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Three Years into the Durham Investigation, a Jury Will Get to Hear about Trump’s Request that Russia Hack Hillary

There was a funny exchange in yesterday’s pre-trial hearing in the Michael Sussmann case. In the part of the hearing focused on objections to exhibits, Andrew DeFilippis raised the newspaper articles that — I noted — were necessary background to understand the mindset that led Sussmann and Rodney Joffe to believe that the Alfa Bank DNS anomaly raised national security concerns.

These articles explain why it was reasonable, not just for the Democrats’ cybersecurity lawyer who was spending most of his days trying to fight back against a persistent Russian hack, but also for the researchers and Rodney Joffe to try to first look for more Russian hacking (including that victimizing Republicans), and when they found an anomaly, to try to chase it down and even to bring it to the FBI for further investigation. Several threads of these articles — pertaining to Trump’s request that Russia hack Hillary and to Manafort’s corruption — were explicitly invoked in discussions that Durham wants to claim must arise from political malice.

In the hearing, DeFilippis predictably complained that prosecutors didn’t want this to become a trial on Donald Trump’s ties to Russia.

MR. DeFILIPPIS: The last category we had identified were a number of news articles about — again, on the face of — the headlines of the articles about — “Donald Trump’s ties to Russia,” I think, was the primary theme of the news articles.

We just — number one, they’re news articles, which we don’t think have, you know, probative weight here. Number two, we do not want to make this a trial on Donald Trump’s ties to Russia.

And again, we don’t have a lot of context for which it would be — why the defense would want to offer all of those. But I think our initial reaction is they would be a distraction.

Sussmann’s attorney Sean Berkowitz noted that prosecutors — who have made several newspaper articles the central point of their case — aren’t so much opposed to newspaper articles as evidence as they’re opposed to articles about Trump and Russia.

MR. BERKOWITZ: So as we understand the objection, your Honor, it’s not to articles generally. They have articles on their exhibit list. It’s to articles that talk about the issues with Trump and Russia in the summer of 2016.

Judge Christopher Cooper correctly noted that it would be unfair to send a bunch of articles back with the jury to read.

THE COURT: I think it’s broader than that. It’s sending back multiple newspaper articles to the jury with all sorts of stuff in them, and the jury is spending its time reading newspaper articles.

Berkowitz noted that they’re really trying to get to the mindset of Sussmann and Joffe, particularly their response to Trump’s request that Russia hack Hillary some more.

MR. BERKOWITZ:  The articles that we think are relevant, your Honor, relate to what’s going on in the world in July and August of 2016, which provide context and animate what’s going on for Mr. Sussmann and Mr. Joffe and why there are potential national security issues associated with this.

As you’ll remember, you know, on July 27th, at a press conference — again, this is shortly before the researchers start looking into issues, according to the Government — Trump has a press conference that says: Russia, if you’re listening, I hope that you’re able to find the 30,000 emails that are missing. I think you’ll probably be rewarded mightily by our press.

That fact being out there and well known provides context for the work that’s done and the motivation potentially to go to the FBI as to why it would be relevant that there were connections between — potential connections between Trump and Russia.

[snip]

But the fact that this was what was going on in the world at this time we think is very relevant to the state of mind and the rationale behind this as well as the opposition research that was going on.

Cooper cut off Berkowitz before he could explain how this related to the DNC hack. But he suggested that such information could instead come in via questioning of Robby Mook, Marc Elias, and James Baker.

THE COURT: — Mr. Elias, Mr. Mook, Mr. Baker perhaps can all certainly testify to that. Right?

MR. BERKOWITZ: I think that they certainly could, your Honor.

As I’ve noted, that the main redacted part of Elias’ declaration explaining why they hired Fusion for Russian-related research was introduced via a reference to Trump asking Russia to hack Hillary.

Because both sides have separate scope of testimony they’d like to elicit from Elias, he’ll be asked both sets when prosecutors call him.

I’m sure Elias has quite a lot he’d like to say about serving as General Counsel for a candidate whose opponent was soliciting help — and appears to have gotten it — from a hostile foreign country.

Friday is the three year anniversary of the Durham investigation. Tuesday, the likely day both sides will make opening arguments, marks the five year anniversary of the Mueller investigation.

And on that day, a jury will finally hear an argument about how reasonable it was to believe Donald Trump posed a threat to the United States after he asked Russia to help hack his opponent.

Fun with Bates Stamps, Part One: John Durham Confuses His Two Defendants to Rile Up the Frothers

Before I look at what newly disclosed notes from March 6, 2017 (written by Tashina GausharMary McCord, and Scott Schools) reveal about the Crossfire Hurricane investigation, including that Carter Page’s FISA was “fruitful,” which will pose Durham some difficulties in the Igor Danchenko investigation, I want to do two posts having some fun with Bates stamps.

Bates stamps are the way that lawyers track the documents they shuffle around in discovery. Every page of a document should be stamped sequentially to show the document’s chain of custody; the numbers also make referring to such documents in court filings easier. Just as one not-at-all random example of how it is supposed to work, this January 31, 2017 document John Durham obtained from the CIA shows three Bates stamps.

We can’t really be entirely sure what chain of custody this shows. Perhaps CIA stamped the outgoing files with  “CIA-0000019” and DOJ stamped the incoming CIA file, “DOJ_REQ_0242039.” We know, however, that Durham’s stamp is “SC-00081634.” Because Bates stamps are sequential, they help us to understand the order in which certain documents are handled.

One thing Bates stamps show us is that John Durham got approval to use a bunch of mostly-irrelevant Fusion GPS exhibits and did not get approval for the ones he actually wants to use at Michael Sussmann’s trial.

