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Thirty Months after Disputing Michael Horowitz, Durham’s Team Suggests They’ve Never Looked at the Evidence

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In Michael Sussmann’s filing explaining that he couldn’t include highly exculpatory notes — written by Tashina Gaushar, Mary McCord, and Scott Schools — from a March 6, 2017 meeting in his motion in limine because John Durham had provided them to him too late to include, Sussmann claimed that the files were not among those for which Durham had gotten permission to provide late.

The Special Counsel neglects to mention that these handwritten notes were buried in nearly 22,000 pages of discovery that the Special Counsel produced approximately two weeks before motions in limine were due. Specifically, the Special Counsel produced the March 2017 Notes as part of a March 18, 2022 production. The Special Counsel included the March 2017 Notes in a sub-folder generically labeled “FBI declassified” and similarly labeled them only as “FBI/DOJ Declassified Documents” in his cover letter. See Letter from J. Durham to M. Bosworth and S. Berkowitz (Mar. 18, 2022). And although the Special Counsel indicated on a phone call of March 18, 2022 that some of the 22,000 pages were documents that made references to “client,” he did not specifically identify the March 2017 Notes or otherwise call to attention to this powerful exculpatory material in the way that Brady and its progeny requires.

[snip]

[T]he Special Counsel has also failed to explain why this powerful Brady material was produced years into their investigation, six months after Mr. Sussmann was indicted, and only weeks before trial.3

Sussmann was wrong.

When Durham got an extension to his discovery deadlines, he got special permission to turn over (among other things) materials from DOJ IG at a later date.

DOJ Office of Inspector General Materials. On October 7, 2021, at the initiative of the Special Counsel’s Office, the prosecution team met with the DOJ Inspector General and other OIG personnel to discuss discoverable materials that may be in the OIG’s possession. The Special Counsel’s office subsequently submitted a formal written discovery request to the OIG on October 13, 2021, which requested, among other things, all documents, records, and information in the OIG’s possession regarding the defendant and/or the Russian Bank-1 allegations.

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

In the pre-trial hearing on Monday, Andrew DeFilippis explained that the files came from DOJ IG (and therefore were subject to that later discovery deadline).

We located those statements in the notes in February or early March, when we received a huge production from the DOJ Inspector General’s office. As soon as we noticed that in the notes, we put them on very rapid declassification at the FBI and turned them over to the defense about a week later.

DeFilippis offered an unconvincing excuse for burying belatedly provided Brady material two layers deep in file folders without specific notice. He described the decision to flag the materials as an internal Government decision, which is an odd description unless Michael Horowitz’s office — or those involved in declassifying the records — forced the decision:

We then, speaking internally as the Government, decided it would be important to flag those notes for the defense. And so the day that we produced them, we got on a call. We wanted to be in a position to flag it in a way that we didn’t just put it in the end of a paragraph of a discovery letter. We flagged for the defense that we were going to be producing notes and that that included notes in which the word “client” appeared. And we told them that we thought that would be relevant to them.

[snip]

Let me just say that there was absolutely no effort by the Government to delay here or to hide these in a large production. That is precisely why we got on a phone call and flagged it for the defense.

It’s almost like DeFilippis was hoping this would get no notice.

I can understand why. I’ve described how astounding it was that Durham did not go looking for evidence from DOJ IG until — by Durham’s own telling — October 7, more than two weeks after indicting Sussmann (and likely not long enough before indicting Igor Danchenko to learn key details that undermine at least one charge against him).

But this late provision of exculpatory evidence means one of two things:

  • Durham has always had the files, but did such a poor job of looking for it in discovery he didn’t find it in his own files even as he started hunting Michael Sussmann
  • Durham never had these files

The latter is the more likely possibility, which, as a threshold matter, would mean Durham never reviewed key files that DOJ IG had used in high level witness interviews before disputing Michael Horowitz’ conclusion that the investigation was predicated appropriately. Durham is, literally, only reviewing key files three years into his investigation.

Along the way, he’s learning that conspiracy theories he has been chasing for months and years are false.

