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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.

John Durham May Lose His Battle But Gain New Ammunition to Fight His War

There were a number of things not said at yesterday’s hearing on the Democrats’ privilege claims in the Michael Sussmann case. The importance of having Russian-speaking experts when representing a client getting systematically attacked by Russia, for example, was not mentioned. Nor was the amount of research that Fusion did that was never released to the press. Nor were Durham’s two cheap stunts — falsely claiming an FEC settlement was not “public” in time to introduce it as part of the initial filings, and presenting exhibits without correcting for a time anomaly and thereby falsely suggesting Fusion sent a previously unpublished link to Tea Leaves’ postings to Eric Lichtblau — which made Durham’s case to pierce the Democrats’ privilege claims look stronger than it was.

Even on the issue of whether communications can have more than one purpose — an issue that Robert Trout, representing Hillary’s campaign, addressed directly — the argument could have been stronger. And when Judge Christopher Cooper asked if there were specific emails “that might support [the Democrats’] position that Fusion’s internal communications on these issues were for the purpose of providing legal support as opposed to pure opposition research and dissemination that is not covered by the privilege?,” Trout was caught flat-footed. Which is to say that the Democrats may not have presented their case as well as they could have.

It likely didn’t matter. Even before ruling that he will review the documents over which Democrats invoked privilege, Judge Christopher Cooper made it clear he was pretty skeptical of their privilege claims.

But there were a number of other things that were mentioned that may limit how much value Durham gets from this decision, even if Cooper determines that most of the Fusion documents were not privileged. Most importantly, both before and after Cooper had clearly decided he was going to review the documents, he raised the other procedural issues — which I raised in this post — that will dictate whether or not Durham can use them at trial.

The defense has raised some procedural objections to I think the use and introduction of the emails; namely, that you have waited too long after the assertion of the privilege — on the eve of trial now — to bring the issue to me.

I take it you’re saying that even if I were to agree with them about the specific emails that have been withheld, I would still have to deal with the privilege issue with respect to Ms. Seago’s testimony.

[snip]

That still leaves the relevance issues as well as the prejudice issues and the knock-on effects from the defense from the introduction and use of the emails, but I think that I’m probably going to have to deal with this issue nonetheless because of what the government may plan to ask Ms. Seago about. All right?

That is, even if Cooper agrees that the 38 documents Durham wants unsealed are not privileged, it may not mean Durham can use them at trial. The following are all possibilities, of greater or lesser likelihood:

  1. Cooper rules that one purpose of the emails was legal advice and so are privileged
  2. Cooper decides some or all of the emails are not privileged, but rules, based on representations made yesterday, that Durham violated local rules in his attempt to obtain them and so cannot get them
  3. Cooper rules that some or all of the emails are not privileged but rules that they are prejudicial, irrelevant, or hearsay to the charge against Sussmann, so Durham can have the emails, he just can’t use them at trial
  4. Cooper determines that Durham’s claims about the necessity or relevance of Laura Seago’s testimony are not only false, but Durham knew them to be false when he made them and, given that Durham has used as his excuse to pierce privilege at this late date, cannot introduce them at trial
  5. Cooper rules that the communications involving Rodney Joffe are privileged, even if the internal Fusion emails are not, adding further problems with Seago’s role as a witness
  6. Cooper rules the Fusion emails aren’t privileged, but at least some of them end up disproving Durham’s conspiracy theories

If I had to guess, I’d say a combination of 3, 5, and 6 are most likely. I’ll explain why, but if that turns out to be the case, it may mean that Durham finds a way to access the other 1,500 Fusion emails he says he wants to use in “other investigations,” but still can’t use many of the 38 emails at issue here in the trial against Sussmann. Durham’s conspiracy theories might live on, but his case against Sussmann might not.

As a reminder, Sussmann argued that Durham broke a number of rules by bypassing Beryl Howell and waiting until the last minute to try to get these emails — the procedural objections Cooper alluded to above. Cooper can’t be that impressed with the argument, or he wouldn’t have agreed to review the emails at all. But he did seem rather interested in Steven Tyrell’s assertion that he had made it clear there was never a way Durham was going to get the emails involving Joffe without litigation.

