Posts

John Durham May Lose His Battle But Gain New Ammunition to Fight His War

/50 Comments/in , , /by

There were a number of things not said at yesterday’s hearing on the Democrats’ privilege claims in the Michael Sussmann case. The importance of having Russian-speaking experts when representing a client getting systematically attacked by Russia, for example, was not mentioned. Nor was the amount of research that Fusion did that was never released to the press. Nor were Durham’s two cheap stunts — falsely claiming an FEC settlement was not “public” in time to introduce it as part of the initial filings, and presenting exhibits without correcting for a time anomaly and thereby falsely suggesting Fusion sent a previously unpublished link to Tea Leaves’ postings to Eric Lichtblau — which made Durham’s case to pierce the Democrats’ privilege claims look stronger than it was.

Even on the issue of whether communications can have more than one purpose — an issue that Robert Trout, representing Hillary’s campaign, addressed directly — the argument could have been stronger. And when Judge Christopher Cooper asked if there were specific emails “that might support [the Democrats’] position that Fusion’s internal communications on these issues were for the purpose of providing legal support as opposed to pure opposition research and dissemination that is not covered by the privilege?,” Trout was caught flat-footed. Which is to say that the Democrats may not have presented their case as well as they could have.

It likely didn’t matter. Even before ruling that he will review the documents over which Democrats invoked privilege, Judge Christopher Cooper made it clear he was pretty skeptical of their privilege claims.

But there were a number of other things that were mentioned that may limit how much value Durham gets from this decision, even if Cooper determines that most of the Fusion documents were not privileged. Most importantly, both before and after Cooper had clearly decided he was going to review the documents, he raised the other procedural issues — which I raised in this post — that will dictate whether or not Durham can use them at trial.

The defense has raised some procedural objections to I think the use and introduction of the emails; namely, that you have waited too long after the assertion of the privilege — on the eve of trial now — to bring the issue to me.

I take it you’re saying that even if I were to agree with them about the specific emails that have been withheld, I would still have to deal with the privilege issue with respect to Ms. Seago’s testimony.

[snip]

That still leaves the relevance issues as well as the prejudice issues and the knock-on effects from the defense from the introduction and use of the emails, but I think that I’m probably going to have to deal with this issue nonetheless because of what the government may plan to ask Ms. Seago about. All right?

That is, even if Cooper agrees that the 38 documents Durham wants unsealed are not privileged, it may not mean Durham can use them at trial. The following are all possibilities, of greater or lesser likelihood:

  1. Cooper rules that one purpose of the emails was legal advice and so are privileged
  2. Cooper decides some or all of the emails are not privileged, but rules, based on representations made yesterday, that Durham violated local rules in his attempt to obtain them and so cannot get them
  3. Cooper rules that some or all of the emails are not privileged but rules that they are prejudicial, irrelevant, or hearsay to the charge against Sussmann, so Durham can have the emails, he just can’t use them at trial
  4. Cooper determines that Durham’s claims about the necessity or relevance of Laura Seago’s testimony are not only false, but Durham knew them to be false when he made them and, given that Durham has used as his excuse to pierce privilege at this late date, cannot introduce them at trial
  5. Cooper rules that the communications involving Rodney Joffe are privileged, even if the internal Fusion emails are not, adding further problems with Seago’s role as a witness
  6. Cooper rules the Fusion emails aren’t privileged, but at least some of them end up disproving Durham’s conspiracy theories

If I had to guess, I’d say a combination of 3, 5, and 6 are most likely. I’ll explain why, but if that turns out to be the case, it may mean that Durham finds a way to access the other 1,500 Fusion emails he says he wants to use in “other investigations,” but still can’t use many of the 38 emails at issue here in the trial against Sussmann. Durham’s conspiracy theories might live on, but his case against Sussmann might not.

As a reminder, Sussmann argued that Durham broke a number of rules by bypassing Beryl Howell and waiting until the last minute to try to get these emails — the procedural objections Cooper alluded to above. Cooper can’t be that impressed with the argument, or he wouldn’t have agreed to review the emails at all. But he did seem rather interested in Steven Tyrell’s assertion that he had made it clear there was never a way Durham was going to get the emails involving Joffe without litigation.

MR. TYRRELL: So if they wanted to challenge our assertion of privilege as to this limited universe of documents — again, which is separate from the other larger piece with regard to HFA — they should have done so months ago. I don’t know why they waited until now, Your Honor, but I want to be clear. I want to say without hesitation that it’s not because there was ever any discussion with us about resolving this issue without court intervention.

THE COURT: That was my question. Were you adamant a year ago?

MR. TYRRELL: Pardon me?

THE COURT: Were you adamant a year ago that —

MR. TYRRELL: Yes. We’ve been throughout. We were not willing to entertain resolution of this without court intervention.

THE COURT: Very well.

This is important because it supports Sussmann’s contention that this late bid for the emails is just an improper means of bypassing local rules and discovery deadlines. The same is not as true for Fusion, though, because they did make some concessions to Durham along the way.

Joffe’s intransigence about his privilege claims are all the more problematic for Durham, because (contrary to all my predictions!) Cooper seems far more convinced of Joffe’s privilege claims than the those of the Democrats.

With respect to the Joffe/Sussmann/Seago emails, I am dubious that the government has met its burden to pierce the privilege, but I will take a look at the emails nonetheless.

Indeed, at one point, Cooper noted that Durham’s entire theory of the case assumes, “Sussmann was in the [September 19, 2016 James Baker] meeting representing Joffe,” which would mean there was a privileged relationship between Sussmann and Joffe, and so therefore assumes Sussmann’s communications with Joffe about the topic would be privileged. If Joffe’s communications with Sussmann and Laura Seago aren’t privileged, then it’s proof that Sussmann was not representing a client. If they are privileged, then Durham can’t have them.

Catch-22.

Given what Cooper said in last week’s hearing, in which he repeatedly suggested that Joffe’s testimony might be central, the possibility that Durham may not pierce Joffe’s privilege may dictate other evidentiary (though not privilege) decisions. All the more so given how Durham excused his late bid to pierce privilege based off a late recognition they were going to immunize and call Seago.

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

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

As of yesterday, Sussmann had not received a 302 from Seago, so it’s not clear whether Durham has even interviewed her yet. But with one exception, Sussmann, Fusion lawyer Joshua Levy, and Joffe say she’ll be of limited value for Durham. Last week Sean Berkowitz said that Seago did not recall knowing Christopher Steele, much less being aware of the dossier project.

The only person from Fusion on their witness list is Laura Seago, who either I think has been immunized or will be immunized, and we understand that she would say she doesn’t recall that she even knows Mr. Steele or is able to talk about what he did. And so we don’t know that they actually are able to get anything in about what Mr. Steele did or didn’t do. Certainly there’s no evidence that Mr. Sussmann was aware of what Mr. Steele was doing. No evidence of that.

Levy noted that — as proven by the transcript of her Alfa Bank deposition, which the government has — Seago will testify she has no knowledge of either Sussmann’s meeting with the FBI or of the white paper Fusion did on Alfa Bank.

[I]n its brief, the government says that Ms. Seago has unique possession of knowledge as to what the government tries to characterize as the core issue in the case. But the government mischaracterizes that core issue. The government says that the core issue in this case is whether the defendant was representing any client in 2016 with regard to the Russian Bank 1 allegations.

That’s not the core issue in the case, respectfully. The core issue in the case is whether the defendant knowingly made a false and misleading statement to the government when he met with the government about whether he was there on behalf of a client or not that day. And as to that issue, Your Honor, Ms. Seago, the Fusion witness, has no knowledge. And the government knows this.

In parallel to the government’s investigation of this case, Russian Bank 1, Alfa-Bank, was pursuing its own discovery in a civil case. They subpoenaed and deposed Ms. Seago last year. There’s a transcript of that deposition. It’s in the public record. The government’s made clear to counsel that it has that deposition transcript, and we can furnish a copy of it to the Court.

And at the same time the government knows that Ms. Seago has no knowledge of the meeting between Mr. Sussmann and the FBI, and that’s at Pages 151 to 152 of that transcript.

THE COURT: All right. If you could file the — not file it, but provide it to the Court.

[snip]

And it’s very clear that she has no knowledge about the meeting, that she doesn’t recall any discussions about the meeting, that she didn’t work on this white paper that allegedly was provided to the government by Mr. Sussmann.

This is the memo that, again, the government has talked about today in its papers as to why it’s so important to pierce this privilege. Ms. Seago didn’t contribute to it, doesn’t know who did, doesn’t know who researched it, doesn’t know who wrote it, doesn’t know its purpose; and the government’s aware of all that.

As Sean Berkowitz followed up, Seago also does not recall knowing about the late July meeting involving Joffe, Sussmann, and Marc Elias.

And the question that was asked was: “So were you aware of this July 28th meeting between Sussmann and personnel of Fusion?

“ANSWER: Not that I recall.

“QUESTION: Were you aware of the meeting after it happened?

“ANSWER: Not that I recall.

Importantly, Durham knew (because he has been operating as a parasite on the lawfare project that Vladimir Putin probably ordered to make America less safe) that Seago would testify she didn’t know about the July meeting with Perkins Coie and Joffe or Sussmann’s meeting with James Baker or the Fusion-drafted white paper when Durham said she would be the pivotal witness to represent the relationship between Joffe and Fusion. This foreknowledge, which is incompatible with Durham’s claim that Seago’s testimony, “may be necessary to the public interest,” undermines both his relevance arguments and his excuse for the belated bid to pierce privilege.

As to Joffe, Tyrrell represented that at least some of the emails between him and Seago were the exchange of PGP keys.

MR. TYRRELL: Well, there are — Mr. Joffe is a cyber security expert, and he was trying to exchange something called PGP keys with Ms. Seago —

THE COURT: Okay.

