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

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

Both sides in the Michael Sussmann case will give their closing arguments today. I’ll try to watch the live tweets, but will be driving around Achill Island so likely will have little Internet access.

I have yet to see the jury instructions, which will dictate a few details of the closing arguments. Most important — as I have noted before — is whether Durham will have to prove the actual allegations in his indictment.

Mr. Sussmann proposes modifying the last sentence as follows, as indicated by underlining: Specifically, the Indictment alleges that, on or about September 19, 2016, Mr. Sussmann, did willfully and knowingly make a materially false, fictitious, and fraudulent statement or representation in a matter before the FBI, in violation of 18 U.S.C. § 1001(a)(2), namely, that Mr. Sussmann stated to the General Counsel of the FBI that he was not acting on behalf of any client in conveying particular allegations concerning Donald Trump, when, in fact, he was acting on behalf of specific clients, namely, Rodney Joffe and the Clinton Campaign.5 The government objects to the defense’s proposed modification since it will lead to confusion regarding charging in the conjunctive but only needing to prove in the disjunctive.

4 Authority: Indictment.

5 Authority: Indictment.

Durham’s single witness is the only one who claims to have remembered this meeting, but he has had about six different memories of the meeting, and Sussmann made a really good case that Baker’s evolving testimony (as well as that of several other witnesses) is an attempt to avoid legal jeopardy himself. Sussmann has shown a receipt that did not bill his $28.00  taxi to Hillary, and I believe he affirmatively took the meeting time off his bill to Hillary before the election (though I need to check the records).

That leaves Durham with a September 13, 2016 $12.99 receipt for two thumb drives and a Google map from his office to Staples to buy it.

BY MR. KEILTY: Q. Ms. Arsenault, what, generally, is this document?

A. This is an expense report we received from Perkins Coie.

Q. And can you walk the jury through the information in this document.

A. Sure. In the top left corner, the report name is “Purchase of flash drives” on September 13, 2016. The expense owner is Michael Sussmann. The submission date is September 22nd in 2016. If you go all the way down to the allocation summary, the allocations charged is 116514.0001, confidential, for $58.56.

Q. Ms. Arsenault, in your review of records, have you seen that number under the allocations charged, the 116514.0001 number before?

A. I have. Q. Is that related to a certain client?

A. Yes.

Q. What client is that?

A. It’s Hillary For America.

MR. KEILTY: Okay. Mr. Algor, can we next look at Government Exhibit 553.19 — I’m sorry, can you leave it there. (Pause) Can you go down to the next document in 380.

(Pause) Okay. And could you go down to the next document, please, in the same exhibit. Could you blow this up, please.

Q. Ms. Arsenault, what is this particular document?

A. This is the receipt for the expenses reflected in the previous two pages of the expense report.

Q. And was this receipt contained in the records the government obtained from Perkins Coie?

A. It was.

MR. KEILTY: And if you go about halfway down the document, Mr. — sorry, the receipt. Could you blow up the section where it says “PNY 2 Pack,” Mr. Algor. Thank you.

Q. Ms. Arsenault, I think you might have said this, but where is this receipt from? A. Staples.

Q. And what does the blown-out part say?

A. “PNY 2 pack 16GB,” as in gigabyte. And then there’s a UPC code. And the cost was $12.99.

MR. KEILTY: Okay. And moving out of that, can you just blow up the address of the Staples.

Q. Okay. And what’s the address?

A. 1250 H Street N.W., Suite 100, Washington, D.C., 20005.

MR. KEILTY: Okay. And can we please pull up Government Exhibit 553.19 in evidence.

Q. Ms. Arsenault, what are we looking at in Government Exhibit 553.19?

A. This is a disbursement report from the billing records from Perkins Coie.

Q. Okay. And can you walk the jury through this — the blown-out part of this report.

A. The client assigned for this disbursement is Hillary For America. The matter is General Political Advice under 116514.0001. And the description is “Sussmann, Michael A. – M. Sussmann, purchase of new, single use flash drives for secure sharing of files, 9/13/2016.”

Q. Okay. And finally, Ms. Arsenault, I’m going to show you what’s been marked for identification as Government Exhibit 63, which will show up on your screen. Ms. Arsenault, what is Government’s Exhibit 63?

A. It’s a Google map displaying the directions between the office for Perkins Coie to the address listed on the Staples receipt.

Q. And did you create Government Exhibit 63?

A. I did.

Q. And how did you create Government Exhibit 63?

A. I went on Google and I typed in both addresses, and I printed the result.

MR. KEILTY: Your Honor, the government would move Exhibit 63 into evidence.

MR. BOSWORTH: No objection.

THE COURT: So moved.

MR. KEILTY: Mr. Algor, can you blow that up.

Q. Okay. And, Ms. Arsenault, on this map Perkins Coie is listed, is that correct, with the red dot?

A. Yes.

Q. And then there’s a series of blue dots, which apparently lead to a blue bubble; is that correct?

A. Yes.

Q. And what is that blue bubble? What address is that?

A. The blue bubble represents the address listed on the Staples receipt, which is 1250 H Street N.W., Washington, D.C., 20005. [my emphasis]

I expect Durham introduced the map to show that Sussmann went to buy these thumb drives immediately after some phone call or meeting.

As described, there are so many ways to explain these thumb drives. Remember: Sussmann admits he shared the story with the press and wanted it to come out. What he denies is that his intent in going to the FBI was in getting them to investigate to serve the story.

Durham will also claim, probably falsely, that Fusion or Sussmann had to have told Mark Hosenball about the investigation; I know of no evidence that’s the case, Durham’s petter efforts to misrepresent the timeline on Fusion emails suggests he doesn’t have that evidence, and plenty of reason to believe there are other ways he could have learned about this.

Perhaps Durham has more somewhere.

But, particularly depending on the outcome of that jury instruction, even that receipt may not be enough. That’s because Sussmann has presented this piece of proof about how the FBI understood his tip.

One of the first people to respond to this tip (this text is likely in UTC, not ET, so this is likely at 6:31 on September 19, four hours after the meeting) understood it to be:

  • A tip about a Trump company, not Trump himself
  • From the DNC and Clinton
  • Bringing information a private cyber group had identified

That is, whatever Sussmann said in the meeting with Jim Baker, the best representation of what the FBI understood showed him identifying both his possible clients. And identifying a tip not about Trump himself, but his corporate person and a Russian bank that the FBI understood to have ties to Russian intelligence.

It’s hard to claim this alleged lie was material if the FBI responded to it as if he had fully disclosed both Hillary and private researchers like Rodney Joffe’s role in it.

OTHER SUSSMANN TRIAL COVERAGE

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

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

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

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

John Durham’s Lies with Metadata

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

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

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

Jim Baker’s Tweet and the Recidivist Foreign Influence Cheater

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

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

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

Technical Exhibits, Michael Sussmann Trial

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

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

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

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

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

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

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

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

A. Yes.

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

A. Correct, which was wrong.

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

A. I did say that in the meeting.

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

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

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

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

A. That was my take-away.

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

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

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

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

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

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

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

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

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

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

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

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

A. I did not understand that, no.

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

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

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

A. No.

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

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

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

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

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

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

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

Q. But you saw the link message. Right?

A. I did see the link message, yes.

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

Q. What’s your explanation for it?

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

Q. So you think it was a typo?

A. I don’t know.

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

A. That’s correct.

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

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

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

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

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

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

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

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

A. That’s correct.

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

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

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

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

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

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

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

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

And then testify last week this way.

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

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

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

A. Correct.

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

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

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

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

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

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

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

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

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

A. (No response)

Q. Tried to be as truthful as you could?

A. Yes, sir.

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

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

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

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

OTHER SUSSMANN TRIAL COVERAGE

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

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

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

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

John Durham’s Lies with Metadata

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

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

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

Jim Baker’s Tweet and the Recidivist Foreign Influence Cheater

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

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

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

Technical Exhibits, Michael Sussmann Trial

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

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

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

One of key piece of evidence to John Durham’s prosecution against Michael Sussmann are the notes that Bill Priestap took reflecting Baker saying that Sussmann, “said not doing this for any client.”

On the stand, Priestap remembered nothing about this meeting.

Baker, though, claims he remembers a bunch of things.

In response to Sean Berkowitz’s attempt to pin down his testimony the other day, Baker said that his meeting with Sussmann was thirty minutes long. That’s not actually a direct memory, it seems. It is one reconstructed, Baker says, from calendars and the chain of custody document.

Q. How long was the meeting?

A. Which meeting?

Q. September 19th, 2016

A. About 30 minutes.

Q. How sure are you of that?

A. I’m going from the calendar entries and the entries on that chain of custody document.

Q. Okay. Not from your memory? You’re looking at documents?

A. I remember it was a short meeting. I would view a 30-minute meeting as a short meeting.

The chain of custody document shows that Baker took possession of the thumb drives at 2:30PM on September 19, 2016.

There are problems with relying on the chain of custody document to reconstruct your memory though, because it was, itself, reconstructed after the fact, the next day. One FBI agent discussing this process even joked that this amounted to “doctoring” the chain of custody — and with it, six years later, doctoring Baker’s current memory.

Baker professes to be slightly more certain about his meeting with Priestap, at which he relayed what had happened in the meeting with Sussmann. Baker “immediately or very close afterwards” called Priestap and told him what happened in the meeting.

Q. Okay. Now, taking us back to our time period, 15 we’ve left you getting the information from Mr. Sussmann on the 19th, and you immediately or very close afterwards called Mr. Priestap?

A. Yes, sir.

And the meeting was ten or fifteen minutes long.

Q. How long was the conversation with Mr. Priestap?

A. I don’t think it was a very long conversation. Ten minutes, maybe, fifteen minutes, something like that.

That’s a problem for Durham’s narrative. That’s because according to Baker’s own calendar, he had a meeting immediately after the one with Sussmann. The meeting with Sussmann ended at 2:30, his calendar showed, which is what the “doctored” chain of custody document says. Immediately after that he had a meeting with someone named Rich.

In fact, per his calendar, Baker was busy straight through until 4PM (though it’s unclear from Baker’s calendar precisely when the meeting with Rich happened). And the first Deputies Committee meeting after his meeting with Sussmann — which is the best explanation for Trisha Anderson’s notes — happened the next day, on September 20.

I haven’t yet seen how Sussmann’s lawyers got this into evidence yesterday (I’m still working through the morning transcript). But it’s possible that Baker never refreshed his memory with this calendar.

That’s because this calendar was extracted from Baker’s Samsung phone by DOJ Inspector General’s Office back in 2018. This is the phone that Durham had been told about in real time in 2018 (when Durham was investigating Baker for something else), but nevertheless didn’t think to look for the phone before charging Sussmann, and so only found it four months after the indictment.

When confessing all this confusion to Judge Cooper (as I explained in this post), Durham explained he hadn’t taken the basic investigative step of reviewing the contents of Baker’s phone before charging Sussmann because his memory didn’t go back four whole years — or even two, which is when Durham started interviewing Baker in this investigation.

Paragraph 10(a)(ii) states: “[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.” Id. The Government wishes to provide some additional context for this statement.

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 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 thenFBI 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. [my emphasis]

Durham forgot that he knew about the phone.

And because he forgot that he knew about the phone until it was too late, it’s not actually clear whether Baker’s reconstructed memory has faced the fact that he could not have had a 30 minute meeting with Sussman followed by a 10 minute call with Priestap and still made his 2:30PM meeting with Rich.

