Fun with Bates Stamps, Part One: John Durham Confuses His Two Defendants to Rile Up the Frothers

Before I look at what newly disclosed notes from March 6, 2017 (written by Tashina GausharMary McCord, and Scott Schools) reveal about the Crossfire Hurricane investigation, including that Carter Page’s FISA was “fruitful,” which will pose Durham some difficulties in the Igor Danchenko investigation, I want to do two posts having some fun with Bates stamps.

Bates stamps are the way that lawyers track the documents they shuffle around in discovery. Every page of a document should be stamped sequentially to show the document’s chain of custody; the numbers also make referring to such documents in court filings easier. Just as one not-at-all random example of how it is supposed to work, this January 31, 2017 document John Durham obtained from the CIA shows three Bates stamps.

We can’t really be entirely sure what chain of custody this shows. Perhaps CIA stamped the outgoing files with  “CIA-0000019” and DOJ stamped the incoming CIA file, “DOJ_REQ_0242039.” We know, however, that Durham’s stamp is “SC-00081634.” Because Bates stamps are sequential, they help us to understand the order in which certain documents are handled.

One thing Bates stamps show us is that John Durham got approval to use a bunch of mostly-irrelevant Fusion GPS exhibits and did not get approval for the ones he actually wants to use at Michael Sussmann’s trial.

Because his team is made up of professionals, along with his objections to Durham’s exhibits, Michael Sussmann included a list that tied the exhibit numbers Durham assigned to the Bates stamps of the documents in question. That allows us to compare what exhibits Durham used to get Judge Christopher Cooper to buy off on submitting Fusion GPS documents with the jury with the Bates numbers of the Fusion GPS documents he really wants to introduce (thanks to William Ockham for doing a lot of this work).

A comparison of what Durham accidentally-on-purpose published to the docket with what Durham actually wants to introduce at trial shows that, of 62 pages of exhibits, he has identified just the following as exhibits at trial:

  • SC-00082558[-559]: July 31, 2015 email between Jake Berkowitz, Tom Hamburger, and Glenn Simpson re: Carter Page and Walid Phares
  • SC-00100359[-361]: September 24 through 27, 2016 email thread including Eric Lichtblau, Glenn Simpson, and Peter Fritsch on open source claim regarding Sergei Millian having a tie to Alfa Bank
  • SC-00027527[-541]: October 5, 2016 email from Fritsch to Isikoff sharing Alfa Group overview
  • SC-00027501: October 5, 2016 email from Fritsch to Lichtblau sharing link sent by Mark Hosenball claiming, “found this published on the web”
  • SC-00027483: October 5, 2016 email from Fritsch to Lichtblau claiming he had “no idea” where the link had come from
  • SC-00027475[-76]: October 5, 2016 exchange between Hosenball and Fritsch about how to respond to Trump statement on Tea Leaves’ allegations
  • SC-00027309: October 18, 2016 Fritsch email suggesting that Hosenball “call David Dagon at Georgia Tech”
  • SC-00027283: October 31, 2016 exchange between Isikoff and Fritsch about “big story on trump Alfa server moving early pm”
  • SC-00027233: November 3, 2016 blank response from Fritsch to Lichtblau regarding request about Sergei Millian

Just the last one, which I’ve bolded, has an assigned exhibit number in Durham’s list, suggesting either that he wants to use the documents with witnesses but not let the jury review the documents or that he’s not all that serious about using the documents as exhibits.

The list enables a tremendous amount of fuckery and more possible depending on how dishonest Durham wants to be.

For example, Durham has not obviously included the email where Mark Hosenball sent the link to the mediafire package to Fusion GPS, even though all the emails strongly support that’s what happened. Thus, as laid out, Durham seems intent to mislead the jury into believing that Fusion got that link via Tea Leaves or Michael Sussmann directly and not, as they’ve explained, via a journalist.

As noted, there are places where the list Sussmann used included only the first page of a series. Given the way Durham is treating serial October 5, 2016 emails (most notably those involving Eric Lichtblau), it’s possible he does not intend to include follow-on pages in his exhibits. In several cases, that would leave out important context.

For example, in the October 5, 2016 thread between Fritsch and Hosenball, including just the first page of that exhibit would leave out where Fritsch said,

the DNS stuff? not us at all.

outside computer experts

we did up an alfa memo unrelated to all this

It would also leave out where Fritsch pointed Hosenball to the public tutanota email included at the link that Hosenball himself sent to Fritsch, another piece of evidence showing that this was not an internal operation.

