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On the Belated Education of John Durham

In a filing on September 2 in the Igor Danchenko case, John Durham confirmed that Danchenko had been a paid FBI source from March 2017 through October 2020.

In March 2017, the FBI signed the defendant up as a paid confidential human source of the FBI. The FBI terminated its source relationship with the defendant in October 2020.

I had heard this — though not with the sourcing such that I could publish. Apparently it was news to the frothers, who’ve been wailing about it ever since. Here’s Margot at the Federalist Faceplant, Jonathan Turley, and Chuck Ross at his new digs at the outlet that first hired Christopher Steele. Here’s the former President during an obsequious Hugh Hewitt interview.

Danchenko’s status was implicit in a lot of what is public. Even absent the frothers doing any kind of journalism, or even critical thinking, what did they think this reference in Danchenko’s motion to dismiss meant?

The government had unfettered access to Mr. Danchenko for approximately four years following his first interview in January 2017, and not once did any agent ever raise concerns about the now purportedly contradictory post-call emails.

As I hope to show in a follow-up, it actually makes a lot of sense.

Meanwhile, in Danchenko’s response to that filing, he revealed that information he provided to the FBI was used in a memorandum supporting the opening of an investigation into Charles Dolan, one of Durham’s star witnesses against Danchenko. (Note, this reference stops short of saying that the FBI did open an investigation into Dolan, just that someone proposed doing so.)

[T]he Special Counsel ignores, and conceals from this Court, that Mr. Danchenko was interviewed dozens of times and during the course of those interviews, particularly when asked specific questions about Dolan (which was not often), Mr. Danchenko (1) told the FBI about the Moscow trips with Dolan, (2) told the FBI that Steele knew of Dolan, (3) told the FBI that not only was Dolan doing work with Olga Galkina but that Mr. Danchenko himself had introduced them, and (4) told the FBI that Dolan had connections and relationships with high-level Kremlin officials, including President Putin’s personal spokesperson, Dmitry Peskov. Indeed, when agents drafted a December 2017 communication in support of opening an investigation into Dolan, they included the information Mr. Danchenko provided them as support for opening the investigation. 3 [emphasis original]

This may not be the last surprise investigation we hear about. Back in the original filing on September 2, Durham argued he should be able to talk about the 2008 allegation that led to a counterintelligence investigation into Danchenko, in part, because (Durham predicted bitterly) Danchenko will likely raise investigations into others, plural, who will “feature prominently at trial.”

[T]he Government expects the defense to introduce evidence of FBI investigations into other individuals who the Government anticipates will feature prominently at trial. Thus, the introduction of the defendant’s prior counterintelligence investigation – should the defense open the door – does not give rise to unfair prejudice that substantially outweighs its probative value.

Effectively, Durham is arguing that if Danchenko points out that Durham’s witnesses should not be considered reliable based on suspicions they were working for Russia’s interests, then he should be able to point out that Danchenko was once similarly suspected as well. Durham also wants to point out that Dolan twice asserted that Danchenko might be a Russian spook, but also allegedly always knew of his role at Orbis — assertions that, in tandem, could actually hurt Durham’s case, given the subsequent disclosure that Dolan was investigated himself. Durham may not understand that, yet.

One of these people whose investigation Danchenko will raise at trial is undoubtedly Sergei Millian, whose cultivation of George Papadopoulos in exactly the same time period Danchenko claims to have believed he spoke to Millian was one of a number of things the FBI investigated starting in 2016.

Danchenko’s response to Durham’s demand that he be allowed to raise the 11-year old counterintelligence investigation into Danchenko (besides providing a somewhat different timeline) was basically to say, “Bring it!” He intends to raise that counterintelligence investigation himself, he claims. Note: Durham doesn’t note, but it is clear from the January interviews of Danchenko, that FBI interviewers probed Danchenko about that prior investigation in their very first interviews in 2017.

As noted, I hope to return to all this dizzying spy-versus-spy shit in a follow-up. By then we’re likely to have several more disclosures, plus some details about the known investigation into Millian.

This all shows there was not a shred of prosecutorial discretion exercised before charging Danchenko. Even if Danchenko had done grievous harm to the US, no sane prosecutor would have charged this case with such easily impeached witnesses. Even Durham now seems to understand his materiality claims are flimsy. And yet, to prove a five year old false statements allegation, he has forced the government to declassify a whole range of sensitive material, including this detail about Dolan.

And that process apparently continues to be a struggle for Durham (as I predicted it would be).

Consider the timeline implied by Danchenko’s footnote about the Dolan revelation. Danchenko claims that he only just learned about the Dolan investigation opening memo.

3 The December communication is highly exculpatory with regard to the essential element of materiality and it is not clear why it was only produced 30 days from the start of trial. It was produced as Jencks material (also late by the terms of the Court’s Order requiring all Jencks to be produced by September 1) but is obviously Brady evidence. The defendant understands that the CIPA procedures may have slowed the production of certain categories of discovery but given the Indictment’s allegations about the materiality of Mr. Danchenko’s failure to attribute public information to Dolan, the production of this specific document should have been a priority for declassification.

When Danchenko says that Counterintelligence Information Procedures Act may have slowed the production of this, he’s suggesting (charitably) that someone at DOJ took a long time to release this information to Durham and that Durham had no control over that process. That’s another thing I predicted in this post about how CIPA would affect this case: “it can end up postponing the time when the defendant actually gets the evidence he will use at trial. So it generally sucks for defendants.”

The trial starts on October 11. This footnote suggests that Danchenko only received this information 30 days before trial, so around September 11, in the week before he filed this. Whenever it was disclosed, if he received it after the September 1 deadline, that would make it too late for the September 2 deadline for Danchenko’s own motion to dismiss. It would put it after Durham’s September 2 filing — the one bitching about how much of the trial Danchenko will use to focus on the investigations into witnesses, plural, against him — which means the plural reference may not have incorporated Dolan. Danchenko would have learned about this over a month after his own deadline to lay out what classified information he intended to use at trial, and at least a week after the August 30 CIPA conference, at which the two sides debated about what classified information Danchenko should be allowed to use at trial.

It also comes after a series of delays in Durham’s classified discovery. In May, I described what was publicly billed as the last one.

It’s that record that makes me so interested in Durham’s second bid to extend deadlines for classified discovery in the Igor Danchenko case.

After Danchenko argued he couldn’t be ready for an April 18 trial date, Durham proposed a March 29 deadline for prosecutors to meet classified discovery; that means Durham originally imagined he’d be done with classified discovery over six weeks ago. A week before that deadline, Durham asked for a six week delay — to what would have been Friday. Danchenko consented to the change and Judge Anthony Trenga granted it. Then on Monday, Durham asked for another extension, this time for another month.

When Durham asked for the first delay, he boasted they had provided Danchenko 60,000 unclassified documents and promised “a large volume” of classified discovery that week (that is, before the original deadline).

To date, the government has produced over 60,000 documents in unclassified discovery. A portion of these documents were originally marked “classified” and the government has worked with the appropriate declassification authorities to produce the documents in an unclassified format.

[snip]

Nevertheless, the government will produce a large volume of classified discovery this week

This more recent filing boasts of having provided just one thousand more unclassified documents and a mere 5,000 classified documents — for a case implicating two known FISA orders and several past and current counterintelligence investigations.

To date, the Government has produced to the defense over 5,000 documents in classified discovery and nearly 61,000 documents in unclassified discovery. The Government believes that the 5,000 classified documents produced to date represent the bulk of the classified discovery in this matter.

Danchenko waited six weeks and got almost nothing new.

But then on August 16, Durham filed a supplemental CIPA filing, suggesting there were more substitutions of classified information he wanted Judge Anthony Trenga to approve (a supplemental filing is not, by itself, unusual).

The point is, for months, Durham kept saying he’d have all the secrets delivered to Danchenko by his new deadline in June, promise, and then he dropped this bombshell on Danchenko just weeks before trial.

In the August 29 hearing on all this, Judge Trenga deferred most CIPA decisions until after Danchenko files a new CIPA filing on September 22 — so if any of this remains classified, Danchenko still has a chance, with just days notice, to argue he needs it at trial. They’ll fight about these issues again on September 29.

But given Durham’s performance in the Sussmann case, it’s not entirely clear these missed classified deadlines are DOJ’s fault. After all, Durham never even asked DOJ IG for relevant discovery in Sussmann’s (and therefore, we should assume, this) case until after Sussmann was charged. He didn’t investigate Rodney Joffe’s true relationship with the FBI and other agencies until Sussmann asked him to. He didn’t ask Jim Baker for his own iCloud content until early this year, after belatedly rediscovering Baker phones he had been told about years ago.

It’s not just his belated request for information from DOJ IG that we know to have affected this case too. Durham also has never interviewed George Papadopoulos — not before he went on a junket to Italy chasing Papadopoulos’ conspiracy theories, and not since. Thus, Durham never tested whether Millian’s cultivation of Papadopoulos undermines his evidence against Danchenko — and it does, obviously and materially.

Because of Durham’s obvious failures to take the most basic investigative steps before charging wild conspiracy theories, there are several possible explanations why he’s only providing Danchenko news of this Dolan memo a month before trial:

  1. Someone tried to hide this from Danchenko and ultimately was overridden. If that’s the explanation, it makes Andrew DeFilippis’ August departure from the team and, according to the NYT, DOJ, all the more interesting.
  2. DOJ delayed the time until they let Durham disclose this because of some sensitivity about the investigation. Recall that Dolan has ties to Putin spox Dmitri Peskov, who was sanctioned earlier this year, followed by his family.
  3. Durham didn’t know.

The last possibility — that Durham had no fucking clue that one of his star witnesses had been (at least considered) for investigation — is entirely plausible. It’s entirely consistent with what we saw in the Sussmann case, though worse even than that case in terms of timing.

Durham came into this investigation treating the conspiracy theories of Papadopoulos and Trump as credible. He seems to have believed, all along, that Sergei Millian was a genuinely aggrieved victim and not someone playing him, for at least a year, for a fool. He seems to have decided that he knew better than FBI’s experts about who had credibility about Russia and who didn’t. Along the way he forced the FBI to cut its ties with Joffe and — given the October 2020 cut-off of Danchenko’s ties to the FBI, probably Danchenko as well. He did all this with a lead prosecutor who believed it was problematic for DARPA to investigate the Guccifer 2.0 persona used by the GRU.

Durham walked into this investigation believing and parroting, without first testing, Trump’s claims that the Russian investigation was abusive. Based on those beliefs, he chased all manner of conspiracy theory in an attempt to allege pre-meditation and malice on the part of Hillary and everyone else involved with the dossier. His Sussmann prosecution ended in humiliating failure. This prosecution, win or lose, may do worse for Durham’s project: it may reveal unknown details about Russian efforts to tamper in 2016, efforts that harmed both Republicans and Democrats alike.

The Durham prosecutions have been shitshows and undoubtedly a disaster for those targeted. It’s not yet clear what will happen with the Danchenko trial (or even whether it will go to trial; given that CIPA issues still have to be resolved, there’s still a chance Durham will have to dismiss it rather than going to trial). Durham will still write a report that may try to resuscitate his conspiracy theories that were disproven in the Sussmann trial.

But thus far, the actual record of the Durham investigation shows that when actually bound by the rules of evidence, when actually obligated to dig through DOJ’s coffers to discover what DOJ learned as it tried to understand Russia’s intervention in 2016, reality looks nothing like the conspiracy theories Durham has chased for three years.

John Durham’s education process has been a painful process for all personally involved (except maybe Sergei Millian, gleefully dicking around from afar). But along the way he’s debunking many of the conspiracy theories he was hired to sustain.

Update: Chuck Ross is outraged that I suggested his boss had paid for Steele (and lying that I said Paul Singer paid for the dossier, which I pointedly did not say). It is true that the payment for Fusion GPS’ Trump project had shifted to Perkins Coie before Steele first sent Danchenko to Russia.

It’s also true that, based on length of project, Ross’ current boss paid for much of Nellie Ohr’s work on Trump’s ties to Russia, which includes some of Fusion’s early work on Paul Manafort and Felix Sater, and possibly early work on Millian (she continued to work on Millian until she left Fusion).

And since Chuck is so upset, I should point out that his former co-columnist, Oleg Deripaska, also reportedly paid for Steele’s work (in that case, research on Paul Manafort), though also through the cut-out of a law firm.

“Desperate at Best:” Igor Danchenko Starts Dismantling John Durham’s Case against Him

Since he was charged on November 3 last year, Igor Danchenko and his legal team have been virtually silent, mostly watching as John Durham’s team repeatedly failed to meet classified discovery dates.

But as we draw closer to the October 11 trial date, there has been more activity.

On August 1, there was a hilariously short status conference, all of four minutes, where Durham himself showed up. On August 21, Andrew DeFilippis — the most abusive of Durham’s prosecutors — dropped off the docket. Last week, Durham’s team asked for and got permission to file their motions in limine under seal — perhaps in an effort to avoid the inflammatory claims they made during the Michael Sussmann trial. Even the Classified Information Procedures Act (CIPA) conference, at which the two sides argued over how much classified information Danchenko needs at trial and whether the government can substitute information to make it less sensitive, seems to have ended inconclusively. Afterwards, Judge Anthony Trenga deferred decision until September 29, in part because the two sides are seemingly still trying to work things out amicably.

Before the hearing, the parties had successfully resolved all issues as to many of the listed documents and during that hearing, the parties agreed to engage in further discussions and efforts with respect to the remaining documents at issue, including Defendant’s willingness to withdraw his notice as to certain listed documents and the Government’s willingness to review the classified nature of certain listed documents and provide summaries with respect to other listed documents, following which Defendant will advise the Court concerning what further interest, if any, he has in using the listed documents at trial in light of the totality of the information provided to him by the Government.

In short, it has lacked all the pre-trial drama of the Sussmann case (perhaps because DeFilippis so badly overstepped, and still lost, in the Sussmann case).

But things may about to get interesting.

In a motion to dismiss the indictment filed Friday, Danchenko calls one of the government’s arguments (pertaining to the four Sergei Millian-related charges) “desperate at best.” The bases Danchenko challenges the indictment against him largely map some of the problems I laid out here: The questions FBI asked are not ones about the topics Durham has charged and Danchenko’s answers — he convincingly argues — were true.

For nearly a year, from January 2017 through November 2017, Mr. Danchenko sat through numerous voluntary FBI interviews and provided hours of truthful information to the government. Four years later, Special Counsel John Durham returned an indictment that alleges Mr. Danchenko knowingly made false statements about two matters when he: (1) acknowledged to the FBI that he talked with PR Executive-1 about issues “related” to the content of the Company Reports but stated that he did not talk about “specific” allegations contained in one of the reports; and (2) made four consistent statements to the FBI about his equivocal “belief” that an anonymous man who called him may have been Chamber President-1. These equivocal and ambiguous answers were prompted by fundamentally ambiguous questions, are literally true, and are immaterial as a matter of law.

Further, the government’s attempt here to stretch § 1001(a)(2) to a defendant’s equivocal and speculative statements about his subjective belief appears to be a first. And it would be a first for good reason. In order to meet its burden of proof in a case predicated on a subjective belief the government would need to prove not whether something did or did not happen but that the defendant did not truly subjectively believe what he said happened or did not happen. That would be a heavy burden in any case and it is an insurmountable one here.

Danchenko also argues (as Sussmann did) his claimed lies could not be material, in this case because Durham’s materiality claim is based in the influence of the Steele dossier, which (as Danchenko notes) he didn’t even know about, much less write.

Significantly, the indictment does not allege that Mr. Danchenko’s allegedly false statements themselves were material, but instead alleges only that the Company Reports, and the information contained in those reports, some of which allegedly came from Mr. Danchenko, were material.

In my series of posts on Danchenko’s case, I even missed some problems with the indictment. I had noted, for example, that Durham entirely misrepresented the question Danchenko was asked about Chuck Dolan on which Durham built one of the false statement charges. Durham claimed the FBI asked Danchenko if Dolan was a source for Danchenko. As I noted and as Danchenko does in this MTD, the question was actually whether Dolan was another sub-source directly for Christopher Steele.

But Danchenko notes two more problems with the charge.

First, he was asked whether Dolan and he “spoken” about the matters in the dossier; and to prove they did, Durham provides an email. 

Count One alleges that Mr. Danchenko made a false statement when “he denied to agents of the FBI that he had spoken with PR Executive-1 about any [specific] material contained in the Company Reports, when in truth and in fact, and as the defendant well knew, PR Executive-1 was the source for an allegation contained in a Company Report dated August 22, 2016 and was otherwise involved in the events and information described in the reports.”

[snip]

For “proof” of the alleged false statement under this charge, the indictment relies on an email exchange between PR Executive-1 and Mr. Danchenko on or about August 19-20, 2016.

More problematic still, in context, the question was about whether Danchenko and Dolan had spoken about allegations that remained in the dossier after Steele wrote them up, a conversation that (because neither had seen Steele’s reports in real time) could only have taken place after January 11, when BuzzFeed published the dossier.

Next, when asked whether Mr. Danchenko and PR Executive-1 ever “talked . . . about anything that showed up in the dossier [Company Reports],” Mr. Danchenko responded, “No. We talked about, you know, related issues perhaps but no, no, no, nothing specific.” Indictment at 18 (emphasis added). The most reasonable reading of this question is whether Mr. Danchenko and PR Executive-1 talked about the Company Reports themselves after they were published. Mr. Danchenko’s answer to this question was literally true because he never talked to PR Executive-1 about the specific allegations contained in the Company Reports themselves, but they did talk about issues “related” to the allegations later published in those reports. Moreover, the specific question posed to Mr. Danchenko was whether Mr. Danchenko and PR Executive-1 “talked” about anything in the dossier. That part of the question was not ambiguous and, importantly, FBI Agent1 never asked whether Mr. Danchenko and PR Executive-1 had ever exchanged emails about information that showed up in the dossier. For that reason alone, evidence that PR Executive-1 allegedly emailed Mr. Danchenko about information contained in the Reports does not make Mr. Danchenko’s answer false

In arguing that his comments about Dolan weren’t material, Danchenko later confirms something I suspected: the FBI wasn’t much interested in the dossier report at the heart of Durham’s purported smoking gun evidence.

