Jim Baker’s Tweet and the Recidivist Foreign Influence Cheater

Thanks to those who’ve donated to help defray the costs of trial transcripts. Your generosity has funded the expected costs. If you appreciate the kind of coverage no one else is offering, we’re still happy to accept donations for this coverage — which reflects the culmination of eight months work. 

In my post on what prosecutors need to prove to win their case against Michael Sussmann, I noted they had to prove that:

  • Sussmann said the lie that they claim he did: that he affirmatively said he was not sharing the Alfa Bank allegations on behalf of a client
  • He said it on September 19, and not just on September 18
  • It was an intentional lie
  • It was material, meaning the alleged lie mattered to the operation of the FBI

I think the government has, in some ways, done best presenting their materiality arguments (but then, that’s the lowest bar). But even there, exhibits submitted at trial show that at least two of the key decision-makers on investigative issues had received a text referencing that this was a DNC report; Andrew DeFilippis speculated with one of the witnesses who received the text that it was a typo for DNS. And it appears, in multiple situations, people just assumed that Sussmann was at the FBI on behalf of the Hillary campaign, and took it into account. That said, Berkowitz got Baker — who was a key player in the Stellar Wind story that Eric Lichtblau held through an election in 2004 — to explain how important, from a national security perspective, it can be to hold certain stories.

And as I’ll show, Sussmann’s team may have something very special in store to make their materiality argument.

Regarding whether his statement that he was not there “on behalf of any client,” I think Sussmann has made a very good case that he meant his comment to Jim Baker on September 18 that he wanted to help the FBI. Both Marc Elias and Robbie Mook testified that sharing advance warning of a story they wanted to come out was the last they would have wanted or approved, because Jim Comey had done so much to damage the campaign. Particularly if Eric Lichtblau testifies, Sussmann will have a powerful story about all the damage that going to the FBI did to the campaign.

As to the other questions, they all go to Baker’s credibility on the stand.

I can’t say how the jury reacted, but I think prosecutors really didn’t do what they needed to do to prove that Sussmann repeated his comment about not meeting with Baker on behalf of any client and, then, hiding it when he helped the FBI kill the story later in the week. And Berkowitz did even more to show the changing nature of Baker’s statements about the meeting over time.

I did two long twitter threads on Sean Berkowitz’ cross-examination of Baker (Thursday night, Friday morning). I think Berkowitz achieved the following:

  • Used Baker to define “lie” as having an intention to deceive.
  • Made it clear that Baker reconstructed his understanding of his face-to-face meeting with Sussmann with the help of a chain of custody log that an FBI agent referring to the process called “doctored.” That’s going to provide Sussmann’s team a great metaphor to explain what Baker’s memory consists of.
  • Got Baker to suggest his memory of what happened on September 19 amounted to “words to that effect” of what has been charged.
  • Got Baker to agree that there’s at least a 25% chance Sussmann told him he had a client on September 21, which would be proof he wasn’t hiding a client.
  • Foregrounded the possibility that Baker could be prosecuted for his many inconsistent statements, including some that were made in 2018 and some that were made months ago. The statute of limitations on Baker’s inconsistent statements won’t expire until 2027.
  • Showed that Baker’s testimony on the stand was inconsistent with things he told Durham even in recent months; and Baker continues to not remember key details both of what happened on September 19 but also much more recently.
  • Showed that Baker’s reconstructed memory shifts at times from “that matter” (collecting the data) to the meeting itself; this is a reconstructed memory that can only come from prosecutors.
  • Demonstrated that Durham withheld at least three documents that could have “refreshed” Baker’s memory to believing Sussmann had told him he had a client.
  • Placed Durham in the room for some of the key sessions — including in Summer 2020, when Barr and Trump were pressuring Durham to show some results in time for the election — when Baker’s memory was “refreshed.”

Those threads were hard to write and I’m sure even more painful for people who are friends of one or both men to read. The story Berkowitz told was how, through the relentless grind of Republican blowhards and the Trump DOJ’s politicized investigations, Baker came to “remember” testimony that could put his friend, Sussmann, someone who had tried to get him a job when he was at a really bad point in his life, in prison.

There was no way out for Sussmann except to destroy his friend. And Berkowitz at least made it seem that Baker had believed there was no way out for him except to “refresh” his memory to match what Durham wanted.