MR. TYRRELL: — so that their communications would be secure and encrypted. So some of the attachments are actually just simply an exchange of PGP keys. But there is at least one or — there’s one or two attachments that’s not that, and I’m really not — I’d be happy to answer that in camera ex parte.

It’s the other communications that might be of value to Durham, but if they’re not privileged via Sussmann’s representation of Joffe, then his entire argument that Sussmann was representing a client may fall apart.

So Seago has, per those who know her involvement, little to offer in useful testimony (and Durham knew this). That’s a problem for Durham, because per Jonathan Algor, she was the way they planned to introduce the emails as evidence.

THE COURT: Okay. And obviously you haven’t seen these emails. You don’t know what they say. But you think there is a possibility, based on the descriptions in the privilege log, that they would be relevant and admissible through Ms. Seago for that purpose?

MR. ALGOR: Yes, Your Honor.

If Seago doesn’t know about the key issues necessary to validate the documents in question, then Durham may have a problem introducing them at trial at all.

As noted above, there are a number of possible ways Cooper resolves this, and it’s most likely he makes decisions that will displease both sides.

But given what he said yesterday, I think it quite likely Cooper will rule at least some of the Fusion emails are not privileged, even while making other rulings that will prevent them from coming into the trial as evidence.

If that happens, Durham may be able to use that ruling to get access (this time via proper methods) to that pool of 1,500 emails — many presumably of more interest to the Igor Danchenko case — that will let him spin his conspiracy theories for years to come. It might take losing the case against Sussmann, though, to continue his war of conspiracies.

Old Friends: Scooter Libby and CIPA

/37 Comments/in , , /by

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

Judge Cooper adopts Libby as the standard for evidentiary disputes

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

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

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

So expect this to come back up at trial.

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

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

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

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

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

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

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

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

But it’s relevant for another reason.

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

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

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

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

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

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

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

/32 Comments/in , , /by

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

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

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

Start with what Durham doesn’t mention.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This is a fairly astonishing argument.

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

The Guy Investigating the Claimed Politicized Hiring of a Special Counsel Insists that the Hiring of a Special Counsel Cannot Be Political

/16 Comments/in , , /by

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

Sussmann:

Durham wants to:

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

I will link my discussions in serial fashion.

Here’s how John Durham moved to exclude any evidence that his team was ordered to produce results in time for the 2020 election, bullied witnesses, or treated Hillary Clinton as a more dangerous adversary than Russia.

The Government expects that defense counsel may seek to present evidence at trial and make arguments that depict the Special Counsel as politically motived or biased based on his appointment by the prior administration. Notwithstanding the patently untrue nature of those allegations, such matters are irrelevant to this case and would create a substantial danger of unfair prejudice, confusion, and delay. In particular, the government seeks to preclude the defendant from introducing any evidence or making any argument concerning the circumstances surrounding the appointment of the Special Counsel and alleged political bias on the part of the Special Counsel’s Office. Indeed, the defendant has foreshadowed some of these arguments in correspondence with the Special Counsel and others, and their assertions lack any valid basis.

Only relevant evidence is admissible at trial. Fed. R. Evid. 402. The definition of relevance is inclusive, see Fed. R. Evid. 401(a), but depends on the possibility of establishing a fact that “is of consequence in determining the action,” Fed. R. Evid. 401(b). Evidence is therefore relevant only if it logically relates to matters that are at issue in the case. E.g., United States v. O’Neal, 844 F. 3d 271, 278 (D.C. Cir. 2016); see Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 387 (2008). The party seeking to introduce evidence bears the burden of establishing relevancy. Dowling v. United States, 493 U.S. 342, 351 n.3 (1990).

Here, the defendant is charged with making a false statement to the FBI General Counsel in violation of 18 U.S.C. § 1001. A jury will have to decide only whether the defendant knowingly and willfully made a materially false statement to the FBI General Counsel. Nothing more, nothing less. Baseless political allegations are irrelevant to the crime charged. See, e.g., United States v. Regan, 103 F. 3d 1072, 1082 (2d Cir. 1997) (claims of Government misconduct are “ultimately separate from the issue of [a defendant’s] factual guilt”); United States v. Washington, 705 F. 2d 489, 495 (D.C. Cir. 1983) (similar). Evidence or argument concerning these issues should therefore be excluded. See Fed. R. Evid. 402; see, e.g., O’Neal, 844 F,3d at 278; United States v. Stone, 19 CR 18 (D.D.C. Sept. 26, 2019) ECF Minute Order (granting the government’s motion in limine to exclude evidence or argument regarding alleged misconduct in the government’s investigation or prosecution of Roger Stone).

The only purpose in advancing these arguments would be to stir the pot of political polarization, garner public attention, and, most inappropriately, confuse jurors or encourage jury nullification. Put bluntly, the defense wishes to make the Special Counsel out to be a political actor when, in fact, nothing could be further from the truth.11 Injecting politics into the trial proceedings is in no way relevant and completely unjustified. See United States v. Gorham, 523 F. 2d 1088, 1097-1098 (D.C. Cir. 1975) (upholding trial court’s decision to preclude evidence relevant only to jury nullification); see also United States v. Rushin, 844 F. 3d 933, 942 (11th Cir. 2016) (same); United States v. Castro, 411 Fed. App’x 415, 420 (2d Cir. 2011) (same); United States v. Funches, 135 F.3d 1405, 1408-1409 (11th Cir. 1998) (same); United States v. Cropp, 127 F.3d 354, 358-359 (4th Cir. 1997). With respect to concerns about jury nullification, this Circuit has opined:

[Defendant’s] argument is tantamount to the assertion that traditional principles concerning the admissibility of evidence should be disregarded, and that extraneous factors should be introduced at trial to become part of the jury’s deliberations. Of course a jury can render a verdict at odds with the evidence and the law in a given case, but it undermines the very basis of our legal system when it does so. The right to equal justice under law inures to the public as well as to individual parties to specific litigation, and that right is debased when juries at their caprice ignore the dictates of established precedent and procedure.

Gorham, 523 F.2d at 1098. Even if evidence related to the defendant’s anticipated allegations had “marginal relevance” to this case (which it does not), the “likely (and presumably intended) effect” would be “to shift the focus away from the relevant evidence of [the defendant’s] wrongdoing” to matters that are, at most, “tangentially related.” United States v. Malpeso, 115 F. 3d 155, 163 (2d Cir. 1997) (upholding exclusion of evidence of alleged misconduct by FBI agent). For the foregoing reasons, the defendant should not be permitted to introduce evidence or make arguments to the jury about the circumstances surrounding the appointment of the Special Counsel and alleged political bias on the part of the Special Counsel.

11 By point of fact, the Special Counsel has been appointed by both Democratic and Republican appointed Attorneys General to conduct investigations of highly-sensitive matters, including Attorneys General Janet Reno, Michael Mukasey, Eric Holder, Jeff Sessions and William Barr. [my emphasis]

Durham stuck the section between an extended section arguing that Judge Christopher Cooper should treat the interlinked investigations — by those working for the Hillary campaign and those, working independently of the campaign, who believed Donald Trump presented a grave risk to national security — into Trump’s ties to Russia as a unified conspiracy and another section asking that Clinton Campaign tweets magnifying the Alfa Bank allegations be admitted, even though the argument to include them is closely related.

Even ignoring how Durham pitches this issue, the placement of this argument — smack dab in the middle of an effort to treat protected political speech he admits is not criminal like a criminal conspiracy — seems like a deliberate joke. All the more so coming from prosecutors who, with their conflicts motion,

stir[red] the pot of political polarization, garner[ed] public attention, and, most inappropriately, confuse[d potential] jurors

It’s pure projection, presented in the middle of just that kind of deliberately polarizing argument. From the moment the Durham team — which relied heavily on an FBI Agent who reportedly sent pro-Trump texts on his FBI phone — tried to enhance Kevin Clinesmith’s punishment for altering documents because he sent anti-Trump texts on his FBI phone, Durham has criminalized opposition to Trump.

And Durham himself made his hiring an issue by claiming that the guy who misrepresented his conflicts motion by using it to suggest that Sussmann and Rodney Joffe should be executed, Donald Trump, is a mere third party and not the guy who made him a US Attorney.

But it’s also misleading, for multiple reasons.

The initial bias in question pertains to covering up for Russia, not helping Republicans

Sussmann’s likely complaints at trial have little to do with the fact that Durham was appointed by a Republican. Rather, a key complaint will likely have to do with the fact that Durham was appointed as part of a sustained campaign to misrepresent the entire set of events leading up to the appointment of his predecessor as Special Counsel, Robert Mueller, by a guy who auditioned for the job of Attorney General based on his claims — reflecting his warped Fox News understanding of the investigation — that the confirmed outcome of that investigation was false.

You cannot separate Durham’s appointment from Billy Barr’s primary goal in returning as Attorney General to undermine the evidence of improper Trump ties to Russia. You cannot separate Durham’s appointment, in the same days as Mueller acquired key evidence in two investigations (the Egyptian bank donation and Roger Stone) that Barr subsequently shut down, from Barr’s attempt to undermine the past and ongoing investigation. You cannot separate Durham’s appointment from what several other DC District judges (Reggie Walton, Emmet Sullivan, and Amy Berman Jackson — the latter, twice) have said was Barr’s improper tampering in the Russian investigation.

That is, Durham was appointed to cover-up Trump’s confirmed relationship with Russia, not to attack Democrats. But in order to cover up for Russia, Durham will, and has, attacked the Democrats who were first victimized by Russia for viewing Russia as a threat (though I believe that Republicans were victimized, too).