Because his team is made up of professionals, along with his objections to Durham’s exhibits, Michael Sussmann included a list that tied the exhibit numbers Durham assigned to the Bates stamps of the documents in question. That allows us to compare what exhibits Durham used to get Judge Christopher Cooper to buy off on submitting Fusion GPS documents with the jury with the Bates numbers of the Fusion GPS documents he really wants to introduce (thanks to William Ockham for doing a lot of this work).

A comparison of what Durham accidentally-on-purpose published to the docket with what Durham actually wants to introduce at trial shows that, of 62 pages of exhibits, he has identified just the following as exhibits at trial:

  • SC-00082558[-559]: July 31, 2015 email between Jake Berkowitz, Tom Hamburger, and Glenn Simpson re: Carter Page and Walid Phares
  • SC-00100359[-361]: September 24 through 27, 2016 email thread including Eric Lichtblau, Glenn Simpson, and Peter Fritsch on open source claim regarding Sergei Millian having a tie to Alfa Bank
  • SC-00027527[-541]: October 5, 2016 email from Fritsch to Isikoff sharing Alfa Group overview
  • SC-00027501: October 5, 2016 email from Fritsch to Lichtblau sharing link sent by Mark Hosenball claiming, “found this published on the web”
  • SC-00027483: October 5, 2016 email from Fritsch to Lichtblau claiming he had “no idea” where the link had come from
  • SC-00027475[-76]: October 5, 2016 exchange between Hosenball and Fritsch about how to respond to Trump statement on Tea Leaves’ allegations
  • SC-00027309: October 18, 2016 Fritsch email suggesting that Hosenball “call David Dagon at Georgia Tech”
  • SC-00027283: October 31, 2016 exchange between Isikoff and Fritsch about “big story on trump Alfa server moving early pm”
  • SC-00027233: November 3, 2016 blank response from Fritsch to Lichtblau regarding request about Sergei Millian

Just the last one, which I’ve bolded, has an assigned exhibit number in Durham’s list, suggesting either that he wants to use the documents with witnesses but not let the jury review the documents or that he’s not all that serious about using the documents as exhibits.

The list enables a tremendous amount of fuckery and more possible depending on how dishonest Durham wants to be.

For example, Durham has not obviously included the email where Mark Hosenball sent the link to the mediafire package to Fusion GPS, even though all the emails strongly support that’s what happened. Thus, as laid out, Durham seems intent to mislead the jury into believing that Fusion got that link via Tea Leaves or Michael Sussmann directly and not, as they’ve explained, via a journalist.

As noted, there are places where the list Sussmann included only the first page of a series. Given the way Durham is treating serial October 5, 2016 emails (most notably those involving Eric Lichtblau), it’s possible he does not intend to include follow-on pages in his exhibits. In several cases, that would leave out important context.

For example, in the October 5, 2016 thread between Fritsch and Hosenball, including just the first page of that exhibit would leave out where Fritsch said,

the DNS stuff? not us at all.

outside computer experts

we did up an alfa memo unrelated to all this

It would also leave out where Fritsch pointed Hosenball to the public tutanota email included at the link that Hosenball himself sent to Fritsch, another piece of evidence showing that this was not an internal operation.

That is, as described, Durham may plan to falsely suggest these efforts were more closely tied than the evidence shows (it might exclude, for example, a key piece of evidence that Judge Cooper pointed to that showed this wasn’t a grand conspiracy).

Similarly, if just the first page of these exhibits were to come in, it would mean the jury got to see that Fusion sent out their Alfa Bank report, but not read the Alfa Bank report itself. Certainly, Durham could credibly argue that including the report would be prejudicial and as such might distract the jury. But excluding the report would also deprive the jury of the only material shared with the FBI that non-experts would have the ability of assessing themselves, both for the quality of the research and the validity of concerns of alleged ties between Trump and Alfa Bank.

For example, the report describes Richard Burt’s publicly acknowledged role in Trump’s first speech (though not a later role discovered as part of the Mueller investigation).

Burt has acknowledged that he played a significant role in writing Trump’s first major foreign policy speech. “I was asked to provide a draft for that speech. And parts of that of my draft —- survived into the final,” he told NPR.”‘

In the April 27 “America First” speech, Trump laid out an isolationist foreign policy. He criticized NATO and promised he would pursue better relations with Russia– skipping over its invasions of its neighbors and human rights abuses?’

It describes several allegations of Alfa Bank’s involvement in spying on adversaries.

Diligence also investigated a reporter from The Vail Street ournal who had contacted the CPI regarding the Alfa libel case. Private investigators for Diligence conducted a trash-stealing operation against the personal residence of the journalist. The operation was eventually exposed by an insider at Diligence. The affair caused high-level consternation in Washington due to a bizarre snafu: Unknown to the Diligence investigators, the reporter had vacated his home and rented it to a top White House official. That led to a confidential national security investigation of possible espionage by Alfa.

It even notes Petr Aven’s close ties to Putin, ties that Putin would exploit within months of the report in an attempt to form a back channel with the Trump Administration (though I suspect Putin did this in part to fulfill these suspicions).

As the face of Alfa Bank, Peter Aven remains the group’s key interface with the Kremlin. It appears his importance has only grown. Alfa Group, and specifically Alfa Bank, have a longstanding presence in the US and the UK.

[snip]

It is clear that Aven remains the key political figure in Alfa Group, with multiple current links to the government and security services, as outlined above. He has also driven the development of international links through the expansion of Alfa Bank in the US and Europe. The bank has carried out careful outreach, running an international Alfa Fellows program and maintaining a high profile. Although not itself a target, the bank has suffered from sanctions however, and has a particular interest in lifting sanctions’.

