John Durham Wails about Michael Sussmann Adopting His Own Evidentiary Standards

Last month, I noted that John Durham had forgotten to file a motion in limine to exclude evidence of the rampant hacking Russia did against Hillary Clinton in 2016.

But along the way, Durham’s tunnel vision about 2016 led him to forget to exclude the things that do go to Sussmann’s state of mind, such as the very real Russian attack on Hillary Clinton and Donald Trump’s public call for more such attacks.

So while Durham may be excluded from claiming that a private citizen’s attempt to learn about real crimes by a Presidential candidate before he is elected amounts to a criminal conspiracy, it is too late for Durham now to try to exclude evidence about Sussmann’s understanding of Donald Trump’s very real role in a hack of his client.

In a challenge to Michael Sussmann’s trial exhibits last night, Durham has effectively tried to belatedly correct that error.

Meanwhile, in Sussmann’s own challenge to Durham’s exhibits, he labels 121 exhibits as hearsay, 267 as irrelevant, and 143 as prejudicial.

Durham objects to three kinds of evidence, all utterly pertinent to Sussmann’s defense, and all akin to the same kind of evidence Durham has fought to introduce to substantiate a conspiracy theory Durham admits he doesn’t have evidence to prove.

The first are hundreds of emails Sussmann had with the FBI pertaining to hacks of the DNC and Hillary (Durham describes hacking attempts against Hillary as “cybersecurity issues” as if unsuccessful hacks don’t count as hacks).

Durham claims that these should come in primarily to disprove Durham’s assumptions about Sussmann’s billing entries, not to illustrate how reasonable it was to be concerned about a DNS anomaly involving Trump and a Russian bank. Durham — who asked to include a voir dire question assuming as fact that the Hillary campaign “promot[ed …] the Trump/Russia collusion narrative” — doesn’t want the FBI’s investigation of serial hacks targeting Democrats to come in to support the fact that such hacks occurred. And he wants to exclude the sheer volume, arguing (not unfairly) that would be cumulative, but not acknowledging that the volume does speak to Sussmann’s focus during a period when Durham claims Sussmann was instead feverishly conspiring to attack Trump. Finally, Durham claims that Sussmann’s focus on Russian cyberattacks is totally unrelated to his concern about an anomaly seeming to suggest a tie between Trump and Alfa.

First, the defendant’s Exhibit List includes more than approximately 300 email chains between and among the defendant and various FBI personnel reflecting the defendant’s work relating to (i) the hack of the Democratic National Committee (“DNC”), and (ii) cybersecurity issues pertaining to the Hillary for America Campaign (“HFA”). As an initial matter, the Government is not contesting that the defendant worked for both of those entities on cybersecurity issues. The Government also acknowledges that certain emails reflecting the defendant’s work on behalf of HFA on cybersecurity matters are potentially relevant and admissible insofar as the defendant might use those emails to argue that some or all of the billing entries to HFA that the Indictment alleges related to the Russian Bank-1 allegations were, in fact, related to work on other matters for HFA. The Government respectfully submits however, that the Court should carefully analyze each email that the defendant offers at trial to ensure that it is not admitted for its truth but instead is offered for a permissible purpose, such as to prove the defendant’s state of mind or the email’s effect on one or more of its recipients. Fed. R. Evid. 801(c); United States v. Safavian, 435 F. Supp. 2d 36, 45–46 (D.D.C. 2006). In addition, the defendant should not be permitted to offer dozens of emails to establish such basic facts because such voluminous evidence would be cumulative and unduly prejudicial. Fed. R. Evid. 403 (permitting courts to preclude parties from “needlessly presenting cumulative evidence”).

As to the dozens of communications regarding the defendant’s work regarding the DNC hack, these emails are largely irrelevant. The defendant billed his work on that matter to the DNC, not HFA. The Indictment alleges specifically that the defendant billed time on the Russian Bank1 allegations to HFA. These emails therefore do not support any inferences or arguments relating to the defendant’s alleged billed time for the Russian Bank-1 allegations. Instead, they contain extensive detail on collateral issues. See, e.g., Defense Ex. 306 (Email dated September 14, 2016 from FBI Special Agent E. Adrian Hawkins to Michael Sussmann, et al., stating in part, “We just got notified by some industry personnel that some previously unreleased DNC documents were uploaded to Virus Total today. In the files there was a contact list that I attached here with lots of personal emails for people. Rumor is that these files are supposed to be the network share for a guy named [named redacted] who worked IT until April 2011.”)

To the extent the defendant is offering such emails in support of arguments that (i) the defendant was an accomplished cybersecurity lawyer, (ii) the defendant was known and respected at the FBI, or (iii) the defendant was concerned about, and involved in responding to, cyberattacks carried out by the Russian Federation, such arguments are peripheral to the charged offense because they do not concern the Russian Bank-1 allegations or the defendant’s statements to the FBI about those allegations. The defendant’s potential arguments in this regard support, at best, the admission of a limited quantity of these emails to establish basic facts about the defendant’s representation of the DNC. Admitting all or most of these exhibits, however, would be highly cumulative and would waste the jury’s time with highly-detailed evidence concerning a tangential matter (the DNC hack) that is not at issue in this trial. Accordingly, the Government respectfully submits that the Court should admit only a limited number of these emails that are not being offered for their truth. [my emphasis]

It is, of course, rank nonsense to claim that the ongoing hacks targeting Democrats were unrelated to efforts to chase down a DNS anomaly. But Durham’s entire team either claims or genuinely does not understand the connection.