That bias has exhibited in the following ways, among others:

  • Treating concern about Trump’s solicitation of further hacks by Russia and his confirmed ties to Russian money laundering as a partisan issue, and not a national security issue (something Durham continues with this filing)
  • Treatment, in the Danchenko case, of Charles Dolan’s involvement in the most accurate report in the Steele dossier as more damning that the likely involvement of Dmitri Peskov in the most inflammatory reports that paralleled the secret communications with Dmitry Peskov that Trump and Michael Cohen lied to cover up
  • Insinuations from Andrew DeFilippis to Manos Antonakakis that it was inappropriate for DARPA to ask researchers to investigate ongoing Russian hacks during an election
  • A prosecutorial decision that risks making sensitive FISA information available to Russia that will, at the same time, signal that the FBI won’t protect informants against Russia

There are other indications that Durham has taken probable Russian disinformation that implicates Roger Stone as instead reliable evidence against Hillary.

Durham’s investigation into an investigation during an election was a key prop during an investigation

Another thing Durham may be trying to stave off is Sussmann calling Nora Dannehy as a witness to explain why she quit the investigation just before the election. Even assuming Durham could spin concerns about pressure to bring charges before an election, that pressure again goes to Billy Barr’s project.

When Durham didn’t bring charges, some of the same documents Durham was reviewing got shared with Jeffrey Jensen, whose team then altered several of them, at least one of them misleadingly, to present a false narrative about Trump’s opponent’s role in the investigation. Suspected fraudster Sidney Powell seems to have shared that false narrative with Donald Trump, who then used it in a packaged attack in the first debate.

This is one of the reasons why Durham’s submission of Bill Priestap’s notes in such a way as to obscure whether those notes have some of the same indices of unreliability as the altered filings in the Mike Flynn case matters.

In other words, Durham is claiming that scrutinizing the same kind of questions that Durham himself has been scrutinizing for years is improper.

The bullying

I find it interesting that Durham claims that, “the defendant has foreshadowed some of these arguments in correspondence with the Special Counsel and others,” without citing any. That’s because the only thing in the record is that Sussmann asked for evidence of Durham bullying witnesses to alter their testimony — in response to which Durham provided communications with April Lorenzen’s attorneys.

On December 10, 2021, the defense requested, among other things, all of the prosecution team’s communications with counsel for witnesses or subjects in this investigation, including, “any records reflecting any consideration, concern, or threats from your office relating to those individuals’ or their counsels’ conduct. . . and all formal or informal complaints received by you or others” about the conduct of the Special Counsel’s Office.” Although communications with other counsel are rarely discoverable, especially this far in advance of trial, the Government expects to produce certain materials responsive to this request later this week. The Government notes that it is doing so despite the fact that certain counsel persistently have targeted prosecutors and investigators on the Special Counsel’s team with baseless and polemical attacks that unfairly malign and mischaracterize the conduct of this investigation. For example, certain counsel have falsely accused the Special Counsel’s Office of leaking information to the media and have mischaracterized efforts to warn witnesses of the consequences of false testimony or false statements as “threats” or “intimidation.”

And this set of filings reveals that Durham is still trying to force Rodney Joffe to testify against Sussmann, even though Joffe says his testimony will actually help Sussmann.

In other words, this may be a bid by Durham to prevent evidence of prosecutorial misconduct under the guise of maintaining a monopoly on the right to politicize the case.

Normally, arguments like this have great merit and are upheld.

But by making the argument, Durham is effectively arguing that the entire premise of his own investigation — an inquiry into imagined biases behind an investigation and later appointment of a Special Counsel — is illegitimate.

As we’ll see, what Judge Christopher Cooper is left with is nothing more than competing claims of conspiracy.

John Durham Accuses One of His Key Fact Witnesses — Sergei Millian’s Twitter Account — of “Misinterpret[ing] Facts”

/68 Comments/in , , /by

As I documented the other day, John Durham responded to the uproar over his conflicts filing stunt by claiming to have had nothing at all to do with the “third parties” who “overstated, understated, or otherwise misinterpreted facts contained in the Government’s Motion.”

If third parties or members of the media have overstated, understated, or otherwise misinterpreted facts contained in the Government’s Motion, that does not in any way undermine the valid reasons for the Government’s inclusion of this information.

The claim that the uproar was created by “third parties” is so obviously false it raises conflict problems for Durham himself.

Durham falsely claims those pushing lies are “third parties” to his investigation

As I laid out, one of the key perpetrators of the false claims — including the false claims (1) that Hillary paid Rodney Joffe, (2) that Joffe had “infiltrated” the White House, and (3) Joffe had done so when Trump was President — was Kash Patel, the originator of this entire line of inquiry in December 2017, and someone who for years had means to learn that those claims were false.

John Ratcliffe, whom Durham was meeting rather than interviewing Hillary staffers who could substantiate or debunk his accusations that Michael Sussmann was coordinating with the campaign, made these unsubstantiated claims in a TV appearance earlier this week:

  • There was a “Hillary Clinton campaign plan to falsely accuse Donald Trump of collusion with Russia”
  • Rodney Joffe used DNS data “for an unlawful purpose”
  • Sussmann “pitched” information “to the FBI as evidence of Trump-Russia connections that simply weren’t true and that the lawyer, Michael Sussmann, and the tech executive knew not to be true”

Donald Trump, who personally nominated John Durham as US Attorney and whose demands for criminal investigations led to Durham’s appointment as Special Counsel, asserted that his “presidency [was] spied on by operatives paid by the Hillary Clinton campaign in an effort to develop a completely fabricated connection to Russia.”

These are not “third parties.” These are:

  • The originator of the allegations against Sussmann
  • A self-described repeat Durham witness
  • The man who nominated Durham to be US Attorney and, ultimately, was his boss for almost 3 years

But there’s actually another key player in the effort to magnify Durham’s conflicts filing stunt who is even more central to Durham’s work: One of his most important “witnesses,” Sergei Millian’s twitter account.

The pipeline from online conspiracy theorists through former investigators to the former President

Yesterday, Glenn Kessler attempted to trace how the filing became a propaganda tool. The timeline he laid out looks like this (these times are ET):

11:33PM: Filing hits PACER.

12:43AM: Whispers of Dementia screencaps the filing, noting Durham claimed “Sussmann is likely to be in an “adversarial posture” against Perkins Coie.”

9:24AM: emptywheel notes that Durham is criminalizing lying to the FBI about traffic involving Trump Tower, which Trump himself did at the time.

9:25AM: Hans Mahncke links and screencaps the filing and claims,

Rodney Joffe and his buddies at Georgia Tech monitored Trump’s internet traffic *while* he was President of the United States.

9:39AM: Kessler’s gap

9:45AM: emptywheel RTs Mahncke and notes that this is about cybersecurity.

10:25AM: Techno Foggy tweets that,

DNC/Perkins Coie allies – Rodney Joffe, et al. – Joffe et al, “exploited a sensitive US govt arrangement” to gather intel on the “Executive Office of the President of the U.S.” They spied on Trump.

11:11AM: House Judiciary GOP [so a Jim Jordan staffer] RTs Foggy’s tweet, claiming:

We knew they spied. But it was worse than we thought.

11:44AM: Techno Foggy tweets out his Substack with the claim,

Clinton allies used sensitive data from the Office of the President to push false Trump/Russia claims to the CIA

Why did they risked jail to link Trump to Russia?

Maybe because the origin of their fraud was the “Russian hack” of the DNC.

2:27PM: John Ratcliffe responds to House Judiciary tweet with claim, “And now you’re finding out why…,” thereby seemingly endorsing the “spying” claim, and linking the Durham release with his own cooperation with Durham’s inquiry.

3:24PM: Mark Meadows RT’s Foggy’s tweet, claiming,

They didn’t just spy on Donald Trump’s campaign.

They spied on Donald Trump as sitting President of the United States.

It was all even worse than we thought.

5:51PM: Center for Renewing America tweets out Kash Patel statement making numerous false claims.

6:47PM: Trump’s spox tweets out his claims of spying.

This timeline is damning enough: It shows how these false claims went from “sleuths” who spend much of their time spinning Durham’s conspiracy theories, through Techno Foggy (a self-described lawyer who has for years interacted openly with lawyers like Sidney Powell and Billy Barr’s spox Kerri Kupec), to Jim Jordan’s staffer to Ratcliffe to Mark Meadows to Kash Patel to Trump. Every single one of these current and former officials have played a central role in these investigations; none is a “third party.”

Sergei Millian’s twitter account calls it spying

But there’s a very key step in Kessler’s timeline that is missing. At 9:39AM (the time shown here is Irish time) — which I’ve marked above in red — Sergei Millian’s twitter account tweeted, “They were spying on the White House, folks!!.”

This claim was before Techno Foggy made the spying claim. The first person to have made the “spying” claim in this timeline, then, was Sergei Millian’s twitter account.

In fact, the next day, Millian’s twitter account insinuated to have started all this in the first place — that the twitter account “had a direct line into the White House” via which it “told them who was working against them.”

Thanks for identifying this phone call, Sergei, because Igor Danchenko will now have cause to demand details of it in discovery, which will mean, on top of the other unprecedented discovery challenges Durham has taken on in prosecuting Danchenko, he’s now going to have to get Trump records from the Archives. Michael Sussmann, too, likely now has cause to demand those records.

The Millian twitter account RT of Mahncke to belatedly explain the spying claim makes it clear it is an active participant in the “Sleuths Corner” that drives many of the false claims about Durham. In fact the Millian twitter account even advertises it on the twitter account.

Durham says his key witness “misrepresented the facts”

This all amounts to Durham himself discrediting one of his witnesses, perhaps fatally.

As I have noted, when John Durham charged Igor Danchenko with four counts of lying about believing that he had spoken to Sergei Millian back in July 2016, Durham didn’t actually claim to have obtained testimony from the human being named Sergei Millian. Durham did not appear to have required that Millian show up and make statements for which he could be legally held accountable.

