The Visibility of FBI’s Close Hold: John Durham Will Blame Michael Sussmann that FBI Told Alfa Bank They Were Investigating

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

According to an exchange at the end of they day yesterday, John Durham’s team plans to introduce “a hundred” exhibits through their paralegal acting as a summary witness today.

My understanding is that the defense objects to the PowerPoint presentation style of the process. But, again, we think it just streamlines it in terms of — the alternative is to have to put literally a hundred exhibits in through Ms. Arsenault one at a time.

Given the exhibits from Monday, I assume Durham will throw a bunch of Fusion documents at the jury in an attempt to insinuate, once again, that Michael Sussmann shared with the press that the FBI was investigating the Alfa Bank anomaly.

The coming onslaught of Fusion documents

I say that because Mark Hosenball wrote the FBI for comment at 1:33PM on October 5, 2016, attaching the Mediafire package, asking for comment and noting that, “it has been suggested to me that this information and scenario is under careful investigation by the FBI.”

Hosenball’s email to the FBI puts it right at the beginning (in red, below) of the known universe of Fusion emails we’ve seen from that day, the timestamps of which Durham has repeatedly tried to obscure. (Maybe while paralegal Kori Arsenault is on the stand, Sussmann’s team can ask her why Durham’s exhibits misleadingly don’t correct for UTC.)

That said, there’s still a Hosenball email unaccounted for in which he shared one of the publicly available links to Tea Leaves packaged data. It’s quite possible that email precedes Seago’s question to Fritsch, which is currently the earliest email in the list, asking whether one of the i2p sites hosting the data was safe. See this post for background.

5:23PM (likely 1:23?): Seago to Fritsch, Is this safe?

1:31PM: [not included] Fritsch to Hosenball email with Alfa Group overview

1:32PM: Fritsch sends Isikoff the September 1, 2016 Alfa Group overview (full report included in unsealed exhibit)

1:33PM: Hosenball to FBI, “careful investigation by the FBI”

1:33PM [not included] Fritsch to Hosenball, “that memo is OTR — tho all open source”

1:35/1:36PM: Hosenball replies, “yep got it, but is that from you all or from the outside computer experts?”

1:37PM: Fritsch responds,

the DNS stuff? not us at all

outside computer experts

we did put up an alfa memo unrelated to all this

1:38PM: [not included] Hosenball to Fritsch:

is the alfa attachment you just sent me experts or yours ? also is there additional data posted by the experts ? all I have found is the summary I sent you and a chart… [my emphasis]

1:41PM: [not included] Fritsch to Hosenball:

alfa was something we did unrelated to this. i sent you what we have BUT it gives you a tutanota address to leave questions.  1. Leave questions at: [email protected]

1:41PM: [not included] Hosenball to Fritsch:

yes I have emailed tuta and they have responded but haven’t sent me any new links yet. but I am pressing. but have you downloaded more data from them ?

1:43PM: [not included] Fritsch to Hosenball, “no”

1:44PM: Fritsch to Lichtblau:

fyi found this published on web … and downloaded it. super interesting in context of our discussions

[mediafire link] [my emphasis]

2:23PM: [not included] Lichtblau to Fritsch, “thanks. where did this come from?”

2:27PM: [not included] Hosenball to Fritsch:

tuta sent me this guidance


Since I am technically hopeless I have asked our techie person to try to get into this. But here is the raw info in case you get there first. Chrs mh

2:32PM: Fritsch to Lichtblau:

no idea. our tech maven says it was first posted via reddit. i see it has a tutanota contact — so someone anonymous and encrypted. so it’s either someone real who has real info or one of donald’s 400 pounders. the de vos stuff looks rank to me … weird

6:33PM (likely 2:33PM): Fwd Alfa Fritsch to Seago

6:57PM (like 2:57PM): Re alfa Seago to Fritsch

7:02PM (likely 3:02): Re alfa Seago to Fritsch

3:27PM: [not included] Fritsch to Hosenball cc Simpson: “All same stuff”

3:58PM: [not included] Hosenball to Fritsch, asking, “so the trumpies just sent me the explanation below; how do I get behind it?”

4:28PM: [not included] Fritsch to Hosenball, “not easily, alas”

4:32PM: Fritsch to Hosenball, cc Simpson:

Though first step is to send that explanation to the source who posted this stuff. I understand the trump explanations can be refuted.

So I assume that Durham will argue that Fusion must have passed on the information that the FBI was investigating — and they may have! (though none of the currently public emails reflect that — and suggest that was all part of Michael Sussmann’s devious plan on September 19.

When, under threat of prosecution, an attempt to prevent politicization turns into an attempt to hide political bias

That’s where things will get interesting. One key dispute in this case is why one keeps secrets. Durham wants to argue that keeping secrets can only serve a political purpose.

Sussmann will argue that keeping secrets facilitates national security interests.

Sussmann will show that everyone at the FBI recognized the value, to the FBI, of stalling a newspaper article about a potentially important threat so the FBI could covertly investigate it. All the more so during election season when — investigation after investigation into the Russian investigation has shown — the FBI was, if anything, being too careful in an attempt to avoid impacting Trump’s political fortunes, even while Jim Comey was tanking Hillary’s campaign. According to Sussmann’s own sworn testimony — testimony that Durham didn’t bother testing before charging Sussmann — allowing the FBI the opportunity to do that was the reason Sussmann shared the Alfa Bank anomaly with the FBI. Durham wants to imprison Sussmann for giving the FBI that heads up, arguing that because he hid his purported clients, it led the FBI to open a Full Investigation more quickly than they otherwise would have (even though, as Sussmann’s team has demonstrated, the FBI did nothing that would have required a Full Investigation in the short period during which they investigated).

A key part of that story Durham wants to tell — needs to tell, given all the evidence that the FBI perceived this to be a DNC-related tip — is that some of his key villains were attempting to hide the perceived political nature of the tip, rather than ensuring the integrity of the investigation itself (or possibly, but I’m still working on this, protecting the identity of a CHS).