And given that both Baker and Priestap have testified, it’s probably too late to doctor a new memory to explain this all.

OTHER SUSSMANN TRIAL COVERAGE

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

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

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

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

John Durham’s Lies with Metadata

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

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

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

Jim Baker’s Tweet and the Recidivist Foreign Influence Cheater

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

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

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

Technical Exhibits, Michael Sussmann Trial

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

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

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

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

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

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

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

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

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

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

A. Yes.

[snip]

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

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

A. Yes.

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

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

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

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

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

A. Yes.

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

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

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

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

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

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

The only Bates stamp on this exhibit looks like this:

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

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

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

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

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

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

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

A. Yes.

Q. That’s Mr. Durham?

A. Yes.

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

Loss of his legal career.

Being prosecuted.

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

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

A. Yes. Yes.

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

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

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

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

MR. BERKOWITZ: The date, Mr. Cleaves.

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

BY MR. BERKOWITZ:

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

A. Right.

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

A. Yes, I did.

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

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

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

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

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

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

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

The Bates stamp for this exhibit looks like this:

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

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

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

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

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

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

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

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

A. I disagree with that.

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

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

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

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

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

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

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

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

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

Baker didn’t recall giving that conflicting testimony.

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

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

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

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

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

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

A. It’s a report of an interview.

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

A. Correct.

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

A. Correct.

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

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

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

Q. And it’s your testimony

MR. BERKOWITZ: You can take that down.

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

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

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

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

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

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

A. Okay.

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

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

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

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

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

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

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

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

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

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

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

Q. Yes.

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

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

DeFilippis objected.

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

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

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

THE COURT: Overruled.

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

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

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

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

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

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

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

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

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

A. (No response)

Q. Tried to be as truthful as you could?

A. Yes, sir.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Other Sussmann trial coverage

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

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

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

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

John Durham’s Lies with Metadata

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

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

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

Jim Baker’s Tweet and the Recidivist Foreign Influence Cheater

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

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

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

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

During his cross-examination of Jim Baker, Michael Sussmann’s lawyer Sean Berkowitz introduced the Electronic Communication that opened the investigation pertaining to the Alfa Bank anomaly. He did so, ostensibly, to show that when DeFilippis elicited Jim Baker to explain the predication of investigations, Baker claimed not to remember that an investigation into the Alfa Bank anomaly had been opened, and claimed not to remember that the EC erroneously said the investigation was a referral from DOJ.

Q. And you were aware, though, because the government showed you a document, that a particular file number here was opened up, correct?

A. I don’t — did I see that? I don’t remember seeing that yesterday.

Q. Let’s show — I don’t think they showed it to you yesterday. They showed it to you in one of your preparation exhibits.

A. Okay. Okay.

Baker should have known it because he was shown the Electronic Communication during an interview with Durham, but he had forgotten it on the stand. So this appeared to be yet another attempt to show Baker’s hot-and-cold running memory.

When Berkowitz moved to enter it into evidence, DeFilippis noted it was a government exhibit, suggesting they weren’t hiding it (even though they hadn’t shown it to Baker on the stand). Probably they would have introduced it when Alfa Bank case agent Allison Sands testifies, probably Monday.

But introducing it with Baker gave Sussmann an opportunity to lay out several huge problems with Durham’s case against him and ensure that DeFilippis has to deal with this EC with Sands.

First, there’s this: When the FBI opened an investigation into this anomaly, they considered it an investigation into Alfa Bank.

This was an investigation into Alfa Bank. Not an investigation into Donald Trump.

In the part of the EC that explains why they opened it, they repeat, again, that it’s an investigation into Alfa Bank. But they also opened it because the FBI was still trying to figure out what Trump associate got an advance heads up that the Russians were going to intervene to hurt Hillary. But even in the context of the fact that one of the agents investigating Crossfire Hurricane had been pulled back to Chicago to work on this investigation, the investigation was not into biological human Donald Trump, it was into corporate human Trump Organization.

Based on the information above, FBI Chicago has predicated a Full Counterintelligence investigation into the activities of ALFA BANK, in order to conduct further investigation regarding the extent and nature of the network communications between ALFA BANK and the TRUMP ORGANIZATION. This investigation will attempt to determine the validity of the information that was provided by the third-party entity, and to assess whether or not pose a threat to either the TRUMP ORGANIZATION, or United States national security.

In addition, FBI investigation [redacted] [CROSSFIRE HURRICANE] was predicated based on an allegation that a member of the TRUMP campaign had received a suggestion from the Russian Government, indicating that the Russian government could assist the TRUMP campaign with an anonymous release of information during the campaign, which would be a detriment to the HILLARY CLINTON campaign. Investigation in [redacted] has surfaced additional ties between the TRUMP campaign team and the Russian government.

Investigation of the communications between the Russian ALFA BANK and the TRUMP ORGANIZATION could provide additional insight about the connections between the TRUMP ORGANIZATION and Russia, and help to determine whether those ties pose a threat to United States national security.

This matter is being treated as a Sensitive Investigative Matter based on the fact that the TRUMP ORGANIZATION is affiliated with a current U.S. Presidential candidate. As such, FBI Chicago requests that FBIHQ/NSLB coordinate with the US DEPARTMENT OF JUSTICE to provide all appropriate notifications required by the DIOG.

So it was sensitive because it related to Trump Organization, and only through that corporate human, to the biological human who was a presidential candidate. Even there, the EC at least envisioned, appropriately, that Trump might be a victim of this, as he would be if someone were trying to infiltrate the campaign or his company.

And in fact, Durham’s own evidence supports the predication against Alfa. The script that Durham falsely suggested (he will be disproven on this point later) were the basis for the research in the technical white paper was focused on Alfa Bank.

There is another that includes the anomalous mail server in question, right next to dcleaks — a query that may well have returned data on Roger Stone’s pre-public searches on the domain, and in any case, since this was entered as a government exhibit, should have obliged Durham to turn over details of these Stone searches.

It’s only a request from July 2017 — probably in conjunction with Dan Jones’ attempt to chase down this anomaly — that the searches were called “Trump query jobs,” and even there, one was focused on Alfa Bank.

The FBI viewed this as an investigation into Alfa Bank, and Joffe’s data requests actually reinforce that.

That creates three problems for Durham.

First, on redirect, DeFilippis got his star cyber agent Scott Hellman, to offer up this explanation for why he found the white paper crap when the counterintelligence people saw something more. It’s about the data, his star witness said.

Q. Now the counterintelligence division, when they look at information like this, are they looking at it with an eye towards the same issues or different issues from the cyber division?

A. Um, I think they’d probably be looking at it from the same vantage point, but if you’re not — you don’t have experience looking at technical logs, you may not have the capability of doing a review of those logs. You might rely on somebody else to do it. And perhaps counterintelligence agents are going to be thinking about other investigative questions. So I guess it would probably be a combination of both.

Never mind that the evidence shows that Hellman didn’t look closely at the data, which caused him to make a false claim in his own assessment of it. He should know that this tied in with the investigation into whom, in Trump’s camp, got advance notice that Russia was going to attack Hillary, because he was on an email that his boss, Nate Batty, sent laying out how the guy investigating George Papadopoulos had been called back to Chicago to also look at this.

Curtis has been working (TDY) the election issues and has been called back by CD to work matters related to this white paper. CG had a copy of the white paper I forwarded to you from CD channels, and was inquiring as to whether ECOU 1 had any logs or other data from the referenced server.

Sure, maybe his comment about “other investigative questions” covers Hellman here. But the reason CD looked at this differently is because they were hunting for the Trump associate who got advance notice of the hack-and-leak. Hellman knows that.

Another problem this creates for Durham is that — as laid out here — he accused Michael Sussmann of lying about sharing allegations about “a Presidential candidate.”

As Sussmann noted in a recent filing summarizing conflicting views on jury instructions, Durham’s indictment describes Sussmann’s alleged lie this way:

[O]n or about September 19, 2016, the defendant stated to the General Counsel of the FBI that he was not acting on behalf of any client in conveying particular allegations concerning a Presidential candidate, when in truth, and in fact, and as the defendant knew well, he was acting on behalf of specific clients, namely, Tech Executive-1 and the Clinton Campaign.

Never mind that Durham characterized the allegations as pertaining to “a Presidential candidate,” which presents other problems for Durham, he has also accused Sussmann of lying about having two clients.

Mr. Sussmann proposes modifying the last sentence as follows, as indicated by underlining: Specifically, the Indictment alleges that, on or about September 19, 2016, Mr. Sussmann, did willfully and knowingly make a materially false, fictitious, and fraudulent statement or representation in a matter before the FBI, in violation of 18 U.S.C. § 1001(a)(2), namely, that Mr. Sussmann stated to the General Counsel of the FBI that he was not acting on behalf of any client in conveying particular allegations concerning Donald Trump, when, in fact, he was acting on behalf of specific clients, namely, Rodney Joffe and the Clinton Campaign.5 The government objects to the defense’s proposed modification since it will lead to confusion regarding charging in the conjunctive but only needing to prove in the disjunctive.

4 Authority: Indictment.

5 Authority: Indictment.

Durham’s language about “conjunctive” versus “disjunctive” will likely be the matter for heated debate next week. Particularly in the wake of Cooper’s decision that the materials from the researchers won’t come in as evidence, Durham seems to be preparing to prove only that Sussmann lied about representing Hillary, and not about Joffe. Sussmann, meanwhile, seems to believe that Durham will have to prove that his alleged lie was intended to hide both alleged clients.

At least the people who opened this investigation didn’t see these allegations to pertain to Donald Trump, biological human They viewed them, first and foremost, as an allegation about Alfa Bank, and secondarily as an allegation about corporate human, Trump Organization.

This distinction will show up over and over again in the next week.

Finally, this goes to materiality. There was no way FBI was going to take allegations that might explain who got advance notice of the hack-and-leak attack on Hillary and not see if it answered that question. Durham wants to complain that this got opened as a Full Investigation when the allegations weren’t that strong. They weren’t! But the reason why it got opened as a Full Investigation is because Crossfire Hurricane had already been opened as a Full Investigation looking for the unknown subject who had gotten a heads up on Russia’s attack plans,

Sussmann has both Jonathan Moffa (who is included on this opening EC) and Michael Horowitz slotted as witnesses next week. He explicitly said that Moffa will address materiality and, depending on how things go, Horowitz’s determination that CH was properly predicated as a Full Investigation might become an issue as well.

In other words, Durham is going to have to talk about Crossfire Hurricane.

And from there, things could get worse, because we know Durham didn’t provide discovery to allow Sussmann to fully argue these issues.

John Durham is prosecuting Michael Sussmann because he brought allegations to the FBI about a bank that has now been sanctioned as part of an effort to halt Russia’s efforts to dismantle democracies in Ukraine and elsewhere, including the United States. Yet for months, he has claimed that such a tip did grave damage to Donald Trump.

Other Sussmann trial coverage

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

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

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

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

John Durham’s Lies with Metadata

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

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

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

Jim Baker’s Tweet and the Recidivist Foreign Influence Cheater

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

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

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

In the first words of her opening argument in the Michael Sussmann case, Durham prosecutor Brittain Shaw argued that this case is all about Sussmann’s privilege, his purported ability to exploit high level ties at DOJ to seed what she claims would be a smear campaign against the guy who was, in fact, hiding secret communications with the Kremlin and soliciting hacks of his opponent.