Instead, Durham presented an unverified twitter account to the grand jury and based on that, claimed “Chamber President-1 has claimed in public statements and on social media that he never responded to DANCHEKNO’s [sic] emails, and that he and DANCHENKO never met or communicated.”

I refer to this entity as “Sergei Millian’s twitter account” to emphasize that there is not a scrap of evidence in the public record showing that Durham did anything to confirm that Millian, the person, even operates it exclusively. While I have no reason to doubt that he does, from a legal standpoint, Durham is at least publicly relying on nothing but an unverified account, something journalists have been loathe to do for years with Millian.

And this claim attributed to an unverified twitter account is a very important piece of evidence. There’s nothing else in the public record that shows Durham affirmatively ruled out that Danchenko and Millian really did have a phone call.

When I first realized how reckless that was, I though it impossible for Durham to have been that negligent. But we’ve since learned that he accused Sussmann of coordinating with Hillary’s staffers without ever first interviewing a single full-time staffer. So perhaps it is, in fact, true that Durham charged a man based off the unsubstantiated claims of a twitter account.

Danchenko appears to have obtained a pre-trial subpoena on February 8; I have wondered whether it was for the Millian twitter account. If so, the subpoena might well obtain the traffic of what has happened in recent days.

As it stands, though, Durham makes no claim to have anything else.

Just that twitter account.

And that twitter account is part of a pipeline that took Durham’s filing and made egregiously false claims about it. Durham is now on the record claiming that that twitter account “misinterpreted the facts.” But Danchenko will have good reason — and abundant proof, given the details of last week’s little propaganda explosion — to argue that Sergei Millian’s twitter account is willing to make false claims to create a scandal around the Durham investigation.

That shreds the credibility of the only claimed “witness” that the call never happened.

The Durham Investigation Has Lasted 50% Longer than the Mueller Investigation

/61 Comments/in , , /by

It seems like just days ago we were celebrating a big milestone in the life of the Durham investigation: the 1,000 day mark.

Time flies when you’re unethically making accusations designed to rile up the frothy base, because Durham hits another major milestone today.

Today makes day 1,011 for Durham. The Mueller investigation lasted 674 days, total. So as of today, John Durham has been investigation for 50% longer than the entire Mueller investigation he was hired to undermine.

I had to highlight the end date for Mueller because it gets lost when compared to the Durham timeline.

In 22 months, Mueller got convictions of Trump’s Coffee Boy, his National Security Advisor, his Campaign Manager and the Campaign Manager’s Deputy, Trump’s personal lawyer, as well as another American and the son-in-law of Alfa Bank Oligarch German Khan. On a referral, a second Konstantin Kilimnik partner, Sam Patten pled guilty. Mueller charged 25 Russian involved in attacks on the country, as well as Kilimnik himself in a conspiracy with Manafort (though not the conspiracy for trading campaign strategy for debt relief). With another eight months, DC’s US Attorney would win Roger Stone’s conviction. None of those things — not the George Papadopoulos guilty plea, not the guilty plea of Khan’s son-in-law Alex Van der Zwaan, and not Michael Cohen’s plea to covering up the communications he had (on Trump’s behalf) with the Kremlin — derives from either the Steele dossier or the Alfa-Bank anomalies.

In half again that time span, John Durham has won the guilty plea of Kevin Clinesmith (whose misconduct DOJ Inspector General Michael Horowitz found), charged Michael Sussmann for lying about coordinating with Hillary staffers he didn’t coordinate with, and charged Igor Danchenko for lies that Durham’s prosecutors created, at least in part, with cut-and-paste failures. All because he’s sure — and he’s going to keep going until he finds proof — that the abundant prosecutions Mueller obtained were the fruit of stuff that Durham is working hard to criminalize and not the criminal conduct that all those Trump flunkies but Stone admitted to.

With the addition of a new financial crimes prosecutor yesterday to the Michael Sussmann prosecution team, I feel like Durham is barely getting started. Why not double the length of time it Mueller took to investigate rather than avoid admitting you can’t substantiate any of your conspiracy theories?

The John Durham Investigation Turns 1,000 Days Old Today

/42 Comments/in , /by

By my math, today marks the 1,000th day after Bill Barr first appointed John Durham to undermine the Russian investigation on May 13, 2019. Today marks a major new milestone in Durham’s effort to substantiate the conspiracy theories Barr sent him off chasing years ago.

The Durham investigation has now lasted 326 days longer than the Mueller investigation, not quite half again as long. But I’m sure Durham will last the 11 days required to hit that milestone, too.

At this stage in the aftermath of the Mueller investigation, Billy Barr had started his campaign to undo all punishment arising from it. January 2020 was the month when Barr took the first steps to protect Flynn from the new crimes he had committed in his effort to blow up his past prosecution by appointing Jeffrey Jensen to review the Flynn prosecution — an effort that would end with DOJ admitting that they had altered some notes.

Durham, by contrast, has had a productive last month. Four months after indicting Michael Sussmann, he learned that Sussmann had provided at least one other anonymous tip on behalf of Rodney Joffe, in addition to the one Durham has labeled a crime. Durham also discovered two phones used by James Baker, which he had never before bothered to look for in DOJ IG custody, precisely where he had been told one of them was years earlier.

At the rate Durham is discovering basic things he should have learned years before indicting Sussmann (and, probably, Igor Danchenko), he might be prepared to make a responsible prosecutorial decision about whether to charge these cases in another two years or so.

Update: Typo in table fixed.

John Durham Flew to Italy to Get Joseph Mifsud’s Blackberries But Never Walked Across DOJ to Obtain James Baker’s Phones He Forgot He Knew Were There

/137 Comments/in , , /by

Back in 2019, when John Durham undercut DOJ Inspector General Michael Horowitz’s conclusion that, for all the problems in the Carter Page FISA, the investigation itself was properly predicated and there was no evidence that the investigation into Trump’s associates had been politicized, Durham pointed to what he claimed was the broader scope of his own investigation that gave him reason to believe the predication was not clearcut.

I have the utmost respect for the mission of the Office of Inspector General and the comprehensive work that went into the report prepared by Mr. Horowitz and his staff.  However, our investigation is not limited to developing information from within component parts of the Justice Department.  Our investigation has included developing information from other persons and entities, both in the U.S. and outside of the U.S.  Based on the evidence collected to date, and while our investigation is ongoing, last month we advised the Inspector General that we do not agree with some of the report’s conclusions as to predication and how the FBI case was opened.

Durham pointed both to his review of other agencies — such as the CIA review he has now completed without results — and the boondoggles he took with Billy Barr overseas as the basis (he claimed) to know more than Michael Horowitz.

Durham’s statement came shortly after he obtained two Blackberries — one dating to 2011 and the other to 2014 — that once belonged to Joseph Mifsud. By all reports, the George Papadopoulos conspiracy theories that Barr and Durham were chasing on the trip to Italy where they got those phones amounted to nothing. Taxpayers paid for Durham to fly overseas to collect information that predates the Russian operation by years, all because a sworn liar invented excuses for his crime after the fact.

It’s not that Horowitz ignored the Coffee Boy’s conspiracy theories. Rather than taking a junket to Italy to rule out Papadopoulos’ fevered speculation, Horowitz just looked in the FBI’s informant database and called the CIA.

164 During October 25, 2018 testimony before the House Judiciary and House Committee on Government Reform and Oversight, Papadopoulos stated that the source of the information he shared with the FFG official was a professor from London, Joseph Mifsud. Papadopoulos testified that Mifsud provided him with information about the Russians possessing “dirt” on Hilary Clinton. Papadopoulos raised the possibility during his Congressional testimony that Mifsud might have been “working with the FBI and this was some sort of operation” to entrap Papadopoulos. As discussed in Chapter Ten of this report, the OIG searched the FBI’s database of Confidential Human Sources (CHS), and did not find any records indicating that Mifsud was an FBI CHS, or that Mifsud’s discussions with Papadopoulos were part of any FBI operation. In Chapter Ten, we also note that the FBI requested information on Mifsud from another U.S. government agency, and received a response from the agency indicating that Mifsud had no relationship with the agency and the agency had no derogatory information on Mifsud.

[snip]

484 Papadopoulos has stated that the source of the information he shared with the FFG was a professor from London, Joseph Mifsud, and has raised the possibility that Mifsud may have been working with the FBI. As described in Chapter Ten of this report, the OIG searched the FBI’s database of Confidential Human Sources (CHSs) and did not find any records indicating that Mifsud was an FBI CHS, or that Mifsud’s discussions with Papadopoulos were part of any FBI operation. The FBI also requested information on Mifsud from another U.S. government agency and received no information indicating that Mifsud had a relationship with that agency or that the agency had any derogatory information concerning Mifsud.

This comparison is one reason it is so damning that Durham just admitted that he never sought to obtain (and falsely claims he never knew about) two phones formerly used by James Baker that were in the custody of DOJ IG all that time.

[I]n early January 2022, the Special Counsel’s Office learned for the first time that the OIG currently possesses two FBI cellphones of the former FBI General Counsel to whom the defendant made his alleged false statement, along with forensic reports analyzing those cellphones. Since learning of the OIG’s possession of these cellphones, the Government has been working diligently to review their contents for discoverable materials. The Government expects to make those materials available to the defense later this week.

The John Durham investigation made a big effort to obtain two dated phones based on a conspiracy theory, but didn’t even seek to obtain phones he should have known were in DOJ possession before indicting someone based off the single witness testimony of that person. Crazier still, in an update to the Court, Durham admitted that he learned but then forgot that Horowitz had obtained one of them during his prior investigation of Baker for a suspected leak.