There’s a lot of crap that came from Fusion GPS, but their straight Russian research held up pretty well, and this is an example why it was reasonable for Perkins Coie to hire Fusion. So while Durham might successfully argue that this would be prejudicial, it is also one of the best ways for the jury to assess the credibility of Perkins Coie’s basis for relying on Fusion. It’s also necessary to explain why Michael Sussmann and Rodney Joffe might believe sharing this material with the FBI pertained to national security, not political malice.

Perhaps the most alarming detail in what Durham included in his exhibit list is that last one, the only one that includes an actual exhibit number.

Durham has made much of the fact that Lichtblau sent an email to Peter Fritsch asking if he had told him (at an in-person meeting) that Sergei Millian had an Alfa email address. As included here as an exhibit, Durham would present this without context, insinuating that Fritsch learned of this via Joffe or someone.

But the actual email thread — exchanged in September, when Lichtblau was in the thick of trying to publish this story — makes it clear that Fusion formed this inference based off entirely public ip information, research entirely unrelated to the DNS allegations.

So as laid out here, Durham has allowed for a good deal of at least possible fuckery.

But then there’s the question of what emails he did present to Judge Cooper claiming he wanted to use as exhibits.

The vast majority of these emails are entirely unrelated to the case against Sussmann. Many of the emails, though, might be related to Igor Danchenko’s case. They pertain to publicly sourced concerns about Sergei Millian, concerns shared far outside of Fusion, as well as to open source research on Carter Page. They do seem to reflect knowledge of a single Christopher Steele report, but at a time before Rodney Joffe first met anyone at Fusion GPS.

Meanwhile, in addition to the emails over which the Democrats or Rodney Joffe have claimed privilege, there are around another 35 that aren’t privileged but which Durham didn’t include in his exhibit of the emails that, he claimed, he wanted to rely on at trial.

In other words, those emails were utterly useless as an exhibit to allow Judge Cooper a good way to assess the exhibits that Durham actually wants to use at trial. They were, however, really useful at riling up the frothers.

The fact that Durham included many emails he doesn’t want to use as exhibits, but didn’t include many emails (including unprivileged ones) that he wants to use as exhibits, including all but one of the ones to which he has assigned an exhibit number, makes it all the more curious that Durham “accidentally” posted these emails publicly to the docket and the unpublished them.

In any case, it’s still possible this fuckery will blow up at trial (assuming that Durham doesn’t find some reason to make an interlocutory appeal, which I think is likely). As Judge Cooper noted in his order regarding motions in limine, “The Court will reserve judgment as to the admissibility of any additional email it has not yet seen.”

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

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

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

That, Sussmann says, is a Brady violation.

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

[snip]

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

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

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

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

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

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

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

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

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

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

And yet, at some point between September 18, 2016 and March 6, 2017, the FBI apparently came to believe that Mr. Sussmann did have a client in connection with his meeting with Mr. Baker, and that the Alfa allegations were provided “on behalf of his client.” The FBI could not have come to that belief based on conversations they had with Mr. Sussmann after his phone calls with Mr. Baker the week of September 19, 2016, because the FBI chose not to interview Mr. Sussmann about the information he provided to Mr. Baker, and the FBI chose not to ask Mr. Sussmann about or interview the cyber experts whom Mr. Sussmann identified as the source of the information he shared with the FBI.

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

[snip]

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

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

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

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

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

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

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

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

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

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

Update: Intro and close fixed.

The March 6, 2017 Notes: Proof about Materiality

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jim C[rowell, who took the notes]

FBI/McCabe/Baker/Rybicki/Pete/Toscas

Scott/Tash/McCord/Dana/

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

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

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

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

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

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

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

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

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

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

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

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

 

Judge Cooper Rules for Durham on Key Issues, But Rules against His Conspiracy Theory

Judge Christopher Cooper has issued his ruling on the various motions in limine from the two sides in the Michael Sussmann case. As I understand it, his ruling means:

  • Durham can introduce otherwise admissible evidence of how the data was collected, but unless Sussmann makes affirmative claims about the accuracy of the data, Durham cannot introduce evidence that it was inaccurate
  • Because of his other rulings, Durham will likely be left introducing how the data was collected via testimony from one or both of the Georgia Tech researchers
  • But unless Durham proves that Sussmann knew about them, the emails between the researchers and Joffe are not relevant and would also be excluded under Cooper’s limits on discussions about the accuracy of the data
  • Unless Durham presents evidence that Sussmann knew the data was collected in objectionable manner, he also cannot introduce such evidence
  • Durham can submit Fusion emails “to demonstrate that Fusion GPS and the researchers shared the ultimate goal of disseminating the Alfa Bank allegations to the press” [note he does not include Sussmann in this statement]
  • In part because Durham has not charged Sussmann with a conspiracy and in part because there’s lots of evidence the collection of the data was not a conspiracy, Durham cannot treat that as a conspiracy to obtain a hearsay exception
  • Because Cooper has ruled against a conspiracy foundation, Rodney Joffe’s email stating that “the ‘VIPs’ were ‘looking for a true story that could be used as the basis for closer examination’ is not admissible
  • Joffe’s email to the Georgia Tech researchers “soliciting their views on the white paper he had been drafting with Mr. Sussmann” is admissible because it is not hearsay
  • Joffe’s email claiming he had been offered the top cybersecurity job is not admissible
  • Bill Priestap and Trisha Anderson’s notes are admissible but only if 1) Sussmann challenges James Baker’s credibility at trial  and 2) if Priestap and Anderson testify that the notes refresh their memory of being told Sussmann had said he was not representing a client, but 3) the notes themselves will not go in as evidence
  • Durham can introduce what he claims are two false statements Sussmann made to the CIA — that he was not representing a client and that the YotaPhone data he was sharing was not related to what he had brought in September — but he cannot present evidence about what the CIA said about the data
  • Durham does not have to immunize Joffe to make his testimony available (Cooper muses that, because he has excluded the allegedly improper means via which the data was collected, Joffe might be willing to testify, which I find to be credulous)
  • The existence of privileged communications can be introduced at trial, but via a means that eliminates multiple pages of redaction [note, Cooper reiterated this ruling after receiving documents for which he will review the privilege claims]

I’ll have to think through the implications of this (and a lot of it depends on Cooper’s ruling on the privilege claims).