The evidence will show that this is a case about privilege: the privilege of a well-connected D.C. lawyer with access to the highest levels of the FBI; the privilege of a lawyer who thought that he could lie to the FBI without consequences; the privilege of a lawyer who thought that for the powerful the normal rules didn’t apply, that he could use the FBI as a political tool.

The really painful irony of this case, though, is that Sussmann is being significantly hamstrung because of privilege, attorney-client privilege, because it is limiting his ability to present evidence about what really happened.

When Judge Christopher Cooper ruled that a subset of emails that had been protected under privilege were not, after all, he explained that, the documents, “do not strike the Court as being particularly revelatory.” Even so, Sussmann and Fusion can’t, ethically, simply offer up emails over which the Democrats are claiming privilege. There’s good reason to believe if they could, they could show that significant parts of Durham’s conspiracy theory have been based on imagining that Democrats were hiding the worst possible plotting behind privilege claims, when in fact the reality was much more mundane.

Take two exhibits from the trial as an example. Durham is making much of a September 15, 2016 email from Marc Elias to top people on the campaign. Its subject line was “Alfa article.” But it appears to be sharing an article about “testimony of an oil trader.” If Sussmann could share it, it might simply show that Elias had seen an article about corruption and seen some tie with the Alfa Bank allegations. He can’t, because Elias is the one who made that connection.

Meanwhile, two exhibits Sussmann introduced into evidence show Robby Mook — who is not a lawyer — sharing Sidney Blumenthal “intelligence” with him that the Trump campaign was freaking out because they had gotten advance word of a NYT article about Trump’s ties with Russia.

The Trump campaign is having “a major league freak-out,” according to a Republican source who has been reliable in the past. What is causing the Trump “freak-out” is anticipation of an investigative story to be published by the New York Times. The subject is described as “Russia” and “a disaster.” “That is completely the story of everything going on since Thursday,” insists the source. The Times story, says the source, accounts for Tramp’s extraordinarily defensive aggressive reactions–his declaration that he will sue the New York Times, his personal tweeting attack on Maureen Dowd as “wacky” and a neuSidney rotic dope,” (though the source says “that’s just him anyway”), his call for the assassination of HRC, and the campaign’s push to the media of the flat-out lie that I was behind birtherism in 2008. On Saturday night, Trump tweeted: “My lawyers want to sue the tailing @nytimes so badly for irresponsible intent. I said no (for now), but they are watching. Really disgusting.” Trump did not specify why the Times might be guilty of”irresponsible intent,” which in any case lacks any legal weight. Earlier on Saturday, he tweeted that the Times was “a laughingstock rag.” The atmosphere inside the campaign is described as chaotic, frenetic and “spontaneous.” Bannon and Bossie are said to be grasping at anything to throw back in order to distract from and fend off the coming story. Journalistic sources have independently said that reporters at the Times are working on a Tromp-Russia story.

It wouldn’t be a high profile political trial, I guess, if Sid Blumenthal didn’t make a showing. Note that Mike Flynn’s Mueller interviews show him responding to some Sid Blumenthal stuff in precisely this period, so it’t clear Sid was talking to Republicans.

Anyway, that part — Blumenthal sharing with Mook — was not privileged. And that part makes it clear that Elias was right to be concerned about Trump suing if the Hillary campaign made factual observations about his ties with Russia. It also may (though this is uncertain) back Sussmann’s understanding that Eric Lichtblau was close to publishing the Alfa story, so close that Trump’s moles at the NYT had alerted him to it. But whatever Mook said about it to Elias, the campaign’s lawyer guarding against lawsuits, is privileged, as whatever Elias said to Sussmann and the Fusion guys when he forwarded Mook’s comment would be.

Whatever was said may have influenced Sussmann’s decision to go to the FBI, though, as this was shortly before he texted Jim Baker and asked to meet.

In his testimony, Elias stated that he had not given Sussmann permission to go to the FBI with the Alfa Bank story. He doesn’t think he knew until shortly afterwards, though could have learned before (the Blumenthal story may serve to explain a call that Sussmann knows prosecutors plan to dramatically reveal).

You testified that you became aware that Mr. Sussmann went to the FBI. Correct?

A. Yes.

Q. And your testimony was that you think that you were told right after, although there’s a possibility it was right before?

A. Yes.

Q. Your best recollection is which of those?

A. Is after.

Q. Okay. Did you tell him to go to the FBI?

A. No.

Q. Did he seek your permission to go to the FBI?

A. No.

Q. Did you authorize him to go to the FBI?

A. No.

Q. Are you aware of anyone at the Clinton Campaign that authorized Mr. Sussmann to go to the FBI to share the possibility of The New York Times story?

A. Not that I’m aware of. No.

Q. Did you consent to his going to the FBI?

A. No, not that I remember. No.

Elias even explained what a colossally bad idea it would be for a candidate whose campaign had been badly damaged by Jim Comey to go to the FBI.

A. First of all, the FBI had in my view not been particularly helpful in investigating or doing anything to prevent the leaks of the emails. The exfiltration is one thing, you know, the stealing of the emails. But the publication of the emails, it was not just this one time. I mean, we were dealing with multiple publications of emails. And it was not just this one client.

And I think my sense was that the FBI was not for a variety of reasons going to do anything that was going to be — like stop bad things from happening, which would be one reason to go for the FBI.

The second, which is more unique to the Clinton Campaign, is that I think he was then the FBI director, but James Comey had taken public stances in around that time period that were in my view unfair and putting a thumb on the scale against Secretary Clinton.

So I’m not sure that I would have thought that the FBI was going to be — give a fair shake to anything that they viewed as anti-Trump or pro-Clinton.

And then the final thing is that if The New York Times was going to run this story, like that’s the goal. Right? The New York Times runs the story. If you get the FBI involved, any number of things could prevent that from happening. Right?

In the most extreme instance, the FBI can go to the publication and say: Please don’t. But the second is, the newspaper itself might then want to do further reporting on the FBI investigation and delay its story. Right?

So, like, even in a world in which, like, the FBI is being helpful — not being helpful; even in a world in which the FBI is doing stuff, the media may not run the story because they want to get the full picture because they view the FBI piece of it as an essential piece of the story.

It’s certainly possible that, given this advance warning of a Trump shit-storm, Sussmann decided it would be best to give FBI a head’s up. Sussmann, however, can’t ethically share the communications between Elias and him, even if it would help him. That’s how privilege works.

With that in mind, consider what Shaw said in Durham’s bid to keep Eric Lichtblau off the stand (this appears to have been filed two days after Judge Cooper ordered it, but one of the Durham lawyers has had a family emergency so they may have gotten an extension).

After explaining that prosecutors need to question Lichtblau about things the scope of which have been specifically excluded in the trial, a footnote claims that they won’t violate Judge Cooper’s rules about such things (they have, serially, during the trial).

The government should be permitted to cross-examine Lichtblau about any communications he had with other individuals, including, but not limited to, Fusion GPS personnel and computer researchers, regarding the alleged connections between the Trump Organization and Alfa bank. To the extent Sussmann, Fusion GPS, or others (including computer researchers) approached or communicated with Lichtblau concerning Alfa Bank or related matters, the government should be permitted to question Lichtblau about such exchanges, as they are relevant to the defendant’s communications with Lichtblau on these same issues and are probative of the defendant’s alleged actions on behalf of clients (Rodney Joffe and the Clinton Campaign). The government also intends to cross-examine Lichtblau on issues pertaining to the credibility and reliability of his testimony. 1

[snip]

If Fusion GPS (which was hired by the defendant’s firm on behalf of the Hillary for America Campaign) and other persons known to Joffe and/or Sussmann similarly supplied opposition research-type information to Lichtblau regarding the Trump Organization as a part of a coordinated effort, this would be relevant to demonstrate that Sussmann was not acting merely as a concerned citizen trying to help the FBI when he met with FBI General Counsel and that his contrary representations were false. Indeed, the Government is aware that Sussmann and Joffe did enlist and/or task one or more other computer researchers to communicate with the media (including Lichtblau) concerning these matters

1 The government will abide by the Court’s order of May 7, 2022 and, in accordance with that order, will not “put on extensive evidence” about the accuracy of the data provided by Sussmann or his clients to the FBI, Lichtblau, or others. See Op. & Order (“In Limine Order”) at 5, ECF No. 121. [my emphasis]

Here, Shaw states as fact that the computer research was opposition research. It was not.

I am 100% certain that if Lichtblau could testify about all the people he spoke with on this story, he could explain that many if not most of the people involved — as well as a bunch of other people, including at least one whom prosecutors have affirmatively claimed did not have a role in chasing down this anomaly — believed the anomaly was real and were motivated out of a genuine alarm about the Russian attack that year. Yes, the NYT found people who pushed back (more so after the FBI killed the story). But that’s what makes Lichtblau’s work reporting, not opposition research.

If Lichtblau is able to testify, he could also provide a key piece of important context to evidence the government has already presented. Yesterday, Jim Baker described how, starting on September 21, he reached out to Sussmann for the name of the reporter working on the story.

Baker provided Lichtblau’s name to Bill Priestap before noon on September 22. But Lichtblau didn’t meet with the FBI until Monday, September 26.

We know that in between, the FBI called Cendyn, leading them to alter their DNS address, and the NYT called a representative for Alfa Bank which later — NYT believed, at least — led Alfa to alter their DNS address. The NYT believed that there was a response from Alfa that indicated they were trying to hide this activity.

A key part of Durham’s claim is that NYT wasn’t close to publishing when Sussmann went to the FBI and that Sussmann was, instead, trying to provide urgency for the story. That doesn’t accord with my understanding and it doesn’t accord with what Dexter Filkins has written. Durham can keep telling it so long as Lichtblau doesn’t testify.

One thing that happened, though — in addition to initial contacts that would have alerted Lichtblau that the FBI didn’t want him to publish — was the response to those calls after Sussmann and Joffe decided to share Lichtblau’s name. There was new news that Lichtblau had to try to understand that created a new delay.

As with Sussmann, it would be nice for Lichtblau if he could describe all the efforts he made to verify the story. If he could, it would demonstrably undercut several of the claims Durham is making. He can’t, because he has separate confidentiality agreements with those other sources.

Shaw, who accuses Sussmann of being privileged, completely flips how privilege works on its head (including by mis-citing the David Tatel concurrence in the Judy Miller subpoena, which as I understand it would support Lichtblau making the call about the scope of his testimony). She ties it to a topic rather than a privileged relationship to accuse Lichtblau of trying to selectively pick which parts of the story he can tell.

The D.C. Circuit has “declined to adopt a selective waiver doctrine” in the context of attorney-client communications that “would allow a party voluntarily to produce documents covered by the attorney-client privilege to one party and yet assert the privilege as a bar to production to a different party.” United States v. Williams Companies, Inc., 562 F.3d 387, 394 (D.C. Cir. 2009). “The client cannot be permitted to pick and choose among his opponents, waiving the privilege for some and resurrecting the claim of confidentiality to obstruct others.” Permian Corp. v. United States, 665 F.2d 1214, 1221 (D.C. Cir. 1981). Privilege holders must instead “treat the confidentiality of attorney-client communications like jewels—if not crown jewels” because courts “will not distinguish between various degrees of ‘voluntariness’ in waivers of the attorney-client privilege.” In re Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989).