This is not the only damning admission of investigative negligence in John Durham’s request for an extension of the deadline — which turns out to be a request for the deadline he originally requested — for what he calls discovery (but what is actually basic investigative steps he should have taken long before indicting Sussmann).

For example, in his indictment of Michael Sussmann, Durham gives the impression that Rodney Joffe only obtained data from the US in 2016 to hunt down damning data about Donald Trump. But in response to a Sussmann request, Durham conducted a review of all the 17,000 unclassified emails involving the email domain from one of Joffe’s companies, finding 226 from 2016 alone that pertain to this issue. As Sussmann has argued, lying to hide Joffe’s involvement in this would be counterproductive given how closely he works with FBI.

[T]o the extent the Indictment alleges that the FBI General Counsel and FBI might have done various things like ask “further questions,” taken additional or more incremental steps,” “allocated its resources differently or more efficiently,” or “uncovered more complete information” but for Mr. Sussmann’s purported false statement, the Special Counsel should be required to particularlize those potential questions, additional steps, resource allocations, or more complete information. Id. This is particularly necessary because [Joffe] — far from being a stranger to the FBI — was someone with whom the FBI had a long-standing professional relationship of trust and who was one of the world’s leading experts regarding the kinds of information that Mr. Sussmann provided to the FBI. The notion that the FBI would have been more skeptical of the information had it known of Tech Executive-1’s involvement is, in a word, preposterous.

Similarly, the indictment makes much of the fact that Sussmann shared information with the NYT that ultimately led to an infamous October 31 story. It suggests without evidence that Sussmann — or even the Congressional sources who obviously played a role in the story — were the only ones pushing the Alfa Bank story to the NYT. It further suggests, falsely, that all the material NYT obtained on Alfa Bank came from Joffe’s effort. Crazier still, until Sussmann asked, Durham hadn’t pulled the details from a meeting the FBI (one that included James Baker and Bill Priestap, almost certain to be witnesses at Sussmann’s trial) had with the NYT.

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.

Pulling these records would have been just the first step Durham should have taken to figure out what other entities might have been pushing this story to the NYT and what specific allegations those entities were pushing to test some of the insinuations Durham makes in the indictment. Yet Durham never thought to look for these records before he indicted Sussmann.

Still, Durham’s failure to do anything to understand what DOJ IG had done in its parallel investigation is the most remarkable.

Before Durham was formally appointed, Billy Barr’s top aide Seth DuCharme seemed to be attempting to deconflict the investigation by bringing the two men together to talk about scope.

Perhaps Durham’s public rebuke of Horowitz undermined any cooperation since then (though Durham was certainly happy to take the Kevin Clinesmith case that Horowitz had wrapped up in a bow and claim it as his only visible sign of life for years).

But according to Durham’s filing, he didn’t reach out to Horowitz’s office until three weeks after indicting Sussmann (and perhaps more importantly, less than four weeks before indicting Igor Danchenko, in whose prosecution the DOJ IG investigation plays a central role). Durham presents his team reaching out to another unit at DOJ that he knew to have relevant material as some great feat of diligence rather than something he should have done years earlier.

On October 7, 2021, at the initiative of the Special Counsel’s Office, the prosecution team met with the DOJ Inspector General and other OIG personnel to discuss discoverable materials that may be in the OIG’s possession. The Special Counsel’s office subsequently submitted a formal written discovery request to the OIG on October 13, 2021, which requested, among other things, all documents, records, and information in the OIG’s possession regarding the defendant and/or the Russian Bank-1 allegations. The Special Counsel also requested any transcripts or other documents within the OIG’s possession containing certain search terms. In response, the OIG provided, and the Government has produced to the defense in redacted form, relevant transcripts of interviews conducted by the OIG during its review of the FBI’s Crossfire Hurricane investigation.

That’s what led Durham to discover, for the first time, the anonymous tip of the same sort — weird forensic data discovered by Joffe — that Sussmann shared with DOJ IG in the same time period Durham was investigating.

It wasn’t until Durham asked the FBI Inspection Division for call data associated with Baker’s phone this month that they told him — because Durham had apparently never asked, not even given the endless focus on Peter Strzok and Lisa Page texts Horowitz obtained way back in 2017 — that DOJ IG had two phones that Baker had used. After Durham publicly claimed not to have known about the phones, DOJ IG then informed him that he learned DOJ IG obtained one of them in 2018 during a different investigation of Baker.

Durham’s belated outreach to DOJ IG may in fact be what first led Durham to discover the interview DOJ IG did with Baker on July 15, 2019 — shortly after deconfliction meetings in advance of Durham’s appointment — in which Baker said something that materially conflicts with the statements Baker has made to Durham, statements that in fact confirm Sussmann’s story.

Durham also obtained a transcript — the only one he provided to Sussmann in unredacted form — about some other investigation that Horowitz is currently conducting.

the transcript of an interview conducted by the DOJ Office of Inspector General in connection with an administrative inquiry that is currently ongoing;

And now, part of the reason Durham is asking for a delay in his existing deadline is that requests of Horowitz he should have made at the beginning of any investigation into whether Sussmann falsely set up Trump are proving too onerous for DOJ IG (which is working on a slew of reports on events that aren’t five years past) to do on their own.

Third, in January 2022, the OIG informed the Special Counsel’s Office for the first time that it would be extremely burdensome, if not impossible, for the OIG to apply the search terms contained in the prosecution team’s October 13, 2021 discovery request to certain of the OIG’s holdings – namely, emails and other documents collected as part of the OIG’s investigation. The OIG therefore requested that the Special Counsel’s Office assist in searching these materials. The Government is attempting to resolve this technical issue as quickly as possible and will keep the defense (and the Court as appropriate) updated regarding its status.

At this point, four months after indicting Michael Sussmann and two years after claiming he knew better than Michael Horowitz, Durham doesn’t know whether he even consulted the same records that Horowitz did.

As noted, if the same is true with respect to the Danchenko case, it is potentially lethal to Durham’s case, because his investigative theory (which is that Danchenko is responsible for FBI’s failure to act on problems with the dossier) is fundamentally incompatible with Horowitz’s (which is that it was FBI’s fault for not acting).

Durham does know, however, that he didn’t consult something that Horowitz did: Baker’s actual phones.

And that may have a real impact at trial.

At a status conference, Durham’s prosecutors dismissed the possibility that they had bullied Baker into telling the story they wanted him to tell on threat of prosecution: that Sussmann affirmatively lied about having a client, which conflicts with several other claims he had previously made under oath. They said (in a scheduling motion), instead, that once Durham’s prosecutors refreshed Baker’s memory with notes from Bill Priestap and someone else he spoke with after the Sussmann meeting, Baker remembered that Sussmann had actually affirmatively lied.

Mr. Baker made these statements before he had the opportunity to refresh his recollection with contemporaneous or near-contemporaneous notes that have been provided to the defense in discovery. Indeed, the defendant’s motion entirely ignores law enforcement reports of Mr. Baker’s subsequent three interviews with the Special Counsel’s Office in which he affirmed and then re-affirmed his now-clear recollection of the defendant’s false statement.

Effectively, they claimed they had better information when questioning Baker than anyone previously had.

Durham is going to have to present that to the jury, probably through the testimony of one of the FBI agents involved.

But that claim only works if Durham’s team had a more complete record than Horowitz’s team did when they asked the same questions. Durham doesn’t know whether that’s true or not yet, because he never bothered to figure out what Horowitz had. The delay Durham wants to do investigative work he should have done years ago is a delay, in part, to see whether that claim has any basis in fact. (And at least in December, Durham had only provided a heavily redacted transcript of what went on between Baker and the IG.)

All parties know one thing, however: That when Horowitz conducted questioning of Baker in 2019 about this topic, unlike Durham, he had consulted with Baker’s own phone. Durham can no longer claim to have been more thorough than Horowitz, because he just admitted he didn’t even bother consulting Baker’s phones and is only now getting around to checking what else Horowitz might have consulted that he did not.

John Durham indicted Michael Sussmann on the last possible day he could have under the statutes of limitation. And now, he’s asking for a delay in discovery deadlines (if not a delay in Sussmann’s trial), so he can do basic investigative work he should have done before the statutes of limitation tolled.

Update: Judge Cooper has granted Durham’s extension.

Update: Holy shit it gets better! Durham just had to admit that, in an earlier investigation of Baker, he learned DOJ IG had obtained this phone.

After reviewing the Special Counsel’s Office’s public filing, the DOJ Office of Inspector General (“OIG”) brought to our attention based on a review of its own records that, approximately four years ago, on February 9, 2018, in connection with another criminal investigation being led by then-Acting U.S. Attorney Durham, an OIG Special Agent who was providing some support to that investigation informed an Assistant United [sic] Attorney working with Mr. Durham that the OIG had requested custody of a number of FBI cellphones. OIG records reflect that among the phones requested was one of the two aforementioned cellphones of the then-FBI General Counsel. OIG records further reflect that on February 12, 2018, the OIG Special Agent had a conference call with members of the investigative team, including Mr. Durham, during which the cellphones likely were discussed. OIG records also reflect that the OIG subsequently obtained the then-FBI General Counsel’s cellphone on or about February 15, 2018. Special Counsel Durham has no current recollection of that conference call, nor does Special Counsel Durham currently recall knowing about the OIG’s possession of the former FBI General Counsel’s cellphones before January 2022.

This post has been updated to reflect how Durham learned he already knew of the phones.

