The Staples Receipt and FBI’s Description of Michael Sussmann Sharing a Tip from Hillary

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Both sides in the Michael Sussmann case will give their closing arguments today. I’ll try to watch the live tweets, but will be driving around Achill Island so likely will have little Internet access.

I have yet to see the jury instructions, which will dictate a few details of the closing arguments. Most important — as I have noted before — is whether Durham will have to prove the actual allegations in his indictment.

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

4 Authority: Indictment.

5 Authority: Indictment.

Durham’s single witness is the only one who claims to have remembered this meeting, but he has had about six different memories of the meeting, and Sussmann made a really good case that Baker’s evolving testimony (as well as that of several other witnesses) is an attempt to avoid legal jeopardy himself. Sussmann has shown a receipt that did not bill his $28.00  taxi to Hillary, and I believe he affirmatively took the meeting time off his bill to Hillary before the election (though I need to check the records).

That leaves Durham with a September 13, 2016 $12.99 receipt for two thumb drives and a Google map from his office to Staples to buy it.

BY MR. KEILTY: Q. Ms. Arsenault, what, generally, is this document?

A. This is an expense report we received from Perkins Coie.

Q. And can you walk the jury through the information in this document.

A. Sure. In the top left corner, the report name is “Purchase of flash drives” on September 13, 2016. The expense owner is Michael Sussmann. The submission date is September 22nd in 2016. If you go all the way down to the allocation summary, the allocations charged is 116514.0001, confidential, for $58.56.

Q. Ms. Arsenault, in your review of records, have you seen that number under the allocations charged, the 116514.0001 number before?

A. I have. Q. Is that related to a certain client?

A. Yes.

Q. What client is that?

A. It’s Hillary For America.

MR. KEILTY: Okay. Mr. Algor, can we next look at Government Exhibit 553.19 — I’m sorry, can you leave it there. (Pause) Can you go down to the next document in 380.

(Pause) Okay. And could you go down to the next document, please, in the same exhibit. Could you blow this up, please.

Q. Ms. Arsenault, what is this particular document?

A. This is the receipt for the expenses reflected in the previous two pages of the expense report.

Q. And was this receipt contained in the records the government obtained from Perkins Coie?

A. It was.

MR. KEILTY: And if you go about halfway down the document, Mr. — sorry, the receipt. Could you blow up the section where it says “PNY 2 Pack,” Mr. Algor. Thank you.

Q. Ms. Arsenault, I think you might have said this, but where is this receipt from? A. Staples.

Q. And what does the blown-out part say?

A. “PNY 2 pack 16GB,” as in gigabyte. And then there’s a UPC code. And the cost was $12.99.

MR. KEILTY: Okay. And moving out of that, can you just blow up the address of the Staples.

Q. Okay. And what’s the address?

A. 1250 H Street N.W., Suite 100, Washington, D.C., 20005.

MR. KEILTY: Okay. And can we please pull up Government Exhibit 553.19 in evidence.

Q. Ms. Arsenault, what are we looking at in Government Exhibit 553.19?

A. This is a disbursement report from the billing records from Perkins Coie.

Q. Okay. And can you walk the jury through this — the blown-out part of this report.

A. The client assigned for this disbursement is Hillary For America. The matter is General Political Advice under 116514.0001. And the description is “Sussmann, Michael A. – M. Sussmann, purchase of new, single use flash drives for secure sharing of files, 9/13/2016.”

Q. Okay. And finally, Ms. Arsenault, I’m going to show you what’s been marked for identification as Government Exhibit 63, which will show up on your screen. Ms. Arsenault, what is Government’s Exhibit 63?

A. It’s a Google map displaying the directions between the office for Perkins Coie to the address listed on the Staples receipt.

Q. And did you create Government Exhibit 63?

A. I did.

Q. And how did you create Government Exhibit 63?

A. I went on Google and I typed in both addresses, and I printed the result.

MR. KEILTY: Your Honor, the government would move Exhibit 63 into evidence.

MR. BOSWORTH: No objection.

THE COURT: So moved.

MR. KEILTY: Mr. Algor, can you blow that up.

Q. Okay. And, Ms. Arsenault, on this map Perkins Coie is listed, is that correct, with the red dot?

A. Yes.

Q. And then there’s a series of blue dots, which apparently lead to a blue bubble; is that correct?

A. Yes.

Q. And what is that blue bubble? What address is that?

A. The blue bubble represents the address listed on the Staples receipt, which is 1250 H Street N.W., Washington, D.C., 20005. [my emphasis]

I expect Durham introduced the map to show that Sussmann went to buy these thumb drives immediately after some phone call or meeting.

As described, there are so many ways to explain these thumb drives. Remember: Sussmann admits he shared the story with the press and wanted it to come out. What he denies is that his intent in going to the FBI was in getting them to investigate to serve the story.

Durham will also claim, probably falsely, that Fusion or Sussmann had to have told Mark Hosenball about the investigation; I know of no evidence that’s the case, Durham’s repeated efforts to misrepresent the timeline on Fusion emails suggests he doesn’t have that evidence, and plenty of reason to believe there are other ways he could have learned about this.

Perhaps Durham has more somewhere.

But, particularly depending on the outcome of that jury instruction, even that receipt may not be enough. That’s because Sussmann has presented this piece of proof about how the FBI understood his tip.

One of the first people to respond to this tip (this text is likely in UTC, not ET, so this is likely at 4:31 on September 19, four hours after the meeting) understood it to be:

  • A tip about a Trump company, not Trump himself
  • From the DNC and Clinton
  • Bringing information a private cyber group had identified

That is, whatever Sussmann said in the meeting with Jim Baker, the best representation of what the FBI understood showed him identifying both his possible clients. And identifying a tip not about Trump himself, but his corporate person and a Russian bank that the FBI understood to have ties to Russian intelligence.

