John Durham Continues to Hide How Michael Sussmann Helped Kill the NYT Story

/42 Comments/in , , /by

The two sides in the Michael Sussmann case have submitted their responses to motions in limine.  They include:

I’m not going to do a detailed analysis of the merit of these arguments here. The filings make it clear that, unless Durham accidentally turns this into a trial about Donald Trump’s numerous back channels to Russia, the trial will focus on the meanings of “benefit” and “on behalf of.” The entire record makes it clear Sussmann understood he was representing Rodney Joffe but that he was not asking for any benefit for Joffe, and as such said he was not there on behalf of a client. Because Durham doesn’t believe that Russia was a real threat even to Donald Trump, he doesn’t believe that such a tip could benefit the country, and so sees such a tip exclusively as a political mission. As I’ll show, the YotaPhone allegation–which Durham has recently turned to as his smoking gun–in fact undermines Durham’s argument on that point (which is probably why Sussmann has no complaint about it coming in as evidence).

In general, I think Sussmann’s arguments are stronger, sometimes substantially so, but could see Judge Christopher Cooper ruling for Durham on some of them.

But I want to look at some of the new facts revealed by these filings.

Non-expert expert

As noted, Durham provided the kind of information in his response to Sussmann’s challenge to his expert that one normally provides with a first notice (here’s what Durham initially provided). Durham describes he’ll provide the basis to qualify Agent David Martin in a future disclosure (a tacit admission the resumé they had originally submitted was inadequate) which will explain,

[T]he Government intends to provide defense with a supplemental disclosure regarding his training and experience with DNS and TOR, including the following:

  • As part of his cyber threat investigations, Special Agent Martin regularly analyzes network traffic, which includes DNS data;
  • in furtherance of his investigations, Special Agent Martin reviews DNS data regularly, often on a daily and/or weekly basis ; and
  • as an FBI Unit Chief, Special Agent Martin supervises analysts and other agents work product, which includes technical review of DNS data analysis

Which is to say Martin uses DNS data but is not as expert as a number of the possible witnesses at trial he would be suggesting were part of some grand conspiracy (note, this summary is silent on his Tor expertise, which is both a more minor part of the evidence but will be a far more contentious one at trial).

The more remarkable claim that Durham says Martin will make in rebuttal if Sussmann affirms the authenticity of the data is that, because the data was necessarily a subset of all global DNS data, it’s like it was cherry-picked, even if it was not deliberately so.

That while he cannot determine with certainty whether the data at issue was cherry-picked, manipulated, spoofed or authentic, the data was necessarily incomplete because it was a subset of all global DNS data;

Given what I’ve learned about the data in question, this judgment seems both to misunderstand the collection process and may badly misstate what an expert should be able to say. Significantly, this suggests Martin will testify as an expert without trying to replicate the effort of the various strands of research that identified the data in the first place, which is the process an expert would need to do to comment on the authenticity of the data. Not attempting to do so would only make sense if the FBI had less visibility into DNS data than the researchers in question (or if they knew replicating it would replicate the results and kill their case).

Killed the story

Several more details in the filings reveal just how far over his skis Durham is in claiming that the Democrats were the real impetus to the story (rather than, for example, April Lorenzen). Sussmann’s indictment, remember, starts with the two Alfa Bank articles published on October 31, 2016 even while he admits that Franklin Foer sources his story to Tea Leaves.

That’s true even though the indictment provides just three ways in which Sussmann was involved in the story. First and very significantly, in response to Eric Lichtblau asking (in a question that reflects past discussions about the very real hacking Russia was doing), “I see Russians are hacking away. any big news?,” Sussmann met with Lichtblau, brought Marc Elias into the loop, who in turn brought Jake Sullivan in. He undoubtedly seeded the initial story. And per his own testimony he may have pitched it to Foer and Ellen Nakashima, though Durham provides no evidence of that (unless it involves follow-up after the first Foer story).

Then, Durham describes that on October 10 — at a time when “Phil” was sending a series of DMs to the NYT about the Alfa Bank allegations and when several NYT reporters were in contact with a number of other experts, at least one of whom has never been mentioned in any Durham filings — Sussmann gave Lichtblau a nudge, but a nudge that (at least as described) not only didn’t mention the Alfa Bank allegation, but didn’t even mention Russia. He did so by forwarding an opinion piece talking about how NYT wasn’t reporting as aggressively on Trump as other outlets.

Then after Franklin Foer’s story (sourced to Tea Leaves and Jean Camp though possibly involving Sussmann) came out, Sussmann’s billing records show, he responded to other reporters’ inquiries about the story.

I have no doubt Sussmann would have loved this story to break, but Durham provides no evidence that Sussmann was the big push behind it (and the public evidence shows Tea Leaves was).

Indeed, new details in Sussmann’s filing make it clear that Durham has, as I suspected, replicated some of the erroneous assumptions that Alfa Bank did to sustain his conspiracy theories. Sussmann summarizes the journalist-involved communications to which Sussmann was not a party that Durham wants to introduce at trial.

This table puts names to the narrative Durham tells in his filing. Importantly, it reveals that the reporter who — in addition to making it clear he had gotten to Fusion’s “experts via different channels,” raised questions about the source of the data (the same topic Durham’s expert doesn’t seem prepared to address) — is Mark Hosenball.

That’s important because, according to Fusion’s lawyer Joshua Levy, Hosenball sent Fusion the link to Tea Leaves’ data, not vice versa. It’s not clear whether this later email reflects Hosenball sending that link (plus there’s a discrepancy between what date Durham says these emails were exchanged and what date Sussmann does, October 16 and October 18 respectively), but if so, it would mean Hosenball was shopping data that had been available via other means, means that aren’t known to involve Sussmann or Fusion.

In other words, just a single one of these later emails that Durham is pointing to to support his claim that Democrats were pushing this story involves the Democrats taking the initiative, and it only involves Peter Fritsch forwarding this story and pushing Foer to hurry up on his own story (which he sourced to Tea Leaves and Camp) on the Alfa Bank anomaly.

That’s important because Durham completely leaves out of his narrative how Sussmann helped kill the initial NYT story, and now he says that helping the FBI kill a story on his client’s opponent just before an election would not be exculpatory.

As a reminder, Sussmann testified to HPSCI that the reason he shared the information with the FBI was to provide them the maximum flexibility to decide what to do with it.

I was sharing information, and I remember telling him at the outset that I was meeting with him specifically, because any information involving a political candidate, but particularly information of this sort involving potential relationship or activity with a foreign government was highly volatile and controversial. And I thought and I remember telling him that it would be a not-so-nice thing ~ I probably used a word more stronger than “not so nice” – to dump some information like this on a case agent and create some sort of a problem. And I was coming to him mostly because I wanted him to be able to decide whether or not to act or not to act, or to share or not to share, with information I was bringing him to insulate or protect the Bureau or — I don’t know. just thought he would know best what to do or not to do, including nothing at the time.

And if I could just go on, I know for my time as a prosecutor at the Department of Justice, there are guidelines about when you act on things and when close to an election you wait sort of until after the election. And I didn’t know what the appropriate thing was, but I didn’t want to put the Bureau or him in an uncomfortable situation by, as I said, going to a case agent or sort of dumping it in the wrong place. So I met with him briefly and

Q Did you meet — was it a personal meeting or a phone call?

A Personal meeting.

Q At the FBI?

A At the FBI. And if I could just continue to answer your question, and soI told him this information, but didn’t want any follow-up, didn’t ~ in other words, I wasn’t looking for the FBI to do anything. I had no ask. I had no requests. And I remember saying, I’m not you don’t need to follow up with me. I just feel like I have left this in the right hands, and he said, yes.

He described then how Baker called him back and asked him for the name of the journalist who was about to publish the story.

Q The conversations you had with the journalists, the ~

A Oh, excuse me. I did not recall a sort of minor conversation that I had with Mr. Baker, which I don’t think it was necessarily related to the question you ‘asked me, but I just wanted to tell you about a phone call that I had with him 2 days after I met with him, just because I had forgotten it When I met with him, I shared with him this information, and I told him that there was also a news organization that has or had the information. And he called me 2 days later on my mobile phone and asked me for the name of the journalist or publication, because the Bureau was going to ask the public — was going to ask the journalist or the publication to hold their story and not publish it, and said that like it was urgent and the request came from the top of the Bureau. So anyway, it was, you know, a 5-minute, if that, phone conversation just for that purpose.

While it’s quite clear that Sussmann seeded the NYT story before his meeting and the follow-up phone call with Baker (and also spoke, at some time or another, to Foer and Ellen Nakashima), Durham provides no evidence that Sussmann — and even Fusion! — were doing anything more after FBI intervened to kill the story than responding to inquiries, inquiries that were largely based off Tea Leaves’ efforts.

They may well have been. Durham is not presenting any evidence of it.

We know from discovery records that at the time that Durham indicted Sussmann, he had not yet bothered to chase this follow-up down. Altogether, there were 37 emails on top of the records of the face-to-face meeting where the FBI asked the NYT to hold the story.

On September 27, November 22, and November 30, 2021, the defense requested, in substance, “any and all documents including the FBI’s communications with The New York Times regarding any of [the Russian Bank-1] allegations in the fall of 2016.” In a subsequent January 10, 2022 letter, the defense also asked for information relating to a meeting attended by reporters from the New York Times, the then-FBI General Counsel, the then-FBI Assistant Director for Counterintelligence, and the then-FBI Assistant Director for Public Affairs. In response to these requests, the Special Counsel’s Office, among other things, (i) applied a series of search terms to its existing holdings and (ii) gathered all of the emails of the aforementioned Assistant Director for Public Affairs for a two-month time period, yielding a total of approximately 8,900 potentially responsive documents. The Special Team then reviewed each of those emails for relevant materials and produced approximately 37 potentially relevant results to the defense.

This was a significant effort to avoid a story about an ongoing investigation, one that helped FBI protect Trump.

And Sussmann believes — correctly — that the fact he helped the FBI kill a damaging story on Hillary’s opponent is exculpatory. Here’s what Sussmann says Joffe would say if he testified:

And the defense believes that, if called to testify, Mr. Joffe would offer critical exculpatory testimony, including that: (1) Mr. Sussmann and Mr. Joffe agreed that information should be conveyed to the FBI and to Agency-2 to help the government, not to benefit Mr. Joffe; (2) the information was conveyed to the FBI to provide a heads up that a major newspaper was about to publish a story about links between Alfa Bank and the Trump Organization; (3) in response to a later request from Mr. Baker, Mr. Sussmann conferred with Mr. Joffe about sharing the name of that newspaper before Mr. Sussmann told Mr. Baker that it was The New York Times; (4) the researchers and Mr. Joffe himself held a good faith belief in the analysis that was shared with the FBI, and Mr. Sussmann accordingly and reasonably believed the data and analysis were accurate; and (5) contrary to the Special Counsel’s entire theory, Mr. Joffe was neither retained by, nor did he receive direction from, the Clinton Campaign. [my emphasis]

To sustain his claim that there would be no benefit to the FBI in getting such a heads up and the opportunity — which they availed themselves of — to kill the story, Durham restates and seriously downplays the decision that both Joffe and Sussmann made to give the FBI the opportunity to kill the story.

The defendant’s further proffer that Tech Executive-1 would testify that (i) the defendant contacted Tech Executive-1 about sharing the name of a newspaper with the FBI General Counsel, (ii) Tech Executive-1 and his associates believed in good faith the Russian Bank-1 allegations, and (iii) Tech Executive-1 was not acting at the direction of the Clinton Campaign, are far from exculpatory. Indeed, even assuming that all of those things were true, the defendant still would have materially misled the FBI in stating that he was not acting on behalf of any client when, in fact, he was acting at Tech Executive-1’s direction and billing the Clinton Campaign. [my emphasis]

He makes no mention of the fact that FBI spent considerable effort — an effort made possible by Sussmann and Joffe — to protect the investigation and Trump. He doesn’t even admit that the reason why Sussmann asked Joffe about sharing Lichtblau’s name is so that the FBI could kill the story.

The YotaPhone that was not in Trump’s hands

Michael Sussmann could be putting up a far bigger stink that Durham wants to introduce Sussmann’s meeting with the CIA in February 9, 2017, especially the way that Durham keeps revealing inaccurate details about it. This is an event that happened five months after his alleged crime, one that (as Sussmann notes) could not be part of the same effort as Durham alleges the FBI meeting was about, because there no longer was a Hillary campaign.

He’s not. In fact, he says he has no problem with Durham introducing the February 9 meeting.

In any event, Mr. Sussmann does not object to the introduction of this discrete CIA statement pursuant to Rule 404(b).9 But Mr. Sussmann disagrees with the Special Counsel’s characterization and interpretation of that statement, and he reserves his right to introduce evidence rebutting the Special Counsel’s claims, including evidence that will demonstrate that Mr. Sussmann disclosed to CIA personnel that he had a client and that he had worked with political clients. See, e.g., Mem. of Conversation at SCO-3500U-010119-120 (Jan. 31, 2017) (“Sussman[n] said that he represents a CLIENT who does not want to be known. . . Sussman[n] would not provide the client’s identity and was not sure if the client would reveal himself . .”); id.at SCO3500U-010120 (“Sussman[n] is [] openly a Democrat and openly told [CIA personnel] that he does lots of work with DNC”).

The reason why Sussmann has no objection likely has to do with that January 31 document, which Durham posted to docket along with the memorialization of the February 9 meeting. Indeed, given the Bates stamp on the document — SCO-00081634 for the January 31 document as compared to SCO-074877 — Durham may have only obtained this document in response to Sussmann’s repeated requests for the complete list of the people he spoke with at the CIA.

In any case, both documents actually help Sussmann more than Durham. They show that even in the February 9 meeting, Sussmann was upfront about his ties to the Democrats and described the data source as private — the very same things Durham claims Sussmann was deliberately hiding from the FBI in September. In the January 31 meeting, he explicitly said he had a client and even conveyed that Joffe is a Republican.