MR. TYRRELL: So if they wanted to challenge our assertion of privilege as to this limited universe of documents — again, which is separate from the other larger piece with regard to HFA — they should have done so months ago. I don’t know why they waited until now, Your Honor, but I want to be clear. I want to say without hesitation that it’s not because there was ever any discussion with us about resolving this issue without court intervention.

THE COURT: That was my question. Were you adamant a year ago?

MR. TYRRELL: Pardon me?

THE COURT: Were you adamant a year ago that —

MR. TYRRELL: Yes. We’ve been throughout. We were not willing to entertain resolution of this without court intervention.

THE COURT: Very well.

This is important because it supports Sussmann’s contention that this late bid for the emails is just an improper means of bypassing local rules and discovery deadlines. The same is not as true for Fusion, though, because they did make some concessions to Durham along the way.

Joffe’s intransigence about his privilege claims are all the more problematic for Durham, because (contrary to all my predictions!) Cooper seems far more convinced of Joffe’s privilege claims than the those of the Democrats.

With respect to the Joffe/Sussmann/Seago emails, I am dubious that the government has met its burden to pierce the privilege, but I will take a look at the emails nonetheless.

Indeed, at one point, Cooper noted that Durham’s entire theory of the case assumes, “Sussmann was in the [September 19, 2016 James Baker] meeting representing Joffe,” which would mean there was a privileged relationship between Sussmann and Joffe, and so therefore assumes Sussmann’s communications with Joffe about the topic would be privileged. If Joffe’s communications with Sussmann and Laura Seago aren’t privileged, then it’s proof that Sussmann was not representing a client. If they are privileged, then Durham can’t have them.

Catch-22.

Given what Cooper said in last week’s hearing, in which he repeatedly suggested that Joffe’s testimony might be central, the possibility that Durham may not pierce Joffe’s privilege may dictate other evidentiary (though not privilege) decisions. All the more so given how Durham excused his late bid to pierce privilege based off a late recognition they were going to immunize and call Seago.

In addition, over the course of months, and until recently, the Government has been receiving voluminous rolling productions of documents and privilege logs from numerous parties. The Government carefully analyzed such productions in order assess and re-assess the potential legal theories that might support the parties’ various privilege assertions. In connection with that process, the Special Counsel’s Office reached out to each of those parties’ counsel numerous times, directing their attention to specific documents where possible and communicating over email and phone in an effort to obtain non-privileged explanations for the relevant privilege determinations.2 The Government also supplied multiple counsel with relevant caselaw and pointed them to documents and information in the public domain that it believed bore on these issues. The Government was transparent at every step of these discussions in stating that it was contemplating seeking the Court’s intervention and guidance. Unfortunately, despite the Government’s best efforts and numerous phone calls, it was not able to obtain meaningful, substantive explanations to support these continuing broad assertions of privilege and/or work product protections.

It was only recently, when the Government determined it would need to call an employee of Fusion GPS as a trial witness (the “Fusion Witness”), that the Government concluded these issues could not be resolved without the Court’s attention. Because all or nearly all of the Fusion Witness’s expected testimony on these matters concern work carried out under an arrangement that the privilege holders now contend was established for the purpose of providing legal advice, it is essential to resolve the parties’ potential disputes about the appropriate bounds of such testimony (and the redaction or withholding of related documents).

As of yesterday, Sussmann had not received a 302 from Seago, so it’s not clear whether Durham has even interviewed her yet. But with one exception, Sussmann, Fusion lawyer Joshua Levy, and Joffe say she’ll be of limited value for Durham. Last week Sean Berkowitz said that Seago did not recall knowing Christopher Steele, much less being aware of the dossier project.

The only person from Fusion on their witness list is Laura Seago, who either I think has been immunized or will be immunized, and we understand that she would say she doesn’t recall that she even knows Mr. Steele or is able to talk about what he did. And so we don’t know that they actually are able to get anything in about what Mr. Steele did or didn’t do. Certainly there’s no evidence that Mr. Sussmann was aware of what Mr. Steele was doing. No evidence of that.