Then, in addition to attempting to exclude the notes of an FBI Agent who investigated the Alfa Bank allegations, Durham wants to exclude notes showing that the word “client” came up at a March 6, 2017 briefing on all the Russian allegations for Dana Boente.

The defense also may seek to offer (i) multiple pages of handwritten notes taken by an FBI Headquarters Special Agent concerning his work on the investigation of the Russian Bank-1 allegations, (including notes reflecting information he received from the FBI Chicago case team), and (ii) notes taken by multiple DOJ personnel at a March 6, 2017 briefing by the FBI for the then-Acting Attorney General on various Trump-related investigations, including the Russian Bank-1 allegations. See, e.g., Defense Ex. 353, 370, 410. The notes of two DOJ participants at the March 6, 2017 meeting reflect the use of the word “client” in connection with the Russian Bank-1 allegations. The defendant did not include reference to any of these notes – which were taken nearly six months after the defendant’s alleged false statement – in its motions in limine. Moreover, the DOJ personnel who took the notes that the defendant may seek to offer were not present for the defendant’s 2016 meeting with the FBI General Counsel. And while the FBI General Counsel was present for the March 6, 2017 meeting, the Government has not located any notes that he took there.

I mean, Durham is not wrong on the evidentiary issue: these notes far post-date Sussmann’s alleged lie (though, ironically, the Jeffrey Jensen team added a date to and relied on what must be one set of these notes in their efforts to blow up the Mike Flynn prosecution). While they may reflect James Baker’s statements reflecting knowledge that Sussmann had a client, they’re hearsay.

But Durham is doing both those same things, presenting hearsay notes to substantiate Baker’s knowledge and claiming that meetings that long post-date Sussmann’s alleged lie may be indicative of what Sussmann and Baker actually said in September 2016. Durham has no grounds to complain about such evidentiary sloppiness, because that’s what his entire case consists of.

Finally, Durham — who started his speaking indictment by focusing on two news articles and not only considers Fusion’s communications with the press to be key evidence in his conspiracy theory but even insinuates that everything certain reporters were doing must have come from the Democrats — complains that Sussmann wants to introduce a slew of newspaper articles from 2016. He’s worried that it’ll elicit a sense of horror among the jury.

The Government will not dispute that the DNC was a victim of the aforementioned hack, nor will it dispute that the defendant carried out significant legal work in relation to the hack. The Government similarly will not seek to prove one way or the other whether Donald Trump maintained ties – illicit, unlawful, or otherwise – to Russia, other than to establish facts relating to the FBI’s investigation of the Russian Bank-1 allegations. Permitting the defense to admit the above-listed series of news articles would amount to the ultimate “mini-trial” – of the very sort that will distract and confuse the jury without offering probative evidence. United States v. Ring, 706 F.3d 460, 472 (D.C.Cir.2013) (“Unfair prejudice within its context means an undue tendency to suggest [making a] decision on an improper basis, commonly, though not necessarily, an emotional one.”); see also Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir.1980) (explaining that evidence is unfairly prejudicial “if it appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case.”) (citations omitted). Accordingly, this Court should exclude the above-referenced news articles.

This is the argument that, I noted in real time, Durham should have made last month.

But Durham is also not accounting for how central the articles cited are to Sussmann’s ability to rebut the conspiracy theory Durham wants to tell. The articles show that:

  • Trump’s coziness with Russia, one reason cited in Marc Elias’ declaration for hiring Fusion, was broadly perceived as unusual
  • Trump’s undisclosed financial ties with Russia were a general and persistent concern
  • Public reporting had confirmed the Russian attribution of the DNC hack before Trump asked Russia to hack Hillary some more and the press widely viewed Trump’s “Russia are you listening” comment as a request for more hacks
  • The reporters or outlets Durham wants to make an issue were doing their own reporting on Trump’s Russian ties were doing reporting not seeded by Fusion
  • The corruption scandal implicating Paul Manafort led to his ouster from the campaign during the period researchers were working on the anomaly

Durham complains that “many of [the articles] far predate the defendant’s meeting with the FBI General Counsel,” but only one predates the data collection that Durham has made the central focus of his case and another — Ellen Nakashima’s article reporting the DNC hack — directly kicked off that data collection effort.

These articles explain why it was reasonable, not just for the Democrats’ cybersecurity lawyer who was spending most of his days trying to fight back against a persistent Russian hack, but also for the researchers and Rodney Joffe to try to first look for more Russian hacking (including that victimizing Republicans), and when they found an anomaly, to try to chase it down and even to bring it to the FBI for further investigation. Several threads of these articles — pertaining to Trump’s request that Russia hack Hillary and to Manafort’s corruption — were explicitly invoked in discussions that Durham wants to claim must arise from political malice.