[T]he government apparently never even asked Mr. Danchenko about the specific information regarding Campaign Manager-1 that was contained in the relevant Company Report.

Remember: Durham tried to make this exchange stand in for the pee tape report (it worked with the press, too!!). But he didn’t actually charge anything pertaining to the pee tape.

Danchenko similarly notes that the government never asked Danchenko about something else Durham treated as a smoking gun: Emails from after the time, in July 2016, when Danchenko failed to meet someone he believed to be Sergei Millian, one of which Danchenko turned over himself in his first meeting with the FBI.

Danchenko was never asked about that email because it did nothing to clarify whether Chamber President-1 had been the anonymous caller and because it was, in truth and in fact, ultimately immaterial to the FBI’s investigation.

And with regards the Millian questions, Danchenko notes that Durham doesn’t even argue his responses were material. He instead argues the dossier was (though I think Durham will rebut this one).

As an initial matter, the indictment itself fails to even allege that Mr. Danchenko’s statements to the FBI were material. Instead, the indictment argues that the Company Reports created by U.K. Person-1 prior to Mr. Danchenko’s statements to the FBI were material:

(1) the FBI’s investigation of the Trump Campaign relied in large part on the Company Reports to obtain FISA warrants on Advisor-1, (2) the FBI ultimately devoted substantial resources attempting to investigate and corroborate the allegations contained in the Company Reports, including the reliability of Danchenko’s sub-sources; and (3) the Company Reports, as well as information collected for the Reports by Danchenko, played a role in the FBI’s investigative decisions and in sworn representations that the FBI made to the Foreign Intelligence Surveillance Court throughout the relevant time period. Indictment at 4.

The materiality of the Company Reports, if any, is irrelevant to the materiality of the statements that Mr. Danchenko later made to the FBI and cannot provide a basis for a false statement charge against Mr. Danchenko. 7

He notes, as I did, that his answers in interviews after the first two Carter Page applications could not have been material to those applications.

Motions to dismiss rarely work, and this one is unlikely to either (though I think Danchenko’s argument with respect to the Dolan charge is particularly strong).

But if Durham adheres to the same sloppiness they did in the Sussmann case, the MTD may be useful to Danchenko for other reasons, besides framing the case for Judge Trenga. MTDs are supposed to rely entirely on what is charged in the indictment. But in addition to the observations that Danchenko was asked neither about the Dolan email Durham has made central to the indictment nor Danchenko’s own emails after the failed July 2016 meeting in NYC, Danchenko’s argument is also premised on there not being further evidence to substantiate what appears on the face of the indictment. For example, if Durham had testimony from Dolan about conversations with Danchenko about the pee tape, Danchenko might not have argued as he has. And Danchenko explicitly states that the indictment does not claim a July 2016 phone call Danchenko believed to be from Millian did not happen — a weakness in the indictment I raised several times.

Notably, the indictment does not allege that Mr. Danchenko did not receive an anonymous phone call in or about late July 2016. Instead, the indictment alleges only that Mr. Danchenko “never received such a phone call or information from any person he believed to be Chamber President-1[.]” The alleged false statement is that Danchenko did not truly believe that the anonymous caller was Chamber President-1. The indictment also alleges that Mr. Danchenko “never made any arrangements to meet Chamber President-1.” However, Mr. Danchenko never stated that he made such arrangements. Rather, he told the FBI that he arranged to meet the anonymous caller, but the anonymous caller never showed up for the meeting.

Nine months into discovery, Danchenko would know for a fact if Durham had conclusive proof that he didn’t get a call. He’d probably know the substance of Dolan’s testimony against him.

But in response to an attack on the shoddiness of this indictment, Durham may well — as he did with Sussmann — talk about what they would prove at trial, not what was in the indictment. If Durham has proof the call didn’t happen or thinks he can argue it, he may well reveal it in response. In the Sussmann case, anyway, Durham didn’t have the goods.

And along the way, Danchenko has nodded to where this will go if the indictment is not dismissed. Most notably, Danchenko asserts, as fact, that the FBI investigation into Millian long preceded his interviews.

Indeed, the FBI was already investigating Chamber President-1’s potential involvement with Russian interference efforts long before it had ever interviewed or even identified Mr. Danchenko.

The scope and results of the investigation into Millian is presumably one of the classified details that Danchenko has argued (correctly) he needs at trial, and if he has, then Trenga will be quite familiar with the substance of the evidence. If Danchenko does make an argument about the folly of relying on Millian as a key witness, then Danchenko’s trial may be even more of an indictment of the Durham investigation than Sussmann’s was.

In fact, early in this motion, Danchenko makes the contrast I keep making: between Mueller’s substantive results and Durham’s failure thus far to undermine that substance with shoddy false statements indictments.

Between January and November 2017, Mr. Danchenko not only answered every question to the best of his ability, even when asked to speculate, but also provided emails and contact information for other potential sources of information in the Reports. The investigation into the Reports was ultimately completed by Special Counsel Robert S. Mueller, III, in or about November 2017 and the Special Counsel’s office closed its entire investigation into possible Trump/Russia collusion in March 2019. Approximately thirty-four individuals were charged by Mueller’s office, including several for providing false statements to investigators. Mr. Danchenko was not among them. To the contrary, not only did investigators and government officials repeatedly represent that Mr. Danchenko had been honest and forthcoming in his interviews, but also resolved discrepancies between his recollection of events and that of others in Mr. Danchenko’s favor.

In or about April 2019, and just one month after Mueller had concluded his investigation, then President Trump’s Attorney General, William Barr, tapped John Durham, the U.S. Attorney for the District of Connecticut, to review the origins of the Russia investigation and efforts by law enforcement to investigate the Trump campaign. Just prior to the end of former President Trump’s term, Barr appointed Mr. Durham Special Counsel to carry out his investigation. Through the instant indictment, the Durham Special Counsel’s Office now claims to have uncovered false statements made by Mr. Danchenko that the previous special counsel did not, despite relying substantially on the same evidence, the same statements, and the same agents involved in the Mueller investigation.

While he doesn’t say it explicitly, in several places Danchenko makes clear that both Mueller and Michael Horowitz will affirm that, for years, Danchenko was consistently viewed as candid and his candid views were material to both those investigations.

And because Durham is now claiming otherwise, based off issues that weren’t even of interest to investigators, Durham risks putting himself on trial in October.

“Something Like This Has 0 Repercussions if You Mess Up:” John Durham Debunked the Alfa Bank Debunkery

As you know, John Durham failed spectacularly in trying to use a false statement charge against Michael Sussmann to cement a wild conspiracy theory against the Democrats.

But Durham did succeed in one thing (though you wouldn’t know it from some of the reporting from the trial): He utterly discredited the FBI investigation into the Alfa Bank allegations. Lead prosecutor Andrew DeFilippis even conceded as much in his closing argument.

Now, ladies and gentlemen, you have heard testimony about how the FBI handled this investigation. And, ladies and gentlemen, you’ve seen that the FBI didn’t necessarily do everything right here. They missed opportunities. They made mistakes. They even kept information from themselves.

That’s a fairly stunning concession from DeFilippis. After all, DeFilippis asked the guy who was responsible for some of the worst failures in the investigation, Scott Hellman, to be his expert witness, even though Hellman, by his own admission, only “kn[e]w the basics” of the DNS look-ups at the heart of the investigation. Along with Nate Batty, Hellman wrote an analysis of the Alfa Bank white paper in less than a day that:

  • Misstated the methodology behind the white paper
  • Blew off a reference to “global nonpublic DNS activity” that should have been a tip-off about the kinds of people behind the white paper
  • Falsely claimed that the anomaly had only started three weeks before the white paper when in fact it went back months
  • Asserted that there was no evidence of a hack even though a hack is one of the hypotheses presented in the white paper for the anomaly at Spectrum Health (Spectrum itself said the look-ups were the result of a misconfigured application)

Later testimony showed that, after speaking to Hellman and before even checking whois records, the Chicago-based agent who had a lead role in the investigation told a supervisor that “we’re leaning towards this being a false server.”

Within hours, Miami-based agents had confirmed with Cendyn that was false.

In spite of being so egregiously misled from the start by the guys in Cyber, agent Curtis Heide testified in cross-examination by Sussman’s attorney, Sean Berkowitz, that Hellman’s analysis was one of the four things that he believed supported a finding that the anomaly was not substantiated.

Q. Okay. I think near the end of your examination by Mr. Algor he questioned you about your basis for concluding that there was — that the allegations were unsubstantiated. And I think you gave four reasons. I’m going to run through them. If there’s more, that’s okay. Number one, you said the assessment done by Agents Hellman and Batty. Correct?

A. Yes.

Q. Two, the review of the logs. Correct?

A. Yes.

Q. Three, the Mandiant conclusion. Correct?

A. Yes.

Q. And four, the discussions with Spectrum Health about the TOR node. Correct?

A. Yes.

Q. Anything else that you can recall, sir, as to why it was that your investigation, or rather the investigation that you oversaw, suggested that the allegations were unsubstantiated?

A. The only other thing I can think of would be my training and experience with — relating to Russia and cyber investigations.

Q. And is there anything in particular about that that you recall today?

A. With respect to the white paper, it didn’t — when I read through it initially, I had several questions, and it didn’t appear to be consistent with Russian TTPs.

Another thing Heide relied on was the analysis from Mandiant, which Alfa Bank hired to investigate after NYT reached out. According to Franklin Foer’s story, Lichtblau reached out to Alfa on September 21, after Sussmann had given the FBI a heads up but before the FBI asked Lichtblau to hold the story on September 26, so in the window when the FBI had a chance — but failed — to protect the investigation.

One of the truly insane parts of this investigation, by the way — which was conducted entirely during the pre-election window when overt actions were prohibited — was that FBI big-footed to Cendyn and Listrak before sending NSLs to them. And by that point, Alfa Bank was calling the FBI.

A report that was not explained amid the primary resources from the investigation, but which was concluded by October 3, reveals that Chicago’s conclusion was almost entirely based on what Alfa told the FBI and Mandiant.

There was nothing in the case documentation until a 302 for a March 27, 2017 interview done in association with Alfa’s 2017 claims of spoofed DNS traffic (the interview may have been done with Kirkland and Ellis) that documented that, when Mandiant arrived the previous year to investigate, there were no logs to investigate.

Indeed, Heide testified on cross-examination that he had never learned of that fact. At all.

Q. And were you aware, while you were doing the investigation, that Mandiant, when it went to talk to AlfaBank to look into these allegations, did not have any historical data, that Alfa-Bank did not provide any historical data to Mandiant? Did you know that?

A. No

We now know that at a time when “Executives at the highest level of ALFA BANK leadership” had been hoping to “exonerate them[selves]” in 2017, Petr Aven had already started acting on specific directives from Vladimir Putin, including trying to open a back channel to Trump.

Plus, at least as far as Listrak could determine, while the marketing server had sent materials to Spectrum, it had never sent anything to Alfa Bank. The stated explanation that this was spam, then, conflicts with what FBI was seeing in the logs.

As for Spectrum — another of the reasons Heide pointed to — there’s no evidence of anyone reaching out to them (as compared to interactions with agents in Philadelphia and Miami who reached out to Listrak and Cendyn, respectively).

It’s true that the anomaly at Spectrum was not a Tor node (something that researchers came to understand themselves around the time Sussmann shared the allegations with the FBI). But it’s also true that, per Cendyn (which only looked back a month), the identified IP address at Spectrum was reaching out to the Trump server.

The IP address in question showed up in traffic that may be associated with Chinese hacking.

This then might have corroborated the hypothesis, from the white paper, of a hack of Spectrum, but by this point, Hellman had long before decided there was no evidence of a hack and this was, “just garbage.”

That leaves the logs, Heide’s fourth reason for believing FBI had debunked the Alfa Bank allegations. As far as the logs in question, former agent Allison Sands (who was assigned the investigation as a brand new case agent) told one of the tech people on September 26 that, “the end user [possibly Cendyn] is willing to provide logs but they dont have what we need.” Cendyn did share details of their own spam filter, which wouldn’t address the DNS look-ups themselves.

Then, on October 12, Sands told Heide that,

the ‘logs’ we got from Listrak were not network logs

they basically just confirm that trump org is one of their email clients, but they dont show destination email addresses or IPs or anything that we can use to[ ]determine any communications

[snip]

it was two excel spreadsheets

that was all we got

The FBI did get something. Sands testified that the FBI obtained upwards of 600,000 records (she described obtaining records from Cendyn, Listrak, and GoDaddy, but not Spectrum or Alfa Bank). But it’s not clear how useful those records really were. There’s a reference to the “take” elsewhere (see below), and redacted entries that look like intelligence targeting, plus a reference to an OGA partner reporting “no attempts.” (Here’s a reference to the OGA analysis that is redacted in other versions of the same email chain.) So it seems any useful logs came from another agency. But if that’s right, it would be targeted overseas.

In trial testimony, Sands described that her task was to prove that the allegation wasn’t true, not to explain what the anomaly was.

I knew still I had to rebuild from scratch and prove that this allegation wasn’t true.

In real time, too, she saw her task as disproving that emails had been shared, not even disproving that covert communication had occurred.

I have a few more logs to definitely prove there are no emails, and then Im putting it to bed

That’s a particularly problematic description given that the FBI had been told via other channels that there was some activity reflecting more than DNS look-ups.

That leaves, according to Heide’s judgement, just the observation that the DNS traffic was not consistent with known Russian techniques. Newbie agent Sands said something similar to Chris Trifiletti, Joffe’s handler and apparently sensitive for some other reasons. In response, he mused about whether Russia was “trying other things now that look more non traditional.”

We don’t know the answer to that, because the FBI didn’t try to figure it out.

Scott Hellman, the cyber agent who insisted at every opportunity he got that this was garbage was wrong about how long the anomaly had lasted, but he was right about one thing. On October 4, he advised newbie agent Sands that,

any chance you get to work something like this that truly has 0 repercussions if you mess it up ….take those opportunities

He did mess it up. It wasn’t just his own analysis; his repeated insistence that this was “garbage” appears to have made all the other investigators less careful, too. Six years later, we’re still no closer to understanding what happened.

Hellman was right about facing “zero repercussions if you mess it up.” By all appearances, he’s one of the few people who escaped any consequences for trying to investigate Russia in 2016. We know that several people — including Jim Comey, Andrew McCabe, Peter Strzok, and Bruce Ohr — were fired for their efforts to investigate Russia. We learned at the trial that Ryan Gaynor was threatened with criminal investigation for not answering questions the way Andrew DeFilippis wanted. Curtis Heide remains under FBI Inspection Division investigation for things he did in 2016. Rodney Joffe was discontinued as an FBI informant, according to him, at least, because he refused to cooperate with Durham’s investigation. Everyone who actually tried to investigate Russia in 2016 has faced adverse consequences.

But Hellman appears to have suffered none of those adverse consequences for fucking up an investigation into a still unexplained anomaly. On the contrary, he’s been promoted; he’s now a Supervisory Special Agent, leading a team of people who will, presumably, similarly blow off anomalies that might be politically inconvenient to investigate.

That’s the lesson of the Sussmann trial then: The only people who face zero consequences are the ones who fuck up.

Update: Corrected spelling of Hellman’s last name. Added Comey and McCabe to the list of those fired for investigating Russia. Removed Lisa Page–she quit before she was fired. In this podcast, Peter Strzok said that all FBI agents named in the DOJ IG Report are still under investigation.

Update: All the links to exhibits should be live now.

Update: Added detail that Listrak says Trump never sent marketing mail to Alfa Bank.

Timeline

I’ve put (what I believe are) all the exhibits about the FBI investigation below.

These times are surely not all correct. Durham consistently shared evidence without marking what time zone the evidence reflected. Importantly, some, but probably not all of the FBI Lync messages reflect UTC time; where I was fairly certain, I tried to reflect the time in ET, but in others, the timeline below doesn’t make sense (I’ll keep tweaking it). Some of the emails reflect the Chicago time zone.

September 19, 2:00PM: Sussmann Meeting

September 19: Priestap notes

September 19: Anderson notes

September 19, 3:00PM: Strzok accepts materials

September 19, 4:31PM: Gessford to Pientka: Moffa with info dropped off to Baker

September 19, 5:00PM: Sporre accepts materials

September 20, 9:30AM: Nate Batty to Jordan Smith: A/AD has two thumb drives.

September 20, 12:29PM: Batty accepts materials

September 20, 4:54PM: Batty and Hellman re analysis

September 21, 8:48AM: Batty to Hellman: at least look at the thumb drives [Batty Lync]

September 21, 4:25PM: Pientka Lync to Heide: People on 7th floor fired up about this server

September 21, 4:46PM: Batty to Heide and others: initial assessment

September 21, 1:10PM [time uncertain] Sands to Pape: Director level interest

September 21, 4:57PM: Norwat to Todd: Not a cyber matter

September 21, 5:06PM: Todd to Heide, cc Pientka

September 21, 5:52PM: Pientka to Heide: Nat [sic] Batty ha the thumb drives

September 22, 4:58AM: Hubiak to Heide: Let me know if you need anything from PH

September 22, 8:09AM: Todd to Marasco [noting thumb drives came from DNC, suggesting tie to debate]

September 22, 8:33AM: Pientka to Heide: Less than 24 hours to investigate, determine nexus, before losing traffic, watched by Comey

September 22, 9:30AM: Pientka to Moffa: Cyber, ugh. Read first email.