Timeline of Sussmann discovery

September 16, 2021: Michael Sussmann indictment

September 27: Sussmann asks for:

  • All evidence from wiretaps or eavesdropping (there appears to be none)
  • All communications regarding Sussmann’s security clearance reviews (900 pages)
  • Any documents pertaining to FBI treatment of anonymous tips (with repeated follow-ups)
  • All FBI communications with the NYT regarding Alfa Bank allegations in 2016 (with repeated follow-ups)
  • Materials regarding relationship between Joffe’s companies and government agencies; FBI results for 2016 result in 226 emails

October 7: Durham team meets with DOJ IG to discuss discoverable material in DOJ IG possession

October 13: Durham issues a formal discovery request to DOJ IG

October 13: Sussmann asks for Priestap’s notes

October 20: Sussmann reviews Priestap’s notes

October 25: Sussmann reply memo reveals he still hasn’t received taxi billing records and other identifiable Brady material, including an “unclassified grand jury testimony of an immunized witness, that either exculpate[s] Mr. Sussmann or conflict[s] with the core allegations that the Special Counsel has made against him”

October 29: Sussmann’s team obtains clearance

November 3: Igor Danchenko indictment

Week of November 15: Durham turns over some, but not all, of Baker’s statements, including conflicting DOJ IG fragment

November 22: Sussmann follow-up on request for FBI communications with NYT; after previously accepting June trial date, Durham proposes July 25

November 30: Sussmann follow-up on request for FBI communications with NYT; says Durham is missing some of the CIA employees in February 9, 2017 meeting

December 6: Sussmann moves for trial date, describing that Durham needs four more months for discovery

December 7: Durham response; Sussmann first gets Baker grand jury transcripts; just three grand jury transcripts provided by that point

December 8: Status conference at which Sussmann attorney reveals they’ve just seen Baker grand jury transcript

December 10: Sussmann asks for records “any records reflecting any consideration, concern, or threats from your office relating to those individuals’ or their counsels’ conduct. . . and all formal or informal complaints received by you or others”

December 14: Scheduling order

December 17: DOJ IG gives Durham forensic report arising from previous Sussmann tip

December 23: Durham gives Sussmann forensic report from DOJ IG tip

Early January 2022: OIG says it can’t get through the discovery on Crossfire Hurricane investigation by itself

January 5: Durham asks FBI Inspection Division about call log data for Baker’s phone

January 6:  FBI Inspection Division tells Durham that DOJ IG has Baker’s phones

January 7: Durham asks DOJ IG about the phones

January 10: DOJ IG provides the information on Baker’s phones; Sussmann asks for information regarding meeting with NYT, James Baker, Bill Priestap, and Michael Kortan (result did not come up on searches, so Durham had to search through 8,900 pages of Kortan’s records, resulting in 37 results)

January 20: Durham asks to have until “the end of March” for discovery (effectively, his originally requested deadline); Sussmann tells Durham he met with DOJ IG in person in March 2017 about anonymous tip

January 21: Sussmann response agreeing to February 11; DOJ IG confirms they did meet with Sussmann

January 25: Durham submits filing claiming he never knew DOJ IG had Baker’s phones (in response DOJ IG reminds Durham he already knew of one of the phones)

January 26: DOJ IG provides second forensic reports on the phones to Durham

January 28: Unclassified discovery originally due; Cooper grants extension to March 18 in the morning; Durham provides initial forensic reports to Sussmann and then (at 11:52PM) informs court he had previously been informed of Baker’s phone years ago

February 11: Classified discovery due

February 18: Motion to Dismiss due

March 18: 404(b) and remaining Jencks and Giglio due

March 25: Durham’s initial and second requested discovery deadline

May 16: Existing trial date

 

Ten Things TV Lawyers Can Do Rather than Whinging about Merrick Garland

/146 Comments/in , , /by

I continue to have little patience for the people–many of them paid to expound as lawyers on TV–who spend their time whinging that Merrick Garland is not moving quickly enough to hold Trump accountable rather than spending their time doing other more productive things to protect democracy.

I’m not aware that any of these people has tracked the January 6 investigation closely enough to name those one or two degrees away from the former President who have been charged or are clearly subjects of investigation. Similarly, I’ve seen none do reporting on the current status of Rudy Giuliani’s phones, which after a Special Master review will release a bunch of information to prosecutors to use under any warrant that DOJ might have. Indeed, many of the same people complain that Trump has not been accountable for his Ukraine extortion, without recognizing that any Ukraine charges for Trump would almost certainly have to go through that Rudy investigation. The approval for the search on Rudy’s phones may have been among the first decisions Lisa Monaco made as Deputy Attorney General.

It’s not so much that I’m certain DOJ would prosecute Trump for his serial attempts to overthrow democracy. There are tea leaves that DOJ could get there via a combination of working up from pawns who stormed the Capitol and down from rooks referred from the January 6 Commission. But I’m more exasperated with the claims that there were crimes wrapped with a bow (such as Trump’s extortion of Ukraine) that Garland’s DOJ could have charged on March 11, when he was sworn in. Even the Tom Barrack prosecution, a Mueller referral which reportedly was all set to indict in July 2020, took six months after Biden’s inauguration before it was indicted. The January 6 investigation started less than eleven months ago; eleven months into the Russian investigation, Coffee Boy George Papadopoulos had not yet been arrested and he was still months away from pleading guilty, on a simple false statements charge. We have no idea how much deliberate damage Billy Barr did to other ongoing investigations arising out of the Mueller investigation, but his public actions in the Mike Flynn, Roger Stone, and Paul Manafort cases suggests it is likely considerable. As for the January 6 investigation, as I’ve noted, it took nine months from the time FBI learned that a Capitol Police Officer had warned Jacob Hiles to delete his Facebook posts until the time DOJ indicted Michael Riley on two counts of obstruction. To imagine that DOJ would have already indicted Trump on anything he might be hypothetically under investigation at this point, particularly relating to January 6, is just denial about how long investigations take, even assuming the subject were not the former President with abundant access to free or RNC-provided legal representation.

It’s not that I don’t understand the gravity of the threat. I absolutely share the panic of those who believe that if something doesn’t happen by midterms, Republicans will take over the House and shut every last bit of accountability down. I agree the threat to democracy is grave.

But there is no rule that permits DOJ to skip investigative steps and due process simply because people have invested in DOJ as the last bulwark of democracy, or because the target is the greatest threat to democracy America has faced since the Civil War. DOJ investigations take time. And that is one reason why, if people are hoping some damning indictment will save our democracy, they’re investing their hopes in the wrong place, because an investigation into Trump simply will not be rolled out that quickly. Even if Trump were indicted by mid-terms, the Republicans have invested so much energy into delegitimizing rule of law it’s not clear it would sway Fox viewers or even independent voters.

I can’t tell you whether DOJ will indict Trump. I can tell you that if they do, it will not come in time to be the one thing that saves democracy.

And so, because I believe the panicked hand-wringing is about the least productive way to save democracy, I made a list. Here are ten way that TV lawyers could better spend their time than whinging that Merrick Garland hasn’t indicted Donald Trump yet:

  1. Counter the propaganda effort to treat the Jan 6 defendants as martyrs.
  2. Explain how brown and black defendants actually faced worse conditions in the DC jail — and have complained with no results for years.
  3. Explain how DOJ has lost cases against white terrorists (including on sedition charges) in the past.
  4. Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect.
  5. Emphasize the prosecutions/charges/investigations that have or are occurring.
  6. Describe the damage done by Trump’s pardons.
  7. Describe the way that even loyal Trumpsters will be and have been harmed as he corrupts the rule of law.
  8. Focus on the efforts of Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson to undercut the investigation into Project Veritas’ suspected theft of Ashely Biden’s diary
  9. Explain how shoddy John Durham’s indictments are.
  10. Focus on the legal threats to democracy in the states.

Counter the propaganda effort to treat the Jan 6 defendants as martyrs

Whether or not Trump is ever charged with crimes related to January 6, the right wing noise machine has already kicked into gear trying to make it harder to prosecute other culprits for the January 6 riot. They’ve done so by falsely claiming:

  • The event was just a protest like the protests of Brett Kavanaugh’s confirmation, a claim DOJ already debunked, in part by showing that the Kavanaugh protestors who briefly halted his confirmation hearing had been legally admitted.
  • They’re being treated more harshly than those who used violence at BLM or Portland protests. DOJ has submitted multiple filings showing that such claims are based on cherry-picked data that ignore the state charges many of these defendants face, the better quality of evidence against Jan 6ers (in part because they bragged about their actions on social media), and the more heinous goal of the protest involved.
  • Large numbers of non-violent January 6 are being held in pretrial detention. In reality, the overwhelming majority of those detained were charged either in a militia conspiracy or for assaulting cops. The exceptions to this rule are generally people (like Brandon Fellows or Thomas Robertson) who violated pretrial release conditions. Additionally, a good number of those accused of assaulting cops have been released.
  • January 6 defendants are subjected to especially onerous treatment in jail. Many of the conditions they’re complaining about are COVID restrictions imposed on all detainees (though often more restrictive for those who, like a lot of January 6 defendants, choose not to get vaccinated). And in an inspection triggered by January 6 defendant Christopher Worrell’s complaints, the Marshals determined that the other part of the DC jail violated Federal standards, though the part in which the Jan 6ers are held did not.
  • January 6 defendants are just patriots trying to save the country. In reality, of course, these people were attempting to invalidate the legal votes of 81 million Americans.

Again, all these claims are easily shown to be false. But far too many people with a platform are allowing them to go unanswered, instead complaining that DOJ is not doing enough to defend the rule of law. This sustained effort to turn the Jan 6ers into martyrs will achieve real hold unless it is systematically countered.

Explain how brown and black defendants actually faced worse conditions in the DC jail — and have complained with no results for years

As noted above, after Proud Boy assault defendant Worrell complained about the treatment he received in DC jail, the Marshals conducted a snap inspection. They discovered that the older part of the DC jail, one housing other detainees but not Jan 6ers, did not meet Federal standards and have started transferring those detainees to a prison in Pennsylvania.