That is, as described, Durham may plan to falsely suggest these efforts were more closely tied than the evidence shows (it might exclude, for example, a key piece of evidence that Judge Cooper pointed to that showed this wasn’t a grand conspiracy).

Similarly, if just the first page of these exhibits were to come in, it would mean the jury got to see that Fusion sent out their Alfa Bank report, but not read the Alfa Bank report itself. Certainly, Durham could credibly argue that including the report would be prejudicial and as such might distract the jury. But excluding the report would also deprive the jury of the only material shared with the FBI that non-experts would have the ability of assessing themselves, both for the quality of the research and the validity of concerns of alleged ties between Trump and Alfa Bank.

For example, the report describes Richard Burt’s publicly acknowledged role in Trump’s first speech (though not a later role discovered as part of the Mueller investigation).

Burt has acknowledged that he played a significant role in writing Trump’s first major foreign policy speech. “I was asked to provide a draft for that speech. And parts of that of my draft —- survived into the final,” he told NPR.”‘

In the April 27 “America First” speech, Trump laid out an isolationist foreign policy. He criticized NATO and promised he would pursue better relations with Russia– skipping over its invasions of its neighbors and human rights abuses?’

It describes several allegations of Alfa Bank’s involvement in spying on adversaries.

Diligence also investigated a reporter from The Vail Street ournal who had contacted the CPI regarding the Alfa libel case. Private investigators for Diligence conducted a trash-stealing operation against the personal residence of the journalist. The operation was eventually exposed by an insider at Diligence. The affair caused high-level consternation in Washington due to a bizarre snafu: Unknown to the Diligence investigators, the reporter had vacated his home and rented it to a top White House official. That led to a confidential national security investigation of possible espionage by Alfa.

It even notes Petr Aven’s close ties to Putin, ties that Putin would exploit within months of the report in an attempt to form a back channel with the Trump Administration (though I suspect Putin did this in part to fulfill these suspicions).

As the face of Alfa Bank, Peter Aven remains the group’s key interface with the Kremlin. It appears his importance has only grown. Alfa Group, and specifically Alfa Bank, have a longstanding presence in the US and the UK.

[snip]

It is clear that Aven remains the key political figure in Alfa Group, with multiple current links to the government and security services, as outlined above. He has also driven the development of international links through the expansion of Alfa Bank in the US and Europe. The bank has carried out careful outreach, running an international Alfa Fellows program and maintaining a high profile. Although not itself a target, the bank has suffered from sanctions however, and has a particular interest in lifting sanctions’.

There’s a lot of crap that came from Fusion GPS, but their straight Russian research held up pretty well, and this is an example why it was reasonable for Perkins Coie to hire Fusion. So while Durham might successfully argue that this would be prejudicial, it is also one of the best ways for the jury to assess the credibility of Perkins Coie’s basis for relying on Fusion. It’s also necessary to explain why Michael Sussmann and Rodney Joffe might believe sharing this material with the FBI pertained to national security, not political malice.

Perhaps the most alarming detail in what Durham included in his exhibit list is that last one, the only one that includes an actual exhibit number.

Durham has made much of the fact that Lichtblau sent an email to Peter Fritsch asking if he had told him (at an in-person meeting) that Sergei Millian had an Alfa email address. As included here as an exhibit, Durham would present this without context, insinuating that Fritsch learned of this via Joffe or someone.

But the actual email thread — exchanged in September, when Lichtblau was in the thick of trying to publish this story — makes it clear that Fusion formed this inference based off entirely public ip information, research entirely unrelated to the DNS allegations.

So as laid out here, Durham has allowed for a good deal of at least possible fuckery.

But then there’s the question of what emails he did present to Judge Cooper claiming he wanted to use as exhibits.

The vast majority of these emails are entirely unrelated to the case against Sussmann. Many of the emails, though, might be related to Igor Danchenko’s case. They pertain to publicly sourced concerns about Sergei Millian, concerns shared far outside of Fusion, as well as to open source research on Carter Page. They do seem to reflect knowledge of a single Christopher Steele report, but at a time before Rodney Joffe first met anyone at Fusion GPS.

Meanwhile, in addition to the emails over which the Democrats or Rodney Joffe have claimed privilege, there are around another 35 that aren’t privileged but which Durham didn’t include in his exhibit of the emails that, he claimed, he wanted to rely on at trial.

