Judge Cooper Probes Andrew DeFilippis’ Conspiracy Theory about “Worker Bees” in a “Cabal”

I’m certain that the hearing in the Michael Sussmann case the other day was not laugh-out-loud funny in real time. I’m certain that when Judge Christopher Cooper rules on what can and cannot come in, some of the conspiracy theory that John Durham is pursuing may come in to substantiate the motive he alleges Michael Sussmann had for allegedly hiding the existence of a client in a meeting with FBI General Counsel James Baker. I also recognize that Durham may moot many of these issues by bringing one or several interlocutory appeals before the trial to buy time to continue to spin his conspiracy theories some more.

But when I was reading the part of the transcript pertaining to whether Durham will be able to introduce researcher emails at trial, I started laughing out loud when Judge Cooper said this:

You could call Mr. Joffe.

The comment came after the discussion earlier in the hearing about what kind of evidence Durham might present to prove that Sussmann had a privileged relationship with both the Hillary campaign and Rodney Joffe.

It came after the discussion about whether Durham should be forced to immunize Rodney Joffe or not. That discussion had a lot more nuance than reports I had seen, including that Cooper floated the idea of prohibiting any Durham questions to Joffe about the allegations — that he had Sussmann share information showing the use of a YotaPhone by someone who was sometimes in Donald Trump’s presence — that Durham claims would be the basis of a contract fraud charge against Joffe if the data actually were only available as part of a DARPA contract that didn’t already, for very good cybersecurity reasons, encourage the tracking of such things.

THE COURT: What if the Court were to grant your motion in limine to keep out the information that he provided later to the CIA, and all the YotaPhone stuff is not in the case? Do you believe that Mr. Joffe would — and seeing that that appears to be the basis of the government’s position that there is some continuing exposure, do you think Mr. Joffe would see fit to change his position?

And the hearing, and so therefore this discussion on the conspiracy theory, came before Cooper turns to adjudicating Durham’s bid to pierce privilege claims, a bid which — I have already noted — makes a solid case that Durham should immunize Joffe rather than Fusion GPS’ Laura Seago, whom he plans to call as a witness.

So between the time when Cooper considered ways to make Joffe’s testimony available to Sussmann and the time when he turns to Durham’s false claim that the only possible way of accessing testimony about communications between Joffe and Seago is by calling Seago, the judge noted that one way of accomplishing what Durham claims to want to accomplish, rather than by introducing hearsay emails, would be to call Joffe.

Cooper made the comment to lay out that, if Durham really wanted to present the mindset researchers had as they attempted to understand a DNS anomaly involving a Trump marketing server and Alfa Bank, he could simply call the researchers directly.

And these emails, regardless of the words of any particular one, you’re offering them to show that the researchers had concerns about the data, right? And so you’re offering them for the truth of that proposition, that the folks who were in on this common venture had concerns about the data that Mr. Sussmann wanted to keep in the dark and, therefore, did not reveal to Mr. Baker why he was there. And so, the truth of the emails is that we have concerns.

Now, you know, if that’s a — if that’s an acceptable basis — if that’s relevant, right, you could certainly call those researchers. You could call Mr. Joffe. They could testify about how — you know, what was going on in, you know, those few weeks in August or whenever.

So, A, you know, why do you need the emails? [my emphasis]

In response to that, Andrew DeFilippis tried to spin that the government wasn’t trying to introduce the emails for the truth, but to show the existence of what he claims amounts to a conspiracy. In doing so, DeFilippis described that the emails were critical to tie Joffe to the effort to collect the data.

All we’re saying is that the existence of that written record itself might have provided a motive for Mr. Joffe or Mr. Sussmann to tell the lie that we allege he did. Now, that is the government’s secondary argument. The principal argument we’re making, Your Honor, is that these emails show a back-and-forth that tie Mr. Joffe to the data that went into the FBI, that tie Mr. Joffe to the white papers that went into the FBI, and tie Mr. Joffe to the entire effort which, absent that —

THE COURT: Mr. Joffe or Mr. Sussmann?

MR. DeFILIPPIS: First Mr. Joffe. And the reason why that’s important, Your Honor, is, again, because the defendant is alleged to have lied about whether, among other things, he had a relationship with Mr. Joffe, an attorney- client relationship. [my emphasis]

Cooper’s response — Mr. Joffe or Mr. Sussmann — nodded to the fact that Sussmann’s state of mind, not Joffe’s, is what’s on trial. Though shortly thereafter, he noted that the charged lie wasn’t even an attempt to hide Joffe personally.

THE COURT: Well, let’s just — you know, words matter, and let’s just be clear. He wasn’t asked “Are you here on behalf of Mr. Joffe?” and said no. He didn’t say “I’m not here on behalf of Mr. Joffe.”

He said generally, allegedly, he’s not here on behalf of a client, so at this point I’m not sure how relevant Mr. Joffe actually is at the time of the statement.

Indeed, much later, Sussmann’s lawyer noted that there’s no contest Sussmann told Baker he had gotten the allegations from cybersecurity experts.

What do we know is undisputed? That Mr. Baker will testify that Mr. Sussmann said the information was from cyber experts, okay? Not whether it was a client or not, but it was from cyber experts.

Cooper’s discussion of Durham’s conspiracy theory continued through DeFilippis’ effort to acknowledge that he’s not alleging collecting political dirt is illegal — though it may be “improper” — and then admitting this is not a “standard drug case.”

I have not seen one case where the charge is not conspiracy and the alleged conspiracy in which the statements are being made in furtherance of it is not criminal or improper in any way. Would this be the first time?

MR. DeFILIPPIS: Your Honor, I think — so we would not expressly allege to the jury that it was criminal. There are aspects of it that may be improper.

[snip]

And I think, Your Honor, that most — that this hasn’t come up often should not cause the Court to hesitate just because these facts are a bit different than your standard drug case or, you know, your standard criminal case.

And it continued to DeFilippis’ effort to describe why people whose actions preceded the alleged formation of a conspiracy and other people who expressed reservations about joining into this alleged conspiracy would be included in what Cooper dubbed “a cabal.”

THE COURT: Okay. So who was part of this joint venture, in your view?

MR. DeFILIPPIS: So, Your Honor, it would be three principal categories of people. We have the researchers and company personnel who supported Mr. Joffe once they were tasked by Mr. Joffe.

THE COURT: Okay, but they were just tasked. You’ve made the point yourself that some of them, you know, had concerns. Some of them had issues with the data. Some had concerns that what they were doing was proper or not until they were satisfied that it was.

MR. DeFILIPPIS: That’s true, Your Honor, but —

THE COURT: How are they members of this cabal?

[snip]

MR. DeFILIPPIS: — just to distill it down as to each category of people. The thrust of this joint venture was that there was a decision and an effort to gather derogatory Internet-based data about a presidential candidate — about a presidential candidate among these folks. There were the researchers who began doing that, it seems, before Perkins Coie became fully involved, and there are emails we will offer that show that data was being pulled in late July and August. So the researchers were the engine of this joint venture in the sense that they were doing the work, and they were doing — and the emails make clear they were doing it for the express purpose of finding derogatory information in Internet data. So that’s one category. [my emphasis]

I mean, even ignoring the fact that the record shows these researchers were not, in fact, analyzing data for “the express purpose of finding derogatory information in Internet data” — indeed, if one actually cares about national security, their actions might be better understood as an effort to protect Donald Trump from his dishonest campaign manager with a history of laundering money from Putin-linked oligarchs through Cyprus — DeFilippis admitted right here that the research into the data preceded the moment when DeFilippis wants to make it criminal (but not criminal in “your standard drug case” sense).

But Durham’s frothy lead prosecutor wants to treat cybersecurity research as — in Cooper’s word! — a cabal.

DeFilippis then went on to call some of the top cybersecurity researchers in the US, who found and started trying to understand an anomaly on their own volition, “the worker bees who are bringing the data and funneling it into this effort.”

Maybe I have a twisted sense of humor. But I was guffawing at this point.

Judge Cooper, however, capped DeFilippis’ effort with the same question:

THE COURT: And assuming that I agree that it’s relevant, you could get that in by calling witnesses without the emails, correct?

Everything that DeFilippis wants to do — even before he wants to get Laura Seago (who, Sussmann attorney Sean Berkowitz revealed later, would testify that she doesn’t even know about key parts of DeFilippis’ conspiracy theory, starting with Christopher Steele’s involvement) to offer the non-unique testimony about her conversations with Joffe — is best done by calling Joffe as a witness.

I’m not the only one, it seems, who recognizes that some of what Durham wants to do actually depends on calling Joffe as a witness.

Old Friends: Scooter Libby and CIPA

Judge Christopher Cooper will not have a media call-in line for this afternoon’s hearing in the Michael Sussmann case, so I’ll have to rely on the reporting of others and a delayed review of a transcript of the case.

But before then, I’d like to make two points about developments to supplement this post on the fight over what evidence will be presented at trial.

Judge Cooper rules that Durham must share two classified items with Sussmann

First, behind closed doors, the parties have begun the Classified Information Procedures Act, the process by which the government limits what classified information gets shared with the defendant and what information gets introduced at trial. I provided some background on how that might work in the (far more CIPA-dependent) Igor Danchenko trial, but for our purposes, there are three steps:

  • Section 4, which allows the government to withhold evidence from Sussmann or substitute classified information to protect classified information.
  • Section 5, which requires the defendant to list in advance what classified information he wants to use at trial.
  • Section 6, which requires the judge to make admissibility decisions on classified information before trial.

There are several things that might be included in the universe of classified evidence in Sussmann’s case. Durham has always explained there was highly classified information in the investigative case file itself.

The entirety of the FBI’s electronic case file for the investigation of the Russian Bank1 allegations – in both classified and unclassified form – with only minor redactions to protect especially sensitive and/or highly classified information;

This could pertain to Alfa Bank itself; many other public filings (such as FOIAed Mueller records or the SSCI Report) redact information pertaining to Alfa. And that would explain why Durham had to delay his CIPA filing because the people who needed to sign off were busy keeping the country safe from Russia, not safe for Russia.

Sussmann also asked for details of Rodney Joffe’s cooperation with the FBI and another agency that might be the NSA, much of which would also pertain to highly sensitive investigations. And Durham seems likely to attempt to use this CIA intelligence report to make claims that were questioned in real time about why Hillary’s campaign might respond to Trump asking for her to be hacked by trying to discover the multiple back channels with Russia that existed. (Yesterday, Peter Strzok, who is named in the document, raised questions about whether Durham even has the correct document.) That’s the kind of classified information these fights are likely about.

Yesterday, the government filed a sealed motion asking for a 6a hearing — basically an opportunity to challenge the information that Sussmann wants to use to defend himself. They also appear to be challenging the specificity with which he described the information he needs. None of that is surprising, but given how scrappy things have gotten (to say nothing of the vastly different understanding each side has of this case), this fight could get interesting.

Potentially more consequential, Judge Cooper issued a ruling finding that, of a body of classified evidence prosecutors had identified that might be relevant to Sussmann’s case in discovery, he agrees with prosecutors that the information is classified and not helpful to the defense, and so can be withheld in its entirety under CIPA. However, with respect to two items, Cooper found that the information might be helpful and so Durham has to provide it or a classified summary to Sussmann’s cleared defense counsel.

WHEREAS the Court finds that two of the Government’s proposed substitutions of certain Classified Information do not adequately inform the defense of information that arguably may be helpful or material to the defense, in satisfaction of the Government’s discovery obligations; it is hereby

[snip]

IT IS FURTHER ORDERED that the Government is directed, as explained at the ex parte hearing, to disclose to cleared defense counsel either the underlying classified material or a classified summary of the material from which the two proposed summaries were derived.

Several things could happen here. Sussmann could look at it and decide he doesn’t want to use it at trial, mooting the issue. Prosecutors could go back to the national security officials who are busy punishing Russia for its attack on democracy and try to get them to agree to a more fulsome substitution or declassification.

But one of the possibilities is that Durham can appeal Cooper’s decision, which likely would delay the trial.

