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

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

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

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

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

The coming onslaught of Fusion documents

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

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

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

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

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

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

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

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

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

1:37PM: Fritsch responds,

the DNS stuff? not us at all

outside computer experts

we did put up an alfa memo unrelated to all this

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

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

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

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

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

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

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

1:44PM: Fritsch to Lichtblau:

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

[mediafire link] [my emphasis]

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

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

tuta sent me this guidance

[snip]

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

2:32PM: Fritsch to Lichtblau:

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

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

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

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

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

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

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

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

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

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

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

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

Sussmann will argue that keeping secrets facilitates national security interests.

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

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

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

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

A. Yes.

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

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

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

A. I recall that exact statement.

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

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

A. I do.

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

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

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

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

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

Q. Changed back to being a witness?

A. To a witness, yes.

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

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

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

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

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

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

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

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

Fun with missing Bates stamps

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

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

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

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

Calling the agent of a foreign agent to ask for comment

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

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

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

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

A. Yes.

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

A. Yes.

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

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

[snip]

A. I’m sorry?

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

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

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

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

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

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

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

A. Yes.

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

A. Yes.

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

A. Yes.

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

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

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

A. Yes.

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

A. Yes.

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

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

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

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

[snip]

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

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

[snip]

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

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

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

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

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

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

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

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

Agent Gaynor belatedly rediscovers the Mediafire package

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

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

He included Moffa and Joe Pientka on that email.

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

OTHER SUSSMANN TRIAL COVERAGE

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

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

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

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

John Durham’s Lies with Metadata

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

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

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

Jim Baker’s Tweet and the Recidivist Foreign Influence Cheater

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

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

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

Technical Exhibits, Michael Sussmann Trial

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

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

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

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)

Jim Baker’s Tweet and the Recidivist Foreign Influence Cheater

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

In my post on what prosecutors need to prove to win their case against Michael Sussmann, I noted they had to prove that:

  • Sussmann said the lie that they claim he did: that he affirmatively said he was not sharing the Alfa Bank allegations on behalf of a client
  • He said it on September 19, and not just on September 18
  • It was an intentional lie
  • It was material, meaning the alleged lie mattered to the operation of the FBI

I think the government has, in some ways, done best presenting their materiality arguments (but then, that’s the lowest bar). But even there, exhibits submitted at trial show that at least two of the key decision-makers on investigative issues had received a text referencing that this was a DNC report; Andrew DeFilippis speculated with one of the witnesses who received the text that it was a typo for DNS. And it appears, in multiple situations, people just assumed that Sussmann was at the FBI on behalf of the Hillary campaign, and took it into account. That said, Berkowitz got Baker — who was a key player in the Stellar Wind story that Eric Lichtblau held through an election in 2004 — to explain how important, from a national security perspective, it can be to hold certain stories.

And as I’ll show, Sussmann’s team may have something very special in store to make their materiality argument.

Regarding whether his statement that he was not there “on behalf of any client,” I think Sussmann has made a very good case that he meant his comment to Jim Baker on September 18 that he wanted to help the FBI. Both Marc Elias and Robbie Mook testified that sharing advance warning of a story they wanted to come out was the last they would have wanted or approved, because Jim Comey had done so much to damage the campaign. Particularly if Eric Lichtblau testifies, Sussmann will have a powerful story about all the damage that going to the FBI did to the campaign.

As to the other questions, they all go to Baker’s credibility on the stand.

I can’t say how the jury reacted, but I think prosecutors really didn’t do what they needed to do to prove that Sussmann repeated his comment about not meeting with Baker on behalf of any client and, then, hiding it when he helped the FBI kill the story later in the week. And Berkowitz did even more to show the changing nature of Baker’s statements about the meeting over time.