It’s hard to claim this alleged lie was material if the FBI responded to it as if he had fully disclosed both Hillary and private researchers like Rodney Joffe’s role in it.

Update: Corrected two errors (the UTC conversation and a spelling error). To make up for not covering the trial live, here’s my excuse

Update: Here’s Sussmann’s Rule 29 motion for a judgment of acquittal. This is a routine motion defendants always file. Because of the political nature of the case, Judge Cooper would never grant it. And there’s nothing terribly exciting in it.


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

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

126 replies
  1. Rugger9 says:

    I hope Sussmann’s team hammers that last tip item home in closing, because it clearly shows there was never anything to charge. Where is the intent to deceive if FBI knew of and listed the clients on the same day? Is Durham going to try and claim that some other lawyer (not Sussmann) did the notice? How many lawyers with the HFA and DNC client connection would have been talking to the FBI on 19 SEP 2016? AFAIK only one name fits all of the connections: Sussmann, and that means he’s cleared. If Sussmann had hidden the connections, ‘Moffa’ would not have mentioned them. Baker’s testimony alone should have killed this as well.

    Remember, the prosecution was never really the point. It was always about publicity and getting HRC’s name in circulation to rile up the rubes.

    Who is Moffa? Were they called as a witness?

    • harpie says:

      Moffa was on the list [not sure if he got called, because I just can’t keep up!]:

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

      • Silly but True says:

        Moffa was not called.

        Incidentally, he’s the guy that the one who did testify, Ryan Gaynor, threw under the bus when Durham changed Gaynor’s status from “witness” to “subject,” then back to “witness” after Gaynor first took responsibility then magically remembered it was his boss Moffa who directed him.

        • Silly but True says:

          Also, Moffa’s account: “…dropped off an envelope to GC Baker this am…”

          This _am_?

  2. Thomas says:

    The single fact most important in this Sussman case, in my opinion, is that there WERE DNS lookups between servers belonging to the Trump Organization and the servers belonging to the sanctioned Russian bank with ties to the Kremlin, Alfa Bank.

    It HASN’T been explained. It WASN’T properly investigated. The radical fanatics want to jail the person who brought the evidence to law enforcement.

    • Theodora30 says:

      It has been infuriating to see the mainstream media claim that it was disproven that those lookups happened. I read an article just the other day that made that false claim. Some reports accurately say that they have not been explained but were dismissed as not important but many say it has been proven that they never happened.

      • Ginevra diBenci says:

        Yes. Devlin Barrett is doing a slightly better job of not simply serving as DeFilippis’s stenographer, but judging from the WP comments (of which there were distressingly few), today’s take-away remains No One Is Allowed to Lie to the FBI, with the subtitle being that this “well-connected DC lawyer” acted as if the rule did not apply to him.

        Shorthand: there are rules for you, but certain elites (Democrat-affiliated) believe they’re excused from following them.

        • johno says:

          Copy that… I just wanted to use that Star Wars line. But this DNS traffic has never been explained – and it is pretty incredible.

    • harpie says:

      CS 9:16 AM:

      The jury is brought in. Algor [prosecution] begins his argument: Sussmann lied on Sept. 19 to conceal his clients because he knew the chances of FBI investigation would be seriously diminished if they knew Clinton campaign role and Joffe wanted to conceal his role./4 […]

      [Algor]: “It wasn’t about national security. It was about promoting opposition research against the opposition candidate, Donald trump.”/5

    • harpie says:

      CS 9:38 AM:

      Comment: The defense’s narrative, as I understand it, is Sussmann *was* working for HFA in trying to get media to write about Alfa, but not in his decision to later give copy of same materials to FBI. If so they will argue that most of this is beside the point./11

    • harpie says:

      CS 9:53 AM:

      Algor notes that on Sept. 20 email, Sussmann logged 4.4 hours working for HFA on 9/19. But on 11/6/2016, Sussmann sent email changing that log, saying he spent only 3.1 hours working for HFA on 9/19. Algor argues Sussmann changed time entry to cover that./19

      [Election was 11/8/16]

    • harpie says:

      CS 9:58 AM:

      Algor accuses Sussmann of having concealed from Congress that he had worked with Fusion GPS which wrote one of the white papers he gave the FBI, and of making no mention of the Clinton campaign, which he had been billing “day after day.”/22

        • harpie says:

          [heh, that was my first thought…I’m learning! :-)]
          [ps: Sorry, could you get a comment out of mod? Thanks!]

        • Silly but True says:

          Durham right now with his finger quivering over filing perjury/obstruction of Congress criminal indictment before the Dec. 18, 2022 statute of limitation expires.

    • harpie says:

      CS 10:03 AM:

      Algor goes over Sussmann and FusionGPS trying to get reporters to write about Alfa Bank allegations later in Sept and then October. Lichtblau and Franklin Foer finally write about them Oct. 31, 2016 and Clinton campaign promotes. fruition: “October surprise.” /23

      (Comment: Algor doesn’t mention that Lichtblau’s Oct 31 article only mentioned the allegations in passing and said the FBI had already dismissed them, nor that Foer’s Slate article didn’t say anything about FBI investigation.) /24

  3. Tim Tuttle says:

    Three years of Durham’s SP investigation, started under Barr, to discredit trump-Russia.

    Thousands of hours, millions of dollars. Judges, jurors, lawyers, investigators, clerks, bloggers…

    And it all comes down to a receipt for 12 bucks for two thumb drives.

