Jim Baker’s “Doctored” Memory Forgot the Meeting He Had Immediately After His Michael Sussmann Meeting

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One of key piece of evidence to John Durham’s prosecution against Michael Sussmann are the notes that Bill Priestap took reflecting Baker saying that Sussmann, “said not doing this for any client.”

On the stand, Priestap remembered nothing about this meeting.

Baker, though, claims he remembers a bunch of things.

In response to Sean Berkowitz’s attempt to pin down his testimony the other day, Baker said that his meeting with Sussmann was thirty minutes long. That’s not actually a direct memory, it seems. It is one reconstructed, Baker says, from calendars and the chain of custody document.

Q. How long was the meeting?

A. Which meeting?

Q. September 19th, 2016

A. About 30 minutes.

Q. How sure are you of that?

A. I’m going from the calendar entries and the entries on that chain of custody document.

Q. Okay. Not from your memory? You’re looking at documents?

A. I remember it was a short meeting. I would view a 30-minute meeting as a short meeting.

The chain of custody document shows that Baker took possession of the thumb drives at 2:30PM on September 19, 2016.

There are problems with relying on the chain of custody document to reconstruct your memory though, because it was, itself, reconstructed after the fact, the next day. One FBI agent discussing this process even joked that this amounted to “doctoring” the chain of custody — and with it, six years later, doctoring Baker’s current memory.

Baker professes to be slightly more certain about his meeting with Priestap, at which he relayed what had happened in the meeting with Sussmann. Baker “immediately or very close afterwards” called Priestap and told him what happened in the meeting.

Q. Okay. Now, taking us back to our time period, 15 we’ve left you getting the information from Mr. Sussmann on the 19th, and you immediately or very close afterwards called Mr. Priestap?

A. Yes, sir.

And the meeting was ten or fifteen minutes long.

Q. How long was the conversation with Mr. Priestap?

A. I don’t think it was a very long conversation. Ten minutes, maybe, fifteen minutes, something like that.

That’s a problem for Durham’s narrative. That’s because according to Baker’s own calendar, he had a meeting immediately after the one with Sussmann. The meeting with Sussmann ended at 2:30, his calendar showed, which is what the “doctored” chain of custody document says. Immediately after that he had a meeting with someone named Rich.

In fact, per his calendar, Baker was busy straight through until 4PM (though it’s unclear from Baker’s calendar precisely when the meeting with Rich happened). And the first Deputies Committee meeting after his meeting with Sussmann — which is the best explanation for Trisha Anderson’s notes — happened the next day, on September 20.

I haven’t yet seen how Sussmann’s lawyers got this into evidence yesterday (I’m still working through the morning transcript). But it’s possible that Baker never refreshed his memory with this calendar.

That’s because this calendar was extracted from Baker’s Samsung phone by DOJ Inspector General’s Office back in 2018. This is the phone that Durham had been told about in real time in 2018 (when Durham was investigating Baker for something else), but nevertheless didn’t think to look for the phone before charging Sussmann, and so only found it four months after the indictment.

When confessing all this confusion to Judge Cooper (as I explained in this post), Durham explained he hadn’t taken the basic investigative step of reviewing the contents of Baker’s phone before charging Sussmann because his memory didn’t go back four whole years — or even two, which is when Durham started interviewing Baker in this investigation.

Paragraph 10(a)(ii) states: “[I]n early January 2022, the Special Counsel’s Office learned for the first time that the OIG currently possesses two FBI cellphones of the former FBI General Counsel to whom the defendant made his alleged false statement, along with forensic reports analyzing those cellphones.” Id. The Government wishes to provide some additional context for this statement.

After reviewing the Special Counsel’s Office’s public filing, the DOJ Office of Inspector General (“OIG”) brought to our attention based on a review of its own records that, approximately four years ago, on February 9, 2018, in connection with another criminal investigation being led by then-Acting U.S. Attorney Durham, an OIG Special Agent who was providing some support to that investigation informed an Assistant United Attorney working with Mr. Durham that the OIG had requested custody of a number of FBI cellphones. OIG records reflect that among the phones requested was one of the two aforementioned cellphones of the thenFBI General Counsel. OIG records further reflect that on February 12, 2018, the OIG Special Agent had a conference call with members of the investigative team, including Mr. Durham, during which the cellphones likely were discussed. OIG records also reflect that the OIG subsequently obtained the then-FBI General Counsel’s cellphone on or about February 15, 2018. Special Counsel Durham has no current recollection of that conference call, nor does Special Counsel Durham currently recall knowing about the OIG’s possession of the former FBI General Counsel’s cellphones before January 2022. [my emphasis]

Durham forgot that he knew about the phone.