Perhaps as important as those evidentiary rulings, though, is this characterization from Cooper about what this case is about.

This dispute is framed by the parties’ competing theories of how the data came to be. In brief, the government contends that the Alfa Bank data was gathered as part of a concerted effort to collect and disseminate derogatory opposition research about Donald Trump. Participants in this purported joint undertaking, according to the government, include the Clinton Campaign; the Campaign’s General Counsel and then-partner in the Perkins Coie law firm, Marc Elias; an investigative firm retained by Mr. Elias, Fusion GPS; the defendant; Mr. Joffe; and several computer researchers working at Mr. Joffe’s direction. The government has proffered the existence of at least some circumstantial evidence connecting Mr. Sussmann to certain aspects of the data gathering effort. See Gov’t Opp’n to Def.’s Mots. in Lim. at 17–18, ECF No. 70 (promising that testimony will establish that Mr. Sussmann was aware of the “corporate sources” of the data and assured Researcher-2 that the data had been lawfully collected); Indictment ¶¶ 20, 23 (alleging that beginning in mid-August, Mr. Sussmann, Mr. Joffe, and Mr. Elias met on two different occasions and, shortly thereafter, Mr. Joffe emailed the researchers about the data); id. ¶ 24 (describing billing entries indicating that Mr. Sussmann helped draft one of the white papers that was provided to the FBI). The government contends that Mr. Sussmann’s desire to conceal this joint venture—particularly the Clinton Campaign’s involvement—supplied a motive for him to misrepresent to Mr. Baker that he was not providing the data to the FBI on behalf of any client, when he was actually representing both Mr. Joffe and the Campaign.

The defense paints a different picture. As the Court gleans from various of the defense’s pleadings and arguments, its case will be that Mr. Joffe obtained and analyzed the relevant data independently of Mr. Sussmann and the Clinton Campaign; that Mr. Joffe enlisted the defendant, with whom he a preexisting attorney-client relationship, for legal advice on how to handle and disseminate the data to a wider audience; that Mr. Sussmann reasonably believed, based on the understanding of the data that he gained from Mr. Joffe, that it tended to support the existence of a communications link between Alfa Bank and Mr. Trump; that Mr. Sussmann and Mr. Joffe shared the view that bringing the potential communications channel to the FBI’s attention was important to protect national security, regardless of any political implications; and that Mr. Sussmann sought an audience with Mr. Baker for that purpose. The defense has acknowledged that Mr. Sussmann at least received the data in connection with his legal representation of Mr. Joffe, see Mot. Hr’g Tr. at 38:6–18, but (as the Court understands) denies that he had an attorney-client relationship with the Clinton Campaign that covered activities related to the Alfa Bank data.

The jury is entitled to hear both these narratives.

This framework is important for several reasons. First, I think Cooper has a misunderstanding of how the two technical white papers were written, based off Durham’s projection of billing records onto actual drafting. If I’m right that that’s a misunderstanding, it will be a significant issue at trial.

There are a few other details that Cooper may not have entirely correct. But Cooper views these two competing stories to be Durham’s political malice story versus Sussmann’s national security threat story.

And if that’s how he understands it, he will be far more likely to allow a bunch of exhibits that Sussmann wants in that Durham wants excluded. Some of it would be necessary anyway — as I keep saying, Trump’s request of Russia to hack Hillary some more, plus the likelihood Sussmann knew in real time that the request was immediately followed by a renewed wave of attacks, is central to Sussmann’s state of mind when he met with Baker, and Cooper is treating this as a trial about Sussmann’s state of mind. But for Sussmann to convey why the Alfa Bank anomaly raised real national security concerns, he will need to explain the background of Trump’s false claims about Russia.

But the most important thing Cooper said, in the context of ruling against letting Durham treat all this as a conspiracy, is this:

Because no conspiracy is charged in the indictment, this undertaking would essentially amount to a second trial on a non-crime conducted largely for the purpose of admitting “other acts” evidence of Mr. Sussmann’s motive rather than his commission of the singular and narrow crime with which he has been charged.

This sort of particularized evidentiary analysis is especially unwarranted given that the Court has already ruled on the admissibility of many of the emails on other grounds.

This is the point I made in this post — one that several frother lawyers claimed suggested I didn’t understand these evidentiary issues. These evidentiary decisions are not made based on whether frothy Durham fans want the evidence in, but based on a set of interlocking evidentiary rules. Cooper has, overly optimistically, I think, set up a framework (primarily by excluding discussion about the accuracy of the information) that he thinks will guide all these decisions. But even within that framework, the rules of evidence will still apply.

And that will leave significant parts of Durham’s conspiracy theory out of the trial.

John Durham Wails about Michael Sussmann Adopting His Own Evidentiary Standards

Last month, I noted that John Durham had forgotten to file a motion in limine to exclude evidence of the rampant hacking Russia did against Hillary Clinton in 2016.

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

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

In a challenge to Michael Sussmann’s trial exhibits last night, Durham has effectively tried to belatedly correct that error.

Meanwhile, in Sussmann’s own challenge to Durham’s exhibits, he labels 121 exhibits as hearsay, 267 as irrelevant, and 143 as prejudicial.

Durham objects to three kinds of evidence, all utterly pertinent to Sussmann’s defense, and all akin to the same kind of evidence Durham has fought to introduce to substantiate a conspiracy theory Durham admits he doesn’t have evidence to prove.

