Scene-Setter for the Sussmann Trial, Part Two: The Witnesses

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In this post, I laid out the elements of the offense, a single count of a false statement to the FBI, which will drive the outcome of the Michael Sussmann trial, in which jury selection begins today. As I showed, John Durham has to prove that:

  • Michael Sussmann said what Durham has accused him of saying, which is that he was not sharing information with the FBI on behalf of any client
  • Sussmann said that on September 19, not just September 18
  • Sussmann meant his statement to be understood to mean that no client of his had an interest in the data, as opposed to that he was not seeking any benefit for a client from the FBI
  • The lie made a difference in how the FBI operates

In this post I’d like to say a bit about the expected witnesses. Before I do, remember the scope of the trial, as laid out in several rulings from Judge Cooper.

  • Durham can only raise questions about the accuracy of the Alfa Bank anomaly if Sussmann does so first
  • He generally can only discuss how the data was collected via witnesses; with one exception, Cooper has ruled the emails between Rodney Joffe and researchers to be inadmissible in a trial about whether Sussmann lied
  • While Cooper found that 22 of 38 Fusion emails over which Democrats had claimed privilege were not privileged, he also ruled that because Andrew DeFilippis got cute in delaying his request for such a review, Durham can’t use those emails or pierce any related claims of privilege at trial
  • That leaves the unprivileged emails between Fusion and journalists, which Cooper has ruled admissible; he even considered changing his decision and letting a tweet from Hillary come in as evidence (though note that the emails Durham got pre-approved barely overlap with the emails Durham wants to use at trial, so there still could be problems admitting individual emails at trial)
  • Cooper ruled the communications between Rodney Joffe, the person who shared the DNS anomaly with Michael Sussmann, and Laura Seago, his connection with Fusion, were privileged
  • Cooper ruled that Sussmann can elicit testimony from witnesses, including Robby Mook and Marc Elias, about how Trump’s request that Russia hack Hillary some more made him not just a campaign opponent, but a threat to national security

As I noted, a dispute over the final jury instructions suggests that Durham is beating a tactical retreat from his charged claim that Sussmann lied to cover up that he was representing both Hillary and Rodney Joffe.

Mr. Sussmann proposes modifying the last sentence as follows, as indicated by underlining: Specifically, the Indictment alleges that, on or about September 19, 2016, Mr. Sussmann, did willfully and knowingly make a materially false, fictitious, and fraudulent statement or representation in a matter before the FBI, in violation of 18 U.S.C. § 1001(a)(2), namely, that Mr. Sussmann stated to the General Counsel of the FBI that he was not acting on behalf of any client in conveying particular allegations concerning Donald Trump, when, in fact, he was acting on behalf of specific clients, namely, Rodney Joffe and the Clinton Campaign.5 The government objects to the defense’s proposed modification since it will lead to confusion regarding charging in the conjunctive but only needing to prove in the disjunctive.

Durham wants to be able to get a guilty verdict if the jury decides that Sussmann was hiding Hillary but not hiding Joffe. What Durham will really need to prove won’t be finalized until sometime next week, meaning both sides will be arguing their cases without knowing whether Durham will have to prove that 1) the allegations pertained to Donald Trump personally 2) Sussmann had two clients 3) he lied to hide both of them, or whether he has to prove only that Sussmann lied to hide one or more client.

Durham’s tactical retreat is likely dictated by the scope set by Cooper and will dictate the witnesses he wants to call.

This post laid out whom, as of last week, each side planned to call. Remember that it’s not uncommon for a defendant not to put any witnesses on the stand (though I would be surprised if that happened in this case). Normally, the scope of a witness’ testimony is set by the Direct examination of them. So, for example, if Durham puts Marc Elias on the stand to talk exclusively about his decision to hire Fusion GPS, then Sussmann could not ask him questions about other topics. But Sussmann incorporated Durham’s entire witness list, and Cooper ruled that he would rather not have to call people twice. So for at least the Democratic witnesses, Sussmann will have the ability to ask about things that Durham would really prefer not to appear before the jury even though Durham called that witness as a government witness. Because Durham doesn’t understand much of what really went on here, that may be a really useful thing for Sussmann to exploit.