The revelation that Durham is discovering exculpatory information in DOJ IG’s files is as important to the efforts to blow up the Mike Flynn prosecution two years ago as it is to the Sussmann prosecution. That’s because the Jeffrey Jensen review of the Flynn prosecution and the Durham investigation were believed to be closely aligned. Indeed, I have shown that the handwritten notes from the FBI that Durham will rely on at trial show the same markers of unreliability that documents that were altered in the Flynn case had.

As I explained in this post, Jensen’s documents started with the Bates stamp used throughout the Flynn prosecution.

But after a period of time, they used a Bates stamp with a different typeface, albeit continuing the same series, suggesting someone else was doing the document sharing.

But if they’re drawing on the same source documents, Durham should at least know notes of that meeting exists. Jeffrey Jensen received and relied on at least one set of notes — Jim Crowell’s notes — from the March 6, 2017 meeting. Those notes, along with Tashina Gauhar’s notes of an earlier briefing and all those that got altered, also have the fat typeface.

The Tashina Gauhar notes turned over to Sussmann (and the others turned over) not only are based off a scan of her original notes and have no post-it notes on them, but they bear both Durham’s Bates stamp (SCO-074095), but also one that likely comes from DOJ IG (SCO-FBIPROD_021529).

All of which seems to suggest there was the same cherry-picking that went into the Durham investigation and the Jensen “review.” Neither reviewed — neither could have!! — what really happened. They reviewed selected records and then (in the Jensen review) altered those records to make false claims that the former President used in a debate attack.

I’ll come back to the issue of what appears in the notes Sussmann released that conflicts with the Flynn releases.

But I’m also interested that Durham is stalling on providing other notes from the meeting.

2 The defense has requested that the Special Counsel search for any additional records that may shed further light on the meeting and certain of those requests remain outstanding. To date, the Special Counsel has represented that the only additional notes from attendees at the meeting that he has identified do not reference whether or not Mr. Sussmann was acting on behalf of a client. The absence in those notes of any reference to whether Mr. Sussmann was acting on behalf of a client also raises questions regarding materiality of the charged conduct: if the on behalf of information were truly material to the FBI’s investigation, presumably all note takers would have written it down. [my emphasis]

Durham can’t be withholding notes because they don’t mention Sussmann having a client. That’s because Scott Schools’ notes mention that the Alfa Bank tip came from an attorney, but don’t mention that he was there on behalf of a client (Schools’ notes may have been included because they are the only ones of the three provided that attributed this discussion to Andy McCabe).

There are at least two other sets of notes from this meeting that are known or presumed to exist:

And there were at least three other people present at the meeting known to take notes:

  • Bill Priestap
  • Andy McCabe
  • Dana Boente

Importantly, in Durham’s objection to admitting these notes as evidence, he makes it clear that James Baker (inexcusably as a lawyer) did not take notes of this or any other meeting, but he does not say whether Priestap (or Trisha Anderson) took notes.

Moreover, the DOJ personnel who took the notes that the defendant may seek to offer were not present for the defendant’s 2016 meeting with the FBI General Counsel. And while the FBI General Counsel was present for the March 6, 2017 meeting, the Government has not located any notes that he took there.

If Priestap took notes, one copy should be in Durham’s possession, in the notebook of Priestap’s notes already on Durham’s exhibit list.

DOJ has been trying to prevent anyone from looking at Andy McCabe’s notes for some time.

But one thing that turning over the DOJ IG retained notes for the others will show is whether alterations in the Strzok, Priestap, and McCabe notes were made.

It’ll also make it easy to test why Jensen’s review redacted a date and added one — albeit the correct one — in the Jim Crowell notes.

 

That is, I wonder if Durhams’ reluctance to turn over those materials stems not from any facts about his own investigation, but from an awareness of the cherry-picking — and possibly worse — that having turned over the past one reveals.