Judge Cooper adopts Libby as the standard for evidentiary disputes

The other recent development was Judge Cooper’s decision to admit Durham’s FBI Agent witness, but to limit what he can testify to unless Sussmann attempts to argue there really was a back channel communication between Alfa Bank and Trump. Contrary to what dishonest frothy lawyers say on Twitter, this was a reasonable and expected decision basically laying initial guidelines as to the evidence admissible at trial.

This decision will not end things. Cooper’s decision left a lot of room for dispute. For example:

  • Cooper permitted the government to argue the Alfa Bank allegations were “unsubstantiated,” but Andrew DeFilippis in the hearing wanted to argue they were untrue (this ironically flips the frother stance about the Mueller investigation, which did not substantiate conspiracy charges against Trump, but nevertheless found plenty of evidence of one)
  • Cooper did not distinguish between the accuracy of the DNS data (which Sussmann would happily prove at trial) and the reasonableness of the inferences researchers drew from it (about which there is great dispute)

So expect this to come back up at trial.

The most important part of the opinion, in my opinion, however, came in how Cooper closed it, generally excluding lots of the data collection evidence Durham wanted to introduce by citing Reggie Walton’s CIPA decision on Scooter Libby.

[A]dditional testimony about the accuracy of the data—expert or otherwise—will not be admissible just because Mr. Sussmann presents evidence that he “relied on Tech Executive-1’s conclusions” about the data, or “lacked a motive to conceal information about his clients.” Gov’s Expert Opp’n at 11. As the Court has already explained, complex, technical explanations about the data are only marginally probative of those defense theories. The Court will not risk confusing the jury and wasting time on a largely irrelevant or tangential issue. See United States v. Libby, 467 F. Supp. 2d 1, 15 (D.D.C. 2006) (excluding evidence under Rule 403 where “any possible minimal probative value that would be derived . . . is far outweighed by the waste of time and diversion of the jury’s attention away from the actual issues”).

Back in the day, this Libby opinion was actually a ruling against Libby. As some of you old-timers may recall, Dick Cheney’s former Chief of Staff was attempting a graymail defense, basically arguing that he needed stacks and stacks of classified information to explain to the jury that he didn’t mean to lie about discussing Valerie Plame’s identity and other classified information during the week the Bush Administration launched an attack on Plame and Joe Wilson. Rather, his brain was so filled with scary information — with an emphasis on Terror! Terror! Terror! — presented in the Presidential Daily Briefs, that he did not retain a memory of burning the Wilsons when asked by investigators.

And Libby was a CIPA opinion, not a 404(b) opinion, the matter ostensibly before Cooper. But it’s important because Libby’s case, like Sussmann’s, is about his state of mind when he allegedly lied, in Libby’s case, to both the FBI and a grand jury. Ultimately, the cited passage of the decision was about ways to apply Rule 403, which limits confusing information, to CIPA. To get there, however, Judge Walton focused on the PDBs and other classified documents pertinent to the days when Libby was speaking to journalists about the Wilsons and the days when he was lying to investigators, thereby excluding years of PDBs from periods before or after his lies that didn’t need to be declassified for trial.

In fact, there is a “danger of unfair prejudice, confusion of the issues, or misleading the jury,” in providing the jury details of the defendant’s activities falling outside the critical time periods. Specifically, permitting the defendant to testify as to the details of what consumed his time outside the critical time periods discussed above would likely confuse the jury concerning what events actually allegedly consumed the defendant’s attention at the times that he had the conversations that form the basis for this prosecution. Accordingly, while the defendant will be permitted to testify generally about the matters that consumed his time and attention during those periods outside of the dates identified in the indictment, permitting detailed descriptions of events occurring during such periods will be excluded pursuant to Federal Rule of Evidence 403.

Walton also ruled that testimony is more probative than submitting the PDBs or Libby’s own notes.

As indicated during the Section 6(a) proceedings, many, if not most, of the documents themselves are unlikely to be admitted as evidence during the trial for several reasons. First, the documents would be cumulative of the testimony provided by the defendant. And second, it would appear at this time that the information contained in many of the documents will pose substantial hearsay problems.

You can already see how this citation may be indicative of how Judge Cooper imagines he’ll get through the evidentiary swamp ahead of him. The government is asking to introduce a bunch of highly technical concepts, inflammatory names, and emails to which Sussmann was not a party, and asking to do so for a period that is totally attenuated from the day Sussmann went in to meet with James Baker.

But it’s relevant for another reason.

Sussmann has cited it over and over and over. In his April 4 filing moving to exclude information on data collection and Christopher Steele, Sussmann cited the opinion six times, including for:

  • Walton’s exclusion of what President Bush said in front of Libby
  • Walton’s exclusion of the scary terrorists Libby fought
  • The import of the defendant’s state of mind when he allegedly lied
  • Details of what others were told

Sussmann cited Libby again in his April 8 motion to exclude Durham’s expert, citing Walton’s exclusion of “the foreign affairs of the country, which is totally irrelevant to this case.” Sussmann cited it again in his April 15 omnibus response to Durham’s motions in limine, in a section aiming to exclude a bunch of Fusion GPS emails, for the argument that what others were told is simply irrelevant to the defendant’s state of mind in a false statements case. And he cited it again in his April 18 opposition to Durham’s motion to compel production of a bunch of privileged communications to which he was not party.

Unless I missed it, during that entire period in which Sussmann was citing Libby Libby Libby Libby Libby Libby Libby Libby Libby, Durham didn’t address the precedent at all.

As I noted, the Walton’s Libby decision worked against Libby; it prevented him from turning his trial into a debate over the War on Terror.

In this case, however, Durham is the one attempting to turn a single count false statement trial into a conspiracy trial implicating Hillary Clinton, Christopher Steele, and Donald Trump. Which suggests the Libby decision may not help him.

John Durham’s Irregular Now-Sealed Timeline

As I noted here, John Durham claimed to attempt to file a bunch of confidential Fusion emails under seal.

Whether intentionally or not, he failed, at first, but has now closed the barn doors after voluntarily publishing damning evidence (much of it true!) against the purported victims he claims to be avenging.

By publishing these emails on the docket, Durham has revealed that his exhibit has irregularities in the emails pertaining to a key issue: whether Fusion sent out a link to April Lorenzen’s i2p site before Mark Hosenball sent it to them.

This shows up in the timestamps. In the exhibit, the lead email for each appearance appears to be set to UTC, whereas the sent emails included in any thread appear to be set to ET.

For example, in this screencap, the time shown for Mark Hosenball’s response to Peter Fritsch (the pink rectangle) is 1:35 PM, which is presumably Eastern Time.

In this screencap, the very same response appears to be sent at 5:36PM, which is presumably UTC.

Both instances of Peter Fritsch’s email (the green rectangle), “that memo is OTR–tho all open source,” show at 1:33PM, again, Eastern Time.

To be clear: this irregularity likely stems from Fusion’s email system, not DOJ’s. It appears that the email being provided itself is rendered in UTC, while all the underlying emails are rendered in the actual received time.

But given that these emails are being submitted to Judge Cooper in regards to a privilege claim, the fact that DOJ has made no effort to fix — or at least call attention to — the anomaly, it makes the exhibit affirmatively misleading with regards to perhaps the most important detail in the exhibit.

As I note in the timeline below, this obscures the order in which Fusion received and passed on a link to the mediafire package introducing Tea Leaves’ DNS allegation package — precisely the issue (and, it is now clear, the specific communication) about which Alfa Bank had confusion in their lawsuit. I explained the import of these communications here.

Given the selection of emails included here (not even all from this time period  are included as primary emails, which is what makes the anomaly misleading, and one involving Mark Hosenball — in the italicized email, he references having sent a summary to Fritsch —  appears to be entirely missing), Fusion’s public explanation — that they received this link and then passed it on — cannot be proven or disproven. But it is clear that after Fritsch got the mediafire link, he sent it to Lichtblau, which I’ve bolded below. And by context, it appears that Laura Seago had already figured out that the mediafire package was first posted on Reddit.

(I’ll have to check but given what Perloth told me, this may not actually be how NYT first got this data.)

Update, May 19: I’ve added emails from trial.

October 5 emails:

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

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

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

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

1:37PM: Fritsch responds,

the DNS stuff? not us at all

outside computer experts

we did put up an alfa memo unrelated to all this

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

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

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

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

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

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

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

1:44PM: Fritsch to Lichtblau:

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

[mediafire link] [my emphasis]

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

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

tuta sent me this guidance

[snip]

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

2:32PM: Fritsch to Lichtblau:

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

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

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

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

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

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

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

6:33PM (likely 2:33PM): Fwd Alfa

6:57PM (like 2:57PM): Re Alfa

7:02PM (likely 3:02): Seago to Fritsch re Alfa

“Not Us at All:” In His Bid to Pierce Privilege, John Durham Makes Strong Case for Immunizing Rodney Joffe

The folks in John Durham’s Office of Conspiracy-Mongering seem to be frazzled. What other explanation might they have for a positively hysterical entry in their bid to pierce Democrats’ privilege claims?

To be clear (because frothy lawyers are making false claims about what I think might happen), I think some of the privilege claims being made are suspect. Durham might succeed, in part, and a more professional effort to do so in a different case — say, Igor Danchenko’s — might get the results he wanted.

But last night’s filing, even ignoring that Durham released confidential emails while purportedly asking permission to release them under seal, was a clown show.

Start with what Durham doesn’t mention.

In Michael Sussmann’s opposition to Durham’s motion to compel, he raised four procedural problems with Durham’s effort.

First, the Special Counsel’s Motion is untimely. Despite knowing for months, and in some cases for at least a year, that the non-parties were withholding material as privileged, he chose to file this Motion barely a month before trial—long after the grand jury returned an Indictment and after Court-ordered discovery deadlines had come and gone.

Second, the Special Counsel’s Motion should have been brought before the Chief Judge of the District Court during the pendency of the grand jury investigation, as the rules of this District and precedent make clear.

Third, the Special Counsel has seemingly abused the grand jury in order to obtain the documents redacted for privilege that he now challenges. He has admitted to using grand jury subpoenas to obtain these documents for use at Mr. Sussmann’s trial, even though Mr. Sussmann had been indicted at the time he issued the grand jury subpoenas and even though the law flatly forbids prosecutors from using grand jury subpoenas to obtain trial discovery. The proper remedy for such abuse of the grand jury is suppression of the documents.

Fourth, the Special Counsel seeks documents that are irrelevant on their face. Such documents do not bear on the narrow charge in this case, and vitiating privilege for the purpose of admitting these irrelevant documents would materially impair Mr. Sussmann’s ability to prepare for his trial.

While Durham makes unconvincing attempts to address the first and fourth issue (to which I’ll return), he doesn’t meaningfully address the second and third. In this post, I opined that the third — his blatant abuse of grand jury rules — could be easily addressed (which he didn’t try to do), but given how obviously irrelevant and potentially inadmissible these documents are to the charge against Sussmann, I’m not so sure anymore.

But Durham only addresses Sussmann’s argument that he ignored local rules and deliberately bypassed Beryl Howell, who would have been the proper person to assess these privilege claims, by making unconvincing claims he made a good faith effort to do so directly.

There’s another thing he doesn’t mention, another point Sussmann raised. Some of the emails Durham is focused on make it explicit that there was a separation between Fusion’s research (including the Steele dossier) and the DNS research.

The Special Counsel makes much of the fact that (1) there was an August 11, 2016 email exchange between Mr. Sussmann, Mr. Elias, and Fusion employees with the subject “connecting you all by email” and (2) that thereafter, Fusion employees “began to exchange drafts of a document . . . the defendant would provide to the FBI General Counsel.” Motion ¶¶ 29, 30. But in seeking to draw inflammatory and unsupported inferences, the Special Counsel ignores another email—that he produced in discovery—in which a Fusion employee stated that the document was “an [A]lfa memo unrelated to all [the Alfa Bank DNS information].” See Email from P. Fritsch to M. Hosenball (Oct. 5, 2016), SC-00027475, at SC-00027476.