September 22, 9:59PM: Hellman to Heide: can you talk on link

September 22, 10:23AM: Marasco to Pientka: FYI

September 22, 11:13AM: Sands to Hubiak: Suspect email domain hosted on Listrak server — if you can help out with a knock and talk it would be great.

September 22, 11:14AM: Baker to Comey and others: Reporter is Lichtblau

September22, 11:34AM: Hubiak to Sands: Will start working on this now

September 22, 12:02PM: Batty to Wierzbicki: We think it’s a setup

September 22, 12:10PM: Heide to Pientka: We’re leaning to this being a false server.

September 22, 2:00PM: Pientka to Hubiak: Thanks for all your efforts. The CROSSFIRE HURRICANE Team greatly appreciates you running this to ground.

September 22, 4:22PM: Sands to all: open full investigation, summary of Hellman’s conclusions [OGA partner targeting Alfa?]

September 22, 5:33PM: Heide to Pientka: it’s a legit domain

September 22, 4:53PM: Sands to all: Cendyn agrees to cooperate, legit mail server

September 23, 8:26AM: Sands to Hubiak: Cendyn willing to cooperate and provide logs

September 23, 1:09PM: Heide to Sands: once we get that case opened, let’s cut a lead to the MM division requesting assisting with the interview, etc.

September 23, 1:53PM: Sands to others: Cendyn, as of this morning no longer resolves, picture of Barracuda spam filter

September 23, 4:04PM: Heide to Gaynor: Cyber’s review

September 23: EC Opening Memo [without backup]

September 26: Gaynor notes

September 26: Intelligence Memo

September 26, 8:02AM: Lichtblau to Kortan: You know what time we’re meeting?

September 26, 9:29AM: Kortan to Lichtblau: Baker’s tied up until later this afternoon.

September 26, 10:02AM: Lichtblau to Kortan: planning to bring Steve Myers

September 26, 10:15: Heide to Pientka: We want to interview the source of the whitepaper?

September 26, 12:09: Kortan to Baker and Priestap: some kind of recap later today?

September 26, 12:29: Sands to Hubiak: I’m writing a justification for an NSL to GoDaddy

September 26, 4:19PM: Heide to Shaw: apparently it’s going to hit the times?

September 26, 4:55PM: Heide to Hellman: We think it’s a bunk report still…

September 26, 5:02PM: Soo to Sands: searching current and historical lists of Tor exit nodes

September 26, 6:20PM: Sands to all, cc Heide: Spectrum hit at Cendyn, NSLs for Listrak, GoDaddy, redacted, Tor results

October 2, 12:02PM: Grasso to Wierzbicki: Two IP addresses

October 2, 7:02PM: Heide to Hellman: Check this out….

October 3: Tactical Product

October 3: Communications Exploitation

October 3, 1:48PM: Gaynor to Heide: Did white paper start with person of interest?

October 3, 2:49PM: Heide to Gaynor and Sands: Interview source

October 3, 3:00PM: Wierzbicki to Gaynor, cc Moffa: I agree with Heide, interview source

October 4: Kyle Steere to Wierzbicki and Sands: Documenting contents of thumb drive

October 4, 8:26AM: Sands to Hellman: 2 random IP addresses we got from tom grasso

October 4, 8:28AM: Sands to Hellman: we got a report on the Alfa Bank side that they also think this is nothing

October 4, 8:43AM: Hellman to Sands: any chance you get to work something like this that truly has 0 repercussions if you mess it up ….take those opportunities [alt version]

October 4, 10:00AM: Gaynor to Wierzbicki et al, cc Moffa: We need to know what we can learn from the logs [CT version]

October 4, 9:50PM: Grasso to Sands: SME who can help give context to the data we discussed

October 4, 11:08PM: Sands to Grasso: Sounds great.

October 5, 1:20PM: Trifiletti to Sands: i reminded him once more that he has never proceeded with anything when he wasnt absolutely sure

October 5, 1:33PM: Hosenball request for comment

October 5, 3:02PM: Strzok to Gaynor, forwarding Hosenball with Mediafire package

October 5, 4:08PM: Sands to Trifiletti: We need to speak to Dave dagon now too

October 5, 5:07PM: Sands to all: Update on CHS conversation — redacted explanation for why Alfa changed

October 5, 6:58PM: Grasso to Sands: I told Dagon that you would be able to protect his identity so that his name is not made public

October 6: Gaynor notes and drawing [alt version, more redacted]

October 6, 4:20PM: Materials to storage

October 6, 4:28PM: Christopher Trifiletti: CHS report (Spectrum: misconfigured server)

October 6, 4:54PM: Trifiletti to Sands: Actual text of 1023 submitted

October 6, 6:21PM: Wierzbicki to Gaynor: CHS debrief

October 7, 8:59AM: Sands to Trifiletti

October 12, 8:01AM: Sands to Heide: the “logs” we got from listrak were not network logs

October 13, 5:45PM: Gaynor to Wierzbicki: Mediafire (includes link)

October 19, 8:05AM: Sands to Heide: we spoke to mandiant and that we are talkingt o [sic] the tech people at the ISP today

October 19, 10:15AM: Gaynor to Wierzbicki: 2 IP addresses, Mediafire, Dagon author?

November 1, 3:09PM: Sands to Trifiletti: I have a few more logs to definitely prove there are no emails, and then Im putting it to bed

November 14, 2:52PM: Steere to Sands: [report on September 30 receipt of logs from Cendyn]

January 18, 2017: Closing Memo

March 27, 2017: Sands 302 with Alfa reports that Mandiant reported no historic data

July 24, 2017: Moffa to Priestap: Includes several other reports

July 24, 2017, 3:10PM: Sands accepts custody

There Was No Crime Predicating the Durham Investigation

Deep in a NYT piece that suggests but does not conclude that John Durham’s purpose is to feed conspiracy theories, Charlie Savage writes,

Mr. Barr’s mandate to Mr. Durham appears to have been to investigate a series of conspiracy theories.

That’s as close as any traditional media outlet has come to looking at the flimsy predication for Durham’s initial appointment.

Billy Barr, however, has never hidden his goal. In his memoir, he describes returning to government — with an understanding about the Russian investigation gleaned from the propaganda bubble of Fox News, not any firsthand access to the evidence — with a primary purpose of undermining the Russian investigation. He describes having to appoint Durham to investigate what he believed, again based off Fox propaganda, to be a bogus scandal.

I would soon make the difficult decision to go back into government in large part because I saw the way the President’s adversaries had enmeshed the Department of Justice in this phony scandal and were using it to hobble his administration. Once in office, it occupied much of my time for the first six months of my tenure. It was at the heart of my most controversial decisions. 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 shameless excuses for bypassing MLAT to grill foreigners about their role in the investigation, Barr describes “ha[ving] to run down” whether there was anything nefarious about the intelligence allies shared with the US — a rather glorified description for “chasing George Papadopoulos’ conspiracy theories around the globe.”

Durham’s investigation was up and running by the late spring. Pending IG Horowitz’s completion of his review of Crossfire Hurricane, I asked Durham to focus initially on any relevant activities by the CIA, NSA, or friendly foreign intelligence services. One of the more asinine aspects of media coverage about Durham’s investigation was all the heavy breathing during the summer as news seeped out that I had contacts with foreign governments on Durham’s behalf. Various journalists and commentators claimed this indicated that I was personally conducting the investigation and suggested there was something nefarious about my communicating with allied governments about Russiagate. [sic] This coverage was a good example of the kind of partisan nonsense that passes as journalism these days.

One of the questions that had to be run down was whether allied intelligence services had any role in Russiagate [sic] or had any relevant information. One question was whether US officials had asked foreign intelligence services to spy on Americans. Various theories of potential involvement by British, Australian, or Italian intelligence agencies had been raised over the preceding two years. Talking to our allies about these matters was an essential part of the investigation. It should not surprise anyone that a prosecutor cannot just show up on the door- step of a foreign intelligence agency and start asking questions. An introduction and explanation at more senior levels is required. So— gasp!—I contacted the relevant foreign ambassadors, who in turn put me in touch with an appropriate senior official in their country with authority to deal with such matters. These officials quite naturally wanted to hear from me directly about the contours of the investigation and how their information would be protected.

Much later, when Barr claimed that Durham would not lower DOJ standards just to obtain results, Barr again described an investigation launched to “try to get to the bottom of what happened” rather than investigate a potential crime.

I acknowledged that what had happened to President Trump in 2016 was abhorrent and should not happen again. I said that the Durham investigation was trying to get to the bottom of what happened but “cannot be, and it will not be, a tit-for-tat exercise.” I pledged that Durham would adhere to the department’s standards and would not lower them just to get results. I then added a point, meant to temper any expectation that the investigation would necessarily produce any further indictments:

[W]e have to bear in mind [what] the Supreme Court recently re- minded [us] in the “Bridgegate” case—there is a difference between an abuse of power and a federal crime. Not every abuse of power, no matter how outrageous, is necessarily a federal crime.

And then Durham lowered DOJ standards and charged two false statement cases for which he had (and has, in the case of Igor Danchenko) flimsy proof and for which, in the case of Michael Sussmann, he had not tested the defendant’s sworn explanation before charging. Durham further lowered DOJ standards by turning false statement cases into uncharged conspiracies he used to make wild unsubstantiated allegations about a broad network of others.

This entire three year process was launched with no evidence that a crime was committed, and it seems likely that only the Kevin Clinesmith prosecution, which DOJ Inspector General Michael Horowitz handed Durham months after he was appointed as a fait accompli and which could easily have been prosecuted by the DC US Attorney’s Office, provided an excuse to convene a grand jury to start digging in the coffers of Fusion GPS and Perkins Coie.

There was no crime. Durham was never investigating a suspected crime and then, as statutes of limitation started expiring, he hung a conspiracy theory on a claimed false statement for which he had no solid proof. Eight months into Durham repeating those conspiracy theories at every turn — conspiracy theories that Durham admitted would not amount to a crime in any case! — a jury told Durham he had inadequate proof a crime was committed and that the entire thing had been a waste of time and resources.

“The government had the job of proving beyond a reasonable doubt,” she said, declining to give her name. “We broke it down…as a jury. It didn’t pan out in the government’s favor.”

Asked if she thought the prosecution was worthwhile, the foreperson said: “Personally, I don’t think it should have been prosecuted because I think we have better time or resources to use or spend to other things that affect the nation as a whole than a possible lie to the FBI. We could spend that time more wisely.”

Compare that to the Russian investigation, which was started to figure out which Trump associate had advance knowledge of Russia’s criminal hack-and-leak operation and whether they had any criminal exposure in it. Here’s how Peter Strzok described it in his book:

[A]gents often don’t even know the subject of a counterintelligence investigation. They have a term for that: an unknown subject, or UNSUB, which they use when an activity is known but the specific person conducting that activity is not — for instance, when they are aware that Russia is working to undermine our electoral system in concert with a presidential campaign but don’t know exactly who at that campaign Russia might be coordinating with or how many people might be involved.

To understand the challenges of an UNSUB case, consider the following three hypothetical scenarios. In one, a Russian source tells his American handler that, while out drinking at an SVR reunion, he learned that a colleague had just been promoted after a breakthrough recruitment of an American intelligence officer in Bangkok. We don’t know the identity of the recruited American — he or she is an UNSUB. A second scenario: a man and a woman out for a morning run in Washington see a figure toss a package over the fence of the Russian embassy and speed off in a four-door maroon sedan. An UNSUB.

Or consider this third scenario: a young foreign policy adviser to an American presidential campaign boasts to one of our allies that the Russians have offered to help his candidate by releasing damaging information about that candidate’s chief political rival. Who actually received the offer of assistance from the Russians? An UNSUB.

[snip]

The FFG information about Papadopoulos presented us with a textbook UNSUB case. Who received the alleged offer of assistance from the Russians? Was it Papadopoulos? Perhaps, but not necessarily. We didn’t know about his contacts with Mifsud at the time — all we knew was that he had told the allied government that the Russians had dirt on Clinton and Obama and that they wanted to release it in a way that would help Trump.

The answer, by the way, was that at least two Trump associates had advance knowledge, George Papadopoulos and Roger Stone, and Stone shared his advance knowledge with Rick Gates, Paul Manafort, Steve Bannon, and Donald Trump, among others. By all appearances, DOJ was still investigating whether Stone had criminal exposure tied to his advance knowledge when Barr interfered in that investigation in February 2020, a fact that Barr hid until the day before the 2020 election.

With the Russian investigation, there was a crime: a hack by a hostile nation-state of a Presidential candidate, along with evidence that her opponent at least knew about the related leak campaign in advance. With the Durham investigation, there were only Fox News conspiracy theories and the certainty that Donald Trump shouldn’t be held accountable for encouraging Russia to hack his opponent.

The fact that this entire three year wild goose hunt was started without any predicating crime is all the more ridiculous given Durham’s repeated focus both on the predication of Crossfire Hurricane (in criticizing Horowitz’s report on Carter Page) and the Alfa Bank inquiry (during the Sussmann trial). John Durham, appointed to investigate conspiracy theories, deigns to lecture others about appropriate predication.

And that’s undoubtedly why, in the face of this humiliating result for Durham, Billy Barr is outright lying about what Durham’s uncharged conspiracy theories revealed about the predication of the Russian investigation.

He and his team did an exceptionally able job, both digging out very important facts and presenting a compelling case to the jury. And the fact that he … well, he did not succeed in getting a conviction from the DC jury, I think he accomplished something far more important, which is he brought out the truth in two important areas. First, I think he crystalized the central role played by the Hillary campaign in launching — as a dirty trick — the whole RussiaGate [sic] collusion [sic] narrative and fanning the flames of it, and second, I think, he exposed really dreadful behavior by the supervisors in the FBI, the senior ranks of the FBI, who knowingly used this information to start an investigation of Trump and then duped their own agents by lying to them and refusing to tell them what the real source of that information was.

That’s not what the trial showed, of course. Every witness who was asked about the centrality of the Alfa Bank allegations responded that there were so many other ties between Trump and Russia that the Alfa Bank allegations didn’t much stick out. Here’s how Robby Mook described it in questioning by Michael Bosworth.

[I]t was one of many pieces of information we had. And, in fact, every day, you know, Donald Trump was saying things about Putin and saying things about Russia. So this was a constituent piece of information among many pieces of information, and I don’t think we saw it as this silver bullet that was going to conclude the campaign and, you know, determine the outcome, no.

Q. There were a lot of Trump/Russia issues you were focused on?

A. Correct.

Q. And this was one of many?

A. Correct.

In response to questioning by Sean Berkowitz, Marc Elias traced the increased focus on Russia to Trump’s own request for Russia to hack Hillary.

Q. Let’s take a look — let me ask a different question. At some point in the summer of 2016, did Candidate Trump make any statements publicly about the hack?

A. Yes.

Q. What do you recall him saying and when?

A. There was a publication of emails, of DNC emails, in the days leading up to the Democratic National Convention. And it was in my opinion at the time clearly an effort by Russia to ruin what is the one clean shot that candidates get to talk to the American public. Right? The networks give you free coverage for your convention. And in the days before the convention, there was a major leak. And rather than doing what any decent human being might do and condemn it, Donald Trump said: I hope Russia is listening and, if so, will find the 30,000 Hillary Clinton emails that he believed existed and release them. That’s what I remember.

Q. Did you feel the campaign was under attack, sir?

A. We absolutely were under attack.

Q. And in connection with that, were there suggestions or possibilities at least in your mind and in the campaign’s mind that there could be a connection between Russia and Trump?

A. Again, this is, you know — this was public — Donald Trump — you know, the Republican Party historically has been very anti-Russia. Ronald Reagan was like the most anti-communist, the most anti-Soviet Union president.

And all of a sudden you had this guy who becomes the nominee; and they change the Russian National Committee platform to become pro-Russian and he has all these kind things to say about Putin. And then he makes this statement.

And in the meantime, he has hired, you know, Paul Manafort, who is, you know, I think had some ties to — I don’t recall anymore, but it was some pro-Russia thing in Ukraine.

So yeah. I thought that there were — I thought it was plausible. I didn’t know, but I thought it was an unusual set of circumstances and I thought it was plausible that Donald Trump had relations with — through his company with Russia.

Democrats didn’t gin up the focus on Trump’s ties to Russia, Trump’s own begging for more hacking did.

The trial also showed that this wasn’t an investigation into Trump. Rather, it was opened as an investigation into Kirkland & Ellis client Alfa Bank, which FBI believed had ties to Russian intelligence.

The investigation even considered whether Alfa Bank was victimizing Trump Organization.

Barr is similarly lying about whether supervisors revealed the source(s) of this information and what it was.

The source for the allegations was not Hillary, but researchers. And the trial presented repeated testimony that David Dagon’s role as one source of the allegations being shared with investigative agents. That detail was not hidden, but agents nevertheless never interviewed Dagon.

And even the purported tie to the Democrats was not well hidden. Indeed, the trial evidence shows that the FBI believed the DNC to be the source of the allegations, and that detail leaked down to various agents — including the two cyber agents, Nate Batty and Scott Hellman, whose shoddy analysis encouraged all other agents to dismiss the allegations — via various means.

Andrew DeFilippis made great efforts (efforts that lowered DOJ standards) to claim differently, but the evidence that key investigators assumed this was a DNC tip was fairly strong.

Three years after launching an investigation into conspiracy theories, Barr is left lying, claiming he found the result he set out to find three years ago. But the evidence — and the jury’s verdict — proves him wrong.