Three posts on the altered documents from the Mike Flynn case

The Jeffrey Jensen “Investigation:” Post-It Notes and Other Irregularities (September 26, 2020)

Shorter DOJ: We Made Shit Up … Please Free Mike Flynn (October 27, 2020)

John Durham Has Unaltered Copies of the Documents that Got Altered in the Flynn Docket (December 3, 2020)

March 6, 2017: Sussmann Claims Durham Brady Violation over Meeting Notes Flynn Falsely Claimed Were a Brady Violation

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In this post, I noted that the notes from a March 6, 2017 meeting that Sussmann wants to introduce at trial might be a way to prove his claimed lie was not material.

But it gets far worse. In a filing explaining the basis for submitting the notes from that meeting — written by Tashina Gaushar, Mary McCord, and Scott Schools — Sussmann explained that the reason he didn’t include these notes in his motion in limine is because Durham only gave them to him in March, past his discovery deadline. When Durham provided this late discovery, Durham noted there were references to “a client” in some of the documents, without identifying where those references were.

That, Sussmann says, is a Brady violation.

In late March 2022, the Special Counsel produced extraordinarily significant Brady material. See Brady v. Maryland, 373 U.S. 83 (1963). Specifically, the Special Counsel produced handwritten notes of several participants at a meeting held in March 2017, at which senior members of the FBI briefed DOJ’s Acting Attorney General about various aspects of the FBI’s investigation into potential Russian influence in the 2016 presidential election (“Russia Investigations”). During that meeting—at which James Baker (FBI General Counsel), Bill Priestap (Assistant Director of FBI’s Counterintelligence Division), and Trisha Anderson (FBI National Security & Cyber Law Branch Deputy General Counsel), among others, were present— Andrew McCabe (Deputy Director of FBI) described the FBI’s investigation of the Alfa Bank allegations. Specifically, Mr. McCabe stated that the Alfa Bank allegations were provided to the FBI by an attorney on behalf of his client. 2

[snip]

As a preliminary matter, we address the Special Counsel’s suggestion that Mr. Sussmann should have filed a motion in limine regarding the March 2017 Notes. The Special Counsel neglects to mention that these handwritten notes were buried in nearly 22,000 pages of discovery that the Special Counsel produced approximately two weeks before motions in limine were due. Specifically, the Special Counsel produced the March 2017 Notes as part of a March 18, 2022 production. The Special Counsel included the March 2017 Notes in a sub-folder generically labeled “FBI declassified” and similarly labeled them only as “FBI/DOJ Declassified Documents” in his cover letter. See Letter from J. Durham to M. Bosworth and S. Berkowitz (Mar. 18, 2022). And although the Special Counsel indicated on a phone call of March 18, 2022 that some of the 22,000 pages were documents that made references to “client,” he did not specifically identify the March 2017 Notes or otherwise call to attention to this powerful exculpatory material in the way that Brady and its progeny requires. See United States v. Hsia, 24 F. Supp. 2d 14, 29-30 (D.D.C. 1998) (“The government cannot meet its Brady obligations by providing [defendant] with access to 600,000 documents and then claiming that she should have been able to find the exculpatory information in the haystack. To the extent that the government knows of any documents or statements that constitute Brady material, it must identify that material to [defendant].”); United States v. Saffarinia, 424 F. Supp. 3d 46, 86 (D.D.C. 2020) (“[T]he government’s Brady obligations require it to identify any known Brady material to the extent that the government knows of any such material in its production of approximately 3.5 million pages of documents.”). All this aside, the Special Counsel has also failed to explain why this powerful Brady material was produced years into their investigation, six months after Mr. Sussmann was indicted, and only weeks before trial.3 Had the material been timely produced, Mr. Sussmann surely would have filed an appropriate motion in limine on the timeline for such motions.

3 In addition, the March 2017 Notes were produced over one month after the February 11, 2022 deadline for classified and declassified discovery, although they do not appear to fall within any of the categories of discovery for which the Special Counsel sought, and was granted, an extension to produce certain documents. See ECF No. 33, at 13-18.

Durham still hasn’t handed over all the notes from the meeting.

