With a Much-Anticipated Fusion GPS Witness, Andrew DeFilippis Bangs the Table

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Andrew DeFilippis has done several arguably unethical things in an attempt to win the Michael Sussmann trial.

He repeatedly attempted to get Marc Elias to repeat something Elias shouldn’t have said in the first place: that the only way to understand whether Sussmann had gone to the FBI to benefit the Hillary campaign would be to ask him (in response to which stunt Sussmann is asking for a mistrial).

DeFilippis also set up a ploy to get a non-expert to offer opinions that only an expert should offer (more on that later).

At times (such as during Neustar employee Steve DeJong’s testimony), DeFilippis seemed more focused on eliciting testimony that might help him make a case against Rodney Joffe than obtain a guilty verdict against Sussmann.

And in direct examination yesterday of Fusion’s Laura Seago (my reading of the transcript is here), he did both, violating Judge Cooper’s orders in an attempt to set up his ongoing investigation in a way that did nothing to help him win the trial against Sussmann.

For all the anticipation for it, Seago’s testimony was not all that helpful to Durham’s team. She described having about as much awareness of which Democratic entity Fusion’s ultimately client was as the FBI did on Carter Page’s FISA applications. She indicated that the Alfa Bank allegations were just one of a whole bunch of possible ties to Russia that Trump had. She described how, to the extent Fusion could assess the Alfa Bank allegations, they found them credible. In discussing Fusion’s pitch to Franklin Foer on the Alfa Bank story, she described the other major data scientists who had backed the Alfa Bank allegations, identities that Durham has always suppressed because they kill his conspiracy theory.

Q. And what was discussed? What did you say, and what did they say?

A. I really don’t remember the specifics six years on. We talked about the allegations between the Trump organization and Alfa-Bank. We talked about highly credible computer scientists who seemed to think that these allegations were credible.

Q. And by that, are you referring to Mr. Joffe or somebody else?

A. There were others that ended up being cited in Mr. Foer’s article. He cited L. Jean Camp and Paul Vixie, who invented the DNS system.

During cross-examination by Sussmann lawyer Sean Berkowitz, Seago made it clear she didn’t tell Foer about the FBI investigation into these matters.

Q. And with respect to your meeting with Mr. Foer, did you tell Mr. Foer that the FBI was investigating these allegations?

A. No. I had no knowledge of that investigation.

Q. So before your meeting with Franklin Foer, did you have any information that the FBI was involved in any way?

A. No.

Q. All right. Did Mr. Fritsch or anyone else at the meeting say, “The FBI is looking into this”?

A. Not that I can remember.

Also on cross, Seago described that her impression from having dealt with Joffe is that he really did believe the allegations too.

Q. And your impression of Mr. Joffe that was made at that meeting was that he was — he seemed reliable?

A. Yes.

Q. And he seemed well-placed to have knowledge and information about the server issues?

A. Yes, he did.

Q. And you understood that Mr. Joffe supported the suggestion that there was at least potential contact between Trump servers and Alfa-Bank servers?

A. Yes, I did.

MR. DeFILIPPIS: Objection, Your Honor.

THE COURT: Overruled.

Q. You answered the question?

A. Yes, I did understand that.

But it was in DeFilippis’ treatment of emails that Judge Cooper granted Durham’s team access to, but did not permit them to use at trial, where he got particularly obnoxious. Remember: while Durham’s team maintained from the start that the privilege claims behind these emails were not proper (because they were largely about communicating with the press, not about providing research assistance to the Democrats), the reason they didn’t get access to them was their own incompetence. They didn’t ask for a privilege review until right before trial.

DeFilippis has no one to blame but himself, but in true right wing fashion, he’s lashing out.

Perhaps in an attempt to make some drama out of documents that Cooper described “not very revelatory,” DeFilippis walked Seago through all the ones she was privy to, including those with Joffe that Cooper ruled were privileged.

Generally, such exchanges went something like this:

Q. Ms. Seago, does this appear to be part of the same chain as the prior email exchanges?

A. It has the same “Subject” line and says “Re,” so that is what it appears to be. I have no independent recollection of this email.

Q. And what, if any, connection in your mind did the Alfa Bank issue have to New York? I ask because “New York” is in the “Subject” line. Any sense?

A. I don’t know.

Q. And the attachment on this email, any sense of what that was?

A. I don’t know.

Note: there’s no reason to believe Seago has reviewed these emails recently.