Read together, these meeting records are consistent with Sussmann’s story: that he went to the government bringing data from someone — Joffe — who wanted it shared but was not otherwise asking Sussmann to intervene as a lawyer. On behalf of someone, but not making a formal request as a lawyer.

Very importantly, both meetings make it clear that the suspicion was not that Trump was using a YotaPhone, but that someone in his vicinity was. That’s because “there was once [sic] instance when Trumbo [sic] was not in Trump p Tower at but the phone was active on Trump tower WIFI network” and “the information provided would show instances when the Yota-phone and then candidate Trump were not believed to be collocated.” This is the description of someone suspected of infiltrating Trump’s campaign, not Trump secretly siding with Russia.

There are still problems with it: The claim that the phone moved to the White House with Trump is not possible because the phone moved in December 2016, when Obama was still occupying it (and to the extent that Trumpsters had moved to DC yet, Trump was working out of Trump Hotel). Given Durham’s claim that there was YotaPhone metadata at the White House going back to 2014, it’s unclear whether the phone at the White House in December 2016 could be the earlier phone or a Trump one.

For example, the more complete data that Tech Executive-1 and his associates gathered – but did not provide to Agency-2 – reflected that between approximately 2014 and 2017, there were a total of more than 3 million lookups of Russian Phone-Provider-1 IP addresses that originated with U.S.-based IP addresses. Fewer than 1,000 of these lookups originated with IP addresses affiliated with Trump Tower. In addition, the more complete data assembled by Tech Executive-1 and his associates reflected that DNS lookups involving the EOP and Russian Phone Provider-1 began at least as early 2014 (i.e., during the Obama administration and years before Trump took office) – another fact which the allegations omitted

But even Durham agrees there were YotaPhone look-ups from Trump’s vicinity, and while he doesn’t understand it, his own filing confirms that these phones are super rare. And given the description that the YotaPhone showed up in MI when Trump was interviewing a cabinet member (and given some things I’ve heard about this allegation), it does seem to tie the YotaPhone to Betsy DeVos.

John Durham has said the only reason you could write up details about DNS anomalies implicating Trump is malicious partisanship, and yet his filing does just that.

Still, the traffic might be most consistent with a Secret Service agent on Trump’s detail using a YotaPhone, something that — given the Secret Service’s never ending scandals — wouldn’t be the kind of thing you could rule out.

The story is consistent with Joffe and the researchers identifying — via DNS look-ups, not the servers at Trump Tower or the White House — that there was metadata reflecting something that could be a significant counterintelligence concern, one that had the intent of hurting Trump, not helping him. The frothers think it was a good thing that a spy on DiFi’s staff and another volunteering for an Eric Swalwell campaign were identified; but if it’s Trump, they want counterintelligence concerns to take a back seat.

And in retrospect, the possibility there was a Russian spy in Trump’s vicinity would be no big surprise, given his track record. His campaign manager admitted he had hidden his work for Ukrainian oligarchs and was hoping to exploit his ties to Trump to get paid by them and a Russian oligarch. His National Security Advisor admitted he had secretly been working for Turkey while getting classified briefings with the candidate. The guy who got him hired, who went on to run his Inaugural Committee, is accused of working for the Emirates when he did all that.

The only way that finding potential spies infiltrating Trump’s campaign would be an attack on his campaign is if he wanted those spies there.

Then again, that seems to be what Tom Barrack is going to use as his defense, so maybe that’s what is really driving this scandal.

Share this entry

Matryoshka Doll: The Aleksandr Babakov Indictment

/76 Comments/in , , /by

I’ve been trying to track the US government’s efforts to rein in Russia via various kinds of lawfare.

The indictment unsealed yesterday against Aleksandr Babakov is a remarkable example of the form.

To understand why, let me first explain what I imagine the goals of US lawfare in response to the expanded Russian invasion of Ukraine.

Since the Russian invasion, a number of Western countries have been rolling up Russian intelligence networks and expelling people serving under diplomatic cover by declaring them persona non grata under suspicion of spying. Whereas normally spooks would let other spooks carry on their work so they could spook on other spooks, there seems to have been a decision among most US allies to roll up Russia’s networks, perhaps with twin goals of blinding Russia and cleansing their countries of Russia’s formidable influence networks, which persuaded many in Western countries to trade principle for cash.

That is happening at the same time the West has been trying to craft sanctions to target people powerful enough to influence Vladimir Putin’s thinking.

The series of indictments — variably charging influence-peddling crimes (Foreign Agent and/or FARA), violations of sanctions imposed in response to Russia’s 2014 invasion of Ukraine, and visa fraud — have exposed past influence peddling and raised the legal costs to Americans to continue to be a party. But the only American charged for providing cover for such operations so far — Jack Hanick — was actually charged in November and arrested before Russia expanded its invasion (though the indictment of Andrey Murviev was tied to already-existing charges against Lev Parnas and Igor Fruman).

So it might seem like these indictments are just speaking vehicles: a way for DOJ to make evidence against Russians public, without any real legal impact. But this Babakov indictment demonstrates that’s not the case. This indictment, and the campaign generally, does the following:

  • Continues to flesh out Russia’s efforts to use its diaspora networks to illegally exert political pressure in other countries
  • Charges Aleksandr Babakov, making it impossible for him to travel if Russians ever get the opportunity to travel again
  • Demonstrates the cultivation of specific members of Congress
  • Puts the American involved — identified here as CC-1 — on notice they have to register past lobbying under FARA

One more detail before I explain the indictment. Remember that there are two overlapping foreign influence peddling laws, which are often confused (because both Michael Horowitz and John Durham fucked this up, I picked a fight with Peter Strzok to call attention to the distinction last night, but Brandon Van Grack, under whom these cases were surely developed, agrees with me.). [Update: I should clarify. This indictment is charged as an 18 USC 371 conspiracy to get an American to commit 18 USC 951, not 951 directly.]

There’s 18 USC 951, acting as an unregistered Agent of a foreign country, which is what is charged here. To be charged, it requires the influence peddling to have been done on behalf of a foreign government. It does not require knowledge of the requirement to register with the Attorney General. By contrast, FARA (22 USC 611), does require that the person peddling foreign influence know they need to register. But it can apply more broadly, to include “foreign principals,” like an oligarch who is not a part of a foreign government. Prosecutions under FARA were rare before Robert Mueller discovered that foreigners were asking agents like Mike Flynn and Paul Manafort to lie to their lawyers about whom they were actually working for. But generally, before that, DOJ would just formally alert someone they needed to register, the person would back-date a FARA registration, and they’d carry on with their sleazy influence-peddling.

So (in addition to sanctions violations and visa fraud) this indictment charges Babakov and two staffers with conspiring to recruit an American — CC-1 — to serve as their unregistered proxy for influence-peddling. The reason I call this a matryoshka doll is because this is how the influence-peddling worked.

As the indictment lays out, Babakov has three jobs. The first is to be a member of the Duma — and he was a member of the Duma for the entire period covered by the indictment, which is why DOJ can charge this under 951. The second and third are serving as the head of two cover organizations, the Institute for International Integration Studies and the International Council of Russian Compatriots. The funding for the two European consultants (their nationality is unclear) involved in this scheme — CC-2 and CC-3 — was paid through IIIS. Babakov recruited CC-1, the American whose involvement allows 951 to be charged — through CC-2. And it was through CC-1 that Babakov attempted to forge ties with members of Congress.

The reason this matryoshka structure matters is because it’s possible CC-1 did not know the extent to which he was working on behalf of the Russian government. CC-1 is described as someone who lives in NYC and has experience “relating to international relations and media.” This could well be a journalist and I don’t rule out knowing him personally. A footnote describes that the communications in the indictment are translations, so CC-1 appears to communicate with CC-2 and CC-3 in a non-English language, but it is not necessarily Russian. CC-2 first solicited CC-1’s involvement on a “national campaign” tied to “human rights and the cause of Cuba.” So it was based on that — an interest in helping Cuba, not an interest in helping Russia — that CC-1 first started pitching meetings with one of two targets described as a “then-member of the U.S. House of Representatives.” From there, CC-3 started sucking CC-1 in with free trips to Europe and Russia.

Via that recruitment process, CC-1 came to be introduced to and serve as the instrument for Babakov’s own views — views that are still quite familiar on the horseshoe left, which may well be the politics this person holds.

At around this time, ALEKSANDR MIKHAYLOVICH BABAKOV, the defendant, publicly expressed his support for Russian President Vladimir Putin’s “approaches to building the country’s foreign policy priorities, including the prospects for developing relations with the United States,” blaming “instability” of the U.S.-Russia relationship on “well-known stereotypes and phobias, as well as the absence of a solid economic foundation,” and “destructive steps in the field of missile defense, NATO [North Atlantic Treaty Organization] expansion to the East.”

Years later, as they were ratcheting up this effort in 2017, the Russians would use CC-1 as an American cut-out.

[T]he defendants[] planned to deploy CC-1 to obtain meetings in the United States with individuals perceived to have political influence, and to use CC-1’s status as an American citizen to help them gain access to visas to travel to the United States for these meetings, all in furtherance of the defendants’ foreign influence operations.

In 2017, CC-1 helped draft some letters to a second then-member of Congress in an attempt to set up a meeting with Babakov, including to invite the Congressperson on an all-expenses paid trip to Crimea.

The lines they pushed in 2017 were the same ones we hear from the horseshoe left now: recognizing Russia’s annexation of Crimea, and,

elaboration of issues of further reduction of nuclear potentials and confidence-building measures in the military sphere, including with regard to NATO’s policy in Eastern Europe and the problem of building up conventional weapons near Russia’s borders.

Let me be clear: This pitch feels familiar to me because I’ve experienced it first-hand. From 2013 until 2018 — until the time I revealed I had gone to the FBI about someone — I would get such pitches. I’m sure the US government considers Snowden’s Freedom of the Press Foundation to be such a cover organization — indeed, Xeni Jardin quit its board over its ties to Russia — and I received funding from them for several years (though always with the understanding that I was being funded by a specific, named American). And a slew of my friends in the dissident left or civil liberties community would get such pitches, as well, many with travel and some with lucrative business opportunities attached. Some of my former associates who most loudly disputed the Russian attribution of the 2016 operation did so after getting such pitches. This happens all the time. And many of the people to whom it happens are the last people the US government would provide counterintelligence training or warnings to in advance. Many are also the kind of people who would ignore government warnings if they were given any. I probably would have when I was getting such pitches.

To be clear, CC-1 is not free from blame. When the person was pitching meetings with three members of Congress in 2012, he claimed to be the “‘President and CEO’ of a nonprofit organization” inviting the members to Europe. CC-1 remained involved after Russia’s puppet in Crimea, Sergey Aksyonov, was sanctioned in the 2014 Ukraine-related sanctions.

For example, on or about March 18, 2014, the day after Aksyonov’s OFAC designation, CC-1 posted a photo on a social media website of Aksyonov standing alongside Russian President Vladimir Putin, and directed the post to VOROBEV, CC-2, and CC-3. Several weeks later, CC-1 made another post referencing a news article regarding “the new US sanctions on Russia.”

After those sanctions, CC-1 continued to pitch Russia’s line on Ukraine — again, a view that is still familiar among the horseshoe left.

[O]n or about May 1, 2014, CC-1 contacted the head of an American internet publication via email and asserted that he had “access to Crimean officials and other pro-Russian officials in Eastern Ukraine willing to go on the record to denounce US interference in the region and to give specifics about it.” CC-1 cited his ties to “[Country-1] MPs and also members of the Russian Duma,” that is, ALEKSANDR MIKHAYLOVICH BABAKOV, the defendant.

The last overt act CC-1 took, at least as described in the indictment, was on April 10, 2017. And while this indictment was unsealed on April 14, 2022 (and so days beyond a five years statute of limitations) it was filed on April 7, a few days short of it.

So it’s unclear whether the government will use this indictment to force CC-1 to retroactively register his lobbying efforts in 2017 under FARA, or whether there was another indictment filed on April 7 we haven’t seen yet. There’s also no description of CC-1 receiving money or other benefits (such as free travel) after the time when these people started getting sanctioned, so it’s unclear whether CC-1 faces a sanctions violation himself.

DOJ is not revealing what legal impact this indictment will have on CC-1 (or a businessman the effort recruited in 2017, or other American targets alluded to in passing), which may have been done to permit for the possibility of cooperation.

What it will do is force CC-1, whoever he is, to account for the fact that his support for carving up Ukraine was not organic, but instead was part of an extended effort by Russia to turn him into a spokesperson for the Russian state.

Update: The June 2017 sanctions against Babakov and his aides are pretty interesting. He appears, without much explanation, along with Yevgeniy Prigozhin’s front companies.

Today’s action also targets six individuals and entities pursuant to E.O. 13661, which authorizes sanctions on, among others, any individual or entity that is owned or controlled by, or that has provided material or other support to, persons operating in the arms or related materiel sector in the Russian Federation, and officials of the Government of the Russian Federation.

Molot-Oruzhie, OOO manufactures ordnance and accessories and is located in the Russian Federation. In 2016, previously-designated Kalashnikov Concern advised a foreign company to use Molot-Oruzhie, OOO to falsify invoices in order to circumvent U.S. and EU sanctions. Molot-Oruzhie is being designated for operating in the arms or related material sector of the Russian Federation and for acting or purporting to act for on behalf of, directly or indirectly, Kalashnikov Concern.

Limited Liability Company Concord Management and Consulting and Concord Catering are being designated for being owned or controlled by Yevgeniy Prigozhin, who OFAC designated in December 2016.