Indeed, as a whole, these articles provide far more reasonable explanations for actions that Durham has claimed, as fact, could only arise out of political malice.

Some of Durham’s complaints are reasonable from an evidentiary standard. But they’re utterly ridiculous given his own wild conspiracy theorizing. And many of these exhibits are utterly necessary to rebut the more outlandish things Durham has been claiming for months.

96 replies
    • emptywheel says:

      This is normal pre-trial jockeying.

      Tactically, Sussmann is smartly raising the stakes of Durham relying on the evidence that he has long been clinging to. And my point–that Durham really never considered the degree to which the Russian attacks were real–is an important one. I was pretty stunned that Durham didn’t try to exclude this at the in limine stage; it was a testament to the degree to which his team really doesn’t **see** the import of the Russian hacks.

      So in this case, it’s not abuse on Durham’s case. Just myopia.

      • EdwardB says:

        Based on your excellent reporting, Dr. Wheeler, I would hope that this pre-trial jockeying is anything but normal.

      • obsequious says:

        The only caveat I’d add is that Crowdstrike was the company who was analyzing the DNC server and came to the conclusion that Russia hacked the server. If Crowdstrike relied on data that could be spoofed and indeed was spoofed by another bad actor, the conclusion that Russia was at fault could be improper. Of course Mueller came to the conclusion that Russia was the source, but he relied on Crowdstrike’s conclusion as well.

        If Durham has information that the DNC hack attribution was wrong but he’s not ready to publicize that, then it would make sense he is fighting hard to exclude evidence he doesn’t want to have to refute at trial.

        • bmaz says:

          Lol, I approved this comment because it is such total bullshit that I want people here to know what they are dealing with in you.

          And you continue to prove your handle of “obsequious” correct.

        • emptywheel says:

          Why do you believe Mueller relied on Crowdstrike when the 29 sources cited in the Mueller Report and GRU indictment are not the Crowdstrike Report?

          Aren’t you a bit embarrassed coming here and making such a big obvious error?

          • obsequious says:

            I’m sorry everyone, I made a mistake. I was trying to recall what I read years ago and misremembered.

            I’ve been spending so much time reading the Durham filings that I didn’t go back to the source docs which are quite lengthy.

        • Rayne says:

          Does being this stupid pay well? Inquiring minds want to know. Only surprised you didn’t weasel in the “single server” myth along with questioning attribution.

        • Scott Johnson says:

          Durham is a prosecutor; his remit is prosecuting alleged crimes. Not about “publicizing” anything.

          Since Sussmann is an indicted defendant, he has the right to see the prosecution’s cards.

          “There is something I know but don’t want to show my work to the judge or jury, so I don’t want the defense to admit contrary evidence”, ain’t how it works.

          This gives away the game. It’s not about punishing a particular offense against the United States, it’s about promulgating a BS conspiracy theory for craven political reasons.

      • Troutwaxer says:

        Maybe it’s “normal pre-trial jockeying,” but taken as a whole, Durham’s prosecution of Sussman looks like Calvinball to me.

  1. arbusto says:

    EW you posted Doc 119 twice, once as Sussmanns challenge and one as Durhams meanderings. Would love to read the challenge

  2. Silly but True says:

    I somehow picture Garland having set Durham’s team up in the broom closet. The fundamental problem is the “joint venture” and “other investigations” don’t appear ripe for prosecution. I’m sure a hope then was for Sussmann to roll up on others which then never happened.

  3. skua says:

    “Here’s Sussmann’s challenge to Durham’s exhibits, which labels 121 exhibits as hearsay, 267 as irrelevant, and 143 as prejudicial.”

    Link here currently goes to Durham’s challenge.

    • Desidero says:

      Ditto – the summary in this post is a bit confusing as well.
      Looks like you meant:
      “Here’s Durham’s challenge to Sussmann’s exhibits, which labels 121 exhibits as hearsay, 267 as irrelevant, and 143 as prejudicial.”
      reversing Durham & Sussmann

    • emptywheel says:

      Should be fixed.

      I’ve now (hopefully) linked to Sussmann’s list of bases to exclude certain exhibits.

  4. Desider says:

    “hundreds of emails Sussmann had with the FBI pertaining to hacks” – my god, they’ve got a hugely entrenched relationship by the time any “are you working for Hillary?” may or may not have come up – unless those hundreds of emails were frivolous, the “who are you working for” would’ve been largely irrelevant, especially as the Alfa comms were intriguing enough not to be dismissed at first glance by experts, whatever the final determination.
    “Hey, I know we’ve been married for 23 years, but I was just wondering…”
    If the feds had dismissed the Alfa ping info just based on whose client he was, that would have been professionally irresponsible. Had the DNS lookups been constructed by Sussmann and/or partners of some sort, that’s of course potentially some kind of fraud/malfeasance. Since Alfa/Spectrum/Trump weren’t DNC or Clinton cloud servers, the only issues I could see for this to be germane are 1) frivolous, 2) intentionally doxxing, or 3) false statements that cost FBI considerable time or misleading an investigation (something the Republicans have been getting away with a lot these last 5 years)

    • bmaz says:

      Welp, IAAL, and this prosecution is bullshit. I’d just laugh, but there is an actual person in the lurch as a result.