For years, Durham has been seeking proof that the predication of the Russian investigation was faulty. The only crime he has proven in the interim is that his own investigation was predicated on Fox News conspiracy theories.

“The Bell Can Never Be Unrung” … The Many Times Durham’s Prosecutors Flouted Judge Cooper’s Orders

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

The jury in the Michael Sussmann case will return to work this morning. They deliberated for some period on Friday (I’m not sure whether how long they deliberated has been reported). But the jury was unable to get questions answered or a verdict accepted after Judge Christopher Cooper left for the long holiday at 2:30PM. Even if the jury ends up finding Jim Baker’s testimony unreliable — which would likely be the quickest way to come to a verdict one way or another — I would expect it to take the jury a bit of time to sort through the centrality of his testimony to the charges.

So while we wait, I want to catalog how Durham’s team blew off just about every adverse decision Cooper made against them.

1. Delayed Request for Privileged Material

As I laid out in this post, Cooper ruled that a bunch of the emails over which the Democrats had originally claimed privilege were not. But because Durham waited so long to request a review of the privileged documents, Cooper ruled Durham could not use the emails at trial.

In cross-examination of Fusion’s tech person, Laura Seago, DeFilippis used the content of one of those emails that apparently discussed hiding her Fusion affiliation from Tea Leaves. (I laid out this exchange in this post.)

MR. DeFILIPPIS: So we have an issue with regard to Ms. Seago’s testimony. The government followed carefully Your Honor’s order with regard to the Fusion emails that were determined not to be privileged but that the government had moved on.

As Your Honor may recall, there was an email in there in which Ms. Seago talks very explicitly about seeking to approach someone associated with the Alfa-Bank matter and concealing her affiliation with Fusion in the email. When we asked her broadly whether she ever did that, she definitively said no when I, you know, revisited it with her. So it raises the prospect that she may be giving false testimony.

And so we were — you know, I considered trying to refresh her with that, but I didn’t understand that to be in line with Your Honor’s ruling. So the government is — we’d like to consider whether we should be — we’d like Your Honor to consider whether we should be able to at least recall her and refresh her with that document?

THE COURT: I don’t remember that question, but the subject matter was concealing Fusion or her identities in conversations with the press. If I recall correctly, that email related to “tea leaves,” correct?

After repeatedly asking Seago whether she had hidden her affiliation from the media, he asked about this email, catching Seago in a gotcha (though both Judge Cooper and Sussmann lawyer Sean Berkowitz took the question, as Seago seemed to, to relate to outreach to the press).

After setting his perjury trap, DeFilippis immediately tried to recall Seago onto the stand to delve into the content of this email. In this case, Judge Cooper ruled that DeFilippis had waived his opportunity to do so.

THE COURT: Well, I think the time to have asked the Court whether using the document to refresh was consistent with the order was before she was tendered and dismissed. So I think you waived your opportunity. All right? So we’re going to move on.

2. Non-Expert Expert Testimony

One of the most contentious arguments leading up to trial was Durham’s belated attempt to use an expert witness, ostensibly to discuss the technical complexities of DNS and Tor at the heart of the case (topics which prosecutors had witnesses explain over and over in as much detail as their nominal expert witness David Martin did), to address the accuracy of the research on the DNS anomaly.

This was an attempt to lead the jury to believe the anomaly was fabricated by Rodney Joffe and the researchers, in spite of the fact that Durham obtained plenty of evidence it was not.

On April 25, Judge Cooper ruled that Durham could have an expert discuss the technicalities of the data, but could only raise the accuracy if Sussmann did so himself.

Then on May 6, Durham attempted to expand that ruling by asking the expert to address materiality. In discussions the morning of opening arguments that focused entirely on the testimony of non-DNS expert Scott Hellman, not the nominal expert on DNS David Martin, Cooper prohibited Martin’s discussion of spoofing. (I describe these discussions here.)

Ironically, this was all supposed to be about visibility, the import of understanding how much DNS traffic a researcher could access to the quality of that researcher’s work. In Hellman’s own analysis — for which he fairly demonstrably did not review the data that Sussmann shared with the FBI very closely —  he showed no curiosity about the issue.

Searched “…global nonpublic DNS activity…” (unclear how this was done) and discovered there are (4) primary IP addresses that have resolved to the name “mail1.trump-email.com”. Two of these belong to DNS servers at Russian Alfa Bank. [my emphasis]

Nevertheless, DeFilippis used this nested set of witnesses as an opportunity to get Hellman — who admitted he had only a basic understanding of DNS, who didn’t review the data very closely, and who formed his initial conclusion in about a day — to comment on the methodology of the researchers.

Q. And what, if anything, did you conclude about whether you believed the authors of the paper or author of the paper was fairly and neutrally conducting an analysis? Did you have an opinion either way?

MR. BERKOWITZ: Objection, Your Honor.

THE COURT: Basis?

MR. BERKOWITZ: Objection on foundation. He asked him his opinion. He’s not qualified as an expert for that.

THE COURT: I’ll overrule it.

A. Sorry, can you please repeat the question?

Q. Sure. Did you draw a conclusion one way or the other as to whether the authors of this paper seemed to be applying a sound methodology or whether, to the contrary, they were trying to reach a particular result? Did you —

A. Based upon the conclusions they drew and the assumptions that they made, I did not feel like they were objective in the conclusions that they came to.

Q. And any particular reasons or support for that?

A. Just the assumption you would have to make was so far reaching, it didn’t — it just didn’t make any sense.

This is precisely the kind of opinion that Cooper had prohibited from an actual expert, admitted from someone whose own shoddy analysis became a recurrent theme for the defense.

3. Hearsay Clinton Tweet

DeFilippis’ efforts to get excluded information introduced was still more brazen with hearsay materials.

On May 7, Judge Cooper issued his initial ruling on which parts of Durham’s conspiracy theory could be admitted at trial. In general, Cooper permitted the introduction of Fusion GPS emails with the press about the Alfa Bank allegations, all of which post-date Sussmann’s alleged lie. He excluded all but one of the emails between Rodney Joffe and the researchers (more on the exception below).

Cooper equivocated wildly about a tweet sent out under Hillary Clinton’s name in response to the Franklin Foer story on the anomaly. In a hearing on April 27, he excluded it as hearsay.

THE COURT: All right. The Clinton Campaign Tweet, the Court will exclude that as hearsay. To the extent that the government believes that it offers some connection to the campaign and an attorney-client relationship, it’s likely duplicative of other evidence, so the Tweet will not come in.

In a pre-trial hearing on May 9 (after he had issued his order on motions in limine), Cooper explained he was revisiting the decision.

But I guess my question, as I have thought more about this, given the sort of two competing theories of the case and two narratives laid out in the Court’s ruling on the motion in limine, is whether it is relevant not for the truth, but to show the campaign’s connection to the alleged public relations effort to play stories regarding the Alfa-Bank data with the press and that therefore it is sort of context for the Government’s motive theory, that Mr. Sussmann sought to conceal that effort, as well as the campaign’s general connection to that effort.

After Sussmann lawyer Sean Berkowitz explained that the defense would not contest that the campaign wanted a story out there, Cooper opined that would make the tweet cumulative.

Well, if that’s going to be the case, and he’s not contesting that he was representing the campaign in connection with that effort, isn’t the tweet cumulative? It’s icing on the cake. Right?

DeFilippis claimed that without the tweet they would have no evidence about how the campaign worked the press on this issue (even though both Marc Elias, called as a government witness, and Robby Mook, who was originally listed as a government witness, eventually testified to the issue on the stand). After Judge Cooper said he would reserve his decision, Berkowitz noted that in fact, DeFilippis planned to use the tweet to claim the campaign wanted to go to the FBI when the testimony at trial (from both Elias and Mook) would establish that going to the FBI conflicted with the campaign’s goals.

[T]hey are offering the tweet for the truth of the matter, that that’s what the campaign desired and wanted and that it was a accumulation of the efforts.

Number one, it’s not the truth; and in fact, it’s the opposite of the truth. We expect there to be testimony from the campaign that, while they were interested in an article on this coming out, going to the FBI is something that was inconsistent with what they would have wanted before there was any press. And in fact, going to the FBI killed the press story, which was inconsistent with what the campaign would have wanted.

And so we think that a tweet in October after there’s an article about it is being offered to prove something inconsistent with what actually happened.

Then, after both Elias and Mook had testified that they had not sanctioned Sussmann going to the FBI, DeFilippis renewed his assault on Cooper’s initial exclusion, asking to introduce it through Mook’s knowledge that the campaign had tried to capitalize on the Foer story.

Having ruled in the past that the tweet was cumulative and highly prejudicial, Cooper nevertheless permitted DeFilippis to introduce the tweet if he could establish that Mook knew that the campaign tried to capitalize on the Foer story.

But Cooper set two rules: The government could not read from the tweet and could not introduce the part of the tweet that referenced the FBI investigation. (I explained what DeFilippis did at more length in this post.)

THE COURT: All right. Mr. DeFilippis, if you can lay a foundation that he had knowledge that a story had come out and that the campaign decided to issue the release in response to the story, I’ll let you admit the Tweet. However, the last paragraph, I agree with the defense, is substantially more prejudicial than it is probative because he has testified that had neither — he nor anyone at the campaign knew that Mr. Sussmann went to the FBI, no one authorized him to go to the FBI, and there’s been no other evidence admitted in the case that would suggest that that took place. And so this last paragraph, I think, would unfairly suggest to the jury, without any evidentiary foundation, that that was the case. All right?

MR. DeFILIPPIS: Your Honor, just two brief questions on that.

THE COURT: Okay.

MR. DeFILIPPIS: Can we — so can we use — depending on what he says about whether he was aware of the Tweet or the public statement, may we use it to refresh him?

THE COURT: Sure. Sure.

MR. DeFILIPPIS: Okay. And then, as to the last paragraph, could it be used for impeachment or refreshing purposes as well in terms of any dealings with the FBI?

THE COURT: You can use anything to refresh.

MR. DeFILIPPIS: Okay.

THE COURT: But we’re not going to publish it to the jury. We’re not going to read from it. And let’s see what he says. [my emphasis]

Having just been told not to read the tweet, especially not the part about the FBI investigation, DeFilippis proceeded to have Mook do just that.

The exhibit of the tweet that got sent to the jury had that paragraph redacted and that part of the transcript was also redacted. But, predictably, the press focused on little but the tweet, including the part that Cooper had explicitly forbidden from coming into evidence.

4. Hearsay about Joffe’s Request for Feedback

As noted above, Judge Cooper permitted just one email between Joffe and the researchers to come into evidence: a request for feedback Rodney Joffe made of the researches. But he did so based on Durham’s representation that either David Dagon or Manos Antonakakis — both of whom received the email — would testify.

Neither did.

During Sean Berkowitz’ cross-examination of Curtis Heide, one of the agents assigned to investigate the anomaly, Sussmann’s attorney had Heide explain how they knew David Dagon had a role in the research, but nevertheless never bothered to speak to him directly.

AUSA Jonathan Algor used that as an opportunity to ask to introduce not just the email that had been permitted, but also the response, claiming that by highlighting how shoddy the FBI investigation was, Berkowitz was opening the door to accuracy questions.

MR. ALGOR: So, Your Honor, there was a good amount of cross-examination regarding David Dagon.

THE COURT: Yes.

MR. ALGOR: And specifically asking about reaching out to him and also going into that he was the source of the white paper and what types of questions you would ask him and all. I think that this goes right to the red herring email.

THE COURT: I’m sorry, the what email?

MR. ALGOR: The red herring email, which you’ve previously excluded. It was Government Exhibit 124, when you would go through what type of questions. Now that Mr. Berkowitz has asked these, I would ask: What would you have asked having to provide data related to it? You know, Were there drafts of the white paper? Would Agent Heide ask who else he communicated with and what he believed regarding all of that data? And so I think he’s opened the door regarding that email.

Berkowitz noted that neither Sussmann nor Heide knew of the email.

MR. BERKOWITZ: Judge, this is not an email that was authored by Mr. Dagon. My cross-examination went directly to their investigation, who they spoke to, who they didn’t speak to. I asked him, he doesn’t know what Mr. Dagon said to Mr. Sussmann, if anything, and he said he didn’t. And I don’t think that opening the door to these communications where there’s no indication that it went to Mr. Sussmann is appropriate.

Cooper ruled that Algor could not introduce the email response.

That did not open the door to the excluded email about which — about what his and the other researchers’ views on the data or motivations may have been. In any case, the emails reflect — or the email reflects the views of Mr. Joffe, not Mr. Dagon, and those views came a full month and a half before the FBI was in a position to interview Mr. Dagon. They are, therefore, not relevant to Mr. Dagon’s views or motivations in any event.

So you can — you can certainly ask him, as you have in direct, what he would have done differently, what he would have questioned Mr. Dagon about, you know, to establish a materiality argument, but we’re not going to get into what the researchers’ motivations were. Okay?

Minutes later, Algor walked how Heide didn’t know any of the people on the email, and elicited from Heide the opinion that even asking the opinion might suggest people were trying to fabricate the data.

Q. Okay. And it — the “from” is Rodney Joffe. Do you see that?

A. Yes.

Q. And then the “to” is to Manos Antonakakis. Do you see that?

A. Yes.

Q. Do you know who that is?

A. I do not.

Q. And David Dagon, do you see that second name?

A. Yes.

Q. Do you know who David Dagon is?

A. No.

Q. You testified —

A. I’m sorry.

Q. — earlier —

A. I never met David Dagon, but I do know that he was the information that the source came forward and said he was potentially the author of the white paper.

Q. Okay. And that’s from a CHS that your team was contacted by?

A. Yes. Yes.

Q. And then, finally, April Lorenzen. Do you know who April Lorenzen is?

A. I do not.

[snip]

Q. Would you also want to know whether the authors of the white paper were trying to make it out so that it wasn’t — so that it couldn’t be understood if you weren’t a DNS expert?

A. That would be important.

Q. And if you could read that last line, please.

A. It says, “Do NOT spend more than a short while on this (if you spend more than an hour you have failed the assignment). Hopefully less.”

Q. And just going back to the line above, it says, without — it says, “NOT to be able to say this is, with out doubt, fact, but to merely be plausible,” would you want to understand that coming from the source of the white paper?

A. Yes.

The discussion of the bench conference immediately after Heide left the stand (Berkowitz generally refrained from objecting to these shenanigans in front of the jury) is entirely redacted. But as noted below, Judge Cooper ultimately excluded the entire email as hearsay introduced without proper foundation.

6. Hearsay Commentary on an Attorney

In the very same sidebar where Judge Cooper excluded the Heide testimony, he also explicitly prohibited prosecutors from tying a research request that Rodney Joffe had given a colleague, Jared Novick, to an attorney. The research request pertained to Richard Burt and Carter Page (among others) at a time both had established ties to Russia. Novick testified to Joffe’s displeasure with his work abilities and it’s quite clear the two don’t like each other.

MR. BERKOWITZ: So with respect, Judge, to that, it sounds as if outside the norm of what he normally does, that he thought it was likely for a political campaign. I’m not sure that his determination that he thought it was for an attorney is relevant. If they want to put in an attorney-client-privileged document that he saw, I think he can do that. But if he says I understood this was going to an attorney connected to the campaign, that’s hearsay. And it really doesn’t have anything to do with Mr. Sussmann, unless they can tie it up in any way.

THE COURT: Is there — is there any link to the defendant?

MR. ALGOR: Your Honor, just that he understood the tasking was related to opposition research regarding Trump; that he was told by Mr. Joffe — and his understanding was — that it was — it was someone tied to the Clinton campaign. But his understanding overall, full context and understanding, regardless of what Mr. Joffe said, was that this was going to someone tied to the campaign; and that also in receiving the document that had attorney-client privilege, that he understood it to be for an attorney.

THE COURT: How is that not hearsay if Mr. Joffe offered for the purpose of showing that, in fact, it was from —

MR. ALGOR: Because it’s a full understanding. It’s not getting into the actual specific statements that Mr. Joffe told him, but just the full context of what he was tasked to do and who the ultimate receiver was.

THE COURT: Okay.

MR. KEILTY: One second, Your Honor.

THE COURT: You can elicit his understanding that it was for a campaign, that it was unusual, that it may have had some political purpose. But I want you to stay away from any suggestion, which I don’t think has been established, that it was from Mr. Sussmann, including by suggesting it was from an attorney. Okay? [my enphasis]

Once again, minutes after Judge Cooper issued an order — this one ruling that Durham’s team could not elicit any reference to an attorney — Algor nevertheless got a former Joffe associate to do so.

Q. And, again, you — during cross-examination, Mr. Berkowitz asked you a series of questions regarding — regarding your work for Mr. Joffe on this project?

A. Uh-huh.

Q. And without getting into any specific conversations, based on the totality of your work, who was the intended audience for the project?

A. It was to go to an attorney with ties.

MR. BERKOWITZ: Objection, Your Honor.

THE COURT: Sustained.

That was the first time Berkowitz started getting really insistent about the pattern of Durham’s prosecutors completely ignoring explicit prohibitions from Cooper.

MR. BERKOWITZ: And — and just briefly, Your Honor, I don’t know when is an appropriate time to — to raise this. I want to express what — and I am not a — a hotheaded person —

THE COURT: You’re not a what?

MR. BERKOWITZ: I’m not a hotheaded person, but I have deep concern over the last line of questioning with the witness eliciting something that I think was clearly prohibited. And it’s consistent, in our view, with the line of questioning relative to Mr. Elias, [sic] relative to them reading the tweet that had been excluded. And, again, I know you don’t apportion bad faith, and I’m not asking you to do that at this point, but I just — I’m — I’m really concerned about the number of those issues that have come in and the prejudice to Mr. Sussmann. And I don’t know how best to deal with it, but I want to raise that to your attention.