I suspect it likely that Sussmann’s team will point out that Durham is choosing to prosecute just the people whose story doesn’t match the one that Durham wants to tell. It’s not just Baker whose testimony to Durham is inconsistent with provable facts, but Durham is not prosecuting any of the witnesses who are saying what he wants them to.

With all that as background I want to point to something subtle that I suspect will become part of that theme. Ostensibly to address materiality — Baker’s belief, one he shared with Congress in 2018 but contradicted under coaching by Durham on the stand — that if you have a national security tip you need to feel free to come to the FBI. Baker tweeted it out on June 13, 2019.

This would have been posted weeks after Durham was appointed, which — Baker testified — led Baker to expect he’d be under criminal investigation again.

Q. And you, sir, were aware that Mr. Baker was — I mean, Mr. Durham was reappointed as special counsel, correct, in or around 2019?

A. For this matter?

Q. yes.

A. yes.

Q. And when that happened, you were concerned, were you not?

A. Concerned about what?

Q. That Mr. Durham might come and investigate you more?

A. I wasn’t concerned about it. I expected it.

Q. All right. You expected to be investigated further by Mr. Durham. Correct?

A. Correct.

After having laid out how Baker had been investigated by Durham as part of a leak investigation for years, Berkowitz even introduced a text that Baker sent Ben Wittes the day after Durham was appointed saying, “now I get to be investigated for another year or two by John Durham. Lovely.”

But the tweet about going to the FBI wasn’t about Durham and it wasn’t random.

Rather, it was a response to something Trump said in an interview with George Stephanopoulos, between the time Mueller wrapped up his investigation, in part, of Trump’s request, “Russia, are you listening,” in 2016 and the time Trump asked Volodymyr Zelensky, “but first, I would like you to do us a favor.” On the same day Baker encouraged people to go to the FBI if they had evidence, ABC posted an interview in which Trump said,

“It’s not an interference, they have information — I think I’d take it,” Trump said. “If I thought there was something wrong, I’d go maybe to the FBI — if I thought there was something wrong. But when somebody comes up with oppo research, right, they come up with oppo research, ‘oh let’s call the FBI.’ The FBI doesn’t have enough agents to take care of it. When you go and talk, honestly, to congressman, they all do it, they always have, and that’s the way it is. It’s called oppo research.”

I’m not precisely sure how Sussmann’s team is going to use this tweet, beyond the materiality question, materiality about precisely this situation, whether someone should share information with the FBI after their opponent solicited help from a hostile foreign government.

But it sure seems to be evidence of more than just materiality.

75 replies
  1. Rugger9 says:

    When I speak of the slime that will ooze out of the various rocks where Durham is trying to hide exculpatory evidence this is another excellent example. It would appear to me that Durham’s star witness would have whiffed with the jury especially when Sussmann’s team gets to connect the dots at closing. However, I’m not on the jury.

  2. Marika says:

    In the end Durham will have completely destroyed his own witness, Baker. He is asking the jury to believe he remembers clearly enough to send someone to jail something that happened in 2016 when he can’t remember what he said in testimony the day before. I wish I could see his demeanor on the stand because his testimony as quoted by Marcy makes it look like he must be squirming in his seat given the numerous times he is caught in inconsistencies, if not outright lies. He can’t be happy to be throwing his friend under the bus for so little. I wonder if he is subconsciously sabotaging his own testimony.

    • Alan Charbonneau says:

      “I wonder if he is subconsciously sabotaging his own testimony”
      Heck, I wondered if he was “consciously” sabotaging his own testimony.

    • Silly but True says:

      Baker was General Counsel of FBI and is currently General Counsel and Vice-President, Legal of Twitter.

      He’s faced details more complicated than a key meeting from a few years earlier; he’s been and will be alright. Since leaving FBI his credibility has taken no meaningful hit.

  3. Silly but True says:

    It’s important to note Baker stated “your local FBI office or electronically.”

    Baker also could be reinforcing that you should go through normal channel local office Special Agent instead of bringing it to your good bud FBI General Counsel without a Special Agent sitting in on the meeting because you might end up subjecting him to years of Special Counsel investigations as the FBI dismissed whatever it is as political nepotism in any case.