      • Rugger9 says:

        I would think that the only hope of conviction is a full-on MAGA cult jury and Sussmann’s lawyers would never allow that to happen. It only takes one to force a mistrial. I can’t imagine that Durham’s team is any better at argument than they have shown themselves to be with filings and motion hearings. However, Sussmann needs to be compensated for this but won’t be. Maybe Peterr will share his pony…

        As many people have noted including myself, this is not about prosecution but publicity and so therefore no claim is too ridiculous and evidence is optional.

        • bmaz says:

          Well, you basically get six, maybe ten, strikes on the defense side unless it is a capital case. And, no, unlikely they are better than what exhibited to date. But never say never.

        • Silly but True says:

          Sure it’s new playing board each time but the longer this draws out the better Durham’s side resolves all his timeliness & procedural deficiencies, lack of evidence, etc.

          Insofar DoJ lets him get multiple bites at the apple, a mistrial favors Durham not Sussmann: Durham can then read EW to see all the ways he went wrong, then fix them for retrial.

    • Are you sure? says:

      According to the filings: A witness is going to testify that Sussman consulted with them to fashion the white paper, to be given to the government, in a way that would deceive all but DNS experts. That witness is also going to testify that they were instructed to find an inference. The witness is one of the “researchers” and presumably has already given this testimony to the grand jury. That person has been given immunity to detail their part in the ” Joint venture”.

      Furthermore, either that witness, or another witness, is going to testify that Joffe (The other person Sussmann was representing at the time) claimed that he was promised a job by the Democrats if Hillary won.

      • emptywheel says:

        That is what Durham claims witnesses, one of whom he won’t call, will say.

        But the witnesses say differently.

        • Are you sure? says:

          Is it safe to assume that you believe that this witness is going to commit perjury relative to their prior statements to the grand jury, or are you banking on the belief that Durham is misrepresenting what their testimony was to the grand jury? Or do you believe the witness is lying all together?

          And lastly, do you really believe that this team of federal attorneys are going to lose this case? That in itself is pretty rare. The odds are certainly in their favor.

          • John Paul Jones says:

            Seago’s prior statements (in the public record because she was deposed in an Alfa Bank suit) have been that she knows nothing about the meeting where Durham alleges the false statement was made. So there’s no possible perjury. And rare ≠ never happens.

            And all of this is available in recent posts by Doc Wheeler. Maybe you should read through some of those before assuming that Durham is accurately conveying what his witnesses will say.

          • Scott Johnson says:

            There are differences, vast differences, between line US Attorneys, and special prosecutors, some of which are sent out on witch-hunts, and view their duty not as gaining convictions, but as harassment of political enemies and generation of agit-prop.

            The Durham case, of course, is a side-show to the main event (the 1/6 prosecutions), and there Dr. Wheeler and company have to deal with a bunch of trolls, malcontents, and moaners who want to know why Trump hasn’t been indicted already, and don’t care if the case is weak or even BS, they just want to see him perp-walked to court. Some of them simply don’t know how it works, others are stirring the pot for no good reason. But there’s a sizeable cohort on the left that think that Garland should essentially use the DOJ to harass the political enemies of the Democratic Party and the Biden Administration. In other words, they want the Attorney General to act with the same disregard for professional standards that the Special Prosecutor is demonstrating in this case.

            • bmaz says:

              Who are “they”?

              Can you point out other current “special prosecutors” that are analogous to Durham?

              Who, exactly are the “sizable cohort on the left” you are talking about?

              “they want the Attorney General to act with the same disregard for professional standards that the Special Prosecutor is demonstrating in this case.”

              This is absolute bullshit. What are you even talking about? Do not litter us with garbage, we know it when we see it “Scott”.

              • Scott Johnson says:

                Ken Starr comes to mind as the obvious example of a special prosecutor unleashed on a witch hunt. SPs are useful, obviously, when members of the current administration are being investigated, to shield the investigation from political interference. Whether that applies here is hard to say–Sussman is not part of the current (or any prior) administration, at best he worked for the campaign of the prior Democratic nominee, and no official misconduct has been alleged. But lots of folks have long been hinting about a grand conspiracy involving everyone left of Mitch McConnell in DC, just to be mean to Trump. And Durham is providing ample grist for that mill, rather flagrantly using his office for political purposes.

                Were this case to be given to a line US Attorney, would Sussmann have been indicted on such a contrived offense with such flimsy evidence, and would we have seen such flagrantly political behavior from Justice, with court filings full of irrelevant but inflammatory informations? Almost certainly not.