Central to that narrative is the changing testimony of FBI Agent Ryan Gaynor — his stated reasons for refusing to let the case agents in Chicago interview either Sussmann or Georgia Tech professor David Dagon. In an interview on October 30, 2020 (a week after Durham had been granted Special Counsel status), Gaynor explained that he had intervened to make sure agents couldn’t conduct interviews that would have led to a more robust investigation to ensure the integrity of the investigation.

Q. Okay. So you remember telling the government that you believed that the agents in Chicago would have been biased by Mr. Sussmann’s perception of the issue — the source’s perception of the issue if they had interviewed him before they got all of the data and analyzed it?

A. Yes.

Q. Okay. And that’s because, at the time, you believed the DNC was the source of the information itself. Right?

A. That’s because, at the time, I believed that he was a DNC attorney associated with the Democratic party and it would be potentially highly-biasing information.

Q. And you told the government, if you had provided the identity of the DNC as the source of the information, they would have known there was possible political motivation. rignt?

A. I recall that exact statement.

Shortly after he gave this testimony, prosecutors took a break, and told his lawyer they were moving towards treating Gaynor as a subject of, rather than just a witness in, the investigation.

Q. Okay. Well, at or around the time you were talking about passing along the source’s name or not, you took a break in the meeting. Do you remember taking breaks during the meeting?

A. I do.

Q. And do you remember when you broke at that point that the government told your attorney that your own status in the investigation had changed. Do you remember hearing that?

A. So I didn’t hear that, but when my attorney came back in, he advised me that my status was in jeopardy.

After that, Gaynor went back, looked at two sets of scribbled notes (Gaynor, because he remains at FBI, was able to review his notes, unlike a number of other Durham witnesses), and decided that now that he thought about it, Jonathan Moffa had actually instructed him to keep a close hold on Sussmann’s identity. It wasn’t his decision anymore, it was Moffa’s, and the dastardly Peter Strzok was in on it. Once Gaynor testified that way, he became a — to Andew DeFilippis, anyway — credible witness again.

Q. Okay. And when you told the government there was a close hold, were you told that your status changed back to being a witness?

A. At the conclusion of the interview, once I had gone over all of the material that I brought and walked through what I had reconstructed and what I could recollect after doing so, I was informed that my status had changed, yes.

Q. Changed back to being a witness?

A. To a witness, yes.

Q. So you go into meeting one being told you are a witness, telling them you decided not to share the agents’ names among other things. Then you are told you are a subject facing criminal charges, potentially. You come back. You tell them about a close hold, and you go back to being a witness; is that right?

Politico may have been the only outlet that described this fairly shocking testimony.

These conflicting claims about the purported reasons to keep Sussmann’s identity (as opposed to the investigation itself) a secret are important background to that Hosenball email on October 5, which I suspect Durham will use to claim that the Democrats were leaking about the investigation.

Starting almost immediately after getting the investigation, Chicago case agents started asking to interview the source, variously defined to be either Sussmann or the person who wrote the white paper. Gaynor kept pushing the agents to go review the logs again — though the file memorializing the contents of what it describes as a single thumb drive (Sussmann shared two) was not written up until October 4. But then, by October 5 (the same day that Hosenball asked the FBI for comment, albeit this report comes in four hours later), FBI had learned from one of their confidential human sources that David Dagon had a role in the white paper and he — and the FBI’s own source! — would be going public pushing the credibility of the allegations.

In that email, newbie agent Allison Sands explained that they were going to contact Dagon.

So, among other things, on the same day Hosenball writes in reflecting an awareness that there was an ongoing investigation, the FBI hears from a CHS who says he or she has already been talking with David Dagon and was going public backing the claims (though this source was speaking to the WaPo, not Reuters).

Note that, as of that date, the FBI still hadn’t received logs from Listrak.

By the time Allison Sands wrote that email, it appears from Lync messages that like others probably haven’t been noticed to reflect UTC time zone, had already contacted Rodney Joffe’s handler to contact Dagon.

Fun with missing Bates stamps

Side note. There are actually two versions of the notes that purportedly caused Gaynor to change his mind about there being a close hold and on what source that close hold was on. There’s Defense Exhibit 524, which has a slew of Bates stamps, and 7 redactions.

And then there’s a page from Government Exhibit 279, which appears between a page with Bates stamp SC-6454 and one with Bates stamp SC-6456, which has no Bates stamp at all (and lacks the protective order stamp that appears on the other pages of the exhibit).

That version of the exhibit has just four redactions, one of which is smaller. The unredacted bits on the exhibit reveal discussions of the informant and recognition that the statements of the informant “likely triggered” the press attention.

Incidentally, Durham’s team took an entire day to upload this set of exhibits. I’m wondering if the exhibit that was viewed by Gaynor and entered into evidence actually looked like this one does.

Calling the agent of a foreign agent to ask for comment

There’s one other thing going on. On the stand, Gaynor spent a great deal of time explaining about how important it was to hide an investigation — particularly from anyone who might have a partisan interest — during an election.

Except for all the talk of a close hold, the FBI wasn’t holding this very close. They were stomping around to a bunch of sources asking for data logs, even before they had checked what was on (one of) the thumb drives that Sussmann had dropped off. They fairly demonstrably were stomping around before they understood what they should be looking for.

They also were calling Mandiant, which was working for Alfa Bank, which by October 19 when they were formally interviewed discovered Alfa Bank had no logs, but which knew of the investigation by October 5.

Q. Uh-huh. You testified about the reasons why you’d want to keep it covert, you wouldn’t want to do anything that could affect the election so close to the election. Right?

A. Yes.

Q. The FBI, as part of the Alfa-Bank investigation, talked to a number of different individuals outside of the FBI to acquire information, to get you information so that you could investigate the allegations. Right?

A. Yes.

Q. Okay. You spoke to people at Central Dynamics?

A. Yes, and I believe the investigative team documented in the email that I saw that they had done it in a manner to attempt to avoid it outing the allegation.


A. I’m sorry?

Q. And how is that that they could conduct an interview with a third party in a way that the third party wouldn’t tell other people about it?

A. They described it in a manner that they had obfuscated what their direct interest was.

Q. So from the Central Dynamics’ perspective, they didn’t know what you were looking at?

A. That is what I had in the email chain, yes. n

Q. But you testified that the FBI interviewed Mandiant as part of the investigation. Correct?

A. Yes. My understanding there is that was a private liaison relationship that occurred.

Q. Mandiant — just to be clear — Alfa-Bank itself hired Mandiant to analyze whether there was a secret communications channel. Correct?