Levy noted that — as proven by the transcript of her Alfa Bank deposition, which the government has — Seago will testify she has no knowledge of either Sussmann’s meeting with the FBI or of the white paper Fusion did on Alfa Bank.

[I]n its brief, the government says that Ms. Seago has unique possession of knowledge as to what the government tries to characterize as the core issue in the case. But the government mischaracterizes that core issue. The government says that the core issue in this case is whether the defendant was representing any client in 2016 with regard to the Russian Bank 1 allegations.

That’s not the core issue in the case, respectfully. The core issue in the case is whether the defendant knowingly made a false and misleading statement to the government when he met with the government about whether he was there on behalf of a client or not that day. And as to that issue, Your Honor, Ms. Seago, the Fusion witness, has no knowledge. And the government knows this.

In parallel to the government’s investigation of this case, Russian Bank 1, Alfa-Bank, was pursuing its own discovery in a civil case. They subpoenaed and deposed Ms. Seago last year. There’s a transcript of that deposition. It’s in the public record. The government’s made clear to counsel that it has that deposition transcript, and we can furnish a copy of it to the Court.

And at the same time the government knows that Ms. Seago has no knowledge of the meeting between Mr. Sussmann and the FBI, and that’s at Pages 151 to 152 of that transcript.

THE COURT: All right. If you could file the — not file it, but provide it to the Court.

[snip]

And it’s very clear that she has no knowledge about the meeting, that she doesn’t recall any discussions about the meeting, that she didn’t work on this white paper that allegedly was provided to the government by Mr. Sussmann.

This is the memo that, again, the government has talked about today in its papers as to why it’s so important to pierce this privilege. Ms. Seago didn’t contribute to it, doesn’t know who did, doesn’t know who researched it, doesn’t know who wrote it, doesn’t know its purpose; and the government’s aware of all that.

As Sean Berkowitz followed up, Seago also does not recall knowing about the late July meeting involving Joffe, Sussmann, and Marc Elias.

And the question that was asked was: “So were you aware of this July 28th meeting between Sussmann and personnel of Fusion?

“ANSWER: Not that I recall.

“QUESTION: Were you aware of the meeting after it happened?

“ANSWER: Not that I recall.

Importantly, Durham knew (because he has been operating as a parasite on the lawfare project that Vladimir Putin probably ordered to make America less safe) that Seago would testify she didn’t know about the July meeting with Perkins Coie and Joffe or Sussmann’s meeting with James Baker or the Fusion-drafted white paper when Durham said she would be the pivotal witness to represent the relationship between Joffe and Fusion. This foreknowledge, which is incompatible with Durham’s claim that Seago’s testimony, “may be necessary to the public interest,” undermines both his relevance arguments and his excuse for the belated bid to pierce privilege.

As to Joffe, Tyrrell represented that at least some of the emails between him and Seago were the exchange of PGP keys.

MR. TYRRELL: Well, there are — Mr. Joffe is a cyber security expert, and he was trying to exchange something called PGP keys with Ms. Seago —

THE COURT: Okay.

MR. TYRRELL: — so that their communications would be secure and encrypted. So some of the attachments are actually just simply an exchange of PGP keys. But there is at least one or — there’s one or two attachments that’s not that, and I’m really not — I’d be happy to answer that in camera ex parte.

It’s the other communications that might be of value to Durham, but if they’re not privileged via Sussmann’s representation of Joffe, then his entire argument that Sussmann was representing a client may fall apart.

So Seago has, per those who know her involvement, little to offer in useful testimony (and Durham knew this). That’s a problem for Durham, because per Jonathan Algor, she was the way they planned to introduce the emails as evidence.

THE COURT: Okay. And obviously you haven’t seen these emails. You don’t know what they say. But you think there is a possibility, based on the descriptions in the privilege log, that they would be relevant and admissible through Ms. Seago for that purpose?

MR. ALGOR: Yes, Your Honor.

