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

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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

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

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

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

You could call Mr. Joffe.

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

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

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

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

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

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

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

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

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

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

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

THE COURT: Mr. Joffe or Mr. Sussmann?

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

THE COURT: How are they members of this cabal?

[snip]

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

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

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

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

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

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

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

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

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

John Durham’s Irregular Now-Sealed Timeline

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

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

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

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

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

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

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

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

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

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

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

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

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

October 5 emails:

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

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

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

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

1:37PM: Fritsch responds,

the DNS stuff? not us at all

outside computer experts

we did put up an alfa memo unrelated to all this

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

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

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

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

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

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

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

1:44PM: Fritsch to Lichtblau:

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

[mediafire link] [my emphasis]

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

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

tuta sent me this guidance

[snip]

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

2:32PM: Fritsch to Lichtblau:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Russia that wanted to put a lot of money into developments in Russia. And they wanted us to do it. But it never worked out.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Again.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Non-expert expert

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

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

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

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

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

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

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

Killed the story

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Personal meeting.

Q At the FBI?

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

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

Q The conversations you had with the journalists, the ~

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

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

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

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

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

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

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

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

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

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

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

The YotaPhone that was not in Trump’s hands

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

John Durham Unveils His Post-Putin Puppet Strategy

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

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

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

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

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

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

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

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

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

Sit down, John Durham!

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

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

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

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

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

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

Consider the following timeline:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

[snip

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

[snip]

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

[snip]

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

[snip]

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

[snip]

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

[snip]

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

 

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

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

Sussmann:

Durham wants to:

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

I will link my discussions in serial fashion.


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

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

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

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

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

Whereas Durham is seeking to,

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

[snip]

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[list of domains redacted]

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

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

[list of domains redacted]

[RUSSIAN BANK-1] DOMAINS

[list of domains redacted]

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

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

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

Similarly, Durham makes much of this email from Lorenzen:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

John Durham Is Likely to Supersede the Michael Sussmann Indictment

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

Sussmann:

Durham wants to:

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

I will link my discussions in serial fashion.


In his motions in limine submitted Monday, John Durham included a text Michael Sussmann sent to James Baker that he belatedly discovered on the Baker phone he never bothered to look for.

Jim – it’s Michael Sussmann. I have something time-sensitive (and sensitive) I need to discuss. Do you have availibilty for a short meeting tomorrow? I’m coming on my own – not on behalf of a client or company – want to help the Bureau. Thanks. (emphasis added).

The text seems really damning — and both Charlie Savage and the frothers have treated it as such.

But it creates one real problem and may not help as much as they assume.

That’s true, first of all, because Durham accused Michael Sussmann of lying to James Baker on September 19. He did not accuse him of lying on September 18. Every single witness Durham is relying on to prove this lie either doesn’t remember Baker relaying that Sussmann had claimed at the meeting not to be representing a client (as is the case for Bill Priestap and Trisha Anderson), or has given wildly conflicting testimony about it (as is the case for Baker). Durham can’t rule out that Sussmann did not repeat that claim at the meeting on September 19. And, indeed, that might explain why Baker’s testimony conflicted so wildly and also might explain why Priestap’s notes recording “said not doing this for any client” (note the apparent strike-out; h/t ML) appears to have been written after the fact.

Indeed the Priestap and Anderson notes Durham is fighting to rely on support an inference that the meeting emphasized the motive Sussmann said he had — to help the FBI. Both prominently focus on the upcoming NYT story, which is what Sussmann explained, in sworn testimony to HPSCI, he went to warn Baker about: that there would be an upcoming story that might be awkward for the FBI.

Q And when did that conversation occur on or about?

A Middle of September 2016.

Q And what did Mr. Baker advise you to do?

A Advise me to do?

Q Yeah. Or what was what did he – how did he respond to the information that you conveyed to him?

A He said thank you.

Q Did he offer any follow-on

A No.

Q engagements, or did he promise that he would pass it on?

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

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

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

A Personal meeting.

Q At the FBI?

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

And FBI availed themselves of the help Sussmann offered, asking and getting him to share Eric Lichtblau’s name, thereby giving the FBI an opportunity to kill the story that Sussmann had directly seeded.

Q The conversations you had with the journalists, the ~

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

Q Thats good to know. Was that information the same information that you talked to Mr. Baker about?

A Yes

Q Okay. So the FBI then — so, at some point, the FBI was very concerned about that actually appearing in the New York Times. Is that correct?

A Yes, yes. My understanding is they —

Q Did he explain why they were so concerned?

A No. He just didn’t want — just didn’t want it to be revealed publicly.

All the discussions about materiality should include the decision that FBI made: not just to open an investigation or not, but also to intervene and kill a damaging story about Trump.

This is one reason that April Lorenzen’s largely independent efforts to push this story (which Durham treats as part of the same conspiracy) are important. Because Sussmann’s efforts actually had the opposite effect of what Durham claims he wanted, a big story to sway the election.

Durham has an easy fix to his first problem though: He can simply supersede the indictment.

If I were him, especially if I were as much of a douchebag as he has been, I’d wait until after Christopher Cooper rules on the motions in limine to supersede, tailoring the charges that Durham will have to prove to those decisions.

Indeed, that may be one reason Sussmann cheekily submitted a redlined indictment as it would appear without all Durham’s conspiracy theorizing: to get Cooper to rule in on what a reasonable indictment would look like.

In any case, because that text creates temporal problems with the most compelling evidence that Durham has, I expect he’ll supersede the indictment before trial.

Update: Charlie Savage noted to me, persuasively, that the statute of limitation has expired on charging Sussmann with lying on September 18. I still would not be surprised if Durham attempted to fix this error by superseding, perhaps by adopting “on or about” language. But if Durham can’t include September 18 in his indictment, he may have a real problem.

Update: A reader notes that Durham’s filing claims that U.K. Person-1 — Christopher Steele — is referred to in the indictment.

For example, in the summer of 2016, the defendant met in Law Firm-1’s offices with the author of a now well-known dossier regarding Trump (referred to in the Indictment as “U.K. Person-1”) and personnel from the U.S. Investigative Firm.

He’s not in the known Sussmann indictment, as Sussmann notes in his counterpart filing.

The Special Counsel also indicated during a telephone conference on March 11, 2022 that he intends to introduce evidence and argument pertaining to reports and information that Christopher Steele separately provided to the FBI—i.e., the so-called “Steele Dossier.” Not only that, but the Special Counsel also produced witness statements for Mr. Steele pursuant to 18 U.S.C. § 3500, presumably because the Special Counsel seeks to call Mr. Steele as a witness at trial. However, the Indictment contains no reference to Mr. Steele or the inflammatory Steele Dossier. The Indictment similarly contains no allegations—nor is there any evidence of—Mr. Sussmann’s knowledge, awareness, or involvement in any of Mr. Steele’s efforts to provide information to the government.

I wonder if Durham asked to file the conspiracy charges he’s been pursuing between March 18 and March 23, but was denied, after which he filed his delayed 404(b) notice pertaining to Steele and Joffe.