Summary Witness: It is typical for prosecutors to call one of their FBI agents at trial as a sort of omniscient narrator who can both introduce a vast swath of evidence (such as records the accuracy of which have been stipulated for emails that can be introduced without witness testimony) and provide some interpretation of what it all means. Usually, that agent is not the lead agent, because the lead agent knows things that the prosecutor wants to keep from the defendant and the public, either details of an ongoing investigation or major investigative fuck-ups that haven’t been formally disclosed to the defendant. As of last week, DeFilippis maintained that, “It may be an agent who’s our summary witness, but we’re not looking to put a case agent on the stand.” That suggests there is no agent on his team that is sufficiently compartmented from his secrets to take the stand. Judge Cooper seemed a bit surprised by that.

Jim Baker: Jim Baker is the single witness to Michael Sussmann’s alleged crime. Durham is going to have a challenge walking him through the version of this story Durham wants to tell, not least because the materiality parts of it — whether Baker thought it unusual to hear from Sussmann, whether he thought it mattered who Sussmann’s client was — are also recorded in Baker’s past sworn testimony. Given the late discovery of a text showing that Sussmann wrote Baker on September 18 telling him he wanted to benefit the FBI, and given the even later discovery of March 2017 notes recording that the FBI understood that Sussmann did have an (undisclosed) client, Sussmann doesn’t even have to trash Baker to call into question his memory: he can allow Baker to admit he can’t separate out what happened in which of at least five communications he had with Sussmann that week, the sum total of which show that Sussmann wasn’t hiding the existence of a client, did represent that he was trying to help the FBI, and did help the FBI. The cross-examination of Baker will, however, be an opportunity for Sussmann to implicate Durham’s investigative methods, both for building an entire case around Baker after concluding, years earlier, that he wasn’t credible, and then, for refreshing Baker’s memory only with the notes that said what Durham wanted Baker to say, and not what the FBI ultimately came to know.

Bill Priestap and Tisha Anderson, Mary McCord and Tasha Gauhar: This trial is expected to feature two sets of witnesses — the first set called by Durham and the second called by Sussmann — who will be asked to reconstruct from their own notes what was said in a meeting attended by Baker. Priestap and Anderson will say that the day of Baker’s meeting with Sussmann, they wrote down that Sussmann didn’t have a client (but not in the words Sussmann is known to have used or the words that Durham has charged). McCord and Gauhar will say that in March 2017, Andy McCabe stated, in front of Baker and with no correction, that the FBI did know Sussmann had a client. The only notes in question that use the same phrase — “on behalf of” — that Durham used in the indictment say that Sussmann did say he was meeting with FBI on behalf of someone. I expect at least several of these witnesses will be asked materiality questions: If they didn’t ask who the client is, doesn’t that prove it didn’t matter? The notes of everyone involved, importantly, emphasized the import of Sussmann sharing an imminent newspaper article. Sussmann will also ask Priestap how and why he asked the NYT to hold the Alfa Bank story.

Agents Heide, Sands, and Gaynor, plus Agent Martin: Durham plans to call three of the FBI Agents who investigated the anomaly — for a couple of hours each, in the case of Heide and Sands — to talk about how they did so. Let me suggest that not only is this overkill, it may backfire in spectacular fashion, because the March 2017 notes make it clear that these agents did not take very basic steps to chase this anomaly down and Heide, at least, is not a cyber agent (in the same period he was also investigating George Papadopoulos). In addition to having those hours and hours of testimony, Durham will call Agent Martin, ostensibly to explain what one could learn from the anomaly, though there’s still a fight about the scope of his testimony,  particularly with respect to misleading claims he would make about the scope of the data accessed to find the anomaly in the first place.