In other words, those emails were utterly useless as an exhibit to allow Judge Cooper a good way to assess the exhibits that Durham actually wants to use at trial. They were, however, really useful at riling up the frothers.

The fact that Durham included many emails he doesn’t want to use as exhibits, but didn’t include many emails (including unprivileged ones) that he wants to use as exhibits, including all but one of the ones to which he has assigned an exhibit number, makes it all the more curious that Durham “accidentally” posted these emails publicly to the docket and the unpublished them.

In any case, it’s still possible this fuckery will blow up at trial (assuming that Durham doesn’t find some reason to make an interlocutory appeal, which I think is likely). As Judge Cooper noted in his order regarding motions in limine, “The Court will reserve judgment as to the admissibility of any additional email it has not yet seen.”

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32 replies
  1. WilliamOckham says:

    I wholeheartedly endorse the sentiment that Sussman’s team is “is made up of professionals”. I’m sure the intent behind the way that Sussman’s team formatted their list of objections was to make it easy for the judge to refer back and forth between their motion and the actual documents.

    As a side effect, that made the list relatively easy to process programmatically. Also, by including exhibits in the list that Sussman is not objecting to, we know that it’s a complete list of Durham’s proposed exhibits.

    I was particularly impressed that every entry in every column on every page lines up perfectly. My hat’s off to the person who produced that list.

    • Peterr says:

      That’s the thing that gets me about some of the filings, motions, and other legal docs that get discussed here. Why would any lawyer give something to a judge that makes it *harder* for them to follow your argument and thus rule in your favor?

      Clean formatting and a clear and obvious list of concerns strike me as the floor of what is barely acceptable, but obviously they are seen more as a ceiling to Durham & Co.

      • rip says:

        When you’re a Durham and digging an endless hole, there is no floor too low. And, of course, it keeps his politically-motivated case roiling in whatever public eye it has.

    • greenbird says:

      “SC-0002733:” not found by doc search … missing a digit ?
      also, THANK YOU. Specificity ‘R Us.

      • greenbird says:

        “Case 1:21-cr-00582-CRC Document 98-1 Filed 04/25/22 Page 1 of 62” doesn’t find SC-0002733, so i’m stumped.

      • greenbird says:

        imma eejit. i finded it and apologize for messing thread up.
        i forgot to hover muh brane.
        Case 1:21-cr-00582-CRC Document 98-1 Filed 04/25/22 Page 62 of 62 = is “SC-00027233” plain as day, and also part of hovered link.
        IGINAL !!!

  2. PieIsDamnGood says:

    >there are places where the list Sussmann used included only the first page of a series

    I see Durham’s using an old high school trick, read the first and last page and BS the rest!

  3. Fancy Chicken says:

    In pointing out the mayhem Durham could try to unleash by only introducing the first page of email threads as well excluding emails between Hosenball and Fritsch showing that relevant information was open sourced and not shared as a “conspiracy”, won’t Sussmann’s team introduce those items as evidence?

    To my IANAL mind that seems a given but I’ve come to realize I don’t understand a lot of the rules and strategies of evidence presentation.

    • Thomas says:

      Yep.
      I thought the same thing. My legal education is mostly from “Perry Mason” and “How to get away with murder”
      But once I sued the utility company and won a victory for every poor person in the state who was getting their power turned off during the winter.
      The company sent the high rolling corporate lawyer who won the case that allowed them to do that, and I BEAT him.
      😆
      I was more of an activist than a lawyer, but I can read laws and court procedures and regulations and file motions.
      This Durham case is a clown show. I don’t pretend to know 10% of what Dr Wheeler knows, but even I can see this case is fuckery.

      • FL Resister says:

        “But once I sued the utility company and won a victory for every poor person in the state who was getting their power turned off during the winter.
        The company sent the high rolling corporate lawyer who won the case that allowed them to do that, and I BEAT him.”

        WOW…Thomas.
        Thanks for that story. It lifted my dark mood.
        And thank-you Dr. Wheeler for not getting so outraged you take off in a helium balloon.

        I am optimistic that Attorney General Garland and his staff at the Justice Department realize more clearly and fully well than any of us know how close we are as a country to a make or break moment and that this is not the time to bend.

    • emptywheel says:

      Yes. And they will do that.

      Some of what is gong on now is tactical. People calling witnesses to reserve the right to frame the scope of questioning. Including documents to have on hand for rebuttal.