Alexander Babakov is the Russian Federation’s Special Presidential Representative for Cooperation with Organizations representing Russians Living Abroad. Babakov was sanctioned in 2014 by the EU, which noted that he voted “yes” on a Russian bill for the annexation of Crimea. Alexander Babakov is being designated as an official of the Government of the Russian Federation.

Aleksandr Vorobev is Alexander Babakov’s Chief of Staff. Aleksandr Vorobev is being designated for acting or purporting to act for or on behalf of, directly or indirectly, Alexander Babakov.

Mikhail Plisyuk is a staffer to Alexander Babakov. Mikhail Plisyuk is being designated for acting or purporting to act for or on behalf of, directly or indirectly, Alexander Babakov.

It’s as if the US had already developed a pretty good sense that Babakov was running an information operation. And it makes me wonder if he had a role in 2016.

Share this entry

Tom Barrack Appears to Claim Trump Knew Barrack Was Catering US Foreign Policy to the Emirates

/98 Comments/in , , /by

In this post, I described the import of the false statement and obstruction charges against Tom Barrack. While Barrack may have been honest about his ties to the Emirates in a 2017 interview with Robert Mueller’s prosecutors, he is accused of lying about those ties in 2019, which — if DOJ has the goods on those later lies — will make it clear he was affirmatively hiding his role at that point.

[A]ssuming the FBI didn’t charge a billionaire with false statements without having him dead to rights on the charges, by June 2019, the FBI foreclosed several of the defenses that Barrack might offer going forward: that he was doing all this as a legal commercial transaction (which is exempt from the foreign agent charges) or that he wasn’t really working for UAE, he just thought the alliance really served US interests and indulged the Emiratis by referring to MbZ as “boss.” By denying very basic things that the FBI appears to have records for, then, Barrack made it a lot harder to argue — in 2021 — that’s there’s an innocent explanation for all this.

[snip]

This case will sink or swim on the strength of the false statements charges, because if Barrack’s alleged lies in June 2019 were clearcut, when he presumably believed he would be protected by Barr and Trump, then it makes several likely defenses a lot harder to pull off now.

The government made the same argument in a filing last month responding to Barrack’s motion to dismiss: If Barrack did not know his back channel with the Emirates was a problem, why did he (allegedly) lie about it?

Although not dispositive to Barrack’s vagueness challenge, if Barrack actually believed that he had done nothing wrong, it is unclear why he allegedly lied to FBI special agents during his voluntary June 20, 2019 interview as set forth in Counts Three through Seven of the Indictment.

It’s now clear that Barrack’s alleged false statements are even more important than that.

That’s because Barrack is now arguing that, because the Trump Administration approved of how Barrack was peddling US policy to the Emirates, Barrack could not have been a secret foreign agent under 18 USC 951.

That revelation has slowly become clear over the course of a dispute over discovery (motion, response, reply) pertaining to Barrack’s demand, among other things, for, “all communications between Mr. Barrack and the Trump Campaign and Administration regarding the Middle East.”

In the government’s response, they note that 18 USC 951 requires notice to the Attorney General, not to members of a private political campaign.

The defendants argue that evidence of Barrack’s disclosure of his UAE connections to members of the Trump Campaign are exculpatory. But Section 951 requires notice to the Attorney General, not to private citizens affiliated with the Trump Campaign. See 18 U.S.C. § 951(a). This makes sense, since the Attorney General is the official charged with enforcing the law and the senior official in charge of the FBI, the agency responsible for investigating and responding to unlawful foreign government activity inside the United States. By contrast, members of the Trump Campaign have no such responsibilities with respect to the internal national security of the United States and had no authority to sanction or bless the defendants’ illegal conduct. They are not government officials, and even if they were, they are not the Attorney General or a representative thereof.

According to the indictment, Paul Manafort not only knew that Barrack was working for the Emirates, but was cooperating with Barrack’s efforts.

In Barrack’s reply, after a heavily redacted passage, he complains about DOJ’s claim — made in the press conference announcing his arrest — that he had deceived Trump about what he was doing.

The government’s position is particularly astonishing in light of its public claim at the time of Mr. Barrack’s arrest that he had deceived Mr. Trump and the administration. Specifically, the then-Acting Assistant Attorney General for the National Security Division announced that the “conduct alleged in the indictment is nothing short of a betrayal of those officials in the United States, including the former President,” and that this indictment was needed to deter such “undisclosed foreign influence.” [citation removed] In that same press release, the Assistant Director in Charge of the FBI NY Field Office asserted that the indictment was about “secret attempts to influence our highest officials.” Id. When Mr. Barrack raised concerns with the government about these false statements in the press release, the government responded that these statements were a fair representation of the conduct alleged in the indictment. [citation removed] Thus, in one breath the government claims that Mr. Barrack deceived Mr. Trump and the administration and that such evidence is part of its case, but in the next breath contends that contrary evidence is neither relevant nor exculpatory and apparently withheld such discovery on that basis.

Barrack’s lawyers include the 2021 comments about whether Trump knew of all this as exhibits, but more recent correspondence about it remains sealed.

In other words, Barrack seems to be arguing, he didn’t betray Trump; Trump wanted him to cater American foreign policy to rich Gulf Arab nations.

Barrack spends four pages of his reply making the same kinds of complaints about the documentation of his 2019 FBI interview that Mike Flynn made in 2020, even complaining that the fact that the AUSAs prosecuting the case were in the room makes them conflicted on the case. It’s clear why he did so: because if Barrack did lie to an FBI run by Trump’s appointed FBI Director and ultimately overseen by Bill Barr in 2019, then he was continuing to hide his influence-peddling from the one person that mattered under the law, Bill Barr (though given what we know of Barr’s interference in Ukraine investigations, I would be unsurprised if Barr knew that Trump knew of Barrack’s ties to the Emirates, which would explain why he swapped out US Attorneys in EDNY at the time).

Remember: Barrack is alleged to have been pursuing policies pushed by Mohammed bin Zayed. But among the things he is accused of doing for the Emirates was to “force” the White House to elevate Saudi Crown Prince Mohammed bin Salman (then just the Deputy Crown Prince) during a visit to DC in March 2017. At the time the FBI interviewed Barrack in June 2019, Trump was under significant pressure for his possible complicity in the Jamal Khashoggi assassination.

And now — at a time when EDNY is talking about indicting Barrack’s not-yet indicted co-conspirators — we learn that MbS invested $2 billion dollars in Jared Kushner’s brand new firm even in spite of all the reasons not to.

Six months after leaving the White House, Jared Kushner secured a $2 billion investment from a fund led by the Saudi crown prince, a close ally during the Trump administration, despite objections from the fund’s advisers about the merits of the deal.

A panel that screens investments for the main Saudi sovereign wealth fund cited concerns about the proposed deal with Mr. Kushner’s newly formed private equity firm, Affinity Partners, previously undisclosed documents show.

Those objections included: “the inexperience of the Affinity Fund management”;the possibility that the kingdom would be responsible for “the bulk of the investment and risk”; due diligence on the fledgling firm’s operations that found them “unsatisfactory in all aspects”; a proposed asset management fee that “seems excessive”; and “public relations risks” from Mr. Kushner’s prior role as a senior adviser to his father-in-law, former President Donald J. Trump, according to minutes of the panel’s meeting last June 30.

But days later the full board of the $620 billion Public Investment Fund — led by Crown Prince Mohammed bin Salman, Saudi Arabia’s de facto ruler and a beneficiary of Mr. Kushner’s support when he worked as a White House adviser — overruled the panel.

Barrack’s apparent claim that Trump knew exactly what he was doing does nothing to change his legal posture before Trump became President, and DOJ indicted this before the statute of limitation expired on that conduct.

But the apparent claim that Trump knew about this — and the possibility that Barr did too, at least after the fact — would change the kind of crime that happened in 2017, after Trump became President. And, possibly, the culprit.

Share this entry

Sedition Is the Foundation on Which the Trump Associate Investigation Builds

/39 Comments/in , , /by

As I laid out in this post, I’m impatient with those who claim the government has taken a new direction in the January 6 investigation with subpoenas to people like — most audibly — Ali Alexander. Alexander got a number of journalists who know better to repeat his claim that he was “cooperating” with the investigation rather than merely “complying” with a subpoena. Few of those journalists pointed out real holes in his cover story — including his silence about Roger Stone and Alex Jones, his disavowal of communications with militias before he arrived at the Capitol, his use of cover organizations to get his permits, and his seeming message to co-conspirators that if he once had evidence, it is no longer in his possession.

In his statement, Alexander sought to separate himself from the substance of the investigation, saying he did not coordinate with the Proud Boys and suggesting his contact with the Oath Keepers was limited to accepting an offer for them to act as ushers at an event that never took place: his own permitted event near the Capitol, which didn’t occur because of the mob attack on the Capitol. The Oath Keepers are the subject of conspiracy charges for their roles in breaching the Capitol that day.

“I did not finance the Ellipse equipment. I did not ever talk with the White House about security groups. Any militia working security at the Ellipse belonged to “Women for America First,” not us,” Alexander said. “I did not coordinate any movements with the Proud Boys or even see them that day. I did take Oath Keepers offer to act as ushers for the Area 8 event but all of that was lost in the chaos. I wasn’t in communication with any of the aforementioned groups while I was near the Capitol working to get people away from the building. Lastly, I’m not willing to presume anyone’s guilt.”

“I did nothing wrong and I am not in possession of evidence that anyone else had plans to commit unlawful acts,” Alexander said. “I denounce anyone who planned to subvert my permitted event and the other permitted events of that day on Capitol grounds to stage any counterproductive activities.”

This is classic Roger Stone-schooled disinformation and should be treated as such.

Reporters have, undoubtedly based on really good sourcing, emphasized the existence of a new grand jury focusing on Trump’s associates, and from that, argued it’s a new direction — though as I’ve documented, DOJ has availed themselves of at least six grand juries thus far in this investigation.

But how could an investigation of Alexander’s actions be new if DOJ successfully debunked much of his current cover story — that he was “working to get people away from the building” — last November? Alexander co-traveler Owen Shroyer attempted to offer the same false claim in an attempt to throw out charges — filed in August — against him, but Judge Tim Kelly rejected that attempt on January 20. How could this be a totally new direction if prosecutors would have obtained Alexander’s Stop the Steal listserv as a result of Brandon Straka’s “cooperation” in early 2021? How could it be a new direction if DOJ has gotten guilty pleas from those who went first to the Capitol, then to the East front, and finally breached the building in response to lies about Alexander’s rally permits told by Alex Jones? DOJ has, demonstrably, been laying the groundwork for a subpoena to Alexander for over year.

And it’s not just Alexander. Steps DOJ took over the past year were undoubtedly necessary preconditions to going after Trump’s close associates. Those include:

These are efforts that started in January 2021. Some of the most important — the way DOJ seized Rudy’s comms and got a privilege review without revealing a January 6 warrant — started on Lisa Monaco’s first day in office.

But there’s a more important thing that DOJ probably believed they needed before going after Trump and his close associates: compelling proof that Trump wielded the mob in his effort to obstruct the vote count, obtaining the proof in the yellow boxes, below. That was one of the things I was trying to lay out in this post.

While there are specific things Trump and his associates did that were illegal — the call to Brad Raffensperger, the fake elector certificates, the illegal demand of Mike Pence — many of the rest are only illegal (at least under the framework DOJ is using) if they are tied to Trump’s successful effort to target the mob at American democracy. You first have to prove that Trump fired the murder weapon, and once you’ve established that proof, you can investigate who helped Trump buy the weapon, who helped him aim it, who loaded the gun for him, who was standing behind him with four more weapons to fire if his own shot failed to work.

And this is why I’m interested in the apparent two month process it appears to have taken DOJ to shift its main focus from the work of the January 8, 2021 grand jury, whose work culminated in the January 12, 2022 seditious conspiracy indictment against Stewart Rhodes, and the February 14, 2022 grand jury, the foundational overt act of which was the March 7 conspiracy charge against Enrique Tarrio.

The first grand jury proved that the vast majority of the rioters, whether trespassers or assault defendants, got there via one of three methods:

  • Responding to Trump and Alex Jones’ lies about Trump accompanying the marchers and giving a second speech
  • Acting directly on Trump’s “orders,” especially his December 19 tweet, often bypassing the Ellipse rally altogether
  • Coordinating with one of the militias, especially the Proud Boys

Judge Amit Mehta also seems to believe that the grand jury developed proof that many of those who assaulted cops were aided and abetted by Donald Trump. The first grand jury also proved that of those who — having been led to believe false claims about vote fraud based on over three months of propaganda — had the intent of obstructing the vote count, a great number had the specific goal of pressuring or punishing Mike Pence. While the intent of pressuring Pence came, for some rioters, from militia hierarchies, for most others, it came directly from Trump.

This is my hypothesis about the seeming shift from using the January 8 grand jury as the primary investigative grand jury to launching a new one on February 14. The January 8 grand jury has largely completed its investigation into what caused the riot, how it was orchestrated, who participated; the remaining prosecutions that don’t require and affect the larger picture will be and have been charged via the November 10 grand jury. But by indicting Tarrio and showing, with Charles Donohoe’s cooperation, that everything the Proud Boys did emanated from Tarrio’s orders and, by association, from whatever understanding Tarrio had about the purpose of the riot from his communications with people close to Trump, DOJ and the Valentine’s Day grand jury will move onto the next level of the conspiracy to obstruct the vote count. Again, that’s just a hypothesis — we’ll see whether that’s an accurate read in the weeks ahead. But it’s not a new direction at all. It is the direction that the investigation has demonstrably been headed for over a year.

Update: In a statement pretending the stories about his cooperation were leaked by DOJ, Alexander insists he is not cooperating, but complying.

After consultation with counsel, we provided a statement that established that I was not a target of this grand jury; I haven’t been accused of any criminal wrongdoing; and that I was complying, as required by law, with their probe.

