Three Years into the Durham Investigation, a Jury Will Get to Hear about Trump’s Request that Russia Hack Hillary

There was a funny exchange in yesterday’s pre-trial hearing in the Michael Sussmann case. In the part of the hearing focused on objections to exhibits, Andrew DeFilippis raised the newspaper articles that — I noted — were necessary background to understand the mindset that led Sussmann and Rodney Joffe to believe that the Alfa Bank DNS anomaly raised national security concerns.

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.

In the hearing, DeFilippis predictably complained that prosecutors didn’t want this to become a trial on Donald Trump’s ties to Russia.

MR. DeFILIPPIS: The last category we had identified were a number of news articles about — again, on the face of — the headlines of the articles about — “Donald Trump’s ties to Russia,” I think, was the primary theme of the news articles.

We just — number one, they’re news articles, which we don’t think have, you know, probative weight here. Number two, we do not want to make this a trial on Donald Trump’s ties to Russia.

And again, we don’t have a lot of context for which it would be — why the defense would want to offer all of those. But I think our initial reaction is they would be a distraction.

Sussmann’s attorney Sean Berkowitz noted that prosecutors — who have made several newspaper articles the central point of their case — aren’t so much opposed to newspaper articles as evidence as they’re opposed to articles about Trump and Russia.

MR. BERKOWITZ: So as we understand the objection, your Honor, it’s not to articles generally. They have articles on their exhibit list. It’s to articles that talk about the issues with Trump and Russia in the summer of 2016.

Judge Christopher Cooper correctly noted that it would be unfair to send a bunch of articles back with the jury to read.

THE COURT: I think it’s broader than that. It’s sending back multiple newspaper articles to the jury with all sorts of stuff in them, and the jury is spending its time reading newspaper articles.

Berkowitz noted that they’re really trying to get to the mindset of Sussmann and Joffe, particularly their response to Trump’s request that Russia hack Hillary some more.

MR. BERKOWITZ:  The articles that we think are relevant, your Honor, relate to what’s going on in the world in July and August of 2016, which provide context and animate what’s going on for Mr. Sussmann and Mr. Joffe and why there are potential national security issues associated with this.

As you’ll remember, you know, on July 27th, at a press conference — again, this is shortly before the researchers start looking into issues, according to the Government — Trump has a press conference that says: Russia, if you’re listening, I hope that you’re able to find the 30,000 emails that are missing. I think you’ll probably be rewarded mightily by our press.

That fact being out there and well known provides context for the work that’s done and the motivation potentially to go to the FBI as to why it would be relevant that there were connections between — potential connections between Trump and Russia.


But the fact that this was what was going on in the world at this time we think is very relevant to the state of mind and the rationale behind this as well as the opposition research that was going on.

Cooper cut off Berkowitz before he could explain how this related to the DNC hack. But he suggested that such information could instead come in via questioning of Robby Mook, Marc Elias, and James Baker.

THE COURT: — Mr. Elias, Mr. Mook, Mr. Baker perhaps can all certainly testify to that. Right?

MR. BERKOWITZ: I think that they certainly could, your Honor.

As I’ve noted, that the main redacted part of Elias’ declaration explaining why they hired Fusion for Russian-related research was introduced via a reference to Trump asking Russia to hack Hillary.

Because both sides have separate scope of testimony they’d like to elicit from Elias, he’ll be asked both sets when prosecutors call him.

I’m sure Elias has quite a lot he’d like to say about serving as General Counsel for a candidate whose opponent was soliciting help — and appears to have gotten it — from a hostile foreign country.

Friday is the three year anniversary of the Durham investigation. Tuesday, the likely day both sides will make opening arguments, marks the five year anniversary of the Mueller investigation.

And on that day, a jury will finally hear an argument about how reasonable it was to believe Donald Trump posed a threat to the United States after he asked Russia to help hack his opponent.

16 replies
  1. gmoke says:

    I wonder if that “at least one other democratic organization” which the Russians purportedly hacked was the Republican Party. As I recall, the news at the time said that both parties were hacked around the same time but, to my knowledge, nothing, zip, nada has been leaked from the Republican hack.

    Curious, that.

    • Silly but True says:

      Mueller confirmed it was RNC and RNC emails were leaked too on Pg. 41 of his report, Footnote 140:
      “…Additionally, DCLeaks released documents relating to [redacted], emails belonging to [redacted], and emails from 2015 relating to Republican Party employees (under the portfolio “The United States Republican Party”). “The United States Republican Party” portfolio contained approximately 300 emails from a variety of GOP members, PACs, campaigns, state parties…”

  2. jdmckay says:

    I think Durham should be prosecuted for a hate crime (seriously). This Sussman prosecution motivation fits motivation by *hate*, and AFAIC I can think of several criminal conducts as well.

    All the wasted time, all the wasted resources. Seems like almost everyone who “dances” with Trump operates from the same playbook.

    • bmaz says:

      Uh, no. It is not even remotely close to being a so called “hate crime”, not to mention prosecutors have absolute immunity.

  3. Riktol says:

    MR. DeFILIPPIS: The last category we had identified were a number of news articles about — again, on the face of — the headlines of the articles about — “Donald Trump’s ties to Russia,” I think, was the primary theme of the news articles.

    Is DeFilippis admitting that he only read the headlines, and not the articles themselves?
    I think you’ve said before that Durham and co likely believe the conspiracies they espouse, so could he be dismissing the contents out of hand, maybe because they don’t come from a partisan right-wing source like Fox or Breitbart?
    Or is this just rhetoric to put the defence on the defensive?

    Judge Christopher Cooper correctly noted that it would be unfair to send a bunch of articles back with the jury to read.

    It’s unfair to make a jury read?
    Then I looked up the US literacy rate, maybe that’s not such a terrible call.

    Tuesday, the likely day both sides will make opening arguments

    Does that mean they already have a jury chosen? I assumed jury selection would take a few days and you’d have some comments.

    • dp says:

      The concern with things going into the jury room is that they will be given inordinate weight due to accessibility and verifiability. Thus, while exhibits are generally allowed to go to the jury room, deposition transcripts, which are usually exhibits, are not, so that deposition witnesses’ testimony is not given more weight than that of witnesses who testified live.

      In the case of newspaper articles, they are generally hearsay, except that these are not offered for the truth of the matter asserted therein, but instead to explain the parties’ state of mind based on having read them. They should clearly be admissible for that, but the (legitimate) concern is that if they’re allowed to go into the jury room, they’ll be misused by the jury relying on the substance of the articles, despite a (presumably) limiting instruction both at the time of admission and in the final instructions.

      Hope that helps.

      • Riktol says:

        Thanks, when you say deposition transcripts, does that only apply to depositions conducted outside the trial? I’d assume that having a transcript of the trial proceedings could be helpful for a jury in a long trial.

    • bmaz says:

      Eh, no, there is no jury chosen yet. And it you want stuff considered admit it properly. This is exactly why I have been saying the only evidence that really counts is that which is properly admitted on the record to the jury.

  4. Justlp says:

    Couldn’t you use any other picture? That orange face gives me hives. Marc Elias has a nice face. :)

  5. Bay State Librul says:

    Dopey-O at 11:45PM

    Yeah, I’m sure this contested Sussmann trial will be “tighter than a new pair of shoes on a rainy day”
    Hope the jury sends Durham back to the minor league where he belongs.

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