then Durham can’t have them.

Catch-22.

Given what Cooper said in last week’s hearing, in which he repeatedly suggested that Joffe’s testimony might be central, the possibility that Durham may not pierce Joffe’s privilege may dictate other evidentiary (though not privilege) decisions. All the more so given how Durham excused his late bid to pierce privilege based off a late recognition they were going to immunize and call Seago.

In addition, over the course of months, and until recently, the Government has been receiving voluminous rolling productions of documents and privilege logs from numerous parties. The Government carefully analyzed such productions in order assess and re-assess the potential legal theories that might support the parties’ various privilege assertions. In connection with that process, the Special Counsel’s Office reached out to each of those parties’ counsel numerous times, directing their attention to specific documents where possible and communicating over email and phone in an effort to obtain non-privileged explanations for the relevant privilege determinations.2 The Government also supplied multiple counsel with relevant caselaw and pointed them to documents and information in the public domain that it believed bore on these issues. The Government was transparent at every step of these discussions in stating that it was contemplating seeking the Court’s intervention and guidance. Unfortunately, despite the Government’s best efforts and numerous phone calls, it was not able to obtain meaningful, substantive explanations to support these continuing broad assertions of privilege and/or work product protections.

It was only recently, when the Government determined it would need to call an employee of Fusion GPS as a trial witness (the “Fusion Witness”), that the Government concluded these issues could not be resolved without the Court’s attention. Because all or nearly all of the Fusion Witness’s expected testimony on these matters concern work carried out under an arrangement that the privilege holders now contend was established for the purpose of providing legal advice, it is essential to resolve the parties’ potential disputes about the appropriate bounds of such testimony (and the redaction or withholding of related documents).

As of yesterday, Sussmann had not received a 302 from Seago, so it’s not clear whether Durham has even interviewed her yet. But with one exception, Sussmann, Fusion lawyer Joshua Levy, and Joffe say she’ll be of limited value for Durham. Last week Sean Berkowitz said that Seago did not recall knowing Christopher Steele, much less being aware of the dossier project.

The only person from Fusion on their witness list is Laura Seago, who either I think has been immunized or will be immunized, and we understand that she would say she doesn’t recall that she even knows Mr. Steele or is able to talk about what he did. And so we don’t know that they actually are able to get anything in about what Mr. Steele did or didn’t do. Certainly there’s no evidence that Mr. Sussmann was aware of what Mr. Steele was doing. No evidence of that.

Levy noted that — as proven by the transcript of her Alfa Bank deposition, which the government has — Seago will testify she has no knowledge of either Sussmann’s meeting with the FBI or of the white paper Fusion did on Alfa Bank.

[I]n its brief, the government says that Ms. Seago has unique possession of knowledge as to what the government tries to characterize as the core issue in the case. But the government mischaracterizes that core issue. The government says that the core issue in this case is whether the defendant was representing any client in 2016 with regard to the Russian Bank 1 allegations.

That’s not the core issue in the case, respectfully. The core issue in the case is whether the defendant knowingly made a false and misleading statement to the government when he met with the government about whether he was there on behalf of a client or not that day. And as to that issue, Your Honor, Ms. Seago, the Fusion witness, has no knowledge. And the government knows this.

In parallel to the government’s investigation of this case, Russian Bank 1, Alfa-Bank, was pursuing its own discovery in a civil case. They subpoenaed and deposed Ms. Seago last year. There’s a transcript of that deposition. It’s in the public record. The government’s made clear to counsel that it has that deposition transcript, and we can furnish a copy of it to the Court.

And at the same time the government knows that Ms. Seago has no knowledge of the meeting between Mr. Sussmann and the FBI, and that’s at Pages 151 to 152 of that transcript.

THE COURT: All right. If you could file the — not file it, but provide it to the Court.

[snip]

And it’s very clear that she has no knowledge about the meeting, that she doesn’t recall any discussions about the meeting, that she didn’t work on this white paper that allegedly was provided to the government by Mr. Sussmann.