    • John Paul Jones says:

      Sussmann dealt with the FBI on a routine basis on many matters and had the highest level of security clearance. Why on earth would he fill out an internet form to anonymously submit his information on this matter in particular? If he did, it would look like he had something to hide. Going to Baker personally pretty much proves his good intentions.

      • bmaz says:

        Baker had TS, not sure if he had SCI. Which is kind of irrelevant to what you properly said.

          • bmaz says:

            Okay then, was not sure. Think only saw TS, but that was probably from a BS media report. Or I maybe wasn’t paying enough attention. Also, it figures he should have a SCI.

    • James Luther says:

      Sussmann addressed this directly in his Congressional testimony. He said that he chose to contact Baker because he didn’t want to burden the field agents that he dealt with regularly with something that was obviously political dynamite. “And I thought I remember telling him that it would be a not-so-nice thing — I probably used a word stronger than ‘not-so-nice’ — to dump some information like this on a case agent and create some sort of a problem. ” p 57-58 of the transcript

  4. Zinsky says:

    Although it really doesn’t matter, Trump is using Robbie Mook’s testimony about Hillary being aware of the campaign going to the media about the Alfa Bank allegations as proof of a conspiracy against him. It’s all over Fox News’ website. He asks rhetorically, “how will I get my reputation back? I guess he means his reputation as a lying, cheating sex offender BEFORE he became president. /snark

    • skua says:

      Searched Sussman trial on YouTube. Yikes.
      RW frothers taking Durham’s allegations as fact, case certain but for tainted jury (Turley) and highly compromised judge.
      s/ Top Arizona lawyer Robert Gouveia (till recently Robert Gruler) is in addition to his chocka schedule of defending DUI cases doing long vids about each day of the trial. It is unclear which, if any, supplements Robert is using to get himself through this punishing schedule. Robert’s vids are of a quality that attract comments that seem to be from AI entities who deny that the Turing Test needs to be passed. /s
      Seriously though I do find the flooding of the YT zone around Sussmann with RWNJ propaganda to be troubling. With this situation being repeated on many issues I think many electors will be swept off their feet and lost to rationality.

      • bmaz says:

        Oh, I see, he is a graduate of the private for profit Phoenix School of Law. Which later renamed itself (like Gouveia) the Summit School of Law. It had such a pitiful bar passage rate for its students (95% failed), that its dean literally paid some students to not even take the bar exam. It shuttered back in 2018. The place made Regency look like Harvard. I’ll add that there is nothing wrong with doing DWIs, most all private defense attys do them, and I have done my share over the years if people will pay enough. They are full blown jury trials here, so they are real cases. But this guy looks pretty, um, thin, and I can’t see that he has ever even set foot in a federal court.

      • Rayne says:

        Flooding isn’t just limited to YouTube. I’ll say here in comments — believe me, I’ve been tempted to write a post about this — that Durham’s investigation has drawn the largest, most obvious number of trolls we’ve had in a long time. I can’t think of another investigation/topic which has drawn such a concentration. We had onesy-twosy trolls who were persistent throughout the various Bush/Cheney Iraq war issues/Plame affair timelines as well as the Mueller investigation, but nothing like the weekly new entities dropping in using various approaches to concern troll/spam/DDoS the site. Unlike YT, though, there’s no monetization here for their efforts; the reward is in attacking the site and its community in a way which undermines both the posts and the discussion.

        (Which is why we tend to get a bit testy with people who aren’t participating here in what can easily be discerned as good faith.)

        The focused effort sure makes it feel like there’s something underneath the smoke. An easily proved case handled by competent prosecutors which is a slam dunk wouldn’t need a swarm of cryptic entities across social media harassing persons pointing out the prosecution’s weaknesses or flooding the YT zone with shit to obscure the case.

        • bmaz says:

          (Which is why we tend to get a bit testy with people who aren’t participating here in what can easily be discerned as good faith.)

          And who drop in suddenly out of nowhere to do so.

          • Rayne says:

            True. But we also can’t follow the money in most cases if they’re being compensated.

        • skua says:

          AIUI: For the Trumpists, USA vs Sussmann has already proved that DJT was clean – that collusion with RU, the concerns about Flynn as a security risk, the Mueller Report, the extortion of UKR, the impeachment that followed, were all only (in their fantasy) political witch-hunts and the Deep State unjustly targetting a non-conformist MAGA leader.