[snip]

Useful idiots on the right, clinging to a New York Times headline that sensationalizes my compliance with a subpoena, will empower the Deep State which planted these stories to give their political investigation more legs to hurt our election integrity movement and Trump’s 2024 prospects. [my emphasis]

The rest of the statement should convince anyone that this is a replay of the same bullshit we saw from Stone and Jerome Corsi in the Mueller investigation.

Share this entry

Where Was Doug Jensen Radicalized? Russia’s 2016 Election Tampering

/130 Comments/in , , , , /by

Last May, I observed that QAnon had far more evident success in getting its adherents in places to obstruct the vote certification on January 6, 2021 than the organized militias did.

QAnon managed to get far more of their adherents to the Senate floor than either the Proud Boys (Joe Biggs and Arthur Jackman showed up after getting in with the help of people inside) or the Oath Keepers (Kelly Meggs and Joshua James showed up too late). QAnon held a prayer on the dais while the militias were still breaching doors.

While he didn’t make it to the Senate floor, that’s true, in part, because of the fervor with which QAnoner Doug Jensen sprinted up the stairs after Officer Eugene Goodman (though Jensen’s fervor was also one of the things that Goodman exploited to buy time to evacuate the Senate).

According to an FBI interview Jensen did just days after the insurrection (the transcript was released as part of a suppression motion that is unlikely to work), that was his stated intent.

He wanted QAnon to get credit for breaching the Capitol.

I wanted Q to get the attention.

Q. I see.

A. And that was my main intention basically —

Q. Um-hum.

A. — was to use my shirt. I basically intended on being the poster boy, and it really worked out.

The transcript is a tough read. It reveals (as the court filings associated with many of the January 6 defendants do) the urgency with which the US needs to address mental health treatment. It reveals how Trump’s propagandists won the allegiance of a blue collar union member who had previously voted Democratic.

But most vividly, it reveals how Jensen got radicalized into QAnon. And that started — as he repeatedly describes — from the files stolen from John Podesta released by WikiLeaks in advance of the 2016 election. He planned to vote for Hillary (!!!) until he came to believe the misrepresentations he read (pushed, in significant part, by accused Proud Boy leader Joe Biggs) of the Podesta files. When the flow of Podesta files ended, Jensen was left with a void, which Q drops filled shortly thereafter. After that, Jensen came to believe Trump’s lies that he had been shafted by the Deep State, by some guy (Peter Strzok) and his girlfriend whose name he couldn’t remember. Perhaps as a result, Jensen came to believe of Putin that, “this guy don’t seem so bad, you know.”

Also, Q said — Q has said things, okay, so like — and anonymous, okay. I follow that, Mayjan (ph.) and all that stuff, you know, because basically I was not into politics until the Wiki leaks dropped, and then when I realized about Haiti, and the Clinton Foundation, and the kidnappings all through the Clinton Foundation, and then I learned about Epstein Island and then I learned Mike Pence owns an island, right — or not Mike Pence, Joe Biden owns an island next door, and then I find that Hunter Biden and Bris Moldings (ph.) and all that, I knew about that a year or two ago.

[snip]

It all started with all the crap I found out about Hillary Clinton, John Podesta, you know, all of that stuff, and then so right before I was going to vote for Hillary, I was like, whoa, we’ve got to vote Trump in because we can’t have Hillary. And then I start finding things like we were supposed to be dead by now, and if Hillary would have won, we were going to be attacked by North Korea or Iran. We were going to go to war, and we would most likely — half of us wouldn’t be here right now if Trump wouldn’t have won that election is what I got from it.

[snip]

You guys have an FBI thing that you released all that Ben Swan who was on ABC years ago and he tried to expose pizza gate and he got fired that night from ABC, and he works for RT now.

[snip]

I am for America, and I feel like we are being taken over by communist China, you know, and the whole Russian collusion was fake. I don’t know what the deal with Russia is, but I don’t know, Vladimir Putin, he seems to be like a decent person, but I could be crazy, you know. But I think we were taught from a young age to hate Russia and all of this stuff. I’ve researched on Vladimir Putin. I was like this guy don’t seem so bad, you know, but I don’t know, you know.

[snip]

A. And all this information, and Trump’s taking down all these people, you know? And — well, firing them or whatever, you know? Like Brennan, Clapper, you know, that guy that I hate with his girlfriend, I can’t remember their names. Those texting back and forth. But they were all like top, you know, members, they’re high up and stuff.

Q. Yeah.

A. And you saw that they were out to destroy Trump, and they were members of our, you know, Central Intelligence or our FBI, you know?

[snip]

I did not preplan nothing. I am not a leader. I am just a hardcore patriot. I am a diehard — I believe all this stuff to be true, and I feel like Trump’s just got the absolute shaft from everything around, our own government, the media.

[snip]

So I voted both terms for Obama, and during the presidency, I thought he was a great president. The health thing. The health thing didn’t benefit me and my family because I had union health insurance. So I got no benefits from it, but I was happy that all those people got insurance, you know? And so I was happy with him. And then I was going to vote for Hillary because I’ve been a democrat my whole life.

Q. Yeah.

A. And then the WikiLeaks thing happened and I had to start questioning where I was getting my info from. And that’s when I realized, you know, holy cow, I can’t vote for this woman. And then it became — like I started telling everybody I know about WikiLeaks and everything else back then. And then that died off when Trump won. And then I didn’t really have anything. I was happy Trump won, you know? And then all of a sudden Q drops started. And it was just — that’s all I did —

Q. Yeah.

A. — was follow those Q drops. [my emphasis]

This is a narrative of how an information operation started by Russia six years ago continues to poison American politics, up to and including persuading Americans to affiliate with the architect of that information operation.

After that radicalization process — Jensen described to the FBI — he readily responded to the propagandists trying to help Trump steal an election: Lin Wood, Sidney Powell, and Rudy Giuliani, as well as the December 19, 2020 Trump tweet that arose out of their machinations. And so he drove all night from Iowa to answer Trump’s call.

Q. How’d you find out about the rally?

A. Well, I found out from the rally from all the different people I follow.

Q. I see.

A. Which — so like — I’m not saying it’s JFK, Jr., but one of the people I follow on Twitter, his name’s John F. Kennedy, Jr., and then Linwood. Linwood’s new. Like everything Linwood has dropped in the last couple weeks is old news, like that’s all old new to me, and so Linwood got me fired up, Sidney Powell got me fired up. Rudy Giuliani got me fired up, you know, and then I go to this Trump rally and I was just hoping it was show time basically, and then he gets done with this rally and I’m just kind of like — he’s like, oh, let’s all go march down peacefully, you know. He didn’t tell us to go storm the building, okay.

[snip]

A. Trump’s posts. Trump posted make sure you’re there, January 6 for the rally in Washington, D.C., I’ll have some great info, and so that to me was, oh, here it comes, because — and then, you know, all he said, well, where’s Hillary? Well, where? I already know that. Q said where’s Hillary four months ago, you know, so I was kind of like that’s all you got, where’s Hillary? You know, he — and then he got us all fired up to go to that White House, and then it just all happened so quick and I just wanted to make sure that I wanted to be in the front. Basically I wanted to get that Q shirt the attention —

Q. Right.

A. — is what my goal was. [my emphasis]

There are few better summaries of the damage done by the sustained information operations that both Russia and Trump pursued — with the Burisma attacks, at least, provably in coordination — over the last six years. The self-described poster boy for the insurrection got there as a result of a sustained series of information operations that started with Russia’s attempt to tamper in the 2016 election.

Only, Doug Jensen makes it clear: Russian didn’t just tamper in the election. It tampered with the American psyche.

Share this entry

The Valentine’s Day Massacre: How DOJ Lost Lucas Denney and Found Enrique Tarrio

/37 Comments/in , , /by

The biggest publicly known fuck-up of the January 6 investigation thus far is when DOJ lost Lucas Denney. He’s the self-described President of the North Texas Patriot Boys. He was arrested in December with Donald Hazard and charged in another militia-related conspiracy.

Their conspiracy is interesting for several reasons:

  • Denney paid Hazard’s way to DC via fundraising that picked up after Trump announced the rally
  • At least as Denney told it, they coordinated with the Proud Boys
  • They did relatively more to arm themselves than other militias (and appeared relatively more focused on brawling with cops)
  • Denney was palling around with Ted Cruz during the summer

Hazard was charged for wrestling with some cops on the stairs under the scaffolding, which ended up knocking out one of them. Denney was grappling with cops for some time, and ultimately had a hand in pulling Michael Fanone into the crowd.

DENNEY then turned towards Officer M.F., swung his arm and fist at M.F., and grabbed M.F., pulling him farther down the stairs, as depicted below. DENNEY then himself fell backwards into the crowd. In the images below, DENNEY is circled in red; Officer M.F. is circled in yellow.

The FBI started investigating these guys from day one. By April, the government had obtained both men’s Facebook accounts. They were finally arrested on December 13. He was ordered detained by a magistrate judge in Texas. It took the Marshals until January 31 to get him to DC.

Just days earlier, Denney’s case had been moved from AUSA Benet Kearney to Jennifer Rozzoni. Between some confusion about when Denney’s initial appearance in DC would be, the shift of prosecutors, and the crushing schedule that both John Pierce and Rozzoni have, they simply never got his initial appearance scheduled. Around then, William Shipley, the far more competent attorney who does the actual lawyering for the Pierce boondoggle, joined the case and immediately started filing for release based on how long DOJ had left him sitting in DC.

On March 7, DOJ obtained a one count assault indictment against Denney alone based on his assault of a different cop, not Fanone, mooting some of the legal basis for his release. Then Shipley, thinking he was getting cute, advised his client to plead guilty to that charge as a way to stave off all the other conspiracy charges he was facing. As a result, Denney pled guilty right away to an assault charge that could get him 71 months. While his exposure on January 6 is probably eliminated with the guilty plea, it’s not for any plotting he did afterwards.

When he pled, Rozzoni was very careful to enter into the record how much of discovery Denney’s attorneys had seen and what they may not have when advising him to plead.

Losing Denney — a very-well connected militia member accused of assaulting cops — was a colossal mistake, though Shipley’s tactics saved the government from having to release him. It seemed, at the time, to be a symptom of just how overloaded the January 6 investigation has made DOJ.

And while that’s surely part of it, subsequent events make it clear that something else was going on at the time.

First, some details about grand juries. When the government is charging people with misdemeanors, they don’t need to get an indictment from a grand jury. But felonies require presenting the evidence to a grand jury.

When grand juries expire, DOJ can’t just tell a new grand jury about what the other grand jury did. They have to present all the evidence anew.

When people have asked whether DOJ will open a grand jury to investigate Trump, I have responded that they already had a grand jury. In fact, I noted, they had used at least five by the turn of the year. But as my lists below make clear, not all those grand juries were the same. Virtually every single important case — all the conspiracies, all the most important assault cases (both for import of victim or size), and most of the other cases — were presented to a grand jury seated on January 8, two days after the riot. (These lists are very incomplete but I will update them going forward.)

Most spectacularly, the relentless Oath Keepers conspiracy kept going back to the same grand jury superseding the initial charges, on February 19, 2021 (S1), on March 12 (S2), on March 31 (S3), on May 26 (S4). Then they started flipping people. Then they kept superseding, on August 4 (S5), on December 1 (S6), until, on January 12, 2022, just 369 days after the grand jury started investigating, the case split into several interlocked conspiracies, one of them charging Stewart Rhodes and others with seditious conspiracy. On March 2, DOJ got their first guilty plea to seditious conspiracy, from Joshua James, who not only knew what Rhodes was doing the day of the riot, but also knew (and reported back on) what Roger Stone was doing.

But even while that grand jury was marching relentlessly towards charging Rhodes with sedition, it was also charging the majority of hundreds of other January 6 defendants.

The Proud Boy march has not been that focused. While all the initial Proud Boy conspiracies were charged by the same group of anonymous private citizen who would ultimately charge Rhodes with sedition, when necessary, DOJ would use another grand jury with the Proud Boys as well. The Front Door conspiracy was first superseded by a January 11 grand jury (which might be the regularly seated one, but which picked up a lot of the flood in that period). When DOJ superseded Nick DeCarlo’s conspiracy with Nick Ochs, they used a grand jury seated on November 10.

The government seemed to use a regular May 25 and August 11 for similar necessities. But when the government wanted to charge Ronnie Sandlin and Nate DeGrave in a conspiracy, they waited for months — from April until September, a month and a half after Josiah Colt had flipped on them — to present it to that January 8 grand jury.

Oh shit, now I’ve forgotten about Lucas Denney, just like DOJ did.

The point I’m trying to make is that, for that relentless year while that grand jury was finalizing the sedition charges, it also charged almost all major January 6 felonies. That group of two dozen anonymous Americans saw all of this.

Until the Enrique Tarrio indictment. The indictment against the Proud Boy head obtained on March 7 was from a new grand jury, one seated on Valentine’s Day. The same grand jury from which DOJ got their last minute single count indictment against Denney.

I’m still testing this, but it appears that after its non-stop year of indicting insurrectionists, the last thing the January 8 grand jury may have done was charge the seditious conspiracy. Before February 14, other January 6 indictments (MacCracken, AJ Fischer, and Bilyard, for example) were handled by the August 11 grand jury. Then after February 14, new January 6 indictments (like Beddingfield, Johnson, and Bingham) were done by the November 10 grand jury.

Until March 7, when that February 14 grand jury started indicting people, starting with Enrique Tarrio.

The period when DOJ lost Lucas Denney appears to be the three-week period when DOJ was shifting from the January 8, 2021 grand jury to the February 14, 2022 grand jury.

DOJ ended their first grand jury with sedition. They opened their second grand jury with Tarrio — who may or may not have known about the riot before Trump announced it.