2 The defense has requested that the Special Counsel search for any additional records that may shed further light on the meeting and certain of those requests remain outstanding. To date, the Special Counsel has represented that the only additional notes from attendees at the meeting that he has identified do not reference whether or not Mr. Sussmann was acting on behalf of a client. The absence in those notes of any reference to whether Mr. Sussmann was acting on behalf of a client also raises questions regarding materiality of the charged conduct: if the on behalf of information were truly material to the FBI’s investigation, presumably all note takers would have written it down.

That he has not done so — and that the notes he did share appear unaltered — is significant because we know Jim Crowell also took notes, and it is virtually certain that Peter Strzok did too. Jeffrey Jensen redacted and added a date to the Crowell notes. Given that two sets of Strzok’s notes from related meetings were submitted in varying and altering form over the course of the Flynn litigation, who knows what happened to Strzok’s notes? McCabe was also a note-taker (though was the one speaking at the time).

In other words, Durham appears to be withholding notes from at least two people whose notes have been altered in the past.

Notably, the Crowell notes from the meeting were among those that Sidney Powell falsely claimed the withholding of which amounted to a Brady violation (and as I’ll show, these notes prove that claims made as part of the effort to blow up Mike Flynn’s prosecution were affirmatively false).

So Sussmann is credibly claiming a Brady violation (albeit not one that will get the case thrown out) over a set of notes that Flynn falsely claimed amounted to a Brady violation.

But as Sussmann argues, the late sharing of the notes is far more damning to Durham’s case.

Sussmann will present the notes, in part, to show that sometime after Sussmann sent James Baker a text on September 18, 2016 saying he wanted to help the FBI, Baker came to learn that he did have a client (and shared that information with Andy McCabe, who is the one who explained this at the meeting). When McCabe explained that in the March 6 meeting, neither Baker nor the people Durham will use to corroborate Baker’s credibility regarding his September 2016 representations corrected him.

And yet, at some point between September 18, 2016 and March 6, 2017, the FBI apparently came to believe that Mr. Sussmann did have a client in connection with his meeting with Mr. Baker, and that the Alfa allegations were provided “on behalf of his client.” 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.

Therefore, it is highly significant that, as of March 2017, when the FBI was asked to provide DOJ leadership with a summary of the Alfa Bank investigation (which by that time had concluded), the FBI at the highest levels described the Alfa Bank allegations as having come from an “attorney . . . on behalf of his client,” see Ex. A, Tashina Gauhar Notes, at SCO-074100, or from an attorney who had a client, but “d[id]/n[ot] say who [the] client was,” see Ex. B, Mary McCord Notes, at SCO-074070. The significance of the March 2017 Notes is further underscored by the fact that Mr. Baker, Mr. Priestap, and Ms. Anderson, all of whom are on the Special Counsel’s witness list, attended that March 2017 meeting. To the extent the Special Counsel argues, as the defense expects he will, that Mr. Baker’s recollection of the meeting has been “refreshed” by Mr. Priestap’s notes, it is obvious that the Special Counsel’s failure to refresh Mr. Baker’s recollection with the contradictory March 2017 Notes is relevant to Mr. Baker’s credibility as well as the manner in which the Special Counsel has handled a critical witness.

[snip]

At the briefing, as related to the Alfa Bank investigation, Mr. McCabe appears to have provided a general summary of the allegations that had been brought to the FBI. Most importantly, notes from other participants at the meeting indicate that Mr. McCabe explained that the allegations were brought to the FBI by an attorney “on behalf of his client,” see Ex. A, Tashina Gauhar Notes, at SCO-074100 (emphasis added), but that the attorney “d[id]/n[ot] say who [the] client was,” see Ex. B, Mary McCord Notes, at SCO-074070 (emphases added). There is no indication whatsoever from any participants’ notes that Mr. Baker—or Mr. Priestep or Ms. Anderson—refuted or corrected Mr. McCabe’s explanation. Such a statement—recorded by multiple participants, made in the presence of Mr. Baker, Mr. Priestep, and Ms. Anderson, and regarding the FBI meeting that is the subject of the charge against Mr. Sussmann—is both admissible and material to the defense.