I did two long twitter threads on Sean Berkowitz’ cross-examination of Baker (Thursday night, Friday morning). I think Berkowitz achieved the following:

  • Used Baker to define “lie” as having an intention to deceive.
  • Made it clear that Baker reconstructed his understanding of his face-to-face meeting with Sussmann with the help of a chain of custody log that an FBI agent referring to the process called “doctored.” That’s going to provide Sussmann’s team a great metaphor to explain what Baker’s memory consists of.
  • Got Baker to suggest his memory of what happened on September 19 amounted to “words to that effect” of what has been charged.
  • Got Baker to agree that there’s at least a 25% chance Sussmann told him he had a client on September 21, which would be proof he wasn’t hiding a client.
  • Foregrounded the possibility that Baker could be prosecuted for his many inconsistent statements, including some that were made in 2018 and some that were made months ago. The statute of limitations on Baker’s inconsistent statements won’t expire until 2027.
  • Showed that Baker’s testimony on the stand was inconsistent with things he told Durham even in recent months; and Baker continues to not remember key details both of what happened on September 19 but also much more recently.
  • Showed that Baker’s reconstructed memory shifts at times from “that matter” (collecting the data) to the meeting itself; this is a reconstructed memory that can only come from prosecutors.
  • Demonstrated that Durham withheld at least three documents that could have “refreshed” Baker’s memory to believing Sussmann had told him he had a client.
  • Placed Durham in the room for some of the key sessions — including in Summer 2020, when Barr and Trump were pressuring Durham to show some results in time for the election — when Baker’s memory was “refreshed.”

Those threads were hard to write and I’m sure even more painful for people who are friends of one or both men to read. The story Berkowitz told was how, through the relentless grind of Republican blowhards and the Trump DOJ’s politicized investigations, Baker came to “remember” testimony that could put his friend, Sussmann, someone who had tried to get him a job when he was at a really bad point in his life, in prison.

There was no way out for Sussmann except to destroy his friend. And Berkowitz at least made it seem that Baker had believed there was no way out for him except to “refresh” his memory to match what Durham wanted.

I suspect it likely that Sussmann’s team will point out that Durham is choosing to prosecute just the people whose story doesn’t match the one that Durham wants to tell. It’s not just Baker whose testimony to Durham is inconsistent with provable facts, but Durham is not prosecuting any of the witnesses who are saying what he wants them to.

With all that as background I want to point to something subtle that I suspect will become part of that theme. Ostensibly to address materiality — Baker’s belief, one he shared with Congress in 2018 but contradicted under coaching by Durham on the stand — that if you have a national security tip you need to feel free to come to the FBI. Baker tweeted it out on June 13, 2019.

This would have been posted weeks after Durham was appointed, which — Baker testified — led Baker to expect he’d be under criminal investigation again.

Q. And you, sir, were aware that Mr. Baker was — I mean, Mr. Durham was reappointed as special counsel, correct, in or around 2019?

A. For this matter?

Q. yes.

A. yes.

Q. And when that happened, you were concerned, were you not?

A. Concerned about what?

Q. That Mr. Durham might come and investigate you more?

A. I wasn’t concerned about it. I expected it.

Q. All right. You expected to be investigated further by Mr. Durham. Correct?

A. Correct.

After having laid out how Baker had been investigated by Durham as part of a leak investigation for years, Berkowitz even introduced a text that Baker sent Ben Wittes the day after Durham was appointed saying, “now I get to be investigated for another year or two by John Durham. Lovely.”

But the tweet about going to the FBI wasn’t about Durham and it wasn’t random.

Rather, it was a response to something Trump said in an interview with George Stephanopoulos, between the time Mueller wrapped up his investigation, in part, of Trump’s request, “Russia, are you listening,” in 2016 and the time Trump asked Volodymyr Zelensky, “but first, I would like you to do us a favor.” On the same day Baker encouraged people to go to the FBI if they had evidence, ABC posted an interview in which Trump said,

“It’s not an interference, they have information — I think I’d take it,” Trump said. “If I thought there was something wrong, I’d go maybe to the FBI — if I thought there was something wrong. But when somebody comes up with oppo research, right, they come up with oppo research, ‘oh let’s call the FBI.’ The FBI doesn’t have enough agents to take care of it. When you go and talk, honestly, to congressman, they all do it, they always have, and that’s the way it is. It’s called oppo research.”

I’m not precisely sure how Sussmann’s team is going to use this tweet, beyond the materiality question, materiality about precisely this situation, whether someone should share information with the FBI after their opponent solicited help from a hostile foreign government.

But it sure seems to be evidence of more than just materiality.

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.