This is the memo that, again, the government has talked about today in its papers as to why it’s so important to pierce this privilege. Ms. Seago didn’t contribute to it, doesn’t know who did, doesn’t know who researched it, doesn’t know who wrote it, doesn’t know its purpose; and the government’s aware of all that.

As Sean Berkowitz followed up, Seago also does not recall knowing about the late July meeting involving Joffe, Sussmann, and Marc Elias.

And the question that was asked was: “So were you aware of this July 28th meeting between Sussmann and personnel of Fusion?

“ANSWER: Not that I recall.

“QUESTION: Were you aware of the meeting after it happened?

“ANSWER: Not that I recall.

Importantly, Durham knew (because he has been operating as a parasite on the lawfare project that Vladimir Putin probably ordered to make America less safe) that Seago would testify she didn’t know about the July meeting with Perkins Coie and Joffe or Sussmann’s meeting with James Baker or the Fusion-drafted white paper when Durham said she would be the pivotal witness to represent the relationship between Joffe and Fusion. This foreknowledge, which is incompatible with Durham’s claim that Seago’s testimony, “may be necessary to the public interest,” undermines both his relevance arguments and his excuse for the belated bid to pierce privilege.

As to Joffe, Tyrrell represented that at least some of the emails between him and Seago were the exchange of PGP keys.

MR. TYRRELL: Well, there are — Mr. Joffe is a cyber security expert, and he was trying to exchange something called PGP keys with Ms. Seago —

THE COURT: Okay.

MR. TYRRELL: — so that their communications would be secure and encrypted. So some of the attachments are actually just simply an exchange of PGP keys. But there is at least one or — there’s one or two attachments that’s not that, and I’m really not — I’d be happy to answer that in camera ex parte.

It’s the other communications that might be of value to Durham, but if they’re not privileged via Sussmann’s representation of Joffe, then his entire argument that Sussmann was representing a client may fall apart.

So Seago has, per those who know her involvement, little to offer in useful testimony (and Durham knew this). That’s a problem for Durham, because per Jonathan Algor, she was the way they planned to introduce the emails as evidence.

THE COURT: Okay. And obviously you haven’t seen these emails. You don’t know what they say. But you think there is a possibility, based on the descriptions in the privilege log, that they would be relevant and admissible through Ms. Seago for that purpose?

MR. ALGOR: Yes, Your Honor.

If Seago doesn’t know about the key issues necessary to validate the documents in question, then Durham may have a problem introducing them at trial at all.

As noted above, there are a number of possible ways Cooper resolves this, and it’s most likely he makes decisions that will displease both sides.

But given what he said yesterday, I think it quite likely Cooper will rule at least some of the Fusion emails are not privileged, even while making other rulings that will prevent them from coming into the trial as evidence.

If that happens, Durham may be able to use that ruling to get access (this time via proper methods) to that pool of 1,500 emails — many presumably of more interest to the Igor Danchenko case — that will let him spin his conspiracy theories for years to come. It might take losing the case against Sussmann, though, to continue his war of conspiracies.

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50 replies
  1. obsequious says:

    “Nor were Durham’s two cheap stunts — falsely claiming an FEC settlement was not “public” in time to introduce it as part of the initial filings”

    That’s not what Durham stated, he was talking about the FEC general counsel’s report not being public. The settlement (via letters) was reported on, clearly, but that general counsel’s report was not. Please stop repeating your inaccuracy, it tarnishes an otherwise good analysis.

    • Rayne says:

      The settlement (via letters) was reported on, clearly” — so provide timing and links. What outlet reported publicly on the settlement, and when in relationship to the general counsel’s report.

      Make your case, showing your homework so other community members can see you’re doing more than being an annoyingly persistent concern troll DDoSing comment threads.

      • Silly but True says:

        SMH. Like nearly all executive branch agencies & commissions, the FEC operates a public portal with its administrative docket.