That was all setup for DeFilippis’ last set of questions:

Q. Did you ever receive instructions that you couldn’t disclose your affiliation with Fusion GPS to the media?

A. No. I don’t remember hiding that affiliation from the media ever.

Q. Do you ever remember hiding or considering hiding that affiliation from anyone?

A. No.

Q. How certain are you of that?

A. I’m quite certain. You know, we don’t go around advertising who we are and where we work, but I certainly don’t lie to people, and I don’t lie to the press about where I work.

Q. Okay. So you’re fairly certain you never sought to conceal that?

A. Not that I can recall.

Immediately after Seago left the stand, DeFilippis asked for a bench conference (the DC Court adopted phones for the purpose during COVID and all the judges love them, so they’re keeping them). Seago’s answer to the question, DeFilippis noted, was inconsistent with the content of the email, which referenced Tea Leaves.

MR. DeFILIPPIS: Your Honor, could we speak to you on the phone?

THE COURT: Excuse me?

MR. DeFILIPPIS: Could we speak to you on the phone?

THE COURT: Yes. (The following is a bench conference outside the hearing of the jury)

MR. DeFILIPPIS: Your Honor, can you hear me now?


MR. DeFILIPPIS: So we have an issue with regard to Ms. Seago’s testimony. The government followed carefully Your Honor’s order with regard to the Fusion emails that were determined not to be privileged but that the government had moved on.

As Your Honor may recall, there was an email in there in which Ms. Seago talks very explicitly about seeking to approach someone associated with the Alfa-Bank matter and concealing her affiliation with Fusion in the email. When we asked her broadly whether she ever did that, she definitively said no when I, you know, revisited it with her. So it raises the prospect that she may be giving false testimony.

And so we were — you know, I considered trying to refresh her with that, but I didn’t understand that to be in line with Your Honor’s ruling. So the government is — we’d like to consider whether we should be — we’d like Your Honor to consider whether we should be able to at least recall her and refresh her with that document?

THE COURT: I don’t remember that question, but the subject matter was concealing Fusion or her identities in conversations with the press. If I recall correctly, that email related to “tea leaves,” correct?

MR. DeFILIPPIS: Your Honor, I thought I had phrased it more broadly. We can go to the transcript.

THE COURT: Mr. Berkowitz?

MR. BERKOWITZ: Judge, I’m not familiar with the specifics. I’m happy to take a look at the transcript. I certainly got the impression he was asking if she had ever concealed Fusion as an entity from the press. That was what was asked in her deposition, and she answered the same way in her deposition. One thing, just to note, some of our paralegals can hear Mr. DeFilippis talking, so I suggest, just as a reminder, to keep your voices down.

MR. DeFILIPPIS: Sure, sure.

THE COURT: All right. Let me look at the transcript.


THE COURT: Can you hear me?

MR. DeFILIPPIS: Yes, Your Honor.

THE COURT: All right. Looking at the transcript, I think you did ask a more open-ended question. She said, “I don’t remember hiding that affiliation from the media ever.” And then you followed up, “Do you ever remember hiding or considering hiding that affiliation from anyone?” And she answered, “No.” I would — so I think that she — I think the email is inconsistent with her answer, Mr. Berkowitz. But the question now is whether they can refresh her with that email notwithstanding the Court’s order. And now she’s gone.

How are we going to do that even if we were to allow it? Is it worth the candle of calling her back?

MR. DeFILIPPIS: Your Honor, I understand she’s still in the building.

MR. BERKOWITZ: Your Honor, is this email privileged?

MR. DeFILIPPIS: This was one of the emails that was determined not to be privileged by Your Honor.

MR. BERKOWITZ: So why didn’t they impeach her with it when they had the chance?

MR. DeFILIPPIS: Your Honor, the reason is because I didn’t want to violate Your Honor’s order that we couldn’t use those affirmatively.

THE COURT: Well, I think the time to have asked the Court whether using the document to refresh was consistent with the order was before she was tendered and dismissed. So I think you waived your opportunity. All right? So we’re going to move on.

Frankly, I think using the formerly privileged emails to impeach was beyond the scope of Cooper’s order, too. This was an affirmative use of the email!