          With that all dealt with, they can now focus on getting their “unjustly removed President” back where they want him.

          Flooding the zone would obscure Dr Wheeler’s presentation of a grounded analysis of Sussmann vs USA, making that analysis less likely to be spread by the MSM.

      • Eureka says:

        YT was shoving RW-media-based content about the trial into the recommended sidebar when viewing wholly-unrelated vids Fri. as soon as they could say something about HRC (“Hillary…!”).

        This was out-of-context vs. the like-subject videos they’d been populating in previous hrs./visits — the algos got all frisky, I suppose.

        • Scott Johnson says:

          Press coverage of this has been also abysmal. Lots of media reports of Baker’s direct examination, suggesting, much of it flattering to the prosecution. (And that’s excluding the obviously partisan sources).

          Far less coverage of how thoroughly Sussman’s defense team undermined Baker’s credibility on cross.

          In other words, typical coverage of this, especially since Hillary is somehow involved and her name is being dragged through the mud.

        • skua says:

          Looks like Google/YT have you tagged as being interested in the Sussmann trial. I’ve had them do similar to me on the basis of forum posts I’ve made and even on the basis of searches and sites visited by a friend.
          Endless offers of Muslim brides after posting about Wahhabism vs Gaddafi …

          • Eureka says:

            No, and that’s the point I was trying to make — this was not based on my behavior/interests but the (associative) methods they were using to try to catch fish (which I’ve observed before wrt other RW projects).

              • Eureka says:

                And yet ~somehow~ they find the place. I was recently recalling the one who used to DDoS threads with inconsequential blather peppered with eagerness for the then-forthcoming (any day/week/month now!) Horowitz report. Suspect he’s done business here lately under a new shingle.

                [Of course that’s not technically a rando, but he purported to have been one, coming over from another publication’s comment section. Trolls being the #1 cause of dry eye syndrome…]

            • skua says:

              If you’ve got the browsing security skills to stop Google tracking your posts on EW and Google is instead just promoting RW propaganda to untagged users then that will help DJT be #47.

              • bmaz says:

                We are searchable on Google, and will take care of the riff raff that tries to come in. We will be fine.

              • Eureka says:

                47? It’s part of what helped him become 45 in the first place.

                Surely you are aware that youtube-RW ecosphere does this (also) independently of a user’s particular behavior beyond presence.

                Few appreciate for ex that Russian interference made its major bones on youtube besides other social media. [See the Jan. 2017 declassified US IC report on election interference*; see also Oxford and Graphika’s ~ late 2018 report. More generally, see The Guardian Feb. 2018: ‘Fiction is outperforming reality’: how YouTube’s algorithm distorts truth.]

                I initially took your comment as intending dismissive snark but maybe you have a limited understanding (don’t we all) of how yt’s algorithm acts (also) independently of what you have done elsewhere in the past, a feature which malign** content creators manipulate to introduce and groom otherwise uninterested parties to new-to-them ideas / clickholes / content / conspiracies. See ~ “catching fish” above: you need only be present in the stream. And if you take one nibble more bait will furiously drop in your vicinity.

                And re “associative” above: for ex they might append RW politics/propaganda videos to sports videos looking (statistically) for men to turn. Or to a “politics” video, they will append videos from “both sides” — but disproportionately RW content. With privacy measures (but also to degrees absent them), it’s more about the (general subject matter of the) videos you’re watching and what _others_ watched — populational effects — along with content creators gaming the algos to get served up in front of your face.

                Surveillance is obviously a huge issue but there’s an important degree of user passivity (or rather inevitability: no matter what you do or don’t do, they will still try to reach _a_ ‘you’, even if not a _specific_ ‘you’) to appreciate amongst fishers who will incorporate indiscriminate methods.

                • Eureka says:

                  *See the chart on page 21: RT/RT America _way_ outperformed legitimate news sources such as AJ English, BBW World, and CNN/CNN International on yt versus on tw or fb..

                  **and others interested in making ad money. For ex., do some searching specific to these topics and you’ll get the following more general suggestions:

                  Related Searches

                  how to manipulate youtube algorithm​

                  how to beat youtube algorithm​

                  presumably from/for those everyday content creators who don’t have an already knowledgeable department behind them.