Update, May 6: In response to a Zach Rehl request for the exhibits the government will use in its case in chief against the Proud Boys, DOJ points to what must be how they read over the evidence from the one grand jury to the other:

In the meantime, the government has turned over information and materials that provide a clear roadmap regarding the government’s anticipated case-in-chief. Specifically, following the return of the Second Superseding indictment, the government turned over to defense counsel a 160-page grand jury transcript, with exhibits, and a detailed 96-slide PowerPoint presentation containing the evidence supporting the charges against the defendants.

January 8

  • All Oath Keeper
  • Proud Boy Leader
  • DeCarlo
  • Kuehne (KC Proud Boy)
  • Klein (North Door Proud Boy)
  • Pezzola (Front Door Proud Boy)
  • Hostetter (3% SoCal)
  • Rodriguez (SoCal Anti-Mask)
  • Sandlin (disorganized conspiracy)
  • Munchel
  • Khater (Sicknick)
  • Sibick (Fanone)
  • McCaughey (all)
  • Sabol
  • Horning (Jacob Hiles’ co-defendant, so tied to Riley)

January 11

May 25

August 11

November 10

February 14

Share this entry

Six Investigative Files from the Mueller Investigation Durham May Have Just Committed to Providing Michael Sussmann

/49 Comments/in , , /by

As I noted in this thread, while John Durham and Michael Sussmann have battling motions in limine about whether Durham can introduce evidence of his own conspiracy theory about the Democrats packaging dirt against Donald Trump, Durham somehow forgot to file a motion in limine to prevent Sussmann from raising facts that show how reasonable it was to search for ties between Trump and Russia in 2016.

It’d be hard to see how he could do that anyway. After all, there’s abundant evidence that the reason researchers and Democratic operatives alike focused their effort to understand the DNS anomaly in late July and thereafter is because of the things Trump said on July 27, 2016.

TRUMP: Why do I have to (ph) get involved with Putin? I have nothing to do with Putin. I’ve never spoken to him. I don’t know anything about him other than he will respect me. He doesn’t respect our president. And if it is Russia — which it’s probably not, nobody knows who it is — but if it is Russia, it’s really bad for a different reason, because it shows how little respect they have for our country, when they would hack into a major party and get everything. But it would be interesting to see — I will tell you this — Russia, if you’re listening, I hope you’re able to find the 30,000 e-mails that are missing. I think you will probably be rewarded mightily by our press. Let’s see if that happens. That’ll be next. Yes, sir…

[snip]

TRUMP: Excuse me, listen. We wanted to; we were doing Miss Universe 4 or 5 years ago in Russia. It was a tremendous success. Very, very successful. And there were developers in Russia that wanted to put a lot of money into developments in Russia. And they wanted us to do it. But it never worked out.

Frankly I didn’t want to do it for a couple of different reasons. But we had a major developer, particular, but numerous developers that wanted to develop property in Moscow and other places. But we decided not to do it.

[snip]

QUESTION: I would like to know if you became president, would you recognize (inaudible) Crimea as Russian territory? And also if the U.S. would lift sanctions that are (inaudible)?

TRUMP: We’ll be looking at that. Yeah, we’ll be looking. [my emphasis]

Particularly if Sussmann knew in real time — as the Hillary campaign did — that a renewed wave of attacks by Russia started immediately after Trump’s comments, Sussmann can fairly explain that, in their attempt to understand the correlation suggesting causation between Trump’s request and the attack, the anomalous DNS data seeming to suggest communication between Trump and Alfa Bank might explain the connection. In fact, the inference that Russia’s back channel was Alfa Bank had some backing (LetterOne Board Member Richard Burt had been involved in reviewing Trump’s first foreign policy speech), though the actual back channels were Paul Manafort and Roger Stone. So it was reasonable to try to understand the possibility of that back channel and reasonable to share with the FBI data reflecting that possibility.

For his part, given the way that Durham has always obscured when in late July the effort to research Trump got started, he’s likely to rely on a document — which may be dated July 26 or may be dated July 28, but which the Intelligence Community judged might be a fabrication in real time — claiming that Hillary had already decided to tie Trump and Russia together.

Given the timing of the increased effort to understand the Alfa Bank anomaly and the explicit references to Trump’s July 27 comments, Sussmann must be permitted to show how Trump’s July 27 comments were part of his state of mind when he went to the FBI and made his actions (and, indeed, the privilege claims Durham is now trying to pierce) reasonable.

Had Durham left well enough alone, that might be all Sussmann could ask to present at trial. But if Durham tries to rely on that sketchy intelligence report or if he wins his bid to present his full conspiracy theory, then it opens him up to far great discovery obligations. They include the investigative files on the following people Mueller investigated:

Richard Burt: The Mueller Report describes that, after Vladimir Putin ordered Petr Aven to seek to establish a back channel with Trump after the election, Aven approached Richard Burt, with whom he served on the board of LetterOne, to attempt to reach out. But Burt had played a role in outreach to the Trump campaign long before that, in an April 2016 Center for National Interest review of Trump’s first foreign policy speech. Burt was also present at two CNI-hosted speeches, one in June and August, at which “the participants addressed U.S. relations with Russia, including how U.S. relations with NATO and European countries affected U.S. policy toward Russia.” Indeed, according to Burt’s interview report, he was the one focusing on NATO and Europe. Burt’s publicly released interview report remains heavily redacted, including numerous redactions of material that was, in March 2020, still under investigation. Given that Durham wants to litigate whether it was realistic to think Trump might have a back channel through Richard Burt, Durham probably needs to provide the Burt-related materials to Sussmann.

Roger Stone: It is a fact that, on July 31, 2016 — during a period, starting at least by July 25, when he was actively seeking to optimize the files Russia stole from Hillary — Roger Stone had two conversations with Donald Trump and afterwards sent draft tweets promising a new peace deal with Putin for Trump to use in the coming days.

(U) On Sunday July 31, at 9:15 p.m., the day after speaking at length with Manafort, Stone called Gates.1550 Ten minutes later, Stone had two phone calls with Trump that lasted over ten minutes. 1551 Stone then emailed Jessica Macchia, one of Trump’s assistants, eight draft tweets for Trump, under the subject line “Tweets Mr. Trump requested last night.”1552 Many of the draft tweets attacked Clinton for her adversarial posture toward Russia and mentioned a new peace deal with Putin, such as “I want a new detente with Russia under Putin.”1553 (U) At 10:45 p.m. that same evening, Stone emailed Corsi again with the subject line “Call me MON[day]” and writing that “Malloch should see Assange.”1554 (U) The next morning, August 1, Stone again spoke twice with Trump. 1555 Stone later informed Gates of these calls. 1556 According to an email that morning from Stone to Macchia, Trump had “asked [Stone] for some other things” that Stone said he was “writing now.”1557

1551 (U) Records reviewed by the Committee showed a six minute call from Stone to Trump on July 31 at approximately 9:25 p.m. and a five-minute call from Stone to himself at approximately 9:36 p.m. See AT&T Toll records, Roger Stone/Drake Ventures (ATTSSCI00039). Evidence introduced at trial against Stone showed corresponding calls with Trump at those same times and for the same length of time, including a call from Trump at the number “-1” to Stone at 9:36 p.m. See United States v. Stone, Gov. Ex. 148; United States v. Stone, Gov. Ex. 164; Testimony of Michelle Taylor, United States v. Stone, pp. 348-349. This suggests that that Trump’s phone would sometimes appear in another person’s phone records as that person calling him or herself, or as a call with phone number “-1.” A number of such calls appear in Stone’s records and others, including records provided by Donald Trump Jr., during relevant time periods, but the Committee did not investigate those additional calls further.

1552 (U) Email, Stone to Macchia, July 31, 2016 (TRUMPORG_18_001307).

1553 (U) Ibid One draft tweet referenced the Clinton Foundation. Stone followed up about the tweets with Rhona Graff the following morning, August 1, to make sure Trump received them. Email, Stone to Graff, August 1, 2016 (TRUMPORG _ 18_001310).

1555 (U) AT&T toll records, Roger Stone/Drake Ventures.

1556 (U) Text message, Stone to Gates, August 2, 2016 (United States v. Stone, Gov. Ex. 20) (“Spoke to Trump a cpl of times.”).

1557 (U) Email, Stone to Macchia, August 1, 2016 (TRUMPORG_l8_001315).

It is also a fact that while most of Trump’s aides said that Trump ad-libbed that “Are you listening” comment, Rick Gates testified that Stone was stating — before flip-flopping on the issue days later — that Russia may have the emails, implying that Stone could have been the source of that comment along with the scripted tweets. Indeed, from that April 2016 foreign policy speech, Stone was demanding that Gates allow him to have input on Trump’s foreign policy statements.

It is also a fact that by August 2018, the FBI had evidence that led them to suspect that Stone had learned of the Guccifer 2.0 persona before it went live on June 15, 2016. Given how centrally Durham has made the July 2016 start date of the research into the Alfa Bank anomalies, he may be on the hook for providing details showing that Stone already had a back channel by then. That’s all the more true if Durham wants to rely on that intelligence product focusing on Guccifer 2.0.

Paul Manafort, Konstantin Kilimnik, and Alex Van der Zwaan: With his motion in limine, Durham has formally noticed that he wants to litigate at trial whether it was fair for people acting on behalf of Hillary — to say nothing of researchers collaborating with DARPA and the FBI or a private citizen with an established record conducting infosec inquiries into threats to the United States — to want to inquire into the following topics:

  • Illegal financial relationships between Oligarchs close to Putin and those close to Trump
  • Laundering of Russian-backed money through Cyprus
  • The actions of those married to the children of Alfa Bank’s founders
  • Sanctions violations and FEC regulations implicated by Fancy Bear’s ongoing attack on the election

Durham suggests the only reason someone would want to research such topics was unfounded animus directed at Trump. But the results of the Mueller inquiry — to say nothing of what the ongoing investigation confirming Konstanin Kilimnik did, in fact, share Trump’s campaign strategy with Russian intelligence agencies — prove that all these concerns not only had merit, but proved to be absolutely correct.

At least one person close to Donald Trump, Manafort, did have illegal financial relationships with Oligarchs close to Putin: the Campaign Manager who got fired for such ties in the middle of this intensifying focus on the Alfa Bank anomalies. That person did launder the money he made from them through Cyprus. How that Campaign Manager — who was working for “free” — got paid remains a mystery, implicating FEC regulations. And some of the other actions implicating the Russian operation that FEC’s General Counsel found reason to believe amounted to a campaign finance violations include:

  • Trump’s request, “Russia are you listening?”
  • Illegal donations from Cambridge Analytica
  • An in-kind donation for hacking Hillary
  • Internet Research Agency donation of trolling to support Trump

While Democrats didn’t block the much smaller violation tied to the dossier, Republicans have blocked Trump from any accountability for his likely campaign finance violations involved with accepting help from Russia.

Meanwhile, in the very same weeks when those Durham claims were involved in a malicious conspiracy targeting the children-in-laws of Alfa Bank’s founders, German Khan’s son-in-law, Alex Van der Zwaan, was taking action on Rick Gates’ orders to cover up Manafort’s ties to those Oligarchs. Van der Zwaan would, at first, lie to Mueller about the actions he took in response to Gates’ orders starting on September 7, 2016, including a call to Kilimnik, whom Van der Zwaan understood to be a former Russian spy.

In or about September 2016, VAN DER ZW AAN spoke with both Gates and Person A regarding the Report. In early September 2016, Gates called VAN DER ZWAAN and told him to contact Person A. After the call, Gates sent VAN DER ZWAAN documents including a preliminary criminal complaint in Ukraine via an electronic application called Viber. VAN DER ZWAAN then called Person A and discussed in Russian that formal criminal charges might be brought against a former Ukrainian Minister of Justice, Law Finn A, and Manafort. VAN DER ZWAAN recorded the call. VAN DER ZWAAN then called the senior partner on the Report at Law Firm A and partially recorded that call. Finally, VAN DER ZWAAN called Gates and recorded the call. VAN DER ZWAAN also took notes of the calls.

If Durham wants to argue that it was unreasonable to inquire into whether German Khan’s son-in-law might be involved in illicit doings with Oligarchs tied to Putin and people close to Trump, he needs to provide Sussmann the details of the cover-up that Van der Zwaan conducted with Kilimnik and Rick Gates just days before Sussmann’s meeting with James Baker. He needs to allow Sussmann to show that evidence in DOJ’s possession shows that not only was it a valid subject of inquiry, but precisely the thing April Lorenzen was concerned might be going on was going on, in real time.

Michael Cohen: With his untimely 404(b) notice, Durham informed Sussmann that he also wants to claim the dossier was part of the conspiracy he was trying to cover up by lying, even though he has provided no evidence that Sussmann knew Christopher Steele was sharing those reports with the FBI. By making it an issue, though, Durham also makes Michael Cohen’s real secret communications with the Kremlin, which disinformation in the dossier seemed tailored to obscure, an issue. That’s all the more true given that Trump’s “Russia are you listening” comments also included statements that — Cohen has described recognizing in real time — were a lie that covered up that Trump was still chasing an impossibly lucrative real estate deal that involved a former GRU officer and one of two sanctioned banks when he claimed to have decided not to pursue one. This topic is all the more pertinent given that Trump Organization withheld the documents reflecting these secret back channel communications from Congress and Trump demonstrably lied to Mueller about the topic. If Durham wants to argue it was implausible to think Michael Cohen had back channel communications with the Kremlin, then he needs to give Sussmann all the evidence that not only was it not implausible, but it was fact.

I’ve seen no hint that Sussmann’s attorneys want to turn Sussmann’s trial into the trial of Donald Trump’s 2016 campaign that we never got. They seem content to argue that the alleged lie was not material and the evidence that Sussmann lied in the way Durham thinks he did is thin, if not inadmissible.

But Durham has chosen a different path. He has wildly expanded the scope of what kind of questions he think are material to this case. And because he has chosen that dramatically expanded path, he has made all of this evidence material under discovery obligations.