                As to the second part: If you go to lots of lefty blogs–there is PLENTY of outrage that Trump hasn’t been indicted already. Tons of it. Most of it BS, and a lot of it trolling or sandbagging. But a lot of it is indeed coming from people who think that political war is upon, and the Democrats have brought a knife to a gunfight and need to get just as down and dirty as Republicans. I’m not endorsing this, but it is out there. They don’t put it as bluntly as I did, but if you start digging, it becomes clear that what many of them want is political indictments and prosecutions: They know Trump is guilty (and I think he certainly is!), they think his public speeches constitute incontrovertible evidence, and they’re mad that rich white guys often get away with all sorts of stuff. They’ve seen quite a few lawbreakers in prior administrations skate, and they assume that the current DOJ investigation is all kayfabe. They want blood; they want Trump frog-marched out of Mar-a-Lago on live TV, and they want large swaths of the GOP and its donor base to go down with him, due process be damned.

                I don’t think it is, for the record, but mention Garland at DKOS or LGM and there will be a chorus of Bronx cheers.

                The book The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives gets often waved about in these arguments. While it mainly focuses on white-collar crime as opposed to political misconduct, a lot of the same arguments apply. And yet they see Durham doing his thing, and wonder why only the Republicans seem to have wartime consiglieres, and assume the fix is in.

                I think it’s not, of course, and I’d rather see Garland and his department bring cases that they have a chance of winning (a task made harder given the number of corrupt judges appointed by the prior administration, and the likelihood that some MAGA will lie through his teeth in voir dire specifically for the purpose of getting on and hanging a jury–and that’s even assuming that Biden and Garland successfully flushed all the Trump moles out of Justice) than issue weak indictments for show and political effect. For one thing, our plutocrat media often flays the Democrats if they look the wrong way, but treats all sorts of wrongdoing by the GOP as politics as usual, as cleverness rather than corruption. But this is a mob prosecution, essentially. Only rather than just infiltrating some city’s police department, this mob has infiltrated the federal government, and has the backing of 40% of the population.

                Why that observation set you off, I have no idea.

                • bmaz says:

                  Perhaps you do not know the difference between an independent counsel and a special counsel. Maybe you should look that up. Nothing “set me off” other than obtuseness, Scott.

                  • Scott Johnson says:

                    Fair enough, though in this case I was perhaps being sloppy with terminology. Starr had a great deal more independence from Justice than the Clinton Administration than Durham enjoys–if I understand correctly, AG Garland could fire Durham Monday morning and move to dismiss the case that afternoon, and the only consequences would be political (the DC press corps would of course howl like banshees were this to happen). Starr, on the other hand, served at the pleasure of the Republican-controlled congress, and despite investigating for years was not able to find any significant wrongdoing by the Clintons in the Whitewater affair, but was bailed out in the end because Bill is a horndog.

                    That said.. in both cases we are dealing with prosecutors with a special assignment, with a suspect or set of suspects they are tasked to focus on, a caseload they more or less control, and without the normal restraints found on line US attorneys. And in the case of both Durham and Starr, they rather clearly viewed themselves as modern-day Javerts, who would nail their respective Valjeans to the wall one way or another.

          • emptywheel says:

            It is safe to assume i know that Durham isn’t going to call some of the people you think he’s going to call and to the extent he calls Dagon, Dagon will explain that Durham’s representations in court filings were misleading cherry-picks designed to inflame feeble-minded people.

            I don’t know who will win this case: Part of it depends on rulings Cooper will make this weekend, rulings you frothers haven’t even accounted for in your understanding of the case. I do know that the case against Greg Craig flopped for some of the same reasons this one may.

          • bmaz says:

            Answer your own questions. We are not here to be trolled with them by a Durham cluck. And, for the record, yes I am sure.

              • bmaz says:

                I don’t even know what that means, care to elaborate there? I am sure you are coming for me, because that is your consistent history, but “please” be more specific.

                • Desider says:

                  I assumed you used the wrong word, wanting “Durham cuck”:
                  cuck /kʌk/ noun
                  1. a weak or servile man (often used as a contemptuous term for a man with moderate or progressive political views).
                  2. a man whose wife is sexually unfaithful; a cuckold.
                  (and no, I’m not actually coming for you, sorry if feels that way – in this case i thot u’d appreciate, makes your slur stronger)

                  • bmaz says:

                    Yeah, I did not say that, did not intend it whatsoever, and no rational person would believe I did. You just decided to interject it.

  5. dadidoc1 says:

    I shudder to think how much money Michael Sussmann must be spending to defend himself against John Durham and the United States Government.

    • bmaz says:

      Almost certainly paid by Perkins Coie’s insurance carrier. But Sussman is out of a prime job as a result.

  6. joel fisher says:

    I might be the last one in the room to get this, but doesn’t the word, “client”, floating around FBI notes–even if 6 months later–tend to show that the FBI came to understand that Sussmann did have a client at some earlier point. That is, the FBI was aware 6 months later, so the awareness arose at some point earlier.

  7. Jared Shoemaker Jr says:

    How is it that Durham can demand evidence be used in a certain way but excluded in another that harms him? Is this normal?

    • emptywheel says:

      As bmaz notes, this pre-trial fight is totally normal. Ultimately, the evidence submitted will end up somewhere in the middle.

      The only thing unique about it is that neither Durham nor the frothers seem to have an awareness of how dodgy his evidence is.