Indeed, Peter Fritsch told Mark Hosenball that “the DNS stuff” was “not us at all.”

Even though Sussmann pointed that out, Durham did not address the clear evidence in his possession that this was not a joint effort. Other of these communications, Peter Fritsch has testified under oath, he engaged in because he was independently alarmed about the Alfa Bank allegations. And some of them, Fusion has noted before, derived from Paul Singer’s involvement in the project and Singer didn’t invoke privilege.

Much of rest, though, is primarily focused on Carter Page and Sergei Millian (though in one place, Durham also downplays that Fusion was investigating Felix Sater, which is interesting given Durham’s efforts to pretend the notion Trump had multiple back channels with Russia is malicious and political). Indeed, included emails explain that what had been a potentially scandalous reference — the allegation that Millian had an email “with” Alfa Bank — actually came from public Internet research, not from the DNS analysis.

Given the focus on Millian, though, it is inexplicable why Durham is trying to pierce these privilege claims here rather than in the case where it might matter, Danchenko’s. Rather, I can think of some explanations, such as that someone in Millian’s organization viewed the obligation to register under FARA as a “problem” as early as 2013, but none of them are legally sound.

The far more interesting aspect of Durham’s filing comes in how he addresses two substantive issues. First, here’s how he addressed the timing of his belated decision to try to pierce privilege.

As an initial matter, the defendant and others accuse the Government of carrying out an untimely “full frontal assault” on the attorney client privilege by raising these issues more than a month before trial. (Def. Opp. at 1.) But those characterizations distort reality. Indeed, the opposite is true: the primary reason the Government waited until recently to bring these issues to the Court’s attention was because it wanted to carefully pursue and exhaust all collaborative avenues of resolving these matters short of litigation. The Government did so to avoid bringing a challenge to the parties’ privilege determinations and to ensure that it first gathered all relevant facts and provided the relevant privilege holders with notice and an opportunity to explain the bases for their privilege assertions. Even the emails between the Government and counsel that the defendant quotes in his opposition reflect this very purpose. See., e.g., Def. Opp. at 7 (quoting emails in which the Special Counsel’s Office stated that it “wanted to give all parties involved the opportunity to weigh in before we. . . seek relief from the Court” and requested a call “to avoid filing motions with the Court.”).

In addition, over the course of months, and until recently, the Government has been receiving voluminous rolling productions of documents and privilege logs from numerous parties. The Government carefully analyzed such productions in order assess and re-assess the potential legal theories that might support the parties’ various privilege assertions. In connection with that process, the Special Counsel’s Office reached out to each of those parties’ counsel numerous times, directing their attention to specific documents where possible and communicating over email and phone in an effort to obtain non-privileged explanations for the relevant privilege determinations.2 The Government also supplied multiple counsel with relevant caselaw and pointed them to documents and information in the public domain that it believed bore on these issues. The Government was transparent at every step of these discussions in stating that it was contemplating seeking the Court’s intervention and guidance. Unfortunately, despite the Government’s best efforts and numerous phone calls, it was not able to obtain meaningful, substantive explanations to support these continuing broad assertions of privilege and/or work product protections. [my emphasis]

This flips a point Sussmann made on its head — that Durham kept prodding Sussmann to waive privilege. “[T]he Special Counsel has been asking Mr. Sussmann whether there would be any waiver of privilege in this case because of his concern that a privilege waiver at this stage in the proceedings would fundamentally impact the course of trial.”

Durham provides no dates on his claimed efforts to resolve the privilege issues. But Sussmann has already revealed what some of those dates are. The two Durham cites were in August.

Email from Andrew DeFilippis, Dep’t of Just., to Patrick Stokes, Gibson, Dunn & Crutcher LLP, et al. (Aug. 9, 2021) (requesting a call to discuss privilege issues with a hope “to avoid filing motions with the Court”); Email from Andrew DeFilippis, Dep’t of Just., to Patrick Stokes, Gibson, Dunn & Crutcher LLP, et al. (Aug. 14, 2021) (stating that the Special Counsel “wanted to give all parties involved the opportunity to weigh in before we . . . pursue particular legal process, or seek relief from the Court”). And since January— before the deadline to produce unclassified discovery had passed—the Special Counsel suggested that such a filing was imminent, telling the DNC, for example, that he was “contemplating a public court filing in the near term.” Email from Andrew DeFilippis, Dep’t of Just., to Shawn Crowley, Kaplan Hecker & Fink LLP (Jan. 17, 2022).

2 In response to these inquiries and discussions, Tech Executive-1’s counsel withdrew his client’s privilege assertions over a small number of documents, and Fusion GPS produced a redacted version of its retention agreement with Perkins Coie. [my emphasis]

August is when Durham should have been involving Chief Judge Howell. Instead, we’re in April, and Durham is only now involving Judge Christopher Cooper. Importantly, using the dates Sussmann decided to include but which Durham did not, Durham was talking about taking imminent action in January, over two months before he first raised piercing privilege. After that, Durham again nudged Sussmann to waive privilege on his own. And the only reason why Durham was still getting responses to subpoenas, to the extent he was, is because he subpoenaed some of this after indicting (again, which he doesn’t address).

Given Durham’s claims he was trying to use other methods to get this information, his explanation of why he “only recently” decided he needed to pierce privilege is utterly damning: He only recently decided he needed to immunize Laura Seago and call her as a witness, he says.

It was only recently, when the Government determined it would need to call an employee of Fusion GPS as a trial witness (the “Fusion Witness”), that the Government concluded these issues could not be resolved without the Court’s attention. Because all or nearly all of the Fusion Witness’s expected testimony on these matters concern work carried out under an arrangement that the privilege holders now contend was established for the purpose of providing legal advice, it is essential to resolve the parties’ potential disputes about the appropriate bounds of such testimony (and the redaction or withholding of related documents).

That’s utterly damning because one of the last two things Alfa Bank was pursuing in their John Doe lawsuits before they were sanctioned, on Thursday, February 10, was to revisit privilege claims made by Fusion in a September Seago deposition with Alfa Bank (Seago’s first interview, in March 2021, was abandoned quickly). The reason Alfa gave for needing to challenge privilege claims Seago made in a 4-hour September deposition at which she invoked privilege over 60 times was because, “people at Fusion are speaking with the likes of Rodney Joffe.” And before Associate Judge Heidi Pasachow could rule, Alfa Bank was sanctioned to prevent it from helping Russia to attack democracy.

As I’ve laid out, all of Durham’s missed deadlines came after he could no longer rely on Alfa Bank to do his dirty work. As did, by his own description, the belated decision that he needs to immunize Seago and get her to testify at trial.

And that’s important because in spite of the pages and pages of irrelevant emails, when Durham turns to make the case that he needs to pierce this privilege, he again turns to Seago, claiming that she has “unique” knowledge about the charges against Sussmann.

Where a party seeks to overcome work product protection, it must show either that “it has a substantial need for the materials to prepare its case and cannot, without undue hardship obtain their substantial equivalent by other means” for fact work product, or make an “extraordinary showing of necessity” to obtain opinion work product. Boehringer, 778 F.3d at 153 (D.C. Cir. 2015) (quotations omitted).

Here, the vast majority of the relevant materials likely constitute fact work product, given that few of the communications involve an attorney. In addition, the Government has met both prongs of the relevant test. First, the Government has a “substantial need” for materials that it has requested the Court to review in camera. Those materials include, for example, communications between Tech Executive-1 and the Fusion Witness whom the Government will call at trial. The Fusion Witness is, to the Government’s knowledge, the only Fusion GPS employee who exchanged emails with Tech Executive-1 concerning the Russian Bank-1 allegations (or any other issue). The Fusion Witness also (i) acted as the firm’s primary “technical” expert; (ii) worked for an extended time period on issues relating to the Russian Bank-1 allegations; (iii) was a part of the team that handled work under Fusion’s contract with HFA and the DNC; and (iv) met in 2016 with various parties – including Law Firm-1, Tech Executive-1, and the media – about the Russian Bank-1 allegations. As such, the Fusion Witness undoubtedly possesses unique insight to the core issue to be decided by the jury—i.e., whether the defendant was acting on behalf of one or more clients when he worked on the Russian Bank-1 allegations. Accordingly, the Government has a “substantial need” to obtain the Fusion Witness’s communications relating to the Russian Bank-1 allegations. Moreover, the materials for which the Government has requested in camera review also include internal Fusion GPS communications regarding one of the three white papers that the defendant provided to the FBI, namely, the “[Russian Bank-1’s parent company] Overview” paper. Communications regarding the origins and background the very Fusion GPS paper that the defendant brought to the FBI are therefore likely to shed unique light on the defendant’s meeting with the FBI General Counsel, including the defendant’s work on behalf of his clients. Fusion GPS’s communications regarding that paper in the days prior to the defendant’s meeting with the FBI General Counsel are also likely to reveal information about the paper’s intended purpose and audience. Such facts will, again, shed critical light on the defendant’s conduct and meeting with the FBI.

Second, the Government cannot “without undue hardship obtain the[] substantial equivalent” of these materials “by other means.” Boehringer Ingelheim Pharms., Inc., 778 F.3d at 153. That is because these materials constitute mostly internal Fusion GPS communications and, accordingly, are not available from any other source. To the extent these communications reflect emails with Tech Executive-1, they are similarly unavailable because Tech Executive-1 has invoked his Fifth Amendment right against self-incrimination. Therefore, obtaining the materials or their substantial equivalent from another source would not merely present an “undue hardship,” but rather, is impossible. [my emphasis]

This is a fairly astonishing argument.

That’s because Seago’s knowledge of the communications she had with Joffe is not unique. Joffe also has knowledge of their communications. To get Seago’s testimony, Durham plans to immunize her.

Yet he says he can’t get the very same testimony from Joffe because Joffe would invoke the Fifth.

Durham has an obvious alternative, and it just so happens to be the alternative that Sussmann is also seeking: To immunize not Seago, but Joffe. That would be more beneficial for Durham, if he really wants that testimony, because Joffe can waive privilege over precisely these communications and enter them as evidence with no hearsay exception. Immunizing Joffe gives Durham everything he wants and his testimony would be unquestionably pertinent to the charge against Sussmann.

Just twelve days ago, John Durham argued that he’s not playing fast-and-loose with his immunity decisions and that Joffe would offer no testimony useful to Sussmann (though to do so, Durham misrepresented Sussmann’s statement about Joffe’s role in helping to kill the NYT story).

Indeed, to now arbitrarily force the Government to immunize Tech Executive-1 merely because the defense believes he would offer arguably helpful testimony to the defendant would run afoul of the law and inject the Court into matters plainly reserved to the Executive Branch.

[snip]

(The Government also currently intends to seek immunity at trial for an individual who was employed at the U.S. Investigative Firm. But unlike Tech Executive-1, that individual is considered a “witness” and not a “subject” of the Government’s investigation based on currently-known facts.)

Finally, the defendant fails to plausibly allege – nor could he – that the Government here has “deliberately denied immunity for the purpose of withholding exculpatory evidence and gaining a tactical advantage through such manipulation.” Ebbers, 458 F. 3d at 119 (internal citation and quotations omitted). The defendant’s motion proffers that Tech Executive-1 would offer exculpatory testimony regarding his attorney-client relationship with the defendant, including that Tech Executive-1 agreed that the defendant should convey the Russian Bank-1 allegations to help the government, not to “benefit” Tech Executive-1. But that testimony would – if true – arguably contradict and potentially incriminate the defendant based on his sworn testimony to Congress in December 2017, in which he expressly stated that he provided the allegations to the FBI on behalf of an un-named client (namely, Tech Executive-1). And in any event, even if the defendant and his client did not seek specifically to “benefit” Tech Executive-1 through his actions, that still would not render his statement to the FBI General Counsel true. Regardless of who benefited or might have benefited from the defendant’s meeting, the fact still remains that the defendant conducted that meeting on behalf of (i) Tech Executive-1 (who assembled the allegations and requested that the defendant disseminate them) and (ii) the Clinton Campaign (which the defendant billed for some or all of his work). The proffered testimony is therefore not exculpatory, and certainly not sufficiently exculpatory to render the Government’s decision not to seek immunity for Tech Executive-1 misconduct or an abuse.6

6 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.