And because he forgot that he knew about the phone until it was too late, it’s not actually clear whether Baker’s reconstructed memory has faced the fact that he could not have had a 30 minute meeting with Sussman followed by a 10 minute call with Priestap and still made his 2:30PM meeting with Rich.

And given that both Baker and Priestap have testified, it’s probably too late to doctor a new memory to explain this all.


Scene-Setter for the Sussmann Trial, Part One: The Elements of the Offense

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

The Founding Fantasy of Durham’s Prosecution of Michael Sussmann: Hillary’s Successful October Surprise

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

John Durham’s Lies with Metadata

emptywheel’s Continuing Obsession with Sticky Notes, Michael Sussmann Trial Edition

Brittain Shaw’s Privileged Attempt to Misrepresent Eric Lichtblau’s Privilege

The Methodology of Andrew DeFilippis’ Elaborate Plot to Break Judge Cooper’s Rules

Jim Baker’s Tweet and the Recidivist Foreign Influence Cheater

That Clinton Tweet Could Lead To a Mistrial (or Reversal on Appeal)

John Durham Is Prosecuting Michael Sussmann for Sharing a Tip on Now-Sanctioned Alfa Bank

Apprehension and Dread with Bates Stamps: The Case of Jim Baker’s Missing Jencks Production

Technical Exhibits, Michael Sussmann Trial

24 replies
  1. Quake says:

    Bravo for the thoroughness of your coverage of Durham’s shitshow!

    Durham’s case is so full of contradictions and inconsistencies that it’s hard to imagine the jury won’t acquit in short order.

  2. Silly but True says:

    The agent commentary about Baker’s custody form:
    1. Is hilarious. Absolutely hilarious.
    2. Serves as example #2,345,675 that even the FBI is full of essentially stoner kids on their work lunch break making fun of management.
    3. More seriously reinforces how bizarre & atypical the Baker-Sussmann meeting really was.
    4. Reinforces how atypical the FBI GC receiving evidence was.
    5. Reinforces how atypical after-hours post-dating evidence receipt was.

    These agents should not have been bantering like this, but obviously human nature is going to Trump everything.

    I’m glad they did though, because this made my day.

    Unfortunately, Sussmann probably isn’t yet seeing the humor in all of it. He’s still in the hot seat.

  3. PeterS says:

    Will there be an expert witness testifying about how memory works (I guess not)? It seems perfectly obvious that Baker has not been refreshing his memory so much as re-inventing it.

    We humans are all prone to quite innocently refine our memories over time, recovered (sic) memories of child abuse and past lives being extreme examples.

    • Silly but True says:

      OTOH, things like this are frustrating but if “reconstructed memory” is going to be an insufficient court standard, then best do away with criminal trials altogether. It’s not often a case rests entirely on explicit, iconic active memory from all its witnesses.

      • EdwardB says:

        A “reconstructed memory” is not a memory. We should not prosecute people based on reconstructed memories, because reconstructed memories are inherently unreliable.

        • Silly but True says:

          I agree with you, but until the Court can call God as a witness, it’s likely going to have to find a way to deal with lack of independent corroboration to witness testimony in criminal cases until there’s no longer any more criminal cases.

    • 90’s Country says:

      It warms my heart
      To know that you
      Remember still
      The way you do
      Ah yes, I Remember it Well

    • I Never Lie and am Always Right says:

      They were going to call a memory expert, but they forgot to do that.

    • skua says:

      “innocently refine our memories over time”
      Waiter: Did you enjoy your meal tonight ma’m? [asks for recall of memory of meal]
      Woman: Why yes it was lovely. [creates new additional memory of categorizing meal as good]
      Waiter: Oh I’m so pleased. But the cook has just told management that he has dystentry so you’ll need to stay near a toilet for the next 36 hours. [reframes situation]
      Woman: Oh no. [feels ill, memory of meal gets changed to very negative ]
      Women has done 2 x post-event reprocessing. I think a term other than”refining” is needed to cover the scope of what happens to memories.

  4. Eichhörnchen says:

    The date on the Chain of Custody document looks like 9/14/16, not 9/19/16 … ?

    • Silly but True says:

      Lawyers’ handwriting is just as bad as doctors, but at this point it honestly wouldn’t surprise me if that’s also actually when Sussmann gave it to Baker; maybe a few more missing emails or texts still out there: “Here’s the stuff I’ll text, call, and email you about in few days…”

      • farmfresh says:

        First time, long time.

