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

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

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

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

The coming onslaught of Fusion documents

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

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

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

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

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

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

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

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

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

1:37PM: Fritsch responds,

the DNS stuff? not us at all

outside computer experts

we did put up an alfa memo unrelated to all this

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

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

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

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

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

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

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

1:44PM: Fritsch to Lichtblau:

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

[mediafire link] [my emphasis]

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

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

tuta sent me this guidance

[snip]

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

2:32PM: Fritsch to Lichtblau:

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

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

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

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

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

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

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

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

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

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

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

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

Sussmann will argue that keeping secrets facilitates national security interests.

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

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

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

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

A. Yes.

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

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

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

A. I recall that exact statement.

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

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

A. I do.

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

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

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

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

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

Q. Changed back to being a witness?

A. To a witness, yes.

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

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

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

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

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

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

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

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

Fun with missing Bates stamps

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

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

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

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

Calling the agent of a foreign agent to ask for comment

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

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

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

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

A. Yes.

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

A. Yes.

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

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

[snip]

A. I’m sorry?

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

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

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

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

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

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

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

A. Yes.

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

A. Yes.

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

A. Yes.

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

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

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

A. Yes.

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

A. Yes.

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

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

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

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

[snip]

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

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

[snip]

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

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

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

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

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

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

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

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

Agent Gaynor belatedly rediscovers the Mediafire package

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

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

He included Moffa and Joe Pientka on that email.

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

OTHER SUSSMANN TRIAL COVERAGE

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

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

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

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

John Durham’s Lies with Metadata

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

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

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

Jim Baker’s Tweet and the Recidivist Foreign Influence Cheater

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

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

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

Technical Exhibits, Michael Sussmann Trial

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

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

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

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If you follow coverage of the Michael Sussmann trial anywhere but here and Politico, you would believe that the big news from Friday is that former Hillary campaign manager Robby Mook testified that Hillary personally approved of sharing the Alfa Bank story. As part of that coverage, virtually everyone is also covering the tweet admitted where Hillary focused attention on the Franklin Foer story after it came out.

Here’s how CNN covered it.

Slate published a story on October 31, 2016, raising questions about the odd Trump-Alfa cyber links. After that story came out, Clinton tweeted about it, and posted a news release that said, “This secret hotline may be the key to unlocking the mystery of Trump’s ties to Russia.”

[snip]

Inside the courtroom, prosecutors showed the jury Clinton’s tweet about the Trump-Alfa article from Slate, and Mook read aloud portions of the campaign’s news release about the story. The release was from Jake Sullivan, who is currently President Joe Biden’s national security adviser.

“We can only assume that federal authorities will now explore this direct connection between Trump and Russia as part of their existing probe into Russia’s meddling in our elections,” Sullivan said in the release on October 31, 2016, one week before Election Day.

The special counsel team has previously said that the Clinton campaign’s media blitz around the Slate story “is the very culmination of Mr. Sussmann’s work and strategy,” to allegedly gin up news coverage about the Trump-Alfa allegations and then get the FBI to start an investigation.

During the hearing, Twitter users recirculated Clinton’s old post. It caught the eye of billionaire Elon Musk, who has become increasingly vocal about political matters while he tries to buy Twitter, and recently announced his support for the Republican Party. He called the Trump-Alfa allegation “a Clinton campaign hoax” and claimed that Sussmann “created an elaborate hoax.” [my emphasis]

Obviously, the frothy right has made it the center of a frenzy to investigate Hillary herself. Surely it will also lead to an investigation of Jake Sullivan.

The thing is, legally, the part about investigating wasn’t supposed to come into the trial and will be something that, at the very least, Judge Christopher Cooper issues an instruction to the jury on.

This media frenzy was the predictable result of Andrew DeFilippis breaking Cooper’s rules. Again.

Here’s what the tweet, as sent to the jury will look like.

Here’s what the transcript looks like (though I don’t believe the transcript will be sent back to the jury).

Nevertheless, the jury heard it because — just minutes after being instructed not to include the language about the FBI investigation and not to read from the tweet!! — DeFilippis “accidentally” handed Robby Mook the unredacted copy to read, and coached him to continue to read the stuff that was redacted.

Q. And is there any reason why he would be the one to issue a statement like this?

A. You know, Jake’s a pretty highly regarded national security expert.

Q. Okay.

A. So it makes sense that he’s the voice on this.

Q. Could you just read the content of Mr. Sullivan’s statement.

A. Starting with “This could”?

Q. Yes.

A. “This could be the most direct link yet” —

Q. I’m sorry, start at the top.

A. “In response to a new report from Slate showing that the Trump Organization has a secret server registered to Trump Tower that has been covertly communicating with Russia, Hillary For America Senior Policy Advisor Jake Sullivan released the following statement Monday.” Keep going?