The evidence to prove that the suspicions Sussmann and others had in 2016 were not just justified, but turned out to be true, are now material to discovery. If Durham doesn’t start turning over vast swaths of material about the ties of Trump’s top associates with Russia to Sussmann, he risks dismissal for discovery violations.

Share this entry

John Durham Unveils His Post-Putin Puppet Strategy

/33 Comments/in , , /by

I first complained publicly about the Alfa Bank allegations on November 1, 2016. I raised questions about the provenance of the Steele dossier the day after it was released, on January 11, 2017. I started raising concerns that Russia had succeeded in injecting the dossier with disinformation just a year later — literally years before the Republicans investigating it full-time did. When Democrats revealed that they had paid for the dossier in October 2017, I wrote a very long post labeling the entire project “fucking stupid.” Part of that was about the Democrats’ delayed admission they were behind the dossier. But part of that was because of the way the dossier distracted from Trump’s very real very concerning ties to Russia.

It has been clear for some time that Steele’s reports had some kind of feedback loop, responding to information the Democrats got. That was most obvious with respect to the September 14 Alfa Bank report, which was obviously written after first news of the Alfa Bank/Trump Tower story, which was pushed by Democratic partisans. Particularly given that we know the released report is a selective release of just some reports from the dossier, the inclusion of Alfa Bank in that release makes no sense. Even if reports about old corrupt ties between Alfa and Putin are true (as if Democratic politicians and corrupt American banks never have old ties), the inclusion of the Alfa report in the dossier on Trump made zero sense.

Which is why Alfa Bank decided — after consulting with big Republican lawyers like Viet Dinh and soon-to-be DOJ Criminal Division Chief Brian Benczkowski — to sue for defamation. Now I understand why (particularly given that Republicans seem to have known who paid for the dossier for some time). I’m not sure Alfa Bank executives pass the bar for defamation here (though the publication of a report that misspelled Alfa’s name is pretty damning), but the fact that Elias paid for this dossier on behalf of the Democrats is going to make that defamation case far more explosive (and I’ll be surprised if Elias doesn’t get added into the mix).

As I said when I began this: I have no doubt Russia tampered with the election, and if the full truth comes out I think it will be more damning than people now imagine.

But the Democrats have really really really fucked things up with their failures to maintain better ethical distance between the candidate and the dossier, and between the party and the FBI sharing. They’ve made things worse by waiting so long to reveal this, rather that pitching it as normal sleazy political oppo research a year ago.

The case of Russian preference for Trump is solid. The evidence his top aides were happy to serve as Russian agents is strong.

But rather than let FBI make the case for that, Democrats instead tried to make their own case, and they did in such a way as to make the very solid case against Trump dependent on their defense of the dosser, rather than on better backed claims released since then.

Boy it seems sadly familiar, Democrats committing own goals like this. And all that’s before where the lawfare on this dossier is going to go.

I may be the earliest and most prescient critic of all this, in either party. Sit down, Kash Patel! Sit down, Chuck Ross!

Sit down, John Durham!

And boy was I right, way back in October 2017, about where this was going to go.

But I have also shown that people close to Oleg Deripaska succeeded in exploiting this project as part of a vicious double game, victimizing both Hillary Clinton and Paul Manafort, making it more likely Manafort would cooperate in the Russian operation against Hillary, which he did. I have shown that the most obvious disinformation in the dossier, probably sourced to Dmitri Peskov — claiming that Michael Cohen had secret communications with the Kremlin on election interference — served to hide Michael Cohen’s very real secret communications with Peskov on a Trump Tower deal involving sanctioned banks and a former GRU official. I have more recently confirmed that someone who claimed to work for an FSB front was pushing the Alfa Bank allegations more aggressively than Michael Sussmann in October 2016; that same person was using Internet routing records to support a false story in May 2016, the same month the DNS anomalies started. I showed that large numbers of Republicans rationalize their attack on democracy on January 6 based on the dossier, even while they accept the dossier was Russian disinformation, thereby literally claiming that Russian disinformation convinced them to attack American democracy.

And Russia’s wild success at using this to sow division continues, even as Russia massacres children in an assault on Ukrainian democracy. Just Monday, after all, John Durham suggested that because private citizen April Lorenzen investigated the actions of the people married to Alfa Bank Oligarch children, she was part of a criminal conspiracy, even though it is a provable fact that the man married to the daughter of an Alfa Bank founder, Alex Van der Zwaan, was — in those very same weeks!!! — acting on orders from Russian spy Konstantin Kilimnik to cover up Manafort’s ties to the Oligarchs behind the 2016 election interference. Durham is so far down his conspiratorial rabbit hole, he doesn’t even realize he’s trying to criminalize being right about a real threat to democracy.

Which brings us to Durham’s motion to compel submitted last night, predictably asking Judge Christopher Cooper to review the privilege claims behind the Democrats and Fusion GPS’ privilege claims. I’m pretty sympathetic that some of the privilege claims the parties involved have made are bullshit, just as the claims Trump’s supporters have made to hide the events that led up to January 6 or any number of other things that go well beyond election-year rat-fucking are obviously bullshit. But it now seems clear that Durham is making the same error Alfa Bank did, not only assuming that everyone pushing the Alfa Bank allegations was being directed by the Democrats (when Lorenzen played a more important role), but also assuming people working for Hillary were behind all new push on the story; I’ve proven that was false.

Worse still, the specific form of Durham’s demand and its timing not only prove Durham’s bad faith, but strongly suggest that Durham viewed his own investigation to form part of a symbiotic whole with the Alfa Bank lawfare (the lawfare I rightly identified in 2017) still exploiting the dissension sowed by Russia in 2016. In the month of March, Durham did three things that were, as Sussmann’s lawyers described, “wildly untimely” for a trial scheduled to start in May. After getting an approved extension to their CIPA deadline, Durham filed a 404(b) notice on March 23; those notices were due on March 18. Durham told Sussmann of a new expert witness in the last days in March; that notice was also due by March 18. And then, on March 30, Durham told Sussmann he was going to attempt to pierce privilege claims that had been under discussion for a year.

All these belated steps look like a desperate, last minute attempt to change strategy. And it seems likely that the strategy change was necessitated, at least in part, by the stay and then dismissal of Alfa Bank’s lawfare, necessitated by the sanctions imposed by Putin’s aggression in Ukraine.

Consider the following timeline:

  • February 9: DC Superior Judge Shana Frost Matini observes that Durham case and Alfa Bank lawsuit appear reading from the same script and stays Alfa’s motions until after the Sussmann trial
  • February 11: In the wake of the expiration of the statute of limitation on a February 9, 2017 Sussmann meeting at the CIA, Durham files an inflammatory and belated conflict filing, raising new allegations and setting off death threats
  • Mid-February 2022: Alfa Bank continues its efforts to breach the privilege and Fifth Amendment claims of John Durham’s subjects
  • February 22: Russia invades Ukraine in an attempt to rid it of its democracy and sovereignty
  • February 24: A first set of sanctions on Alfa Bank
  • March 3: Durham asks for an extension on filing his CIPA filing from March 18 to March 25
  • March 4: Alfa dismisses John Doe lawsuits
  • March 18: Alfa dismisses Fusion GPS lawsuit
  • March 23: Durham files a Supplement to his 404(b) notice making wild new claims about the scope of the material pertinent to Sussmann’s alleged lie
  • March 25: Durham submits his CIPA notice, probably asking to use an intelligence product viewed as possible Russian disinformation in real time (and, given what we’ve learned about Roger Stone’s activities before that, likely designed as cover for him)
  • March 30: Durham informs Sussmann they want to call an FBI expert, in part to explain DNS data, but in part to attack the credibility of the data and also want to use a motion in limine to breach privilege claims made by the Democrats
  • March 31: Andrew DeFilippis tells attorney for Rodney Joffe that Joffe remains under investigation
  • April 4: Competing motions in limine present two different versions of the conspiracy that happened in 2016
  • April 6: Second set of sanctions on Alfa Bank; Durham moves to compel privilege review

Since Alfa’s lawsuit was stayed, Durham has taken at least four untimely steps, apparently in an effort to turn a single sketchy false statement charge into the conspiracy Durham has not yet been able to substantiate, the conspiracy without which his single false statement claim is far weaker.

With all that in mind, consider the basis on which Durham argues he should be able to breach privilege claims, no matter how flimsy.

Durham admits that he only asked for redacted copies of those documents Fusion and the Democrats have claimed privilege over on September 16, the day Durham indicted Sussmann.

On September 16, 2021, the Government issued grand jury subpoenas to Law Firm1 and the U.S. Investigative Firm, requiring them to produce – in redacted form – the documents previously listed on privilege logs prepared by counsel for those entities so that such documents would be available for admission into evidence at any trial in this matter. Those entities subsequently produced the requested documents with redactions.

In other words, Durham didn’t even begin the process of trying to pierce this privilege claim until over 850 days into his investigation, and days before the statutes of limitation started to expire. And in the ensuing six months, Durham has done nothing. So he’s making this request less than six weeks before the start of the trial (as I noted, litigating the much more specious John Eastman privilege claims has been pending since January 20), claiming the information is necessary for his case.

But some of the arguments Durham makes rely on the belated filings he has submitted in the last month. For example, he invokes Christopher Steele, whose first appearance in this case was in that untimely 404(b) notice.

Perhaps most notably, the U.S. Investigative Firm retained a United Kingdom-based investigator (“U.K. Person-1”) who compiled information and reports that became a widely-known “dossier” containing allegations of purported coordination between Trump and the Russian government.

Durham intertwines discussion of the Alfa Bank allegations with those of the dossier, even though — as Sussmann noted,

the Special Counsel has not identified, nor could he, any evidence showing that Mr. Sussmann … had any awareness Mr. Steele was separately providing information to the FBI.

That is, Steele’s activities might matter to the Sussmann case if this were a charged conspiracy, but not only didn’t Durham charge it, he only asserted the theory of conspiratorial relationship that involves Steele by relying on his delayed 404(b) notice.

Durham’s bid to pierce privilege claims with Rodney Joffe and Marc Elias similarly tie to events in which Sussmann was not involved. False statements cases are, as Sussmann noted the other day, about the state of mind of the defendant, not about events that took place weeks after his alleged lie.

But even if this were a conspiracy, Durham reserves for himself the right to determine what is necessary for a law firm to determine how to respond when a campaign opponent invites crimes from a hostile nation-state while making false claims about his ties to that state, and what is, instead, just political dirt.

To the extent these entities continue to assert privilege over the cited documents, they cannot plausibly rely on the “intermediary” exception. To be sure, the record available to the Government does not reflect that employees of the U.S. Investigative Firm were necessary in any way to facilitate Law Firm-1’s provision of legal advice to HFA and DNC, much less to Tech Executive-1. As noted above, many of the actions taken by the U.S. Investigative Firm pursuant to its retention agreement fell outside the purpose outlined in Law Firm-1’s engagement letter – that is, to provide expertise related to Law Firm-1’s legal advice to the DNC and Clinton Campaign regarding defamation and libel. When U.S. Investigative Firm employees communicated with Tech Executive-1, they were doing so in furtherance of collaborating and promoting the Russian Bank1 allegations, not facilitating legal advice from [Law Firm-1] to Tech Executive-1. Simply put, these were communications related to political opposition research and were not made “in confidence for the purpose of obtaining legal advice from the lawyer.” In re Lindsey, 158 F.3d at 1280. Any confidentiality that Tech Executive-1 might have otherwise maintained over these communications was waived when he and the defendant chose to disclose such information to a third party that did not have any formal or informal contract or retention agreement with Tech Executive-1 (i.e., the U.S. Investigative Firm).

These claims, absent evidence of the sort Robert Mueller showed Beryl Howell to breach Paul Manafort’s privilege claims, would be controversial even if they were timely (and if they were timely, they should have been presented to Howell before charging Sussmann instead of presenting them to Cooper six weeks before the trial date).

But they’re not timely, and they rely on other claims that are not timely. And all those untimely claims came in the wake of altered circumstances created by Putin’s invasion of Ukraine.

This series of late game curveballs would be abusive in any case, even if they were caused by long-planned deliberate malice or even incompetence. But the way they coincide with the collapse of the symbiotic lawfare project probably ordered — as was Petr Aven’s post-election outreach to Trump — by Putin really makes this look like a mere continuation of a six year plan to use Russia’s assault on democracy in 2016 to continue to sow discord in the US.

Claims made in untimely March 23 404(b) notice:

In a supplement to his Federal Rule of Evidence 404(b) notice provided to the defense on March 23 (the “Supplemental Notice”), the Special Counsel argues that such data gathering “constitute[s] direct evidence of the charged offense” as “factual context for the defendant’s conduct” and “to prove the existence of the defendant’s attorney-client relationships with [Mr. Joffe] and the Clinton Campaign.” Suppl. Notice at 2.

[snip

In his Supplemental Notice, the Special Counsel suggests that data was gathered “in a manner that may be considered objectionable—whether through invasions of privacy, breaches of contract, or other [unspecified] unlawful or unethical means.” Suppl. Notice at 2. But the Supplemental Notice does not identify—nor could it—any evidence that Mr. Sussmann had any awareness of or involvement in the alleged “objectionable” conduct of others related to gathering data, to the extent there even was any such “objectionable” conduct.

[snip]

The Special Counsel has also provided notice of his intention to adduce evidence regarding the accuracy of both “the purported data and [the] allegations” that Mr. Sussmann provided to the FBI and Agency 2. See Suppl. Notice at 2 (emphasis added).