This principle—which restricts a privilege of “ancient lineage and continuing importance,” In re Sealed Case, 877 F.2d at 980—necessarily governs the novel and qualified reporter’s privilege advanced in this case. Sussmann subpoenaed Lichtblau to appear as a witness and Lichtblau has not moved to quash. Lichtblau and defendant Sussmann cannot “tactical[ly] employ[]” the asserted privilege to pick and choose the topics that may be put to Lichtblau on the witness stand. Permian Corp., 665 F.2d at 1221. Privileges are not “tool[s] for selective disclosure.” Ibid

I get why someone in the grips of a fevered conspiracy theory would make this argument. Durham believes that everyone involved with the Alfa Bank story was part of the same malicious conspiracy targeting poor Donald Trump, even though DOJ has in its possession abundant proof that’s false. Yet even in this case, Cooper has distinguished between the privileged relationships that Joffe has with what the Democrats have, and he has also pointed to affirmative evidence that this wasn’t one big conspiracy.

But Shaw would have you believe that Lichtblau’s privilege obligations are tied to a project, a story, and not a bunch of individuals, many of whom he had existing relationships with well before this story.

A lawyer not in the grip of a fevered conspiracy theory, however, would understand that that kind of privilege doesn’t make you special, it creates an obligation, even if the obligation prevents you from using your profession from helping yourself.

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

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In this post, I laid out the elements of the offense, a single count of a false statement to the FBI, which will drive the outcome of the Michael Sussmann trial, in which jury selection begins today. As I showed, John Durham has to prove that:

  • Michael Sussmann said what Durham has accused him of saying, which is that he was not sharing information with the FBI on behalf of any client
  • Sussmann said that on September 19, not just September 18
  • Sussmann meant his statement to be understood to mean that no client of his had an interest in the data, as opposed to that he was not seeking any benefit for a client from the FBI
  • The lie made a difference in how the FBI operates

In this post I’d like to say a bit about the expected witnesses. Before I do, remember the scope of the trial, as laid out in several rulings from Judge Cooper.

  • Durham can only raise questions about the accuracy of the Alfa Bank anomaly if Sussmann does so first
  • He generally can only discuss how the data was collected via witnesses; with one exception, Cooper has ruled the emails between Rodney Joffe and researchers to be inadmissible in a trial about whether Sussmann lied
  • While Cooper found that 22 of 38 Fusion emails over which Democrats had claimed privilege were not privileged, he also ruled that because Andrew DeFilippis got cute in delaying his request for such a review, Durham can’t use those emails or pierce any related claims of privilege at trial
  • That leaves the unprivileged emails between Fusion and journalists, which Cooper has ruled admissible; he even considered changing his decision and letting a tweet from Hillary come in as evidence (though note that the emails Durham got pre-approved barely overlap with the emails Durham wants to use at trial, so there still could be problems admitting individual emails at trial)
  • Cooper ruled the communications between Rodney Joffe, the person who shared the DNS anomaly with Michael Sussmann, and Laura Seago, his connection with Fusion, were privileged
  • Cooper ruled that Sussmann can elicit testimony from witnesses, including Robby Mook and Marc Elias, about how Trump’s request that Russia hack Hillary some more made him not just a campaign opponent, but a threat to national security

As I noted, a dispute over the final jury instructions suggests that Durham is beating a tactical retreat from his charged claim that Sussmann lied to cover up that he was representing both Hillary and Rodney Joffe.

Mr. Sussmann proposes modifying the last sentence as follows, as indicated by underlining: Specifically, the Indictment alleges that, on or about September 19, 2016, Mr. Sussmann, did willfully and knowingly make a materially false, fictitious, and fraudulent statement or representation in a matter before the FBI, in violation of 18 U.S.C. § 1001(a)(2), namely, that Mr. Sussmann stated to the General Counsel of the FBI that he was not acting on behalf of any client in conveying particular allegations concerning Donald Trump, when, in fact, he was acting on behalf of specific clients, namely, Rodney Joffe and the Clinton Campaign.5 The government objects to the defense’s proposed modification since it will lead to confusion regarding charging in the conjunctive but only needing to prove in the disjunctive.

Durham wants to be able to get a guilty verdict if the jury decides that Sussmann was hiding Hillary but not hiding Joffe. What Durham will really need to prove won’t be finalized until sometime next week, meaning both sides will be arguing their cases without knowing whether Durham will have to prove that 1) the allegations pertained to Donald Trump personally 2) Sussmann had two clients 3) he lied to hide both of them, or whether he has to prove only that Sussmann lied to hide one or more client.

Durham’s tactical retreat is likely dictated by the scope set by Cooper and will dictate the witnesses he wants to call.

This post laid out whom, as of last week, each side planned to call. Remember that it’s not uncommon for a defendant not to put any witnesses on the stand (though I would be surprised if that happened in this case). Normally, the scope of a witness’ testimony is set by the Direct examination of them. So, for example, if Durham puts Marc Elias on the stand to talk exclusively about his decision to hire Fusion GPS, then Sussmann could not ask him questions about other topics. But Sussmann incorporated Durham’s entire witness list, and Cooper ruled that he would rather not have to call people twice. So for at least the Democratic witnesses, Sussmann will have the ability to ask about things that Durham would really prefer not to appear before the jury even though Durham called that witness as a government witness. Because Durham doesn’t understand much of what really went on here, that may be a really useful thing for Sussmann to exploit.

Summary Witness: It is typical for prosecutors to call one of their FBI agents at trial as a sort of omniscient narrator who can both introduce a vast swath of evidence (such as records the accuracy of which have been stipulated for emails that can be introduced without witness testimony) and provide some interpretation of what it all means. Usually, that agent is not the lead agent, because the lead agent knows things that the prosecutor wants to keep from the defendant and the public, either details of an ongoing investigation or major investigative fuck-ups that haven’t been formally disclosed to the defendant. As of last week, DeFilippis maintained that, “It may be an agent who’s our summary witness, but we’re not looking to put a case agent on the stand.” That suggests there is no agent on his team that is sufficiently compartmented from his secrets to take the stand. Judge Cooper seemed a bit surprised by that.

Jim Baker: Jim Baker is the single witness to Michael Sussmann’s alleged crime. Durham is going to have a challenge walking him through the version of this story Durham wants to tell, not least because the materiality parts of it — whether Baker thought it unusual to hear from Sussmann, whether he thought it mattered who Sussmann’s client was — are also recorded in Baker’s past sworn testimony. Given the late discovery of a text showing that Sussmann wrote Baker on September 18 telling him he wanted to benefit the FBI, and given the even later discovery of March 2017 notes recording that the FBI understood that Sussmann did have an (undisclosed) client, Sussmann doesn’t even have to trash Baker to call into question his memory: he can allow Baker to admit he can’t separate out what happened in which of at least five communications he had with Sussmann that week, the sum total of which show that Sussmann wasn’t hiding the existence of a client, did represent that he was trying to help the FBI, and did help the FBI. The cross-examination of Baker will, however, be an opportunity for Sussmann to implicate Durham’s investigative methods, both for building an entire case around Baker after concluding, years earlier, that he wasn’t credible, and then, for refreshing Baker’s memory only with the notes that said what Durham wanted Baker to say, and not what the FBI ultimately came to know.

Bill Priestap and Tisha Anderson, Mary McCord and Tasha Gauhar: This trial is expected to feature two sets of witnesses — the first set called by Durham and the second called by Sussmann — who will be asked to reconstruct from their own notes what was said in a meeting attended by Baker. Priestap and Anderson will say that the day of Baker’s meeting with Sussmann, they wrote down that Sussmann didn’t have a client (but not in the words Sussmann is known to have used or the words that Durham has charged). McCord and Gauhar will say that in March 2017, Andy McCabe stated, in front of Baker and with no correction, that the FBI did know Sussmann had a client. The only notes in question that use the same phrase — “on behalf of” — that Durham used in the indictment say that Sussmann did say he was meeting with FBI on behalf of someone. I expect at least several of these witnesses will be asked materiality questions: If they didn’t ask who the client is, doesn’t that prove it didn’t matter? The notes of everyone involved, importantly, emphasized the import of Sussmann sharing an imminent newspaper article. Sussmann will also ask Priestap how and why he asked the NYT to hold the Alfa Bank story.

Agents Heide, Sands, and Gaynor, plus Agent Martin: Durham plans to call three of the FBI Agents who investigated the anomaly — for a couple of hours each, in the case of Heide and Sands — to talk about how they did so. Let me suggest that not only is this overkill, it may backfire in spectacular fashion, because the March 2017 notes make it clear that these agents did not take very basic steps to chase this anomaly down and Heide, at least, is not a cyber agent (in the same period he was also investigating George Papadopoulos). In addition to having those hours and hours of testimony, Durham will call Agent Martin, ostensibly to explain what one could learn from the anomaly, though there’s still a fight about the scope of his testimony,  particularly with respect to misleading claims he would make about the scope of the data accessed to find the anomaly in the first place.

Antonakakis, Dagon, DeJong, and Novick: According to what DeFilippis said last week, in the wake of Cooper’s ruling excluding all but one of the researchers’ emails, he likely will not call David Dagon, may or may not call Manos Atonakakis, but will call two employees of Rodney Joffe whom, DeFilippis claims, were “tasked by” Joffe, in the first case to pull some but not all of the data researchers used to test the anomaly, and in the second case to do research that may not have been presented to the FBI. If these decisions hold, his presentation of the data will be, as I understand it, affirmatively false. For that reason, Sussmann might have been able to challenge Durham’s reliance on these witnesses in the absence of others; that Sussmann is not doing so may suggest he knows that the witnesses won’t do what Durham thinks they will. If Durham persists in this plan, it means he’ll have FBI agents spend 5 hours describing how they chased down an anomaly, without ever really explaining what the anomaly is (and how it could have easily been investigated using about two different steps that the FBI didn’t take). Perhaps (given his tactical retreat), Durham may want to eliminate virtually all discussion of the anomaly at the heart of this case. Alternately, this is a tactical move to force Sussmann to call David Dagon (whom Durham has immunized) or Manos Antonakakis (whose status is unknown) in hopes that they’ll help him make his YotaPhone case or explain the full scope of the data accessed (particularly if he gets Martin to make misleading comments about that topic first). But if Durham forgoes his chance to call the researchers and Sussmann does so himself, it may allow Sussmann to rebut Durham’s claims about what the anomaly was and what went into the two white papers presented to the FBI. In addition, Sussmann can have these witnesses explain how far before the involvement of the Democrats this research started and how Trump’s open invitation to Russia to do more hacking meant the anomaly posed a possible national security threat worthy of sharing with the FBI.

Robby Mook, Marc Elias, and Debbie Fine: Rather than talking about the anomaly, Durham wants to talk about the Hillary campaign. At least as of last week (before Cooper excluded some of this stuff on privilege and belated privilege challenges), Durham will definitely call Mook, may call Elias, but may rely instead on a Hillary lawyer named Debbie Fine, who was on daily calls with Fusion. Durham wants to claim,

[T]he strategy, as the Government will argue at trial, was to create news stories about this issue, about the Alfa-Bank issue; and second, it was to get law enforcement to investigate it; and perhaps third, your Honor, to get the press to report on the fact that law enforcement was investigating it.

Sussmann, by contrast, knows he has a witness or witnesses who will rebut that.

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

As suggested above, Elias is a witness Sussmann will call even if Durham does not. Among other things, Sussmann will have Elias explain what it was like to have Donald Trump openly asking Russia to hack Hillary some more.

Laura Seago: Before Cooper ruled on privilege issues, DeFilippis (who doesn’t know how to pronounce her last name) said he would call Seago. She was the pivot point between Fusion and Rodney Joffe. According to Fusion attorney Joshua Levy, Seago knows little about the white paper from Fusion that Sussmann shared with the FBI. “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.” So it’s unclear how useful she’ll be as a witness.