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

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. 

Longtime readers of emptywheel are no doubt familiar with my obsession with the weird prevalence of sticky notes that appear on exhibits used by prosecutors Bill Barr appointed to launch politicized witch hunts. These posts provide a background, but the tl;dr is that I caught the Jeffrey Jensen crew adding dates on sticky notes, some inaccurate, to FBI notes as part of the effort to kill the Mike Flynn prosecution.

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)

John Durham Is Hiding Evidence of Altered Notes (April 5, 2022)

As I noted here, there some reason to believe Durham’s evidence comes from the same collection of documents as Jeffrey Jensen’s.

Durham released the trial versions of Bill Priestap and Trisha Anderson’s notes yesterday. So without further commentary (for now), I’d like to post how these notes appeared in the filing he used to get the notes admitted in the first place with what the jury will see.

Priestap notes motion version

Priestap notes trial exhibit version

Anderson notes motion version

Anderson notes trial exhibit version

John Durham’s Lies with Metadata

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. 

I’d like to thank John Durham for showing us back in April how he was going to mislead the jury with metadata.

He appears to have done just that, yesterday, with several exhibits entered into evidence. And I fear that unless Durham’s lie is corrected, he will gravely mislead the jury.

As I pointed out in April, because of the email system at Fusion GPS, the first email in any thread they produced to Durham renders as UTC; the rest render as ET. So, for the emails on which one could check, the first email in every thread they released in April was four hours later than the time the email was actually sent.

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

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

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

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

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

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

That means if you show someone only the first email in a thread, you will be misrepresenting what time that email was sent.

That’s what Durham did yesterday with a bunch of Fusion-produced emails he submitted during Laura Seago’s testimony, including (but not limited to):

Over and over, Andrew DeFilippis showed these to Laura Seago and asked her to state what date and time the emails were.

MR. DeFILIPPIS: Okay. And, Your Honor, if there’s no objection from the defense, we’ll offer Government’s Exhibit 612.

MR. BERKOWITZ: No objection.

THE COURT: So moved.

Q. Okay. So what is the date and time of this email?

A. October 5, 2016, at 5:23 p.m.

Q. And the “Subject” line?

A. “Re: so is this safe to look at” — excuse me — “so this is safe to look at.”

While these emails appear to have been produced to Durham at a later time (their Bates numbers from Fusion are about 3000 pages off some of the earlier ones), they’re from the same series and produced by the same custodian, so we should assume that the same anomaly that existed on the earlier ones exists here.

Seago hasn’t seen these emails for years and — because they were treated as privileged — she can only see the first email in a thread, even if there are replies in that thread (and there clearly are, in some of them). She had no way of knowing if she was looking at UTC time!

But Andrew DeFilippis surely does. Indeed, he’s prepping an attack on Sussmann for not understanding that Durham turned over Lync files from the FBI without making clear they, also, get produced in UTC. So he’s aware of which exhibits he has sent to Sussmann without clarifying the correct time. Yet over and over again, DeFilippis asked Seago what time these emails were sent, even though he likely knows (especially since these are files that are no longer privileged, so he has seen those that are threads) that he was deceiving her.

And the timing of these Fusion emails — and possibly some earlier ones exchanged with Rodney Joffe — almost certainly matter.

As I showed in my earlier post, because Durham didn’t fix the anomaly in these emails, they have created the false impression that an October 5 email from Mark Hosenball that shared public links to Tea Leaves’ files came in after Fusion sent it out to Eric Lichtblau. They appear to be prepping another deceit, this one conflating a link that Hosenball sent with one Seago found on Reddit.

Assuming the emails released yesterday share this same anomaly, here’s how the timeline would work out. I’ve bolded the ones that would be grossly misleading taken out of order.

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

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

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

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

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

1:37PM: Fritsch responds,

the DNS stuff? not us at all

outside computer experts

we did put up an alfa memo unrelated to all this

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

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

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

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

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

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

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

1:44PM: Fritsch to Lichtblau:

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

[mediafire link] [my emphasis]

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

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

tuta sent me this guidance

[snip]

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

2:32PM: Fritsch to Lichtblau:

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

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

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

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

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

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

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

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

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

 

 

What Durham will completely and utterly misrepresent if it doesn’t clarify this anomaly (and this is the second time they have declined to) is that Seago and Mark Hosenball both accessed different packages of the Tea Leaves materials, one of which then got sent out to Lichtblau. Between 2:33 and 2:57, Seago appears to have compared the files and told Fritsch, who then told Hosenball, that the packages were “all the same stuff.”