        With MUR #7449, anyone can have followed this case’s resolution through the FEC enforcement docket since its 2018 complaint by the Reagan Institute’s Dan Backer as filed August 1, 2018.

        All of the Commission’s actions to date are available in the public docket, including the boatloads of FEC General Counsel’s reports.

        What Obsequious should be complaining about is not that records have not been available, but either in one’s own laziness to choose not to follow it, or in the general media apathy towards the case and allegation.

        But regardless, Durham himself could have plugged in MUR 7449 and gotten all the information in real-time as actions were docketed to the case.

        At FEC dot GOV —> Legal Resources —> Enforcement —> Matters Under Review (MUR) —> Find by MUR Number —> 7449

        Durham could have done this, just as surely as you or I can; in fact, he probably has even easier routes than we do.

    • emptywheel says:

      Oh honey. I invited you to point out the big words in the last post you were struggling with. You chose not to do that.

      You’re the one being misleading. More importantly, as to the legal issue, I’m correct. They forfeited the issue. The ONLY bit **she** quoted was stuff that was public in March.

      Why are you frothers so painfully obtuse?

      • obsequious says:

        I see where the confusion lies now. The way that Attorney Shaw wrote the sentence in the filing can be interpreted in two ways:

        Your interpretation of the sentence “which were made public on April 28, 2022” is that you think Shaw is referring both to the conciliation agreement and the supporting findings.

        My interpretation of the sentence is that “which were made public on April 28, 2022” refers only to the immediately proximal phrase “the FEC’s supporting findings”.

        Your interpretation assumes bad faith on the part of Attorney Shaw, and that she must have been misrepresenting the timeline.

        My interpretation assumed that Attorney Shaw was representing the actual timeline that is verifiable.

        I’m not sure which is right because each interpretation has merits.

        • emptywheel says:

          We don’t have two interpretations. I’m noting, correctly, it is deliberately misleading TO HIDE THEIR FORFEITURE. She’s wrong on the law, and the only way around being wrong on the law is the kind of word game you lap up like a puppy.

          My point, which is correct especially under your reading, is she’s wrong on the law and attempting to hide that they forfeited the issue.

          But whether you think she’s stupid about the law or, like me, believe she’s being deliberately misleading, she is wrong on the law.

          • obsequious says:

            Thank you for your response, lots to think about. I didn’t realize Durham forfeits the issue if he falls to bring it up as it happens and instead delays until a later time.

      • obsequious says:

        I see where the confusion lies now. The way that Attorney Shaw wrote the sentence in the filing can be interpreted in two ways:

        Your interpretation of the sentence “which were made public on April 28, 2022” is that you think Shaw is referring both to the conciliation agreement and the supporting findings.

        My interpretation of the sentence is that “which were made public on April 28, 2022” refers only to the immediately proximal phrase “the FEC’s supporting findings”.

        Your interpretation assumes bad faith on the part of Attorney Shaw, and that she must have been misrepresenting the timeline.

        My interpretation assumed that Attorney Shaw was representing the actual timeline that is verifiable.

        I’m not sure which is right because each interpretation has merits.

  2. Peterr says:

    From the list of possible scenarios:

    4. Cooper determines that Durham’s claims about the necessity or relevance of Laura Seago’s testimony are not only false, but Durham knew them to be false when he made them and, given that Durham has used as his excuse to pierce privilege at this late date, cannot introduce them at trial.

    If this is the case, then not being able to use Seago materials is the least of Durham’s problems.

    This scenario is not saying Durham was sloppy or tried to cut corners – it is saying that Durham knew one thing and told the court something else. I don’t know a whole lot of judges, but none of them like being lied to, especially by a former US Attorney and current Special Counsel.

    Durham is not a wet-behind-the-ears AUSA working his first case. Being called out by a federal judge as someone who has lied to the court — not someone who made a bad argument or who made a mistake, but someone who affirmatively sought to mislead the court by his statements and filings — might make this his last case.