Eric Lichtblau: As I noted the other day, Durham is trying to prevent Lichtblau from testifying unless he’s willing to testify to all his sources for the Alfa Bank story (which would include a bunch of experts never named in any charging documents). My guess is that Cooper will rule that forcing Lichtblau to talk about communications with Fusion would be cumulative, though he might force Lichtblau to talk about an in-person meeting he had at which Fusion shared information that did not derive from Joffe. If Sussmann succeeds in getting Lichtblau’s testimony, however, he will be able to talk about what a serious story this was and what a disastrous decision agreeing to hold the story was for his own career and, arguably, for democracy.

Perkins Coie billing person and McMahon: As Durham has repeatedly confessed, most of the substance of his conspiracy theory is based off billing records. But there’s a dispute about whether Sussmann fully billed his meeting with Baker (Sussmann has noted, for example, that he paid for his own taxi to and from the meeting). Durham will have a Perkins Coie person explain how they track billing and will call a former DNC person with whom Sussmann had lunch immediately before his Baker meeting, either because Sussmann said something to him about the Baker meeting, or because he needs to rule out that Sussmann billed for the lunch meeting but not Baker.

Agent Grasso: In addition to the hours and hours of testimony about how the FBI did investigate the anomaly, Durham also wants to call an Agent Grasso, with whom Joffe shared a piece of the Alfa Bank allegations directly. This may actually be an important witness for Durham, because it might show that the packaged up allegations shared with Baker were substantially different than what Joffe was sharing when his identity was not hidden.

Kevin P: Durham only plans to call one of the two CIA personnel at the meeting in January 2017 (ironically meaning a meeting in March 2017 will get far more focus than a meeting that played a central role in the indictment). It sounds like Sussmann will get the one person to validate an email from another person who also recorded Sussmann saying he had a client.

Agent Gessford: One FBI Agent Sussmann will call will authenticate emails Sussmann will use with other witnesses to show what FBI’s understanding of Sussmann’s activities were in 2016. Not only will he use these emails to prove that the FBI knew well he was representing Hillary on cyber issues, but he will likely also use these emails to talk about what it looks like for a campaign to be systematically attacked through the entirety of a campaign by a hostile nation-state, which will make the potential seriousness of the Alfa Bank anomaly quite clear.

Agent Giardina: This is someone the scope of whose testimony Durham may have actually tried to limit by calling him himself. Sussmann will have Giardina explain that after the Frank Foer article, he tried to open an investigation, which Sussmann will use to prove that the FBI would have opened an investigation whether or not he shared the tip with the FBI.

Jonathan Moffa: Moffa, a senior FBI agent involved in the Crossfire Hurricane and Alfa Bank investigations will address materiality. He’ll explain how, given the UNSUB investigation open to find out who in Trump’s camp got a heads up to the hack-and-leak investigation, it was inevitable they would chase down this tip and treat it, like the CH investigation itself, as a Full Investigation.

DOJ IG Michael Horowitz: On paper, Horowitz’s testimony will be limited to explaining how an anonymous tip from Joffe via Sussmann is supposed to work, which is that someone in a position to direct a tip to the right person does so and succeeds in addressing a national security concern. Joffe provided a tip to Horowitz in January 2017 that — we can assume given Horowitz’s testimony — proved to be valuable. This tip will also demonstrate that DNS research is not as limited as Agent Martin will claim it is. But given the way that Durham has failed to understand basic aspects of Horowitz’s investigation, including ones that disproved large swaths of Durham’s conspiracy theories, this testimony might be somewhat contentious.

Update, 5/22: Very belatedly added Moffa after writing this post.

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

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

In the first of what will be a number of “scene-setters” for the Michael Sussmann trial next week, Devlin Barrett makes two significant errors. First, he misrepresents what Sussmann said in a text to James Baker on September 18, 2016.

In a text message setting up the meeting, Sussmann claimed he was not representing any particular client in bringing the matter to the FBI’s attention.

Here’s what the text says:

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

[I’m unclear whether the misspelling of “availability” is Sussmann’s or Durham’s.]

The distinction between “representing” and “on behalf of” will be a core issue litigated in this trial (as I’ll lay out below), which makes Barrett’s sloppiness affirmatively misleading.

Second, Barrett serially accepts Durham’s framing — that the cybersecurity researchers who started identifying the Alfa Bank anomaly months before Rodney Joffe ever talked to Michael Sussmann were doing “campaign research.”

The two-week trial will delve into the murky world of campaign research, lawyers and the role the FBI played in that election, as Trump and Hillary Clinton vied for the presidency, and federal agents pursued very different investigations surrounding each of them.

[snip]

Prosecutors signaled this week that they plan to call a host of current and former law enforcement officials to describe how the FBI pursued the Alfa Bank accusations, and to paint Sussmann as part of a “joint venture” that included Joffe, Clinton’s campaign, research firm Fusion GPS and cybersecurity experts.

[snip]

Cooper, however, has limited how deeply Durham’s team may go into the particulars of any alleged joint venture among Democratic operatives, ruling that he will not allow “a time-consuming and largely unnecessary mini-trial to determine the existence and scope of an uncharged conspiracy to develop and disseminate the Alfa Bank data.”

Barrett does this in spite of the fact that Durham has repeatedly said the only evidence he has supporting his joint venture conspiracy theory (even assuming it were illegal) is billing records. While Barrett cites the gist of Cooper’s ruling excluding Durham’s unsubstantiated claims of a “joint venture,” he doesn’t quote Cooper noting that, “some evidence suggests that Fusion GPS employees had no connection to the gathering or compilation of the Alfa Bank data.” Effectively, an experienced DOJ reporter has fallen for Durham’s use of unsubstantiated materiality claims to frame a prosecution that didn’t charge the underlying conspiracy. That’s a real disservice to readers who don’t know the difference between uncharged materiality claims and a charged conspiracy.

So here’s my effort to explain to newbies what the trial is about. Durham has to prove that:

  • Michael Sussmann said what Durham claims Sussmann did to James Baker on September 19, 2016
  • What he said was a lie
  • The alleged lie was material to the functioning of the FBI

Durham has to prove that Sussmann said what Durham claims he did on September 19, 2016

From the start, Durham has been uncertain what lie Sussmann told. As Sussmann pointed out in a motion for a bill of particulars right from the get-go, at various points in the indictment, Durham claimed that Sussmann’s lie was:

  • “that he was not doing his work on the aforementioned allegations ‘for any client'” (one)
  • “that he was not acting on behalf of any client” (one, two)
  • that he was not “acting on behalf of any client conveying particular allegations concerning a Presidential candidate” (one)

That is, repeatedly in the indictment, Durham was conflating the “work” of chasing down the allegations (which is not at issue in this prosecution at all) with the meeting where Sussmann shared those allegations with the FBI. The last formulation is what Durham charged, but as we’ll see, unless Durham supersedes this indictment today, he may have problems with that formulation as well.

Almost six months after Durham charged Sussmann for lying about sharing allegations on September 19, he got rock-solid proof — a text from Sussmann to Baker that Durham only found because Sussmann kept asking Durham to go back and look for these records — that Sussmann said, he was “coming on my own – not on behalf of a client or company – want to help the Bureau,” on September 18.

That rock-solid proof actually presents two problems for Durham. First, it raises the possibility that, even if the jury decides this was a lie, Durham can only prove Sussmann said it on September 18, not September 19. But the text also suggests what Sussmann may have meant by “on behalf of:” who benefits. He was not seeking a benefit for a client, he was trying to benefit the FBI.

That interpretation is consistent with what Sussmann said under oath in 2017, and it is an interpretation that Durham did not test before he charged Sussmann.

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

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

[snip]

so I told him this information, but didn’t want any follow-up, didn’t ~ in other words, I wasn’t looking for the FBI to do anything. I had no ask. I had no requests. And I remember saying, I’m not you don’t need to follow up with me. I just feel like I have left this in the right hands, and he said, yes. [my emphasis]

As has been explained over and over, Jim Baker’s testimony about what Sussmann said to him on September 19 (as opposed to what Sussmann texted him on September 18) has been all over the map:

Durham will argue that he got Baker’s testimony to match what he, Durham, claims to be sure is the truth by refreshing his memory with notes that Bill Priestap and Trisha Anderson took, the former when Baker told him about the meeting immediately afterwards and the latter in circumstances that are less clear.

The Priestap notes say four things:

  • Represent DNC, Clinton Foundation etc
  • Been approached by prominent cyber people
  • NYT, Wash Post, or WSJ on Friday
  • [Written slantways for reasons Priestap could not explain] said not doing this for any client

The Anderson notes say two things:

  • No specific client but group of cyber academics talked with him about research
  • Article this Friday, NYT/WPost [the notes fade out]

None of those notes say “on behalf of,” Anderson’s don’t address whether Sussmann offered up the claim or not, and Priestap seems to have written “not doing this for any client” after the fact, as if it wasn’t part of Baker’s initial telling.

None of those notes make it clear what part of the information Baker passed on came from the meeting itself and what part came from the text he had received the day before (and indeed, Priestap’s slantways note may suggest the detail about a client could have come later). Durham only has a refreshed memory of what Baker knew by September 19, not which parts he learned on September 18 and which he learned on September 19.

Literally six months after indicting Sussmann, Durham gave him different sets of notes recording how Andy McCabe explained the allegations to Dana Boente on March 6, 2017.

One set, from Tashina Gauhar’s notes, says this:

“Attorney” Brought to FBI on behalf of his client

Also advised others in media > NYT

Another set, from Mary McCord’s notes, says this:

First brought to FBI att by atty

[snip]

Attorney brought to Jim Baker + d/n say who client was. Said computer researchers saw the [activity?]. Said media orgs had the info, including NY Times.

These notes admittedly reflect what the FBI came to understand, possibly in the September 19 meeting, possibly hours after the September 19 meeting, possibly days, possibly months. But as McCord recorded it, the emphasis remained on the computer researchers and the NYT. That emphasis is important for materiality questions.

Durham has to prove what Sussmann said was a lie

Next, Durham has to prove that what Sussmann said was an intentional lie.

Probably, Durham will use the formulation Sussmann sent in his September 18 text, “I’m coming on my own – not on behalf of a client or company – want to help the Bureau,” since that’s the only thing he has real proof of. This is why Sussmann tried to nail down Durham on what “on behalf of” shortly after being charged. Because it could mean, “on the orders of,” “for a client I am retained by,” or “seeking some benefit or ask for.”

But Sussmann’s explanation, “want to help the Bureau,” tied as it is to some benefit for the FBI, presents new problems for Durham. As noted above, that’s precisely what Sussmann said in sworn testimony back in 2017, when he had no reason to believe there would ever be a special prosecutor checking his claims and at a time he no longer had that text to check. Sussmann framed it in terms of giving the FBI maximal flexibility during campaign season.

Importantly, Sussmann did take steps to help the Bureau, by (with Joffe’s assent), helping the FBI kill the story the NYT was close to publishing. Which is another thing Sussmann described when he testified under oath in 2017 and another thing Durham didn’t bother to investigate before indicting.

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

Along with the September 18 text showing Sussmann told Baker he wanted to help the FBI, there were several texts reflecting that when Baker asked Sussmann for the name of the outlet that was reporting on the Alfa Bank allegations, Sussmann told Baker he had to ask someone before sharing the name.

