To Celebrate Its Third Birthday, the Durham Investigation Will Attempt to Breach Eric Lichtblau’s Reporter’s Privilege

Happy Birthday to Johnny D and his merry band of prosecutors! Today marks your third birthday! Quite a milestone for an investigation that has just one conviction — a gift wrapped up with a bow from Michael Horowitz — to show for those three years.

John Durham, however, had something much more ambitious planned to mark the milestone, it appears.

As Sean Berkowitz noted earlier this week, Sussmann’s team wants to call Eric Lichtblau as a witness in next week’s trial. They were able to get Lichtblau to agree to testify based on the understanding he would only testify about conversations with Michael Sussmann and Rodney Joffe. But Durham’s team — I guess to assert the newfound brattiness of a three-year-old — refused to limit their cross-examination to those who had waived confidentiality.

There is an issue here that I want to alert you to. We reached out to Mr. Lichtblau’s counsel, actually counsel for The New York Times, to explore their willingness in light of the First Amendment issues to testify at the trial. And we told him that both Mr. Sussmann and Mr. Joffe would waive any privilege associated with the press privilege; and that gave The New York Times comfort that, notwithstanding their normal policy of objecting, they would allow him to testify about his interactions with

Mr. Sussmann and Mr. Joffe, communications between the two as well as communications with the FBI that wouldn’t be protected by privilege because the FBI reached out to them to ask them to hold the story.

They did tell us that they would object to questioning Mr. Lichtblau about independent research he did in support of the story, you know, people he spoke with to verify sources and other types of things that were not communicated to Mr. Sussmann.

We told him from our perspective that seemed like a fair line to draw, and we would not get into that.

He’s reached out to the Government on that issue, and it appears there may be — again, I don’t want to speak for the Government — but it appears that they may not be in a position today to give The New York Times that assurance. And so we expect The New York Times sometime this week will be filing a motion on that issue to tee it up for your Honor.

I know you’re welcoming all this additional paper.

THE COURT: One more intervenor in the mix.

MR. BERKOWITZ: “All the news that’s fit to print.”

As a motion submitted by Lichtblau yesterday and a declaration from his lawyer Chad Bowman lays out, after Sussmann and Rodney Joffe waived their confidentiality with Lichtblau by April 21, Durham then took eleven days to consider whether they were willing to limit Lichtblau’s testimony to his conversations with the two of them. Predictably, Andrew DeFilippis was not.

On April 21, 2022, I spoke by telephone with Andrew DeFilippis in the Special Counsel’s Office, as well as several of his colleagues. I asked whether the prosecution similarly would be willing to limit examination to direct communications between Mr. Sussmann and Mr. Lichtblau, a journalist, particularly given the Department of Justice’s new policy restricting the use of compulsory process to obtain information from reporters, as memorialized in the Office of the Attorney General’s July 21, 2021 Memorandum, a true and correct copy of which is attached as Exhibit B and which is also available online at at https://www.justice.gov/ag/page/file/1413001/download. Mr. DeFilippis stated that the prosecution needed time to consider the request.

On May 2, 2022, during a follow-up telephone call, Mr. DeFilippis stated that the prosecution was unable to give “any assurance” that their cross-examination questioning of Mr. Lichtblau would be confined to his discussions with Mr. Sussmann. In particular, Mr. DeFilippis stated that certain of Mr. Lichtblau’s email communications with third parties were within the prosecutions possession, and that the prosecution might want to examine Mr. Lichtblau about other, unknown aspects of his reporting. He also indicated a view that any reporter’s privilege would be pierced by a trial subpoena.

This is, by all appearances, a naked attempt to keep a very devastating witness off the stand. There’s no way, even under prior guidelines, Durham would have been able to get Lichtblau’s testimony; particularly given that they’ve got the communications in question, they couldn’t show a need to get his testimony.

That’s all the more true given Merrick Garland’s prohibition on requiring testimony from reporters.

But Lichtblau’s testimony is pretty critical for Sussmann, not least because he’ll make it clear he reached out to Sussmann and that the interest in reporting on Russian hacking was in no way tied to animus towards Trump. Plus, he would explain what an impact that acceding to the request from FBI to hold the story was for his career.

Durham has long tried to hide that after the FBI requested, Sussmann and Joffe acceded to help kill the story. It kills his conspiracy theory. It corroborates Sussmann’s stated motivation for sharing the DNS anomaly, that he was trying to help the FBI. Particularly given that both Sussmann and Joffe have Fifth Amendment reasons not to want to testify, Lichtblau would provide a way to get the full extent of that process into the trial.

But Durham wants to prevent it from coming into evidence unless Lichtblau is willing to pay a needless price for doing so.

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27 replies
  1. LuckyCat says:

    Happy Birthday Durham Probe! I guess I share a birthday with a hacky investigation. Hooray!

  2. BobCon says:

    I am awfully curious how the NY Times will deal with the issue. They’ve never wanted to account for the “No Clear Link to Russia” article.

    I can see three ways they can compound their massive screwup. One is they will ignore the importance of the request to hold off on publishing to Sussman’s defense.

    Another is put the focus on the fact that they ignored the FBI’s request to hold off on publication and went ahead and confirmed the existence of the FBI as some kind of journalism morality play, which conveniently memory holes all of the times they shelve reporting.