Antonakakis, Dagon, DeJong, and Novick: According to what DeFilippis said last week, in the wake of Cooper’s ruling excluding all but one of the researchers’ emails, he likely will not call David Dagon, may or may not call Manos Atonakakis, but will call two employees of Rodney Joffe whom, DeFilippis claims, were “tasked by” Joffe, in the first case to pull some but not all of the data researchers used to test the anomaly, and in the second case to do research that may not have been presented to the FBI. If these decisions hold, his presentation of the data will be, as I understand it, affirmatively false. For that reason, Sussmann might have been able to challenge Durham’s reliance on these witnesses in the absence of others; that Sussmann is not doing so may suggest he knows that the witnesses won’t do what Durham thinks they will. If Durham persists in this plan, it means he’ll have FBI agents spend 5 hours describing how they chased down an anomaly, without ever really explaining what the anomaly is (and how it could have easily been investigated using about two different steps that the FBI didn’t take). Perhaps (given his tactical retreat), Durham may want to eliminate virtually all discussion of the anomaly at the heart of this case. Alternately, this is a tactical move to force Sussmann to call David Dagon (whom Durham has immunized) or Manos Antonakakis (whose status is unknown) in hopes that they’ll help him make his YotaPhone case or explain the full scope of the data accessed (particularly if he gets Martin to make misleading comments about that topic first). But if Durham forgoes his chance to call the researchers and Sussmann does so himself, it may allow Sussmann to rebut Durham’s claims about what the anomaly was and what went into the two white papers presented to the FBI. In addition, Sussmann can have these witnesses explain how far before the involvement of the Democrats this research started and how Trump’s open invitation to Russia to do more hacking meant the anomaly posed a possible national security threat worthy of sharing with the FBI.

Robby Mook, Marc Elias, and Debbie Fine: Rather than talking about the anomaly, Durham wants to talk about the Hillary campaign. At least as of last week (before Cooper excluded some of this stuff on privilege and belated privilege challenges), Durham will definitely call Mook, may call Elias, but may rely instead on a Hillary lawyer named Debbie Fine, who was on daily calls with Fusion. Durham wants to claim,

[T]he strategy, as the Government will argue at trial, was to create news stories about this issue, about the Alfa-Bank issue; and second, it was to get law enforcement to investigate it; and perhaps third, your Honor, to get the press to report on the fact that law enforcement was investigating it.

Sussmann, by contrast, knows he has a witness or witnesses who will rebut that.

[I]t’s not the truth; and in fact, it’s the opposite of the truth. We expect there to be testimony from the campaign that, while they were interested in an article on this coming out, going to the FBI is something that was inconsistent with what they would have wanted before there was any press. And in fact, going to the FBI killed the press story, which was inconsistent with what the campaign would have wanted.

As suggested above, Elias is a witness Sussmann will call even if Durham does not. Among other things, Sussmann will have Elias explain what it was like to have Donald Trump openly asking Russia to hack Hillary some more.

Laura Seago: Before Cooper ruled on privilege issues, DeFilippis (who doesn’t know how to pronounce her last name) said he would call Seago. She was the pivot point between Fusion and Rodney Joffe. According to Fusion attorney Joshua Levy, Seago knows little about the white paper from Fusion that Sussmann shared with the FBI. “Seago didn’t contribute to it, doesn’t know who did, doesn’t know who researched it, doesn’t know who wrote it, doesn’t know its purpose; and the government’s aware of all that.” So it’s unclear how useful she’ll be as a witness.

Eric Lichtblau: As I noted the other day, Durham is trying to prevent Lichtblau from testifying unless he’s willing to testify to all his sources for the Alfa Bank story (which would include a bunch of experts never named in any charging documents). My guess is that Cooper will rule that forcing Lichtblau to talk about communications with Fusion would be cumulative, though he might force Lichtblau to talk about an in-person meeting he had at which Fusion shared information that did not derive from Joffe. If Sussmann succeeds in getting Lichtblau’s testimony, however, he will be able to talk about what a serious story this was and what a disastrous decision agreeing to hold the story was for his own career and, arguably, for democracy.