    • emptywheel says:

      Yeah, but I think it’s unlikely.

      I think the most likely scenario is that Durham gets limited use value of these emails at trial, but gets to make a claim that Dems violated privilege claims.

      • Silly but True says:

        Privilege holders being too overzealous in a privilege claim may muddy the timing waters; Durham would get to argue “See, we legitimately should have gotten this when we asked a year ago. The only reason it’s taken this long is only because they, not I, were stalling.” It may not utimarely change anything in this trial or what can be admitted as evidence. But there’s going to be documents that should not have been privileged, and that’s going to undercut criticism or perception against Durham team’s delays in getting here.

      • Peterr says:

        With all the hand-wringing and pearl-clutching over the leak of Alito’s anti-Roe opinion, my faith in the judicial branch is shaken much more by seeing DOJ attorneys lie to judges and suffer no personal sanctions.

        • Rugger9 says:

          I suppose it is a fine line between advocacy and lying, but I would agree that this is egregious enough conduct to warrant Bar referrals from the bench, which is how it needs to be started to get any traction at the Bar (from personal experience). Make them know they could lose the law license as a real possibility and this stuff will stop.

          • bmaz says:

            See the Roach Motel posts I just refreshed Peter’s recollection on. State bar authorities really don’t touch DOJ prosecutors unless DOJ tells them to. That very rarely happens.

        • bmaz says:

          Lol, that has been going on forever. Do you not remember my Roach Motel post? And the followup? Such accountability almost never happens (except the Stevens prosecutor who seppukued). That is why OPR is there.

          • Peterr says:

            I do remember, which is part of why each time I see a DOJ attorney caught flat out lying to a judge, I keep hoping that *this* time a judge will say “I’ve had e-f’ng-nough of the DOJ lying to me and coddling those who do.”

            A referral to the bar charging misconduct seems like the minimum one could expect. Perhaps expulsion of the lawyer from any cases before the judge would be another way to make clear that a judge does not suffer liars in his/her court. If an OPR referral brings no action, then bring the OPR lawyers into the court to answer questions about their lack of oversight.

            OPR: “Your honor, after investigating these lawyers you referred to us, we conclude that they are idiots, not crooks.”
            Judge: “Hmmmm. [long pause] Arguendo, then, let’s talk about the culture of the DOJ that sent these idiots into my courtroom. Are the personnel folks at DOJ fools for hiring idiots? Are the supervisors who allegedly oversaw their work fools for not having stopped these idiots and their shoddy behavior? Has *anyone* at DOJ been reassigned or fired for allowing idiots to represent the People of the United States of America in my courtroom?”
            OPR: [long pause] “I’ll have to check with the AG and get back to you on that.”
            Judge: “What a good idea. Even better would be to bring the AG with you. How does three weeks from today at 10am work for you? Maybe a month from Friday?”

            And yes, I want a pony.

        • BobCon says:

          We may well see consequences, only in the wrong direction. One obvious method for radical judges to further undermine the rule of law is citing prosecutors for contempt, only unlike this case, for ad hoc political purposes:

          https://www.kansascity.com/news/state/kansas/article233985767.html

          I realize it’s not a pure parallel to Durham, but I’m not sure what will stop radical Judges from wildly abusing their authority.

          Which doesn’t mean that Cooper should get ahead of himself with Durham, of course.

            • BobCon says:

              I didn’t think a federal judge would inject himself in the Navy’s decision to remove a destroyer’s commander, but here we are.

              I think the radicals are breaking down the walls and we will be seeing judges crossing a lot more lines soon.

      • Dmbeaster says:

        It is routine for privilege claims to be made broadly by litigants, so Durham has no argument except political. I do not know how far the alleged overreach is here as I have not reviewed the briefing, but it has to be pretty far-fetched to be improper.