Q. Yes.

A. “This could be the most direct link yet between Donald Trump and Moscow. Computer scientists have apparently uncovered a covert server linking the Trump Organization to a Russian-based bank. “This secret hotline may be the key to unlocking the mystery of Trump’s ties to Russia. It certainly seems the Trump Organization felt it had something to hide, given that it apparently took steps to conceal the link when it was discovered by journalists. [my emphasis]

Here’s the bench conference that immediately preceded this exchange, in which DeFilippis made one last bid to enter the tweet into evidence. This language was redacted on first release of the transcript, but got unsealed overnight.

MR. DeFILIPPIS: Your Honor, could we have a quick call? (The following is a bench conference held outside the hearing of the jury)

MR. DeFILIPPIS: Your Honor, the government believes we’ve now laid an adequate foundation for probing into admissibility in connection with the Tweet and press statement that we’ve been talking about.

Mr. Mook has testified that the candidate herself approved a decision to send this to the media. The Tweet and press statement themselves refer to the FBI, and the defense admitted a Tweet during their examination of Mr. Baker.

We don’t think it’s, in light of this testimony, in any way prejudicial or cumulative because it addresses both the FBI issue and the issue of the decision to provide it to the media.

So we would ask that we be able to present the Tweet to Mr. Mook.

MR. BOSWORTH: Your Honor, we object. It remains the case that the — you know, Ms. Clinton is not on the witness stand. Jake Sullivan is not on the witness stand.

Jake Sullivan, weeks after Mr. Sussmann went to the FBI, issued a statement about the Slate article that was published that there’s no evidence that Mr. Sussmann had anything to do with. And that press statement goes into an area that goes beyond anything for which they’ve laid a foundation. And it’s highly prejudicial in that that statement doesn’t just say this is a serious story. It calls on the FBI to investigate.

That is incredibly prejudicial because it suggests that Mr. Sussmann was going to the campaign on their behalf, and there was literally zero evidence that the campaign knew Mr. Sussmann was going, including in Mr. Mook’s testimony today.

And second, that’s weeks after Mr. Sussmann went to the FBI. And the statement itself doesn’t say, “We’re so glad the FBI’s already investigating.” They’re steering far clear of any knowledge they could have even conceivably had about the investigation.

So we think Your Honor’s prior ruling stands.

THE COURT: All right. I want to review the statement again for the information that you say is extraneous.

Generally, as I indicated, I think, earlier this week, this does complete the story, and a lot of this is subject to cross. I think it can be explained that — just because it has Ms. Clinton’s name on it and is a statement of the campaign and it completes the narrative that the government has tried to advance, but I am concerned about any other extraneous information of the Tweet that may not be pertinent. So let me take a look at it. Can you complete your cross, or shall we just take a break?

MR. DeFILIPPIS: Maybe take a break, Your Honor. (This is the end of the bench conference)

THE COURT: All right. Ladies and gentlemen, we’re going to take about a five-minute break, so if you could just — to resolve an evidentiary issue. So if you could just retire to the deliberation room, we’ll call you when we’re ready. (Jury exits courtroom)

[snip]

THE WITNESS: Yes, Your Honor.

MR. BOSWORTH: Your Honor, do you want me to pass it up?

THE COURT: Yes, if you can pass it up. We have it back in chambers, but let me…

THE COURTROOM DEPUTY: Everyone can be seated.

THE COURT: Please be seated. And I’ll tell you what, just give me five minutes. (Recess taken)

THE COURT: All right. Mr. DeFilippis, if you can lay a foundation that he had knowledge that a story had come out and that the campaign decided to issue the release in response to the story, I’ll let you admit the Tweet. However, the last paragraph, I agree with the defense, is substantially more prejudicial than it is probative because he has testified that had neither — he nor anyone at the campaign knew that Mr. Sussmann went to the FBI, no one authorized him to go to the FBI, and there’s been no other evidence admitted in the case that would suggest that that took place. And so this last paragraph, I think, would unfairly suggest to the jury, without any evidentiary foundation, that that was the case. All right?

MR. DeFILIPPIS: Your Honor, just two brief questions on that.

THE COURT: Okay.

MR. DeFILIPPIS: Can we — so can we use — depending on what he says about whether he was aware of the Tweet or the public statement, may we use it to refresh him?

THE COURT: Sure. Sure.

MR. DeFILIPPIS: Okay. And then, as to the last paragraph, could it be used for impeachment or refreshing purposes as well in terms of any dealings with the FBI?