[snip]

Elsewhere, the Special Counsel has suggested that data provided to Agency-2 was “misstated, overstated, and/or cherry-picked facts,” Suppl. Notice at 2,

[snip]

The Special Counsel has asserted he will offer evidence regarding the “origin” of the technical data gathered by Mr. Joffe and Others as “direct evidence” of “factual context for the defendant’s conduct” and “the existence of the defendant’s attorney-client relationships with [Mr. Joffe] and the Clinton Campaign” as to both the data provided to the FBI in September 2016 and the data provided to Agency-2 in 2017.1 Suppl. Notice at 2.

[snip]

The Special Counsel has also indicated an intention to offer evidence that (1) the data Mr. Sussmann provided was inaccurate; and (2) the analysis and conclusions drawn from that data were inaccurate. Suppl. Notice at 2 (seeking to introduce evidence regarding the “strength and reliability” of the data and allegations provided to the FBI and Agency-2, including that the white papers “may have misstated, overstated, and/or cherry-picked facts” or that certain FBI or Agency2 personnel determined that “data was potentially incomplete, fabricated, and/or exaggerated”).

[snip]

Second, the Special Counsel has utterly failed to provide an explanation for how such evidence is admissible against Mr. Sussmann. Instead, the Special Counsel simply asserts that evidence regarding the strength and reliability of the information provided to the FBI and Agency 2 is “direct evidence” of the false statements charge against Mr. Sussmann. Suppl. Notice at 2.

 

Share this entry

Tunnel Vision: Durham Treats Citizens’ Research into Real Paul Manafort Crimes Like a Criminal Conspiracy

/40 Comments/in , , /by

On Monday, both John Durham and Michael Sussmann submitted their motions in limine, which are filings to argue about what can be admitted at trial. They address a range of issues that I’ll cover in several posts:

Sussmann:

Durham wants to:

  • Admit witnesses’ contemporaneous notes of conversations with the FBI General Counsel
  • Admit emails referenced in the Indictment and other, similar emails (see this post)
  • Admit certain acts and statements (including the defendant’s February 2017 meeting with a government agency, his December 2017 Congressional testimony, and his former employer’s October 2018 statements to the media) as direct evidence or, alternatively, pursuant to Federal Rule of Evidence 404(b)
  • Exclude evidence and preclude argument concerning allegations of political bias on the part of the Special Counsel (addressed in this post)
  • Admit an October 31, 2016 tweet by the Clinton Campaign

I will link my discussions in serial fashion.

It’s a testament to how deep John Durham is in his conspiracy-driven rabbit hole that he assumes a 24-minute meeting between Marc Elias and Michael Sussmann on July 31, 2016 to discuss the “server issue” pertained to the Alfa Bank allegations. Just days earlier, after all, Donald Trump had asked Russia to hack Hillary Clinton, and within hours, Russian hackers obliged by targeting, for the first time, Hillary’s home office. Someone who worked in security for Hillary’s campaign told me that from his perspective, the Russian attacks on Hillary seemed like a series of increasing waves of attacks, and the response to Trump’s comments was one of those waves (this former staffer documented such waves of attack in real time). The Hillary campaign didn’t need Robert Mueller to tell them that Russia seemed to respond to Trump’s request by ratcheting up their attacks, and Russia’s response to Trump would have been an urgent issue for the lawyer in charge of their cybersecurity response.

It’s certainly possible this reference to the “server” issue pertained to the Alfa Bank allegations. But Durham probably doesn’t know; nor do I. None of the other billing references Durham suggests pertain to the Alfa Bank issue reference a server.

The possibility that Durham is seeing a conspiracy to attack Donald Trump in evidence that could, instead, be evidence of Hillary’s campaign response to an unprecedented nation-state attack, is a worthwhile demonstration of the way the two sides in this case have two entirely different theories of the conspiracy that occurred during that election. That’s particularly apparent given the competing motions in limine seeking both to prohibit and to include a bunch of communications from that period. These motions are not symmetrical. Sussmann moved to,

preclude three categories of evidence and/or arguments that the Special Counsel has suggested it might offer, namely, evidence and arguments concerning: (1) the gathering of DNS data by Mr. Sussmann’s former client Rodney Joffe, and/or other data scientists, and fellow business personnel of Mr. Joffe (collectively “Mr. Joffe and Others”); (2) the accuracy of this data and the accuracy of the conclusions and analysis based on this data; and (3) Christopher Steele and information he separately provided to the Federal Bureau of Investigation (“FBI”) (including the so-called “Steele Dossier”) (all three, collectively, the “Joffe and Steele Conduct”).

Sussmann is not moving to exclude mention his contact with Fusion GPS or reporters (though he is fighting to keep Christopher Steele out of his trial).

Whereas Durham is seeking to,

(ii) admit emails referenced in the Indictment and other, similar emails, (iii) admit certain acts and statements (including the defendant’s February 2017 meeting with a government agency, his December 2017 Congressional testimony, and his former employer’s October 2018 statements to the media) as direct evidence or, alternatively, pursuant to Federal Rule of Evidence 404(b),

[snip]

(v) admit an October 31, 2016 tweet by the Clinton Campaign.

Ultimately this is a fight about whether Sussmann’s alleged lie amounted to reporting a tip about a real cybersecurity anomaly, as Sussmann maintains, or, as Durham argues, seeding dirt as part of a dirty tricks campaign against Trump.

Predictably, in addition to emails involving Fusion GPS, Durham wants to introduce the emails between Rodney Joffe and researchers — emails to which Sussmann was not privy — as statements of co-conspirators.

In addition, Rule 801(d)(2)(E) authorizes the admission of an out-ofcourt statement “by a co-conspirator of a party during the course and in furtherance of the conspiracy.” Where a defendant objects to such an admission, however, the district court must find by a preponderance of the evidence that a conspiracy existed and that the defendant and declarant were members of that conspiracy. Bourjaily v. United States, 483 U.S. 171, 175-76 (1987). A court can preliminarily admit hearsay statements of co-conspirators, subject to connection through proof of conspiracy. See United States v. Jackson, 627 F. 2d 1198, 1218 (D.C. Cir. 1980) (approving procedure). To admit a statement under Rule 801(d)(2)(E), the court must find (i) that there was a conspiracy; (ii) that its members included the declarant and the party against whom the statement is offered; and (iii) that the statement was made during the course of and in furtherance of the conspiracy. Bourjaily 483 U.S. at 175.

Importantly, although Rule 801(d)(2)(E) refers to “conspiracy” and “co-conspirators,” the D.C. Circuit has expressly held that “the doctrine is not limited to unlawful combinations.” United States v. Weisz, 718 F. 2d 413, 433 (D.C. Cir. 1983). “Rather, the rule, based on concepts of agency and partnership law and applicable in both civil and criminal trials, ‘embodies the long-standing doctrine that when two or more individuals are acting in concert toward a common goal, the outof-court statements of one are . . . admissible against the others, if made in furtherance of the common goal.’” United States v. Gewin, 471 F. 3d 197, 201–02 (D.C. Cir. 2006) (citing Weisz, 718 F. 2d at 433)). In quoting and citing the 1974 Senate Advisory Committee note to Rule 801(d)(2)(E), the D.C. Circuit has also explained that “[Rule 801(d)(2)(E)] was meant to carry forward the universally accepted doctrine that a joint venturer is considered as a coconspirator for the purpose of this [R]ule even though no conspiracy has been charged.” Weisz, 718 F. 2d at 433 (citations and quotation marks omitted); United States v. Owens, 484 U.S. 554, 562 (1988) (invoking Advisory Committee note in interpreting Federal Rules of Evidence).

Durham describes that the object of that conspiracy was to deal dirt on Donald Trump to the US government and the media.

As an initial matter, the Government expects that the evidence at trial will show that beginning in late July/early August 2016, the defendant, Tech Executive-1, and agents of the Clinton Campaign were “acting in concert toward a common goal,” Gewin, 471 F. 3d at 201–02, namely, the goal of assembling and disseminating the Russian Bank-1 allegations and other derogatory information about Trump and his associates to the media and the U.S. government.

[snip]

More specifically, these emails show that the researchers and Tech Executive-1 were acting in concert with the defendant and others to gather and spread damaging information about a Presidential candidate shortly before the scheduled election.

And that, Durham claims, makes an attempt to understand a cybersecurity anomaly a political act.

In addition, the aforementioned communications demonstrate the materiality of the defendant’s lie insofar as they reveal the political origins and purposes for this work. And those political origins are especially probative here because they provided a motive for the defendant to conceal his clients’ involvement in these matters.

There is a great deal that is alarming and problematic with this schema. For starters, it suggests Sussmann’s response to Eric Lichtblau’s question asking, “I see Russians are hacking away. any big news?” (in what is clearly a follow-up of earlier conversations about the very real attack on Hillary by Russia) was part of a conspiracy and not a legitimate response to an obvious good faith and important question from a journalist.

Emails, billing records, and testimonial evidence to be offered at trial reflect that during approximately the same time period – and before approaching the FBI about these matters – the defendant provided the Russian Bank-1 allegations to a reporter from a major U.S. newspaper.

Many of the problems in Durham’s argument pertain to April Lorenzen, who started looking into this anomaly in June. But Durham — who also wants to make the source of these anomalies an issue at trial — seems to suggest this conspiracy started on some calls and one meeting between Marc Elias, Joffe, and Sussmann that started on August 12.

Testimony at trial will establish that among the individuals whom Tech Executive1 and Originator-1 enlisted in this project were researchers at University-1 who were assigned to a then-pending federal cybersecurity contract with a U.S. government agency (“Agency-1”). At the time, Tech Executive-1 was negotiating an agreement between his then-employer (“Internet Company-1”) and University-1 to sell large amounts of internet data to the university for use under the Agency-1 contract. The intended purpose of this agreement and University-1’s sensitive work with Agency-1 was to gather and analyze internet metadata in order to detect malicious cyberattacks. As set forth in the Indictment, however, Tech Executive-1 and Originator-1 worked with two of these University-1 researchers (“Researcher-1” and “Researcher-2”) to mine internet data for the purpose of assisting the aforementioned opposition research.

That is, Durham both includes Lorenzen’s earlier actions in his scope, but imagines that the conspiracy in question didn’t form until long after she identified the anomaly.

Similarly, Durham holds Sussmann accountable for the eventual articles written by Lichtblau and Franklin Foer, even though Lorenzen was far more involved in that process (and random people like “Phil” who were signing comments Guccifer 2.0 were also pushing the NYT to write a story). After the FBI killed the initial story, Durham has not shown any evidence that Sussmann was pushing the actual Alfa Bank story until after the Lichtblau and Foer stories were published.

Meanwhile, Durham’s interpretation of this Lorenzen email — written in the wake of Paul Manafort’s firing because his secret influence-peddling for Russian backed Ukrainian Oligarchs had become a campaign liability — is fairly shocking.

NOTE: The Russian money launderers, sometimes assisted by Americans like those you see listed in the PDF [Tech Executive-1] just shared [the Trump Associates List], and others you’ll see in [name redacted]’s next document …. Cyprus is one of the places they like. That’s where [Russian Bank-1]-Forex is organized. Choose .com or .ru when studying their domains … and remember we don’t need a russian IP, domain or company for money to flow from Russians to Trump.

[Russian Bank-1]-* has massive tentacles in so many countries including the USA. Regarding this whole project, my opinion is that from DNS all we could gain even in the best case is an *inference*.

I have not the slightest doubt that illegal money and relationships exist between pro-Russian and pro-Trump, meaning actual people very close to Trump if not himself. And by Putin’s traditional style, people Putin controls, but not himself. He controls the oligarchs and they control massive fortunes and cross nearly all major industries in a vast number of countries.

But even if we found what [Tech Executive-1] asks us to find in DNS we don’t see the money flow, and we don’t see the content of some message saying “send me the money here” etc.

I could fill out a sales form on two websites, faking the other company’s email address in each form, and cause them to appear to communicate with each other in DNS. (And other ways I can think of and I feel sure [Researcher-2] can think of.)

IF [Tech Executive-1] can take the *inference* we gain through this team exercise … and cause someone to apply more useful tools of more useful observation or study or questioning … then work to develop even an inference may be worthwhile.

That is how I understood the task. Because [Tech Executive-1] didn’t tell me more context or specific things. What [name redacted] has been digging up is going to wind up being significant. It’s just not the case that you can rest assured that Hil[l]ary’s opposition research and whatever professional govts and investigative journalists are also digging … they just don’t all come up with the same things or interpret them the same way. But if you find any benefit in what she has done or is doing, you need to say so, to encourage her. Because we are both killing ourselves here, every day for weeks.

I’m on the verge of something interesting with hosts that talk to the list of Trump dirty advisor domain resources, and hosts that talk to [Russian Bank1]-* domains. Take even my start on this and you have Tehran and a set of Russian banks they talk to. I absolutely do not assume that money is passing thru Tehran to Trump. It’s just one of many *inferences* I’m looking at.

SAME IRANIAN IP THAT TALKS TO SOME TRUMP ADVISORS, also talks to:

[list of domains redacted]

(Capitals don’t mean SUPER SIGNIFICANT it was just a heading.)

Many of the IPs we have to work with are quite MIXED in purpose, meaning that a lot of work is needed to WINNOW down and then you will still only be left in most cases with an *inference* not a certainty. Trump/ advisor domains I’ve been using. These include ALL from [Tech Executive-1’s] PDF [the Trump Associate’s List] plus more from [name redacted]’s work:

[list of domains redacted]

[RUSSIAN BANK-1] DOMAINS

[list of domains redacted]

More needs to be added to both lists. [Durham’s bold, my italics]

That’s true in part, because Durham suggests the entirety of this email is part of the conspiracy, but it’s clear that Lorenzen was working with another person, whose name Durham redacts, who seems arbitrarily excluded from it.