The first are hundreds of emails Sussmann had with the FBI pertaining to hacks of the DNC and Hillary (Durham describes hacking attempts against Hillary as “cybersecurity issues” as if unsuccessful hacks don’t count as hacks).

Durham claims that these should come in primarily to disprove Durham’s assumptions about Sussmann’s billing entries, not to illustrate how reasonable it was to be concerned about a DNS anomaly involving Trump and a Russian bank. Durham — who asked to include a voir dire question assuming as fact that the Hillary campaign “promot[ed …] the Trump/Russia collusion narrative” — doesn’t want the FBI’s investigation of serial hacks targeting Democrats to come in to support the fact that such hacks occurred. And he wants to exclude the sheer volume, arguing (not unfairly) that would be cumulative, but not acknowledging that the volume does speak to Sussmann’s focus during a period when Durham claims Sussmann was instead feverishly conspiring to attack Trump. Finally, Durham claims that Sussmann’s focus on Russian cyberattacks is totally unrelated to his concern about an anomaly seeming to suggest a tie between Trump and Alfa.

First, the defendant’s Exhibit List includes more than approximately 300 email chains between and among the defendant and various FBI personnel reflecting the defendant’s work relating to (i) the hack of the Democratic National Committee (“DNC”), and (ii) cybersecurity issues pertaining to the Hillary for America Campaign (“HFA”). As an initial matter, the Government is not contesting that the defendant worked for both of those entities on cybersecurity issues. The Government also acknowledges that certain emails reflecting the defendant’s work on behalf of HFA on cybersecurity matters are potentially relevant and admissible insofar as the defendant might use those emails to argue that some or all of the billing entries to HFA that the Indictment alleges related to the Russian Bank-1 allegations were, in fact, related to work on other matters for HFA. The Government respectfully submits however, that the Court should carefully analyze each email that the defendant offers at trial to ensure that it is not admitted for its truth but instead is offered for a permissible purpose, such as to prove the defendant’s state of mind or the email’s effect on one or more of its recipients. Fed. R. Evid. 801(c); United States v. Safavian, 435 F. Supp. 2d 36, 45–46 (D.D.C. 2006). In addition, the defendant should not be permitted to offer dozens of emails to establish such basic facts because such voluminous evidence would be cumulative and unduly prejudicial. Fed. R. Evid. 403 (permitting courts to preclude parties from “needlessly presenting cumulative evidence”).

As to the dozens of communications regarding the defendant’s work regarding the DNC hack, these emails are largely irrelevant. The defendant billed his work on that matter to the DNC, not HFA. The Indictment alleges specifically that the defendant billed time on the Russian Bank1 allegations to HFA. These emails therefore do not support any inferences or arguments relating to the defendant’s alleged billed time for the Russian Bank-1 allegations. Instead, they contain extensive detail on collateral issues. See, e.g., Defense Ex. 306 (Email dated September 14, 2016 from FBI Special Agent E. Adrian Hawkins to Michael Sussmann, et al., stating in part, “We just got notified by some industry personnel that some previously unreleased DNC documents were uploaded to Virus Total today. In the files there was a contact list that I attached here with lots of personal emails for people. Rumor is that these files are supposed to be the network share for a guy named [named redacted] who worked IT until April 2011.”)

To the extent the defendant is offering such emails in support of arguments that (i) the defendant was an accomplished cybersecurity lawyer, (ii) the defendant was known and respected at the FBI, or (iii) the defendant was concerned about, and involved in responding to, cyberattacks carried out by the Russian Federation, such arguments are peripheral to the charged offense because they do not concern the Russian Bank-1 allegations or the defendant’s statements to the FBI about those allegations. The defendant’s potential arguments in this regard support, at best, the admission of a limited quantity of these emails to establish basic facts about the defendant’s representation of the DNC. Admitting all or most of these exhibits, however, would be highly cumulative and would waste the jury’s time with highly-detailed evidence concerning a tangential matter (the DNC hack) that is not at issue in this trial. Accordingly, the Government respectfully submits that the Court should admit only a limited number of these emails that are not being offered for their truth. [my emphasis]

It is, of course, rank nonsense to claim that the ongoing hacks targeting Democrats were unrelated to efforts to chase down a DNS anomaly. But Durham’s entire team either claims or genuinely does not understand the connection.

Then, in addition to attempting to exclude the notes of an FBI Agent who investigated the Alfa Bank allegations, Durham wants to exclude notes showing that the word “client” came up at a March 6, 2017 briefing on all the Russian allegations for Dana Boente.

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

I mean, Durham is not wrong on the evidentiary issue: these notes far post-date Sussmann’s alleged lie (though, ironically, the Jeffrey Jensen team added a date to and relied on what must be one set of these notes in their efforts to blow up the Mike Flynn prosecution). While they may reflect James Baker’s statements reflecting knowledge that Sussmann had a client, they’re hearsay.

But Durham is doing both those same things, presenting hearsay notes to substantiate Baker’s knowledge and claiming that meetings that long post-date Sussmann’s alleged lie may be indicative of what Sussmann and Baker actually said in September 2016. Durham has no grounds to complain about such evidentiary sloppiness, because that’s what his entire case consists of.

Finally, Durham — who started his speaking indictment by focusing on two news articles and not only considers Fusion’s communications with the press to be key evidence in his conspiracy theory but even insinuates that everything certain reporters were doing must have come from the Democrats — complains that Sussmann wants to introduce a slew of newspaper articles from 2016. He’s worried that it’ll elicit a sense of horror among the jury.