        The reverse issue is revealing some material, and then have the opposition (i.e., Durham) claim a waiver as to other material because you turned over allegedly privileged material. Its safer and smarter to assert a broader privilege argument and sort it out.

        • bmaz says:

          Yes, if only to protect the record. Though that is different for the prosecution than the defense.

  3. dude says:

    “…. that will let him spin his conspiracy theories for years to come.”

    Is that literally or figuratively true? I mean can Durham do this officially?

    • Silly but True says:

      Danchenko trial is currently scheduled for October 2022. It is going to be larger, more complex circus than Sussmann’s simple single-count lying allegation.

      It’s already been pushed back (by Danchenko) and may get pushed back again; the original trial start was April 18, 2022 before Sussman’s.

      Danchenko’s case includes five separate counts spread out over longer period than Sussmann’s discrete meeting with Baker.

      • emptywheel says:

        Danchenko’s is only slightly more complex. They charged the same claimed lie 4 times.

        And there are parts of it that may not survive. I’m also not sure if it’s fair to say Danchenko pushed it back. Durham bit off way more CIPA process than he can handle, and already had to get a 6 week delay on classified discovery.

        • Silly but True says:

          I guess what I mean is that the motion which moved from April to October was Danchenko’s. I didn’t intend to judge how or what drove it, just there has already had issues getting the trial started.

  4. Silly but True says:

    Thus far, Cooper’s not likely to dismiss Sussmann’s case with prejudice.

    If mistrial because of hung jury, Durham gets another bite at apple, this time using everything.

    But the end goal in any case likely was not just in convicting Sussmann.

  5. Rapier says:

    I feel the j’accuse; ” Durham knew (because he has been operating as a parasite on the lawfare project that Vladimir Putin probably ordered”…), should have been put at the top of the article, or the bottom, or both.

  6. Pedro P says:

    I am a little reluctant to take Berkowitz’s word on what Ms. Seago knows and doesn’t know. She may not have had much recollection on things during her Alfa deposition, but perhaps Durham challenged her a bit on her recall and then some misremembering took place? Hence partial immunity?

    • emptywheel says:

      In the hearing, Durham admitted he doesn’t know what she’ll say.

      And it’s not just Berkowitz. It’s Levy and Joffe as well.

  7. Bay State Librul says:

    Rugger 9 @ 12:13PM

    I need to set my Smartwatch
    Fiddlesticks and Said Jack shit?

    Please — can someone explain to me “the fine line between advocacy and lying”

    • Peterr says:

      To paraphrase Ben Frankin in the Broadway musical 1776, “Advocacy is what *we* do; lying is what *they* do.”

      • Rugger9 says:

        Lawyers are advocates and are usually permitted to not lift fingers to help their adversary (criminal exculpatory info is an exception), but outright lying is not permitted. However, it has to be complained about to be stopped. Although… Peterr’s point is pretty good too.

        I went back to the Roach Motel post bmaz pointed to and found Judge Emmet Sullivan which reminded my why he was so ticked off at AG Barr for blowing up Flynn’s guilty plea (IIRC).

        As for the captain relieved for refusing the COVID vax jab, I’m a little surprised the MD-FL judge weighed in, since military matters are handled within the services with courts-martial by the JAGs. A couple of points worth mentioning:

        Any commander’s location is actually on a need-to-know basis and typically classified because it tells someone where the ship is likely to be.

        The commodore (the squadron commander is known by this honorific even if not a flag officer) had lost confidence in the CO’s ability and so was well within his rights to relieve him. He doesn’t need a reason nor does he have to justify it to a federal court (but COMNAVSURFLANT might want to have a chat). It’s called ‘good order and discipline’, and if one recalls CAPT Crozier’s relief for cause (and subsequent ending of his career) this destroyer commander had no case for a federal court. Crozier’s case was far more odious than this one.

        FWIW, Merryday is a Bush I appointee. I don’t have the SCOTUS rejection text at hand, but I would speculate the points above made their appearance.