But this was nothing more than a perjury trap, and with it an attempt to get the content of the email DeFilippis had been prohibited from using before the jury. Cooper didn’t allow it in, though he shouldn’t have allowed that line of questions in either (had such questions been permitted, then Seago should have been permitted to refresh her own memory of them).

Probably, DeFilippis will consider charging her with perjury over this. I think the fact that both Judge Cooper and Berkowitz had the impression that the question pertained solely to outreach to the press, Seago’s reiteration that, “I don’t lie to the press about where I work,” reinforcing that understanding, plus her last minute caveat, “Not that I can recall,” would make such a case as flimsy as this one. Probably, DeFilippis will use this exchange as part of his bid to get access to some subset of the 1,500 other not very revelatory emails that Democrats have claimed privilege over.

But this was a stunt. It wasn’t about getting, or sharing, the truth with the jury (and any scenario in which I can imagine Seago trying to hide her identity with Tea Leaves would suggest a more distant relationship than even I imagined Fusion had, though I would love to know what it was).

When a prosecutor engages in as many stunts as DeFilippis has, it’s a confession he knows the facts are not on his side.

28 replies
  1. Eureka says:

    I encourage others to read Sussman’s linked motion so that you, too, may be shocked aloud, “Wow. Wow. WOW” by the particulars of DeFilippis’ rights-violating antics (which technically constitute a quadruple-down). It’s the proper apéritif for the other instances of trickery EW reports.

    • Eureka says:

      Also, we have to consider that irony’s not dead after all (still a smidge left!) when those who can proverbially sleep at night for doing what’s right to defend our democracy probably get the least.

      • bmaz says:

        Elias may or may not know better, but he would have nothing to do with a potential mistrial, and the court is beyond unlikely to grant one to the only party that does, Sussman.

    • Artemis says:

      Emptywheel has not posted links to the transcripts. She has been posting snippets with her corresponding analyses. In a response to your comment on another post, I actually shared a link to the transcripts from a different source. Here it is again. You can find all the transcripts at the below link, which is also updated daily with the transcripts from the prior day.

      The transcripts are located in the attachments next to each day of the trial.


      • greenbird says:

        cool site, can def add to arsenal.
        i may explore internet archive more, too.
        really appreciate your efforts. totally new to me.

        • Artemis says:

          The site is not mine, so I can’t take credit. I found it while scouring the internet for transcripts. It was done by a defense attorney @ RobGouveiaEsq. He also does YouTube videos with commentary / analysis on the trial, but the videos are frankly kinda terrible. I got impatient and couldn’t watch. But he did a really great job with the site!

          • Rayne says:

            Copy and pasting reply from community member “greenbird” due to a problem with Reply associated specifically with your comment or this portion of comment thread:

            still, it’s great to have and to know and to share.
            i just grabbed 5-19 Baker morning session, but am still woefully behind;
            links to marcy’s threads accumulate fast.

            • bmaz says:

              Is there a bug with the reply button lately? Somebody accused me of “removing the reply button” for them a couple of days ago, which obviously I did not do. Weird, maybe there is a glitch?

              • Rayne says:

                If you can backtrack and figure out who made that accusation when and in which thread it’d be helpful. I tried it myself and had the same problem but I suspect it’s directly related to that particular comment thread and something posted in it which screws with the site’s comment system code.

            • greenbird says:

              thanks, bmas and rayne !

              i shall retry replying to artemis directly from her comment.

          • greenbird says:

            within this thread a comment lies from bmaz regarding mr. lawyer person of the you-tubes, for your consideration. are you sure he created the transcript site, though ? just a head’s up from me to you via bmaz’ comment from a different thread.

            the shared link still works great, btw, and very very helpful.
            using without trying to ‘join.’

            thanks again, rayne and bmaz.

  2. Rugger9 says:

    Well done on the post. DeFilippis will continue his desk pounding for exactly the reason described by EW, but I would note that this is sound bite material. DeF will whine to the RWNM how he was unfairly prevented from fully prosecuting the case by this clearly librul judge and that will be a daily occurrence (properly laundered through Durham’s shop to the press lackey).

    I did find it interesting that EW has detected the hints of going after Seago (for perjury) and Joffe (for being a journalist) which fits in quite well with the threats authoritarians make to keep the masses in line. I think we’ll see more lashing out as DeF continues his ‘case’.