If Seago doesn’t know about the key issues necessary to validate the documents in question, then Durham may have a problem introducing them at trial at all.

As noted above, there are a number of possible ways Cooper resolves this, and it’s most likely he makes decisions that will displease both sides.

But given what he said yesterday, I think it quite likely Cooper will rule at least some of the Fusion emails are not privileged, even while making other rulings that will prevent them from coming into the trial as evidence.

If that happens, Durham may be able to use that ruling to get access (this time via proper methods) to that pool of 1,500 emails — many presumably of more interest to the Igor Danchenko case — that will let him spin his conspiracy theories for years to come. It might take losing the case against Sussmann, though, to continue his war of conspiracies.

Durham Prosecutor Brittain Shaw Gets Cute with Forfeited Claim

John Durham prosecutor Brittain Shaw just submitted a bunch of FEC filings from a settlement the Democrats reached in February; as with other documents designed to rile up the frothy right, she claimed the document was meant to be filed under seal but submitted it to the public docket.

In the settlement, Democrats agreed to pay a fine because they did not list the purpose of Perkins Coie’s Fusion payments as opposition research.

In her filing, Shaw claimed that conciliation agreement and the exhibits to it “were made public” on April 28.

The Government, by supplementing its motion with the attached exhibits, seeks to provide notice to the Court of a Federal Election Committee (“FEC”) conciliation agreement with the Democratic National Committee (“DNC”) and the Hillary for America Campaign (“HFA”), and the FEC’s supporting findings, which were made public on April 28, 2022. Specifically, the FEC found “probable cause to believe” that the DNC and HFA improperly reported their payments to Perkins Coie for Fusion GPS’s opposition research as “legal and compliance consulting.” [my emphasis]

That’s a dishonest claim — though a necessary one to excuse Durham not raising this issue in his April 6 motion to compel or his April 25 reply.

The FEC’s supporting backup may have only been posted last week (though the backup relies on the same kind of evidence, like billing records, that Durham already has).

But the settlement, with the language about “probable cause,” was first reported on March 30 and widely covered; most stories with links to the letter informing the complainant, which included the conciliation agreements that Shaw includes in her claim stating that this documentation only became available last week. As the letter to Marc Elias’ law firm sent on March 29 noted, “these matters are now public.”

And it has been discussed in the right wing press particularly as it pertains to this privilege challenge already. Kim Strassel dedicated an entire paragraph to it on April 21, well before Durham’s scheduled reply.

These are a few of the difficulties the parties face in trying to pound the oppo-research peg into the legal-services hole. Mr. Durham also got an assist from federal regulators. Last month the FEC fined the Clinton campaign and the DNC $8,000 and $105,000, respectively, for violating strict rules on disclosure. The FEC noted that Perkins Coie in 2016 hired Fusion to “provide research services” and improperly reported the work as “legal services.” The campaign and DNC made the same argument—that Fusion’s work was in support of legal advice—but settled with the FEC. (A DNC spokesperson told the Washington Post it had agreed to settle “silly complaints from the 2016 election.”)

Some other right wing outlet did an entire piece focused on this settlement, explicitly expecting Durham to raise it in his reply.

Shaw was dishonest about more than the availability of this information last month, and therefore the fact that Durham has forfeited this claim. She also did not mention that the backup notes that the Democrats still claim privilege over the Fusion work and the conciliation agreement did not concede the point. Notably, I believe “purpose” is defined differently under campaign finance law and under the precedents at issue here.

This is a totally hackish attempt to include this issue in a way that Durham can rely on it on appeal. But the claim that this settlement (as opposed to the underlying backup) hasn’t been available to prosecutors since they first tried to pierce the Democrats’ privilege is thoroughly dishonest as to the plain meaning of the claim.

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

“Not Us at All:” In His Bid to Pierce Privilege, John Durham Makes Strong Case for Immunizing Rodney Joffe

The folks in John Durham’s Office of Conspiracy-Mongering seem to be frazzled. What other explanation might they have for a positively hysterical entry in their bid to pierce Democrats’ privilege claims?