Judge Cooper finally warns Durham to follow his orders

The Novick questioning finally stirred Cooper to try to do something about prosecutors flouting his orders. The first thing the next morning, he issued a both-sides warning about adhering to his rulings.

THE COURT: Okay. Good morning, everybody. All right. I just want to return briefly to the discussion we had at the end of the day yesterday.

You know, we’ve been here for two weeks. I have tried my best to let you folks try your cases as you see fit without undue intervention from the Court, as is my usual practice. But I obviously have set some evidentiary guardrails in the case that I expect both sides to follow, and I think you’ve done that for the most part.

Yesterday, however, I thought it was pretty clear — that I was pretty clear that in Mr. Novick’s testimony the government was not to suggest a link between the defendant and — on the one hand, and Mr. Joffe and the researchers’ data collection efforts on the other hand, or their views about the data. I didn’t think there was an evidentiary foundation for that.

I thought that the jury would only be able to speculate about any such connection, and I thought that any knowledge Mr. Novick had about that was necessarily hearsay from Mr. Joffe, who obviously is not here to testify. And I thought, at least, the final question in the redirect that was asked yesterday, nevertheless, attempted to establish such a link.

You know, I know that questions get asked rhetorically or argumentatively that are likely to draw an objection, and I will give lawyers some slack on that, but I expect both sides to comply with my evidentiary rulings.

There’s a lot of evidence in this case. There’s a lot for the jury to digest. They will have plenty of validly admitted evidence to pore over, and from here on out, including in arguments, I expect both sides to comply with both the letter and the spirit of the Court’s evidentiary rulings. So let’s keep it clean from here, okay?

MR. KEILTY: Yes, Your Honor.

Berkowitz used that exchange to request that Cooper exclude the entirety of the email that Algor used to invite Heide to suggest the data had been fabricated as the only way to limit the damage from prosecutors breaking Cooper’s rules.

MR. BERKOWITZ: Thank you very much for that, Your Honor. I have one other request related to it. And I don’t mean to go to the well, but there was an additional line of questioning yesterday related to Government Exhibit 132 with Agent Heide. I’m happy to provide a copy of it, if you would like.

THE COURT: Just remind me what it is.

MR. BERKOWITZ: It’s the document they sought to admit between Rodney Joffe, David Dagon, and Manos Antonakakis, “Is this a plausible explanation?”

THE COURT: Yes, I know that one. Actually, pass it up.

MR. BERKOWITZ: Your Honor, I went back and read the basis for your admitting the document, which was that it was not hearsay because there was a statement, “can you review,” and a question, “is this a plausible explanation?” I think we all contemplated at the time that both Mr. Dagon and Mr. Antonakakis were on the witness list and might testify.

You did allow it in. We didn’t object on the basis that you had previously ruled on it.

The manner in which it was used with the witness, I think, didn’t comply with the spirit of the Court’s ruling. There were questions asked related to “if you had spoken with Mr. Dagon, and you were aware of this communication” words to the effect of “would that have been concerning?”

And the witness — and I’m not suggesting that it was elicited intentionally, but the witness said “it would concern me because it appears as if it’s fabricated.”

Berkowitz noted that (like the Clinton tweet before it, though Berkowitz didn’t make the connection) that exchange got reported in the press.

That’s been reported in the press, even though you struck it from the record at our request.

Our remedy request, Your Honor, in light of that, and in light of the lack of probative value of that document with no connection to Mr. Sussmann, would be to strike the question and answering related to that document, to strike that document from the record, and not allow the prosecution team to use it with any defense witnesses, as well as not to use it in argument because it would have been stricken from the record.

We think the probative value of that document at this stage is minimal, and I expect that if it is published to the jury and used in any way, the jurors will associate it with the fabrication comment. And you worked real hard — and we have all worked really hard — to keep out the accuracy of the data. And the prejudicial nature of the document and the testimony associated with it is something that we think, while it can’t be remedied, and the bell can never be unrung, they should not be reminded and put before them. [my emphasis]

After having just been scolded, DeFilippis nevertheless made a bid to keep the document that might trigger the improperly elicited comment in as evidence.

Michael Keilty — the closest thing to a grown-up on this team — then tried to explain away Algor’s flouting of the rules with Novick.

MR. KEILTY: One last thing, Your Honor, just with respect to the final question to Mr. Novick yesterday. I think Your Honor’s aware that the government obviously did not intend for that — to elicit that answer. Instead, it intended to elicit an answer regarding Mr. Novick’s thoughts about whether this was involved with a political entity or political campaign. We didn’t have the opportunity or the benefit of conferring with Mr. Novick prior to Your Honor’s ruling. So we apologize for that, but we just wanted to put on the record some of the reasons why.

THE COURT: Well, you could have asked, “Without telling me who it came from, what was your understanding of the general nature of the source?” Right?

7. Hearsay on Top of Hearsay about Joffe’s Joke about a Job

But the Durham team’s defiance of Cooper didn’t stop there. While Cooper had permitted (with the proper foundation) a Joffe email that elicited feedback, Cooper had excluded an email — sent to someone never identified as a witness in this case — in which Joffe had joked about working in cybersecurity under a Clinton Administration. Nevertheless, as part of a long exchange with retired FBI Agent Tom Grasso in which DeFilippis asked Grasso materiality questions about stuff he heard about but had no firsthand knowledge of — each time presented as fact rather than as a conspiracy that Durham had explicitly been prohibited from presenting because they hadn’t charged it — Durham’s lead prosecutor raised the allegation he had been prohibited from raising.

Q. So when he came to you or at any time after that, did Mr. Joffe disclose to you whether he was working on this with representatives of the — of a political campaign?

A. He did not, no.

Q. And do you think you’d remember if he had told you at the time, you know, “I’m doing this, working with some folks who are working with the political campaign”?

A. I would think I would remember that, yes.

Q. So Mr. Joffe didn’t tell you — have you heard of a firm called Fusion GPS?

A. I have heard of Fusion GPS, yes, sir.

Q. Okay. And are you generally aware that they had — without getting into any specific work you did, are you generally aware that they had done some work for the Clinton Campaign at the time?

A. Yes, I —

Q. Okay.

A. Yes, I am aware of that, yes.

Q. So Mr. Joffe didn’t say he was working with Fusion GPS on this project?

A. Not that I recall, no.

Q. And Mr. Joffe never told you that, you know, this project had arisen in the context of opposition research that the Clinton Campaign was working on?

A. I do not recall that coming up, no.

Q. If Mr. Joffe had come to you and said, “I’m working with some investigators and some lawyers who are working for the Clinton Campaign, and, you know, that’s part of what I’m doing here with this information, can you please keep my name out of this,” would you have viewed that differently than you viewed the information as you got it?

[snip]

Q. Okay. And in the 2016 election period, you and Mr. Joffe, I imagine, never discussed politics or anything like that?

A. I don’t recall political discussions with him, no.

Q. Okay. And did you — so you certainly didn’t know that he was working with folks affiliated with a particular political party or campaign on what he brought to you, right?

A. I have no recollection of that.

Q. And any recollection of hearing or learning that he was expecting any kind of position in a future political administration?

A. I do not have a recollection of that other than — let me rephrase that. I have a recollection of that being reported in the media, but I don’t have a —

MR. BERKOWITZ: Objection, Your Honor.

THE COURT: Sustained. [my emphasis]

When Berkowitz raised this exchange at the end of the day, Judge Cooper noted that the several meetings they had with Grasso were ample basis for DeFilippis to understand that Grasso had no knowledge of those matters (or, for that matter, the topics covered by that entire line of questioning).

MR. BERKOWITZ: Judge, I regret that I’m going back to this same issue that we started the day with where  you admonished counsel to be careful of the guardrails related to evidentiary rulings. We had another situation n today that I think ran afoul of your comments. There was an email that was the subject of a motion related to Mr. Joffe communicating about a potential job. And in the cross-examination of Agent Grasso there was a question about, “He certainly didn’t know he was working with folks affiliated with a particular political party or campaign when he brought that to you. Right?”

Answer: “I have no recollection of that.” I didn’t object.

And then he followed up with: “And any recollection of hearing or learning that he was expecting any kind of position in a future political administration, knowing that there was nothing in the 3500 materials related to that and knowing an objection that was sustained could elicit a belief that he would do that?”

The witness answered, “I do not have a recollection of that other than — let me rephrase that. I have a recollection of that being reported in the media.”

I objected. Your Honor, they had met with this witness four times. They had pretried him twice. There was nothing in the 3500 material to suggest that he had any belief of that or any recollection or any connection.

And it’s another instance in a litany of instances that’s suggesting to the jury topics and issues that were the subject of your ruling. And I, you know, particularly  with the potential testimony of Mr. Sussmann coming up, I don’t know what else to say or to do, and we’ll consider filing a motion. But I wanted to raise the issue, and I take no joy in continuing to do this. But I cannot stand by while it continues to go on.

DeFilippis at first tried to excuse blowing off Cooper’s ruling by saying that the rules for cross-examination are different. But not if the witness was originally a witness for the prosecution.

THE COURT: Counsel?

MR. DeFILIPPIS: Yes, Your Honor. I guess we’re glad that Mr. Berkowitz raised it in the sense that, you know, typically the rules for cross-examination are different from evidence presented in a case in chief. And if there is a good-faith basis to ask — inquire as to knowledge of a matter, Your Honor, the government didn’t phrase the question tethered to any email or refer to any hearsay.

It was just inquiring as to knowledge and then inquiring as to whether that fact would be relevant to what  it is that Mr. Grasso’s interactions with Mr. Joffe were.

So if, again if the Court wants —-

THE COURT: Counsel, I don’t disagree with that, but you got to have a good faith basis for asking the question. Right? And if you prepped this guy and he’s never said anything about it, then there’s no good-faith basis. Okay? Him reading it in The New York Times or whatever is not a good-faith basis.

Then DeFilippis claimed that the question — which came after two earlier ones in which he asked Grasso questions about things he had “heard of” — was not deliberately intended to elicit such a response.

MR. DeFILIPPIS: Yeah, and to be clear, Your Honor, the portion where he said he read in the — we didn’t know that, and we wouldn’t have intentionally elicited something from a press account. So we will certainly be careful.

THE COURT: He was the defense’s witness here, but he was on your witness list. You should have known. If there was a basis to ask that question, you should have known what it was.

MR. DeFILIPPIS: Yeah. Understood, Your Honor.

Only after this exchange on prosecutors using someone who had originally been a government witness to invite speculation did Cooper exclude the entire email discussion involving Heide.

THE COURT: In that vein, let’s go back to GX-132 the admission of the email did not sit well with me yesterday, and it still does not sit well with me.

The Court ruled that the document was [sic] hearsay originally because it contained a question and a request, as opposed to an assertion. But the Court made clear in its order that, in order to be admitted, it would still need a proper foundation. The witness through which the document ultimately was admitted, albeit not without an objection from the defense, was Mr. Heide, who, as far as I could tell, had no personal knowledge whatsoever of the email. He didn’t know Mr. Joffe. He didn’t know the researchers who received it. He obviously was not a party to the email. So frankly, I don’t see how he could testify to that email in his personal knowledge as required by Rule 602.

So for that reason, I don’t think it was properly admitted through that witness. As I said yesterday, we had expected at least two of the researchers to testify based on who was on the government’s list. And I think it would have been properly admissible through those people to explain how the data came into being  as the Court ruled prior to trial. So I am going to exclude that email as well as any testimony by Mr. Heide describing his interpretation or views or thoughts on the email. Okay?

Conspiracy theory

This repeated defiance of Judge Cooper was treated as one after another evidentiary issue, usually prosecutors sneaking in hearsay with no basis. Ultimately, however, it was about a more basic ruling Judge Cooper had made, that this trial would not be about a conspiracy theory that Durham wanted to criminalize without charging.

As Berkowitz observed in his close,

This case is not about a giant political conspiracy theory. It’s about a short meeting.

[snip]

So the people who were part of this large political conspiracy theory are the people at HFA, Rodney Joffe, and Fusion GPS. They’re the people that are supposedly involved in this conspiracy.

There will be a lot said about this trial, no matter the verdict. But the serial defiance of the Durham prosecutors was a successful attempt to do something else that Judge Cooper had prohibited: to criminalize, under a conspiracy theory, perfectly legal behavior.

OTHER SUSSMANN TRIAL COVERAGE

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

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

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

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

John Durham’s Lies with Metadata

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

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

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

Jim Baker’s Tweet and the Recidivist Foreign Influence Cheater

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

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

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

Technical Exhibits, Michael Sussmann Trial

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

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

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

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

“and” / “or” : How Judge Cooper Rewrote the Michael Sussmann Indictment

 

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

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

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

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

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

The coming onslaught of Fusion documents

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

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

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

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

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

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

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

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

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

1:37PM: Fritsch responds,

the DNS stuff? not us at all

outside computer experts

we did put up an alfa memo unrelated to all this

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

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

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

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

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

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

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

1:44PM: Fritsch to Lichtblau:

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

[mediafire link] [my emphasis]

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

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

tuta sent me this guidance

[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

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

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

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

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

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

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

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

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

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

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

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

Sussmann will argue that keeping secrets facilitates national security interests.

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

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

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

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

A. Yes.

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

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

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

A. I recall that exact statement.

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

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

A. I do.

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

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

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

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

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

Q. Changed back to being a witness?

A. To a witness, yes.

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

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

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

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

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

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

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

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

Fun with missing Bates stamps

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

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

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

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

Calling the agent of a foreign agent to ask for comment

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

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

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

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

A. Yes.

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

A. Yes.

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

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

[snip]

A. I’m sorry?

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

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

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

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

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

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

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

A. Yes.

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

A. Yes.

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

A. Yes.

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

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

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

A. Yes.

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

A. Yes.

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

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

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

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

[snip]

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

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

[snip]

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

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

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

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

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

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

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

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

Agent Gaynor belatedly rediscovers the Mediafire package

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

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

He included Moffa and Joe Pientka on that email.

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

OTHER SUSSMANN TRIAL COVERAGE

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

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

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

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

John Durham’s Lies with Metadata

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

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

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

Jim Baker’s Tweet and the Recidivist Foreign Influence Cheater

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

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

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

Technical Exhibits, Michael Sussmann Trial

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

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

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

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

There’s accumulating evidence that at least some people — including some key decision-makers — believed the FBI believed that the Alfa Bank tip came from the DNC — and that Andrew DeFilippis has engaged in a lot of coaching to try to make that evidence go away.

The first time FBI Agent Ryan Gaynor testified to John Durham about the investigation into the Alfa Bank anomaly in October 2020, he told prosecutors that the DNC was the source of the allegation.

Q. Okay. So in your first meeting with the government, you — this is October of 2020, correct?

A. Yes.

Q. You told them multiple times that you believed that the Democratic National Committee was the source of the allegations of connections between Alfa-Bank and Russia, correct?

A. Correct, which was wrong.

Q. Okay. But you said that you thought the Democratic party itself was who provided the information, correct?

A. I did say that in the meeting.

That’s even what he has written down in a briefing document he kept in Fall 2016.

At the end of that October 2020 interview, prosecutors threatened Gaynor with prosecution.

His more recent testimony, starting for the first time on May 13, was that Sussmann was representing himself. The reason he now remembers that to be true goes to the heart of Durham’s materiality: it would have mattered if Sussmann was representing the DNC, so he must have been representing himself.

Q. Okay. I want to ask you, first, about testimony that you gave today where you said that when Mr. Moffa told you that Mr. Sussmann was a DNC attorney, you said, “I understood that to mean that he had been affiliated with the Democratic party but that he had come representing himself on the Alfa-Bank allegations.” Do you remember giving that testimony?

A. That was my take-away.

Q. And you gave that testimony that I just read?

A. Yes; that he was a DNC attorney, but that my take-away from that discussion was that he wasn’t there representing the DNC.

Q. When you were asked, “When Mr. Moffa said Mr. Sussmann was an attorney for the DNC, what impression did you come away with?” what did you understand that to mean? And your answer was: “I understood that to mean that he had been affiliated with the Democratic party, but that he had come representing himself,” right?

A. So he’s affiliated with the Democratic party because he was a DNC attorney.

Q. And your impression was he had come representing himself?

A. My take-away from that meeting, what I recall, is that I did not believe that he was there representing the DNC specifically because, had he been, that would have been information that would have impacted it.

This is a tautology: If Sussmann had been representing the DNC it would have mattered so it must be the case that Gaynor believed he was not representing the DNC. It also happens to be the central argument of DeFilippis’ materiality claim.

Meanwhile, Scott Hellman — Durham’s star cyber witness — received a text from his boss, Nate Batty (with whom he compared notes before his first interview with Durham), referring to the white paper as a “DNC report” on September 21, 2016, two days after Jim Baker received the materials.

Michael Sussmann lawyer Sean Berkowitz asked Hellman about that the other day. At first, Hellman expressed surprise about that text.

Q. All right. And then, with respect to Stranahan, he asks you and Nate to write a report about the — write a summary of the DNC report. Correct? That’s what it says?

A. That’s what it says in this chat, yes.

Q. And did you understand, sir, that the information had come from a DNC, meaning Democratic National Committee, source?

A. I did not understand that, no.

Q. Did you know what Nate Batty knew about it?

A. I don’t think he knew anything about it.

Q. Did you call up Tim and say, what a second. This is a DNC report? That’s political motivation.

A. No.

Q. Didn’t do anything or it didn’t occur to you?

A. The first time I saw this was two years ago when I was being interviewed by Mr. DeFilippis, and I don’t recall ever seeing it. I never had any recollection of this information coming from the DNC. I don’t remember DNC being a part of anything that we read or discussed.