The implication is that at some point very early in the investigation — either in their face-to-face September 19 meeting, or in calls on September 21 and 22 — Sussmann told Baker he did have a client. And Durham can’t prove when that was, because he has no original notes from Baker. At the very least, it proves that Sussmann wasn’t lying as part of a big cover-up. But it hurts Durham’s ability to prove the lie generally, because it’s possible he told Baker he wanted to help the FBI on September 18 (which is not charged), said nothing on September 19, and then explained he had a client on September 21 or 22.

Given the treatment of these and other notes from the same set, however, I’m more interested in Sussmann’s other argument: Durham chose to refresh Baker’s memory with Bill Priestap’s notes, but never showed him these.

In addition, as noted above, the Special Counsel apparently intends to elicit testimony suggesting that Mr. Baker landed on his latest version of events after reviewing notes from a separate meeting, taken by Mr. Priestap and provided to Mr. Baker by the Special Counsel. However, the Special Counsel conspicuously did not show Mr. Baker the March 2017 Notes when attempting to refresh his recollection. The March 2017 Notes are thus also admissible to attack the Special Counsel’s prejudicial handling of a critical witness, as well as Mr. Baker’s current recollection of events. See United States v. Fieger, No. 07-CR- 20414, 2008 WL 996401, at *2-3 (E.D. Mich. Apr. 8, 2008) (defendants permitted to “bring in the factual scenario” of the government’s investigation, including by “asking witnesses about the circumstances surrounding their questioning by Government agents”).

That is, he was coaching Baker to tell him the story he needed to be true and suppressing the story that Baker had already told publicly for which Durham had corroboration.

The most likely explanation is that Baker learned (and shared) that Sussmann had a client in one of the September calls, and the conflicting stories explain why Baker’s story has been so inconsistent. Ultimately, though, if Sussmann told Baker he had a client within days, it says he didn’t originally (in a September 18 text that was not charged) claim he was coming to help the FBI as part of a big cover-up. He did so because he wanted to help the FBI and then, within a week, proceeded to do so.

Here’s the thing: From the start, I’ve been expecting Durham to have real discovery problems (and, given that he’s slow-walking on turning over Crowell’s known and Strzok’s likely notes, will continue to have such problems here).

But he has no excuse with these notes. They’re notes he would have reviewed closely in 2020. These are in no way notes he couldn’t have known about. They’re not even notes that the Ukraine invasion would have created a delay in reviewing; the primary classified information in the notes pertains to Walid Phares, who was investigated for his ties to Egypt, not Russia.

These are the notes he was ordered to make a case out of. He had and reviewed them before he started hunting Michael Sussmann.

And yet he chose not to use the documents that hurt his case to refresh Baker’s memory and then buried them in a stack of tardy discovery.

Update: Intro and close fixed.

The March 6, 2017 Notes: Proof about Materiality

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Update: Read this post on the March 6, 2017 notes before this one.

I want to return to John Durham’s objection to Michael Sussmann’s plan to offer notes from an FBI Agent and notes from a March 6, 2017 meeting as evidence.

The defense also may seek to offer (i) multiple pages of handwritten notes taken by an FBI Headquarters Special Agent concerning his work on the investigation of the Russian Bank-1 allegations, (including notes reflecting information he received from the FBI Chicago case team), and (ii) notes taken by multiple DOJ personnel at a March 6, 2017 briefing by the FBI for the then-Acting Attorney General on various Trump-related investigations, including the Russian Bank-1 allegations. See, e.g., Defense Ex. 353, 370, 410. The notes of two DOJ participants at the March 6, 2017 meeting reflect the use of the word “client” in connection with the Russian Bank-1 allegations.1 The defendant did not include reference to any of these notes – which were taken nearly six months after the defendant’s alleged false statement – in its motions in limine. Moreover, the DOJ personnel who took the notes that the defendant may seek to offer were not present for the defendant’s 2016 meeting with the FBI General Counsel. And while the FBI General Counsel was present for the March 6, 2017 meeting, the Government has not located any notes that he took there.