To be clear (because frothy lawyers are making false claims about what I think might happen), I think some of the privilege claims being made are suspect. Durham might succeed, in part, and a more professional effort to do so in a different case — say, Igor Danchenko’s — might get the results he wanted.

But last night’s filing, even ignoring that Durham released confidential emails while purportedly asking permission to release them under seal, was a clown show.

Start with what Durham doesn’t mention.

In Michael Sussmann’s opposition to Durham’s motion to compel, he raised four procedural problems with Durham’s effort.

First, the Special Counsel’s Motion is untimely. Despite knowing for months, and in some cases for at least a year, that the non-parties were withholding material as privileged, he chose to file this Motion barely a month before trial—long after the grand jury returned an Indictment and after Court-ordered discovery deadlines had come and gone.

Second, the Special Counsel’s Motion should have been brought before the Chief Judge of the District Court during the pendency of the grand jury investigation, as the rules of this District and precedent make clear.

Third, the Special Counsel has seemingly abused the grand jury in order to obtain the documents redacted for privilege that he now challenges. He has admitted to using grand jury subpoenas to obtain these documents for use at Mr. Sussmann’s trial, even though Mr. Sussmann had been indicted at the time he issued the grand jury subpoenas and even though the law flatly forbids prosecutors from using grand jury subpoenas to obtain trial discovery. The proper remedy for such abuse of the grand jury is suppression of the documents.

Fourth, the Special Counsel seeks documents that are irrelevant on their face. Such documents do not bear on the narrow charge in this case, and vitiating privilege for the purpose of admitting these irrelevant documents would materially impair Mr. Sussmann’s ability to prepare for his trial.

While Durham makes unconvincing attempts to address the first and fourth issue (to which I’ll return), he doesn’t meaningfully address the second and third. In this post, I opined that the third — his blatant abuse of grand jury rules — could be easily addressed (which he didn’t try to do), but given how obviously irrelevant and potentially inadmissible these documents are to the charge against Sussmann, I’m not so sure anymore.

But Durham only addresses Sussmann’s argument that he ignored local rules and deliberately bypassed Beryl Howell, who would have been the proper person to assess these privilege claims, by making unconvincing claims he made a good faith effort to do so directly.

There’s another thing he doesn’t mention, another point Sussmann raised. Some of the emails Durham is focused on make it explicit that there was a separation between Fusion’s research (including the Steele dossier) and the DNS research.

The Special Counsel makes much of the fact that (1) there was an August 11, 2016 email exchange between Mr. Sussmann, Mr. Elias, and Fusion employees with the subject “connecting you all by email” and (2) that thereafter, Fusion employees “began to exchange drafts of a document . . . the defendant would provide to the FBI General Counsel.” Motion ¶¶ 29, 30. But in seeking to draw inflammatory and unsupported inferences, the Special Counsel ignores another email—that he produced in discovery—in which a Fusion employee stated that the document was “an [A]lfa memo unrelated to all [the Alfa Bank DNS information].” See Email from P. Fritsch to M. Hosenball (Oct. 5, 2016), SC-00027475, at SC-00027476.

Indeed, Peter Fritsch told Mark Hosenball that “the DNS stuff” was “not us at all.”

Even though Sussmann pointed that out, Durham did not address the clear evidence in his possession that this was not a joint effort. Other of these communications, Peter Fritsch has testified under oath, he engaged in because he was independently alarmed about the Alfa Bank allegations. And some of them, Fusion has noted before, derived from Paul Singer’s involvement in the project and Singer didn’t invoke privilege.

Much of rest, though, is primarily focused on Carter Page and Sergei Millian (though in one place, Durham also downplays that Fusion was investigating Felix Sater, which is interesting given Durham’s efforts to pretend the notion Trump had multiple back channels with Russia is malicious and political). Indeed, included emails explain that what had been a potentially scandalous reference — the allegation that Millian had an email “with” Alfa Bank — actually came from public Internet research, not from the DNS analysis.