A. Yes.

Q. So Alfa-Bank paid Mandiant to look into whether there was a secret communications channel. Right?

A. Yes.

Q. And Alfa-Bank obviously had a relationship with Mandiant that was put at issue by hiring Mandiant. Right?

A. Yes.

Q. Okay. So the FBI went to Alfa-Bank’s paid consultant and asked them for their view on the allegation. Correct?

A. I believe the FBI had a prior relationship with one of the employees, and they utilized that in the field. Plus, I don’t think the Bureau would violate policy on a sensitive investigative matter when the Chief Division Counsel of the office is involved. So I would assume that they did that in a manner that they did not feel would be alerting or go to the media.

Q. Mr. Gaynor, the FBI in this investigation went to Alfa-Bank’s paid consultant and asked them for their views of the allegations. correct?

A. Yes.

Q. And Alfa-Bank’s paid consultant could have told Alfa-Bank. Correct?

A. Yes.

Q. And could have told the press for all you know. Correct?

A. Yes. And I don’t know how Chicago mitigated that.

Q. And is it your testimony that going to Alfa-Bank, the Russian bank that is the focus of this investigation, and asking their paid consultant for their views on the matter wasn’t going to overt?

A. Again, I don’t know how Chicago mitigated that issue.


Q. Did you ever have a conversation with anybody at headquarters about whether to provide the names of the source to the Chicago agents?

A. Yes. There was a conversation about the close hold, as I mentioned, although it wasn’t correctly, I guess, documented between Pete Strzok, myself and Mr. Moffa at some point during that time period.


Q. And the reason that you say no one talked to him is because, as of that point, October 6th, you had already concluded that there was nothing to these allegations. Right?

A. As of October 5th, evening of October 5th, we had come to a pretty solid conclusion that these allegations did not have merit and there wasn’t a national security threat.

Q. Are you aware that the agents first interviewed Alfa-Bank’s paid consultant, Mandiant, merely two weeks later on October 19th?

A. So I’m aware that we had information from Mandiant as of October 5th that they had looked at this allegation and found that it didn’t have merit. And then I’m also aware that there was an interview that was conducted later, October 19th or so, when I was made aware of it, yes.

A text between Allison Sands and Scott Hellman reflects the FBI had contact with Alfa Bank by October 4.

It appears that contact occurred in London — a place where Mark Hosenball has strong source ties since the time in 1976 when he got expelled for reporting on Northern Ireland.

In other words, Gaynor’s currently operative stance is that case agents couldn’t contact David Dagon — much less Rodney Joffe, who had business ties with the FBI — to find out what was going on, because that would present a conflict.

But it was okay for the FBI to contact the agent of the subject of the investigation overtly.

Agent Gaynor belatedly rediscovers the Mediafire package

Incidentally, when that original request for comment from Hosenball came in, it got transferred to people in the cyber division, then shared with the investigative team. In response, the senior-most person on that team sent it to Peter Strzok. Strzok forwarded it, at 3:02 on October 5, to Ryan Gaynor.

On October 13, just over a week after he had originally received it, Gaynor sent the Mediafire package to the case team, noting that the observations in it reflected actions taken in response to their investigation, but asking for their technical opinion.

He included Moffa and Joe Pientka on that email.

But not Strzok, who knew he had received it 8 days earlier.


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

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

The FBI Believed Michael Sussmann Was Working for the DNC … Until Andrew DeFilippis Coached Them to Believe Otherwise

86 replies
  1. Spencer Dawkins says:

    I’m trying to stay out of the way (as Marcy is posting three/four times a day here, but I do have a newbie question.

    I saw this yesterday (I think?) in one of Marcy’s posts, and wondered about it then, but with more context, I’m more confused.

    “Shortly after [Gaynor] gave this testimony, prosecutors took a break, and told [Gaynor’s] lawyer they were moving towards treating Gaynor as a subject of, rather than just a witness in, the investigation.”

    Is this … normal, for an FBI agent testifying as a witness? Assuming “not”, does this seem like something that the prosecution should have figured out before the trial started?

    My next question is probably whether Cooper is likely bemused by this, but I’ll go back to lurking, rather than asking …

  2. Silly but True says:

    Gayor’s roll-up testimony implicating someone higher in the “joint venture” is that rare, special type: the Roller Coaster roll-up? Whiplash roll-up?

  3. harpie says:

    CS 9:22 AM:

    Judge opens by chastising the prosecution for a question to Novick suggesting a link between Sussmann and the data scientists’ research yesterday, saying it went against his evidentiary ruling. Tells them to keep it clean from here on out. /3

    AG 9:18 AM:

    Day 8 of the Sussmann trial and it begins with an admonishment from Judge Cooper toward prosecutors, who suggests their questioning of Robert Novaick yesterday ran afoul of evidentiary rulings.
    “Let’s keep it clean from here,” Cooper says.

  4. ex_DOJ_guy says:

    As someone who worked, long ago, in the DOJ, I am appalled by Mr. Durham’s behavior and that of his team. [Mods, I am not a sock puppet I just want to be anonymous on this one.]

    Marcy, you have documented the SC’s shenanigans with evidence, both human and documentary. Thank you. You have documented how the trial has been both a trial on a specific charge and an effort to carry a political narrative. Those are both way outside the norms, the culture, the DNA of the Justice Department.

    As a politically appointed employee and not an attorney, I found the career staff’s culture of being squeaky clean about evidence and procedure, including timing of releases to respondents or defendants, at once admirable and a pain in the butt. I wanted to get things done while I was there, now, now! But they were right to have that culture. Cut corners and one of the Department’s most precious assets, a reputation in the Courts as straight shooters, degrades. And the career staffer will have trouble looking in her/his mirror.

    It is a ton of work for career staff to maintain those norms and that culture in the organization. It is, sometimes, a bit of work for the leadership to fend off the White House and keep prosecution nonpolitical. (Congress is easier.) I had friends in the WH, and spent my time with them while at Justice telling them we didn’t work for them, not asking them what they wanted us to do. My job.