Perkins Coie billing person and McMahon: As Durham has repeatedly confessed, most of the substance of his conspiracy theory is based off billing records. But there’s a dispute about whether Sussmann fully billed his meeting with Baker (Sussmann has noted, for example, that he paid for his own taxi to and from the meeting). Durham will have a Perkins Coie person explain how they track billing and will call a former DNC person with whom Sussmann had lunch immediately before his Baker meeting, either because Sussmann said something to him about the Baker meeting, or because he needs to rule out that Sussmann billed for the lunch meeting but not Baker.

Agent Grasso: In addition to the hours and hours of testimony about how the FBI did investigate the anomaly, Durham also wants to call an Agent Grasso, with whom Joffe shared a piece of the Alfa Bank allegations directly. This may actually be an important witness for Durham, because it might show that the packaged up allegations shared with Baker were substantially different than what Joffe was sharing when his identity was not hidden.

Kevin P: Durham only plans to call one of the two CIA personnel at the meeting in January 2017 (ironically meaning a meeting in March 2017 will get far more focus than a meeting that played a central role in the indictment). It sounds like Sussmann will get the one person to validate an email from another person who also recorded Sussmann saying he had a client.

Agent Gessford: One FBI Agent Sussmann will call will authenticate emails Sussmann will use with other witnesses to show what FBI’s understanding of Sussmann’s activities were in 2016. Not only will he use these emails to prove that the FBI knew well he was representing Hillary on cyber issues, but he will likely also use these emails to talk about what it looks like for a campaign to be systematically attacked through the entirety of a campaign by a hostile nation-state, which will make the potential seriousness of the Alfa Bank anomaly quite clear.

Agent Giardina: This is someone the scope of whose testimony Durham may have actually tried to limit by calling him himself. Sussmann will have Giardina explain that after the Frank Foer article, he tried to open an investigation, which Sussmann will use to prove that the FBI would have opened an investigation whether or not he shared the tip with the FBI.

Jonathan Moffa: Moffa, a senior FBI agent involved in the Crossfire Hurricane and Alfa Bank investigations will address materiality. He’ll explain how, given the UNSUB investigation open to find out who in Trump’s camp got a heads up to the hack-and-leak investigation, it was inevitable they would chase down this tip and treat it, like the CH investigation itself, as a Full Investigation.

DOJ IG Michael Horowitz: On paper, Horowitz’s testimony will be limited to explaining how an anonymous tip from Joffe via Sussmann is supposed to work, which is that someone in a position to direct a tip to the right person does so and succeeds in addressing a national security concern. Joffe provided a tip to Horowitz in January 2017 that — we can assume given Horowitz’s testimony — proved to be valuable. This tip will also demonstrate that DNS research is not as limited as Agent Martin will claim it is. But given the way that Durham has failed to understand basic aspects of Horowitz’s investigation, including ones that disproved large swaths of Durham’s conspiracy theories, this testimony might be somewhat contentious.

Update, 5/22: Very belatedly added Moffa after writing this post.

47 replies
  1. Zirc says:

    It is interesting reading this post after reading Bmaz’s post this morning. I commented on an earlier post by you, Marcy, that I thought there was a lot of complication that didn’t belong in a trial of a man who is only accused of lying. Bmaz’s post confirmed my thoughts. But here you write of Durham’s intent to use hours of trial time talking about the Alfa Bank anomaly. As important as that anomaly may or may not have been in terms of national security, Sussman is not charged with lying about the anomaly itself, just of misrepresenting why he was telling the FBI about it. Going into detail about it seems pointless, and, as you say, “it may backfire.”


    • emptywheel says:

      Durham is introducing that here as part of a materiality claim. My posts are based off what a judge has admitted or says he will admit to trial. And my post that focused on the elements of the offense explained what they key evidence says organized under precisely the elements of the offense that will be litigated at trial.

      One cannot understand what Durham is doing without understanding both the benefits, to him, for making these conspiracy claims as well as they ways they expand his discovery obligations. And one reason I spend so much time writing this stuff is bc there’s a vacuum of pushback on the entire media economy treating Durham’s materiality claims as real charges backed by real evidence, both in the frothy right and among journalists paid to behave better.