Now, he’s claiming that the only possible way he can get testimony pertaining to Seago’s communications with Joffe is to immunize Seago and breach both Joffe’s and the Democrats’ claims of privilege.

By far the easiest way of solving this issue — and the one that meets Sussmann’s due process rights — is instead to immunize Joffe.

It’s a great case Durham made that they should cede to Sussmann’s request and immunize Joffe!

We’ll see what Cooper thinks of these claims at the status hearing tomorrow (because the hearing is in person, it’s unclear whether I’ll be able to call in).

But what is clear is that Durham keeps presenting evidence that he’s looking in the wrong place for the evidence he says he needs.

Confirmed: John Durham Has Withheld Discovery That DOJ Already Disproved His Claims of Political Malice

In his reply filing in the fight over what evidence will be submitted at his trial, Michael Sussmann confirmed something I’ve long suspected: John Durham has not provided Sussmann with the discovery Durham would need to have provided to present his own conspiracy theories at trial without risking a major discovery violation.

Were the Special Counsel to try to suggest that Mr. Sussmann and Mr. Steele engaged in a common course of conduct, that would open the door to an irrelevant mini-trial about the accuracy of Mr. Steele’s allegations about Mr. Trump’s ties to Russia—something that, like the Alfa Bank allegations, many experts continue to believe in, and about which the Special Counsel has tellingly failed to produce any significant discovery.

Sussmann dropped this in the filing without fanfare. But it is clear notice that if Durham continues down the path he is headed, he may face discovery sanctions down the road.

I explained why that’s true in these two posts. A core tenet of Durham’s conspiracy theories is that the only reason one would use proven cybersecurity methods to test certain hypotheses about Donald Trump would be for malicious political reasons. Here’s how Durham argued that in his own reply.

As the Government will demonstrate at trial, it was also the politically-laden and ethically-fraught nature of this project that gave Tech Executive-1 and the defendant a strong motive to conceal the origins of the Russian Bank-1 allegations and falsely portray them as the organic discoveries of concerned computer scientists.

There’s no external measure for what makes one thing political and makes another thing national security. But if this issue were contested, I assume that Sussmann would point, first, to truth as a standard. And as he could point out, many of the hypotheses April Lorenzen tested, which Durham points to as proof the project was malicious and political, turned out to be true. They were proven to be true by DOJ. Some of those true allegations involved guilty pleas to crimes, including FARA, explicitly designed to protect national security; another involved Roger Stone’s guilty verdict on charges related to his cover-up of his potential involvement in a CFAA hacking case.

DOJ (under the direction of Trump appointee Rod Rosenstein, who in those very same years was Durham’s direct supervisor) has already decided that John Durham is wrong about these allegations being political. Sussmann has both truth and DOJ’s backing on his side that these suspicions, if proven true (as they were), would be a threat to national security. Yet Durham persists in claiming to the contrary.

Here’s the evidence proving these hypotheses true that Durham has withheld in discovery:

The researchers were testing whether Richard Burt was a back channel to the Trump campaign. And while Burt’s more substantive role as such a (Putin-ordered) attempt to establish a back channel came during the transition, it is a fact that Burt was involved in several events earlier in the campaign at which pro-Russian entities tried to cultivate the campaign, including Trump’s first foreign policy speech. Neither Burt nor anyone else was charged with any crime, but Mueller’s 302s involving the Center for National Interest — most notably two very long interviews with Dmitri Simes (one, updated, two, updated), which were still under investigation in March 2020 — reflect a great deal of counterintelligence interest in the organization.

The researchers were also testing whether people close to Trump were laundering money from Putin-linked Oligarchs through Cyprus. That guy’s name is Paul Manafort, with the assistance of Rick Gates. Indeed, Manafort was ousted from the campaign during the period researchers were working on the data in part to distance the campaign from that stench (though it didn’t stop Trump from pardoning Manafort).

A more conspiratorial Lorenzen hypothesis (at least on its face) was that one of the family members of an Alfa Bank oligarch might be involved — maybe a son- or daughter-in-law. And in fact, German Khan’s son-in-law Alex van der Zwaan was working with Gates and Konstantin Kilimnik in precisely that time period to cover up Manafort’s ties to those Russian-backed oligarchs.

Then there was the suspicion — no doubt driven, on the Democrats’ part, by the correlation between Trump’s request to Russia for more hacking and the renewed wave of attacks that started hours later — that Trump had some back channel to Russia.

It turns out there were several. There was the aforementioned Manafort, who in the precise period when Rodney Joffe started more formally looking to see if there was a back channel, was secretly meeting at a cigar bar with alleged Russian spy Konstantin Kilimnik discussing millions of dollars in payments involving Russian-backed oligarchs, Manafort’s plan to win the swing states, and an effort to carve up Ukraine that leads directly to Russia’s current invasion.

That’s the kind of back channel researchers were using proven cybersecurity techniques to look for. They didn’t confirm that one — but their suspicion that such a back channel existed proved absolutely correct.

Then there’s the Roger Stone back channel with Guccifer 2.0. Again, in this precise period, Stone was DMing with the persona. But the FBI obtained at least probable cause that Stone’s knowledge of the persona went back much further, back to even before the persona went public in June 2016. That’s a back channel that remained under investigation, predicated off of national security crimes CFAA, FARA, and 18 USC 951, at least until April 2020 and one that, because of the way Stone was scripting pro-Russian statements for Trump, might explain Trump’s “Russia are you listening” comment. DOJ was still investigating Stone’s possible back channel as a national security concern well after Durham was appointed to undermine that national security investigation by deeming it political.

Finally, perhaps the most important back channel — for Durham’s purposes — was Michael Cohen. That’s true, in part, because the comms that Cohen kept lying to hide were directly with the Kremlin, with Dmitri Peskov. That’s also true because on his call to a Peskov assistant, Cohen laid out his — and candidate Donald Trump’s — interest in a Trump Tower Moscow deal that was impossibly lucrative, but which also assumed the involvement of one or another sanctioned bank as well as a former GRU officer. That is, not only did Cohen have a back channel directly with the Kremlin he was trying to hide,  but it involved Russian banks that were far more controversial than the Alfa Bank ties that the researchers were pursuing, because the banks had been deemed to have taken actions that threatened America’s security.

This back channel is particularly important, though, because in the same presser where Trump invited Russia to hack his opponent more, he falsely claimed he had decided against pursuing any Trump Organization developments in Russia.

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.

The researchers were explicitly trying to disprove Trump’s false claim that there were no ongoing business interests he was still pursuing with Russia. And this is a claim that Michael Cohen not only admitted was false and described recognizing was false when Trump made this public claim, but described persistent efforts on Trump’s part to cover up his lie, continuing well into his presidency.

For almost two years of Trump’s Administration, Trump was lying to cover up his efforts to pursue an impossibly lucrative real estate deal that would have required violating or eliminating US sanctions on Russia. That entire time, Russia knew Trump was lying to cover up those back channel communications with the Kremlin. That’s the kind of leverage over a President that all Americans should hope to avoid, if they care about national security. That’s precisely the kind of leverage that Sally Yates raised when she raised concerns about Mike Flynn’s public lies about his own back channel with Russia. Russia had that leverage over Trump long past the time Trump limped out of a meeting with Vladimir Putin in Helsinki, to which Trump had brought none of the aides who would normally sit in on a presidential meeting, looking like a beaten puppy.

Durham’s failures to provide discovery on this issue are all the more inexcusable given the fights over privilege that will be litigated this week.

As part of the Democrats’ nesting privilege claims objecting to Durham’s motion to compel privileged documents, Marc Elias submitted a declaration describing how, given his past knowledge and involvement defending against conspiracy theory attacks on past Democratic presidential candidates launched by Jerome Corsi and Donald Trump, and given Trump’s famously litigious nature, he believed he needed expertise on Trump’s international business ties to be able to advise Democrats on how to avoid eliciting such a lawsuit from Trump. (Note, tellingly, Durham’s motion to compel doesn’t mention a great deal of accurate Russian-language research by Fusion — to which Nellie Ohr was just one of a number of contributors — that was never publicly shared nor debunked as to quality.)

There are four redacted passages that describe the advice he provided; he is providing these descriptions ex parte for Judge Cooper to use to assess the Democrats’ privilege claims. Two short ones probably pertain to the scope of Perkins Coie’s relationship with the Democratic committees. Another short one likely describes Elias’ relationship, and through him, Fusion’s, with the oppo research staff on the campaign. But the longest redaction describing Elias’ legal advice, one that extends more than five paragraphs and over a page and a half, starts this way:

That is, the introduction to Elias’ description of the privilege claims tied to the Sussmann trial starts from Trump’s request of Russia to hack Hillary. Part of that sentence and the balance of the paragraph is redacted — it might describe that immediately after Trump made that request, the Russians fulfilled his request — but the redacted paragraph and the balance of the declaration presumably describes what legal advice he gave Hillary as she faced a new onslaught of Russian hacking attempts that seemingly responded to her opponent’s request for such hacking.

Given what Elias described about his decision to hire Fusion, part of that discussion surely explains his effort to assess an anomaly identified independently by researchers that reflected unexplained traffic between a Trump marketing server and a Russian bank. Elias probably described why it was important for the Hillary campaign to assess whether this forensic data explained why Russian hackers immediately responded to Trump’s request to hack her.

As I have noted, in past filings Durham didn’t even consider the possibility that Elias might discuss the renewed wave of hacking that Hillary’s security personnel IDed in real time with Sussmann, Perkins Coie’s cybersecurity expert.

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.

Durham took a reference that might pertain to a discussion of a correlation between Trump’s ask and a renewed wave of Russian attacks on Hillary (or might pertain to the Alfa Bank anomaly), and assumed instead it was proof that Hillary was manufacturing unsubstantiated dirt on her opponent. He never even considered the legal challenges someone victimized by a nation-state attack, goaded by her opponent, might face.

And yet, given the structure of that redaction from Elias, that event is the cornerstone of the privilege claims surrounding the Alfa Bank allegations.

Because of all the things I laid out in this post, Judge Cooper may never have to evaluate these privilege claims at all. To introduce privileged evidence, Durham has to first withstand:

  • Denial because his 404(b) notice asking to present it was late, and therefore forfeited
  • Denial because Durham’s motion to compel violated local rules and grand jury process, in some ways egregiously
  • Rejection because most of the communications over which the Democrats have invoked privilege are inadmissible hearsay
  • The inclusion or exclusion of the testimony of Rodney Joffe, whose privilege claims are the most suspect of the lot, but whose testimony would make the communications Durham deems to be most important admissible

Cooper could defer any assessment of these privilege claims until he decides these other issues and, for one or several procedural reasons, simply punt the decision entirely based on Durham’s serial failures to follow the rules.

Only after that, then, would Cooper assess a Durham conspiracy theory for which Durham himself admits he doesn’t have proof beyond a reasonable doubt. As part of his bid to submit redacted and/or hearsay documents as exhibits under a claim that this all amounted to a conspiracy (albeit one he doesn’t claim was illegal), Durham argues that unless he can submit hearsay and privileged documents, he wouldn’t otherwise have enough evidence to prove his conspiracy theory.

Nor is evidence of this joint venture gratuitous or cumulative of other evidence. Indeed, the Government possesses only a handful of redacted emails between the defendant and Tech Executive-1 on these issues. And the defendant’s billing records pertaining to the Clinton Campaign, while incriminating, do not always specify the precise nature of the defendant’s work.

Accordingly, presenting communications between the defendant’s alleged clients and third parties regarding the aforementioned political research would hardly amount to a “mini-trial.” (Def. Mot. at 20). Rather, these communications are among the most probative and revealing evidence that the Government will present to the jury. Other than the contents of privileged communications themselves (which are of course not accessible to the Government or the jury), such communications will offer some of the most direct evidence on the ultimate question of whether the defendant lied in stating that he was not acting for any other clients.