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

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I’m still waiting on the second transcript from the Michael Sussmann trial, after which point I’ll lay out what Andrew DeFilippis already did to give Sussmann cause for appeal, if he were to lose.

Until then, I want to share the unbelievably crazypants belief that Durham’s prosecutors are attempting to sell to a jury. AUSA Brittain Shaw laid out the framework Durham’s team will use this way:

So what will the evidence show? The evidence will show that defendant’s lie was all part of a bigger plan, a plan that the defendant carried out in concert with two clients, the Hillary Clinton Campaign and Internet executive Rodney Joffe. It was a plan to create an October surprise on the eve of the presidential election, a plan that used and manipulated the FBI, a plan that the defendant hoped would trigger negative news stories and cause an FBI investigation, a plan that largely succeeded.

How did the defendant execute this plan? Through his two clients.

First, the Clinton Campaign. You’re going to hear that in the summer of 2016, as the presidential election was heating up, the defendant was working at a major D.C. law firm which was acting as legal counsel for the Clinton Campaign. You’re also going to find as part of — hear that as part of their campaign efforts they were hired and were paying an investigative firm called Fusion GPS that was hired to do what’s called opposition research.That’s where the defendant’s plan took shape, and the evidence will show that the plan had three parts: a look, a leak, and a lie.

[claims about Fusion GPS and Rodney Joffe’s efforts, the latter of which, especially, are badly wrong]

First the look. The evidence will show that as Sussmann and Joffe met and coordinated with representatives of the Clinton Campaign and Fusion GPS, they looked for more data. You will hear that Joffe instructed people at his companies to scour Internet traffic for any derogatory information they could find about Trump or his associates’ online Internet activities, including potential ties to Alfa-Bank or to Russia. And you will see that Fusion GPS did the same using their access to other information.

Second, the leak. You will hear from the evidence that the defendant and Joffe then leaked the Alfa-Bank allegations to a reporter at the New York Times with the hope and expectation that he would run a story about it.

Third, the lie. You will see that when the reporter didn’t publish this story right away, the defendant and others decided to bring this information to the FBI and to create a sense of urgency, to also tell the FBI that a major news organization was running a story within days. That’s when the defendant requested the meeting with the FBI general counsel and told him that he was not doing this for any client.

The evidence will show you that the defendant had at least two reasons to lie.

First you’re going to hear that the defendant was a cyber security lawyer who had been hired earlier that year by the Democratic National Committee to represent them in relation to a computer hack where they’d been the victim. Because of this, the defendant was in frequent contact with the FBI about the hack investigation. They considered him to be the DNS — I mean, the DNC attorney for that matter. Because they viewed him as the DNC lawyer for the hack, the defendant knew that if he came in and told them that he was representing a political candidate at this time, weeks before an election, they might not meet with him right away, let alone open an investigation.

Second, the defendant knew that if he could get the FBI to investigate the matter and reach out to the press to try to stop the story, that that would make the story more attractive to the press, and they would report on it. [my emphasis]

I get that this is supposed to be catchy for jurors. But this is a child’s fantasy (and Sussmann’s lawyer, Michael Bosworth, noted that Sussmann going to the FBI was, “The exact opposite of what the Clinton Campaign would want”).

Start with Shaw’s claims about “the look.” Not only is it false that Joffe was looking for new information after such time as Sussmann was aware of it, not only won’t the witnesses Durham plans to call explain all of where the data came from, but already, DOJ has submitted two exhibits showing that the focus on late data gathering was on Alfa Bank, not Trump. And those late data collection efforts even included dcleaks (I’m virtually certain that Durham has not provided Sussmann discovery on all the things, such as the FBI’s suspicions that Roger Stone had advance awareness of the dcleaks operation, for them to submit evidence about it).