  8. greenbird says:

    “First, the defendant’s Exhibit List includes …”
    … but he never gets to ‘Second’ do he.
    i earned two fish sandwiches for my labors wrt untangling the Rhodes case ‘nightmare’ this morning. like a surf-fishing reel … landing a boot full of seaweed.
    fresh, real fish. can’t wait.

  9. WilliamOckham says:

    HAHAHAHAHA … [Gasps for air] …
    Did someone trot out the “Crowdstrike got it wrong” canard? Seriously? That’s “Jewish space lasers causing California forest fires” territory.

    Let me explain. No, it is too much. Let me sum up. While the Russians were in the act of hacking the DNC, et. al., Dutch intelligence was watching them. I don’t mean watching their network traffic (although they were doing that too). The Dutch were so completely inside the network of the Russians who were doing the hack that they controlled a security camera in the room where the hackers worked!

    I am generally skeptical of hack attributions simply because you almost never have 100% confidence in an attribution. This is one of the few significant hacks where there is no doubt about who did it.

    If you’re ignorant of this fact, go spend 3 seconds searching the internet for “dutch intelligence dnc hack”.

    • jhinx says:

      I thought it was, “Lemme esplain. No, that take too long. Lemme summup.”

      Anyway, thanks. Did not know about the Dutch intelligence work.

    • Fancy Chicken says:

      I’ve lurked for many years off and on but with the Sussman case I’m here daily and am constantly impressed with not only what the good Dr. Wheeler schools me on but what I learn, such as Dutch intelligence infiltrating Russian hacking on the DNC, from the number of regular sage commenters. I am certain I don’t know of another site that has such a high caliber of commentary. It makes me actually embarrassed and pity the few who fail troll.

      Cheers to you all.

  10. The Old Redneck says:

    To me this ultimately isn’t that complicated. Sussman was neck deep in trying to figure out the hacks. Isn’t it just a little bit possible that he had genuine concerns and really didn’t consider himself to be there on behalf of a client? If Durham can drag in all manner of hearsay to try and prove that’s not true, then Sussman be able throw up everything and see if it sticks too. Ultimately, Sussman is just trying to require Cooper to be consistent.
    My guess is that Cooper may tire of this and end up restricting the scope of the evidence for both sides. But that’s not a bad outcome for Sussman either.

    • emptywheel says:

      I think he’ll have to let some of the stuff Sussmann wants in in–this is about his state of mind, and his state of mind would clearly be dominated by the fact that his client was being persistently hacked and his client’s opponent had dialed up more.

      Some of the rest, though, likely is on his exhibit list to insulate against Durham’s backdoor efforts to get his conspiracy theory in.

      Ditto some of the hearsay requests. They’re going to make it easier for Cooper to exclude Durham’s hearsay. Tactics, basically.

  11. Pedro P says:

    Yeah, but Sussmann is saying that he never said that he was coming on his own and not representing a client.
    That is why his text to Baker the day before the meeting will be a big deal for the jury : “Jim– it’s Michael Sussmann. I have something time-sensitive (and sensitive) I need to discuss. Do you have availability for a short meeting tomorrow? I’m coming on my own- not on behalf of a client or company -want to help the bureau .Thanks.”

    Sussman wanting to “help” the Bureau is suspect too, especially when the jury reads Joffe’s e-mails to the researchers where he tells them he’s “seeking to please certain VIP’s” and he urges them to keep searching for data that would “give the base of a very useful narrative.”

    It’s hard to believe they were all
    apolitical and just concerned citizens worried about more Russia hacking, especially when one of the researchers e-mailed the group and said, “the only thing that drives us is that we just don’t like trump”.

    • emptywheel says:

      Wow. That would be true if 1) the text was proof he said that on 9/19 rather than 9/18 if 2) there weren’t abundant evidence that Sussmann (and Joffe) did precisely what they envisioned they might by “helping” the FBI, which is to kill the NYT story and 3) when Baker asked for help killing the story Sussmann made it quite clear he had a client and 4) if that Joffe email were coming in, which it most likely is not.

      • Desider says:

        May I remind, “The first are hundreds of emails Sussmann had with the FBI pertaining to hacks of the DNC and Hillary” – this is an established relationship, not a maybe-flighty/compromised whistleblower. It is doubtful the FBI would carry on such lengthy exchanges without finding real value, and only Durham seems to be saying it was a sham, not the FBI. Which rather makes Sussmann’s client irrelevant, except to a special prosecutor with a partisan agenda.

  12. Are you sure? says:

    Personally I think it’s going to be difficult for Sussmann to overcome the testimony of the researcher that has been given immunity. According to the filings they will testify that they were tasked with finding an “inference”. Accordiny to the filings: Sussmann worked with this researcher to fashion the white paper, to be given to the government, in a way that would deceive all but DNS experts. That shows forethought. Sussmann apparently knew what he was giving to the government was suspect.

    That testimony will blow a hole in any ‘Good Samaritan’ argument that Sussmann might try to make. It’s also evidence of a conspiracy. Having a co-conspirator testify against you in court, especially an established university professor, is probably a bad thing for your case.