Those text messages include, among other things, texts indicating that Mr. Sussmann asked to meet with Mr. Baker in September 2016 not on behalf of a client but to help the Bureau; texts indicating that Mr. Sussmann told Mr. Baker he had to check with someone (i.e., his client) before giving him the name of the newspaper that was about to publish an article regarding the links between Alfa Bank and the Trump Organization; and other texts, including a copy of a tweet that then-President Trump posted regarding Mr. Sussmann.

Then, Sussmann and Baker spoke on the phone several times on September 21 and 22.

Mr. Sussmann and Mr. Baker also had several phone conversations over the course of that week, including on Wednesday, September 21 and on Thursday, September 22.

We’ll learn more details at the trial, but we know that Baker and Bill Priestap called the NYT and got them to kill the story.

One reason this is important is because — as Sussmann’s attorney noted in a recent hearing — this is the opposite of what Sussmann would have done if he was working on behalf of the campaign.

We expect there to be testimony from the campaign that, while they were interested in an article on this coming out, going to the FBI is something that was inconsistent with what they would have wanted before there was any press. And in fact, going to the FBI killed the press story, which was inconsistent with what the campaign would have wanted.

The decision to go to the FBI contravened Hillary’s best interest.

The other reason those exchanges are important is because, as Sussmann pointed out, the best explanation for how Andy McCabe (that “top of the Bureau” that decided to take steps to kill the story) came to learn that Sussmann did have a client was via those exchanges.

The FBI could not have come to that belief based on conversations they had with Mr. Sussmann after his phone calls with Mr. Baker the week of September 19, 2016, because the FBI chose not to interview Mr. Sussmann about the information he provided to Mr. Baker, and the FBI chose not to ask Mr. Sussmann about or interview the cyber experts whom Mr. Sussmann identified as the source of the information he shared with the FBI.

Indeed, that timeline may explain why Baker’s memories about this are so inconsistent: because what Sussmann told him on September 18, what he told him on September 19, and what he told him on September 21 have all blended into one.

In any case, though, the best evidence suggests the FBI probably learned Sussmann had a client within three days of the time Sussmann first brought the allegations to the FBI (because that was the last he spoke with the FBI). That undermines Durham’s claim that Sussmann was hiding some big conspiracy. Within days, he appears to have made it obvious he did have a client.

Durham has to prove the alleged lie was material to the functioning of the FBI

I’m not going to get too far into the work Durham will have to do to prove that Sussmann’s lie — if he can prove what Sussmann said, if he can prove Sussmann said it on September 19 and not September 18, and if he can prove it really was a lie — had the ability to affect the decisions the FBI could have made.

Sussmann has many ways to attack Durham’s materiality argument. He’ll do so by proving:

  • FBI knew he represented the Democrats (indeed, that’s what Priestap’s notes say)
  • FBI knew of his ties to Joffe
  • His characterization that this came from cybersecurity experts was true
  • After the Franklin Foer piece was published, a separate FBI Agent attempted to open an investigation (showing what would have happened if Sussmann had not shared the information and just let NYT publish)

If I were him, I would also point to all the evidence (including from the March 2017 notes) that what most mattered to the FBI was not whom his client was but that the NYT was going to publish this.

But, given the timeline laid out by Sussmann’s texts and calls with James Baker, I’d make one more point. All the evidence suggests that FBI knew he had a client by September 22 — probably by September 21.

The FBI Agents who will describe the steps they took will apparently describe making a second call to Cendyn on September 23.

That is, the timeline will show that FBI learned Sussmann had a client before they even spoke to Cendyn a second time.

If Sussmann’s client or clients mattered, the FBI learned about them so early in the process that it would not have affected the overall investigation.

Durham’s tactical retreat

I know a lot of people think Durham has a slam-dunk case with that September 18 text, but that’s simply not the case — though as always, you never know what a jury is going to decide.

But I think that Durham is already planning a tactical retreat.

As Sussmann noted in a recent filing summarizing conflicting views on jury instructions, Durham’s indictment describes Sussmann’s alleged lie this way:

[O]n or about September 19, 2016, the defendant stated to the General Counsel of the FBI that he was not acting on behalf of any client in conveying particular allegations concerning a Presidential candidate, when in truth, and in fact, and as the defendant knew well, he was acting on behalf of specific clients, namely, Tech Executive-1 and the Clinton Campaign.

Never mind that Durham characterized the allegations as pertaining to “a Presidential candidate,” which presents other problems for Durham, he has also accused Sussmann of lying about having two clients.

Mr. Sussmann proposes modifying the last sentence as follows, as indicated by underlining: Specifically, the Indictment alleges that, on or about September 19, 2016, Mr. Sussmann, did willfully and knowingly make a materially false, fictitious, and fraudulent statement or representation in a matter before the FBI, in violation of 18 U.S.C. § 1001(a)(2), namely, that Mr. Sussmann stated to the General Counsel of the FBI that he was not acting on behalf of any client in conveying particular allegations concerning Donald Trump, when, in fact, he was acting on behalf of specific clients, namely, Rodney Joffe and the Clinton Campaign.5 The government objects to the defense’s proposed modification since it will lead to confusion regarding charging in the conjunctive but only needing to prove in the disjunctive.

4 Authority: Indictment.

5 Authority: Indictment.

Durham’s language about “conjunctive” versus “disjunctive” will likely be the matter for heated debate next week. Particularly in the wake of Cooper’s decision that the materials from the researchers won’t come in as evidence, Durham seems to be preparing to prove only that Sussmann lied about representing Hillary, and not about Joffe. Sussmann, meanwhile, seems to believe that Durham will have to prove that his alleged lie was intended to hide both alleged clients.

The problem with Durham’s fall-back position is that if Sussmann really were representing Hillary at that FBI meeting, he wouldn’t have killed the NYT story that would have helped her campaign.

Update: Corrected date on Sussmann’s HPSCI interview, which was 2017.

John Durham Wants Permission to Delay Providing Evidence of How Weak His Michael Sussmann Case Is

Donald Trump’s insurrectionists may be the only thing that can save John Durham’s indictment of Michael Sussmann.

That’s because Durham seems to think he’ll need to have two extra months over what Sussmann gauges should be necessary, and permission to delay production of Brady materials, to sustain the single false statement charge over Sussmann. As a Sussmann motion to set a trial date submitted yesterday revealed, his team and Durham’s are having a significant disagreement over when the trial should be scheduled. Durham wants four months from now to turn over discovery and wants to schedule the trial for July, whereas Sussmann thinks the trial should be held in May.

Given two exhibits Sussmann included with this motion (and other publicly available documents), it’s easy to see why Durham wants more time.

That’s because Jim Baker has said at least four different things that conflict with the alleged lie that Durham claims Sussmann told in a September 19, 2016 meeting with then-FBI General Counsel Baker:

On or about September 19, 2016, SUSSMANN met with the FBI General Counsel at FBI Headquarters in the District of Columbia to convey the Russian Bank-1 allegations. No one else attended the meeting. During the meeting, the following, in substance and part, occurred:

SUSSMANN stated falsely that he was not acting on behalf of any client, which led the FBI General Counsel to understand that SUSSMANN was conveying the allegations as a good citizen and not as an advocate for any client;

SUSSMANN stated that he had been approached by multiple cyber experts concerning the Russian Bank-1 allegations;

SUSSMANN provided the names of three cyber experts, but did not name or mention Tech Executive-1, the Clinton Campaign, or any other person or company referenced [in Durham’s indictment];

Durham has charged Sussmann with affirmatively lying about representing a client in that meeting.

In an earlier post, I argued that Durham probably hadn’t actually quoted what transpired in this meeting because his sources (meaning Baker, Bill Priestap’s hearsay notes of Baker’s account of the meeting, and some CIA personnel Sussmann met at a later meeting) offered different versions of what Sussmann actually said.

It’s quite possible that Durham has presented these allegations using such squishy language because what little evidence he has doesn’t actually agree on the claimed lies. That is, it may be that Baker believes Sussmann simply didn’t bother explaining which client he was working for, but Bill Priestap, the next in line in a game of telephone, differently understood from Baker’s report that Sussmann affirmatively failed to provide Baker information that (Priestap’s own notes prove) the FBI already had anyway, that he was working with Hillary Clinton.

But it’s far worse than that.

Jim Baker doesn’t agree with Jim Baker about what happened in the meeting. Baker has provided at least four different versions of his understanding of why Sussmann shared the Alfa Bank information with him (I’ve got longer excerpts below). At an October 3, 2018 interview with the Oversight Committee (where Baker brought it up), he said, “I don’t recall [Sussmann] saying that,” he worked for the DNC. At an October 10, 2018 interview with the Oversight Committee, he told Jim Jordan he didn’t “remember [Sussmann] saying that he was acting on behalf of a particular client.” In a July 15, 2019 interview with DOJ IG, Baker explained that Sussmann said their meeting “related to strange interactions that some number of people that were his clients, who were, he described as I recall it, sort of cyber-security experts, had found about some strange connection between some part of Donald Trump’s organizations and Alfa Bank.” In a June 2020 interview with Durham’s team (which as a 302 may be less reliable than the other sources), Baker said, “it did not seem like Sussmann was representing a client. Baker repeated his earlier assertion that he did not know Sussmann was representing the DNC at the time and Sussmann did not advise him of that fact at this particular meeting.” Presumably, Baker testified to the grand jury, too, but that interview would have been after all of these earlier versions. In none of the publicly available versions of Baker’s story does Sussmann affirmatively say he was not representing the DNC or any other client, and in one case — the DOJ IG interview — Baker remembered Sussmann commenting that he had a client; and that version (which Sussmann wouldn’t have had access to before getting it in discovery) matches Sussmann’s public story.

As Sussmann noted in his filing, Durham dumped a whole bunch of discovery on him shortly after the indictment, but it has taken over two months to turn over the conflicting evidence that goes to the core of the alleged false statements.

While the Special Counsel has produced significant discovery since Mr. Sussmann’s Indictment, the Special Counsel has delayed in producing key evidence, which the Special Counsel was required to timely disclose under Brady v. Maryland, 373 U.S. 83 (1963). Indeed, it was only last week—nearly two and a half months after Mr. Sussmann’s indictment, and in the face of persistent demands by Mr. Sussmann’s counsel—that the Special Counsel for the first time disclosed some (but not all) of Mr. Baker’s statements about the September 19, 2016 meeting.1

[snip]

1 Moreover, significant portions of the statements that were disclosed were redacted, an issue which defense counsel has raised with the Special Counsel.

Durham seems intent on similar delays in producing evidence undermining his case. Besides the two month date discrepancy, there are a few subtle but significant differences in their proposed schedules. In the proposed order scheduling order Sussmann has submitted, Durham would be, “under a continuing and ongoing obligation to provide defense counsel any favorable or exculpatory information (Brady), whether or not admissible in evidence, as soon as reasonably possible.” [my emphasis] Durham’s proposed version takes out the words, “as soon as reasonably possible.” Durham, of course, has already violated that part of Sussmann’s proposed scheduling order by sitting on multiple pieces of proof that have been in his and DOJ’s possession for over a year that undermine the claim Sussmann lied.

Durham may suspect the Brady discovery will make this indictment unsustainable. Durham’s more extended schedule would give Sussmann just two weeks after the final deadline for Brady discovery, from March 25 to April 8, to file the motion to dismiss he has already said he’d file. Sussmann’s more condensed schedule nevertheless gives himself three weeks, from January 28 to February 18, to incorporate classified Brady discovery into his motion to dismiss, and over a month, from January 14 to February 18, to incorporate unclassified Brady discovery.