Given the focus on Millian, though, it is inexplicable why Durham is trying to pierce these privilege claims here rather than in the case where it might matter, Danchenko’s. Rather, I can think of some explanations, such as that someone in Millian’s organization viewed the obligation to register under FARA as a “problem” as early as 2013, but none of them are legally sound.

The far more interesting aspect of Durham’s filing comes in how he addresses two substantive issues. First, here’s how he addressed the timing of his belated decision to try to pierce privilege.

As an initial matter, the defendant and others accuse the Government of carrying out an untimely “full frontal assault” on the attorney client privilege by raising these issues more than a month before trial. (Def. Opp. at 1.) But those characterizations distort reality. Indeed, the opposite is true: the primary reason the Government waited until recently to bring these issues to the Court’s attention was because it wanted to carefully pursue and exhaust all collaborative avenues of resolving these matters short of litigation. The Government did so to avoid bringing a challenge to the parties’ privilege determinations and to ensure that it first gathered all relevant facts and provided the relevant privilege holders with notice and an opportunity to explain the bases for their privilege assertions. Even the emails between the Government and counsel that the defendant quotes in his opposition reflect this very purpose. See., e.g., Def. Opp. at 7 (quoting emails in which the Special Counsel’s Office stated that it “wanted to give all parties involved the opportunity to weigh in before we. . . seek relief from the Court” and requested a call “to avoid filing motions with the Court.”).

In addition, over the course of months, and until recently, the Government has been receiving voluminous rolling productions of documents and privilege logs from numerous parties. The Government carefully analyzed such productions in order assess and re-assess the potential legal theories that might support the parties’ various privilege assertions. In connection with that process, the Special Counsel’s Office reached out to each of those parties’ counsel numerous times, directing their attention to specific documents where possible and communicating over email and phone in an effort to obtain non-privileged explanations for the relevant privilege determinations.2 The Government also supplied multiple counsel with relevant caselaw and pointed them to documents and information in the public domain that it believed bore on these issues. The Government was transparent at every step of these discussions in stating that it was contemplating seeking the Court’s intervention and guidance. Unfortunately, despite the Government’s best efforts and numerous phone calls, it was not able to obtain meaningful, substantive explanations to support these continuing broad assertions of privilege and/or work product protections. [my emphasis]

This flips a point Sussmann made on its head — that Durham kept prodding Sussmann to waive privilege. “[T]he Special Counsel has been asking Mr. Sussmann whether there would be any waiver of privilege in this case because of his concern that a privilege waiver at this stage in the proceedings would fundamentally impact the course of trial.”

Durham provides no dates on his claimed efforts to resolve the privilege issues. But Sussmann has already revealed what some of those dates are. The two Durham cites were in August.

Email from Andrew DeFilippis, Dep’t of Just., to Patrick Stokes, Gibson, Dunn & Crutcher LLP, et al. (Aug. 9, 2021) (requesting a call to discuss privilege issues with a hope “to avoid filing motions with the Court”); Email from Andrew DeFilippis, Dep’t of Just., to Patrick Stokes, Gibson, Dunn & Crutcher LLP, et al. (Aug. 14, 2021) (stating that the Special Counsel “wanted to give all parties involved the opportunity to weigh in before we . . . pursue particular legal process, or seek relief from the Court”). And since January— before the deadline to produce unclassified discovery had passed—the Special Counsel suggested that such a filing was imminent, telling the DNC, for example, that he was “contemplating a public court filing in the near term.” Email from Andrew DeFilippis, Dep’t of Just., to Shawn Crowley, Kaplan Hecker & Fink LLP (Jan. 17, 2022).

2 In response to these inquiries and discussions, Tech Executive-1’s counsel withdrew his client’s privilege assertions over a small number of documents, and Fusion GPS produced a redacted version of its retention agreement with Perkins Coie. [my emphasis]

August is when Durham should have been involving Chief Judge Howell. Instead, we’re in April, and Durham is only now involving Judge Christopher Cooper. Importantly, using the dates Sussmann decided to include but which Durham did not, Durham was talking about taking imminent action in January, over two months before he first raised piercing privilege. After that, Durham again nudged Sussmann to waive privilege on his own. And the only reason why Durham was still getting responses to subpoenas, to the extent he was, is because he subpoenaed some of this after indicting (again, which he doesn’t address).