THE COURT: You can use anything to refresh.

MR. DeFILIPPIS: Okay.

THE COURT: But we’re not going to publish it to the jury. We’re not going to read from it. And let’s see what he says.

DeFilippis wasn’t even supposed to read it!! But he ignored Cooper’s orders, issued minutes earlier, and predictably set off a firestorm.

After Mook left the stand, Judge Cooper acknowledged that the FBI paragraph shouldn’t have come in. He acknowledged that DeFilippis had used it as hearsay to admit it for the truth. Sussmann’s lawyer Michael Bosworth graciously pretended DeFilippis’ actions were not intentional.

THE COURT: All right. Please be seated. Just for the record, in addition to the 403 grounds for the last paragraph of the press statement, it’s also hearsay from Mr. Sullivan for the truth — or whether it’s being offered for the truth, certainly it’s likely to be received for the truth that the campaign wished the FBI to investigate or had some hand in the FBI investigation. So that section of the Tweet, consistent with the Court’s prior ruling, is inadmissible as hearsay as well.

MR. BERKOWITZ: Thank you, Your Honor. Just briefly?

THE COURT: Yes.

MR. BERKOWITZ: Mr. DeFilippis, I’m sure, didn’t intend it, but he gave him the unredacted Tweet to perhaps refresh his recollection. He read probably two sentences, and we would ask that you strike from the record his reading of that. I know that —

THE COURT: The Court will strike those two sentences, and we’ll specify it for the court reporter. And obviously let’s make sure that the redacted copy is included in the exhibits that go to the jury.

MR. DeFILIPPIS: Yes, we will, Your Honor.

But DeFilippis did more than “accidentally” give Mook the unredacted tweet! He also had him read it, which he had just been told not to do.

Worse still, the record shows that neither Mook nor Hillary would have known about this tweet. It surely had high level press involvement, but this was presented as the words of Hillary when it was explicitly anything but.

And this is precisely what Sussmann’s team warned would happen when, in a pretrial hearing, Cooper floated reversing his past decision to exclude the tweet.

So the more I sort of dug into each side’s sort of theories of relevance over the weekend as we finalized the last motions in limine ruling, which you obviously got, I thought I might revisit one issue. And that is the Clinton campaign press release from October, late October, I guess.

I provisionally ruled that that would not be admissible based on the submissions that you all made. And I ruled from the bench without really getting any argument on that issue. And my previous understanding was that it was being offered to show a direct attorney-client relationship between Mr. Sussmann and the campaign as well as potentially the effect on the listener under a hearsay exception.

But I guess my question, as I have thought more about this, given the sort of two competing theories of the case and two narratives laid out in the Court’s ruling on the motion in limine, is whether it is relevant not for the truth, but to show the campaign’s connection to the alleged public relations effort to play stories regarding the Alfa-Bank data with the press and that therefore it of context for the Government’s motive theory, that Mr. Sussmann sought to conceal that effort, as well campaign’s general connection to that effort.

So, Mr. Berkowitz, please address that if want.

MR. BERKOWITZ: Yes, your Honor. Thank you for raising the issue.

THE COURT: Yes. And I will also say that I’ve never introduced a tweet at a trial. And there are certain evidentiary issues with what a tweet is and who it is sent by. I would like to avoid those issues. But there is a separate press release, which I’m not quite sure I appreciated when I ruled from the bench a week and a half ago.

MR. BERKOWITZ: So let me try and address the contextualized issue, your Honor.

With respect to the campaign’s involvement or PR connection to the Alfa-Bank story, we expect there will be testimony or other evidence that ties that together. And I know that in your motion in limine ruling, you assumed without saying we conceded it that we were taking the position that Mr. Sussmann was not acting on behalf of Hillary for America.

We’re not going to be taking the position that he was not counsel for Hillary for America in connection with various efforts and communications; and we will obviously address that at trial. But I don’t know that the connection between the campaign and PR efforts, opposition research to get the story of Alfa-Bank out there is going to be something that’s in dispute.

And I would ask that you, as you think about this issue, which is somewhat inflammatory because it gets the candidate — it’s a month after; it’s a different newspaper issue; and there’s no connection between Mr. Sussmann and that tweet to suggest that he was involved in that or was otherwise doing it.

And so as what else is coming is more prejudicial relates to a number it’s evaluated, I think contextualizing into evidence, I think that that tweet than it would be probative. It also of other issues that you note from an evidentiary standpoint.