    But, of course, somehow the taxi bill was overlooked. American exceptionalism.

    • Theodora30 says:

      Add it to the Republicans’ tab. Republicans have wasted many millions of our tax dollars on their bogus investigations. The Whitewater investigation cost over $70. Just Starr’s investigation of the insane accusation that the Clintons had had their close friend Vince Foster murdered cost over $2million. Starr allowed that investigation because the “Honorable” Brett Kavanaugh convinced Starr to let him conduct one more investigation of that vicious slander. Republicans had already had a Senate banking committee investigation (!), a House investigation that featured Indiana Rep Dan Burton presenting “forensic evidence” he obtained shooting melons in his back yard. Those were on top of Special Counsel Robert Fiske’s investigation. Kavanaugh’s notes from that investigation show he reassured colleagues that he didn’t really believe Foster had been murdered.

      Since then we have had to pay for the bogus Benghazi investigations and hearings, the “buttery males” investigations, the Clinton Foundation investigation…..

      Anyone who says the extremism and insanity began with Trump hasn’t chosen to forget what went on in the 90s when Newt was running the show.

      • stancat says:

        What is the best explanation for the intensity + duration of this animosity toward the Clintons? Greatly surpasses their orientation toward Gore and Kerry. Arguably more, on a cumulative basis, than insane, racist hatred vs Obama. Some might say Pelosi has been villainized as long and as much but I don’t think even that is comparable.

        • Jim says:

          Excellent question. Why the Clintons. I think 15 hours a week of Limbaugh smearing her and repeating every rumor no matter how ridiculous.

          • FL Resister says:

            Misogyny covers all of it, particularly the venom toward Hillary Clinton and Nancy Pelosi.
            dislike of, contempt for, or ingrained prejudice against women:
            “she felt she was struggling against thinly disguised misogyny”
            jingoism · excessive patriotism · blind patriotism · excessive nationalism · sectarianism · isolationism · flag-waving · xenophobia · racism · racialism · racial prejudice · ethnocentrism · ethnocentricity · partisanship · partiality · prejudice · bias · discrimination · intolerance · bigotry

            • bmaz says:

              I think Nancy Pelosi is absolute shit, so am I a misogynist? I also think Steny Hoyer, Jim Clyburn and Hakeem Jeffries are garbage too, if that matters in your little absolute paradigm

              • oldoilfieldhand says:

                i find it hard to belive the moderators would allow something as disgraceful as your comment above.

                Nancy Pelosi, the only woman to ever serve as the Speaker of the House of Representatives, has served as an elected member of the United States House of Representatives for 35 years. (That’s 16 consecutive re-elections Bmaz.) She is a mother and grandmother, a tireless champion of working people and the driving force behind the passage of The Affordable Care Act. Your health insurance, along with the health insurance for millions of Americans, can’t be reduced or eliminated because of Nancy Pelosi. It seems that the people of California and millions of others in this country have a very different opinion of Nancy Pelosi.

                Her courage and determination are evident.
                You, on the other hand, can take your opinion and $5.00 and get a cup of coffee almost anywhere. Everything is not always about you Bmaz…

                I’ve been following, contributing monthly and infrequently commenting since Marcy Wheeler and Jane Hamsher live blogged Scooter Libby’s trial. I will continue to contribute my support to the incredible work done by Dr. Wheeler and this community, but this could well be my last comment.

                • bmaz says:

                  I am an author and moderator, and I do not give a damn, Pelosi has been completely pathetic. She and her geriatric fossilized Dem “leadership” are on the cusp of leading the Dems into a historic midterm slaughter, and likely a return of Trump or something worse in 2024. They are all useless and should retire peacefully for younger people that can actually try to get something done. And if you want to petulantly skulk away because not everybody shares your slavish love to Pelosi, so be it.

                  And, by the way, I can count and do not need your math lesson. Oh, and Pelosi and the ACA do not have dick shit to do with “my health insurance” in fact, they about tripled my rates upon implementation. You want to come after me, please find something better than that fawning garbage.

                • bmaz says:

                  Also, too, I have also been around as long as you, and I hope you stick around, but if not, don’t deign to blame it on not everybody fawning over the feckless Pelosi.

            • Ginevra diBenci says:

              FL resister, While America’s culture has a profound and until very recently mostly unacknowledged streak of vicious misogyny, as a writer/researcher deeply invested in exposing this I must take issue with your post.

              First, none of the further terms you cite are “synonyms” for misogyny; each has its own precise meaning and while the phenomena they describe often overlap, they are not the same.

              Second, Clinton hatred started out by targeting Bill. Yes, Hillary was an aggravating presence, but it was his political success that galvanized the anti-Clinton movement in the 1990s. What she has faced since running for office is, in fact, a viscerally sexist twist on that theme, with lots of other elements thrown into the brew as well.