    At what point would Sussmann’s team be allowed to ask for prosecutorial misconduct sanctions like a bar referral for DeF? It would seem to me that DeF has already gone into the realm of ignoring inconvenient orders to reveal unauthorized information to the jury (hard to unring the bell, y’know) and I would suspect that neither Judge Cooper nor Sussmann’s team will tolerate those antics for long.

    • Artemis says:

      Is it just me or is it normal for the prosecution to set a perjury trap for a prosecution witness that they gave immunity to? I mean…wouldn’t Durham have been prepping her for trial and going over his questions with her or do they not do that with witnesses given immunity? The idea that he wouldn’t refresh her memory before trial when he could/should(?) have done so, and then sets her up by confusing her with the question and then wants to say she’s giving false testimony bc she either didn’t understand the question or remember that 6 years ago she hid the affiliation when interacting with tea leaves? He could use that same tactic of not refreshing memory to claim Baker or Hellman or any number of witnesses perjured themselves. It definitely seems dirty. But I guess if the main goal was to get excluded evidence allowed back in, then it makes sense. It’s just gross.

  3. Cosmo Le Cat says:

    Yesterday, Marc Elias said neither he nor anyone else he was aware of from the Clinton campaign had authorized Sussmann to meet with the FBI. Billing records were introduced that showed Sussmann repeatedly billed the campaign for meetings and legal work, and the records included a meeting with Joffe 2 days before Sussmann met with Baker, BUT the prosecution did not show Sussmann billed anyone for the meeting with the FBI’s Baker.

    On October 26, 2021, EW tweeted about the receipts for Sussmann’s taxi to and from the meeting, which show he billed nobody, confirming he was not there on behalf of a client. IMHO, if these receipts are introduced at trial, it’s game over.

    • Ken says:

      There is no description, so far, of Sussmann’s billing records for September 19, 2016. To me, a juror could base their entire decision on such a document. As an attorney with forty two years in private practice, if I was representing a client in my meeting with Mr. Baker, I would have billed the matter as “One hour- Conference with James Baker”. Do Sussmann’s billing records exist for September 19th ?

  4. Cosmo Le Cat says:

    I expected Baker to testify that Sussmann said he was not *representing* a client. CNN reports Baker instead stated, “He said he was not appearing before me on behalf of any particular client[.]” This raised the bar for the prosecution, as it must prove Sussmann was tasked by the Clinton campaign to meet with the FBI. Not only would that be inconsistent with Sussmann’s taxi receipts and Elias’ testimony, it would also be nonsensical, because the meeting was intended to provide the FBI a heads up to kill the NYT story, which was contrary the interests of the campaign. (Note that if the meeting was on Joffe’s behalf, it would definitely not be material, because Joffe was not a political party seeking an advantage).

    • timbo says:

      That’s not what this trial is about though. The question is whether or not Sussmann materially lied to the FBI about whether not he had a client who was trying push this story (to the FBI and the press). The big question is 1) is it a material lie if he in fact knowingly lied to the government about his affiliations. The rest of it is garnish that the wing-nuts want to paste on to shutdown investigation of them when they’re crimin.

  5. The Old Redneck says:

    The question was: do you remember hiding that affiliation from anyone. The key three words are “do you remember.” She said no, which leaves open the possibility that she just didn’t remember. No one will ever be able to base a perjury charge on that.
    In fact, refreshing recollection is never done when someone answers decisively that they did not do something. It’s done, as the term suggests, when they don’t remember if they did.
    DeFilippis knows better than this. This sure looks desperate.

  6. Green Eagle says:

    ” This sure looks desperate.” It is not desperation. It is contempt for right and wrong, coupled with knowledge that if Republicans gain control of even one house of Congress this November, anything they want to do will be excused.

  7. Rugger9 says:

    The Grey Lady is breathlessly reporting (Brenner this time) that an FBI agent (it’s Baker) bolstered the case against Sussmann, making sure to highlight the HRC connection but somehow neglecting to mention the severe consistency problems under oath identified by EW. Typical. It’s behind a paywall, but NYT is trying to pretend there is NEW EVIDENCE which somehow hasn’t made it onto this board despite the close attention this trial has received here. EW didn’t mention anything ‘new’ in her Twitter feed and she doesn’t miss very much. Hmmm…..

    Let’s see how chatty the NYT is once Baker gets his cross examination.

    WashPost has the preview from yesterday, at least that’s free…


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