      • Are you sure? says:

        I’ve yet to see a valid reason to doubt it. He’s a seasoned federal prosecutor with experience in conspiracies involving the government. The partisan attacks seem to be completely misplaced since he was also appointed by the Obama DOJ as a special counsel. He and his team have stellar records. The phrase, beyond reproach, comes to mind. Furthermore, federal prosecutors don’t usually take cases to trial that they think they might lose. Sussmann really has no choice but to fight it since his career will be over if he is found guilty, or takes a plea deal. I don’t see how he could hold onto his license if he doesn’t win. And winning is going to be difficult since the lie is in a black-and-white text message and also memorialized in the contemporaneous notes of Baker.

        • EdwardB says:

          Was it Baker’s note? I thought it was a note made by someone who was not in the meeting (which would be double hearsay).

          • Are you sure? says:

            You’re correct, Baker didn’t take notes on that day. The contemporaneous notes are from two of his employees and, I believe, three CIA employees.

            • bmaz says:

              Hi there. Are you sure, and are you sure this is the place you want to troll with that garbage? If you “are sure” about that, I can assure you that you are in the wrong place.

        • bmaz says:

          Yeah, I am pretty sure. You ever done a criminal case, or are you just paid to go places like this and blow bullshit? People here know who I am over 16 years, and you have been here for less than 16 hours. So, please, piss off.

          • Are you sure? says:

            Forgive me if it appears like I’m trolling. But I have read a few of these articles, and every time I read one there is information omitted, which has prompted me to discuss some of that material. But if this is not the proper place to discuss material about the case then my apologies. What is your rate of certainty? If you’re wrong, will it be because you were cheated, or will it simply be because you were wrong? These are genuine questions. I’m not positive which way it will go but it appears the scale is leaning in the favor of a conviction. I hope that we can discuss this like adults.

            • P J Evans says:

              You can discuss it here, but you need to be connected to reality, not to the lies put out by Durham and the GOP.

            • bmaz says:

              Forgive me if I say you are trolling. But that is exactly what you are doing, and there is a lot of that lately.

            • emptywheel says:

              I have discussed the material. When I pointed out that the indictment made it clear it was cherry picked, when NYT reported on the stuff Durham had left out, when I pointed out that the things Durham claims support his belief of partisan attack in fact were true national security concerns, and, in posts like this, where I point out that much of what has formed the understanding of frothers won’t come in bc it’s hearsay.

              That is, I’ve written about these things as their value as evidence, not as their value to feed frothy conspiracy theories.

              • Scott Johnson says:

                Durham has a weak case even if the defense weren’t able to introduce any evidence of its own.

                To convict, the government needs to prove:
                * That Sussman lied about his client on 1/19, as alleged in the indictment. The text on 1/18 might have some value as to state of mind and such, but if the prosecution cannot establish the specific false statement made to the FBI general counsel on 1/19, the case is over.
                * That Sussman knew he was lying and did so deliberately. “I’m not here on behalf of a client” can be understood multiple ways, including in ways which were likely true, or Sussman would believe were true.
                * That the alleged lie, if established to have been a lie, was material. Just as Sussman wasn’t able to assert that “of course it’s not material, it’s an ancillary matter” in his failed motion for dismissal, the government is not going to get away with “of course it is material; investigators have to weigh all factors when deciding how to allocate scarce resources”. The judge made it clear in his denial of the Motion to Dismiss that materiality is a fact for the jury to decide, not something that either prosecution or defense can “win” on in pre-trial motions. Someone from the FBI is likely going to have to get on the witness stand and say “gee, if we only knew that he was working for Clinton, we wudda thrown his tip in the garbage; the defendant fooled us and caused us to waste a bunch of time and money”. Which will run into the issue that the FBI knew already who he was working for. An abstract claim of materiality, even if supported by witness testimony from the FBI or documentary evidence, probably won’t be good enough.

  13. Pedro P says:

    I guess I just don’t understand why he would text that and the next day say something completely different?

    I guess also that one could say Sussmann and Joffe “helped” kill the NYT Alfa story but I don’t know if I would say that’s how they envisioned it.
    Wasn’t their hope that the FBI would take a look at their evidence, which then would help news editors mor apt to approve stories on Alfa knowing that the FBI was looking at it?

    • Dmbeaster says:

      “I guess I just don’t understand why he would text that and the next day say something completely different?”

      Because in all likelihood, the subject of the identity of his client did not come up at all during the meeting. Baker already knew who he represented. Baker’s Congressional testimony was that he did not recall a discussion on that point during the meeting.

      This is a false statement case about the discussion in the meeting – not about a prior text message. Yes, it is inferentially evidence that maybe the remark was repeated during the meeting, but the opposite inference is that it was unnecessary to discuss it.

      Also, the text explains the context.

      • Pedro P says:

        I’m coming on my own- not on behalf of a client or company -want to help the bureau .Thanks.”

        Or, perhaps the discussion of a client didn’t come up because Baker didn’t think Sussmann was representing a client based on what Sussmann texted him the day before the meeting?

    • emptywheel says:

      A big part of this case will be on what Sussmann meant by “not on behalf of a client.” He’ll say he had no specific ask, but was not actually hiding that he had a client.