From the start, I noted that this indictment really isn’t about the alleged false statement. Rather, Durham clearly wants to wrap this up into a grand Conspiracy to Defraud the US charge, incorporating Rodney Joffe, the researchers, Fusion GPS, and maybe Christopher Steele.

It’s not just that Durham is working on a theory that Sussmann deliberately dealt garbage to the FBI (which GOP sources also did on the Clinton Foundation) while trying to hide that fact. It’s that data originally sourced from the government was used in doing that research.

It’s actually the kind of argument that DOJ prosecutors typically succeed with. Except it’s all premised on proving that Sussman was trying to hide all this in his meeting with Baker. Even if the evidence surrounding the meeting weren’t so flimsy, this is another degree of motive that Durham is straining mightily to make.

Durham needs Sussmann to have lied, because a deliberate attempt to obscure the rest is necessary for his “storyline.” His evidence that Sussmann lied — much less, deliberately — is shoddy. But if he can’t get that, then his hopes for a larger “narrative” collapse.

So one thing Durham is likely trying to do with his delayed schedule is to buy time to try to make that claim stick. There are already several details that have been made public that show Durham will struggle to make this claim. Durham left out exculpatory details about the researchers in his indictment. The Federalist obtained — but downplayed — evidence that the researchers were not (as Durham insinuated in his indictment) involved with Fusion GPS.

Further, unlike Joffe, who worked hand-in-hand with Sussmann, according to Fusion GPS employee Laura Seago, who had worked on the Alfa project, she was not aware of anyone at Fusion GPS communicating with either [David] Dagon or [Manos] Antonakakis. And while she had heard Dagon’s name before, Seago first came across Antonakakis’s name in a newspaper article.

Antonakakis has not had any contact with Sussman, Marc Elias, or Fusion GPS, his lawyer Mark Schamel told The Federalist. “In this case,” Schamel added, “he reviewed a narrative presented to him by a well-known and respected researcher and provided his feedback, as he does for more than 100 unpublished research articles he receives every year.” Attorneys representing Lorenzen and Dagon did not return requests for comment.

Durham already confessed that he had no evidence Sussmann was working directly with the Hillary campaign on this. Most importantly, all the researchers believed and still believe that the Alfa Bank DNS data showed a real anomaly, and they first discovered it in a legitimate attempt to identify further attempts Russia made to tamper in the 2016 election. If that case were made to the jury, then Sussmann will be able to explain why Baker didn’t apparently think it all that important to ask who Sussmann was representing: because it was an alarming anomaly, no matter who brought it to the FBI.

Still, Durham is likely to get the time he wants. The backlog of trials for incarcerated pre-trial defendants in DC (including 70 or so January 6 defendants) will more likely dictate the trial date for Michael Sussmann than the substance of the dispute between the two of them.

Update: I should have also noted that Beryl Howell’s order tolling Speedy Trial because of COVID protocols will give Durham a way to get out of the 70 day Speedy Trial rule.


October 3, 2018 Oversight/HJC Interview

Mr. Baker. He told — he said that there had been — I’m not sure exactly how they originally learned about that information, but what he told me was that there were cyber — Mr. Meadows. I mean, is he a normal intel operative? How would he have come by this? Mr. Baker. He told me that he had cyber experts that had obtained some information that they thought they should get into the hands of the FBI.

[snip]

[Shen] Okay. So when Mr. Sussman came to you to provide some evidence, you were not specifically aware that he was representing the DNC or the Hillary Clinton campaign at the time? A I don’t recall, I don’t recall him specifically saying that at that time.

[snip]

Q Okay. So I guess it is just my interpretation, but I believe last round it was somewhat implied that if he did have an association to the Democratic National Committee and the Hillary Clinton campaign that that might lead someone to believe that something improper was done. And I wonder if you could just explain to me, you know, why your view is that it was not improper because, just the mere notion that someone who is a Democrat or Republican, you know, comes to you with information, should that information somehow be discounted or considered less credible because of, you know, partisan affiliation? A Well, the FBI is responsible for protecting everybody in this country. Period, full stop. And we do that, without regard to who they are or what their political background is or anything else. If they believe they have evidence of a crime or believe they have been a victim of a crime, we will do what we can within our lawful authorities to protect them. And so when a citizen comes with evidence, we accept it. That is my, just general understanding over many, many years. We, the Bureau, we, the Department of Justice. And so that is how I construed what Michael was doing. It was, he believed he had evidence, again, either of a crime or of a national security threat, and he believed it was appropriate to provide it to us. When he did, I didn’t think there was anything improper about it whatsoever.

[snip]

Mr. Jordan. Okay. Do you know how Sussman got this material? Mr. Baker. What I recall is he told me that there were some cyber experts that somehow would come across this information and brought it somehow to his attention, and that they were alarmed at what it showed, and that, therefore, they wanted to bring it to the attention of the FBI. Mr. Jordan. Did he — Mr. Baker. They and Sussman. Mr. Jordan. They. Any names? Mr. Baker. I don’t think I ever found out who these experts were. Mr. Jordan. Did he indicate that he got this — may have got some of this information from the Democratic National Committee? Mr. Baker. I don’t recall him saying that. Mr. Jordan. Did you know when he was giving this information did you know he was working for — that he did extensive work for the DNC and the Clinton campaign? Mr. Baker. I am not sure what I knew about that at the time. I remember hearing about him in connection — when the bureau was trying to deal with the hack and investigating the hack, that my recollection is that Michael was involved in that process to some degree. I didn’t interact with him on that, so I am not sure if I knew that before this meeting or after, but I don’t recall him specifically saying —

October 18, 2018 Oversight/HJC Interview

Mr. Baker. To the best of my recollection, he told me that it had been obtained by some type of cyber experts, and I don’t know who — how they started their inquiry into this. But that is what he told me, that some certain cyber experts had obtained information about some anomalous looking thing having, to my knowledge, nothing to do with the dossier. But anyway — Mr. Jordan. Did he mention — did Fusion GPS play a role in him getting information that he subsequently gave to you? Mr. Baker. I don’t remember him mentioning Fusion GPS in connection with this material. Mr. Jordan. Did he mention at all when he was talking to you? Mr. Baker. Not to my recollection, no. Mr. Jordan. What about Glenn Simpson? Mr. Baker. Not on this thing, no. Mr. Jordan. How about Christopher Steele? Mr. Baker. No. Mr. Jordan. Okay. Did you meet with anyone else at Perkins Coie relative to this issue, Russia investigation issue?

[snip]

Mr. Baker. Yes, sir. And there was some effort — there was some belief that this was a — being conducted in a way so as to make it a covert communications channel. Mr. Jordan. Okay. And my first question would be how’d you get this? Did you ask that question? Mr. Baker. I did ask that question at a high level, yes. And he explained that he had obtained it from, again, cyber experts who had — who had obtained the information, and he said that the details of it would explain themselves. That’s my recollection. Mr. Jordan. And was he representing a client when he brought this information to you? Or just out of the goodness of his heart, someone gave it to him and he brought it to you? Mr. Baker. In that first interaction, I don’t remember him specifically saying that he was acting on behalf of a particular client. Mr. Jordan. Did you know at the time that he was representing the DNC in the Clinton campaign? Mr. Baker. I can’t remember. I have learned that at some point. I don’t — as I think I said last time, I don’t specifically remember when I learned that. So I don’t know that I had that in my head when he showed up in my office. I just can’t remember. Mr. Jordan. Did you learn that shortly thereafter if you didn’t know it at the time? Mr. Baker. I wish I could give you a better answer. I just don’t remember. Mr. Jordan. I mean, I just find that unbelievable that the guy representing the Clinton campaign, the Democrat National Committee, shows up with information that says we got this, and you don’t ask where he got it, you didn’t know how he got it. But he got it from some, you know, quote, expert. Mr. Baker. Well, if I could respond to that. Mr. Jordan. Sure. Mr. Baker. I mean, so I was uncomfortable with being in the position of having too much factual information conveyed to me, because I’m not an agent. And so I wanted to get this — get the information into the hands of the agents as quickly as possible and let them deal with it. If they wanted to go interview Sussmann and ask him all those kind of questions, fine with me. Mr. Jordan. Did that happen? Mr. Baker. I don’t know that. But I — I mean, I — well, A, I did hand it off to the — to the investigators. Mr. Jordan. I think you told us you handed it off to Mr. Strzok and Mr. Priestap? Mr. Baker. My recollection is Mr. Priestap. Mr. Jordan. Okay. And you don’t know if they followed up or not? Mr. Baker. Bill Priestap told me that they did follow up extensively.

July 15, 2019 OIG interview

Did you generally have a sense that they represented, that their political law practice had a Democratic clientele?

MR. BAKER: Maybe I should have, but I didn’t really understand it at the time.

MS. TERZAKEN: Is that right?

MR. BAKER: I did not, no.

MS. TERZAKEN: Okay.

MR. BAKER: I came to understand, you know, that, that Perkins-Coie was playing a role with respect to the DNC hack. But the, the extensiveness of their contacts with the Democratic Party, I did not, at the time, have an understanding about, that I recall.

[snip]

MS. TERZAKEN: Okay. With Michael Sussman, your conversations with him before the election, if you could briefly describe how the conversations came about, what information he provided to you.

MR. BAKER: So, I’ll go into the Sussman stuff, yeah, okay. So he came in, he, he, all of this is gone over in the transcript with the committee, so I won’t, I’ll try to just summarize briefly. My basic recollection is, in some way, shape, or form, Michael reached out, and wanted to come in and meet with me. And so we scheduled that. So Michael came in and met with me. And he had some amount of information, physical evidence, printed out, and also a thumb drive or two, that he said related to strange interactions that some number of people that were his clients, who were, he described as I recall it, sort of cyber-security experts, had found about some strange connection between some part of Donald Trump’s organizations and Alfa Bank, which was described as being controlled by the Kremlin. And that it appeared to be the case that this was a, it was, it, it was surmised that this was a back-channel, what do you call it, a back-channel of electronic communications. That, that somehow the Trump organization and Alfa Bank were using this, what looked like a, basically a surreptitious channel to communicate with each other.

June 2020 Durham interview (302)

Sussmann arrived at Baker’s office alone and gave Baker some electronic media and some paper approximately one inch thick. He and Baker met alone in Baker’s office, with no one else present. Sussmann advised Baker that some cyber security researchers had discovered the information and brought it to Sussmann’s attention. The information purported to describe a digital relationship between the Trump organization and Alfa Bank, and Sussmann gave Baker a technical description of that relationship. Sussmann also told Baker he thought it was important for the FBI to have the information. Sussmann also told Baker that the press had the information. Baker said that Sussmann did not specify that he was representing a client regarding the matter, nor did Baker ask him if he was representing a client. Baker said it did not seem like Sussmann was representing a client. Baker repeated his earlier assertion that he did not know Sussmann was representing the DNC at the time and Sussmann did not advise him of that fact at this particular meeting. Baker also said he did not know Sussmann’s firm, Perkins Coie, represented the Hillary Clinton campaign. Baker does not recall Sussmann advising him of the rationale for the cybersecurity researchers bringing the information to him. Additionally, Baker recalls Sussmann telling him that he believed the information was serious and credible. Baker said the meeting with Sussmann lasted approximately 15-20 minutes and he described it as short and cordial. He did not feel there was anything inappropriate about Sussmann meeting with him and providing the information to him.