    It is the damn job. You do it, or you quit. Professionals at the DOJ are mostly earning a lot less than they could across the street, and they give up the compensation because they “want to wear the white hat” as an old timer told me. Another one said “you can keep them here until the second kid is born, then a lot can’t afford the luxury of wearing the white hat.”

    Are these people perfect? Of course not. Do they never jam a respondent procedurall? Yes, but they try to keep it within the white lines. Do they internalize the norms and culture of clean nonpolitical law enforcement? Yes.

    Where did the SC come from? Where did he find these people?

    End of rant, thank you for your attention.

    [Pseudonym accepted for anonymity, thanks for letting us know. /~Rayne]

    • emptywheel says:

      Andrew DeFilippis, who is notoriously political, was on the SDNY team that got badly admonished for Brady violations in Nejad. He personally was not found to be the most responsible.

      But you’d think after that he’d be trying to keep squeaky clean.

      Alternately he figures his time at DOJ is short and he’s auditioning for a sinecure or a judgeship. It worked for Brett Kavanaugh.

      • ex_DOJ_guy says:

        Thank you, very illuminating. I always thought the SDNY was a hot shop, though I only worked in DC. Judge Nathan, I see, called for the leadership of SDNY to clean house after Nejad. That seems like the right response on top of the prosecutors who actually worked on it getting a huge “L.”

        The ethics rules are not well set up to deter someone who wants to exit into one of those political grift organizations, and problably cannot ever be effective in that regard. There is so much money flynig around, particularly on the political right.

        There is the immediate problem that politicizing a prosecution is working out career-wise for Mr. Durham and Mr. DeFilippis. There is a long run problem of re-establishing the culture. That will be a very large amount of work Y’all young, staight arrow attorneys with talent and drive, after you donate to emptywheel you might consider taking up that work.

        • Thomas says:

          I have guessed who you are. I’m a big fan.
          Thanks for reading Dr Wheeler’s excellent research.

    • Ginevra diBenci says:

      Thank you for also reminding us why we need to be patient with AG Garland’s oversight of the J6 investigation. There is a reason to install institutionalists at the top of agencies that have suffered from politicization during prior administrations; if going by rules takes longer, it also tends toward longer-lasting outcomes, which we will need going forward under a reactionary and activist Supreme Court.

  5. harpie says:

    Marcy, I keep wondering if you’ve seen/might be interested in this from the end of a THREAD that you retweeted the other day, so, I’ll just put it out there:
    4:21 PM · May 22, 2022

    […] This is a really useful and interesting timeline that was submitted in the prior Alfa Bank lawsuit that was recently dropped by Alfa Bank. Ironically it allowed for the Daniel J. Jones report on the Alfa / Trump / Spectrum / Heartland Payments to become part of the public domain. [screenshot][…]

  6. Padfoot says:

    How can a single charge of lying require so much evidence? The jurors must be stunned and stupefied.

      • Silly but True says:

        The fact is there are two parties to the alleged crime: Sussmann & Baker.

        10 different FBI personnel have been witnesses plus a CIA agent for good measure.

        The government called up about 24 witnesses, and Sussmann has about 12 more or sowhen all will be said and done tomorrow.

        For just two people who witnessed the alleged crime.

      • Silly but True says:

        It seems that Durham is dead-set on a defeat with all of this other “stuff.”

        You run Baker on stand with his “100% confidence” of Sept. 19, and you run Sussmann’s $12.00 DC Staples receipt for thumb drives turned over to Baker that Sussmann billed to HFA.

        That’s it. You run that. On white board you write:

        “Baker: 100% confident. Thumb drives billed to campaign.”

        That’s the government’s case.

        We don’t need nine days of testimony that lawyers bill in 6 minutes and FBI agents can’t ever recall anything not written down.

    • earlofhuntingdon says:

      I think DeFilippis, with a pedigree that includes Princeton, Yale Law, and Sullivan & Cromwell, is floating on his ambition and arrogance and imagines himself and his cause to be above the law. He is more actively evil than Kavanaugh. Wingnut welfare may prove him right. I hope this case and judge do not.

      • Rugger9 says:

        A bench referral to the Bar would go a long way toward getting accountability. I am encouraged by the admonishment from Judge Cooper, but we’ll wait to see if this is a trend as opposed to a one-off.

        • earlofhuntingdon says:

          I hate to repeat myself, but DoJ lawyers not disciplined by state bar authorities. The OPR at DoJ disciplines them – or not.

          • Rugger9 says:

            No federal bar? How does one get qualified for arguing in the federal system? Even so, going after the state bar license(s) works for me, since I doubt moral turpitude only applies to events in state courts.

            • bmaz says:

              Again, state bars will never touch this. Never. And as long as a DOJ atty is licensed in any District, they can practice in any other District. People really need to give up on the idea of bar sanctions, it will never happen.

  7. greenbird says:

    i leave this comment for myself, to pick up where i collapsed.

    “Incidentally, Durham’s team took an entire day to upload this set of exhibits. I’m wondering if the exhibit that was viewed by Gaynor and entered into evidence actually looked like this one does.”

    thank you, marcy. this is working well; brane needs oiwl change and new gaskits is all.
    i not sleep well, neether.

    • Rugger9 says:

      Does the defense have these documents or did Durham / DeFilippis surprise them too? If the defense does have them, I have no doubt Sussmann’s team did read these exhibits and are ready to ask pointed questions. Otherwise, DeF just gifted yet another appeal point if needed for withholding required discovery.

  8. harpie says:

    CS: 10:32 AM

    On redirect, prosecution shows emails showing that on 9/20 Sussmann said he spend 4.5 hours on work on written materials/coms re confidential project the day before, but in a 11/6 email, after election, Sussmann said it’d been 3.3. hours on conf. proj – about an hour less. /23

    [Did prosecution say “after election”, or CS?]

    Marcy 10:34 AM:

    Not even sure this helps Durham, to be honest. Bc he may have taken that charge off BEFORE the election.
    Starting with the fact that the election was 11/8.

    [harpie: !!!!!!!]