Q. Okay. When you say, the first time you saw it was two years ago when you met with Mr. DeFilippis, that’s not accurate. Right? You saw it on September 21st, 2016. Correct?

A. It’s in there. I don’t have any memory of seeing it.

Later in Berkowitz’ cross-examination he returned to the text. He asked how it could be that a white paper from a DNC lawyer could be referred to as a DNC report.

Q. And although you were surprised to see it today, it appears that at least somebody, such as Mr. Batty was aware and you were aware that somebody was calling this white paper a DNC report. Correct?

A. I was not aware that anybody was calling it a DNC report, and I don’t believe Mr. Batty knew that either.

Q. But you saw the link message. Right?

A. I did see the link message, yes.

Berkowitz asked Hellman how it could be that he would see a reference to a DNC report and not take from that it was a DNC report. Hellman describes “the only explanation that … was discussed” — which is that it was a typo.

Q. What’s your explanation for it?

A. I have no recollection of seeing that link message. And there is — have absolutely no belief that either me or Agent Batty knew where that data was coming from, let alone that it was coming from DNC. The only explanation that popped or was discussed was that it could have been a typo and somebody was trying to refer to DNS instead of DNC.

Q. So you think it was a typo?

A. I don’t know.

Q. When you said the only one suggesting it — isn’t it true that it was Mr. DeFilippis that suggested to you that it might have been a typo recently?

A. That’s correct.

Q. Okay. You didn’t think that at the time. Right?

A. I did not. I had never seen it or had any memory of seeing it ever before it was put in front of me.

With some prodding, Hellman admitted that when he referred to “discussing explanations,” he meant doing so with Andrew DeFilippis. This exchange was, quite literally, Berkowitz eliciting Hellman to provide an answer that DeFilippis thought up — one necessary to sustain DeFilippis’ narrative — without, at first, admitting it was DeFilippis’ opinion of what the truth must be.

So after DeFilippis threatened Gaynor with prosecution, he came to remember something other than what the note, tying the white paper to DNC lawyer Michael Sussmann, that he used to “refresh his memory” said.

And when faced with the possibility, two years or maybe six after the fact, that Scott Hellman’s epically shitty analysis of the white paper could have been influenced by being told that it was a DNC white paper, Hellman offered up the explanation that DeFilippis offered him.

At least twice, then, under coaching from Durham’s lead prosecutor, key witnesses have come to believe something other than what the documentary evidence suggests.

The fact that DeFilippis has twice coached witnesses to deny any understanding at FBI that this was a DNC tip — whether it was a DNC tip or not — is really telling. That’s because DeFilippis has to try to pitch a nearly unsustainable position: how his single witness to Sussmann’s alleged crime, Jim Baker, can in 2016 have told Bill Priestap the following:

Q. I think you testified yesterday that by this time you were at least generally aware that Mr. Sussmann represented the DNC in connection with hacks; is that right?

A. That’s correct.

Q. And what, if anything, did you say to Mr. Priestap about that?

A. I think I told him like, okay, this is who Michael is. He’s represented the Democratic party in the Russian hack that we were also investigating and/or the Hillary Clinton Campaign. So just, again, to orient Bill to who Michael was. I mean, that’s a serious credential in terms of being a cyber security expert. And then to explain: But in this case he said he’s not appearing on behalf of them. In this case he’s coming in as a good citizen.

And then, in 2018, have told Jim Jordan the following:

Q. Mr. Jordan then says: “And he was representing a client when he brought this information to you or just out of the goodness of his heart? Someone gave it to him and he brought it to you?”

A. In that first interaction, I don’t remember him specifically saying that he was acting on behalf of a particular client.

Q. Did you know at the time that he was representing the DNC in the Clinton campaign?

A. I can’t remember. I had learned that at some point. I don’t, as I said — as I think I n said last time, I don’t specifically remember when I learned that — excuse me — so I don’t know that I had that in my head when he showed up in my office. I just can’t remember.

Q. Did you learn that shortly thereafter if you didn’t know it at the time?

And then testify last week this way.

Q. Okay. Number two, did you know on the September 19th, 2016 meeting that Mr. Sussmann had been representing Hillary For America’s campaign and the DNC in connection with the hack investigation. Did you know that on September 19th when he met with you?

A. Sitting here today, I think the answer is, yes, I did know that by that point in time.

Q. I’ve written down, “yes, DNC and HFA and hack”. I want to be really clear. You’re not saying that he said that in the meeting. correct?

A. Correct.

Q. And you’re not saying he said he was there on behalf of them? You’re just saying that in your mind you knew that he had been acting as a lawyer for those two entities in connection with the hack. Correct?

It’s not just a question of whether Baker will be a credible witness, though his wildly changing claims about the DNC are among the reasons why his testimony is not credible.

It’s also that Durham wants to point to Sussmann’s failure, a year earlier in a Congressional hearing, to offer up his ties with the Democrats as proof he was lying. But Durham is treating Baker’s failure to do so in the same situation as an innocent mistake. For his single witness to be credible, DeFilippis has to find a way to excuse Baker’s failure to offer that up in a far more direct question while pointing to Sussmann’s failure to offer it up as proof of guilt.

He has to do so to defend his prosecutorial decisions, too. Given how much stake DeFilippis has placed on Baker sharing with Priestap that he knew Sussmann represented the Democrats, it makes it far less credible that Baker didn’t knowingly lie to Jordan. Especially given the way Baker responded to a Berkowitz question, suggesting that perhaps he hadn’t been truthful with Jordan, but instead was “careful.”

Q. And when you gave voluntary information to Congress, you understood that you were under oath?

A. I don’t think I was under oath, but I understood that it’s a crime to make false statements to Congress.

Q. So you tried to be as careful as you could. Correct?

A. I tried to be as careful as I could in that environment, yes, sir.

Q. You tried to be as truthful as you could?

A. (No response)

Q. Tried to be as truthful as you could?

A. Yes, sir.

Sussmann’s team is going to argue that there are a long list of people against whom there is far better evidence for false statements or perjury charges than him, with the single difference being that the other people were willing to tell the storytale DeFilippis is using prosecutorial resources to tell. And the first person on that list — it makes me sick to my stomach to say — is Jim Baker.

Finally, it’s a matter of materiality. DeFilippis has to find a way for it to be the case that his single witness knew when he met with Sussmann that Sussmann was a DNC lawyer (because Bill Priestap’s notes reflect that), but didn’t view that to be material to everything that happened next.

And the only way to sustain that rickety narrative is to ensure that no one else — not even the people using documentary proof reflecting a belief that this was a DNC report to refresh faded memories — understood that the white paper came from the DNC.

Thus far, Sussmann’s cross-examination has elicited evidence that at least three witnesses changed their testimony after interviews with DeFilippis, adopting a “memory” that conflicts with the documentary record with regards to whether the FBI believed the white paper to be associated with the DNC.

OTHER SUSSMANN TRIAL COVERAGE

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

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

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

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

John Durham’s Lies with Metadata

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

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

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

Jim Baker’s Tweet and the Recidivist Foreign Influence Cheater

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

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

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

Technical Exhibits, Michael Sussmann Trial

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

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

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I’ve done a couple of posts showing how much fun one can have with Bates stamps — the serial numbers stamped onto every page of discovery that tells you a little bit about how any document was treated. In this post, for example, I showed that when John Durham accidentally-on-purpose released an exhibit with a bunch of Fusion GPS documents, he wasn’t doing so primarily to get them admitted at trial, because he had no intention of using most of them at trial. In this post, I showed that Durham hadn’t looked at key investigative documents that Michael Horowitz had relied upon in the Inspector General investigation into Crossfire Hurricane before Durham claimed he knew better than Horowitz about the predication of the Russian investigation. As of now, by the way, Horowitz is on the schedule to be a witness for Michael Sussmann. Ostensibly he’ll just talk about how valuable an anonymous tip that Sussmann once shared on behalf of Rodney Joffe proved to be, but who knows whether he’ll get a question about comments Durham has made about knowing better than Horowitz about things he hadn’t done the work to understand?

This post about Bates stamps won’t be so fun. It fills me with dread.

In this post and these two threads (Thursday nightFriday morning), I tried to summarize the Greek tragedy of Sussmann lawyer Sean Berkowitz’ cross-examination of Jim Baker. The short version of it is that these two men, men who used to be friends, are stuck in some nightmare Hunger Games created by a right wing mob led by Donald Trump. After years of being dragged through the mud because they dared to try to protect the United States from Russia in 2016, the survival of each depends on taking out the other. Jim Baker only avoids prosecution if he adheres obediently to John Durham’s internally contradictory script. Sussmann only gets his life back if he takes Baker out. While just Sussmann’s lawyer, Sean Berkowitz, and Jim Baker appear on this stage, it’s quite clear that Durham and DeFilippis set it.

Berkowitz started by quoting Baker’s explanation, from his earlier testimony, for why he had never searched his own files for texts with Sussmann.

Q. It’s your investigation, you said. I’m just here to answer the questions. Right? It’s Mr. DeFilippis’ investigation. You’re just here to answer the questions. Is what you said?

The context of that statement, from Andrew DeFilippis’ direct questioning of Baker, is crucial to understanding what follows.

The comment was Baker’s explanation to Durham’s lead prosecutor for why he only found a September 18, 2016 text from Michael Sussmann in March of 2022, almost six months after an entire indictment had been built around what Sussmann had said, instead, on September 19. As teed up by DeFilippis, Baker went looking for and found that text because Durham was just trying to comply with Jencks obligations, the requirement that prosecutors provide the prior statements of government witnesses in their possession to defendants.

Q. Are you familiar with the concept of Jencks materials or 3500 materials?

A. Yes.

[snip]

A. Correct. Yes. It’s an act of Congress that requires that — the reference to 3500 is a section in the U.S. Code.

Q. So did there come a time when you were asked by the Government to give any statements you might have on the subject of your testimony today?

A. Yes.

Q. And just tell us how that happened and then what you did in response.

A. There was a phone call with the Government. I think it was in March of this year. And it was to discuss discovery-related matters in part in the conversation. And I think it was Mr. Durham who asked me, you know: You need — we have an obligation to hand over discovery to the defense in this case. And can you go look for emails and other communications that you might have had with Mr. Sussmann?

And so in response to that, I — after we got off the phone, I immediately went to my phone and started looking through emails and then I looked for texts. And I did a search for texts with Michael’s last name; and texts came up, and I scrolled through them. They took a while to down — it was clear to me at least that they were downloading from the cloud.

And as I scrolled through and got to the beginning of my set of communications with Michael, this is the first one that I had.

Q. Now, had you — have you spoken to and met with the Government in connection with this case previously?

A. Yes.

Q. And had you previously located this text message here?

A. Not to the best of my recollection. No.

Q. What, if anything, was the reason for that?

A. It’s — I was not — I mean, the way I thought about it was that frankly, like, I am not out to get Michael. And this is not my investigation; this is your investigation. And so if you ask me a question, I answer it. If you ask me to look for something, I go look for it. But to the best of my recollection, nobody had asked me to go look for this material before that. [my emphasis]

Nobody had ever asked him to go look for evidence in his own possession related to the defendant against whom he was the key witness before, Baker testified. There’s a lot that’s unsaid — and batshit crazy — about this. One is that Durham only asked for communications directly with Sussmann, at least as Baker described events that happened just a few months ago.

Anyway, that was Durham’s explanation for how this text got shared with the government in March, six months after Durham had charged Sussmann for lying to hide what Durham imagines were Sussmann’s self-interests in a meeting with Baker on September 19, 2016. And by Baker’s telling, this belated request wasn’t just an example of DeFilippis trying to cover up his past incompetence (again). Durham was personally involved in this.

The only Bates stamp on this exhibit looks like this:

As you can see from Sussmann’s challenges to Durham’s exhibits submitted earlier this month, SCO-###### is one of two standard Bates stamps that Durham uses, the other being SC-########. Note both have a dash.

I knew as soon as I read the transcript that DeFilippis’ suggestion that this was about Jencks was intentionally misleading. Almost certainly, Durham found this text because they were still trying to comply with Sussmann’s demands, first made immediately after the indictment and then over and over after that, that prosecutors find  the communications about Sussmann’s role in killing a NYT story that he knew must exist. Besides, Jencks is an obligation to turn over statements about an investigation in the government’s possession. These texts weren’t, until Durham asked for them, in the government’s possession.

I mean, I guess if they were, and Durham had been sitting on them for six months, then Durham has even bigger problems, which I don’t rule out.

That’s the background to the way Sussmann’s lawyer began his cross-examination. After reminding Baker of this statement, Berkowitz then laid out that, while Baker had met over ten times with Durham’s team, he had declined to meet with Sussmann’s team. Berkowitz introduced a letter he had sent Baker’s lawyer on April 20, asking to meet.

That letter had no Bates stamp. Just the Exhibit number submitting it into evidence.

That suggests Durham’s team hadn’t seen this letter yet — though I’m sure nothing about the letter was a surprise to them. Baker has met with Durham’s team at least twice since Berkowitz sent this letter. Berkowitz asked if Baker knew about the letter but Baker dodged, saying only that he had delegated the decision about meeting with Sussmann’s team to his lawyer, Dan Levin.

Then Berkowitz asked whether Baker knew what it was like to be under criminal investigation.

A. Yes.

Q. That’s Mr. Durham?

A. Yes.

They talked for a while about an earlier Durham investigation, one that lasted from 2017 until 2019 (Berkowitz made Baker repeat the dates), into whether information about surveillance that Baker had shared with a journalist had, or had not, been an authorized disclosure. Berkowitz talked about what might have happened had Baker been charged.

Loss of his legal career.

Being prosecuted.

Berkowitz talked about how that investigation basically boiled down to several conflicting versions of a phone call that other witnesses had given Durham. Their word against Baker’s.

Q. So at least one of their recollections was inconsistent with yours. Right?

A. Yes. Yes.

Q. Memories are a difficult thing, aren’t they, sir?

A. That’s a difficult question to answer. That depends.

That’s how Berkowitz prefaced the first of a long list of things Baker had said in Michael Sussmann’s trial that conflicted with things he had said in the past, a list that carried into a second day (actually Baker’s third day on the stand). At this point, Berkowitz mentioned just one of them — Baker’s inconsistent testimony to the Inspector General in July 2019 — then interrupted.

He put up a text to Ben Wittes that Baker sent the day after Durham was appointed in this matter (so weeks before that particular interview with the IG). Wittes and Baker were talking about TV appearances, but Baker seemed preoccupied by the Durham appointment.

MR. BERKOWITZ: The date, Mr. Cleaves.

THE WITNESS: There we go. Okay. Sorry. May 14th, 2019. Thank you.

BY MR. BERKOWITZ:

Q. And you write: “It went well. It was about the Love piece which was good. CNN Tonight was okay but didn’t cover that at all. And now I get to be investigated for another year or two by John Durham. Lovely.” Correct?

A. Right.

Q. So you expected to be investigated further by Mr. Durham. Correct?

A. Yes, I did.

I’ll come back to the metadata on the text in just a bit.

The text makes it clear how, after being investigated by John Durham from 2017 to 2019, upon learning that Durham had just been appointed to investigate other matters implicating Baker, FBI’s former General Counsel immediately realized the investigation would continue for another two years.

Baker was wrong about the timing. Durham’s investigation just celebrated its third birthday.

This text frames all of Baker’s subsequent cooperation in that light — in Baker’s immediate recognition that the hell he had been going through for the previous two years would continue another two. Or three. Or longer.

This is brilliant lawyering on Berkowitz’s part. But remember as you read along that this is really a Hunger Games conflict staged by Trump and Bill Barr to exploit the US Justice system to create a never-ending supply of revenge theater that will incite the base and lead the press to do shitty reporting for easy clicks. This is an act of revenge targeting anyone who has ever dared to question Trump’s corruption. Or even, question the dangers of Russian interference in American democracy.

Back to Berkowitz. After showing Baker the text reflecting his immediate dread about being investigated by Durham for two more years, Berkowitz described how, the day after Durham’s appointment (actually it was about three days after, and so two days after this text), Baker had his lawyer reach out to Durham and offer to cooperate.

The letter is actually kind of funny. It shows Levin emailing and saying, “Jim asked me to reach out and let you know that he is available if you wish to interview him (he just spoke to the IG today).” Durham seems to have forwarded that email from one of his DOJ emails to another. I sort of wonder if there was a BCC, because Durham was in really close contact with Bill Barr’s office in these weeks. Durham then attempted to write back to Levin but at least as it appears (because he forwarded the email to himself rather than simply replying with a CC to his second DOJ account), Durham simply wrote to himself, responding into a void about meeting with “tour client” soon.

The Bates stamp for this exhibit looks like this:

DX-811 is the exhibit number for this trial (DX shows that it is one of Sussmann’s exhibits, as opposed to one of the government’s).

LW-06_0001 may reflect Sussmann’s Latham & Watkins’ lawyers sharing their proposed exhibits with Durham and Judge Cooper before the trial.

SCO-012114 is the regular Bates stamp associated with Durham’s production to Sussmann. It’s part of the same series (though much earlier in) the Bates stamp of the text that Baker turned over to Durham on March 4. SCO dash ######.

And SCO-3500U-4007 seems to be a Bates stamp specifically tied to Jencks discovery, which as noted above is called Rule 3500. That’s a really handy Bates stamp because it may indicate what Durham is treating as Jencks discovery. It appears in other direct statements made by Durham’s witnesses about this investigation. The calendar entry for the September 19, 2016 meeting between Baker and Sussmann, for example, has one of those 3500 stamps.

The text that, DeFilippis suggested, Durham had only asked for out of a diligent desire to comply with Jencks obligations doesn’t have one of these 3500 Bates stamps. Here it is again, SCO dash ######.