[snip]

Baker said he could not recall telling Priestap at that time that Sussmann represented the DNC and the Clinton Foundation, but he (Baker) may have known it at the time.

 

The House Intelligence Committee Can and Should Subpoena the 18-Minute Gap on the Trump Tower Deal

Over the last few days the following happened:

  • Buzzfeed published a story stating what the evidence already shows: Trump suborned perjury
  • Mueller’s spox Peter Carr issued an unprecedented rebuttal to a specific story
  • WaPo, in a story presenting DOJ’s side of events, revealed that someone from Rod Rosenstein’s office (probably Ed O’Callaghan, who has managed most interactions with Mueller’s office) called to ask them if they were going to issue such a statement

I am not certain whether the call from Rosenstein’s office violated Special Counsel regulations protecting the Special Counsel from day-to-day interference in the office, but it certainly is something Jerry Nadler’s committee should inquire about.

And while I think Mueller’s office can make a very good case they needed to respond to Buzzfeed’s story for prosecutorial reasons, Rosenstein’s involvement seems far more suspect, particularly since he’s the guy who set the new DOJ standard that even warning a journalist off a story, as former FBI General Counsel Jim Baker did, may get you disciplined or referred for prosecution. By all appearances, Peter Carr was playing by Rosenstein’s rules in his interactions with Buzzfeed, so Rosenstein is the last person who should weigh in if he doesn’t like the outcome.

But — in addition to House Judiciary Committee (HJC) asking DOJ about contacts between Rosenstein’s office and Mueller’s, as well as contacts between Big Dick Toilet Salesman Matt Whitaker and Rosenstein and contacts between the White House and either one — Congress has a means of pursuing this question that should not harm Mueller’s investigation: Subpoena the information that Cohen, Felix Sater, the Trump Organization, and the campaign withheld from the House Intelligence Committee so as to sustain Cohen’s false testimony through March 22, 2018.

I’ve put the section of the House Intelligence Report that deals with the Trump Tower deal below, with the claims we now know to be false underlined. In addition to a caveat that the findings in the section are based on the documents turned over to the committee, the section includes the following claims we now know to be false given Cohen’s statement of the offense and/or Buzzfeeed’s extensive report on the deal:

  • The report claims the deal died in January but communications (which may or may not be limited to text messages) between Sater and Cohen show that it continued (at least) through June and Buzzfeed suggests the communications extended into July. Rudy Giuliani today stated publicly it may have gone through November.
  • The report claims Cohen was working with Sater’s company, which may or may not be true. But Buzzfeed makes it clear there should be an October 2015 email between Sater and Cohen — sent weeks before Trump signed the Letter of Intent — showing that VTB, a sanctioned bank, would provide financing. A December 19, 2015 communication (it’s unclear whether email or text) would have showed VTB would host Cohen. On December 31, 2015, Sater sent an image showing another sanctioned bank, GenBank, would instead provide financing. There would also be a letter dated late January from Andrey Ryabinskiy, a Russian mortgage tycoon.
  • The report claims Cohen never received a response from anyone associated with the Russian government. But Cohen received a January 20, 2016 email from Dmitry Peskov’s personal assistant, and his call records would reflect a 20 minute call to the number she provided him to call her on.
  • Sater claimed to HPSCI that his claims about Putin’s involvement was “mere puffery” and that “neither President Putin nor any element of the Russian government was actually directly involved in the project.” Yet on January 21, Sater wrote Cohen, “It’s about [Putin] they called today,” which would show still more response to Cohen from the Russian government. And a May 5 text message from Sater to Cohen conveyed Dmitry Peskov’s invitation to attend the St. Petersburg Forum, at which Cohen could discuss the deal with Peskov and he might meet Putin personally.
  • The report says the deal failed because the due diligence failed and  Trump Organization’s representative (it’s unclear whether this would be Cohen, Sater, or someone else) lost confidence in the licensee. That’s almost certainly not consistent with whatever reason Cohen gave Sater on June 14, three hours after WaPo reported that Russia had hacked the DNC, to say he would not be traveling to St. Petersburg after all. There may well be discussion of the WaPo report in the four texts Sater sent Cohen. There also may be communication reflecting Cohen’s assurances that “We’ll go after Cleveland.”
  • The report says the potential licensing deal was not related to the campaign but Cohen, “asked a senior campaign official about potential business travel to Russia.” It’s unclear whether there’s a paper trail of that or not. But there are communications reflecting Cohen’s consideration of other campaign events — definitely the Convention and probably the WaPo report on the DNC hack. And there should be communications showing it go through November, only to be halted — or rather, moved under Segei Millian and George Papadopoulos — once Trump got elected.

While it’s possible the House Intelligence Committee (HPSCI) received the 2015 communications indicating that Trump contemplated working with sanctioned banks during the time he was running for President (in which case it would be scandalous that the Republicans suppressed that detail, and the one that a former GRU officer was involved), much of the rest of these communications could not have been turned over to HPSCI when they requested documents in 2017. While some of the communications are limited to texts between Sater and Cohen, at least some of this paper trail (including Cohen’s meetings with Trump and Don Jr about it) would either reside at the campaign or Trump Organization (or both).

Remember, when SDNY got a warrant — one naming “many” thus far uncharged people — to raid Michael Cohen a month after subpoenaing Trump Organization, they explained there was a concern that documents would get destroyed.

One of the filings on Cohen (I’m still trying to chase down this reference) suggests Mueller had to get his communications on this matter from someone else. It seems likely Mueller had to get the text messages from Sater’s phone (or perhaps even from forensics on Cohen’s own phone).

Nevertheless, the public record identifies an abundant paper trail that should have been turned over to HPSCI, Senate Intelligence Committee (SSCI), and Senate Judiciary Committee (SJC), but could not have been, given what HPSCI reported last March. Additionally, Don Jr’s testimony to HPSCI is necessarily inconsistent with his SJC, yet still appears to include false claims about the Trump Tower deal (though some got cleaned up between his September testimony to SJC and his December testimony to HPSCI).

While Cohen was initially formally subpoenaed (though possibly only for Steele dossier documents), Trump Organization, Felix Sater, and the campaign were not.

Adam Schiff’s committee can make an important first step to clear up questions about the degree to which Trump only tacitly permitted Cohen, Sater, and his spawn to lie to Congress, or whether — as was the case with the June 9 response — his lawyers worked directly with witnesses to craft a false message to the public and Congress. If the June 9 response is any indication, there should be communications directly between Alan Futerfas or Garten with Cohen as he crafted his false story, which would go a long way to showing that their ultimate client suborned perjury.

Rosenstein’s intervention with Mueller’s office regarding Friday’s statement suggests that he, the Big Dick Toilet Salesman, or their boss, may be trying to tamp down discussions about Trump participating in Cohen’s lies. But because the discovery to HPSCI was so obviously incomplete, that committee has an available significant first step that could answer that question themselves, with little opportunity for DOJ to prevent that (and, given that the documents have already been identified in Buzzfeed’s story already, probably little risk of damaging the Mueller investigation in the way that further Cohen testimony might).

It may not be the kind of showboat witness testimony Schiff seems most interested in right now. But he has the ability to demand all the documents that show what details Cohen, Sater, and the President’s company and campaign knew to withhold to sustain Cohen’s lies. That — and a request for any communications about this matter, both in 2017 and in the wake of last year’s raid on Cohen — would go a long way towards answering a question that only Congress can deal with anyway: the degree to which Donald Trump orchestrated his lawyers’ lies about his ongoing business negotiations with Russia while Russia was helping him get elected.

House Intelligence Report

In approximately September 2015, he received a separate proposal for Trump Tower Moscow from a businessman named [Sater] According to Cohen, the concept of the project was that “[t]he Trump Organization would lend its name and management skills, but It was not going to borrow any money and it would not have any resulting debt for the purchase of the land and the building of the facility.”;~ Cohen worked on this idea with [Sater] and his company, the Bayrock Group, a real estate consultancy that had previously worked with the Trump Organization.

[gratuitous paragraph on what a colorful fellow Sater is]

(U) After signing a letter of intent with a local developer in October 2015,36 Cohen and [Sater] exchanged a number of emails and text messages in late 2015 detailing their attempts to move the project forward. For instance, in December 2015, [Sater] tried to get Cohen and candidate Trump to travel to Russia to work on the project.

(U) Several of [Sater’s] communications with Cohen involved an attempt to broker a meeting or other ties between candidate Trump and President Putin, and purported to convey Russian government interest in the project. Perhaps most notably, [Sater] told Cohen in a November 3, 2015, email, “[b]uddy our boy can become President of the USA and we can engineer it.” 39 [Sater] continued that if “Putin gets on stage with Donald for a ribbon cutting for Trump Moscow, . .. Donald owns the republican nomination.” 10 This assertion apparently arose from [Sater’s] rather grandiose theory that cementing a deal with a hostile U.S. adversary would increase candidate Trump’s foreign policy bona fides.41

(U) Sater testified that his communications with Cohen regarding President Putin were ”mere puffery,” designed to elicit a response from the · Trump Organization to move the project along.42 [Sater] explained that “[u]ntil the bank writes the check, it’s all salesmanship and promotion to try to get many, many, many parties towards the center to try to get the deal done.” 43 Cohen similarly characterized [Sater] as “a salesman” who “uses very colorful language.”44

(U) When the project started proceeding too slowly for the Trump Organization,45 Cohen and [Sater] began to exchange acrimonious text messages. 46 As part of those text messages [Sater] told Cohen that President Putin’s people were backing the deal, including “this is thru Putins [sic] administration, and nothing gets done there without approval from the top,” as well as meetings in Russia with “Ministers” and “Putins [sic] top administration people.”] [Sater] also mentioned Dmitry Peskov (President Putin’s spokesman) would “most likely” be included. 48

(U) Cohen thus attempted to reach out to members of the Russian government in an attempt to make the project proceed, but apparently did not have any direct points of contact. for example, Cohen sent an email to a general press mailbox at the Kremlin in an effort to reach Peskov.49 Cohen’s message notes that he has been working with a local partner to build a Trump Tower in Moscow and that communications have stalled with the local partner.50 The email further seeks contact with Peskov so they may ” discuss the specifics as well as arrang[e] meetings with the appropriate individuals.”51 Based on the documents produced to the Committee, it does not appear Cohen ever received a response from anyone affiliated with the Russian government.

(U) [Sater’s] testimony likewise made clear that neither President Putin nor any element of the Russian government was actually directly involved in the project. For instance, in one exchange, [Sater] testified he was offering the Trump Organization access to one of his acquaintances. This acquaintance was an acquaintance of someone else who is “partners on a real estate development with a friend of Putin’s.” 52

[Sater] testified that he was unaware of “any direct meetings with any [Russian] government officials” in connection with the Trump Tower Moscow project.53 In addition, neither candidate Trump nor Cohen traveled to Russia in support of the deal.54

[U] It appears the Trump Tower Moscow project failed in January 2016.57 Trump Jr. testified that, as of early June 2016, he believed the Trump Tower Moscow project was dormant.53 The project failed because “[t]he due diligence did not come through” and the Trump Organization’s representative “lost confidence in the licensee, and [he] abandoned the project.”59 In fact, the Trump Organization did not have a confirmed site, so the deal never reached the point where the company was discussing financing arrangements for the project.60 The Committee determined that the Trump Tower Moscow project did not progress beyond an early developmental phase, and that this potential licensing deal was not related to the Trump campaign.61

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.