        • emptywheel says:

          Durham, as I expect you know, is a metonymy for the investigative team in the same way Mueller is.

          That said, Durham willfully joined Billy Barr’s echo chamber and has not required that is prosecutors step out of it.

        • Silly but True says:

          It appears so; some DC news affiliate has vid of him exiting vehicle & entering court. I’ll try to track down link.

        • Silly but True says:

          Best I can do is today’s Washington Examiner headline: “Sussmann jury selected as Durham makes rare appearance”

          ht tps:/ /ww

        • bmaz says:

          PLEASE, if it is not Infowars or some totally bizarre horse manure, quit breaking links. If links should not be read by people here, simply don’t post them, quit making it take ten minutes to read the thing.

        • Rayne says:

          I’ve asked folks whose comments have been snagged in auto-mod to try breaking links as the links often cause the bottleneck.

          I don’t personally have a problem with breaking Washington Examiner’s links because 1) they’re part of the right-wing ecosphere, and 2) they don’t need our traffic deliberate or accidental.

          But for Silly but True, you could have simply offered the headline and the name of the source without a link in this case, not unlike citing “Fox News” and “headline text” because those of us who’ll bother to follow up can simply search for it. Were it an obscure study or a more credible, neutral outlet, a link might be preferred.

        • Rugger9 says:

          It would appear to me from the two scene setters that pretty much everything has to go well for Durham to prevail, since there wasn’t any smoking gun evidence. IANAL, but while circumstantial evidence can in its totality serve the purpose for Durham it seems to me that there are too many holes to exploit for Sussmann’s team.

          DeFilippis et al has shown a lack of attention to detail that will doom Durham’s plans here if it continues through trial. While Sussmann’s team has lost a couple of points with Judge Cooper, they have shown themselves to be much more savvy in their presentations. There are many examples but the witness list play to be able to force answers on direct questioning looks pretty smart.

          So, it will come to trial conduct and would you rather have non-detailed DeFilippis / Durham or Sussmann’s team on your side?

        • bmaz says:

          Guess I am old fashioned. But if you are lead mustache, stand and argue. It is your case, make it.

  2. Ben Soares says:

    Does anyone know who has the data that was analyzed concerning the anomaly ! I seem to remember folks saying the data was inconclusive. Seems to me like a strange hill for Durham to fight on. It seems to me if a citizen stumbled in on a conversation about odd communications of a Presidential Campaign (in Trimp tower ? ) server having odd communications with odd data sources , and those folks were computer scientists regardless who he or she is a fiduciary to or with you might be feel patriotically inclined to tell the FBI? Even if you worked for Trimp. It’s like Mueller left a splayed carcass on an operation table and Durham is studying a mosquito bite on it. Strange.

    • FL Resister says:

      “It’s like Mueller left a splayed carcass on an operation table and Durham is studying a mosquito bite on it. Strange.”

      Yes, Durham might as well be examining either the mosquito on the splayed carcass produced by the exhaustive Mueller Report, or Durham is still looking for the big-eyed fly spotted spying on Pence’s head.
      Maybe Durham’s been smoking cigars with Rudy at some cush lunch club and knocking back a couple before showing up at the office before everybody goes home.

    • Phil A says:

      “been approached by prominent cyber people…”

      If people who are knowledgeable about the technical issues came to him with concerns then who gives a f*ck if he was being paid by the Clinton campaign at the time? Just put those people on the stand and if they agree they went to Sussmann with concerns then he was doing his job as a citizen and should be thanked.

      Unless someone takes the stand and says “yeah, we knew there was nothing there but wanted to use a FBI investigation to slander the Trump campaign so we sent him to lie” there is no way anyone will find him guilty beyond a reasonable doubt.

      When does the DOJ send a special prosecutor against Durham for wasting FBI resources on an attempt to slander Sussmann (and by extension exonerating Trump and “prosecuting” Hillary)?