    The most cynical take would be to recommit to the bogus premise of the “No Clear Link” article and attack Sussman’s defense on this point by claiming there really were no grounds for going to the FBI. They may claim that he must have been partisan because they don’t want to expose how badly Times editors injected their biases into that article, or how it all really came about.

  3. OldTulsaDude says:

    What prevents Lichtblau from testifying but if asked a question outside of what NYT was willing to agree to just tell them to DeFilippis off? Would he be held in contempt? Is there any precedent for this type of refusal to limit questions as a type of Brady violation?

    • Riktol says:

      I’d attempt to plead the 5th to anything else, citing Durham’s broad scope, and his comments to Joffe about the statute of limitations. I’m not a lawyer so I don’t know if that would fly with the judge.

  4. DAT says:

    EW,
    When you mentioned this anniversary in your tweets, you suggested they get a bouncy castle to mark it, and asked for other celebratory suggestions. As a grandpa with 4 grandkids within one year of their third birthdays, I feel qualified to speak! My addition is a face painter. Once all the guest’s faces are done, the face painter can touch up any documents that don’t have the date most useful to the Special Counsel’s case.
    DAT

  5. Bay State Librul says:

    “The time will come when our successors wonder how we could have been ignorant of a thing so obvious.”
    —Seneca

    I hope the time comes next week, when “Jokerman” John Durham three-year quest falls apart.
    I’m not optimistic though, Durham and his gang will be on full alert, body-swerving to ham string the jurors.
    Will there be courtroom highlights?

  6. Random Commenter says:

    So is this trial really happening? Was sure Durham would try to delay it. If so I really want to go down to DC and get a good seat so I can give my former friend Mr. DeFilippis the stink eye the entire time.

    • bmaz says:

      I have considered going, but can’t. If you can, please do I will make sure it is related here.

    • joel fisher says:

      I agree about the delay, but Durham won’t appeal until the Judge has made his last pre-trial ruling. If so, look for a busy weekend.

    • emptywheel says:

      It is. Opening arguments are probably Tuesday. Unless I misread the media order, there will be an overflow courtroom.

      • Bay State Librul says:

        Yes. The Washington Times and all the right-wing jerkoffs have center-court seats.
        They will ignore the flub ups and go for the kill.

        • Random Commenter says:

          Do they? From the order it looks like two rows are reserved for public and media and it’s first come first serve.

    • rosalind says:

      i’m happy to bequeath you my official EW “Roving Reporter” press pass!*

      *not a real press pass, but a title bestowed upon me by the front pagers when i’ve covered various stories for the blog over the years. be great to have another wheelie stepping up!

      • bmaz says:

        I will be extremely happy to recognize another Roving Reporter. You will always be the first.

  7. EdwardB says:

    I am curious about the statute of limitations. Durham’s brief was to investigate the origins of the investigation into ties between the Trump campaign and Russia, as I understand it. Next Tuesday is the 5 year anniversary of Mueller’s appointment. It seems safe to say, most of the purportedly unlawful activity would have occurred 5 years ago, or more. Absent (a literal) conspiracy theory (the evidence for which he does not, apparently, have) can Durham toll the statute in some other way?

    • Tom R. says:

      1) Durham’s remit is not limited to the genesis of the Mueller investigation. As I read it, it covers the entirety of the Mueller investigation, start to finish, and is not even limited to that.

      The Special Counsel is authorized to investigate whether any federal official, employee, or any other person or entity violated the law in connection with the intelligence, counter-intelligence, or law-enforcement activities directed at the 2016 presidential campaigns, individuals associated with those campaigns, and individuals associated with the administration of President Donald J. Trump, including but not limited to Crossfire Hurricane and the investigation of Special Counsel Robert S. Mueller, III

      2) Yes, Tuesday the 17th is the five-year anniversary of Mueller’s appointment … but I’m not holding my breath waiting for Durham to stand down.

  8. Silly but True says:

    They can get creative with the “joint venture” associated to federal contract fraud or stretch whatever they view as any downstream or ongoing joint venture activities; “conspiracy against the US” can be viewed by enterprising prosecutors as liquid, filling and shaping to whatever vessel they have available even including acts which aren’t otherwise illegal on their own.

    They may upload Durham’s consciousness into an Alfa Bank neural net server so he can investigate Mueller predication well into the 22nd century.

  9. Hoping4Better_Times says:

    Went back to look at the law applying to a special counsel-

    § 600.7 Conduct and accountability
    (d) The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.

  10. JR in WV says:

    In the reasons for removal, “The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.”

    Does this mean that putting Eric Lichtblau on the stand, and asking a question outside of the limits Lichtblau attempted to put in place would violate Departmental policies? And potentially lead to the Special Counsel office being shut down? Happy daze!!!

    • Anathema Device says:

      “lead to the Special Counsel office being shut down”

      Not gonna happen, especially now. Garland has given Durham a nice long bit of rope, so it would be a shame not to let him play with it and maybe come to a sticky end all on his own account.

  11. x174 says:

    durham’s ever diminishing catch reminds me of “Vlad the Miscalculator”‘s ever-abating, schizofascist conquest; though on a vastly reduced scale

    • Jared Shoemaker Jr says:

      Don’t you mean cut rate vlad the impaler? Or discount wannabe vlad the impaler?

  12. Tom says:

    The Durham Investigation is now older by a year than the “very old Cheddar” at my local Fine Foods Store. And it probably smells about the same, too.

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