But it’s also true because Lorenzen sent it in the wake of Trump’s false claim — made in the same appearance where he asked Russia to hack Hillary some more — that he had no business ties to Russia, when in fact he continued to pursue a Trump Tower deal that would have relied on funding from one of two sanctioned banks. She sent it in the wake of Manafort’s false claims (and Rick Gates’ lies to the press) that served to hide his real ties to Russian-backed oligarchs, including one centrally involved in the Russian effort to tamper in the election, Oleg Deripaska, and his money laundering through Cyprus of payments from those Oligarchs. Manafort was helped in those lies — in the same weeks as Sussmann met with James Baker!!!! — by the son-in-law of Alfa Bank’s co-founder German Khan, Alex Van der Zwaan, who went on to lie about his actions to Mueller. In the same month Sussmann met with Baker, Mueller found probable cause to investigate, Trump got a $10 million infusion from an Egyptian state-owned bank. Lorenzen’s suspicions were not only realistic, but some turned out to be absolutely true.

Similarly, Durham makes much of this email from Lorenzen:

[Tech Executive-1’s] carefully designed actions provide the possibility of: 1. causing the adversaries to react. Stop using? Explain? 2. Getting more people with more resources to find out the things that are unknown, whether those be NON-internet channels of connection between Trump, [Healthcare Company1][owners of Healthcare Company-1], [Russian Bank-1] … money flows, deals, God knows it could be [owners of Healthcare Company-1’s] children married to Russians who run [Russian Bank1]. Or like Researcher-2 shared, someone’s wife vacationing with someone else’s wife.

I have no clue. These are things other people may look into, if they know a direction of interest to look. 3. Legal action to protect our country from people who act against our national interests. I don’t care in the least whether I’m right or wrong about VPN from [Russian Bank-1], [TOR] from Russian Bank-1, or just SMTP artifact pointing to a 3-way connection. [Tech Executive1] has carefully crafted a message that could work to accomplish the goals. Weakening that message in any way would in my opinion be a mistake. [Durham’s bold, my italics]

Here, again, Lorenzen wonders about suspect ties of those married to the children of Alfa Bank’s founders within days of Van der Zwaan taking actions to hide Manafort’s ties to Russian-backed oligarchs.

In other words, Durham treats Lorenzen’s inferences, some of which turned out not just to be right, but to be centrally important to the ongoing Russian attack on the US, as improper dirt on a presidential candidate and not stuff that every citizen of the United States would want to know. Durham is criminalizing a private citizen’s effort (one for which he shows no direct tie to the Clinton campaign) to understand real corruption of Trump and his campaign manager. Durham literally calls this effort to research a political candidate — a core responsibility in a democracy — a “venture to gather and disseminate purportedly derogatory internet data regarding a Presidential candidate.”

This is not the only email that pointed to real criminal evidence pertaining to Russia’s attack in 2016. He cites David Dagon justifying using this data by pointing to the FBI’s investigation into Fancy Bear — the hackers who were in that same month still hacking Hillary and trying to hack election infrastructure.

I believe this is at a threshold of probable cause for violation of Commerce Dept sanctions, FEC elections rules, and has releva[n]cy for the Bureau’s Fancy Bear inquiry, etc._ I also have some graphs/animations of the Trump [] router, which I can clean up and contribute. (They merely give a glimpse of aggregate volume, since we lack actual flows.) I’d need until the weekend.”

Again, Paul Manafort did turn out to have real ties to the APT 28 operation, Roger Stone appears to have been in direct contact with the GRU-backed persona since before it went public, and Mueller did charge an Oligarch with close ties to Putin, Yevgeniy Prigozhin, with violating FEC election rules. To suggest that it was improper to try to investigate these ongoing crimes in real time — to suggest the investigation is itself a conspiracy — undermines any possibility for a vibrant democracy.

And Durham decided belatedly (Sussmann’s filing makes it clear Durham laid all this out in a March 23 404(b) notice, 5 days past his due date) to argue that all these emails are admissible so he can argue that Joffe asked Sussmann to hide his role in all this so he could hide the emails that show real investigation into real, ongoing crimes.

Indeed, many of the emails’ contents are relevant and not hearsay for the additional reason that they shed important light on the defendant’s and Tech Executive-1’s “intent, motive, or state of mind,” and “help to explain their future conduct.” Safavian, 435 F. Supp. at 45–46. In particular, the mere fact that these emails (i) existed in written form prior to the defendant’s September 19, 2016 meeting with the FBI and (ii) reflected instances of serious doubts about whether the Russian Bank-1 data might have been “spoofed,” a “red herring,” “wrong,” or a product of “tunnel vision” or bias against Trump, provided Tech Executive-1 and the defendant with motive to conceal the origins and provenance of the Russian Bank-1 allegations from the FBI. In particular, a reasonable jury could infer from these and other facts that Tech Executive-1 made the defendant aware of these prior doubts and therefore supplied the defendant – as Tech Executive-1’s representative – with a motive to conceal their client relationship from the FBI General Counsel. A jury could similarly infer that even if Tech Executive-1 did not make the defendant aware of these communications, he nevertheless instructed the defendant to deny the existence of such a client relationship for the same reason (i.e., to avoid the FBI’s potential discovery of the doubts reflected in these prior discussions).

Durham’s conspiracy theorizing is not just a dangerous attack on citizenship. It is also cherry picking. He has left out a number of the people who were pursuing the DNS question, including those — Matt Blaze and others — whom Sussmann said he had consulted with in his meeting with Baker, but put in people that Sussmann did not even know.

Sussmann notes he wasn’t involved in any of this data-gathering, nor was the Clinton campaign.

There cannot be any credible argument that the data-gathering sheds light on Mr. Sussmann’s representation of Mr. Joffe, because there is no evidence that Mr. Sussmann was involved in the data-gathering or that it was being done to give to Mr. Sussmann, as Mr. Joffe’s counsel. It is just as specious to suggest that the data-gathering bears on Mr. Sussmann’s attorney-client relationship with the Clinton Campaign. There is no evidence that the Clinton Campaign directed or was involved in the gathering of data, via Mr. Sussmann or otherwise. Nor is there any evidence of communications on issues pertinent to the Indictment between Mr. Joffe and the Clinton Campaign. As such, the manner in which data was gathered has no bearing on Mr. Sussmann’s attorney-client relationship with the Clinton Campaign.

In what is likely to be a persuasive argument to Judge Cooper, Sussmann argued that the only thing that can be relevant to the charge against him — a false statements charge, not conspiracy to defraud the US — is his state of mind.

Evidence that lacks a connection to the charge or the defendant’s scope of knowledge, including as to the defendant’s state of mind, is decidedly not relevant. See, e.g., United States v. Wade, 512 F. App’x 11, 14 (2d Cir. 2013) (excluding testimony about another act because it “was not temporally or physically linked” to the crime at issue and the “testimony presented a risk of juror confusion and extended litigation of a collateral matter”); United States v. Libby, 467 F. Supp. 2d 1, 15-16 (D.D.C. 2006) (rejecting attempts to “elicit . . . what others were told” as “simply irrelevant to the defendant’s state of mind” in a false statements and perjury case); United States v. George, 786 F. Supp. 56, 64 (D.D.C. 1992) (without the “crucial link” that “defendant knew what information others had,” that information is not material to the defendant’s state of mind in an obstruction and false statements case); United States v. Secord, 726 F. Supp. 845, 848-49 (D.D.C. 1989) (information of which the defendant had no knowledge is necessarily immaterial to the defendant’s state of mind, intent, or motive in a false statements case).

[snip]

First, evidence regarding the accuracy of the data or the conclusions drawn from that data is simply irrelevant to the false statement charge against Mr. Sussmann. Mr. Sussmann is not charged with defrauding the government or with a conspiracy to do that or anything else. There is no allegation or evidence that Mr. Sussmann was privy to any of the communications between Mr. Joffe and Others about the data or its analyses that the Special Counsel misleadingly cites in the Indictment.

I think Durham’s bid to include communications with those (Lorenzen and Manos Antonakakis) Sussmann did not have direct contact with is likely to fail. So most of Durham’s conspiracy theorizing will likely remain on the pages of these filings.

But along the way, Durham’s tunnel vision about 2016 led him to forget to exclude the things that do go to Sussmann’s state of mind, such as the very real Russian attack on Hillary Clinton and Donald Trump’s public call for more such attacks.

So while Durham may be excluded from claiming that a private citizen’s attempt to learn about real crimes by a Presidential candidate before he is elected amounts to a criminal conspiracy, it is too late for Durham now to try to exclude evidence about Sussmann’s understanding of Donald Trump’s very real role in a hack of his client.

Share this entry

The Evidence Needed for a Trump Prosecution

/68 Comments/in , , /by

It would be easier to prosecute Trump for January 6 than Peter Navarro. I say that (in advance of today’s debate about referring Navarro and Dan Scavino for contempt) because it is far easier to tie Trump’s actions directly to the successful obstruction of the vote certification on January 6 than it would Navarro’s, and Navarro’s actions are fairly tangential to the proof that Trump’s actions met the elements of obstruction of the vote certification.

Months ago, I laid out how to prosecute Trump using the framework that DOJ has already used with hundreds of January 6 defendants. But in this post, I will show how much evidence DOJ has already collected proving the case against Trump by using the framework for Trump’s criminal exposure laid out by Judges Amit Mehta and David Carter, incorporating a key point made by Judge Reggie Walton.

In his opinion upholding the lawsuits against Trump, Amit Mehta found that it was plausible Trump conspired with the militias and also that he bore aid-and-abet liability for assaults at the Capitol (see this post and this post). He found that:

  • Trump and the militias jointly pursued an effort to disrupt the vote certification
  • Trump planned the unpermitted march to the Capitol
  • Trump encouraged the use of force and threats to thwart the certification from proceeding
  • Trump knew supporters would respond to his calls to come to DC and march on the Capitol
  • Trump called for collective action
  • Trump intended his “fight like hell” comment to be taken literally and rioters did take it literally
  • Trump ratified the riot

In his opinion finding that one email from John Eastman must be turned over to the January 6 Committee on a crime-fraud exception (see this post), Carter laid out the following proof that Trump obstructed the vote certification:

  • Trump tried to persuade Pence to disrupt the vote certification
  • He publicly appealed to Pence to do so
  • He called on his followers to walk to Congress to pressure Pence and Congress

Carter laid out this evidence that Trump had corrupt intent:

  • Proof that he had been told the vote fraud claims were false and his own request of Brad Raffensperger showed he knew he had lost
  • Trump had been told the Eastman’s plan was not legal

Carter laid out this evidence he had entered into a conspiracy:

  • Trump held lots of meetings to talk about plans to obstruct the vote count
  • Trump ratified Eastman’s plan in his Ellipse speech

To those two frameworks finding that Trump probably conspired to obstruct the vote certification, Judge Walton held that you cannot point to back-room plotting to get to the intentions of the actual rioters; you can only look at what the rioters themselves accessed, Trump’s public speech and Tweets (see this post).

This table (which is still very much a work in progress) lays out what evidence would be needed to prosecute Trump. The horizontal Elements of 1512(c)(2)/Relevant to Motive and Co-Conspirators sections show what is necessary given the elements of the offense as laid out by the judges and in DOJ filings, versus what might provide evidence of a broader conspiracy. The Must Have/Nice to Have columns show that for each kind of proof, there’s what is necessary and what would be really useful before indicting a former President.

In other words, the things in the yellow boxes are the things that would be necessary to show that Trump obstructed the vote certification. They basically amount to proof that things that Trump did brought the rioters to DC and to the Capitol and that he had the corrupt mens rea to charge with obstruction. I include there proof that Trump conspired with the militias, which I consider necessary because the Proud Boys, especially, took the bodies that Trump sent them and made those bodies tactically effective.

While prosecutors are still working on tying Roger Stone to both militias and tying Alex Jones and Ali Alexander into the crimes at the Capitol, much of the rest of this evidence has already been collected and rolled out in charging papers. For example, I showed some of the proof that rioters responded to Trump’s attacks on Pence by targeting their own attacks on Pence. There are a number of Trump comments that directly led hundreds of rioters to start making plans to come to DC, including arming themselves; NYT recently laid out the most central communication, a Tweet on December 19, 2020, though not only is that focus not new, it’s the tweet and response to which Arieh Kovler predicted the attack on the Capitol in real time.

A number of the other things you’d want to have before you charged Trump are available to DOJ:

  • Details of how the march to the Capitol happened and why it — and Ali Alexander’s permitted rallies at the Capitol — made a riot more likely
  • Explanations why Ellipse rally organizers balked at including people like Ali Alexander and Roger Stone
  • Testimony from Pence’s aides about how Trump pressured his Vice President in private

It is true that the testimony of several people — those involved in selling the Big Lie and Scavino’s coordination of the riot (including a particular focus on The Donald) — would be really useful. But that testimony is as important to proving that they were part of the conspiracy along with Trump.

Pat Cipollone’s tesitmony would be incredibly useful to that case, too. Normally, he could invoke privilege, but Trump already waived some of that privilege by sharing details about his conversations with Cipollone with Sean Hannity. If Cipollone did cooperate with DOJ, I don’t think he would leak that.

Similarly, the Relevant to Motive and Co-Conspirators rows — showing Trump’s coordination with Congress or his prior planning of it — would be really useful to have in prosecuting Trump. But ultimately, as Judge Walton held, what Trump did in private could not have influenced most of the rioters, because they never knew those details. As such, some of that information — precisely the kinds of stuff that TV lawyers say would be the first overt signs that Trump was a subject of the investigation — is more useful for including others in the conspiracy.

The most important of this evidence — communications from the December 18 meeting and comms during the day of the riot — are already in DOJ’s possession from Rudy’s seized phones, whether or not they obtained a warrant for that content yet.

Update: I’ve tweaked the horizontal headings on the table to clarify that the top half of the table stems from the elements of offense for 1512(c)(2), whereas the bottom half is clearly related and may help prove mens rea or incorporate other co-conspirators, but is not necessary (in my opinion) to meeting the elements of obstruction.

Share this entry