    • harpie says:

      CS 10:52 AM

      Correction to tweet 23 above: the election was two days after the Nov. 6 email, not two days before like I said. Apologies. h/t @emptywheel /25

  9. Scott Johnson says:

    The government, you are saying, is putting on a slideshow of random bits of evidence, with no context or the ability of either party to interrogate whoever produced the material?

    A paralegal (for the prosecutor) is now a witness?

    Is any of that common in criminal trials? Or am I misunderstanding what is going on here?

    • Silly but True says:

      Kori Arsenault is extremely competent. She’s the primary one who’s reached out to all the witnesses, has collected and prepared all the evidence exhibits; she’s copied on a lot of the Durham team interview subjects’ meetings, scheduling, etc.

      It’s not uncommon for paralegals to serve as summarizing witness.

      Arsenault was awarded DoJ’s Director’s Award for Superior Litigative Team for her case work on 2017 Operation Red Slide case that took out 21 members of Bloods gang that resolved resolved seven murder cases, four attempted murders and four armed robberies that occurred in 2011 and 2012.

  10. earlofhuntingdon says:

    Fuck Greg Abbott and the “mental health” distraction he rode in on. Unsurprisingly, he totally ignores the vast number of guns in Texas and the intentional state disregard for rationally vetting who should own them. They proliferate like pollen. (Yes, it’s a complex issue, but guns are front and center part of the problem.)

    Beto O’Rourke’s outrage is understandable, but he chose poorly in interrupting Abbott’s so-called press conference. I think it makes him look shrill. His counter-speech outside Abbott’s gathering was better. He says we owe those parents and families action – not more thoughts and prayers. He mentions specifics – such as outlawing the consumer sale of assault weapons – which Abbott studiously avoided.

    Abbott’s retainers dutifully out-shouted O’Rourke, calling him a “sick som’ bitch,” for politicizing a tragedy. Horseshit. Abbott and his NRA-supported team are doing the politicizing by refusing to offer political action to lessen the likelihood of further tragedies. The Texas lt. governor chimed in, calling it a tragedy that “we” can’t stop dividing each other. His obtuse distraction – his party and its corporate patrons are responsible for the dividing – is gaslighting the nation and ensuring more kids needlessly die.

    • earlofhuntingdon says:

      The right hasn’t lost a beat in trotting out lines scripted by the NRA and groups like ALEC. Greg Abbott claims, for example, based on fraudulent analysis, that gun laws don’t work. (But he fully supports the GOP-initiated congressional ban on public funds being spent on gun research.)

      The execrable Kyrsten Sinema doesn’t think there’s a “DC solution” to this problem. Another obnoxious line is, if guns are good enough to protect elected leaders, why are they not good enough to protect kids?

      Imagine a society where each member is protected by its own Secret Service. Not even in Rome. Wealth elites wouldn’t tolerate the cost to the public purse. Nor would they want average Americans so constrained if well-protected: it would make it too hard to oppress them and too easy for them to challenge the elite. It would be like having one person, one vote – all vetted and counted – rather than what we’re approaching: one dollar, one vote.

    • Rugger9 says:

      Ditto on the sentiment. What I also find appalling and part of a pattern is to float excuses that can be ignored or ‘studied’ later and the GQP has consistently refused to fund mental health even with free money from the federal government. This is part and parcel with the refusal to fund support for the babies that they force women to bear (even with free money from the federal government).

      This was after Gosar, et al tried to float the idea of the LGBTQ illegal immigrant as being responsible (he had one of THOSE names, y’know) until they scrambled to scrub the references when they were shown to be wrong. Unfortunately, Gosar will doubtless be re-elected in a landslide. Have pity on bmaz for have to live with that shame in AZ.

      Beto was quite right to call Abbott, et al out and I would suspect more than a few Texans are going to support Beto for doing that alone.

      • Alan Charbonneau says:

        I will certainly be voting for Beto. I was happy to see him confront Abbott. I’d like to see him get crushed although since Paxton was re-elected, I can’t count on the sanity of my fellow Texans.

        • Alan Charbonneau says:

          I just saw this on twitter:
          BREAKING: The State Bar of Texas has sued state Attorney General Ken Paxton, arguing that he should be reprimanded for making dishonest election fraud claims in a 2020 petition that asked the U.S. Supreme Court to overturn Joe Biden’s election victories in four swing states.

        • Rayne says:

          Hope Texans wise up and replace that corrupt motherfucker Paxton. I wish Joe Jaworski would have won the Democratic primary but Rochelle Garza’s work with ACLU would serve Texans well.

    • Rayne says:

      but he chose poorly in interrupting Abbott’s so-called press conference. I think it makes him look shrill.

      This has bothered me since I read it more than 2 hours ago; I’ve been stewing on it since. Examine your definition of shrill and why it’s inappropriate to aggressively demand accountability of a elected official who signed a bill into state law allowing if not encouraging the mass murder of children yesterday even as their blood is still drying on the school floor.

      Shrill is that same elected official attending a goddamned fundraiser the night of the murders, while parents’ DNA was still being collected to identify their children.

      Shrill is anyone who is trying to shout down the public grief over a wholly preventable mass murder by making vaguely threats against the president.

      Shrill is Fox News defending gun manufacturers TODAY less than 24 hours after 18 children and a teacher died in a hail of gunfire.

        • bmaz says:

          I have no problem with what Beto did. He was not overly loud or demonstrative. Just speaking out, which seemed appropriate given the platitude shit show being conducted. Heck, I did not even know it was him at first. That whole room should have been screaming at Abbot, Patrick et. al. it was a ridiculous performance of avoidance.

          • Anathema Device says:

            “I have no problem with what Beto did.”

            Me either. I think it was brilliant.

            (I was simply riffing off the “Hillary/AOC/[targetwomanofchoice] is shrill!” criticism which gets bandied about. It’s the first time I’ve seen it levelled at a man. It’s a ridiculous attack, regardless of gender.]

            • earlofhuntingdon says:

              Your memory obviously does not extend to Howard Dean’s campaign for president, and the excited shout that helped tank his candidacy.

              The actions Rayne properly excoriates have nothing to do with shrill either, but should be condemned. My point was about effective opposition.