The Government will not dispute that the DNC was a victim of the aforementioned hack, nor will it dispute that the defendant carried out significant legal work in relation to the hack. The Government similarly will not seek to prove one way or the other whether Donald Trump maintained ties – illicit, unlawful, or otherwise – to Russia, other than to establish facts relating to the FBI’s investigation of the Russian Bank-1 allegations. Permitting the defense to admit the above-listed series of news articles would amount to the ultimate “mini-trial” – of the very sort that will distract and confuse the jury without offering probative evidence. United States v. Ring, 706 F.3d 460, 472 (D.C.Cir.2013) (“Unfair prejudice within its context means an undue tendency to suggest [making a] decision on an improper basis, commonly, though not necessarily, an emotional one.”); see also Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir.1980) (explaining that evidence is unfairly prejudicial “if it appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case.”) (citations omitted). Accordingly, this Court should exclude the above-referenced news articles.

This is the argument that, I noted in real time, Durham should have made last month.

But Durham is also not accounting for how central the articles cited are to Sussmann’s ability to rebut the conspiracy theory Durham wants to tell. The articles show that:

  • Trump’s coziness with Russia, one reason cited in Marc Elias’ declaration for hiring Fusion, was broadly perceived as unusual
  • Trump’s undisclosed financial ties with Russia were a general and persistent concern
  • Public reporting had confirmed the Russian attribution of the DNC hack before Trump asked Russia to hack Hillary some more and the press widely viewed Trump’s “Russia are you listening” comment as a request for more hacks
  • The reporters or outlets Durham wants to make an issue were doing their own reporting on Trump’s Russian ties were doing reporting not seeded by Fusion
  • The corruption scandal implicating Paul Manafort led to his ouster from the campaign during the period researchers were working on the anomaly

Durham complains that “many of [the articles] far predate the defendant’s meeting with the FBI General Counsel,” but only one predates the data collection that Durham has made the central focus of his case and another — Ellen Nakashima’s article reporting the DNC hack — directly kicked off that data collection effort.

These articles explain why it was reasonable, not just for the Democrats’ cybersecurity lawyer who was spending most of his days trying to fight back against a persistent Russian hack, but also for the researchers and Rodney Joffe to try to first look for more Russian hacking (including that victimizing Republicans), and when they found an anomaly, to try to chase it down and even to bring it to the FBI for further investigation. Several threads of these articles — pertaining to Trump’s request that Russia hack Hillary and to Manafort’s corruption — were explicitly invoked in discussions that Durham wants to claim must arise from political malice.

Indeed, as a whole, these articles provide far more reasonable explanations for actions that Durham has claimed, as fact, could only arise out of political malice.

Some of Durham’s complaints are reasonable from an evidentiary standard. But they’re utterly ridiculous given his own wild conspiracy theorizing. And many of these exhibits are utterly necessary to rebut the more outlandish things Durham has been claiming for months.

Hillary Clinton’s Devious Plot to Get Oleg Deripaska to Install Paul Manafort as Trump’s Campaign Manager

Out of curiosity and a good deal of masochism, I listened to the latest podcast of “The Corner,” the frothy right wingers who spend their time spinning conspiracy theories about the Durham investigation.

It was painful.

At every step, these men simply assert evidence must exist — like a Democratic order to bring dirt to the FBI — for which there’s no evidence. They ignore really basic facts, such as that Sussmann was necessarily working with the FBI because his client was being systematically hacked, and therefore it wasn’t just Christopher Steele who had ongoing ties to the Bureau. They make a huge deal about the fact that the US government’s Russian experts know each other, and that Christopher Steele persistently reported on topics — like Rosneft — that really were and are important to British and US national security and on which he had legitimate expertise.

They’re already starting to make excuses for Durham (such as that Durham chose not to obtain privileged emails the same way Mueller and SDNY did, without noting that Mueller had probable cause of a crime, which Durham admits he does not, much less that Mueller got them in a different way and a different time then they believe he did).

They keep making much of the coincidence of key dates in 2016 — “We continue to have a very, very tight timeline that that accelerates” — but never mention either the WikiLeaks dump of the DNC emails or Trump’s request that Russia hack Hillary some more, a request that was followed closely by a new wave of attacks. Those two events in July 2016 explain most of the actions Democrats took in that period, and these men don’t even exhibit awareness (or perhaps the belief?) that the events happened.

Worse still, they are ignorant of, or misrepresent, key details.

For example, all but Hans Mahncke assert that John Brennan must have been acting on some kind of corrupt intelligence in July 2016, rather than real intelligence collected from real Russian sources. They do so even though Billy Barr described in his book bitching at Trump after Trump complained that Durham found that, “the CIA stayed in its lane in the run-up to the [2016] election.”

Emblematic of the fraying relationship between the President and me was a sharp exchange at the end of the summer in the Oval Office. To give the President credit, he never asked about the substance of the investigation but just asked pointedly when there might be some sign of progress. On this occasion, we had met on something else, but at the end he complained that the investigation had been dragging on a long time. I explained that Durham did not get the Horowitz report until the end of 2019, and up till then had been look- ing at questions, like any possible CIA role, that had to be run down but did not pan out.

“What do you mean, they didn’t pan out?” the President snapped.

“As far as we can tell, the CIA stayed in its lane in the run-up to the election,” I said.

The President bristled. “You buy that bullshit, Bill?” he snarled. “Everyone knows Brennan was right in the middle of this.”

I lost it and answered in a sarcastic tone. “Well, if you know what happened, Mr. President, I am all ears. Maybe we are wasting time do- ing an investigation. Maybe all the armchair quarterbacks telling you they have all the evidence can come in and enlighten us.”

Durham looked for this evidence for years. It’s not there (and therefore the intelligence Brennan viewed is something other than the dossier or even the Russian intelligence product that the frothers also spin conspiracies on).