      But prosecutors who are confident in their case don’t need to play games at this stage of things.

      • Fancy Chicken says:

        My mind didn’t even go to a place where evidence at this point is being proposed on the basis that it’ll be used for rebuttal. For those of us unfamiliar with the minutiae of the steps in a criminal trial it’s helpful to have that in mind as we see what Durham is trying to tee up, thanks.

    • Ginevra diBenci says:

      Yes. I thought it was impossible to open the evidentiary door (e.g., by introducing first page/email of a series) and forbid the other side to step through it. Particularly in the instance of the “not us” email, that seems like Cooper’s task to admit.

  4. AvidReader says:

    Love the site, love the analysis, but why the daily focus on the Durham investigation? Of all the consequential things going on in the legal world, why focus Dr. Wheeler’s mind on what is clearly a farce?

    Not trolling, would just like some insight into why this investigation is worth daily updates? TY

    • Peterr says:

      Marcy can answer for herself, but I appreciate the strong focus she is putting on Durham.

      Durham is the embodiment of The Big Lie, and he has an official DOJ position from which to push The Big Lie. While a huge portion of the media is fixed on those other consequential things you allude to, damn few are looking at Durham.

      And the time to look at Durham is while he is actively engaged in his Big Lying, not later on.

      Already we can see how the MAGA crowd is making The Big Lie the center of a lot of their electoral machinations, especially in the GOP primaries. But they are also laying the stage to do so in the general elections.

      Calling Durham out NOW matters. Sussmann’s lawyers are defending Sussmann, and Marcy is defending democracy.

      • Anathema Device says:

        “Durham is the embodiment of The Big Lie”

        Technically, “The Big Lie” being used by the MAGOP is that the 2020 election was stolen. The rest is just a nest of garbage into which the big lie was laid by the turkey in chief.

        Durham is there as to ‘prove’ the Deep State was out to get tfg from the start, and that any failures as president were because of the entire intelligence community being in a conspiracy to wreck his term in office. Oh, and that there was no collusion with Russia, you’re the collusion with Russia etc etc.

        Given Steve Schmidt’s very recent revelations that John McCain’s campaign was compromised up the wazoo by Russian agents, which was probably well known by the intelligence community, the idea that Hilary Clinton had to invent some bullshit story that Trump was uniquely targeted by Russia (though he somehow heroically resisted all the money and help and staff it was offering / or was completely unaware of what was going on) looks even more ridiculous.

        Not that the MAGATs will ever admit that.

        • Legonaut says:

          I put Steve Schmidt’s “revelations” in the same bin as all the other Goopers who reveal things waaayyy too late to do any good. It sounds like he’s had his feefees hurt by mean ol’ “bully” Meghan McCain, and *now* he’s had enough.

          In his screed, he apologizes to the NYT reporters who actually got it right. Nothing about all of his sleaze and slanders in the years before and after — apparently, he’s still proud of that.

          It’s long past time he (and all of the rest of his fellow travelers) apologized to the rest of us for their work getting us to this point.

          “You’re part of the problem! Stop being part of the problem!” – John McClane, “Die Hard”

          P.S. Love your choice of username! One of my favorite books from the past fifty years!

          • Anathema Device says:

            “I put Steve Schmidt’s “revelations” in the same bin as all the other Goopers who reveal things waaayyy too late to do any good.”

            Well, yes. I wasn’t claiming it was virtuous, however much fun it is to watch Meghan McCain be dragged for filth (and it’s a *lot* of fun!)

            I just meant that it supports the concern of the IC and the Obama administration about Russian interference in American presidential elections, and that it wasn’t just some fever dream Hillary Clinton cooked up to smear poor honest Donald (god, typing that makes me want to upchuck.)

        • Peterr says:

          Yes, The Big Lie of the MAGA world is that the 2020 election was stolen. And in service of that lie comes John Durham, proclaiming that Sussmann was part of the vast left-wing conspriacy to steal the election by getting the Deep State FBI to go after Trump on bogus charges. Sure, the campaign lost 60+ court cases around the election results in various state and federal courts, but the frothers are sure that Durham will vindicate them and The Big Lie, by proving that Sussmann was in on the theft.

          I said it before and I’ll say it again: Durham embodies The Big Lie, giving it flesh and bones and legal muscle.