In short, because the Government here must prove the existence of client relationships that are themselves privileged, it is the surrounding events and communications involving these clients that offer the best proof of those relationships.

Moreover, even if the Court were to find that no joint venture existed, all of the proffered communications are still admissible because, as set forth in the Government’s motions, they are not being offered to prove the truth of specific assertions. Rather, they are being offered to prove the existence of activities and relationships that led to, and culminated in, the defendant’s meeting with the FBI. Even more critically, the very existence of these written records – which laid bare the political nature of the exercise and the numerous doubts that the researchers had about the soundness of their conclusions – gave the defendant and his clients a compelling motive, separate and apart from the truth or falsity of the emails themselves, to conceal the identities of such clients and origins of the joint venture. Accordingly, they are not being offered for their truth and are not hearsay.

This passage (which leads up to a citation from one of the Georgia Tech researchers to which Sussmann was not privy that the frothers have spent the weekend drooling over) is both a confession and a cry for help.

In it, Durham admits he doesn’t actually have proof that the conspiracy he is alleging is the motive behind Michael Sussmann’s alleged lie.

He’s making this admission, of course, while hiding the abundant evidence — evidence he didn’t bother obtaining before charging Sussmann — that Sussmann and Joffe acceded to the FBI request to help kill the NYT story, which substantiates Sussmann’s stated motive.

And then, in the same passage, Durham is pointing to that absence of evidence to justify using that same claimed conspiracy for which he doesn’t have evidence to pierce privilege claims to obtain the evidence he doesn’t have. It’s a circular argument and an admission that all the claims he has been making since September are based off his beliefs about what must be there, not what he has evidence for.

Thus far the researchers’ beliefs about what kind of back channels they might find between Trump and Russia have far more proof than Durham’s absence of evidence.

Again, Durham doesn’t even claim that such a conspiracy would be illegal (much less chargeable under the statute of limitations), which is why he didn’t do what he could have had he been able to show probable cause that a crime had been committed: obtaining the communications with a warrant and using a filter team. Bill Barr’s memoir made it quite clear that he appointed Durham not because a crime had been committed, but because he wanted to know how a “bogus scandal” in which DOJ found multiple national security crimes started. ”Even after dealing with the Mueller report, I still had to launch US Attorney John Durham’s investigation into the genesis of this bogus scandal.” In his filing, Durham confesses to doing the same, three years later: using his feelings about a “bogus scandal” to claim a non-criminal conspiracy that he hopes might provide some motive other than the one — national security — that DOJ has already confirmed.

An absolutely central part of Durham’s strategy to win this trial is to present his conspiracy theories, whether by belatedly piercing privilege claims he should have addressed before charging Sussmann (even assuming he’ll find what he admits he doesn’t have proof is there), or by presenting his absence of evidence and claiming it is evidence. He will only be permitted to do if Judge Cooper ignores all his rule violations and grants him a hearsay exception.

But if he manages to present his conspiracy theories, Sussmann can immediately pivot and point out all the evidence in DOJ’s possession that proves not just that the suspicions Durham insists must be malicious and political in fact proved to be true, but also that DOJ — his former boss! — already deemed these suspicions national security concerns that in some cases amounted to crimes.

John Durham’s entire trial strategy consists of claiming that it was obviously political to investigate a real forensic anomaly to see whether it explained why Russia responded to Trump’s call for more hacks by renewing their attack on Hillary. He’s doing so while withholding abundant material evidence that DOJ already decided he’s wrong.

So even if he succeeds, even if Cooper grants him permission to float his conspiracy theories and even if they were to succeed at trial, Sussmann would have immediate recourse to ask for sanctions, pointing to all the evidence in DOJ’s possession that Durham’s claims of malice were wrong.

Update: The bad news I’m still working through my typos, with your help, including getting the name of Dmitri Simes’ organization wrong. The good news is the typos are probably due to being rushed out to cycle in the sun, so I have a good excuse.

Update: Judge Cooper has issued an initial ruling on Durham’s expert witness. It limits what Durham presents to the FBI investigation (excluding much of the CIA investigation he has recently been floating), and does not permit the expert to address whether the data actually did represent communications between Trump and Alfa Bank unless Sussmann either affirmatively claims it did or unless Durham introduced proof that Sussmann knew the data was dodgy.

Finally, the Court takes a moment to explain what could open the door to further evidence about the accuracy of the data Mr. Sussmann provided to the FBI. As the defense concedes, such evidence might be relevant if the government could separately establish “what Mr. Sussmann knew” about the data’s accuracy. Data Mot. at 3. If Sussmann knew the data was suspect, evidence about faults in the data could possibly speak to “his state of mind” at the time of his meeting with Mr. Baker, id., including his motive to conceal the origins of the data. By contrast, Sussmann would not open the door to further evidence about the accuracy of the data simply by seeking to establish that he reasonably believed the data were accurate and relied on his associates’ representations that they were. Such a defense theory could allow the government to introduce evidence tending to show that his belief was not reasonable—for instance, facially obvious shortcomings in the data, or information received by Sussmann indicating relevant deficiencies.

Ultimately, Cooper is treating this (as appropriate given the precedents in DC) as a question of Sussmann’s state of mind.

Importantly, this is what Cooper says about Durham blowing his deadline (which in this case was a deadline of comity, not trial schedule): he’s going to let it slide, in part because Sussmann does not object to the narrowed scope of what the expert will present.

Mr. Sussmann also urges the Court to exclude the expert testimony on the ground that the government’s notice was untimely and insufficiently specific. See Expert Mot. at 6–10; Fed. R. Crim. P. 16(a)(1)(G). Because the Court will limit Special Agent Martin’s testimony largely to general explanations of the type of technical data that has always been part of the core of this case—much of which Mr. Sussmann does not object to—any allegedly insufficient or belated notice did not prejudice him. See United States v. Mohammed, No. 06-cr-357, 2008 WL 5552330, at *3 (D.D.C. May 6, 2008) (finding that disclosure nine days before trial did not prejudice defendant in part because its subject was “hardly a surprise”) (citing United States v. Martinez, 476 F.3d 961, 967 (D.C. Cir. 2007)).

This suggests Cooper may be less willing to let other deadlines slide, such as the all-important 404(b) one.

Josh Marshall’s “Team on the Field:” Putting GOP on Defense Over Russia Requires Reversing Their Offense

Josh Marshall argued yesterday that the Democratic Party needs to start going on offense on the GOP’s complicity in Russia’s attack on Ukraine.

A new AP poll says that 54% of Americans think President Biden has been “not tough enough” on Russia for its invasion of Ukraine. These kinds of public perceptions can be shaped by perceptions of a leader as much as they drive them. So you think Biden is weak as your starting point and therefore you think he’s not being tough enough on Russia rather than the other way around. Also notable, Americans’ hawkishness over Ukraine has dipped a bit from a month ago. But the first, second and third most important thing about this poll is that this is what you get when you’re not reminding Americans every day — and I mean every god-damned day — that the GOP has spent the last 7 years boosting, allying with and even conspiring with Russia.

[snip]

Will pushing the GOP’s guilt and complicity on Russia make people stop caring about inflation? Of course not. But if you’re not even putting that team on the field you are simply not doing the simplest blocking and tackling of politics. It’s that bad. [my emphasis]

I don’t disagree with him. But for a guy with his own media outlet, he needs to start taking his own advice. That’s because his site has done little to undercut the flood of disinformation that the GOP has used to hide their own complicity.

Between the tag, “Durham,”

And “John Durham,” Marshall’s site shows four stories this year.

The tag, “Hunter Biden,” returns just two things this year.

While I haven’t focused on undermining the ridiculous claims the GOP are making about the “Hunter Biden” “laptop” — I have written just three stories this year (one, two, three), though that number would be far more if you count my focus on the investigation into Rudy — I’ve written 28 stories on the Durham investigation this year. Among other things, I have shown that:

One of the only other reporters covering this stuff with any attention, Charlie Savage, has to cater to a general audience. Meanwhile, an absolute torrent of propaganda from the frothy right has ignored the accumulated evidence not just of prosecutorial abuse, but shocking sloppiness. Instead, they spin Durham’s unsubstantiated conspiracy theories as fact, and from that, conclude that Trump wasn’t really badly implicated by Russia, but instead that was all made up by Hillary ahead of time.

If I weren’t alone swimming against this tide, Durham’s rank ignorance would actually be a great vehicle to correct the frothers. As I’ve noted, Durham and his rubes appear entirely unaware that the suspicions of the researchers trying to understand the Alfa Bank anomalies — that Trump had back channel communications with the Kremlin, that people close to Trump were laundering payments from oligarchs close to Trump, and that a family member of an Alfa Bank oligarch might be helping — all proved to be true.

The story of the Durham investigation is that he has criminalized people investigating reasonable inferences that turned out to be true. And yet the story that has gotten told, largely because other reporters are largely silent about it, is that he continues to chase Russian-seeded conspiracy theories in defiance of the evidence obtained as part of the Mueller investigation.

Josh Marshall has been far more successful than me in the two decades we’ve done this online journalism thing, so I’m in no place to tell him how to run his business.

But people believe that Biden is weak on Ukraine not just because Democrats aren’t screaming about how complicit Trump and his enablers are. They believe it because Trump has seeded two screaming conspiracy theories that have filled that void with false denials that all the suspicions about Trump turned out to be true.

Update: Added a third “Hunter Biden” “laptop” story.

The Posture of the Michael Sussmann Case

There have been a slew of developments in the Michael Sussmann case, and in advance of two of them, I wanted to lay out what the posture of the case is. One thing that those swooping in for the conspiracy theories seem to miss is that what happens between now and the trial — scheduled to start on May 16, though Durham is trying a number of stunts to delay it — will be dictated by a bunch of rules, and no matter how guilty or innocent or sleazy-but-not-criminal you think Sussmann is (and I think one can make the case for any of the three), the evidence the jury will see will be decided in the next few weeks according to the rules of criminal procedure.

The questions to be decided in the next few weeks are, generally, the following:

  • Whether to penalize Durham for breaking the rules
  • Whether the Alfa Bank DNS anomaly is real and whether the inferences about it are reasonable
  • Whether Judge Christopher Cooper will review privilege claims
  • How much of Durham’s conspiracy theories will be admitted
  • Whether to immunize Rodney Joffe

Whether to penalize Durham for breaking the rules

A question that won’t be decided until after a status conference next Friday, but which dictates the answer to many of the others, will be whether John Durham will be penalized for ignoring deadlines and other rules. To a greater or lesser degree, even after getting an extension on his discovery and CIPA deadlines, Durham blew off the following deadlines without asking for permission:

The identity of his expert testimony and the scope of his testimony: In this case, Durham didn’t blow off a hard deadline imposed by Cooper, but he broke the rules of comity by ignoring repeated requests for a description of his use of expert testimony and, thus far, providing only cursory description of what his expert, Special Agent David Martin, will testify to. Durham has tacitly admitted he didn’t provide this in timely fashion; his defense of Martin stated, “the Government intends to provide defense with a supplemental disclosure regarding his training and experience with DNS and TOR.” That description is what should have been provided to Sussmann months ago, so he could find a better expert — and with all due respect to the investigative expertise of Martin, there are far better qualified experts out there.

According to Durham’s filing, Martin has not tried to replicate the DNS anomaly, nor does it appear he plans to, which is the basis every other expert has used to test theories about the anomaly. Further, as Durham describes it, Martin will explain the sources of DNS data generally, not the DNS data available to the various researchers who worked on the anomaly. This latter point is a big tell, because Durham has made all sorts of misleading claims about the sources of the data.

There will, undoubtedly, be some kind of expert to explain what DNS and Tor are; Cooper has said he needs that information himself. But Cooper would be in his right to use Durham’s late notice to limit Martin’s testimony to those topics. Some of this is likely to get decided in a hearing today, so Sussmann can get an expert of his own accordingly.