What has gotten far less attention is that problems with the DC jail have been known for decades. Even though the problems occasionally have gotten passing attention, in general it has been allowed to remain in the inadequate condition the Marshals purportedly discovered anew because a white person complained.

This is an example, then, when a white person has claimed himself to be the victim when, in fact, it’s yet another example of how brown and black people have less access to justice than similarly situated white people.

This development deserves focused attention, most of all because it is unjust. But such attention will flip the script that Jan 6ers are using in an attempt to get sympathy from those who don’t understand the truth.

Explain how DOJ has lost cases against white terrorists (including on sedition charges) in the past

There’s a lot of impatience that DOJ hasn’t simply charged January 6 defendants with sedition or insurrection.

Thus far, DOJ has chosen to use a less inflammatory and more flexible statute, obstruction, instead. Obstruction comes with enhancements — for threatening violence or especially obstructive behavior — that DOJ has used to tailor sentencing recommendations.

The wisdom of this approach will soon be tested, as several DC Judges weigh challenges to the application of the statute. If the application is overturned, it’s unclear whether DOJ will charge something else, like sedition, instead.

But DOJ probably chose their current approach for very good reason: because sedition is harder to prove than obstruction, and in the past, white terrorists have successfully beaten such charges. That’s true for a lot of reasons, partly because the absence of a material support statute makes association with a right wing terrorist group harder to prosecute.

A cable personality whom I have great respect for — NBC’s Barb McQuade — knows this as well as anyone, as she was US Attorney when a sedition conspiracy case against the Hutaree collapsed. In that case, DOJ had trouble proving that defendants wanted to overthrow the US government, the kind of evidentiary claim that DOJ will face in January 6 trials, even as currently charged.

There are real challenges to prosecuting white terrorism. Some education on this point would alleviate some of the impatience about the charging decisions DOJ has made.

Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect

In the period between the time Steve Bannon was referred to DOJ for contempt and the time he was charged, a number of commentators used the delay to explain what it takes to get an indictment (against a high profile political figure) that stands a chance of work; one good example is this column by Joyce Vance.

There have been and are numerous examples of similar delays — the Tom Barrack indictment and the Rudy Giuliani Special Master review are two — that offer similar teaching opportunities about the process and protections involved in indicting someone.

Due process takes time. And yet in an era of instant gratification, few people understand why that’s the case. If we’re going to defend due process even while trying to defend our democracy, more education about what due process involves would temper some of the panic.

Emphasize the prosecutions/charges/investigations against Trump that have or are occurring

Given the din calling for prosecution of Donald Trump, you’d think none of his associates had been prosecuted. As Teri Kanefield noted the other day, it would be far better if, instead of saying Trump had suffered no consequences for his actions, there was some focus instead on where he had.

Trump’s business is currently under indictment with multiple investigations into it ongoing. His charity was shut down and fined for self-dealing. Trump’s Inauguration Committee will be civilly tried for paying above market rates to Trump Organization.

His Campaign Manager, his National Security Advisor, his Coffee Boy, his Rat-Fucker, and one of his personal lawyers were found guilty of lying to cover up what really happened with Russia in 2016. Several of these men (as well as a top RNC donor) also admitted they were secretly working for frenemy countries, including (in Mike Flynn’s case), while receiving classified briefings as Trump’s top national security aide. Trump’s biggest campaign donor, Tom Barrack, is being prosecuted for using the access he purchased to Trump to do the bidding of the Emirates. Another of Trump’s personal lawyers, Rudy Giuliani, is under investigation for the same crime, secretly working for another country while claiming to represent the interests of the President of the United States.

The sheer scale of this is especially breathtaking when you consider the projection the GOP has — successfully — focused on Hunter Biden for similar crimes. Even with years of effort and help from Russia, the GOP has not yet been able to prove that the President’s son’s influence peddling or potential tax accounting violated the law. Yet the GOP continues to focus on him relentlessly, even as the long list of Republicans who admit to the same crime continues to grow.

Trump has already proven to be the most corrupt president in some time, possibly ever. And instead of relentless messaging about that, Democrats are complaining about Merrick Garland.

Describe the damage done by Trump’s pardons

One reason why it’s hard to focus on all those criminal prosecutions is because Trump pardoned his way out of it. With the exception of Michael Cohen and Rick Gates, all the people who lied to cover up his Russian ties were pardoned, as was Steve Bannon and others who personally benefitted Trump.

Perhaps because these pardons happened in the wake of January 6, Trump avoided some of the shame he might otherwise have experienced for these pardons. But for several reasons, there should be renewed attention to them.

That’s true, for starters, because Trump’s pardons put the entire country at risk. By pardoning Eddie Gallagher for war crimes, for example, the US risks being treated as a human rights abuser by international bodies. The military faces additional disciplinary challenges. And those who cooperated against Gallagher effectively paid a real cost for cooperating against him only to see him escape consequences.

Paul Manafort’s pardon is another one that deserves renewed attention. That’s true not just because the pardon ended up halting the forfeiture that otherwise would have paid for the Mueller investigation, the cost of which right wingers claimed to care about. It’s true because Trump has basically dismissed the import of industrial scale tax cheating (even while right wingers insinuate that Hunter Biden might have made one error on his taxes). And finally, it’s true because Trump made an affirmative choice that a guy who facilitated Russia’s effort to undermine democracy in 2016, sharing information directly with someone deemed to be a Russian spy, should not be punished for his actions.

Finally, there should be renewed attention on what Trump got for his pardons. Did Steve Bannon and Mike Flynn pay central roles in January 6 in exchange for a pardon?

The US needs some means to prohibit such self-serving pardons like Trump pursued. But in the meantime, there needs to be some effort to shame Trump for relying on such bribes to stay out of prison himself.

Describe the way that even loyal Trumpsters will be and have been harmed as he corrupts the rule of law

Donald Trump pardoned Steve Bannon for defrauding a bunch of Trump loyalists. According to very recent reporting, Sidney Powell is under investigation (and being abandoned by her former allies) on suspicion she defrauded the thousands of Trump supporters who sent money to support her election conspiracy theories.

Meanwhile, the Republican Party continues to dump money into protecting Trump for his own crimes, even as Republicans lose races that could have benefitted from the money.

However, some RNC members and donors accused the party of running afoul of its own neutrality rules and misplacing its priorities. Some of these same officials who spoke to CNN also questioned why the party would foot the legal bills of a self-professed billionaire who was sitting on a $102 million war chest as recently as July and has previously used his various political committees to cover legal costs. According to FEC filings from August, the former President’s Make America Great Again committee has paid Jones Day more than $37,000 since the beginning of the year, while his Make America Great

Again super PAC has paid a combined $7.8 million to attorneys handling his lawsuits related to the 2020 election.

“This is not normal. Nothing about this is normal, especially since he’s not only a former President but a billionaire,” said a former top RNC official.

“What does any of this have to do with assisting Republicans in 2022 or preparing for the 2024 primary?” the official added.

Bill Palatucci, a national committeeman from New Jersey, said the fact that the RNC made the payments to Trump’s attorneys in October was particularly frustrating given his own plea to party officials that same month for additional resources as the New Jersey GOP sought to push Republican Jack Ciattarelli over the finish line in his challenge to incumbent Democratic Gov. Phil Murphy.

“We sure as heck could have used $121,000,” Palatucci told CNN.

Loyal Trumpsters are the victim of one after another grift, and that should be emphasized to make it clear who is really taking advantage of them.

And one after another former Trump loyalist get themselves in their own legal trouble. One of the messages Michael Cohen tried to share in his testimony before going to prison was that “if [other Republicans] follow blindly, like I have,” they will end up like he did, going to prison. Hundreds of January 6 defendants — some of whom imagined they, too, might benefit from Trump’s clemency (they still might, but they’ll have to wait) — are learning Cohen’s lesson the hard way.

Kleptocracy only benefits those at the top. And yet Trump’s supporters continue to aggressively pursue policies that will make the US more of a kleptocracy.

It’s fairly easy to demonstrate the damage degrading rule of law in exchange for a kleptocracy is. Except average people aren’t going to understand that unless high profile experts make that case.

Focus on the efforts of Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson to undercut the investigation into Project Veritas’ suspected theft of Ashely Biden’s diary

The Project Veritas scandal remains obscure and may never amount to charges against PV itself. Yet even as it has become clear that DOJ is investigating theft, key Republicans Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson are trying to shut down the investigation into that theft. Chuck Grassley’s efforts to do so are particularly noxious given that a long-term staffer of his, Barbara Ledeen, is a sometime co-conspirator of Project Veritas.

Republicans have undermined legitimate investigations into Trump, over and over, with little pushback from the press. This is an example where it would seem especially easy to inflict a political cost (especially since Grassley is up for re-election next year).

It would be far more useful, in defending rule of law, to impose political costs on undermining the investigations that commentators are demanding from DOJ than it is to complain (incorrectly) that such investigations aren’t happening. Merrick Garland (however imperfect) is not the enemy of rule of law here, Jim Jordan is.

Explain how shoddy John Durham’s indictments are

One of the complaints that David Rothkopf made in the column that kicked off my latest bout of impatience with the hand-wringing about Garland complained that Garland “is letting” Durham charge those who raise concerns about Trump’s ties to Russia, even while (Rothkopf assumes) ignoring Trump’s own efforts to obstruct the investigation.

We have seen that Garland is letting the highly politicized investigation of special prosecutor John Durham into the conduct of the Trump-Russia investigation continue (by continuing its funding). We therefore have the real prospect that those who sought to look into the Trump-Russia ties that both Mueller and Congressional investigations have demonstrated were real, unprecedented and dangerous might be prosecuted while those who actively sought the help of a foreign enemy to win an election will not be.

As I have noted, both of Durham’s indictments have been shoddy work, hanging charges on Twitter rants and other hearsay evidence.