  8. Scott Johnson says:

    Indeed, at one point, Cooper noted that Durham’s entire theory of the case assumes, “Sussmann was in the [September 19, 2016 James Baker] meeting representing Joffe,” which would mean there was a privileged relationship between Sussmann and Joffe, and so therefore assumes Sussmann’s communications with Joffe about the topic would be privileged. If Joffe’s communications with Sussmann and Laura Seago aren’t privileged, then it’s proof that Sussmann was not representing a client. If they are privileged, then Durham can’t have them.

    It almost sounds like the Durham is trying to angle for a crime-fraud exception without explicitly asking for one.

    Indeed, given that in this case it’s the lawyer in the dock, not his client, but the client is asserting a privilege concerning evidence that might make or break the case against his own counsel, you would think that if Durham had a case, that’s where he would be going. That’s what crime-fraud is meant for–to bust the Saul Goodman’s of the world who actively assist malefactors in their misdeeds but use attorney-client privilege to shield this from investigators.

    There’s been some suspicion of crime-fraud being invoked in some of the anti-emptywheel substacks out there (which I won’t link to), but no mention of it anywhere that I can tell in the actual case filings or in-person hearings.

    Which to me, is a dog that didn’t bark. If Durham isn’t able to credibly make the assertion of crime-fraud before the Court, that strongly suggests that the attorney/client relationship between Sussmann and Joffe is, in fact, on the level.

    Of course, since the privilege in question belongs to Joffe and not to Sussman, if Durham really wanted to hear what Joffe has to say, he could try and induce Joffe to waive the privilege. Instead, it’s clear he wants Joffe to clam up, with the threat of future prosecution still being held over his head if he doesn’t take the Fifth, and instead make a public stink about what those communications might say.

      • Scott Johnson says:

        SP seems to be suggesting a conspiracy… but isn’t doing what a prosecutor would be presumably doing if they thought there was an actual conspiracy in which counsel is involved: attempting to use crime-fraud to pierce the attorney-client privilege.

        Instead it’s just a single allegation against the lawyer, but not any of the lawyer’s clients, over what most sane people would consider a trifling matter. But with a vague threat against one of those clients, designed to encourage said client to clam up.

        Further evidence that suggests Durham is full of it.

        • Silly but True says:

          In recent Durham filing for the privilege hearing, he notes multiple, plural “other investigations.”

          Now we know of one other case: Danchenko. Maybe I’m parsing too much, but if it’s just Danchenko, then it would have said “another case.” Durham refuses to free up Joffe, and he’s tossed a bunch of those people you mention as being associated to his “joint venture” angle. He may be full of it, but he’s nowhere yet being done with being full of it anytime soon.

  9. earllofhuntingdon says:

    NYT congressional reporter, Jonathan Weisman, must not get out much. He promotes J.D. Vance’s portrayal of himself as a “hard-scrabble Appalachian,” to white working class voters (riffing off Vance’s fanciful book, Hillbilly Elegy), and as an Ivy League law school venture capitalist to suburbanites. Just good politics for Weisman.

    But Weisman would be more accurate if he noted that only one of those characterizations is correct – which makes Vance a poseur and a liar. (Or is Weisman also making fun of the credulousness of white working class voters?)

    Vance is, in fact, a Yale Law School graduate, venture capitalist, and plaything of billionaire Peter Thiel. He was raised in Middletown, Ohio, a suburb north of Cincinnati that is one of the wealthiest and most comfortable small towns in Ohio. It’s as far from “hard-scrabble Appalachia” as Yale is from a coal mine in Harlan County.

    https://twitter.com/jonathanweisman/status/1522308381545054208

    • kpavlovic says:

      Your comment is a bit OT, but as one who grew up in a coal mining county in West Virginia and also acquired a Yale education I can confirm that Vance is both a poseur and a liar.