404(b) notice for two claims: Durham submitted one 404(b) notice (of evidence he’d like to submit but which may not be direct evidence of a crime) in timely fashion, on March 18. It was very cursory, but it listed 4 topics he wanted to introduce:

  • Sussmann’s February 9, 2017 meeting at the CIA
  • Perkins Coie’s 2018 statements to the press about Sussmann’s meeting with James Baker
  • Sussmann’s 2017 testimony about the meeting to HPSCI
  • Durham’s now disproven accusation that Sussmann got rid of texts he was required to keep under Perkins Coie’s retention policy

But then, five days later, Durham submitted what he called a “supplement.” That expanded the description — and with the expanded description, expanded the scope — of the four topics he had already noticed, and then added two more:

  • The origins of the data
  • Evidence about whether the inferences researchers made about the data were reliable

Those last two topics failed to meet Cooper’s deadline, and he could reject their admission on that basis alone.

Communications over which Sussmann’s clients claimed privilege: Sussmann’s opposition to Durham’s effort to pierce privilege lists three rules Durham broke when he told Sussmann a month before trial he wanted to pierce privileged communications:

  • A failure to meet either Durham’s original discovery deadline or his expanded one
  • A failure to go through Beryl Howell as part of the (secret) grand jury investigation
  • Use of a grand jury to get evidence on an already-charged indictment

Normally, such privilege fights take place over the course of months (like the thus far four months that January 6 Committee has been trying to get John Eastman’s documents over which he has made weaker privilege claims or the year that SDNY spent doing a privilege review of Rudy Giuliani’s devices). Here, Durham attempted to pull a stunt to find a way to do this at the last minute. Cooper even called him out for that stunt, noting that this effort requires a motion to compel, not the motion in limine Durham claimed he was going to use. And Cooper called him out (after putting Durham on notice in response to his inflammatory conflicts motion earlier this year), before being presented with the other ways Durham has abused process in an attempt to pierce privilege claims on the eve of trial. While the third of these is less serious than the other two (Durham will claim he was investigating additional crimes), Cooper could deny Durham’s entire effort based on these rule violations.

Whether the anomaly is real and whether the inferences about it are reasonable

Sussmann has argued that the only thing that matters to the false statement charge against him is his own state of mind of whether the anomaly was real and the inferences in the white papers he shared were reasonable. Durham is using a variety of late-hour tactics to insinuate both the anomaly itself and the inferences drawn from it were a set-up designed to impugn Trump. Importantly, he appears to want to do so not by calling the various researchers who found the inferences reasonable, but instead to talk about what other people looking at other (and usually, far less) data thought of it. He is attempting to do this in three ways:

  • Introducing hearsay documents to which Sussmann was not a party
  • Asking his late-notice expert to talk about the topic without having done the research to address it
  • Calling FBI and CIA witnesses, who also did not replicate the claims, to ask their opinions about it

One way Durham could get to this is by calling Rodney Joffe. He’s literally the only one who would know whether he, Joffe, believed the data were reliable and asked Sussmann to share it believing it represented a national security threat, or whether he knew it was a cock-up and cared more about getting Donald Trump investigated. Joffe is also far more expert than Special Agent Martin. But to do that, Durham would have to immunize Joffe, and he is refusing to do that.

Sussmann has raised really good reasons why the way Durham wants to present the question of the reliability of the data is not only irrelevant to his own state of mind, but also violates rules of criminal procedure. Cooper could reject at least some of these efforts based on those rules. And he could put real limits on these claims at a hearing today.

Whether Cooper will review privilege claims

Right now, Durham has only asked Cooper to review privilege claims behind a bunch of documents he wants to enter, though if Cooper were to do that, it would delay the trial considerably (which may be part of Durham’s intent). If Cooper did review the documents, then there’d be a separate fight about whether the documents are admissible in this trial.

But given the explanations in the court filings, most of the communications in question are totally irrelevant to the false statement charge against Sussmann. Many would count as hearsay, inadmissible unless Cooper accepts Durham’s claims that this amounts to a (legal) conspiracy. Just four — communications with Fusion’s Laura Seago — involve Rodney Joffe, the one person who could speak to Sussmann’s own understanding of the reliability of the data. And many if not most of the documents post-date the date of Sussmann’s meeting with James Baker. So in addition to Durham’s rampant rule violations in making this request, Cooper could reject the effort (at least with respect to most of the documents) based on procedural reasons.

How much of Durham’s conspiracy theories will be admitted

Under the guise of proving a motive wholly incompatible with the now proven willingness on the part of Sussmann and Joffe to help the FBI kill the NYT story, Durham wants to treat the Democrats’ parallel efforts (the Steele dossier and the Alfa Bank anomalies) as one giant conspiracy.

He has not alleged that the conspiracy, if true, amounts to a crime. Indeed, he has ignored that many of the suspicions that he points to as proof of maliciousness — suspicions that Paul Manafort was laundering money from Oligarchs close to Putin, suspicions that family members of Alfa Bank Oligarchs were helping Manafort launder those relations, suspicions that Trump had secret communications directly with the Kremlin — all turned out to be 100% true.

Durham’s ability to make this argument at all really pivots on Joffe’s claims about his relationship with Fusion; he says it was not one of common interest but instead consulting work through Sussmann. That’s undoubtedly the sketchiest claim in this entire house of cards (and because of Joffe’s key role, may be one that Cooper tests).

But even if Cooper finds Joffe’s claims suspect, even if there were a coordinated effort to understand a now-proven effort by Russia to exploit various real relationships with people close to Trump and a now-proven effort to repeatedly hack Hillary, including in response to Trump’s request, it’s not clear that any of that matters to the single false statement charge against Sussmann.

From the very first, I observed that Durham obviously wanted to build a conspiracy charge against the Democrats, and that his case against Sussmann would be stronger if he did. That’s all still true (though evidence submitted thus far make me less convinced the conspiracy is what Durham thinks it is, and more convinced that if he were to charge it, we’d finally get the trial of Donald Trump for 2016 we deserve). But because Putin’s invasion of Ukraine led Durham to lose his trusty Alfa Bank partners in this effort, Durham is left trying to stick a bunch of procedurally square pegs in round holes, and doing so having missed deadlines to do it in proper fashion.

Durham may be legally entitled to get an interlocutory appeal on some of the decisions Cooper is likely to make in the next two weeks. That would delay the trial, something he has been trying to do from day one. But that would also require the assent of Lisa Monaco, and if his appeal was obviously abusive — as an appeal based off his own failure to follow the rules would be — he might not get that chance.

Even if you’re 100% sure there was a conspiracy here, even if you’re 100% sure Durham could find some unlikely hook on which to make that conspiracy criminal, that doesn’t mean he’ll be able to obtain — much less present — the evidence to make his case. Normally, prosecutors take that into account before charging people. Durham rather flamboyantly did not.

And for all the people who’ve spent three years falsely claiming that the Mueller Report showed no evidence that Trump conspired with Russia, you should think a lot more about how much more evidence of a conspiracy Mueller was able to show than Durham has, with an extra year to gather the evidence. Because all that evidence might become admissible if Durham continues to chase his own conspiracy theories.

Whether to immunize Rodney Joffe

As made clear above, some of these questions would be simplified if Joffe were called as a witness. Sussmann says that Joffe is a necessary witness to his defense, and Durham’s claims that he might still charge Joffe are just an abusive attempt to prevent Joffe from providing exculpatory testimony. Durham claims he hasn’t offered use immunity in a discriminatory way (he has given it to David Dagon and may give it to someone at Fusion), and claims that retaining Joffe as a subject of the investigation even after a five year statute of limitation on his actions has expired is not abusive. In a fairly ridiculous passage, Durham further claims that Joffe’s testimony would not be that helpful — but he ignores that Joffe would testify about his joint decision, with Sussmann, to help the FBI kill the NYT story.

Finally, the defendant fails to plausibly allege – nor could he – that the Government here has “deliberately denied immunity for the purpose of withholding exculpatory evidence and gaining a tactical advantage through such manipulation.” Ebbers, 458 F. 3d at 119 (internal citation and quotations omitted). The defendant’s motion proffers that Tech Executive-1 would offer exculpatory testimony regarding his attorney-client relationship with the defendant, including that Tech Executive-1 agreed that the defendant should convey the Russian Bank-1 allegations to help the government, not to “benefit” Tech Executive-1. But that testimony would – if true – arguably contradict and potentially incriminate the defendant based on his sworn testimony to Congress in December 2017, in which he expressly stated that he provided the allegations to the FBI on behalf of an un-named client (namely, Tech Executive-1). And in any event, even if the defendant and his client did not seek specifically to “benefit” Tech Executive-1 through his actions, that still would not render his statement to the FBI General Counsel true. Regardless of who benefited or might have benefited from the defendant’s meeting, the fact still remains that the defendant conducted that meeting on behalf of (i) Tech Executive-1 (who assembled the allegations and requested that the defendant disseminate them) and (ii) the Clinton Campaign (which the defendant billed for some or all of his work). The proffered testimony is therefore not exculpatory, and certainly not sufficiently exculpatory to render the Government’s decision not to seek immunity for Tech Executive-1 misconduct or an abuse.6 The defendant therefore has not met his burden of demonstrating, among other things, that the evidence provided by an immunized witness would tend to show he is “not guilty.” Ebbers, 458 F.3d at 119.

6 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.

Thus far, Cooper has not done the one thing I would imagine he’d do if he’s considering this seriously — to order Durham to provide an ex parte description of what Durham really thinks Joffe is still at risk for.

But even on its face, Durham’s claim that Joffe would not be helpful is particularly problematic given that many of Durham’s evidentiary difficulties would be made easier if Joffe could be called to testify (for example, about documents he was party to but Sussmann was not).

If Cooper were to decide to make Durham choose to immunize Joffe or drop the prosecution — a decision that would not come before next Friday — all the other decisions would fall into place much more easily.

Update: Added Joffe immunity discussion.

Update: No fireworks at the hearing on a tech expert. Andrew DeFilippis did repeatedly misstate the FBI conclusion and did repeatedly backtrack on DOJ’s claim they don’t want to make the veracity of the claimed tie between Trump and Alfa an issue. He also admitted there’s no evidence in the email headers and billing records to prove his case, which is why he wants to talk about the creation of the data. Sean Berkowitz called the third white paper, created by Fusion, the equivalent of a WikiPedia page. There was also a reference to a meeting between Marc Elias and Joffe where the former allegedly talked about pushing the Trump-Russian line.

The most interesting details is that Durham has withdrawn the CIA guy who concluded the data was human created from their witness list; that’s also a conclusion he says the FBI doesn’t necessarily share. In any case, the conclusion sounds like it is about the same complaints others had about missing columns in the CSV tables.

Update, 4/25: Judge Cooper has issued an initial ruling on Durham’s expert witness. It limits what Durham presents to the FBI investigation (excluding much of the CIA investigation he has recently been floating), and does not permit the expert to address whether the data actually did represent communications between Trump and Alfa Bank unless Sussmann either affirmatively claims it did or unless Durham introduced proof that Sussmann knew the data was dodgy.

Finally, the Court takes a moment to explain what could open the door to further evidence about the accuracy of the data Mr. Sussmann provided to the FBI. As the defense concedes, such evidence might be relevant if the government could separately establish “what Mr. Sussmann knew” about the data’s accuracy. Data Mot. at 3. If Sussmann knew the data was suspect, evidence about faults in the data could possibly speak to “his state of mind” at the time of his meeting with Mr. Baker, id., including his motive to conceal the origins of the data. By contrast, Sussmann would not open the door to further evidence about the accuracy of the data simply by seeking to establish that he reasonably believed the data were accurate and relied on his associates’ representations that they were. Such a defense theory could allow the government to introduce evidence tending to show that his belief was not reasonable—for instance, facially obvious shortcomings in the data, or information received by Sussmann indicating relevant deficiencies.

Ultimately, Cooper is treating this (as appropriate given the precedents in DC) as a question of Sussmann’s state of mind.

Importantly, this is what Cooper says about Durham blowing his deadline (which in this case was a deadline of comity, not trial schedule): he’s going to let it slide, in part because Sussmann does not object to the narrowed scope of what the expert will present.