          Until, that is, some meddling woman starts tugging on the curtain off to the side and unveiling the fact that the Wizard of Ooze is nothing more than a two-bit huckster of a lawyer who can’t properly file a motion, who can’t seem to find evidence already in his department’s custody, and who repeatedly blows off orders of the court over things like the timely production of evidence.

    • emptywheel says:

      Because no one else is doing this work, period. And it is the follow-on of a bunch of work with the Flynn case that no one else did, period.

      And without this kind of scrutiny it would have been far easier for Durham to get away with his shenanigans. I’ll be thrilled when this is over, I promise. But if I don’t do it, it doesn’t get done.

      • Thomas says:

        You connect a lot of dots, and most of the MSM don’t even know there are dots! 😄
        I am deeply grateful, and allow me to thank you on behalf the whole country. Thank you!

    • FL Resister says:

      Emptywheel is countering a right-wing disinformation campaign begun when then AG Bill Barr appointed dumbfuck formerly respected John Durham to do a deep dive into the people who were aware of Russian interference and hacking in the 2016 Presidential Election. And wondered about whether there was more.
      Durham is trying to create a justification for the fuckery of rats.
      Marcie Wheeler is debunking their noxious shit.
      Please forgive my bluntness but it’s been a long 7 years.

      • bmaz says:

        “Formerly respected John Durham”? Lol, no. Durham has been a joke Republican cover up artist going back to the bogus torture “investigations” started by Bush and Mukasey. Frankly, his earlier work on Bulger was not all that great either. His own top assistant, who did most of his actual work, quit in disgust. So, let’s not overinflate the “former” reputation of Durham.

  5. Silly but Tfue says:

    The trial is a go.

    Unless there’s some last minute (second?) shenanigans, U.S. v Sussmann kicks off in one week on 5/16.

  6. iceborer says:

    I’m guessing that the “reporter from The Vail Street ournal” is actually from the famed business newspaper and not a hot new rag from the mountain ski town. I too have been cursed by the OCR gods at times.

  7. Riktol says:

    Typo: SC-0002733 should be SC-00027233

    If Durham gets the 1st page of some emails admitted, can Sussman get the rest of the email admitted? Wouldn’t hiding part of the email from the jury be bad for Durham’s credibility with the jury? Isn’t the trial supposed to start soon?

    Skimming through Sussman’s objections, if something doesn’t have an exhibit number, does that mean Durham isn’t planning to use it? Can he change his mind later? If not, why would Sussman file objections to them?
    Why does Durham use non-consecutive exhibit numbers and how can he have exhibit “403” and “403 New”?

    Finally what is “Map to Staples” (pg 18)? Has Sussman been lying to the FBI about where he bought stationary?

  8. WilliamOckham says:

    I don’t think Durham is actually planning on only using the first page of the email exhibits that are more than one page. Here’s my logic:

    The entries in the Sussman submission are one row per exhibit. Every exhibit that is identified with a Bates number (“SC-“) in Sussman’s submission has exactly one Bates number. There are no ranges (“SC-00027527 – SC-00027541”) and I can find no instances of a second (or later) page of a single document marked as a separate exhibit.

    Based on that, I conclude that using the first page’s Bates number to identify the entire exhibit is by convention for the table in the Sussman document. If that’s the convention, it would have been awesome if they had included a column for the number of pages in each exhibit (where applicable). I’m not complaining. This is still one of the best designed documents I’ve seen in a federal lawsuit.

    And, of course, I could be wrong about this.

    • emptywheel says:

      There are cases where the second email is marked separately with Lichtblau. That’s why I think it possible–though I agree the default should be otherwise.

  9. TimB says:

    Here to join in the thanks to emptywheel for covering this matter in detail. I am enjoying two aspects of it.

    1. It is important — alongside the “everything was the Steele dossier” nonsense, this nonsense is a mainstay of the “both sides cheat” theory of modern election behavior.

    2. It is hilarious. Mr. Durham’s efforts to play to two audiences, one in the courtroom, the other among the frothers [love this coinage] who want to see a conviction so that they can yell “no collusion, it was the dems who cheated” strains him past human limits. Excellent Schadenfreude.

  10. The Old Redneck says:

    In evidence, there is a rule of completeness that allows your opponent to introduce the remainder of a document if you introduce one part of it. Basically, it is designed to prevent out of context cherry-picking.
    Sussman will have that at his disposal if Durham tries to create a misleading picture with bits and pieces of emails.

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