                  Also, “the algo” rewards ever-more outrageous content, which shapes the content uploaded in the first place (i.e. “it” or the suite of desired outcomes changes the ‘mom and pop’ creators, too).

                  • Eureka says:

                    ^^ late add-on at end not worded the best: I meant the process of being a yt content creator potentially also changes/impacts the creators themselves (as persons), besides changing/impacting the audience, and whatever were each the creators’ and audiences’ initial intentions.

                    *also that should be BBC World

                • Eureka says:

                  Definitely check out that Guardian article (over four years old but so informative even — especially — on review). There’s also a note re how they aren’t (weren’t) a (truly) micro-targeting platform like FB which may help reorient a conceptual frame for this problem.

                  But moreso see it for the creepy surprise: a photo of Alex Jones doing a fist pump that’s a mirror image of the one Josh Hawley did on 1/6, down to the suiting in a similar blue hue. [Jones lacks a tie and perhaps the ability to get his arm up quite as high, tho perhaps he did at a different instant.]

                  Said photo of Jones was a popular (read: iconic) image used almost like a stock photo in many many articles mentioning him through at least 2018 and maybe longer. It was taken at the 2016 RNC by Brooks Kraft, via Getty Images

                  Conspiracy theorist and radio talk show host Alex Jones speaks during a rally in support of Donald Trump near the Republican National Convention July 18, 2016 in Cleveland, Ohio. (Photo by Brooks Kraft/ Getty Images)

          • JR in WV says:

            oooh !! Forward those offers for Muslim brides to me, I could use a couple of women to help clean up around the house. Since my knees are going I can’t do things I have done all my life! //s

            Having read several days of Sussman trial posts, I can’t believe the prosecutor hasn’t been censured for misconduct and a directed verdict of not guilty announced..!!

            It seems from the reporting here that the prosecutor is running wild, violating the judge’s rulings at every hand.

            Surely the lawyer repeatedly disregarding the judge’s instructions must pay a penalty?

    • Krisy Gosney says:

      Oppo research and the campaign consulting with the candidate about whether or not to make things public is super common, right? And absolutely not illegal, right? But it’s the great misogyny monster feasting itself in the media, rubbing its great bloated belly! (‘One more mint, sir?’) HRC could plant flowers in her own garden on a brisk spring day and the misogyny monster would feast upon her nerve in the media until panting on the lino, unable to move.

  5. Eureka says:

    Rudy, Rudy, Rudy.

    [Barr Barr Barr; Bull Bull Bull; …]

    FYI it was a week before that Trump interview (publication) and Baker tweet — June 6, 2019 — that Giuliani said he was leaving the Trump legal team after doing “Mueller cleanup” and in the same day did an about face and unresigned himself.


    Rudy Giuliani does about face after saying he’ll leave Team Trump
    Rudy Giuliani suggested Thursday that he would leave Team Trump after finishing “cleanup” from special counsel Robert Mueller’s Russia probe — only to reverse course later in the day.
    Jun 6, 2019

  6. greenbird says:

    anyone else appreciating the crash course in late-night encyclopedia-reading-equivalency … courtesy the magical wonderful brain of Dr. Wheeler ?

    • Bardi says:

      From my point of view, the word “appreciate” does not convey all the thanks we owe her. IANAL and I cannot thank her enough.

  7. Hoping4Better_Times says:

    Marcy: I just made a paypal contribution to help with the cost of the transcripts. Used threadreader app (chronological order) to read your detailed analysis of Baker’s cross-examination by Berkowitz. Awesome! Baker’s credibility got shredded on the stand. Too bad we could not see a video of him in the hot seat. As I read it, I did feel some sympathy for Baker. Unless he was willing to say what Durham wanted, the SC would continue to hound him and/or charge him, just as Durham did with Sussmann.

  8. Interested Observer says:

    Will Sussman’s lawyers be able to present Durham’s pattern of abusive tactics as evidence that he intimidated Baker to get the answer he wanted?

        • bmaz says:

          Well, given all the other absurd bullshit that has gone on the record, maybe. But not in any normal trial. It is getting beyond ridiculous.

          • Chetnolian says:

            In what way is any of this a normal trial? I am still amazed that US taxpayers’ money is being spent on this nonsense.