So we don’t think that the tweet itself for all the reasons in our motion, but also because it’s not — it would be cumulative, I think, of the other evidence related to whether there was a connection at the time about that. Without getting into too much work product or issues, there were updates to the campaign related to, for example, the possibility of a New York Times story coming out. And I think that that will be what’s relevant as opposed to the larger issue of, you know, whether they continue to try and press that after the meeting.

THE COURT: I appreciate that. But there were a couple double negatives in there.

MR. BERKOWITZ: Please correct me or ask me to refocus it.

THE COURT: Did I understand you to say that the defense will not be contesting that he was representing the campaign in connection with some of the media outreach that was going on?

MR. BERKOWITZ: Correct.

THE COURT: Mr. DeFilippis?

MR. DeFILIPPIS: Yes, your Honor. Let me just briefly say that I think it’s plain from the contents of the tweet and the press statements themselves that the Government is not offering those for their truth. So I think your Honor, it seems, agrees that they’re not hearsay. It’s more of a relevance/probity thing.

And while I don’t have it in front of me, your Honor, when you read the contents both of the press statement and the tweet, the thrust of them is the very culmination of Mr. Sussmann’s work and strategy, which was twofold: First, the strategy, as the Government will argue at trial, was to create news stories about this issue, about the Alfa-Bank issue; and second, it was to get law enforcement to investigate it; and perhaps third, your Honor, to get the press to report on the fact that law enforcement was investigating it.

And we see all three things there reflected in the tweet and in the press statement. It says something to the effect of, Donald Trump has a secret channel with Russia and the FBI should look into this or we trust that the FBI is looking into this.

That is highly probative, your Honor, because it is, as I said, the culmination of everything the Defendant was trying to do as he billed work to the campaign.

And we expect to call at least currently, your Honor, the campaign manager of the Hillary Clinton campaign, who will say this was a conscious decision. After being briefed specifically on Mr. Sussmann’s efforts, the campaign made a conscious decision, authorized at the very highest levels of the campaign, to share the Alfa-Bank allegations with the media.

THE COURT: Well, if that’s going to be the case, and he’s not contesting that he was representing the campaign in connection with that effort, isn’t the tweet cumulative? It’s icing on the cake. Right?

MR. DeFILIPPIS: I don’t think so, your Honor, only because we will not have, your Honor — we will not call reporters to the stand who will in fact confirm that the campaign spoke to the media. We will not — we will have essentially the testimony of a campaign official.
And then the only way to show, your Honor, how the campaign actually capitalized on what it was that Mr. Sussmann did in the media is to — and it’s a very limited — as your Honor knows, it’s not long. It’s not particularly or really at all prejudicial, your Honor, because the contents of it are essentially just the candidate and one of her advisors adopting the allegation that Mr. Sussmann has been working on.

So, your Honor, it’s really just context and the pure result of everything that Mr. Sussmann and the campaign were working on in this regard. And it’s not inflammatory. It simply states the allegation and it states that the campaign hopes the FBI’s looking into it.
We —

THE COURT: I’ll reserve on it. Let’s see how the evidence comes in. And just don’t open on it.

MR. DeFILIPPIS: Okay. Thank you, your Honor.

MR. BERKOWITZ: Your Honor, I was also asking permission to approach, but I guess I don’t need to here.

Mr. DeFilippis in describing the relevance focused on the portion of the tweet that was different than you or I were talking about, that calling on the FBI to investigate. That in and of itself in our — from our perspective suggests that they are offering the tweet for the truth of the matter, that that’s what the campaign desired and wanted and that it was a accumulation of the efforts.

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

And so we think that a tweet in October after there’s an article about it is being offered to prove something inconsistent with what actually happened.

This jury is not sequestered. It would take a great deal of diligence to avoid the shit storm this set off.

There is no way to undo the damage that this will do to the trial. And it happened because DeFilippis ignored not one but two parts of Cooper’s order — first, that the reference to the FBI be redacted, and second, that it not be read.

And it’s clear from the record that this has been the plan all along, just like using a self-described non-expert at DNS to offer an opinion about DNS. The truth is it’s Durham’s team, not Hillary, that had the plan to set off an October Surprise by manipulating the press all along.

Worse still, while there are legal measures to take, even then that would not undo the damage. Anything Cooper does to correct his own poor decision and DeFilippis’ worse flouting of Cooper’s orders would be blamed on him being an Obama appointment, not the law, and only further fuel the firestorm.

Even as the record sits right now, I believe there’s a great deal from which the jury would find reasonable doubt to convict. Given where I think Sussmann’s team is going to go from here, I think chances are good they get an acquittal.

But the Durham team just succeeded in a desperate bid to win this case using hearsay. Because hearsay is all they’ve got.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So none of her basic claims are true.

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

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

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

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

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

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

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

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