The Government respectfully submits that the Court should require the defense to proffer a non-hearsay basis for each portion of the aforementioned notes that they intend to offer at trial. The defendant has objected to the Government’s admission of certain notes taken by FBI officials following the defendant’s September 19, 2016 meeting with the FBI General Counsel, and the Government has explained in detail its bases for admitting such notes. Accordingly, the defendant should similarly proffer a legal basis to admit the notes he seeks to offer at trial. Fed. R. Evid. 801(c).

1. The notes of the March 6, 2017 briefing do not appear on the defendant’s Exhibit List, but the Government understands from its recent communications with counsel that they may intend to offer the notes at trial.

As I noted here, attempting to introduce the notes achieves some tactical purpose for Sussmann: presumably, the rules Judge Christopher Cooper adopted in his motions in limine order will apply to these two potential exhibits. So putting these exhibits out there provide a way to hem Durham in on that front.

But they may be more central to Sussmann’s defense. Sussmann may be preparing these exhibits (and one or more witnesses to introduce them) to prove that his alleged lie was not material.

We know a bit about the meeting in question and the potential note-takers.

The DOJ IG Report on Carter Page explains that, after Dana Boente became acting Attorney General after Sally Yates’ firing, he asked for regular briefings because he believed that, “the investigation had not been moving with a sense of urgency,” and that, “it was extraordinarily important to the Department and its reputation that the allegations of Russian interference in the 2016 U.S. elections were investigated.” DOJ IG may have muddled the scope of these meetings (as they did the scope of Bruce Ohr’s actions), because Boente was obviously talking about all the Russian interference allegations, and Alfa Bank was, as far as we know, always separate from Crossfire Hurricane (and in any case never became part of the Mueller investigation).

On January 30, 2017, Boente became the Acting Attorney General after Yates was removed, and ten days later became the Acting DAG after Jefferson Sessions was confirmed and sworn in as Attorney General. Boente simultaneously served as the Acting Attorney General on the FBI’s Russia related investigations after Sessions recused himself from overseeing matters “arising from the campaigns for President of the United States.” Boente told the OIG that after reading the January 2017 Intelligence Community Assessment (ICA) report on Russia’s election influence efforts (described in Chapter Six), he requested a briefing on Crossfire Hurricane. That briefing took place on February 16, and Boente said that he sought regular briefings on the case thereafter because he believed that it was extraordinarily important to the Department and its reputation that the allegations of Russian interference in the 2016 U.S. elections were investigated. Boente told us that he also was concerned that the investigation lacked cohesion because the individual Crossfire Hurricane cases had been assigned to multiple field offices. In addition, he said that he had the impression that the investigation had not been moving with a sense of urgency-an impression that was based, at least in part, on “not a lot” of criminal legal process being used. To gain more visibility into Crossfire Hurricane, improve coordination, and speed up the investigation, Boente directed ODAG staff to attend weekly or bi-weekly meetings with NSD for Crossfire Hurricane case updates.

Boente’s calendar entries and handwritten notes reflect multiple briefings in March and April 2017. Boente’s handwritten notes of the March meetings reflect that he was briefed on the predication for opening Crossfire Hurricane, the four individual cases, and the status of certain aspects of the Flynn case. [my emphasis]

As noted, these meetings focused on ways to “reenergize” the Russian investigations, including the one into Paul Manafort’s corruption.

Additionally, notes from an FBI briefing for Boente on March 6, 2017, indicate that someone in the meeting stated that Ohr and Swartz had a “discussion of kleptocracy + Russian org. crime” in relation to the Manafort criminal case in an effort to “re-energize [the] CRM case.”

And we know who attended the March 6 meeting, because Jeffrey Jensen released highly redacted notes — with a date added — as part of his effort to blow up the Mike Flynn case.

Jim C[rowell, who took the notes]

FBI/McCabe/Baker/Rybicki/Pete/Toscas

Scott/Tash/McCord/Dana/

For the benefit of the frothers who are sure David Laufman was part of this: sorry, he was not.

Laufman did not attend the meetings in January, February, and March 2017 that were attended by Boente, McCord, and other senior Department officials.