All but Fool Nelson misrepresent a July 26, 2016 email from Peter Fritsch to WSJ reporter Jay Solomon, which says, “call adam schiff, or difi for that matter. i bet they are concerned about what page was doing other than giving a speech over 3 days in moscow,” suggesting that that must be proof the top Democrats on the Intelligence Committees had the Steele dossier, rather than proof that it was a concern to see an advisor to a Presidential campaign traveling to Russian and saying the things Page was saying. (Jeff Carlson makes the same complaint about former Ambassador to Russia Michael McFaul’s observations about something that all experienced Russia watchers believed was alarming in real time.)

They get the evidence against Carter Page wrong, among other ways by misstating that all his time in Moscow had been accounted for and that the rumor he met with Igor Sechin was ever entirely debunked. “Of course it’s impossible. He was chaperoned. He had a hotel. He had a driver. Without people noticing.” For example, the son of the guy who brought Page to Russia, Yuval Weber, told the FBI that they weren’t with Page 100% of the time and there was a rumor that he had met with Sechin.

In July, when Page had traveled to give the commencement speech at NES, Weber recalled that it was rumored in Moscow that Page met with Igor Sechin. Weber said that Moscow is filled with gossip and people in Moscow were interested in Page being there. It was known that a campaign official was there.

Page may have briefly met with Arkady Dvorkovich at the commencement speech, considering Dvorkovich was on the board at NES. But Weber was not aware of any special meeting.

[redacted] was not with Page 100% of the time, he met him for dinner, attended the first public presentation, but missed the commencement speech. They had a few other interactions. Page was very busy on this trip.

This testimony was consistent with Mueller’s conclusion about Page’s trip: given boasts he made to the campaign, “Page’s activities in Russia — as described in his emails with the Campaign — were not fully explained.”

They badly misrepresent emails between a handful of journalists and Fusion GPS, spinning real skepticism exhibited by journalists as journalists somehow conspiring with Fusion. Indeed, they repeatedly point to an email from WaPo’s Tom Hamburger pushing back on the Sechin claim, “That Page met with Sechin or Ivanov. ‘Its bullshit. Impossible,’ said one of our Moscow sources.” They claim that Hamburger nevertheless reported the story after that. They’re probably thinking of this story, which reported Page’s 2014 pro-Sechin comments, not that he had met with the man in 2016.

After the Obama administration added Rosneft Chairman Igor Sechin to its sanctions list in 2014, limiting Sechin’s ability to travel to the United States or do business with U.S. firms, Page praised the former deputy prime minister, considered one of Putin’s closest allies over the past 25 years. “Sechin has done more to advance U.S.-Russian relations than any individual in or out of government from either side of the Atlantic over the past decade,” Page wrote.

In other words, they’re claiming journalists doing actual journalism and not reporting what Fusion fed them is somehow corrupt, when it is instead an example, among many, of failed attempts by Fusion to get journalists to run with their tips.

They complain that Fusion was pointing journalists to Felix Sater, in spite of the fact that Sater really was central to tying Trump Organization to Russian funding and really did pitch an impossibly lucrative real estate deal in the year before the campaign that involved secret communications with the Kremlin and sanctioned banks and a former GRU officer, a deal that Michael Cohen and Trump affirmatively lied to cover up for years.

They grossly misrepresent a long text to Peter Strzok reflecting someone else’s early inquiries on the DNS allegation to Cendyn, imagining (the redaction notwithstanding) that it reflects the FBI concluding already at that point that there was nothing to the DNS allegations and not that the FBI inquiry instead explains why Trump changed its own DNS records shortly thereafter (addressing one but not both of the questions raised by NYT reporting).

Obviously, none of them seem interested in the nearly-contemporaneous text from Strzok noting that “Russians back on DNC,” presumably reflecting knowledge of the serial Russian effort to steal Hillary’s analytics stored on an AWS server, a hack that — because it involved an AWS server, not a DNC-owned one — not only defies all the favorite right wing claims about what went into the Russian attribution, but also explains why Sussmann would be so concerned about seeming evidence of ongoing covert communication between Trump and a Russian bank. The Russians kept hacking, both in response to Trump’s request in July, and in the days before and after Sussmann met with James Baker in September.

Crazier still, none of these men seem to have any understanding of two details of the back-and-forth between Sussmann, the FBI, and NYT, one that is utterly central to the case against Sussmann. They conflate a request FBI made to NYT days after Sussmann’s meeting with the FBI to kill the story — one made with the assent of Sussmann and Rodney Joffe — with later follow-up reporting by the NYT reporting that the FBI had not substantiated the DNS allegation. Those were at least two separate calls! Durham had chased down none of them before he indicted Sussmann. It wasn’t until almost six months after charging Sussmann that Durham corroborated Sussmann’s HPSCI testimony that Sussmann and Joffe agreed to help kill the initial NYT story, which provides a lot of weight to Sussmann’s explanation for his meeting with James Baker, that he wanted to give the FBI an opportunity to investigate the allegation before the press reported on it. As a result, Mahncke states as fact that Sussmann’s September 18 text telling Baker, “I’m coming on my own – not on behalf of a client or company – want to help the Bureau,” (even ignoring the temporal problem it creates for Durham’s charge) proves Sussmann lied, when in fact, his and Joffe’s efforts to help the Bureau kill the story strongly supports Sussmann’s public story.

If you don’t know that Sussmann and Joffe helped the FBI to kill what would have been a damning story about Trump, you’re not assessing the actual evidence against Sussmann as opposed to Durham’s conspiracy theories.

All that said, laying out all the ways the supposed experts on the frothy right prove they’re unfamiliar with the most basic details about events in 2016 and since is not why I wrote this post.