Having shown those three documents — Berkowitz’s request for a meeting with Baker, Baker’s text to Wittes dreading two more years of investigation by Durham, and Levin’s letter to Durham immediately after his appointment offering to come in for an interview — Berkowitz then resumed talking about inconsistencies in Baker’s testimony. He alluded, briefly, to a sworn statement Baker made to the grand jury under questioning from DeFilippis about the role that the General Counsel would have in FBI investigations. Then, after going through what Baker’s current testimony is, Berkowitz asked,

Q. The fact that Mr. Sussmann stated specifically in his message that he was acting on his own and not for a client did not factor heavily into your decision to meet with him. Correct?

This statement is inconsistent with the testimony Baker gave on the stand. Baker disavowed it.

A. I disagree with that.

So Berkowitz did what’s known as “refreshing” a witness’ memory, first by reading him what the 302 memorializing an FBI interview said.

Q. All right. Do you remember speaking with these folks in March of this year — by these folks to be, correct for the record, the prosecution team, Mr. DeFilippis?

A. In March of this year, I spoke to them, yes.

Q. Okay. And in March of this year, is it not true that you told them you do not believe that the fact that Sussmann stated specifically in his texts that he was acting on his own and not for a client factored heavily into your decision to meet with Michael Sussmann the very next day. You told them that?

A. Can you repeat the first part of that again? Sorry.

Q. “Baker does not believe that the fact that Sussmann stated specifically in his text message that he was acting on his own and not for a client factored heavily into his decision to meet with Sussmann the very next day”?

Baker, perhaps realizing that this interview from a few months ago conflicts with the testimony he has just given, had forgotten the question.

A. So, I’m sorry. What’s your question?

Q. You told them that on March 4th of 2022.

Baker didn’t recall giving that conflicting testimony.

A. Sitting here today, I don’t recall telling them that.

Berkowitz offered to show him the proof: a 302 interview report that, unlike the meeting between Baker and Sussmann on September 19, 2016, actually documents what was said.

Q. Refresh your recollection to see the 302 of your meeting, sir?

A. Sure. I haven’t seen that 302 before.

This is an opportunity for Berkowitz to explain, as he did when he used one to refresh Scott Hellman’s memory earlier in the week, what a 302 is and how FBI always creates 302s for fact witnesses.

Q. All right. And to orient the jury is when an agent is present and take notes. Correct?

A. It’s a report of an interview.

Q. And when a witness is interviewed by the FBI, an agent is there to take notes, if it’s a fact witness, and put it into a report. Correct?

A. Correct.

Q. You didn’t do that with Mr. Sussmann. Right?

A. Correct.

Berkowitz asked Baker if he remembered making the statement on March 4. DeFilippis’ single witness to Sussmann’s alleged crime professed, for the second time in short order, not to remember something that happened just a few months ago.

Q. Does it refresh your recollection that, on March 4th of 2022, you told the FBI and Mr. DeFilippis that you didn’t believe the fact that Mr. Sussmann stated specifically in his text he was acting on his own and not for a client factored heavily into your decision to meet with Mr. Sussmann the next day?

A. I don’t recall making that statement sitting here today.

Q. And it’s your testimony

MR. BERKOWITZ: You can take that down.

BY MR. BERKOWITZ: Q. It’s your testimony that that’s not accurate. Correct?

A. It’s my testimony today that, as I think about it today, that that’s not accurate.

More than just forgetting what he said a few months ago, Baker is showing the jury how, if his current belief conflicts with a past one shared under threat of false statements charges, he’ll simply say his past truth is not the truth. Not accurate.

Then Baker thinks of something: the significance of the date.

A. Can I ask you a question? When was that 302? What was the date? What meeting or what interview was that pertaining to?

Q. There’s a lot of different meetings and interviews here. This one was a couple of months ago on March 4th of 2022 —

A. Okay.

Q. — in connection with your trial preparation for today.

A. That was the date that I found the text, yes.

Q. Okay. Did that change your recollections at all or —

Baker explains that discovering a text in which Sussmann had stated that he wasn’t asking for the September 19, 2016 meeting “on behalf of any client,” but wanted to help the FBI had upset him, suggesting that might explain why he gave testimony a few months ago that substantially differs from the testimony he gave on the stand.

A. Well it’s just it was a very — it was a very difficult day for me and it was a bit upsetting.

As a reminder, this day was not just a stressful one for Baker. While I can’t think of an evidentiary basis by which Sussmann could share this with the jury, after Baker found a text that greatly complicated Durham’s prosecution, Durham accused Sussmann of hiding evidence, a stance he was forced to drop after Sussmann obtained a subpoena on his own to disprove that accusation.

Anyway, after noting that Baker met with Durham in spite of the stress of having found the text, Berkowitz asked Baker, for the first time in this Hunger Games conflict, whether he was aware that it was a crime to lie to the FBI.

A. I know very well it’s a crime to make a false statement to the FBI if that’s what you are getting at. Whether they say it or not, I know it.

At that point, Berkowitz pulled out a white board and starting writing down the things that Baker was committing to believing were the truth. He started with “the elephant in the room,” the memory that, if the jury finds it shaky, will sink this entire prosecution.

Q. Let’s start with the elephant in the room. Sitting here today, what is your testimony about what Mr. Sussmann told you relative to clients?

A. At the meeting in person on the 19th of September?

Q. Yes.

A. Okay. My testimony is that he said that he was not there on behalf of any particular client or words to that effect.

Q. Oh, now it’s “words to that effect.” Okay.

DeFilippis objected.

He didn’t want Berkowitz to write this down, I’m sure, because any juror taking notes is going to write down exactly what Berkowitz writes down, thereby solidifying the points in their memory. That’s how my memory works anyway: If I write it down, I’m far more likely to remember it. People think I have a really good memory, but in actuality, I just write a lot more than most people.

DiFilippis probably also didn’t want Berkowitz to write this down because it’ll isolate the key claims that Baker has made, thereby making it easier for jurors to compare his currently operative statements with what he had said in the past. DeFilippis wanted just the court reporter to write this down, in a transcript that won’t ever be shared with the jury.

MR. DeFILIPPIS: Objection, Your Honor, we do have a court reporter.

THE COURT: Overruled.

Berkowitz walked Baker through his currently operative story for the following:

  • What Sussmann said on September 19 about having a client
  • Whether Baker knew Sussmann worked for Hillary that day
  • How long the meeting was
  • What Sussmann said about a news organization ready to publish a story
  • Whether he identified any particular cyber experts
  • Whether those experts — Steve Bellovin, Matt Blaze, and Susan Landau — had vouched for the data
  • Whether Baker or Sussmann had taken notes
  • Whether he had refused to share Sussmann’s name when Scott Hellman and an FBI administrative person  named Jordan Kelly had come to obtain the materials, as Scott Hellman testified earlier in the week

That’s when they break for lunch. After lunch they go over Baker’s meeting with Bill Prietsap, his calls to get Eric Lichtblau’s name later in the week, and his foggy memory about the details from the the March 6, 2017 when the Alfa Bank allegation comes back up. I’m not sure whether this got written onto a white board or not (it sounds like Berkowitz had filled the white board before lunch).

Berkowitz then returned to the many times Baker had given conflicting testimony under oath, starting with his testimony before Congress.

Q. And when you gave voluntary information to Congress, you understood that you were under oath?

A. I don’t think I was under oath, but I understood that it’s a crime to make false statements to Congress.

Q. So you tried to be as careful as you could. Correct?

A. I tried to be as careful as I could in that environment, yes, sir.

Q. You tried to be as truthful as you could?

A. (No response)

Q. Tried to be as truthful as you could?

A. Yes, sir.

Berkowitz then went through and laid out how his prior testimony conflicts with what he’s just laid out on the whiteboard and after lunch.

Again, great lawyering, but the reason this is so dreadful is because this is precisely the kind of Hunger Games conflict that Reality TV show star Donald Trump uses to accrue power.

Berkowitz reminded Baker that his two appearances before Congress in October 2018 could be subject to false statement prosecution, his 2019 interview with the Inspector General (which Baker calls “the I.G. thing”), the two meetings with Durham at which Sussmann was raised in June 2020 (at such time as Trump and Barr were pressuring Durham for pre-election results). All potentially subject to prosecution as false statements or perjury.

Berkowitz ended the day by asking about threats, returning again to the possibility that any single one of these inconsistent statements — the most recent of which discussed thus far was on March 4, 2022, the statute of limitation for which would not expire until 2027 — could be charged as a false statement.

Q. Did they threaten you, sir, with anything — based on the fact that you had previously told folks under oath or subject to perjury — that you had said inconsistent things?

A. Mr. Durham and his team have never threatened me in any way.

Q. But you understood, sir, did you not, as a lawyer, that if you had said something that someone determined was false, under oath, or subject to perjury, you could be prosecuted. Correct?

I suspect that, by the end of the week, Berkowitz will argue that several of Durham’s witnesses have made more easily provable false statements — and more material — to the Special Counsel and others than Sussmann, but Durham is not choosing to prosecute the ones who tell the story he wants told, the story he chooses to refresh. Remember, there are at least three documents already introduced that Durham chose not to use to refresh Baker’s memory to something different than he delivered on the stand last week.

Which brings me back to DeFilippis’ excuse for finding a text that Sussmann was asking for but which Durham had never bothered to look for, and the inconsistent statement — that Sussmann’s notice that he was not there on behalf of any client had a big role in him taking the meeting — and Baker’s attribution of his now-inconsistent answer to stress.

Durham discovered on March 4 that Baker had relevant texts he never bothered to ask for in 16 months of investigation before he charged Sussmann. DeFilippis introduced that text by claiming prosecutors had discovered it by asking — John Durham asked himself, according to Baker — for Jencks material.

That text has no Bates stamp reflecting that it is Jencks material.

There’s something else about that text. It looks nothing like the text that Berkowitz entered describing Baker’s dread as he realized Durham was going to be investigating for two more years. Here’s the text Baker turned over in March, in response to Durham’s request for any communications involving Sussmann, but only communications involving Sussmann.

Here’s the text to Wittes expressing certainty that Durham would investigate him for two more years.

These are both iMessage texts! They look entirely different, though, because one is a screen cap turned over by Baker, and the other was obtained via legal process served on Apple (which is where all the extra metadata comes from).

More interesting still, however, is the Bates stamp on the set of texts involving Wittes. The Bates stamp on that text looks like this:

There’s the red stamp that, I’m guessing, is the stamp associated with a pre-trial proposed exhibit.

There’s the trial exhibit stamp, DX-810.

And then there’s a Bates stamp that does not match any Durham Bates stamp I’ve seen. SCO_######. Underscore, not dash.

Although this is a statement by a witness — the key witness!! — about this very investigation, there’s no Jencks stamp.

Mind you, the government only has to turn over statements about an investigation under Jencks if it is in their possession. So maybe this was never in their possession? If it was, it’d be a Jencks violation and Sussmann could ask to have the entirety of Baker’s testimony thrown out. All of it.

I have no idea where this text string comes from. Perhaps it came from an FBI Inspection Division investigation of all these same people; such material was among the stuff that Durham was permitted to turn over late. Perhaps, as Latham & Watkins did when Durham accused Sussmann of hiding this text, they got a subpoena and obtained it themselves. But it appears, at least, that it didn’t come from Durham.

If that’s right — if, even after discovering that Baker had texts that were absolutely critical to this investigation that he had never turned over, Durham didn’t choose to obtain these texts directly from Apple themselves, or at the very least ask Baker to turn over all texts pertinent to his investigation — there are several implications. First, it’s proof that Durham never ever subjected Baker, the guy who offered to cooperate on day three, to investigative scrutiny for his role in the events from September 19, 2016 that Durham has chosen to criminalize. Nor has Durham tested what might be behind any of Baker’s subsequent inconsistent statements. And when Durham discovered that Baker had had texts that were critical to his investigation almost three years into the investigation, his first response was to attempt to blame Sussmann. When that didn’t work, it appears, Durham didn’t put his prosecution at risk to see what other texts, texts that might be critical to Durham’s investigation but which didn’t involve communications between him and Sussmann, might be in Baker’s iCloud account.

This is brilliant lawyering. But it’s all just a part of Donald Trump’s Hunger Games, revenge theater targeting the people who questioned his complicit ties with Russia. And the wrong people are going to get hurt.

Other Sussmann trial coverage

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

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

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

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

John Durham’s Lies with Metadata

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

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

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

Jim Baker’s Tweet and the Recidivist Foreign Influence Cheater

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

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

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

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

If you follow coverage of the Michael Sussmann trial anywhere but here and Politico, you would believe that the big news from Friday is that former Hillary campaign manager Robby Mook testified that Hillary personally approved of sharing the Alfa Bank story. As part of that coverage, virtually everyone is also covering the tweet admitted where Hillary focused attention on the Franklin Foer story after it came out.

Here’s how CNN covered it.

Slate published a story on October 31, 2016, raising questions about the odd Trump-Alfa cyber links. After that story came out, Clinton tweeted about it, and posted a news release that said, “This secret hotline may be the key to unlocking the mystery of Trump’s ties to Russia.”

[snip]

Inside the courtroom, prosecutors showed the jury Clinton’s tweet about the Trump-Alfa article from Slate, and Mook read aloud portions of the campaign’s news release about the story. The release was from Jake Sullivan, who is currently President Joe Biden’s national security adviser.

We can only assume that federal authorities will now explore this direct connection between Trump and Russia as part of their existing probe into Russia’s meddling in our elections,” Sullivan said in the release on October 31, 2016, one week before Election Day.

The special counsel team has previously said that the Clinton campaign’s media blitz around the Slate story “is the very culmination of Mr. Sussmann’s work and strategy,” to allegedly gin up news coverage about the Trump-Alfa allegations and then get the FBI to start an investigation.

During the hearing, Twitter users recirculated Clinton’s old post. It caught the eye of billionaire Elon Musk, who has become increasingly vocal about political matters while he tries to buy Twitter, and recently announced his support for the Republican Party. He called the Trump-Alfa allegation “a Clinton campaign hoax” and claimed that Sussmann “created an elaborate hoax.” [my emphasis]

Obviously, the frothy right has made it the center of a frenzy to investigate Hillary herself. Surely it will also lead to an investigation of Jake Sullivan.

The thing is, legally, the part about investigating wasn’t supposed to come into the trial and will be something that, at the very least, Judge Christopher Cooper issues an instruction to the jury on.

This media frenzy was the predictable result of Andrew DeFilippis breaking Cooper’s rules. Again.

Here’s what the tweet, as sent to the jury will look like.

Here’s what the transcript looks like (though I don’t believe the transcript will be sent back to the jury).

Nevertheless, the jury heard it because — just minutes after being instructed not to include the language about the FBI investigation and not to read from the tweet!! — DeFilippis “accidentally” handed Robby Mook the unredacted copy to read, and coached him to continue to read the stuff that was redacted.

Q. And is there any reason why he would be the one to issue a statement like this?

A. You know, Jake’s a pretty highly regarded national security expert.

Q. Okay.

A. So it makes sense that he’s the voice on this.

Q. Could you just read the content of Mr. Sullivan’s statement.

A. Starting with “This could”?

Q. Yes.

A. “This could be the most direct link yet” —

Q. I’m sorry, start at the top.

A. “In response to a new report from Slate showing that the Trump Organization has a secret server registered to Trump Tower that has been covertly communicating with Russia, Hillary For America Senior Policy Advisor Jake Sullivan released the following statement Monday.” Keep going?

Q. Yes.

A. “This could be the most direct link yet between Donald Trump and Moscow. Computer scientists have apparently uncovered a covert server linking the Trump Organization to a Russian-based bank. “This secret hotline may be the key to unlocking the mystery of Trump’s ties to Russia. It certainly seems the Trump Organization felt it had something to hide, given that it apparently took steps to conceal the link when it was discovered by journalists. [my emphasis]

Here’s the bench conference that immediately preceded this exchange, in which DeFilippis made one last bid to enter the tweet into evidence. This language was redacted on first release of the transcript, but got unsealed overnight.

MR. DeFILIPPIS: Your Honor, could we have a quick call? (The following is a bench conference held outside the hearing of the jury)

MR. DeFILIPPIS: Your Honor, the government believes we’ve now laid an adequate foundation for probing into admissibility in connection with the Tweet and press statement that we’ve been talking about.

Mr. Mook has testified that the candidate herself approved a decision to send this to the media. The Tweet and press statement themselves refer to the FBI, and the defense admitted a Tweet during their examination of Mr. Baker.

We don’t think it’s, in light of this testimony, in any way prejudicial or cumulative because it addresses both the FBI issue and the issue of the decision to provide it to the media.

So we would ask that we be able to present the Tweet to Mr. Mook.

MR. BOSWORTH: Your Honor, we object. It remains the case that the — you know, Ms. Clinton is not on the witness stand. Jake Sullivan is not on the witness stand.

Jake Sullivan, weeks after Mr. Sussmann went to the FBI, issued a statement about the Slate article that was published that there’s no evidence that Mr. Sussmann had anything to do with. And that press statement goes into an area that goes beyond anything for which they’ve laid a foundation. And it’s highly prejudicial in that that statement doesn’t just say this is a serious story. It calls on the FBI to investigate.

That is incredibly prejudicial because it suggests that Mr. Sussmann was going to the campaign on their behalf, and there was literally zero evidence that the campaign knew Mr. Sussmann was going, including in Mr. Mook’s testimony today.

And second, that’s weeks after Mr. Sussmann went to the FBI. And the statement itself doesn’t say, “We’re so glad the FBI’s already investigating.” They’re steering far clear of any knowledge they could have even conceivably had about the investigation.

So we think Your Honor’s prior ruling stands.

THE COURT: All right. I want to review the statement again for the information that you say is extraneous.