The IG Report describes that in addition to Crowell, Boente, Tashina Gauhar, and Scott Schools took notes of these meetings. We also know Strzok was an assiduous note taker, so it’s likely he took notes as well. People like Crowell (who is now a Superior Court judge) or Boente would make powerful witnesses at trial.

And according to Durham’s objection, among the as many as five sets of notes from this meeting that James Baker attended, two say that the word “client” came up in conjunction with the Alfa Bank allegations.

Durham seems to suspect this is an attempt to bolster possible Baker testimony that, after the initial meeting between him and Sussmann, he came to know Sussmann had a client (which would be proof that Sussmann wasn’t hiding that). He did, and within days! That’s one important part of the communications during which Baker got Sussmann and Rodney Joffe’s help to kill the NYT story: as part of that exchange, he learned that Sussmann had to consult with someone before sharing which news outlet was about to publish the Alfa Bank story. For that purpose, according to the common sense rules just adopted by Cooper, one or some of the ten people at the meeting would need to remember Baker referring to a “client,” and one of the two people who noted that in real time has to remember doing so.

But there’s likely another reason Sussmann would want to introduce this information.

Not only did a contemporaneous record reflect that everyone involved learned if they did not already know that there was a client involved in this Alfa Bank allegation, but by then everyone involved also knew that Glenn Simpson worked first for a GOP and then a Democratic client.

Finally, handwritten notes and other documentation reflect that in February and March 2017 it was broadly known among FBI officials working on and supervising the investigation, and shared with senior NSD and ODAG officials, that Simpson (who hired Steele) was himself hired first by a candidate during the Republican primaries and then later by someone related to the Democratic Party.

The things that, Durham insists, would have led the FBI to shy away from this investigation were known by the time of this meeting.

And, I suspect, that’s why Sussmann wants to introduce the FBI Agent’s notes (and yes, it is possible they are Strzok’s). Because the actions taken in the wake of this meeting provide a way of assessing what the FBI would have done — and did do — after such time as they undeniably knew that Sussmann had a client.

Boente wanted more action taken. Ultimately, whatever action was taken led shortly thereafter to the closure of the investigation.

But Durham’s entire prosecution depends on proving that the FBI would have acted differently if they knew Sussmann had a client. So it is perfectly reasonable for Sussmann to introduce evidence about what the FBI said and did after such time as they provably did know that.

 

The “Scanned” Andrew McCabe Notes Weren’t [Just] “Scanned”

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The story DOJ offered yesterday to explain why they had altered several exhibits of undated notes raise more questions then they answered. In both cases where DOJ has admitted the exhibits had added dates — Peter Strzok and Andrew McCabe — those dates are problematic.

Plus, the excuse offered for those dates — that someone forgot to take off a clear sticky and post-it notes before copying the exhibit — can’t explain the third instance where DOJ added a date, where they incorporated it into the redaction of notes taken from a meeting involving ODAG’s office.

Indeed, the redaction may even cover an existing date (see what look like the slashes of a date, outlined in red, though that could also record the names of other attendees), with a date added in the redaction (outlined in yellow).

Moreover, there’s a problem with the excuse DOJ offered about the McCabe notes, which went as follows:

Similarly, the government has learned that, at some point during the review of the McCabe notes, someone placed a blue “flag” with clear adhesive to the McCabe notes with an estimated date (the notes themselves are also undated). Again, the flag was inadvertently not removed when the notes were scanned by FBI Headquarters, before they were forwarded to our office for production.

That is, DOJ is claiming that “someone” missed a blue “flag” when they were “scanning” McCabe’s notes and so inadvertently left a date — the wrong date, probably — on the exhibit, without leaving any sign on the exhibit itself.

The problem with this explanation is that we know precisely what a blue sticky left on an actual “scan” looks like. It looks just like what we say in the Bill Priestap notes submitted three times under two different Bates stamp numbers.

That is, if the document were just scanned, it would show up quite obviously, as it does here, and would be impossible to miss.

And yet this “scan” attributed to “somebody” doesn’t show up, possibly because the redaction covers it.