Mr. Sussmann also urges the Court to exclude the expert testimony on the ground that the government’s notice was untimely and insufficiently specific. See Expert Mot. at 6–10; Fed. R. Crim. P. 16(a)(1)(G). Because the Court will limit Special Agent Martin’s testimony largely to general explanations of the type of technical data that has always been part of the core of this case—much of which Mr. Sussmann does not object to—any allegedly insufficient or belated notice did not prejudice him. See United States v. Mohammed, No. 06-cr-357, 2008 WL 5552330, at *3 (D.D.C. May 6, 2008) (finding that disclosure nine days before trial did not prejudice defendant in part because its subject was “hardly a surprise”) (citing United States v. Martinez, 476 F.3d 961, 967 (D.C. Cir. 2007)).

This suggests Cooper may be less willing to let other deadlines slide, such as the all-important 404(b) one.

Deadlines for recent and coming days:

March 31: Status hearing at which Cooper catches Durham trying to do a motion to compel as a motion in limine

April 4: Sussmann submits MIL to exclude privileged documents, MIL to exclude hearsay FBI records, and Durham’s theories of conspiracy; Sussmann moves to immunize Rodney Joffe or dismiss the case; Durham omnibus MIL to do everything Sussmann objects to, plus include 404(b) broadly defined

April 6: Government moves to compel privileged documents

April 8: Sussmann moves to exclude government expert

April 11: Judge Christopher Cooper sets April 27 hearing for motions (making it clear he won’t dismiss case)

April 13: Cooper denies Sussmann’s motion to dismiss case

April 14: Sealed CIPA 6 hearing (for Durham to argue for substitutions)

April 15: Exchange of case-in-chief exhibits and exhibit lists by both parties

April 15: Production of trial witness list by the Special Counsel to the Defendant

April 15: Sussmann submits omnibus MIL response and opposition to government expert; Durham submits omnibus MIL response and defense of expert witness

April 18: Sussmann response to Durham’s bid to compel privileged documents

April 19: Motions to intervene by privilege holders: Hillary for America, Rodney Joffe, Perkins Coie, Fusion; subpoena to Hillary and DNC witnesses

April 20: At request of Sussmann, Cooper schedules hearing to address how much of Durham’s treatment of validity of claims (expert witness and accuracy of data); Cooper reiterates April 27 hearing for other topics

April 25: Government reply on motion to compel due

April 27: Motions hearing — specific topics TBD

April 29: Production of trial witness list by the Defendant to the Special Counsel

May 4: Hearing on privilege issues

May 5: Objections to case-in-chief exhibits due

May 9: Proposed jury instructions and verdict form due

May 9: Pre-trial conference and CIPA Section 6 hearing (if necessary)

May 10: Placeholder for further hearing (if necessary)

May 11: Administration of jury questionnaire

May 16: Jury selection

Steve Bannon’s “Alleged” Non-Contemptuous Behavior

On Friday, the two sides in the Steve Bannon contempt prosecution filed a bunch of motions about the scope of the case. They are:

Office of Legal Counsel memos

The fight over OLC memos is likely to get the bulk of attention, possibly even from Judge Carl Nichols (who relied on one of the OLC memos at issue in the Harriet Miers case). While there’s no telling what a Clarence Thomas clerk might do, I view this fight as mostly tactical. One way for Bannon’s attempt to fail (Nichols improbably ruling that OLC memos cannot be relied on in court) would upend the entire way DOJ treats OLC memos. That might have salutary benefits in the long term, but in the short term it would expose anyone, like Vice President Dick Cheney, who had relied on OLC memos in the past to protect themselves from torture and illegal wiretapping exposure themselves.

In my opinion this challenge is, in part, a threat to Liz Cheney.

But as DOJ (I think correctly) argues, none of this should matter. That’s because — as they show with two exhibits — none of the OLC memos apply to Bannon, and not just because he was not a government employee when he was plotting a coup.

On October 6, 2021, Trump attorney Justin Clark wrote to Bannon attorney Robert Costello (citing no prior contact with Costello), instructing him not to comply to the extent permitted by law:

Therefore, to the fullest extent permitted by law, President Trump instructs Mr. Bannon to: (a) where appropriate, invoke any immunities and privileges he may have from compelled testimony in response to the Subpoena; (b) not produce any documents concerning privileged material in response to the Subpoena; and (c) not provide any testimony concerning privileged material in response to the Subpoena.

But on October 14, Clark wrote and corrected Costello about claims he had made in a letter to Benny Thompson.

Bob–I just read your letter dated October 13, 2021 to Congressman Benny Thompson. In that letter you stated that “[a]s recently as today, counsel for President Trump, Justin Clark Esq., informed us that President Trump is exercising his executive privilege; therefore he has directed Mr. Bannon not to produce documents or testify until the issue of executive privilege is resolved.”

To be clear, in our conversation yesterday I simply reiterated the instruction from my letter to you dated October 6, 2021, and attached below.

Then again on October 16, Clark wrote Costello stating clearly that Bannon did not have immunity from testimony.

Bob–In light of press reports regarding your client I wanted to reach out. Just to reiterate, our letter referenced below didn’t indicate that we believe there is immunity from testimony for your client. As I indicated to you the other day, we don’t believe there is. Now, you may have made a different determination. That is entirely your call. But as I also indicated the other day other avenues to invoke the privilege — if you believe it to be appropriate — exist and are your responsibility.

In other words, before Bannon completely blew off the Committee, Trump’s lawyer had told him not to do it on Trump’s account. (See this post which captures how Robert Costello had tried to bullshit his way through this.) That, by itself, should kill any claim that he was relying on an OLC memo.

Bannon’s prior (alleged) non-contemptuous past behavior

For different reasons, I’m a bit more interested in DOJ’s attempt to prevent Bannon from talking about what a good, subpoena-obeying citizen he has been in the past. Costello had made this argument to DOJ in an interview Bannon is trying to get excluded.

DOJ argues, uncontroversially, that because Bannon’s character is not an element of the offense, such evidence of prior compliance with a subpoena would be irrelevant.

Just as the fact that a person did not rob a bank on one day is irrelevant to determining whether he robbed a bank on another, whether the Defendant complied with other subpoenas or requests for testimony—even those involving communications with the former President—is irrelevant to determining whether he unlawfully refused to comply with the Committee’s subpoena here.

I expect Judge Nichols will agree.

What I’m interested in, though, is the way the filing refers to Bannon’s past compliance with subpoenas as “alleged.” It does so nine times:

The Defendant has suggested that, because he (allegedly) was not contemptuous in the past, he is not a contemptuous person and was not, therefore, contemptuous here.

[snip]

Mr. Costello advised that the Defendant had testified once before the Special Counsel’s Office of Robert S. Mueller, III (the “SCO”), although Mr. Costello did not specify whether the pertinent appearance was before the grand jury or in some other context; once before the U.S. Senate Select Committee on Intelligence; and twice before the U.S. House of Representatives Permanent Select Committee on Intelligence. See id. Although, in his letter to the Committee and his interview, Mr. Costello said nothing about whether the Defendant was subpoenaed for documents by those authorities and whether the Defendant did produce any, and he did not say whether those other subpoenas or requests were limited to communications with the former President or involved other topics as well, the Defendant and Mr. Costello have asserted, essentially, that the Defendant’s alleged prior compliance demonstrates that he understands the process of navigating executive privilege, illustrates his willingness to comply with subpoenas involving communications with the former President, and rebuts evidence that his total noncompliance with the Committee’s subpoena was willful.

[snip]

The Defendant cannot defend the charges in this case by offering evidence of his experience with and alleged prior compliance with requests or subpoenas for information issued by Congress and the SCO.

[snip]

The Defendant’s alleged prior compliance with subpoenas or requests for information is of no consequence in determining whether he was contemptuous here.

[snip]

Specifically, the Defendant’s alleged compliance with other demands for testimony is not probative of his state of mind in failing to respond to the Committee’s subpoena, and his alleged non-contemptuous character is not an element of the contempt offenses charged in this case.

[snip]

1 1 To the extent the Defendant seeks to introduce evidence of his general character for law-abidingness, see In re Sealed Case, 352 F.3d 409, 412 (D.C. Cir. 2003), he cannot use evidence of his alleged prior subpoena compliance to do so. Evidence of “pertinent traits,” such as law-abidingness, only can be introduced through reputation or opinion testimony, not by evidence of specific acts. See Fed. R. Evid. 404(a)(2)(A); Fed. R. Evid. 405(a); Washington, 106 F.3d at 999.

[snip]

Second, whatever probative value the Defendant’s alleged prior compliance in other circumstances might serve, that value is substantially outweighed by the trial-within-a-trial it will prompt and the confusion it will inevitably cause the jury.

[snip]

The Defendant’s reliance on counsel and/or his alleged good faith in response to prior subpoenas is thus not pertinent to any available defense and is irrelevant to determining whether his failure to produce documents and appear for testimony in response to the Committee’s subpoena was willful. [my emphasis]

The reason DOJ always referred to Bannon’s past compliance with subpoenas as “alleged” is because calling the claim “bullshit” — which is what it is — would be unseemly in a DOJ filing.

As a reminder, here’s the history of Bannon’s “alleged” past compliance with subpoenas (it is unknown whether he was subpoenaed in the Build the Wall fraud investigation):

HPSCI: Bannon got subpoenaed after running his mouth off in the wake of the release of Fire and Fury (Republicans likely acceded to that so they could discipline Bannon for his brief and soon-aborted effort to distance himself from Trump). In his first appearance, Bannon refused to answer a bunch of questions. Then, in a second appearance and after the intervention of Devin Nunes, Bannon reeled off a bunch of “no” answers that had been scripted by Nunes and the White House, some of which amounted to misdirection and some of which probably were lies. Bannon also claimed that all relevant communications would have been turned over by the campaign, even though evidence submitted in the Roger Stone case showed that Bannon was hiding responsive — and very damning — communications on his personal email and devices.

SSCI: Bannon was referred in June 2019 by the Republican-led committee to DOJ for making false statements to the Committee.

According to the letter, the committee believed Bannon may have lied about his interactions with Erik Prince, a private security contractor; Rick Gerson, a hedge fund manager; and Kirill Dmitriev, the head of a Russian sovereign fund.

All were involved in closely scrutinized meetings in the Seychelles before Trump’s inauguration.

[snip]

No charges were filed in connection with the meetings. But investigators suspected that the men may have been seeking to arrange a clandestine back-channel between the incoming Trump administration and Moscow. It’s unclear from the committee’s letter what Bannon and Prince might have lied about, but he and Prince have told conflicting stories about the Seychelles meeting.

Prince said he returned to the United States and updated Bannon about his conversations; Bannon said that never happened, according to the special counsel’s office.

Mueller: Over the course of a year — starting in two long interviews in February 2018 where Bannon lied with abandon (including about whether any of his personal comms would contain relevant information), followed by an October 2018 interview where Bannon’s testimony came to more closely match the personal communications he had tried to hide, followed by a January 2019 interview prior to a grand jury appearance — Bannon slowly told Mueller a story that more closely approximated the truth — so much so that Roger Stone has been squealing about things Bannon told the grand jury (possibly including about a December 2016 meeting at which Stone appears to have tried to blackmail Trump) ever since. Here’s a post linking Bannon’s known interview records and some backup.

But then the DC US Attorney’s Office (in efforts likely overseen by people JP Cooney, who is an attorney of record on this case) subpoenaed Bannon in advance of the Stone trial, and in a preparatory interview, Bannon reneged on some of his testimony that had implicated Stone. At Stone’s trial, prosecutors used his grand jury transcript to force Bannon to adhere to his most truthful testimony, though he did so begrudgingly.

In other words, the record shows that Bannon has always been contemptuous, unless and until you gather so much evidence against him as to force him to blurt out some truths.

Which is why I find it curious that DOJ moved to exclude Bannon’s past contemptuousness, rather than moving to admit it as 404(b) evidence showing that, as a general rule, Bannon always acts contemptuously. His character, DOJ could have claimed, is one of deceit and contempt. The reason may be the same (that contempt is a one-time act in which only current state of mind matters).