  4. harpie says:

    CS 10:31 AM:

    Berkowitz opens [defense] with the 1983 magic trick where David Copperfield made the statute of liberty disappear. How did he do it? misdirection. the platform slowly pivoted while the curtain was up, so when it dropped they were facing a different direction. That’s what govt did. /39

    The govt’s magic trick was to turn a 15-30 min meeting into a much longer swath of time Sussmann spent that day and billed to the Clinton campaign./40

    • harpie says:

      CS 10:35 AM

      “These are serious charges. Mr. Sussmanns’ liberty is at stake. The time for political conspiracy theories is over. The time to talk about the evidence is now.”/41

      CS 10:38 AM:

      No notes of the meeting itself. Going through how Baker has told many different versions of what Sussmann said on different occasions, and only recalls this version after DeFilippis showed him the Priestap notes. /44

      CS 10:42:

      Berkowitz talks about other ways Baker has recalled the meeting in different ways, like how long it was. “I submit to you the govt has not proved beyond a reasonable doubt that on Sept. 19 Mr. Sussmann repeated the words from his text.” You can go home based on that alone./46

    • harpie says:

      CS 10:52 AM:

      Berkowitz mocks the Staples receipt for flash drives and google map. bought the drives on Sept. 13 when he was doing tremendous amount of work for campaign. Doesn’t text Baker for meeting until Sept. 18 — right after email saying Trump freaking ouet r imminent Russia story. /53

    • harpie says:

      CS 11:01 AM

      Berkowitz again says he gave the info to the NYT, wasn’t conclusive, NYT presumably investigated further and then when it had vetted and was prepared to publish (Comment: *see earlier tweet re how that is not true, tho unclear if Sussmann understood that), he went to FBI. /60

      >>> [earlier comment]: CS: 10:49:

      Comment: Berkowitz told jury the NYT had vetted the story and decided to run it before the FBI asked it to hold it. If the NYT is “Lichtblau” perhaps he wanted to run it, but as has been reported, NYT *as an institution* – his editors – were skeptical and never ready to pub. /51

    • harpie says:

      CS 11:18 AM

      Berkowitz turns to materiality. Did it matter? No. Put yourself back to 2016. Russia had hacked Democrats and released emails. There was an ongoing FBI investigation irrespective of this into allegations of Trump connections to Russia. /70

      CS 11:21 AM:

      Berkowitz says Baker testimony he might not have taken the meeting if Sussmann had told him he was bringing info on behalf of Clinton campaign is red herring because the text is not the charged statement, it’s what was said at the meeting that is at issue./72

    • harpie says:

      CS 11:28 AM:

      Berkowitz: They all thought it came from DNC anyway. Cites all the FBI meetings in Aug/Sept when Sussmann was representing DNC on other things. They all knew he was a lawyer for Democrats. Why would they send Sussmann in if there was conspiracy to hide source? /76

    • harpie says:

      CS 11:32 AM:

      Berkowitz says it’s not true there was a close hold. They didn’t interview Mr. Baker. They didn’t interview Sussmann. They could have and didn’t. If they had we wouldn’t be here. That’s on them, not on Sussmann./79

      Berkowitz: The FBI never interviewed the cyber experts. They didn’t interview Dagon, the author of white paper to gauge his motivations. Didn’t interview Sussmann. “Shocking.” The FBI didn’t press. They didn’t want to know. Materiality. /80

    • harpie says:

      CS 11:45 AM:

      Berkowitz points out that the special counsel’s main witnesses faced investigation themselves. Baker, Heide, and Gaynor. Why did prosecutors meet with them over and over and over? On Baker: “It’s no wonder he delivered on the stand.” /87

      Berkowitz: Practically every govt witness on the stand was inconsistent w/ what they said before & prosecutors had pushed them in trial prep. Look at what Sussmann’s character witnesses said about him. Think about who he is & who they brought to the stand vs him. /88

    • harpie says:

      Defense Closing: Questions for DeFillippis:

      CS 11:42 AM:

      Berkowitz says DeFilippis gets to go last. Q’s for him:

      How can Mr. Baker be so confident Michael Sussman when he took notes as opposed to Sept. 18 when he got the text? 100% confident? /89

      Q: How can he have gone to the FBI on behalf of the Clinton campaign when its leaders said they didn’t ask him to do that and it was against the campaign’s interests? /90

      More q’s summing up what he’s said. What’d they’ talk about on Sept. 21? Why’d he text the WSJ letter to the editor to Baker? Why’d he go to CIA when election was over if his motive was political rather than sincere concern? /more /91

      More q’s Why didn’t FBI interview him and cyber experts if motive was material? Why did prosecutors have to interview their key witnesses so many times?

      Tells jury there’s reasonable doubt, return a not guilty verdict.
      and we’re in another break. /92

      • bmaz says:

        Well, this is the first cockup by Berkowitz. Of course the prosecution’s rebuttal is the last word. But, Jesus, don’t give them defined questions when they may answer the questions with bullshit you no longer have a chance to rebut. My gawd.

      • Scott Johnson says:

        Based on the government’s final rebuttal, it still sounds a bit like Joffe is really the one on trial, and/or an unindicted co-conspirator.

  5. Silly but True says:

    I’m nearly certain that the materiality element is not technically that it modified decision-making, but rather a more nebulous standard that it “could have modified” the decision-making (if the crime was committed on Sept. 19, there is no decision-making yet done at time it occurred.)

  6. Sandor says:

    From Emptywheel, above:

    “Remember: Sussmann admits he shared the story with the press and wanted it to come out. What he denies is that HIS INTENT [my emphasis] in going to the FBI was in getting them to investigate to serve the story.”

    This might be a stretch, so I apologize in advance, but I wonder if the Principle of Double Effect is useful here. This Principle is based on the idea that there is a morally relevant difference between an “intended” consequence of an act and one that is foreseen by the actor but not calculated to achieve their motive [from Wikipedia].

    This Principle often is useful in justifying action in medicine, primarily end-of-life care; and abortion. For example, the “double effect death” could be applied to justify the deliberate administration of a pain-killer in potentially unsafe doses—not in an attempt to end life but to relieve the pain suffered as it is considered harmful to the patient. 

    I’m struggling here, but … Applying the Principle to this case, where “painkiller medicine” corresponds to Sussman’s “evidence”:

    Jim Baker in his tweet (9:42 June 13,2019): “Please contact your local FBI …” established a duty of sorts to provide available evidence (give the appropriate medication).