Next, Shaw calls sharing information with a journalist who had called a lawyer known to be grappling with serial hacks by Russia and asked about Russian hacks, “a leak,” as if there’s something untoward about sharing information with the press, as if Sussmann would “leak” information and then go tell the FBI about “leaking” it, which he did. This is just word salad!

Then Shaw claimed that Sussmann lied to provide urgency to the story. Based on my understanding, Shaw is wrong about the NYT’s plans for publication of the story. My understanding is that Dean Baquet would have happily published the story in September, when Eric Lichtblau was ready to publish and when Sussmann helped kill the story, but by October, he would only publish if reporters could prove substantive communications had taken place. That’s consistent with what Dexter Filkins reported.

The F.B.I. officials asked Lichtblau to delay publishing his story, saying that releasing the news could jeopardize their investigation. As the story sat, Dean Baquet, the Times’ executive editor, decided that it would not suffice to report the existence of computer contacts without knowing their purpose. Lichtblau disagreed, arguing that his story contained important news: that the F.B.I. had opened a counterintelligence investigation into Russian contacts with Trump’s aides.

So none of her basic claims are true.

But the thing that is breathtakingly ridiculous is Shaw’s claim that Sussmann’s purported plan to create, “an October surprise on the eve of the presidential election … largely succeeded.”

What Sussmann got for his troubles of helping to kill the story in September was a story at Slate rather than NYT, immediate pre-election pushback from several entities (including me), and a NYT story that made multiple claims that were true at the time but that we now know to be false.

The story claimed there was no tie between Trump and the Russian government; but Trump and Michael Cohen were lying to cover up (among other things) a call with the Kremlin about doing a real estate deal with a sanctioned bank and a former GRU officer.

The story claimed there was no secret email communication between Trump and Russia, but Trump’s rat-fucker was communicating with the GRU persona behind the hack and (as noted) may have had advance knowledge of precisely the information operation that Joffe and the researchers were investigating in August 2016.

The story claimed that Russia hacked Trump only to disrupt the election, when subsequent reports have concluded Russia had by that point come to favor Trump (though, I suspect, that was partly because they knew how damaging Trump would be for the country).

Democrats I know place varying blame for Hillary’s loss. Virtually all put the FBI’s sabotage of her campaign as the most important cause (of which Devlin Barrett’s October Surprise, the successful leak of a criminal investigation into Hillary as compared to the opposite here, was a small part). Shaw asserted that, “the FBI is our institution that should not be used as a political tool for anyone,” and yet the Clinton email investigation, the Clinton Foundation investigation, and Durham’s own investigation are all more obvious — and wildly more successful — efforts to use the FBI as a political tool than sharing an anomaly with the FBI and helping to kill a story about it.

But no matter who Democrats blame for Hillary’s loss, most point to that NYT story as one of the most damaging stories of the campaign.

And Durham’s entire prosecution is based on the opposite, that the story that most infuriates Democrats was, instead, entirely the point.

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.

The Sussman Trial

Here is the Sussmann indictment as filed by Durham. It is an absurd 27 pages long. I could have written it in 2-3 pages, including signature page.

As you can see, excepting all the run on horse manure Durham penned, the indictment is for a single count of false statement under 18 USC §1001. That is it. One lousy count. That is it.

I will save you the niceties and simply quote you the DOJ guidance on §1001, and here it is:

Section 1001’s statutory terms are violated if someone:

“falsifies, conceals or covers up by any trick, scheme or device a material fact,”
“makes any false, fictitious or fraudulent statements or representations,”
“makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry”
and, for cases arising after the 1996 amendments, the item at issue was material.
Whether the above acts are criminal depends on whether there is an affirmative response to each of the following questions:

Was the act or statement material?
Was the act within the jurisdiction of a department or agency of the United States? and
Was the act done knowingly and willfully?
[cited in JM 9-42.001]

907. Statements Warranting Prosecution. False Statement ›
Updated January 21, 2020

We all think this trial is a cutout for Trump and Trumpism. It is not. Sussman’s ass lies in the lurch. There is a live defendant. Actual jury trials are about what is charged. One count of §1001 is charged here. Keep your eye on that ball. Criminal trials are about crimes, and elements of crimes. This one will be too.