Given Durham’s claims he was trying to use other methods to get this information, his explanation of why he “only recently” decided he needed to pierce privilege is utterly damning: He only recently decided he needed to immunize Laura Seago and call her as a witness, he says.

It was only recently, when the Government determined it would need to call an employee of Fusion GPS as a trial witness (the “Fusion Witness”), that the Government concluded these issues could not be resolved without the Court’s attention. Because all or nearly all of the Fusion Witness’s expected testimony on these matters concern work carried out under an arrangement that the privilege holders now contend was established for the purpose of providing legal advice, it is essential to resolve the parties’ potential disputes about the appropriate bounds of such testimony (and the redaction or withholding of related documents).

That’s utterly damning because one of the last two things Alfa Bank was pursuing in their John Doe lawsuits before they were sanctioned, on Thursday, February 10, was to revisit privilege claims made by Fusion in a September Seago deposition with Alfa Bank (Seago’s first interview, in March 2021, was abandoned quickly). The reason Alfa gave for needing to challenge privilege claims Seago made in a 4-hour September deposition at which she invoked privilege over 60 times was because, “people at Fusion are speaking with the likes of Rodney Joffe.” And before Associate Judge Heidi Pasachow could rule, Alfa Bank was sanctioned to prevent it from helping Russia to attack democracy.

As I’ve laid out, all of Durham’s missed deadlines came after he could no longer rely on Alfa Bank to do his dirty work. As did, by his own description, the belated decision that he needs to immunize Seago and get her to testify at trial.

And that’s important because in spite of the pages and pages of irrelevant emails, when Durham turns to make the case that he needs to pierce this privilege, he again turns to Seago, claiming that she has “unique” knowledge about the charges against Sussmann.

Where a party seeks to overcome work product protection, it must show either that “it has a substantial need for the materials to prepare its case and cannot, without undue hardship obtain their substantial equivalent by other means” for fact work product, or make an “extraordinary showing of necessity” to obtain opinion work product. Boehringer, 778 F.3d at 153 (D.C. Cir. 2015) (quotations omitted).

Here, the vast majority of the relevant materials likely constitute fact work product, given that few of the communications involve an attorney. In addition, the Government has met both prongs of the relevant test. First, the Government has a “substantial need” for materials that it has requested the Court to review in camera. Those materials include, for example, communications between Tech Executive-1 and the Fusion Witness whom the Government will call at trial. The Fusion Witness is, to the Government’s knowledge, the only Fusion GPS employee who exchanged emails with Tech Executive-1 concerning the Russian Bank-1 allegations (or any other issue). The Fusion Witness also (i) acted as the firm’s primary “technical” expert; (ii) worked for an extended time period on issues relating to the Russian Bank-1 allegations; (iii) was a part of the team that handled work under Fusion’s contract with HFA and the DNC; and (iv) met in 2016 with various parties – including Law Firm-1, Tech Executive-1, and the media – about the Russian Bank-1 allegations. As such, the Fusion Witness undoubtedly possesses unique insight to the core issue to be decided by the jury—i.e., whether the defendant was acting on behalf of one or more clients when he worked on the Russian Bank-1 allegations. Accordingly, the Government has a “substantial need” to obtain the Fusion Witness’s communications relating to the Russian Bank-1 allegations. Moreover, the materials for which the Government has requested in camera review also include internal Fusion GPS communications regarding one of the three white papers that the defendant provided to the FBI, namely, the “[Russian Bank-1’s parent company] Overview” paper. Communications regarding the origins and background the very Fusion GPS paper that the defendant brought to the FBI are therefore likely to shed unique light on the defendant’s meeting with the FBI General Counsel, including the defendant’s work on behalf of his clients. Fusion GPS’s communications regarding that paper in the days prior to the defendant’s meeting with the FBI General Counsel are also likely to reveal information about the paper’s intended purpose and audience. Such facts will, again, shed critical light on the defendant’s conduct and meeting with the FBI.