    Admits he shared the story (gave the medication);
    Wanted it to come out (INTENDED it to relieve suffering).
    Denies that HIS INTENT in going to the FBI was in getting them to investigate to serve the story (wanted to hasten death).


    • Sandor says:

      Sorry BMAZ. Again, apologizing to all in advance. I have degrees in medicine and law and find that looking through the lens of one realm can clarify the other. I rarely believe that I have anything useful to say here, but I hoped that this approach could help others too. One more, then done.

      The beauty of the Principle of Double Effect is that it explains how the performing of an act that is suspect or harmful on its face can be excused by way of one’s intending to – having to – fulfill a higher moral, fiduciary, or ethical duty. It helps me perhaps begin to understand Sussman actions and intentions.

      Charlie Savage Twitter 5-27-2022; 9:17 and 9:35
      “Algor [The government] talks about the billing records, the thumb drives purchase, the pushing of same allegations to the media. “It wasn’t about national security [preventing suffering]. It was about promoting opposition research against the opposition candidate, Donald trump [intending to cause death]”

      “Basically Algor is hitting the theme this was all opposition research billed to HFA. If their focus was legitimate national security concerns, why go to media first rather than FBI right away? [Where Sussman’s evidence corresponds to medicine, Sussman could argue that the FBI was not an effective way to administer the medication, and so he went to the press.]”

      Now done.

      • bmaz says:

        Oh, no apologies and no worries necessary. I just did not get what you were saying, and that is my probably too curt way of asking.

      • Silly but True says:

        I get this: “go to public,” because the public was the one voting in month and a half, while a full FBI investigation might take longer while it’s too late and Trump got elected.

        However, the downside of this take then would essentially confirm Sussmann’s goal of using FBI to engage in political electioneering.

    • John Paul Jones says:

      Analogy is the weakest form of argument because while it says x resembles y, there’s no denying that x, in the end, isn’t y, and any audience (jury) listening to such an argument will inevitably think the latter as well as the former. Plus, the analogy in this case is too big: passing on information doesn’t scale well to end of life care.

      The other problem is that if I accept your analogy it seems I also have to accept that (like doctors giving large, forseeably fatal doses of pain-killer) Sussmann was guilty of the charge. Nice try, but I ain’t buying.

      • Ginevra diBenci says:

        The question at trial, however, is whether prosecution has proved Sussman’s guilt beyond a reasonable doubt. I find Sandor’s lens fascinating as a speculative means of accessing potential intent on Sussman’s part. Personally, I suspect Sussman probably did have a long game that included blowing up the Trump campaign *and* aiding national security. The two, lest we forget, were not and are not mutually exclusive.

        That said, it does not seem as if the SCO team has cleared the bar–not for me.

        • bmaz says:

          And if you were not in the courtroom for every minute of the trial, you do not know squat. You are not the jury, and following closely here means nothing if you were not in the courtroom. It is almost hilarious how many people suddenly think they were on the jury. You are not. Stop.

          • Ginevra diBenci says:

            Always true. Thought that went without saying. Since it apparently did not, I will say it again: here, as with Kyle Rittenhouse, I consider myself merely an outsider. As with Rittenhouse, if the jury decision surprises me I will assume they not only had more information but submitted it to much closer good-faith review, because in my experience that is what juries do. Not always, but mostly.

      • Sandor says:

        Thank You. I wasn’t trying to argue, but rather to understand Sussman’s motives, intentions and actions.

        Powerful evidence, like powerful medication, can be tricky “to use.” And that is true under the best of circumstances. Even more so when situations seem to be dire. In this case, as BMAZ says, it is up to the jury to decide.

        • John Paul Jones says:

          Understood. And your second post was more clarifying for me than the initial one. Got to say, however, I remain deeply suspicious of analogies, because of the strongly implied corollary that x is not really like y at all. Once read an essay where the guy argued FOR capital punishment because wrongful executions were like pedestrians killed by trucks? His reason, noble lord? The government runs both trucks and capital punishment, the forseeable consequence of which is the occasional innocent death.

    • skua says:

      Throwing all restraint and good sense to the wind:
      AIUI what you present Sandor:
      This goes to mens rea.
      DoJ should/would (before a fair judge and jury) need to show that Sussman went to the FBI with intent to mislead and start an unnecessary investigation that would benefit his clients/himself.

      Whereas guilty mind would be told against if Sussman genuinely believed that he was bringing a genuine natsec issue to the FBI.

      This telling against guilty mind by a genuine belief that TrumpAlfaserver was a natsec issue would hold even if Sussman realised that an FBI investigation would also benefit himself/his client.

      • Sandor says:

        Thank you. Yes (I think). Me, throwing all restraint and good sense to the wind:

        “DoJ should/would (before a fair judge and jury) need to show that Sussman went to the FBI with intent to mislead and start an unnecessary investigation that would benefit his clients/himself.”

        Intends to cause death.

        “Whereas guilty mind would be told against if Sussman genuinely believed that he was bringing a genuine natsec issue to the FBI.”

        Intends to reduce suffering.

        “This telling against guilty mind by a genuine belief that TrumpAlfaserver was a natsec issue would hold even if Sussman realised that an FBI investigation would also benefit himself/his client.

        Even if the consequence is to hasten death.

        Mens rea. Intentions. Genuine issues and beliefs. Guilty mind. The tricky parts. Why did Sussman do what he did? Answering that question is central. And for the jury.

        (BMAZ: Thanks for your work.)