And while there was some worthwhile criticism of the Michael Sussmann indictment (perhaps because he’s well-connected in DC), Democrats seem to take Durham’s word that Igor Danchenko — and not Christopher Steele or Russian disinformation — is responsible for the flaws in the dossier. Perhaps as a result, the legal experts who could point out how ridiculous it is to rely on a Twitter feed for a key factual claim have remained silent.

With such silence, it is not (just) Garland who “is letting [Duram’s] highly politicized investigation” continue unchecked, but also the experts whose criticism could do something to rein him in.

If the investigation is politicized — and it is — then Durham is a far more appropriate target than Garland.

Focus on the legal threats to democracy in the states

There has, admittedly, been deserved focus on the ways Republicans are chipping away at democratic representation in the states.

But that is where the battle for democracy is being fought. And in most of the states where Trump attempted to undermine the 2020 election, there are follow-on legal issues, whether it’s the investigation into the suspected voting machine theft in Colorado (including into a former campaign manager for Lauren Boebert), a seemingly related investigation in Ohio, or the effort to criminalize efforts to ease voting by seniors during the pandemic in Wisconsin.

Republicans are trying to criminalize democracy. That makes it all the more important to ensure that the call for rule of law remains laser focused on the criminal efforts to cheat to win, if for no other reason than to shame those involved.

The threat to democracy is undoubtedly grave. Republicans are deploying their considerable propaganda effort into legitimizing that attack on democracy (even while suggesting Biden has committed the kind of graft that Trump engaged in non-stop, classic projection).

In the face of that unrelenting effort, expert commentators who support democracy have a choice: They can defend the rule of law and shame those who have denigrated it, or they can spend their time complaining about the guy trying, however imperfectly, to defend it himself. The latter will make Garland less able to do his job, the former will help him do whatever he is willing and able to do.

Update: Added “suspected” to the PV bullet.

The Publisher of the Steele Dossier, Ben Smith, Reports that the Hunter Biden Laptop Was Just a Political Dirty Trick

/44 Comments/in , , , /by

The recent Igor Danchenko indictment and overly credulous reporting on it have created a big new push for former BuzzFeed editor Ben Smith to reflect on his role in the dissemination of the Steele dossier.

In a Sunday column on mis- and disinformation, however, he makes no mention of it.

Instead, his column questions the inclusion of the Hunter Biden laptop story in a media executive seminar on, “help[ing] newsroom leaders fight misinformation and media manipulation.” Smith claims that treatment of the laptop story is, in fact, proof that the term “media manipulation” means  “any attempt to shape news coverage by people whose politics you dislike.”

A couple of them, though, told me they were puzzled by the reading package for the first session.

It consisted of a Harvard case study, which a participant shared with me, examining the coverage of Hunter Biden’s lost laptop in the final days of the 2020 campaign. The story had been pushed by aides and allies of then-President Donald J. Trump who tried to persuade journalists that the hard drive’s contents would reveal the corruption of the father.

The news media’s handling of that narrative provides “an instructive case study on the power of social media and news organizations to mitigate media manipulation campaigns,” according to the Shorenstein Center summary.

The Hunter Biden laptop saga sure is instructive about something. As you may recall, panicked Trump allies frantically dumped its contents onto the internet and into reporters’ inboxes, a trove that apparently included embarrassing images and emails purportedly from the candidate’s son showing that he had tried to trade on the family name. The big social media platforms, primed for a repeat of the WikiLeaks 2016 election shenanigans, reacted forcefully: Twitter blocked links to a New York Post story that tied Joe Biden to the emails without strong evidence (though Twitter quickly reversed that decision) and Facebook limited the spread of the Post story under its own “misinformation” policy.

But as it now appears, the story about the laptop was an old-fashioned, politically motivated dirty tricks campaign, and describing it with the word “misinformation” doesn’t add much to our understanding of what happened. While some of the emails purportedly on the laptop have since been called genuine by at least one recipient, the younger Mr. Biden has said he doesn’t know if the laptop in question was his.

And the “media manipulation campaign” was a threadbare, 11th-hour effort to produce a late-campaign scandal, an attempt at an October Surprise that has been part of nearly every presidential campaign I’ve covered.

The Wall Street Journal, as I reported at the time, looked hard at the story. Unable to prove that Joe Biden had tried, as vice president, to change U.S. policy to enrich a family member, The Journal refused to tell it the way the Trump aides wanted, leaving that spin to the right-wing tabloids. What remained was a murky situation that is hard to call “misinformation,” even if some journalists and academics like the clarity of that label. The Journal’s role was, in fact, a pretty standard journalistic exercise, a blend of fact-finding and the sort of news judgment that has fallen a bit out of favor as journalists have found themselves chasing social media.

While some academics use the term carefully, “misinformation” in the case of the lost laptop was more or less synonymous with “material passed along by Trump aides.” And in that context, the phrase “media manipulation” refers to any attempt to shape news coverage by people whose politics you dislike.

Unless Smith considers the two details he cites — some researchers have confirmed that some of the emails are authentic, yet Hunter Biden doesn’t claim to know whether the laptop in question was his — to be proof one way or another that this was a “politically motivated dirty tricks campaign,” he cites no evidence for his conclusion.

Smith doesn’t mention any of the reasons why there was and remains good reason to suspect the laptop — the provenance of which even Glenn Greenwald once proclaimed to be “bizarre at best” — was more than that. From the time President Trump first started extorting an investigation into the Bidens from Ukraine through at least January 2020, Russia’s military intelligence agency, GRU was found hacking Burisma, the company with which Hunter had a sketchy consulting relationship that was the initial hook for the laptop stories. Rudy Giuliani not only played a central role in the brokering of the laptop story, but reportedly had been sitting on a copy of the files for some time. Rudy, of course, had played a key role in Trump’s attempt to extort news of a Biden investigation and even during the impeachment inquiry, in spite of warnings from the intelligence community, traveled to Ukraine to meet with Andrii Derkach, who was subsequently sanctioned as a Russian agent. According to Ben Smith’s employer, Derkach’s efforts to deal “misleading information” to Rudy as part of a 2020 election operation are under investigation by EDNY; a parallel investigation into Rudy for serving as an unregistered agent of Ukrainian interests in events that were part of the impeachment inquiry remains ongoing at SDNY. An intelligence report related to the second story hung on the laptop, regarding Hunter’s ties to China, was disclosed to have been attributed to an intelligence analyst whose identity was entirely fabricated, down to his artificially generated face. And the IC’s report on efforts to interfere in the 2020 election includes one conclusion that sounds suspiciously similar to the efforts that led to the laptop story.

A key element of Moscow’s strategy this election cycle was its use of people linked to Russian intelligence to launder influence narratives–including misleading or unsubstantiated allegations against President Biden–through US media organizations, US officials, and prominent US individuals, some of whom were close to former President Trump and his administration.

If the Hunter Biden laptop story was just a political dirty trick, then it was one that exactly paralleled well-substantiated efforts involving Russian intelligence agents.

We now know, thanks to the investigation into Project Veritas, that the “sister” media package right wing propaganda outlets were pitching, the dissemination of a diary from Hunter’s half-sister in the very same weeks leading up to the election, similarly features a sketchy origin story that — SDNY has shown probable cause to believe — actually serves to hide the theft of the underlying diary. While SDNY has not yet charged anyone much less proven the case, it claims that the story about how reporters came to obtain such a juicy campaign prop was, itself, misinformation hiding theft. That’s another detail that Smith doesn’t mention in his piece.

Even if the similarities between Smith’s “old-fashioned, politically motivated dirty tricks campaign” and the acknowledged interference attempt by Russian agents are mere coinkydink, it nevertheless is the case that the Hunter Biden laptop package was an attempt at media manipulation, part of the reason it was presented to the seminar.

That’s because — again, as even Glenn Greenwald acknowledged — the presumptively authentic emails offered as the dangle in the laptop package provided, “no proof that Biden followed through on any of Hunter’s promises to Burisma.” By offering “authentic” emails and derogatory pictures just before the election, right wing operatives attempted to make a story that had long been reported (and key parts of it debunked by experts testifying under oath as part of the first impeachment) go viral just before the election not by offering any proof of the key allegations, but by waving something “authentic” around that could substitute for real proof.

It briefly worked, too, as high profile journalists disseminated the most inflammatory details in the story — effectively delivering the announcement of a criminal investigation pertaining to Ukraine that Trump demanded from Volodymyr Zelenskyy — and only after that started identifying really problematic parts of the story.

This entire episode was an effort to disseminate something “authentic” that nevertheless lacked proof of the underlying allegations as a way to lead people to believe those allegations. Classic media manipulation, and it nearly succeeded.

And Ben Smith, the man who published a dossier full of unproven allegations that — Republicans in Congress now believe — injected Russian disinformation into what otherwise might have been just an “old-fashioned, politically motivated dirty tricks campaign,” a dossier that (like Hunter Biden’s laptop) long stood as the proxy understanding for a criminal investigation into dramatically different facts, dismisses the possibility that it was disinformation blithely, presenting no real evidence for or against.

It is undoubtedly the case that there remain real questions about the Hunter Biden laptop package, questions that may get renewed attention given the new focus on the Ashley Biden diary package. Maybe one day, Ben Smith will be able to state, as fact, that it was just an, “old-fashioned, politically motivated dirty tricks campaign;” or maybe EDNY will uncover the real provenance of those “authentic” files all packaged up and handed to a guy who made no secret of his willingness to accept and disseminate Russian disinformation.

But at a time when he is actively refusing to reflect on his own actions in disseminating an “old-fashioned, politically motivated dirty tricks campaign” that seems to have been exploited as an easy vehicle for hostile disinformation, Ben Smith might want to be a little more cautious about assuming those lines are so easy to distinguish.