              Beto could be heard and understood when he spoke to reporters outside the building. It was clear he was not grandstanding for political points, but out of passion and advocacy for fixes obvious to anyone not drinking the GOP kool-aide. But inside, he could not be heard or seen. He had no microphone, there were no lights. As bmaz observed, no one not there could tell who he was. His message was temporarily lost, except for the panicked defensive shouting he elicited from Abbott’s protective screen of starchly-uniformed so-called law enforcement officers.

              • Anathema Device says:

                “His message was temporarily lost, except for the panicked defensive shouting he elicited from Abbott’s protective screen of starchly-uniformed so-called law enforcement officers.” [emphasis mine]

                Which is a message in itself – about the flaming hypocrisy of the gun humpers. Also:


                “Beto is now gaggling outside of the Abbott presser with what appears to be every television camera in America, raging in English and in Spanish, and msnbc cut away from Abbott to carry Beto live.”

                So he managed to get his message across just fine. None of what you described could be called ‘shrill’. It looks to me, as an outsider, like it worked very well. Politeness doesn’t win elections in your country or mine – not when you’re up against literal, murderous evil.

                “Your memory obviously does not extend to Howard Dean’s campaign for president, and the excited shout that helped tank his candidacy.”

                Chiding a non-American about (a) something to do with the finer details of a presidential primary in your country and which (b) turns out to be pretty much a myth….

                Could be called ‘shrill’, don’t you think?

                Beto O’Rourke is a very canny politician, and he’s reading the room very nicely just now. I don’t see the need to dump on the good guys when they are doing the right thing, and there is so much garbage on the other side of this you could be going after .

                • earlofhuntingdon says:

                  My comment was more than a single adjective, but that seems to be lost in the outrage.

                  I don’t know where you live. Nobody but the moderators know from where you might be sending your comments. Facts are facts, about Howard Dean’s run for president or John Durham’s misdeeds, whether you know them or not.

                  An argument requires context. Beto’s half of the argument – inside – was lost until he went outside. It starts with whether he was the speaker and why the shouts from Abbott’s phalanx of defenders were well-taken or a fascistic shouting down of someone interrupting their security theater. (Which argues against letting Texas be the sole investigator of this tragedy.) Beto made his important case outside.

                  I’m glad he did. He’s one of the few politicians making the argument, whether it’s on avoidable deaths, guns, abortion, healthcare, energy, or education. It doesn’t mean he should be free from criticism.

                  • Anathema Device says:

                    “I don’t know where you live.”

                    I’m Australian, living in Australia. I have close friends in America, lived in the UK for many years, and have friends and family there. So my interests and background are very, very wide. File that for future reference.
                    For the record, I know what the Dean Scream is (and I also knew the claims about its importance were overblown), but I bet you can’t tell me what a teal candidate is.

                    ” Facts are facts, about Howard Dean’s run for president ”

                    And yet you claim that the scream “helped tank his candidacy” which is far from established fact at all. And it’s not comparable to or relevant to Durham’s investigation. If you are trying in some way to compare your ‘shrill’ comment to what Marcy Wheeler is doing, you’re well off the mark.

                    “It doesn’t mean he should be free from criticism.”

                    Your criticism is stupid. He went there to kick up a righteous fuss and draw attention to vile hypocrisy. He succeeded.

                    Maybe you should drop this one, my lord.

                    • earlofhuntingdon says:

                      A lot of my comments might be stupid, but not the idea that even our favorite political standard bearers should not be above criticism. Whether mine was justified is another matter.

                      I’ve lived and worked in a lot of places, too, and from your comments, it doesn’t surprise me that you claim an Australian connection. As for teal, I only like it on a vintage TR6, not on politicians who are progressively green on environmental issues, but conservatively blue on fiscal issues. G’day.

                    • blueedredcounty says:

                      @bmaz – This joke is from college friends working on gas turbine engine controls.
                      Why do Brits drink warm beer? Lucas makes refrigerators, too.

                    • earlofhuntingdon says:

                      That’s why you never drive a TR6 at night, plus Lucas the electrical genius is the man who invented darkness. And who ever said the Brits had fridges?

              • Ginevra diBenci says:

                I saw the Dean scream on live TV. It seemed forced to me, but it was no big deal until the media (mostly TV) blew it up. Network and cable news declared his candidacy dead and then killed it. We need to remember the whole story, not the storytale. (Yeah, I’m going with Dr. W’s new word because I love it, specifically to describe ginned up narratives presenting themselves as fact.)

    • Scott Johnson says:

      What I am enraged about is the persistent double standard that GOP politicians and activists and other supporters are able to be as callous, immoral, vicious, hypocritical, obnoxious, or blatantly fascist as they like and not only is it normal and fair, but clever politics, whereas the second any Democrat raises his/her voice in anger, or colors outside the lines even accidentally, or changes their mind on any issue, or otherwise acts without perfect decorum, it’s a constitutional crisis of the highest order. We have Texas politicians who glorify the death of Brown and Black people, and do it to cover manifest corruption in office, and Beto is the bad guy here?

      Fuck that.

    • Mister Sterling says:

      There is never a perfect time to confront Abbott, but what Beto did yesterday was a little brilliant. He provoked Abbott’s entourage to insult him. They didn’t just insult Beto. They showed what they think of anyone who votes against or criticizes their government. Beto is not known for courage or big moves. Yesterday was a big move for him.

      And just so everyone is clear, the shooting was not caused by mental health problems. The problem is masculinity. Our society encourages young men to be full of rage. Add 400 million firearms on our soil, and you have this.

      • Rugger9 says:

        I notice the police were perfectly able to clear Beto out for daring to annoy Abbott, but (tbf a different group) sat outside the Uvalde school after ‘containing’ the gunman (with the teachers and students also barricaded in) even to the point of threatening to tase parents who wanted to go in for their kids. This continues a pattern also seen in Parkland FL (where the SRO was allegedly disciplined for cowardice while 17 students were shot) and other places.

        One thing to remember is that for responding officers they do not necessarily know who the gunman is exactly whereas the gunman knows everyone else is the target. That caveat did not apply in Uvalde, where the gunman was able to get past the SRO with a rifle and they knew where he was and that he’s the only man in the room with kids and female teachers. Apparently shots were still being fired during this time (it might lead to lawsuits for failing to intervene since I’m pretty sure the coroner can determine the sequence of deaths).