  3. Chuck says:

    Marcy this is an exquisitely detailed and elegantly written post.

    I’d like to see a not guilty verdict here; I trust that you do too. (I don’t require your answer on that; feel free to say so directly if you wish.)

    But you and I haven’t always been on the same side. When Scooter Libby was being tried, I regarded the prosecution in the same dubious terms as you now describe in relation to Durham. I never believed that Libby could or should have been found guilty. (I am basically a Liz Cheney Republican.)

    Do you not see parallels?

    [Welcome to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Chuck” or “Charles.” Thanks. /~Rayne]

    • emptywheel says:

      I was thinking about that recently.

      And I do think it is qualitatively different. Even assuming everyone accused of lying in both cases lied (the case against Libby involved grand jury testimony and far better documentation), there it was a case of the top leaders of the country lying to hide an ugly smear campaign, here it’d be an instance of a private citizen lying about a candidate who was also lying (albeit not yet to the FBI).

      And there there was very good evidence that those who lied did so either because they had real concern about an actual crime or even more significant improprieties, whereas here, there’s no underlying crime.

      There, there was the underlying pressure of lying to get into the Iraq War. Here? Lying about investigating which of Trump’s very real ties to Russia were real.

      Though I’m happy to hear your counterargument.

        • emptywheel says:

          Well, let’s see.

          Rivkin apparently doesn’t know how covert works.
          Libby had seen a document in which Plame had used a cryptonym, which would have made it clear to him she was covert.
          Libby had undisclosed communications with Novak that week.
          So did Cheney.
          Fitzgerald identified evidence early on that Libby was lying (see aforementioned undisclosed communications, among other things).
          Both Woodward and Novak knew to ASK Armitage about Wilson, not a logical question given the record.
          Woodward had also spoken with Cheney before asking Armitage abt Wilson.
          The media room was rife with jokes about how inconsistent the terms the journalist witnesses were using, and several of the journalists, like Russert, had broken every standard of journalistic ethics.
          The NYT disclosed that Libby was [one of] Judy’s sources shortly after Miller was subpoenaed.
          There’s a reason why Bush, whose orders Libby was also lying to cover up, didn’t pardon him.
          Did you really link a column that says the investigation was more of a problem than the lies that started the Iraq War?

          Do you want to link something that is marginally familiar with the actual record? Or perhaps consider whether you’re the one who should rethink?

  4. stacy says:

    Marcy, you are much too kind to “Chuck”. Libby was obviously guilty of multiple, material lies to the GJ in a matter of national security, and the jury so found. I was a litigator for 43 years, and have never seen a more thread-bare federal prosecution than the Sussman case. Federal prosecutors are ethically obliged not to charge crimes without a good-faith belief that they will prove it beyond a reasonable doubt. Durham cannot possibly be naïve enough to believe that here.
    Keep up the fabulous work!

    [Welcome to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Stacy” or “Stacey.” Thanks. /~Rayne]

    • emptywheel says:

      I think Durham DID believe it!!

      But he’s buried so deep in an echo chamber, he really doesn’t understand many of the topics he’s engaged in. It’s like when he wanted to suggest the only reason April Lorenzen would research people close to Trump laundering money through Cyprus from Putin-linked oligarchs as if Paul Manafort doesn’t exist.

      • Peterr says:

        The thing is, Durham is surrounded by other lawyers who have the same obligations.

        And suddenly, Nora Donnehy comes to mind. From the Hartford Courant in September 2020:

        Nora Dannehy, Connecticut prosecutor who was top aide to John Durham’s Trump-Russia investigation, resigns amid concern about pressure from Attorney General William Barr
        By Edmund H. Mahony

        Federal prosecutor Nora Dannehy, a top aide to U.S. Attorney John H. Durham in his Russia investigation, has quietly resigned — at least partly out of concern that the investigative team is being pressed for political reasons to produce a report before its work is done, colleagues said.


        Dannehy is a career prosecutor who worked closely with Durham before leaving the U.S. Attorney’s office about a decade ago for a corporate position in the defense industry. Durham persuaded her to return to the justice department and, within weeks, join his team in Washington in the spring of 2019.