I wrote this post because of the way Fool attempted to explain away the inconvenience of Paul Manafort to his narrative. Fool went on at length showing how (a possible Russian fabrication claiming) Hillary’s plan to focus on Trump’s ties to Russia must have predicated an investigation that started before that point. He ignored, entirely, that an FBI investigation had already been opened on Page by then (and all four frothers ignore that Fusion started focusing on Page when Paul Singer was footing the bill). But Fool does acknowledge that the money laundering investigation into Manafort had already been opened before Crossfire Hurricane started. He treats Manafort’s very real corrupt ties to Putin-backed oligarchs as a lucky break for what he imagines to be Hillary’s concocted claims, and not a fact that Trump ignored when he hired the man to work for him “for free.” “Luckily, I don’t know if this was a coincidence or not, Manafort joined the Trump campaign and that gave them a reason to look deeper.” In other words, Fool suggests Manafort’s hiring might be part of Hillary’s devious plot, and not the devious plot of Oleg Deripaska to get an entrée to Trump’s campaign or the devious alleged plot of Mohammed bin Zayed to direct Trump policy through Tom Barrack.

Because I expect the circumstances of Manafort’s hiring may become newsworthy again in the near future and because Deripaska was pushing an FBI investigation into Manafort before Hillary was, I wanted to correct this detail.

According to Gates, the effort to install Manafort as campaign manager started earlier than most people realize, in January 2016, not March.

In January 2016, Gates was working mostly on [redacted] film project. Gates was also doing some work on films with [redacted] looking for new DMP clients, and helping Manafort pull material together to pitch Donald Trump on becoming campaign manager. Roger Stone and Tom Barrack were acting as liaisons between Manafort and Trump in an effort to get Manafort hired by the campaign. Barrack had a good relationship with Ivanka Trump.

Tom Barrack described to Mueller how Manafort asked for his help getting hired on Trump’s campaign in that same month, January 2016.

But Manafort may have started on this plan even before January 2016. Sam Patten told SSCI Kilimnik knew of the plan in advance. Patten’s explanation of his involvement in the Mueller investigation describes Ukrainian Oligarch Serhiy Lyovochkin asking him about it in late 2015.

In late 2015, Lyovochkin asked me whether it was true that Trump was going to hire Manafort to run his campaign. Just as I told Pinchuk that Putin’s perception of America’s capabilities was ridiculous, I told Lyovochkin that was an absurd notion; that Trump would have to be nuts to do such a thing.

In any case, even before his hiring was public, on March 20, Manafort wrote his Ukrainian and Russian backers to let them know he had installed himself with the Trump campaign. He sent one of those letters to Oleg Deripaska, purportedly as a way to get the lawsuit Deripaska had filed against Manafort dropped.

Gates was shown an email between Gates and Kilimnik dated March 20, 2016 and four letters which were attached to this email. Gates stated he was the person who drafted the letters on Manafort’s behalf. Manafort reviewed and approved the letters.

Manafort wanted Gates to draft letters announcing he had joined the Trump Campaign. Manafort thought the letters would help DMP get paid by OB and possibly help confirm that Deripaska had dropped his lawsuit against Manafort. Manafort wanted Kilimnik to let Deripaska know he had been hired by Trump and he needed to make sure there were not lawsuits against him.

Gates was asked why Manafort could not have employed counsel to find out of the Deripaska lawsuit had been dropped. Gates stated Manafort wanted to send Deripaska a personal note and to get a direct answer from Deripaska. Gates also thought this letter was a bit of “bravado on Manafort’s part.”

Gates was asked if the purpose of the letter to Deripaska was to determine if the lawsuit had been dropped, why didn’t the letter mention the lawsuit. Gates stated that Manafort did not want to put anything about the lawsuit in writing.

This explanation, true or not (and it’s pretty clear the FBI didn’t believe it), is critical to the frothers because even before Christopher Steele started collecting information on Trump, he was collecting information on Manafort at the behest of Deripaska in conjunction with this lawsuit. And Steele was feeding DOJ tips about Deripaska’s lawsuit before he started feeding the FBI dirt paid for by Hillary’s campaign. The first meeting at which Steele shared dossier information with Bruce Ohr, for example, Steele also pushed the Deripaska lawsuit, and not for the first time.

Either the Deripaska lawsuit was a cover story Manafort used consistently for years (including through his “cooperation” with Mueller in 2018), or it was real. Whichever it was, it bespeaks some kind of involvement by Deripaska long before Hillary got involved. Viewed from that perspective, the dossier (and Deripaska’s presumed success at filling it with disinformation) was just part of a brutal double game that Deripaska was playing with Manafort, one that led Manafort to share campaign strategy and participate in carving up Ukraine, another event the frothers are trying to blame on the ever-devious Hillary. Whichever it is, the process by which a bunch of Putin allies in Ukraine knew Trump was going to hire Manafort before Trump did is a big part of the story.

But according to the frothers, Hillary Clinton is just that devious that she orchestrated all of this.

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

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

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

You could call Mr. Joffe.

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

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

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

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

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

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

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

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

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

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

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

THE COURT: Mr. Joffe or Mr. Sussmann?

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

THE COURT: How are they members of this cabal?

[snip]

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

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

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

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

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

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

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

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

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

Old Friends: Scooter Libby and CIPA

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

Judge Cooper adopts Libby as the standard for evidentiary disputes

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

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

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

So expect this to come back up at trial.

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

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

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

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

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

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

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

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

But it’s relevant for another reason.

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

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

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

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

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

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

John Durham’s Irregular Now-Sealed Timeline

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

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

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

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

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

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

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

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

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

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

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

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

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

October 5 emails:

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

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

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

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

1:37PM: Fritsch responds,

the DNS stuff? not us at all

outside computer experts

we did put up an alfa memo unrelated to all this

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

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

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

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

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

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

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

1:44PM: Fritsch to Lichtblau:

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

[mediafire link] [my emphasis]

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

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

tuta sent me this guidance

[snip]

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

2:32PM: Fritsch to Lichtblau:

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

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

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

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

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

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

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

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

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

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