            • earlofhuntingdon says:

              Yes, taxpayers get hosed frequently. The amount Boris paid the Treasury for serially violating lockdown protocols at No. 10 might be enough to pay for a coffee break for half the jurors in the Sussman trial. :-)

              • Anathema Device says:

                Judge Cooper seemed to be trying to run a tight, clean trial up to when it actually began. What happened?

                Or do you expect some wrist slapping and hauling in of reins to occur anytime soon?

                • Doctor My Eyes says:

                  Aren’t judges, like second-rate athletes and football referees, subject to freezing in the glare should the lights become too bright? It might feel safer to have as little influence on the game as possible. One Lance Allan Alito (as well as the prosecution team) comes to mind. Pure speculation, of course.

                    • bmaz says:

                      This is funny because in an email conversation with Chetnolian yesterday, I analogized this grossly overblown case to the OJ one. It’s just insanely out of control.

  9. EdwardB says:

    Obviously, it’s far from over. However, I note that Devin Nunes and Jonathan Turley have both gone on the record to complain about the liberal D.C. jury pool and Judge Cooper’s evidentiary rulings, in case anyone was wondering how the frothy faction think it’s going.

  10. Jeffrey Gallup says:

    I’m a little confused about Baker’s testimony where he is 100% certain that Sussmann told him on September 19 that he was appearing before him as a good citizen and “not on behalf of any particular client.” Assuming Sussmann said exactly that, Priestap’s notes suggest that Sussmann then mentioned the cyber expert(s) who had approached him with the Alfabank data whose description made them seem to be clients, though the term wasn’t used. He also mentioned his clients the DNC and Clinton Foundation/campaign. Had Sussmann meant that he had no clients at all implicated in this matter (an absurdity, since Sussmann did not find the white papers on the street), surely Baker would have called him out on the contradiction. “You said you’re here on your own, and now you tell me these data scientists asked you to help them with this– unless he understood that Sussmann’s motive was to help the FBI rather than special pleading for a client.

    The Clinton campaign relationship seems more complicated. The testimony so far indicates that the campaign did not direct Sussmann or coordinate with him on going to the FBI – in that sense, he was not acting as their lawyer in this particular instance. But he did apparently bill some of his hours involving the FBI meeting to the Clinton campaign, which suggests he did consider it to be his client in this instance. The good citizen defense still applies, but seems weaker because of the billing unless the billing is an artifact – he had to assign his hours to some client, and the Clinton campaign was easy, since his firm was on retainer and no extra money would be paid.

  11. matt fischer says:

    That Sussman can be 100% certain of any memory is suspect after he has demonstrated that he cannot even recall his testimony from the previous day.

  12. Doctor My Eyes says:

    RE: the above discussion about troll pressure on this website and frother hysterics over this trial in general, am I the only one who believes this extended gaslighting is less about Trump and more about Russia doggedly protecting its influence operations from being definitively exposed? I think of predictably single-minded people like Durham (and MTG and Rand Paul) as being much more driven by some unknown relationship to Russian operations than from grift, misguided politics or support of Trump.

  13. Bobster33 says:

    If the primary witness Baker is 25% sure that Sussman told Baker he worked for the Clinton campaign AND subsequent texts confused DNS with DNC, I find it hard to believe that the jury will believe beyond a a reasonable doubt that Sussman deliberately lied. But then again, I thought OJ was guilty.

    • Dopey-o says:

      1. It’s always the husband.
      2. It’s never aliens.
      3. An experienced attorney with a long relationship with the FBI is unlikely to burn all that good will by lying / misdirecting / bullshitting.

      IANAL, but I think Sussmann walked into Baker’s office with the attitude of “This transcends partisanship.” And he chose Baker because he knew and respected Baker.

      • Rayne says:

        I think there’s room to consider 2a: It’s never aliens, and 2b: Unless the husband is an alien.

        Which means there may be 3a and 3b; what’s 3b if your 3 = 3a?

  14. Bernard Cuzzillo says:

    Please excuse this dumb question: Where can I find more about how Sussmann tried to get Baker a job when Baker was at a really bad point in his life? I’m sure it’s here somewhere but I haven’t found it yet.

    Marcy, I love your work!

    [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. When you commented last back in February your username included a middle initial, “Bernard R Cuzzillo.” Thanks. /~Rayne]

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