        It will be telling how the police union responds to these reports, my guess is that they’ll whine about how dangerous and hard their job is, but I should also note that COVID-19 killed something like 2x more officers than gunshots (COVID is the number one killer). I’m not going to be impressed if that’s how the union addresses it, knowing that Uvalde had a very large SWAT team allegedly prepared for precisely this situation. I hope I’m wrong in my assessment.

        • earlofhuntingdon says:

          Yea, that the local police waited, or were ordered to wait – outside the building! – for about 45 minutes for a SWAT and/or Border Patrol assault team was the last straw. It allowed the shooter barricaded in that classroom to turn it into a morgue.

          After the billions in training and resources poured into local LE since 9-11, after frequent mass shootings in schools and houses of worship, in malls and grocery stores, after a total gun death rate approaching 120 people a day, have local LE no ability to do more?

          Imagine how long that was for those two teachers and nineteen students. Puts paid to the notion that all we need to defeat a bad guy with a gun is a good guy with a gun.

          I humbly take back calling Beto “shrill.” But I repeat my comment about not allowing Texas LE to be the sole investigator of this massacre. It seems to have too much to hide, which was apparent from Abbott’s presser.

          • P J Evans says:

            Uvalde has a “SWAT team”. WTF were they doing during all this, with their equipment and extra training? It’s 9 people – that has to be most of their cops.

        • earlofhuntingdon says:

          I see that the Texas LE story about the Uvalde shooting is falling to pieces, with serial corrections today: No school resource officer on scene, no confrontation with the shooter before he entered the building. He entered through an unlocked back door, the shooter shot at people outside the building, after which local LE fell back and waited for an assault team, which eventually came from the Feds an hour later.

          One mother, enraged that the police were waiting outside for so long, was restrained with handcuffed. When released, she ran inside the building and came out with her two kids. No comment from police. [Details from multiple twtr feeds.]

          I repeat my comment that Texas LE should not be allowed to investigate their own conduct, what happened, what procedures were in place, whether and how well they were followed.

          An Uvalde deputy sheriff apparently lost a child in the massacre, so I don’t put the inaction down to cowardice. More likely, orders were given. Someone gave them. Parents and the public need to know who did what and why.

          • P J Evans says:

            I notice that most of the kids were Hispanic, and at least one of the teachers. The mayor is white. I wonder what the local politics are like.

            • Rayne says:

              Uvalde is 78.46% Hispanic/Latinx and 19.17% non-Hispanic White according to the crappy 2020 Census.

              ADDER: this congressional district, TX-23, used to be Will Hurd’s, who was a favorite of the NRA. It’s now repped by Tony Gonzales (R) who votes straight party line with GOP. Just plain useless.

              It’s currently rated R+1 so it’s fair game. I hope Democrat John Lira can pull it off against Gonzales.

    • Bruce Olsen says:

      I don’t disagree with you very often, but it’s exactly the right thing to do: he’s trying to fire up the Dems (in addition to it being, I believe, genuine emotion). He needed to be in Abbot’s face. He elicited just the right reaction from them.

      Who else is going to motivate voters? Schumer? Pelosi?

      PS Saw Mikie Sherrill the other day discussing the Jan 5 tours she witnessed and she’s going to be POTUS. She’s very, very good.

    • ernesto1581 says:

      bastards. all of them, filthy bastards.

      I am living in a Rochester NY neighborhood and shop at a Tops that little creep from the “southern tier” checked out before deciding to drive to Buffalo. the only reason he didn’t pick West Main in the 19th Ward is because the day he visited, apparently, there weren’t enough people in the store. too bad, they have nice collards.

      damn these useless creatures to the bottom of hell, all of them. may they walk across burning coals for eternity, carrying their bowels in their skulls, the little murderers and the big murderers who enable them.

      ‘course, he bought his fucking military-grade weapons fair and square, the day he turned eighteen, so that’s alright then…

      I can’t spit far and dirty enough…

  11. bg says:

    NO MORE VOTES for anyone who “leads” with hating women and loving guns. I wonder if the media would have been covering Beto outside if he had not stormed inside first?

    We all need to pick a race that matters in our area where we can be knocking doors, phone banking, and writing LTEs; doing whatever it takes to turn out the vote against these bastards.

    • bmaz says:

      That was a rather thin defense case. And am kind of surprised Sussman won’t testify, though Baker was was so all over the road, they clearly did not see the efficacy of putting him in the chair.

      • Jeffrey Gallup says:

        It seemed thin to me as well. Of course, the only way to confront Durham’s relevant evidence head on would be to have Sussmann testify. I’m not sure if anyone has addressed this, but the language of the text, that Sussmann was not coming to the FBI on behalf of any PARTICULAR client, suggests to me he was saying that more than one – maybe several – clients – might have an interest or stake in his FBI meeting, not that none were being represented.

        • bmaz says:

          This is why I was semi-surprised Sussman did not testify. Jurors always “want” to hear from a defendant. But especially where it is locked into a he said:he said thing like between Baker and Sussman. The problem is that Judge Cooper let so much extraneous horse manure in the record that it really dirtied the water as to Sussman on this. It has been a pitiful trial.

    • greenbird says:

      i fear the sheep, as of now, are in the cockpit.
      8 hours with no post ? – was there a head’s up ?
      do we know WHO THESE SO-CALLED ‘SHEEP’ ARE ??

  12. rosalind says:

    can’t wait to see what b.s. Durham pulls tomorrow to ensure the Defense doesn’t get to their close until Tuesday…

  13. Cosmo Le Cat says:

    Since we are off-topic, here’s some good news.

    NY appeals court ruled Trump and his spawn must sit for depositions in NY Attorney General’s civil investigation of the Trump Organization.

  14. Bruce Olsen says:

    I don’t disagree with you very often, but it’s exactly the right thing to do: he’s trying to fire up the Dems (in addition to it being, I believe, genuine emotion).

    Who’s going to motivate voters? Schumer? Pelosi?