        Colleagues said Dannehy is not a supporter of President Trump and has been concerned in recent weeks by what she believed was pressure from Barr, who appointed Durham, to produce results before the election. They said she has been considering resigning for weeks, conflicted by loyalty to Durham and concern about politics.

        How many other lawyers have quietly left Durham’s team, leaving only the True Believers around Durham?

        • Silly but True says:

          This take increases Durham’s credibility because Dannehy is credible: she valued him and was concerned Barr would force Durham to wrap things up for the election.

          And no October surprise report was rushed into release, the opposite of Dannehy’s concern actually played out.

          Dannehy should have specified which election Durham would drop the report. 2020? 2024? 2032?

        • emptywheel says:

          After she resigned Jeffrey Jensen interviewed some of the same witnesses and released a transcript from an FBI agent that made claims that conflicted in significant ways with his own conduct and redacted the most important details.

          There was a report, of sorts. Just not released by Durham.

      • Stacy (Male!) says:

        I have to bear in mind that GOP operatives can be equal parts zealots and hacks without even noticing it. Barr and Durham seem to believe sincerely that Mueller’s investigation was a complete fabrication, while professing as truth any innuendo that might be elicited from the dubious (and skimpy) record against Sussman. In contrast, I wanted Clinton to escape impeachment, but it never occurred to me that he didn’t get serviced under the desk.

  5. c says:

    Another great article. However, it excludes the most important witness, Sussmann.

    Last night, in a comment to a different article, I asked whether this case is all but over if Baker testifies that he is unable to recall whether Sussmann specifically said “not on behalf of a client” and if Sussmann had actually said those words, whether Baker admits he could have inaccurately filed that in his memory as Sussmann saying “not representing a client.” I think if Baker admits he may have a faulty memory (or that he may have confused the prior day’s email or other conversations with statement attributed to Sussmann at the meeting), then Sussmann would not need to testify.

  6. Cosmo Le Cat says:

    Another great article. However, it omits the most important witness, Sussmann.

    Is this case all but over if Baker testifies that he is unable to recall whether Sussmann specifically said “not on behalf of a client” and if Sussmann had actually said those words, whether Baker admits he could have inaccurately filed that in his memory as Sussmann saying “not representing a client.”

    I think if Baker admits he may have a faulty memory (or that he may have confused the prior day’s email or other conversations with the statement attributed to Sussmann at the meeting), then Sussmann will not testify.

  7. TimB says:

    Super interesting, as always.

    The Durham team faces a very difficult tradeoff. They can go for a conviction, which might also be their biggest PR score. Or they can continue to throw red meat to the frothers. If they had made a cold, hard decision on that months ago, they would not appear to be so confused about the weaknesses of their conspiracy theory. At least their apparent confusion would not be all over Court documents.

    Some attorneys are able to make those cold hard decisions on the eve of trial after months of chaos. I have watched many of them from inside the trial-prep process. If Mr. DeFilippis is one of those, he will trim, trim, trim, fight off the boss, trim … and maybe win. If either he can’t find the focus or can’t fight off the boss, he’ll be saddled with trying to prove a whole lot of things that aren’t true or aren’t relevant to the charged offense or both.

    Glad to have such a wonderful prep to watch that process as we find in these posts.

    • Dmbeaster says:

      This assumes that the Durham crowd actually senses this distinction. All of the evidence is that they buy into the frothy conspiracy theory, and see this trial as a proxy to prove it. It’s why the indictment is a 27 page press release. The actual narrow charge gets lost in all of their own noise. It explains why they have made a lot of factual mistakes – they are not fact based to begin with.

      • Phil A says:

        They are doing what they are accusing Sussmann of doing: Slander through innuendo based on a lie.

        Time to investigate Durham. Put him under oath and ask him if his client is Donald Trump.