      • bmaz says:

        Not sure one can say this judge and jury were not fair. Cooper seems to have been too fair, to a point that he gave the prosecution way too much rope. And the defense decided to not avail themselves of the same. But Cooper’s reputation is “not” as a Trumpy weird judge. And neither you, nor anybody else, knows who the jury are, nor what their makeup or relative “fairness” is. You presume a verdict from afar without having spent one second in the actual trial courtroom. That is always dangerous.

  7. Jon Foster says:

    On a slightly off the topic note. In early September I was ripped off Twitter because I was tweeting to Trump about Russia and the Alfa Bank. My whole Twitter was gone.

  8. Desider says:

    I’ve bought lots of flash drives & used them for something other than intended.
    $12.99 for flash drives out of a total $58.xx? 5 days before he asked for a meeting?
    Yes, if using a lot of flash drives each week, might grab a couple extra on sale while at Staples – did they figure out how many flash drives Sussmann went through in a typical week? That’s probably more investigation than they were willing to do.
    “bought the drives on Sept. 13 when he was doing tremendous amount of work for campaign. Doesn’t text Baker for meeting until Sept. 18 — right after email saying Trump freaking ouet r imminent Russia story.” [Charlie Savage]
    That’s a helluva tight court case.

    • P J Evans says:

      I’ve bought multiple three-packs of thumbdrives when they were on sale. (They’re still in their packaging.) Isn’t this what many people do?

        • bmaz says:

          Don’t take them to the FBI!

          Adding that they are dirt cheap now. Sussman got $12 worth? Lol.

          • Silly but True says:

            “All I got from Staples was this T-shirt, a $12 flash drive, and a lousy 3 year Special Counsel investigation.”

            • skua says:

              And small capacity ones are not available to my knowledge.
              And my (cerebral) memory says that some old devices only work with small capacity drives.

      • rip says:

        Just to throw another wrench into this mix:

        Any USB drive or other device can be infected with something called BADUSB.

        Cheap thumb drives may just be another vector for state actors to take control of information, and perhaps cause real mayhem.

        Don’t pick up a random drive and plug it in. Don’t even expect that some drive that was previously used by someone else is safe.

        These are not detectable by any anti-virus.

        I’m guessing most external USB devices are manufactured in a very large country in SE Asia.

          • rip says:

            My 3-pack of Sandisk 32GB says “Made in China”.

            However, anybody along the supply chain for these types of USB drivers can probably alter the embedded firmware on them after manufacture. Some more expensive devices have encrypted keys required.

  9. harpie says:

    CS 12:11 PM

    DeFilippis is starting. He says this is not a close case, not even close to a close case. What you just saw was a magic trick. Defense is trying to make all the evidence you saw go away and have come up with retroactive explanation for the evidence./94

    • harpie says:

      CS 12:21 PM:

      [DeF]: Sussmann billed the Clinton campaign. “Damning evidence.” Thumb drives. On Sept. 22nd, three days after he gives thumb drives to FBI, Sussmann expenses thumb drives to Clinton campaign. Why do that unless he thought took info to FBI for campaign? /102

      (Comment: Seems to me a hole is that prosecution never established that those particular thumb drives went to FBI, versus to reporters etc. But Berkowitz didn’t make an issue of that to jury.) /103

    • harpie says:

      CS 12:48 PM

      DeFilippis: Let me end with this. Privilege of a lawyer who thought he could lie. A tech exec who used privilege of access to sensitive info to do oppo research. You the jury have privilege to decide the truth. /124

      CS 12:50 PM

      DeFilippis: follow the instructions, use your common sense. Confident you will reach one and only verdict consistent with the law, the evidence, and the truth, which is the defendant is guilty as charged. Thank you.

      and he’s done

      • bmaz says:

        “DeFilippis: follow the instructions, use your common sense. Confident you will reach one and only verdict consistent with the law, the evidence, and the truth, which is the defendant is guilty as charged. Thank you.”

        Lol, I literally think they teach this trite little line at DOJ prosecutor school.

        • Scott Johnson says:

          I’m rather certain that it’s frequently uttered in state and municipal courts across the land as well, wherever criminal cases are tried by juries.

            • OldTulsaDude says:

              The defense, on the other hand (at least in this trial), should use the Vincent Gambini opening statement as a closing argument manual. “Everything that guy just said is bullshit. Thank you.”

    • Rugger9 says:

      One wonders how someone of the GQP persuasion would do if they were subjected to this kind of tyrannical hit. They all say they are under attack, but Gym Jordan for example is trying to work a deal to see all the evidence up front (something Sussmann wasn’t allowed to do, such as his notes), channeling his inner Karl Rove (who was famous for demanding that).

      The snowflakes would crack in ten minutes and flee to Faux to whine about how unfair it is.

  10. harpie says:

    CS 12:54 PM:

    Judge tells jury verdict must be unanimous. Exhibits put into evidence will go into the jury room with you on a laptop. After eating lunch, you should select a foreperson. Punishment in event of conviction is not your concern./127

    Judge tells them not to read media coverage about the case “over the weekend.” Obviously that instruction’s premise is they won’t reach a verdict before he leaves town in the next 95 minutes. /128

    Judge: Remember that you are not partisans or advocates in this matter; you are judgers of the facts.

    Now apologetically dismissing the alternate jurors./129

    Judge says he unfortunately has to be out of the building this afternoon & so will not be in a position to accept any verdict this afternoon. But wants them to start deliberating now before three days off. So he’s precluding any quick verdict: we’ll see what happens Tuesday. /130

    • bmaz says:

      Eh, another judge could step in, so let them deliberate for the rest of the day. This happens occasionally, and is fine.