But I’m also mindful of how the Mueller Report explained not prosecuting three people, one of whom is undoubtedly Bannon.

We also considered three other individuals interviewed — [redacted] — but do not address them here because they are involved in aspects of ongoing investigations or active prosecutions to which their statements to this Office may be relevant.

That is, one reason Bannon wasn’t prosecuted for lying to Mueller was because of his import in, at least, the ongoing Roger Stone prosecution. That explains why DOJ didn’t charge him in 2019, to retain the viability of his testimony against Stone. I’m interested in why they continue the same approach. It seems DOJ’s decision to treat Bannon’s past lies — even to SSCI! — as “alleged” rather than “criminally-referred” by SSCI, may also reflect ongoing equities in whatever Bannon told the the grand jury two years ago. One thing Bannon lied about at first, for example, was the back channel to Dubai that may get him named as a co-conspirator in the Tom Barrack prosecution.

But there were other truths that Bannon ultimately told that may make it worthwhile to avoid confirming that those truths only came after a whole bunch of lies.

Update: Thanks to Jason Kint for reminding me that Bannon refused to be served an FTC subpoena pertaining to Cambridge Analytica in 2019.

“professional embarassment” [sic]: Michael Sussmann Catches John Durham Accusing First and Investigating Later, Again

There’s one more important detail from the John Durham related filings submitted Friday that’s worth noting. Michael Sussman has caught Durham making accusations before he investigated them first.

Again.

As Sussmann shows, when Durham submitted his original (timely) 404(b) notice on March 18, he said he was going to submit proof that Sussmann had failed to preserve texts he sent on his personal phone.

IV. The Defendant’s Failure to Preserve Firm Records During the Relevant Time Period

All Perkins Coie attorneys are required to maintain and preserve all firm records and communications that might exist on the attorney’s personal devices. This past week the government learned that, in connection with his departure from Perkins Coie, the defendant was required to turn over all communications constituting firm records that were contained on his personal devices. The evidence at trial will show that the earliest text messages turned over by the defendant date from November 25, 2016. There are extensive gaps in time for which no text messages were provided. The government is in possession of relevant text messages that the defendant exchanged during these time periods, including highly probative messages between the defendant and then-FBI General Counsel Baker.

Durham repeated and expanded the allegation in what he called his “supplemental” 404(b) notice, submitted late on March 23, which was actually an attempt to expand the scope of his initial notice and add two more items to it. In the interim five days, this allegation became proof — in the Durham team’s conspiracy-addled and typo-riddled brains — that Sussmann was intentionally trying to hide the text he sent James Baker setting up his September 19, 2016 meeting that Durham hadn’t found in time to charge Sussmann for lying on September 18, not September 19.

VI. The Defendant’s Failure to Preserve Firm Records During the Relevant Time Period

The defendant’s failure to preserve relevant law firm records and/or provide them to Law Firm-1 upon his departure is similarly relevant to prove the defendant’s “motive,” “knowledge,” “intent,” and “plan.” The defendant’s failure to provide these records to his employer prevented Law Firm-1 from learning about specific, highly relevant communications – including a September 18, 2016 text message containing substantially the same false statement as the one alleged in the Indictment. The defendant’s failure to preserve and provide such records supports the inference that the defendant had “knowledge” that his electronic communiations [sic] would incriminate him and, therefore, acted intentionally to conceal them. Such evidence also tends to support the inference that the defendant harbored a specific “motive” to conceal his communications, namely, to avoid criminal liability or professional embarassment. [sic] When combined with other evidence, these failures by the defendant also support an inference that the defendant intentionally executed a “plan” over time to conceal the involvement of particular clients in his work, and to prevent the discovery of evidence reflecting his own false statements on that subject.

Durham didn’t find that September 18 text until this year, as part of a two step process to find evidence pertaining to his star witness he hadn’t even sought before indicting Sussmann. In the first step, Durham finally got around to collecting evidence from Michael Horowitz and only then learned that DOJ IG had a Baker phone that Durham had been told about years ago but forgot about.

But it gets worse! As Sussmann revealed in his original 404(b) response that only got docketed on Friday, after discovering two of Baker’s FBI phones more than three months after he charged Sussmann, Durham only then asked Baker to check the cloud for his own text messages involving Sussmann. Among the things Baker provided in response were texts that showed Sussmann indicating to Baker in the days after their meeting that he had to check with someone — Rodney Joffe — before helping Baker kill the NYT story.

Finally, the Special Counsel seeks to introduce evidence that he recently received from Mr. Baker. Specifically, on March 4, 2022, Mr. Baker apparently retrieved from his personal phone copies of text messages that he had sent and received with Mr. Sussmann between 2016 and 2020. According to the Special Counsel, the text messages had been stored on the cloud and Mr. Baker had not thought to produce them earlier. (Apparently, though Mr. Baker is a key witness in the case, the Special Counsel never saw fit to serve him with a subpoena.) Those text messages include, among other things, texts indicating that Mr. Sussmann asked to meet with Mr. Baker in September 2016 not on behalf of a client but to help the Bureau; texts indicating that Mr. Sussmann told Mr. Baker he had to check with someone (i.e., his client) before giving him the name of the newspaper that was about to publish an article regarding the links between Alfa Bank and the Trump Organization; and other texts, including a copy of a tweet that then-President Trump posted regarding Mr. Sussmann. The Special Counsel argues that Mr. Sussmann failed to preserve these text messages in violation of Perkins Coie policy and that this purported violation of the policy gives rise to an inference that Mr. Sussmann intended to obstruct justice. See Original Notice at 2-3.

In other words, almost six months after charging Sussmann, Durham got around to obtaining proof that, in fact, Sussmann was not hiding the existence of a client, not to mention that the explanation he provided HPSCI in 2018 — that he wanted to give the FBI options, one of which (killing the NYT story) they took — was absolutely true.

He also obtained proof that the guy who hired Durham has been gunning for Sussmann for years — and that his star witness knew about it.

So, in response to the “professional embarassment” [sic] of having to admit that Durham had never subpoenaed his own star witness who — years earlier — a Durham-related investigator had deemed unreliable, Durham instead accused Sussmann of obstructing justice by getting a new phone. Crazier still, he leveled that accusation without first obtaining Perkins Coie’s retention policy before accusing Sussmann.

In response to the accusation, Sussmann himself subpoenaed the policy, which showed that the policy only applied to email and specifically excluded communications about scheduling a meeting like the September 18 text in question.

Sixth and finally, the Special Counsel seeks to introduce evidence that Mr. Sussmann purportedly failed to preserve certain text messages that he exchanged with Mr. Baker using his personal device, as was purportedly required by Perkins Coie record retention policies. As the Special Counsel is aware, Mr. Sussmann had not retained the text messages in question—which contain exculpatory information—because he replaced the personal cellphone he used to send them and does not store his personal text messages on the cloud. Nevertheless, the Special Counsel argues that this was a violation of Perkins Coie policy. However, when asked to identify or produce which specific Perkins Coie policies addressed Mr. Sussmann’s retention of these text messages, the Special Counsel was unable to do so. Instead, the Special Counsel disclosed that he did not have copies of the relevant firm policies when he made the allegation.

Subsequently, the defense issued a subpoena to Perkins Coie; obtained the relevant policies; and confirmed that none of those policies addressed text messages, let alone required their preservation. Instead, those policies—which govern the “retention and destruction” of client records—make clear that only significant client communications must be retained, and that electronic communications concerning scheduling do not satisfy the relevant definition of “significant communication.”

[snip]

The policy explicitly provides that emails regarding scheduling, for example, do not rise to the level of a “significant communication” and would not, therefore, trigger the policy’s retention requirements. Id. Thus even if the policy applied to text messages—and it did not—the policy would not have required Mr. Sussmann to preserve copies of his text messages with Mr. Baker.

[snip]

[T]he Special Counsel’s willingness to level this explosive allegation without even bothering to first obtain copies of the relevant Perkins Coie policies they accuse Mr. Sussmann of violating— policies that, on their face, do not require the preservation of the texts at issue—is nothing short of shocking.

As Sussmann noted in his Friday submission, effectively Durham forced Sussmann and Judge Christopher Cooper to then conduct the investigative steps that Durham should have taken before making baseless accusations to cover up his own investigative failures.

Second, in both his Original and Supplemental Rule 404(b) notices, the Special Counsel leveled unjust and baseless allegations of obstruction of justice against Mr. Sussmann—and he did so, it seems, without doing even the bare modicum of diligence that any reasonable prosecutor would do. In particular, the Special Counsel claimed that Mr. Sussmann failed to preserve certain text messages in violation of his former law firm’s (i.e., Perkins Coie’s) internal policy, and that this purported violation gave rise to an inference that Mr. Sussmann intended to obstruct justice. However, the Special Counsel leveled those incendiary allegations without even bothering to obtain copies of the relevant Perkins Coie policies that Mr. Sussmann supposedly violated. As the Special Counsel did not have the policies in question, the defense had no choice but to request that this Court issue a time-sensitive subpoena pursuant to Rule 17 to obtain the polices directly from Perkins Coie. See Ex. C at 24. As expected, none of the policies that Perkins Coie produced required the preservation of any of the text messages in question, contrary to the Special Counsel’s baseless claims. Id. Mr. Sussmann should not have had to waste his or the Court’s time because the Special Counsel took an accuse-first, gather-evidence-later approach.

By context, it appears that Durham has dropped his plan to accuse Sussmann of obstructing an investigation because — within weeks of an election in which his client was persistently hacked by Russia — he replaced his cell phone. (Note, Roger Stone also replaced a cell phone with highly relevant evidence on it in the days after the 2016 election — such as how much of the plan to pardon Julian Assange took place in advance of Assange releasing the John Podesta emails — and as far as I know, Durham’s predecessor as Special Counsel never considered charging him for obtaining a new phone.)

What remains of this incident, then, is just the “professional embarassment” [sic] of getting caught making accusations without adequately investigating those accusations first, as well as exculpatory texts that prove Sussmann was not hiding the existence of a client from the FBI.

This is not the first time that Durham has risked “professional embarassment” [sic] by making accusations before investigating them. Including the Baker-related failures laid out here, here are some of the investigative steps Durham did not take before accusing Sussmann of lying to cover up a plot involving Hillary Clinton to manufacture dirt on Donald Trump:

  • Interviewing a full-time Clinton campaign staffer before accusing Sussmann of coordinating with the campaign
  • Looking for the records proving that Sussmann and Rodney Joffe helped the FBI kill the NYT story until after he charged Sussmann
  • Learning how closely the FBI worked with Rodney Joffe on DNS-related issues
  • Finding the January 31, 2017 CIA meeting record at which Sussmann clearly explained he was sharing an allegation at the request of a client
  • Asking DOJ IG for evidence of the investigation on related topics that found no evidence Sussmann committed a crime
  • Discovering a similar tip that Sussmann had anonymously shared with DOJ IG on behalf of Joffe
  • Obtaining two James Baker phones, one of which Durham had been informed about years earlier
  • Subpoenaing Baker for exculpatory texts involving Sussmann he stored on the cloud

I suspect there is far more, including never checking DOJ records to learn that someone totally unrelated to the Democrats was pushing the NYT story more aggressively than Sussmann in the period in question, to say nothing of all the evidence showing that April Lorenzen’s suspicions that Trump’s campaign manager was money laundering payments from oligarchs close to Putin were absolutely correct.

As of Wednesday, Durham’s investigation entered its 36th month. The “professional embarassment” [sic] has been going on so long, it’s hard to even capture it all anymore (but here’s a more accessible version). What’s clear is that every time he finds exculpatory information he should have obtained before charging Sussmann, he doubles down on his conspiracy theories — an approach that’s bound to lead to more “professional embarassment” [sic] down the line.

Update: Clarified that according to the documents filed Friday, Durham only obtained the September 18, 2016 text on March 4. Also fixed my own “embarassing” [sic] typo in the table below.

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

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.

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