    • P J Evans says:

      My grandfather was from an area of northeastern KY that’s literally just over a ridge from Daniel Boone National Forest. A lot of people left for the west, the south, and the north between 1965 and 1950…and it’s still poor. A little too far out to be suburban, but still farmable.

  10. Thomas says:

    I don’t know why Durham is allowed to get away with one pile of misconduct after another.

    Early on, when Dr Wheeler pointed out the cut and paste job that Durham did with the emails of the techs, trying to selectively eliminate sentences and passages that disprove his claims of conspiracy and fabrication and malice, right then I wondered why he is allowed to continue with these performative and false antics.

    His actions aren’t just incompetent or clownish but devious and deliberately deceitful. It’s abusive.

    My gratitude to all of you and especially Dr Wheeler for being earnest and intelligent analysts.

  11. Jim Grant says:

    People can view the world through woke tinted glasses, but it doesn’t change the reality on the ground, Sussmann lied to the FBI. First he claimed it was just his word against James Baker’s word and it could not be proven in court, until his text message, where he put it in writing, appeared in Durham’s court filings… Oops. He then changes the story and says it’s not material to the case, not material to the case? Eventually the FBI assigned 42 agents to investigate the Russian collusion hoax, which Sussmann played a part. Those 42 agents could have been investigating a myriad of crimes across the country, but instead, we’re investigating Peter Rabbit’s theft of carrots, from Mr McGregor’s garden. In a just world, these people should pay restitution to the taxpayers for the 3-year snipe hunt.

    • Dmbeaster says:

      The Alfa Bank issue had nothing to do with the numerous investigations involving Trump’s Russia connections, which investigations showed the actual involvement. The Senate and Mueller investigations documented the extensive Russian involvement in the campaign, and the numerous links to the Trump campaign The Alfa Bank data never went anywhere as the FBI did not see anything sinister in the data.

      Try to get your facts straight.

      • JIM Grant says:

        Dmbeaster, I appreciate the comment, and I really do. But, I beg to differ, the Alpha Bank issue had “EVERYTHING” to do with the Russia collusion hoax, the same people were pushing it on all fronts. Every incoming administration has links to foreign governments, it’s part of doing their job… Representative Adam Schiff went on national television and said he seen compelling proof of Russian collusion with the Trump administration. Of course, nobody’s ever seen it, because it was probably the carrots recovered from Peter Rabbit’s theft. I did get my facts straight… It seems pretty clear, this was all contrived by the DNC and the Hillary campaign. For the record, I’m not a conservative, I believe Trump is a despicable human being personally, but making up a scenario, to minimize his chances to win an election, is wrong.

      • Jim Grant says:

        Dmbeaster, one more thing, Sussman lied to the FBI. He doesn’t even dispute that now, he claims his lie was not material to the case. This is a guy who asked for a meeting with the FBI, to deceive them into an investigation of a rival. Despicable. Are you suggesting we should all forgive him for doing so, because it helped the Hillary campaign?

  12. Troutwaxer says:

    A friend sent me the github information for PingFS as a joke. (It’s a filesytem that installs your data into the extra space in ICMP packets.) But consider the idea of hiding data in a ping packet as it applies to DNS and the Alpha Bank server. If nothing else, this is a demonstration that you can do a lot of esoteric stuff with ordinary utilities, like hide secret messages in the “content” of a ping/DNS packet.

    https://github.com/yarrick/pingfs

  13. I Never Lie and am Always Right says:

    Sometimes the lies of prosecutors come back to bite them in ways they don’t anticipate. I once had a prosecutor lie to me and to the Court. We later discovered the lie, and the matter was resolved very favorably to my client, very quickly after we discovered the lie, before the existence of the lie became known to anyone other than us. The prosecutor likely thought they dodged a bullet. Some years later, the prosecutor was seeking an appointment as a Judge, and I was contacted by people evaluating the fitness of said prosecutor. Said prosecutor did not ever become a Judge.

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