Generally, as I indicated, I think, earlier this week, this does complete the story, and a lot of this is subject to cross. I think it can be explained that — just because it has Ms. Clinton’s name on it and is a statement of the campaign and it completes the narrative that the government has tried to advance, but I am concerned about any other extraneous information of the Tweet that may not be pertinent. So let me take a look at it. Can you complete your cross, or shall we just take a break?

MR. DeFILIPPIS: Maybe take a break, Your Honor. (This is the end of the bench conference)

THE COURT: All right. Ladies and gentlemen, we’re going to take about a five-minute break, so if you could just — to resolve an evidentiary issue. So if you could just retire to the deliberation room, we’ll call you when we’re ready. (Jury exits courtroom)

[snip]

THE WITNESS: Yes, Your Honor.

MR. BOSWORTH: Your Honor, do you want me to pass it up?

THE COURT: Yes, if you can pass it up. We have it back in chambers, but let me…

THE COURTROOM DEPUTY: Everyone can be seated.

THE COURT: Please be seated. And I’ll tell you what, just give me five minutes. (Recess taken)

THE COURT: All right. Mr. DeFilippis, if you can lay a foundation that he had knowledge that a story had come out and that the campaign decided to issue the release in response to the story, I’ll let you admit the Tweet. However, the last paragraph, I agree with the defense, is substantially more prejudicial than it is probative because he has testified that had neither — he nor anyone at the campaign knew that Mr. Sussmann went to the FBI, no one authorized him to go to the FBI, and there’s been no other evidence admitted in the case that would suggest that that took place. And so this last paragraph, I think, would unfairly suggest to the jury, without any evidentiary foundation, that that was the case. All right?

MR. DeFILIPPIS: Your Honor, just two brief questions on that.

THE COURT: Okay.

MR. DeFILIPPIS: Can we — so can we use — depending on what he says about whether he was aware of the Tweet or the public statement, may we use it to refresh him?

THE COURT: Sure. Sure.

MR. DeFILIPPIS: Okay. And then, as to the last paragraph, could it be used for impeachment or refreshing purposes as well in terms of any dealings with the FBI?

THE COURT: You can use anything to refresh.

MR. DeFILIPPIS: Okay.

THE COURT: But we’re not going to publish it to the jury. We’re not going to read from it. And let’s see what he says.

DeFilippis wasn’t even supposed to read it!! But he ignored Cooper’s orders, issued minutes earlier, and predictably set off a firestorm.

After Mook left the stand, Judge Cooper acknowledged that the FBI paragraph shouldn’t have come in. He acknowledged that DeFilippis had used it as hearsay to admit it for the truth. Sussmann’s lawyer Michael Bosworth graciously pretended DeFilippis’ actions were not intentional.

THE COURT: All right. Please be seated. Just for the record, in addition to the 403 grounds for the last paragraph of the press statement, it’s also hearsay from Mr. Sullivan for the truth — or whether it’s being offered for the truth, certainly it’s likely to be received for the truth that the campaign wished the FBI to investigate or had some hand in the FBI investigation. So that section of the Tweet, consistent with the Court’s prior ruling, is inadmissible as hearsay as well.

MR. BERKOWITZ: Thank you, Your Honor. Just briefly?

THE COURT: Yes.

MR. BERKOWITZ: Mr. DeFilippis, I’m sure, didn’t intend it, but he gave him the unredacted Tweet to perhaps refresh his recollection. He read probably two sentences, and we would ask that you strike from the record his reading of that. I know that —

THE COURT: The Court will strike those two sentences, and we’ll specify it for the court reporter. And obviously let’s make sure that the redacted copy is included in the exhibits that go to the jury.

MR. DeFILIPPIS: Yes, we will, Your Honor.

But DeFilippis did more than “accidentally” give Mook the unredacted tweet! He also had him read it, which he had just been told not to do.

Worse still, the record shows that neither Mook nor Hillary would have known about this tweet. It surely had high level press involvement, but this was presented as the words of Hillary when it was explicitly anything but.

And this is precisely what Sussmann’s team warned would happen when, in a pretrial hearing, Cooper floated reversing his past decision to exclude the tweet.

So the more I sort of dug into each side’s sort of theories of relevance over the weekend as we finalized the last motions in limine ruling, which you obviously got, I thought I might revisit one issue. And that is the Clinton campaign press release from October, late October, I guess.

I provisionally ruled that that would not be admissible based on the submissions that you all made. And I ruled from the bench without really getting any argument on that issue. And my previous understanding was that it was being offered to show a direct attorney-client relationship between Mr. Sussmann and the campaign as well as potentially the effect on the listener under a hearsay exception.

But I guess my question, as I have thought more about this, given the sort of two competing theories of the case and two narratives laid out in the Court’s ruling on the motion in limine, is whether it is relevant not for the truth, but to show the campaign’s connection to the alleged public relations effort to play stories regarding the Alfa-Bank data with the press and that therefore it of context for the Government’s motive theory, that Mr. Sussmann sought to conceal that effort, as well campaign’s general connection to that effort.

So, Mr. Berkowitz, please address that if want.

MR. BERKOWITZ: Yes, your Honor. Thank you for raising the issue.

THE COURT: Yes. And I will also say that I’ve never introduced a tweet at a trial. And there are certain evidentiary issues with what a tweet is and who it is sent by. I would like to avoid those issues. But there is a separate press release, which I’m not quite sure I appreciated when I ruled from the bench a week and a half ago.

MR. BERKOWITZ: So let me try and address the contextualized issue, your Honor.

With respect to the campaign’s involvement or PR connection to the Alfa-Bank story, we expect there will be testimony or other evidence that ties that together. And I know that in your motion in limine ruling, you assumed without saying we conceded it that we were taking the position that Mr. Sussmann was not acting on behalf of Hillary for America.

We’re not going to be taking the position that he was not counsel for Hillary for America in connection with various efforts and communications; and we will obviously address that at trial. But I don’t know that the connection between the campaign and PR efforts, opposition research to get the story of Alfa-Bank out there is going to be something that’s in dispute.

And I would ask that you, as you think about this issue, which is somewhat inflammatory because it gets the candidate — it’s a month after; it’s a different newspaper issue; and there’s no connection between Mr. Sussmann and that tweet to suggest that he was involved in that or was otherwise doing it.

And so as what else is coming is more prejudicial relates to a number it’s evaluated, I think contextualizing into evidence, I think that that tweet than it would be probative. It also of other issues that you note from an evidentiary standpoint.

So we don’t think that the tweet itself for all the reasons in our motion, but also because it’s not — it would be cumulative, I think, of the other evidence related to whether there was a connection at the time about that. Without getting into too much work product or issues, there were updates to the campaign related to, for example, the possibility of a New York Times story coming out. And I think that that will be what’s relevant as opposed to the larger issue of, you know, whether they continue to try and press that after the meeting.

THE COURT: I appreciate that. But there were a couple double negatives in there.

MR. BERKOWITZ: Please correct me or ask me to refocus it.

THE COURT: Did I understand you to say that the defense will not be contesting that he was representing the campaign in connection with some of the media outreach that was going on?

MR. BERKOWITZ: Correct.

THE COURT: Mr. DeFilippis?

MR. DeFILIPPIS: Yes, your Honor. Let me just briefly say that I think it’s plain from the contents of the tweet and the press statements themselves that the Government is not offering those for their truth. So I think your Honor, it seems, agrees that they’re not hearsay. It’s more of a relevance/probity thing.

And while I don’t have it in front of me, your Honor, when you read the contents both of the press statement and the tweet, the thrust of them is the very culmination of Mr. Sussmann’s work and strategy, which was twofold: First, the strategy, as the Government will argue at trial, was to create news stories about this issue, about the Alfa-Bank issue; and second, it was to get law enforcement to investigate it; and perhaps third, your Honor, to get the press to report on the fact that law enforcement was investigating it.

And we see all three things there reflected in the tweet and in the press statement. It says something to the effect of, Donald Trump has a secret channel with Russia and the FBI should look into this or we trust that the FBI is looking into this.

That is highly probative, your Honor, because it is, as I said, the culmination of everything the Defendant was trying to do as he billed work to the campaign.

And we expect to call at least currently, your Honor, the campaign manager of the Hillary Clinton campaign, who will say this was a conscious decision. After being briefed specifically on Mr. Sussmann’s efforts, the campaign made a conscious decision, authorized at the very highest levels of the campaign, to share the Alfa-Bank allegations with the media.

THE COURT: Well, if that’s going to be the case, and he’s not contesting that he was representing the campaign in connection with that effort, isn’t the tweet cumulative? It’s icing on the cake. Right?

MR. DeFILIPPIS: I don’t think so, your Honor, only because we will not have, your Honor — we will not call reporters to the stand who will in fact confirm that the campaign spoke to the media. We will not — we will have essentially the testimony of a campaign official.
And then the only way to show, your Honor, how the campaign actually capitalized on what it was that Mr. Sussmann did in the media is to — and it’s a very limited — as your Honor knows, it’s not long. It’s not particularly or really at all prejudicial, your Honor, because the contents of it are essentially just the candidate and one of her advisors adopting the allegation that Mr. Sussmann has been working on.

So, your Honor, it’s really just context and the pure result of everything that Mr. Sussmann and the campaign were working on in this regard. And it’s not inflammatory. It simply states the allegation and it states that the campaign hopes the FBI’s looking into it.
We —

THE COURT: I’ll reserve on it. Let’s see how the evidence comes in. And just don’t open on it.

MR. DeFILIPPIS: Okay. Thank you, your Honor.

MR. BERKOWITZ: Your Honor, I was also asking permission to approach, but I guess I don’t need to here.

Mr. DeFilippis in describing the relevance focused on the portion of the tweet that was different than you or I were talking about, that calling on the FBI to investigate. That in and of itself in our — from our perspective suggests that they are offering the tweet for the truth of the matter, that that’s what the campaign desired and wanted and that it was a accumulation of the efforts.

Number one, it’s not the truth; and in fact, it’s the opposite of the truth. We expect there to be testimony from the campaign that, while they were interested in an article on this coming out, going to the FBI is something that was inconsistent with what they would have wanted before there was any press. And in fact, going to the FBI killed the press story, which was inconsistent with what the campaign would have wanted.

And so we think that a tweet in October after there’s an article about it is being offered to prove something inconsistent with what actually happened.

This jury is not sequestered. It would take a great deal of diligence to avoid the shit storm this set off.

There is no way to undo the damage that this will do to the trial. And it happened because DeFilippis ignored not one but two parts of Cooper’s order — first, that the reference to the FBI be redacted, and second, that it not be read.

And it’s clear from the record that this has been the plan all along, just like using a self-described non-expert at DNS to offer an opinion about DNS. The truth is it’s Durham’s team, not Hillary, that had the plan to set off an October Surprise by manipulating the press all along.

Worse still, while there are legal measures to take, even then that would not undo the damage. Anything Cooper does to correct his own poor decision and DeFilippis’ worse flouting of Cooper’s orders would be blamed on him being an Obama appointment, not the law, and only further fuel the firestorm.

Even as the record sits right now, I believe there’s a great deal from which the jury would find reasonable doubt to convict. Given where I think Sussmann’s team is going to go from here, I think chances are good they get an acquittal.

But the Durham team just succeeded in a desperate bid to win this case using hearsay. Because hearsay is all they’ve got.

Jim Baker’s Tweet and the Recidivist Foreign Influence Cheater

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

In my post on what prosecutors need to prove to win their case against Michael Sussmann, I noted they had to prove that:

  • Sussmann said the lie that they claim he did: that he affirmatively said he was not sharing the Alfa Bank allegations on behalf of a client
  • He said it on September 19, and not just on September 18
  • It was an intentional lie
  • It was material, meaning the alleged lie mattered to the operation of the FBI

I think the government has, in some ways, done best presenting their materiality arguments (but then, that’s the lowest bar). But even there, exhibits submitted at trial show that at least two of the key decision-makers on investigative issues had received a text referencing that this was a DNC report; Andrew DeFilippis speculated with one of the witnesses who received the text that it was a typo for DNS. And it appears, in multiple situations, people just assumed that Sussmann was at the FBI on behalf of the Hillary campaign, and took it into account. That said, Berkowitz got Baker — who was a key player in the Stellar Wind story that Eric Lichtblau held through an election in 2004 — to explain how important, from a national security perspective, it can be to hold certain stories.

And as I’ll show, Sussmann’s team may have something very special in store to make their materiality argument.

Regarding whether his statement that he was not there “on behalf of any client,” I think Sussmann has made a very good case that he meant his comment to Jim Baker on September 18 that he wanted to help the FBI. Both Marc Elias and Robbie Mook testified that sharing advance warning of a story they wanted to come out was the last they would have wanted or approved, because Jim Comey had done so much to damage the campaign. Particularly if Eric Lichtblau testifies, Sussmann will have a powerful story about all the damage that going to the FBI did to the campaign.

As to the other questions, they all go to Baker’s credibility on the stand.

I can’t say how the jury reacted, but I think prosecutors really didn’t do what they needed to do to prove that Sussmann repeated his comment about not meeting with Baker on behalf of any client and, then, hiding it when he helped the FBI kill the story later in the week. And Berkowitz did even more to show the changing nature of Baker’s statements about the meeting over time.

I did two long twitter threads on Sean Berkowitz’ cross-examination of Baker (Thursday night, Friday morning). I think Berkowitz achieved the following:

  • Used Baker to define “lie” as having an intention to deceive.
  • Made it clear that Baker reconstructed his understanding of his face-to-face meeting with Sussmann with the help of a chain of custody log that an FBI agent referring to the process called “doctored.” That’s going to provide Sussmann’s team a great metaphor to explain what Baker’s memory consists of.
  • Got Baker to suggest his memory of what happened on September 19 amounted to “words to that effect” of what has been charged.
  • Got Baker to agree that there’s at least a 25% chance Sussmann told him he had a client on September 21, which would be proof he wasn’t hiding a client.
  • Foregrounded the possibility that Baker could be prosecuted for his many inconsistent statements, including some that were made in 2018 and some that were made months ago. The statute of limitations on Baker’s inconsistent statements won’t expire until 2027.
  • Showed that Baker’s testimony on the stand was inconsistent with things he told Durham even in recent months; and Baker continues to not remember key details both of what happened on September 19 but also much more recently.
  • Showed that Baker’s reconstructed memory shifts at times from “that matter” (collecting the data) to the meeting itself; this is a reconstructed memory that can only come from prosecutors.
  • Demonstrated that Durham withheld at least three documents that could have “refreshed” Baker’s memory to believing Sussmann had told him he had a client.
  • Placed Durham in the room for some of the key sessions — including in Summer 2020, when Barr and Trump were pressuring Durham to show some results in time for the election — when Baker’s memory was “refreshed.”

Those threads were hard to write and I’m sure even more painful for people who are friends of one or both men to read. The story Berkowitz told was how, through the relentless grind of Republican blowhards and the Trump DOJ’s politicized investigations, Baker came to “remember” testimony that could put his friend, Sussmann, someone who had tried to get him a job when he was at a really bad point in his life, in prison.

There was no way out for Sussmann except to destroy his friend. And Berkowitz at least made it seem that Baker had believed there was no way out for him except to “refresh” his memory to match what Durham wanted.

I suspect it likely that Sussmann’s team will point out that Durham is choosing to prosecute just the people whose story doesn’t match the one that Durham wants to tell. It’s not just Baker whose testimony to Durham is inconsistent with provable facts, but Durham is not prosecuting any of the witnesses who are saying what he wants them to.

With all that as background I want to point to something subtle that I suspect will become part of that theme. Ostensibly to address materiality — Baker’s belief, one he shared with Congress in 2018 but contradicted under coaching by Durham on the stand — that if you have a national security tip you need to feel free to come to the FBI. Baker tweeted it out on June 13, 2019.

This would have been posted weeks after Durham was appointed, which — Baker testified — led Baker to expect he’d be under criminal investigation again.

Q. And you, sir, were aware that Mr. Baker was — I mean, Mr. Durham was reappointed as special counsel, correct, in or around 2019?

A. For this matter?

Q. yes.

A. yes.

Q. And when that happened, you were concerned, were you not?

A. Concerned about what?

Q. That Mr. Durham might come and investigate you more?

A. I wasn’t concerned about it. I expected it.

Q. All right. You expected to be investigated further by Mr. Durham. Correct?

A. Correct.

After having laid out how Baker had been investigated by Durham as part of a leak investigation for years, Berkowitz even introduced a text that Baker sent Ben Wittes the day after Durham was appointed saying, “now I get to be investigated for another year or two by John Durham. Lovely.”

But the tweet about going to the FBI wasn’t about Durham and it wasn’t random.

Rather, it was a response to something Trump said in an interview with George Stephanopoulos, between the time Mueller wrapped up his investigation, in part, of Trump’s request, “Russia, are you listening,” in 2016 and the time Trump asked Volodymyr Zelensky, “but first, I would like you to do us a favor.” On the same day Baker encouraged people to go to the FBI if they had evidence, ABC posted an interview in which Trump said,

“It’s not an interference, they have information — I think I’d take it,” Trump said. “If I thought there was something wrong, I’d go maybe to the FBI — if I thought there was something wrong. But when somebody comes up with oppo research, right, they come up with oppo research, ‘oh let’s call the FBI.’ The FBI doesn’t have enough agents to take care of it. When you go and talk, honestly, to congressman, they all do it, they always have, and that’s the way it is. It’s called oppo research.”

I’m not precisely sure how Sussmann’s team is going to use this tweet, beyond the materiality question, materiality about precisely this situation, whether someone should share information with the FBI after their opponent solicited help from a hostile foreign government.

But it sure seems to be evidence of more than just materiality.