      • rosalind says:

        confused why he released the alternate jurors already. what if a member of the jury gets sick over the weekend or is otherwise unable to proceed?

        • Scott Johnson says:

          There is an allusion to some cases in which a short-handed jury (11 instead of 12) may return a verdict.

          Otherwise, were an alternate juror not discharged at the end of closing arguments (which can happen, though not in this case) and a juror were to become unavailable during deliberations, then deliberations could be restarted with the alternate juror. Alternate juror would not participate in original deliberations and would be instructed to not discuss case with empaneled jury; and were a juror replaced in this fashion, judge would instruct jury to start over (and disregard any that had occurred with the departed juror).

          Otherwise, a mistrial.

          • bmaz says:

            You have yet again stated the obvious. People do not need your running commentary like you are the Tony Romo of trial law.

            • Scott Johnson says:

              Except it’s not obvious, especially to us non-lawyers. I had to go look it up, and it took some digging to find. If you’re suggesting that I wait for a lawyer to give a more authoritative answer, fair enough.

              And as a certified Dallas Cowboys’ hater, being called the Tony Romo of anything is a vile slander. :)

    • harpie says:

      CS 1:04 PM:

      Jury leaves. Judge congratulates both sides on a case well tried. He says if the jury reaches a verdict, he wants to be the one to take it, so it’ll be held and they’ll take it on Tuesday. Tells everyone to have a good weekend. /131

    • Legonaut says:

      Thanks, harpie, for including the non-twitterati among us!

      In addition to the great work of Marcy & the mods, the community here is top-notch and invaluable.

      • Ginevra diBenci says:

        Amen to that, Legonaut. harpie, you are amazing. I don’t hang out on Twitter because I’m afraid it would send me into a vortex of despair. But accessing this important perspective through your work (in addition, of course, to Dr. Wheeler’s) has been invaluable. I can’t thank you enough.

      • harpie says:

        You’re both welcome! Doing it this way helps me understand things, as well. Charlie Savage is almost as good at live-tweeting as Marcy is, and that makes a huge difference.

  11. Silly but True says:

    Those following the play-by-play, was the thumb drive detailed in receipt ever matched to the physical thumb drive received into evidence by FBI?

    I would think it obvious Sussmann would’ve spoken up, and really nothing would surprise me in this case any more but if the receipt is for silver Sandisk 4G and what the FBI claims Sussmann turned over to Baker is pastel blue PNY 1G drive, then there might be a problem with the government’s story.

  12. earlofhuntingdon says:

    Ironic and obtuse claim by the archly ambitious, radically conservative Andrew DeFilippis:

    Let me end with this. Privilege of a lawyer who thought he could lie. A tech exec who used privilege of access to sensitive info to do oppo research. You the jury have the privilege to decide the truth.

    The white DeFilippis, educated at Princeton and Yale, playing the “privileged elite” card in hopes that a DC jury will convict on bias. He should get back on the tiger and bulldog he road in on and retreat to the Yale Club on Wisconsin Ave. for a cold drink.

  13. Lawnboy says:

    At this point I picture Cooper doing the “mike drop… Cooper OUT!!” (for the weekend)

    And for Dr. Wheeler….dropping perhaps a 4L jug of sheep dip.

    I know…. a ba aa aa aa D joke


    • bmaz says:

      I repeat: Cooper does not have to be there to take a verdict. Another judge can cover just fine.

      • Lawnboy says:

        IANAL, so know nothing of the courts.
        My comment was a case of levity “in sheeps clothing”.
        No matter how many times I read about this trial, I cant understand why this is happening. If Sussman’s info was known to the FBI before the 19th, and under investigation perhaps based on Joffe data that he might have passed on, why does it matter who Sussman represented? Especially in light of all the other links to Russia that are known.

        Again, great work, thanks to all the “wheelys”.

        p.s. F1 trash Mr. Maz???

        • Silly but True says:

          It doesn’t matter who Suss represented per se. Suss didn’t even have to give full candor to Baker.

          The only thing that essentially matters is whether Sussmann lied to the FBI or not.

          If he emailed/told Baker the exact, precise same statement he told Congressional testimony, then he wouldn’t have had to go through all of this.

        • bmaz says:

          Yeah, am thinking about trying to remember how to Trash. It seems necessary again. Sadly.

  14. Cosmo Le Cat says:

    I would appreciate hearing what experienced criminal attorneys (bmaz in particular) expect the verdict to be (and why). Also, what mistakes did Sussmann’s team make?

    • bmaz says:

      Heh, I have enough experience to not come close to that. If you were not in the room with the jury every second, you do not know.

    • Silly but True says:

      Some things I’ve been thinking about, which is essentially nothing more than “one anonymous user on the internet thinks:”

      1. He Said, She Said: burn away all the extraneous nonsense, and this case boils down to Baker vs. Sussmann. Who came off as more credible? Baker appeared affable and sensitive. He also appeared to change his stories. Suss +1
      2. The email: Sussmann’s 9/18 email is pretty damning. Berk knows this too and faced it directly (“We own the email…). Still owning something that damning is pretty damning. It’s tough hurdle. Gov’t +1
      3. Joffe’s “joint venture.” Jesus Christ this was dense, obtuse stuff. This dead horse is still being beaten: the bulk of Durham’s case seemed to be against Joffe not Suss. Suss +1
      4. The flash drive expense. This is the kind of thing anyone understands. Gov’t +1
      5. Denigration of FBI/DoJ: Trump started hammering on credibility of FBI & DoJ six years ago and has never let up, undermining public’s faith in the institutions and with them Durham’s investigation. And to be sure, this case has presented FBI in extremely poor light; nearly everyone that testified can’t seem to remember anything not written down, and nearly everyone deviated from standard practice in handling something that it seems like FBI’s standard practice is “no standard practice.” Is this enough to undermine Baker? Does this wash off onto Baker and Durham’s primary government witnesses? I have to believe it does. +1 Suss.