      The evidence supports that claim.

      Durham will try to claim Sussmann was trying to hide a conspiracy. Except the rules of evidence will make it hard for Durham to prove there was a conspiracy. And even if he gets that evidence in, Sussmann will show that, in fact, the conspiracy was **caring about American national security.**

      • Scott Johnson says:

        From the indictment, Count One (the only count in the indictment):

        On or about September 19, 2016, within the District of Columbia, MICHAEL A.
        SUSSMANN, the defendant, did willfully and knowingly make a materially false, fictitious, and
        fraudulent statement or representation in a matter before the jurisdiction of the executive branch
        of the Government of the United States, to wit, on or about September 19, 2016, the defendant
        stated to the General Counsel of the FBI that he was not acting on behalf of any client in conveying
        particular allegations concerning a Presidential candidate, when in truth, and in fact, and as the
        defendant well knew, he was acting on behalf of specific clients, namely, Tech Executive-I and
        the Clinton Campaign.

        Don’t see anything in there about any “conspiracy”. While “Tech-Executive 1” is mentioned numerous times in the supporting statements, he is not listed as an unindicted co-conspirator anywhere in the indictment.

        The only relevant factual matters to the case are, or ought to be, “what Sussman said on 1/19”, and “what he thought at the time”. Durham might try and gin up a conspiracy to impeach the defendant, specifically to support the allegation that Sussman was lying through his teeth AND knew it…. that is an awfully thin reed on which to hang the case, given the lack of actual evidence that anyone was conspiring with anybody.

        Other than that, all the other information that has been recycled through the Government’s filings is just smoke and mirrors, and of little relevance to the case.

        And furthermore–the suggestion that Sussman was acting, simultaneously, on behalf of BOTH the Clinton campaign AND on Joffe… is ridiculous. Not how lawyers work.

      • Savage Librarian says:

        It seems to me that Sussmann’s intent in his reply was:
        “not *at the behest* of a client”

        Like many of us do ALL the time, we don’t always choose the most precise word for what it is we are trying to convey. I know it happens to me. Often I will use a word that has a proximate sound to the word that may have been a better choice.

        At times I go back & forth before I decide, and still may choose the less appropriate word. And sometimes I even think about adding an addendum to edit some things I’ve said or some poems I’ve written. But then I don’t.

        We constantly see this behavior in the media. The NYT immediately comes to mind. But there are countless other examples in both the MSM and elsewhere.

  14. Cosmo Le Cat says:

    Seeing Dr. Marcy knock down Obsequious is akin to Dr. Psaki dissecting Peter Doocy on a daily basis.

    Regarding Dr. bmaz’s explanation that attorneys advancing bad faith arguments as “it is what lawyers do” strikes me badly, although he is absolutely correct. Perhaps that’s fair in civil litigation and perhaps it’s fair for a defense counsel, but I hold an idealistic view that government prosecutors in a criminal matter must be scrupulously fair and forthright – that the bar is set much higher for them.

    • bmaz says:

      It is not. And it is an unique world. And one hard to understand if you are not in it.

  15. Anathema Device says:

    I’m assume that when this prosecution fails, Durham and all his apologists will be out there in the media blaming the “Deep State”….

    Of which he is a card-carrying employee :)

  16. evets says:

    As entertaining as it is to watch the various doctors here point out trolls like Pedro P and Obsequious and now are you sure among a few others, i come to this sight for the intelligence and the fact based explanations of important matters. It helps me understand, even if I like many others am impatient and worry that this process won’t get to the point of accountability for the string pullers. I get to understand the process more and there is light at the end of the tunnel, if only there is time to get there. I regret that there is wasted time on the reality challenged usurpers posting their ridiculous ideas on this site and that might take away from the time that the various doctors here spend providing their fact based analysis to educate. Wish those trolls would take it elsewhere, or actually just acknowledge whatever game it is they are playing.

    thank you emptywheel folks.

  17. WilliamOckham says:

    Cooper has ruled on most of this stuff:

    I’m sure Marcy will have plenty to say about this tomorrow. My initial read is that Durham lost a lot of his most cherished cherries (i.e. the cherrypicked bs from the indictment). Sussman mostly lost on things I doubt he expected to win on (immunizing Joffe particularly).

    To me, the most important thing is that Cooper is telling Durham that he can’t shoehorn his whole conspiracy theory into the trial. I doubt that will stop Durham from trying.

    When you step back from all the jockeying over evidence, this trial still looks to me like it did when the indictment came down. Durham is prosecuting a false statements case with a lot of problems:

    1. Materiality – Even if the statement was false, did it matter? I would argue that some of the evidence that Durham wants to enter calls the statement’s materiality in to question.
    2. The sole witness has a dubious memory of the alleged statement – Baker has been all over the map about what Sussman said.
    3. Was the statement false in context – Durham’s theory of the case seems to imply that Baker, the FBI, and the CIA were village idiots. In many circumstances, I might lean in that direction, but in a case where you’re asking me to believe that Baker, et. al., would place a truth value on statement like that coming from lawyer like Sussman, WTAF?

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