        Baker’s collection date on the first line and the release date on second line really seem like 9/14/16. The 4 doesn’t appear to be an open ended 9. The 9 from the month is distinctly different than the 4 from the day on both entries. I doubt it’s significant, just sloppy. The fact that the one piece of evidence handed over by Sussman creates such a muddled chain of custody in less than 24 is interesting but probably nothing more. Although it’s unfortunate timelines for meetings appear to be built from it. I did try to think about how this chain was reconstructed, and to reconstruct the COC reconstruction I think you you have to follow the pens.

        Batty accepts the evidence on 9/20/16 @ 12:29pm but it almost certainly doesn’t come with a COC. He’s the only one who prints his own name which likely makes him also the first one to sign.

        The previous COC record is reconstructed on 9/20, after Batty receives the evidence, by Baker and “mtheflin”(?) (The chat log scan is blurry.)

        The printed names for all the entries before Batty’s are filled in by the same person (probably “mtheflin”?) with a cheap black ballpoint.

        Batty either uses the same pen as “mtheflin” (because Batty knows, and provides, the previous names for the custody list) or Batty just also happens to prefer cheap black ballpoints (his relinquished signature two weeks later is also written with a black ballpoint). It’s also possible the “mtheflin” call with Baker (chat log) happens while “mtheflin” is with Batty and Baker provides the custody list. Either way, the printed names are likely filled in while the COC is with Batty because he knows where to sign (and print) his own name.

        The process of gathering retroactive signatures begins after Batty receives the evidence (from the chat log: “…so, we [mtheflin and Baker?] went on a custody form signing field trip”).

        Baker signs the first and second lines, with the wrong date and an estimated time, with a blue ballpoint. Strzok and Sporre each sign and date with their own distinct pens using Baker’s erroneous date and estimated time as a starting point, but providing the correct date and their own estimated times. Strzok fills in the “reason”, Sporre does not.

        No one prints their own name (except Batty) because they’ve already been filled in (by “mtheflin”?) to reconstruct the COC in the correct order before gathering signatures.

        After Strzok and Sporre sign, yet another person (not the same person who filled in the printed names before collecting signatures) with the possible initials “ASM” or “CSM” alters the COC. Your can see where they started to write “Transfer” for Eric Sporre but did a strike-through with initials and adopted Strzok’s language of “Turn over”. Then added “Accepted Custody” (also Strzok’s language) for both Sporre and Batty. This could have been done at any time before the document was scanned by anyone except the previous custodians.

        • harpie says:

          Huh! that seems plausible! Good deducing! So you think Baker actually wrote the wrong date for a meeting he had that day? Maybe, I guess. I know I’m not the only one who often feels as though they’re in a time warp.

      • harpie says:

        [And since I typed it all out, I’m just going to put it here]:

        18:44:30 S and I said “um hello, Is Mr. Baker in today?” / and he said “speaking” / and I said, great, I have a chain of custody form for you to sign, and he said, I’ve never signed one can you help me? / and so we went on a custody form signing field trip
        18:45:08 M How is there a chain of custody form for the GC to sign? / lol
        18:45:17 S he received some evidence / during a meeting
        18:45 42 M And then just handed it off, so you doctored a chain of evidence form? :)
        18:45:56 S not exactly / it was yesterday after hours
        18:46:06 M So he doctored the form?
        18:46:08 S I think we did good / no we called the WFO evidence tech / who said that we were good / the form doesn’t have to stay with the material, it can be backtracked
        18:46:35 M As long as the form reflects the movement of the evidence / I’m just teasing
        18:46:49 S because there are plenty of people in the fbi who could get evidence and not know what to do with it / including our general counsel

  5. Thomas says:

    I just did a double take.

    What do you mean
    “Durham was investigating Baker for something else?”
    In 2018?

    The ONLY witness to this alleged lie by Sussman is someone who has some unnamed threat of “investigation” hanging over him? How leveraged with threats against other people is this prosecution?

    Maybe other witnesses are also under some kind of threat?

    • Silly but True says:

      Before being appointed Special Prosecutor, Durham was tasked with investigating DoJ (FBI) leaks to media, and so was passed along DoJ OIG Horowitz’s “Mid-Year Investigation” referrals associated with the FBI personnel caught inappropriately (illegally) leaking to the press. Arguably, the most significant of these Mid-year leaking FBI personnel found by OIG was Baker. And from what we now know, most if not all of Baker’s Mid-year implicated activity was associated with this Alfa case (or occurring around the time of the Alfa case).

      Baker was allowed to resign as General Counsel of FBI. He was engaged in at least “fireable” offenses that drove him out of the FBI and perhaps also or even if not criminal offenses.

  6. Disraeli56 says:

    A 10 to 15 minute discrepancy in the documented time line?

    No worries – I’ll see your DNS anomaly and raise you a Time Warp.

    “It’s just a jump to the left
    And a step to the right…”

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