  8. PeterS says:

    I’ve no idea exactly what was said at that meeting all those years ago and it’s not clear that anyone else does either. It seems at least plausible that Mr Sussmann tried to convey that he personally thought the information was important, and he wasn’t sitting there on behalf of any particular client. And perhaps Baker misunderstood what he meant (despite knowing lawyers really do tend to have clients). It’s also at least plausible that the alleged deception changed little about how the information was treated. Reasonable doubt, shirley.

    • Thomas says:

      Something about this story that nags at me is this:
      The techs stand by their asessments to this day, and though the FBI *claims* to have “debunked” it,

      We have no FBI expert who is standing up and saying “I’m the expert tech who debunked the claim that there was a DNS lookup link between Trump Tower and Alfa Bank while Trump was asking Russia to hack Hillary”

      We just hear “FBI debunked the claim”
      They don’t say HOW they debunked it or WHO debunked it.
      The FBI doesn’t tell us what their explanation for the data is.
      They just get away with “We looked at that and debunked it”
      Not very convincing

  9. Silly but True says:

    A fact that fascinates me about the witnesses, proving money is no object wrt the U.S., is that 10, count them, ten — _TEN_ different FBI officials are going to testify in this trial, plus a CIA agent for good measure, but just one of them was even privy to the alleged crime.

    Who gets to pay for their man-hours testifying? Neither Durham or Sussmann.

    • harpie says:

      CS: 10:26 AM

      A key factual/interpretive thing comes into view: Shaw said Sussmann went to FBI bc frustrated NYT was delaying the story – to sex it up and create urgency. Bosworth says Sussmann believed story’s publication was imminent when went to FBI – to give heads up of what was coming./16

      10:29 AM · May 17, 2022

      This is why Durham is so desperate to keep Lichtblau off the stand.

      Durham’s story is inconsistent with what I’ve heard of what happened at NYT.

  10. Thomas says:

    “[Durham] needs to rule out that Sussmann billed for the lunch meeting but not Baker.”

    I didn’t know that there was billable time for Hillary’s campaign immediately before the meeting with Baker, but if there is, then isn’t this “case dismissed” right there?

    And maybe, prosecutorial misconduct? Is it ok to concoct a prosecution against someone based upon such basic misdirection and fraud?

  11. Silly but True says:

    Sussmann’s lawyers can’t have known Joffe was sacked as FBI confidential informant, because otherwise they wouldn’t have tried to hype that he was in cross-examining Martin.

    This epiphany probably increases risk for Joffe and Antonakakis; Dagon was smart to be first to get immunity.

    This fireable conduct will be part of a hammer of government contract fraud conspiracy against Joffe’s team.

    • Jesse J says:

      Except that according to testimony admitted by the prosecution, he did go through the proper channels so the firing was completely without merit.

  12. pdaly says:

    Thanks for the live tweet links, harpie.

    Charlie Savage’s tweets 36 and 37 caught my attention.
    Reading between the lines, the prosecution was coaching FBI agent Hellman what to misremember, that DNC was just a typo for ‘DNS’ and not DNC?

    “Berkowitz [Sussman’s lawyer] brings up Sept 21, 2016, text message to Hellman from his supervisor saying they had been asked to write up a summary of their analysis of the DNC report, suggesting contemporaneous knowledge it had a Dem source. Hellman disclaims memory of seeing that in realtime./36”

    “Berkowitz gets Hellman to say that DeFilippis recently suggested to him that “DNC report” was maybe just a typo for “DNS report.” Hellman doesn’t think it’s likely he just missed at the time that there was knowledge it was DNC. /37″

  13. x174 says:

    In re: stacy at 11:42: “[I] have never seen a more thread-bare federal prosecution than the Sussman case”; was wondering what were the relevant statutes and possible consequences if a prosecutor were found to have engaged in a bad faith prosecution? durham seems to me like the poster child of a malicious prosecutor.
    what i find funny about this case is how the Alfa Bank will be casting a shadow over the proceedings though not be part of it–unless durham could somehow find a way to broaden his “thread-bare federal prosecution.”
    ew–thanks again for staying on top of this noxious case. rethugs never do know when to leave.

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