  15. Doctor My Eyes says:

    Just because it still sticks in my craw, I have to weigh in to say the famous Dean scream was completely manufactured. With normal audio including the raucous crowd noise, the scream was completely natural, inspiring even. The audio was doctored to omit the crowd noise. It wasn’t the scream per se that sunk Dean, but it was the manipulation of the powerful overlords who choose what to show the public, how to make it look and sound, and then tell us what to think about it. Much as has been going on in the Sussman trial. I am still bitter about this because, to me, Dean represents the fact that Democrats work very hard to keep popular opinions at bay. Dem leadership and good little Dems everywhere chided those of us who wanted to make the Iraq War an issue. They hid behind their pragmatic masks that claim widely popular things are simply too radical. Then Dean came out against the war and suddenly he was front runner for president. What a fucking surprise! Such representation of the “radical left” had to be stopped. Sorry for the extended OT, but I think the Howard Dean story exemplifies a lot of what is wrong with American politics and does so with unusual clarity.

    Yeah, I could do without the word “shrill”. It seems to me to be in the same class as “hysterical”, whose provenance leaves little doubt as to how insulting it is. Nonetheless, I am sympathetic to the Earl’s point. That was my first reaction, too, but mainly because it looks so much like grandstanding for political purposes. I’ve since changed my mind. I assume it came from the heart, and I think it was good politics, too. Fuck ’em if they think we’re shrill. What is it they like proclaiming in public? Oh yeah, “Fuck your feelings.” What do we care if they find us shrill.

    • Rayne says:

      Doc, the media amped the Dean scream. They’re the ones who decided to hound the story the way they did Hillary’s emails. Did the Democratic Party’s old school members dislike Dean? Sure — they’ll dislike any newbie until they’re persuaded otherwise by the grassroots. AOC’s another example. It doesn’t help that Fox News has been part of the ecosphere intent on attacking any Democrat who tacks further left.

      What I don’t understand is why you thought there’s a difference between Beto’s heartfelt effort and Dean’s scream. If this is the worst that anybody can say about either of these Democratic men, that they’re too open with their feelings after all the fake bullshit we’ve been through with Donnie’s orange makeup-covered incitement and GOP thoughts-and-prayers corruption, Jesus, gimme the feelings.

      • Doctor My Eyes says:

        I’m not sure where the misunderstanding is, but I don’t understand your response to my comment. I’m not crazy about the use of the word “shrill” because I think it’s sexist and inherently insulting. That’s one thing alone.

        I didn’t have any intention of differentiating between Dean’s scream and Beto’s challenges to the Abbott gang–I don’t see much reason for comparison. I brought up Dean because he was discussed above and I think the essential feature of that story is that something that looked and sounded completely normal and human in real life was doctored to look unbalanced. It was pure manipulation. And I think that happened not because he was a new-comer but because he stood up for those of us who don’t approve of spending trillions on foreign interventions.

        Since you bring it up, I think there is a big difference between the two examples. Dean was screaming a pep rally kind of scream in a room full of deafening noise. Beto was addressing people with words in a room that became heated as his challenge continued but never reached anything close to the level of noise at the Dean event. At no point does Beto raise his voice more than necessary to attempt to be heard. These seem to me to be completely different situations, in neither of which did anyone exhibit shrillness and in both situations the men seemed to be coming from the heart, to their great credit.

        As to the implication that with time newcomers to the Democratic Party–even those who would actually challenge the military-industrial complex and the stranglehold of corporations on our country–can eventually prove themselves and be welcomed in, I beg to differ. Sanders will always be undermined by the Democratic elite. Hell, Democratic operative Marcos constantly threatens to forbid Sanders diaries on dKos during primary season, and he supposedly represents the Progressive wing of the party. (He doesn’t.)

        • Rayne says:

          Sanders is a Democratic Socialist who caucuses with Democrats the same way independent Angus King does. Sanders has not invested effort in building or fundraising for the Democratic Party; it makes zero sense as long as he doesn’t want to be a Democrat (except when it’s convenient to run for POTUS and “borrow” Democratic resources) why the Democratic Party should be concerned with him.

          Be specific: who do you mean by “Democratic elite”? I don’t know of any “elite.” There’s simply nothing in the national or state party by-laws which allows for Democratic Party resources to be committed on the regular to someone who isn’t a Democrat. The Democratic Party doesn’t do anything much for Angus King, either, and I don’t see you complaining on his behalf.

          It’s also Markos, not Marcos, and it’s his website, he can do what he wants with it.

          • Doctor My Eyes says:

            Is Sanders less deserving of Democratic Party resources than Manchin? In any case, even though he supports the goals of the party with his actions more reliably than others, I’ll concede your point that he doesn’t call himself a Democrat. It strikes me as disingenuous to claim that he doesn’t help the Democratic cause by, say, giving his support to the Democrats who defeat him in the primary.

            Are we to assume there is no such thing as a Democratic Party elite? Is that really a serious question? Democratic elite are people who have a lot more power than the average Democrat in choosing which candidates receive support from the party and which do not. Democratic elite are the people who have outsize influence over the party platform, over what causes Congress takes up. Rahm Emmanuel was acting as a Democratic elite when, during the first week of Obama’s presidency, he told Democratic congresspeople that progressives are fucking retarded. Those words carried power.

            As to Markos’ website: yeah, that is an interesting thing, isn’t it? A website that calls itself a community, that gives the appearance of being a big grassroots endeavor with free exchange of ideas and vibrant discussion of what progressives want is, in point of fact, a dictatorship in which one person can (and does) unilaterally decide what is and is to not acceptable discourse. Is that really how Democrats want to organize themselves? But usually the control of narrative is done there by much softer means than the iron hammer. For example, heaven help the commenter that pointed out that Obama’s deployment of drones for summary execution was a war crime. There would be no honest, straightforward discussion of such things on dKos.

            I’m not quite sure what this discussion is about. I’m not clear why you took exception to my original comment, or seemed to. It all seems pretty far afield at this point. I just couldn’t resist making a point about the Dean scream. If people have never seen the video and heard the audio of the scream in the context of the room in which it occurred, perhaps they don’t understand why I’m insisting on this point. It’s not difficult to find analyses of how the commonly heard broadcasts of the scream were a manipulation.

Comments are closed.