      So in short: I think it’s a toss up that can go either way and we’ll likely find out on Tuesday. Happy Memorial Day, lol.

  15. Ddub says:

    The Judge has some other stuff to do this afternoon. It suits the storyline that’s for sure.

  16. Traveller says:

    Okay, I’ll ask the stupid question…and probably best to ask before the verdict come in, Was it wise for Mr Sussmann to not take the witness stand in his own defense?

    He is a lawyer and should be fairly well versed in what he has to say…as to his state of mind, as to the fact that thumb drives were like pencils to him at the time, (as I think they were for me then)…I still have a drawer full of them still, most labeled, some not….he could testify to the fact as to his amazement as to Baker’s shifting memory….while his is clear as a bell, as if it were yesterday…his motives, his worries while maybe a little quasi political, he was not unlike half of the country honestly worried and perplexed by Trump/Putin relationship.

    Heck, I’m still worried about it and if I had a scintilla of evidence of collusion, I’d be dashing to the Feds.

    Yes I am aware of the dangers of being tripped up on cross…maybe there is some excluded evidence that would now be admissible were Sussmann to have testified…but still, rolling the dice on yourself seems, in this instance, maybe an acceptable risk. (of course, maybe everyone on the jury does hate lawyers, so no sympathy there)….damned if I know, but it seems like an interesting question to mull over a 3 day holiday. (best wishes, Traveller)

    • Silly but True says:

      We know that there was a significant exchange before the last day: Sussmann sought to limit use of “pre-trial negotiations” if he took witness stand. I.e. obviously there was point where plea agreement was getting hammered out but fell apart, and perhaps something was said or proffered. Now interestingly, a lot of that is off-limits anyway, but there are some exceptions, like perjury, and maybe that came into play.

      But at end of day, Sussmann is in best position to know what Sussmann did or did not do on Sept. 19, and so best understood what he could offer versus what could be used against him in stand.

      • Traveller says:

        Silly but True: Thank you very much…I see better now that much larger looming danger. At some point I start having trouble with the Adversarial System of Justice…I’d really like to know what the heck actually happened.

        Regardless, being a witness was a little on my mind…I watched from time to time snippets of the Depp v. Heard trial and it struck me, at least to me, how poorly Ms Heard came off on the witness stand….much of her testimony and demeanor did not help her case….in my opinion, (regardless of the facts of the matter).

        Mr. Depp was noticeably better….and yet, both being actors, I think I expected better from both of them…and so it seemed natural to me to wonder how Sussmann would fare as a witness. Just some idle thoughts on the subject. Again, Thank you and Best Wishes, Traveller

        • bmaz says:

          The adversarial system of justice works just fine, and it does not need to, nor is it required to, provide information on things done in private that are protected.

  17. Savage Librarian says:

    Thumb on the Scale

    Leave it to the wingnut crew
    to mangle & torment by thumbscrew,
    looking for someone to stick it to,
    staining truth with a nasty residue.

    They know how to weasel through
    sanctions and a bench taboo,
    Sleight of hand’s their subtle coup
    to cover up their switcheroo.

    Is that what someone learned at Yale,
    how to win through a veil
    of a kind of cloaked blackmail,
    stretching justice beyond the pale?

    You’d think they’d try not to derail,
    by putting a thumb on the scale,
    US interests supporting a patriotic tale,
    despite Putin’s insidious wail.

    But they’d rather thumb a nose,
    and watch which way the wind blows,
    from Alfa to “Oh my god” our foes,
    warring in Ukraine’s shadows.

    They can’t even begin to propose
    how a spilt cup of tea leaves goes,
    They’d rather release a fire hose,
    Yes, they’re that kind of so and so’s.

    Their thumbprints seem to multiply,
    every single time they try
    to cover up each time they lie,
    and their reasons as to why.

    Corruption is their big bullseye,
    not to ferret out any bad guy,
    It’s their own morals that are bone dry,
    and their ethics are in a pigsty.

    I hope one day that thumb drive
    will join the notorious archive,
    showing all the fraud of 45,
    and the ways he worked to connive.

    Busy in their buzzing beehive,
    Durham’s team keeps their sting alive,
    They’ll do anything to contrive
    a myth where blind ambition can thrive.

    • Ginevra diBenci says:

      Another stiletto in the opposition’s eye from you, SL, and sharp as ever. Thank you as always! I’m starting to conclude that you do the rhymes so I don’t have to. Plus yours are better than mine would be; I’ve been finding years-old poems I forgot I wrote stuck into books and drawers and the ones where I tried to rhyme just peter out. (When I used to write songs they were always blues, for the reason that I could lean on a single simple refrain over and over and just sing it differently each time.)

  18. civil says:

    In his response to the earlier motion to dismiss, Judge Cooper wrote that “while Sussmann is correct that certain statements might be so peripheral or unimportant to a relevant agency decision or function to be immaterial under §1001 as matter of law, the Court is unable to make that determination as to this alleged statement before hearing the government’s evidence. Any such decision must therefore wait until trial.” Can Sussmann’s lawyers now ask Judge Cooper to rule on the question of materiality prior to the jury starting deliberations? In light of this evidence, I don’t see how it could possibly be material even if Sussmann told Baker in the 9/19 meeting that “he was not acting on behalf of any client” (which I’m not convinced of).

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