Second, the Government cannot “without undue hardship obtain the[] substantial equivalent” of these materials “by other means.” Boehringer Ingelheim Pharms., Inc., 778 F.3d at 153. That is because these materials constitute mostly internal Fusion GPS communications and, accordingly, are not available from any other source. To the extent these communications reflect emails with Tech Executive-1, they are similarly unavailable because Tech Executive-1 has invoked his Fifth Amendment right against self-incrimination. Therefore, obtaining the materials or their substantial equivalent from another source would not merely present an “undue hardship,” but rather, is impossible. [my emphasis]

This is a fairly astonishing argument.

That’s because Seago’s knowledge of the communications she had with Joffe is not unique. Joffe also has knowledge of their communications. To get Seago’s testimony, Durham plans to immunize her.

Yet he says he can’t get the very same testimony from Joffe because Joffe would invoke the Fifth.

Durham has an obvious alternative, and it just so happens to be the alternative that Sussmann is also seeking: To immunize not Seago, but Joffe. That would be more beneficial for Durham, if he really wants that testimony, because Joffe can waive privilege over precisely these communications and enter them as evidence with no hearsay exception. Immunizing Joffe gives Durham everything he wants and his testimony would be unquestionably pertinent to the charge against Sussmann.

Just twelve days ago, John Durham argued that he’s not playing fast-and-loose with his immunity decisions and that Joffe would offer no testimony useful to Sussmann (though to do so, Durham misrepresented Sussmann’s statement about Joffe’s role in helping to kill the NYT story).

Indeed, to now arbitrarily force the Government to immunize Tech Executive-1 merely because the defense believes he would offer arguably helpful testimony to the defendant would run afoul of the law and inject the Court into matters plainly reserved to the Executive Branch.

[snip]

(The Government also currently intends to seek immunity at trial for an individual who was employed at the U.S. Investigative Firm. But unlike Tech Executive-1, that individual is considered a “witness” and not a “subject” of the Government’s investigation based on currently-known facts.)

Finally, the defendant fails to plausibly allege – nor could he – that the Government here has “deliberately denied immunity for the purpose of withholding exculpatory evidence and gaining a tactical advantage through such manipulation.” Ebbers, 458 F. 3d at 119 (internal citation and quotations omitted). The defendant’s motion proffers that Tech Executive-1 would offer exculpatory testimony regarding his attorney-client relationship with the defendant, including that Tech Executive-1 agreed that the defendant should convey the Russian Bank-1 allegations to help the government, not to “benefit” Tech Executive-1. But that testimony would – if true – arguably contradict and potentially incriminate the defendant based on his sworn testimony to Congress in December 2017, in which he expressly stated that he provided the allegations to the FBI on behalf of an un-named client (namely, Tech Executive-1). And in any event, even if the defendant and his client did not seek specifically to “benefit” Tech Executive-1 through his actions, that still would not render his statement to the FBI General Counsel true. Regardless of who benefited or might have benefited from the defendant’s meeting, the fact still remains that the defendant conducted that meeting on behalf of (i) Tech Executive-1 (who assembled the allegations and requested that the defendant disseminate them) and (ii) the Clinton Campaign (which the defendant billed for some or all of his work). The proffered testimony is therefore not exculpatory, and certainly not sufficiently exculpatory to render the Government’s decision not to seek immunity for Tech Executive-1 misconduct or an abuse.6

6 The defendant’s further proffer that Tech Executive-1 would testify that (i) the defendant contacted Tech Executive-1 about sharing the name of a newspaper with the FBI General Counsel, (ii) Tech Executive-1 and his associates believed in good faith the Russian Bank-1 allegations, and (iii) Tech Executive-1 was not acting at the direction of the Clinton Campaign, are far from exculpatory. Indeed, even assuming that all of those things were true, the defendant still would have materially misled the FBI in stating that he was not acting on behalf of any client when, in fact, he was acting at Tech Executive-1’s direction and billing the Clinton Campaign.

Now, he’s claiming that the only possible way he can get testimony pertaining to Seago’s communications with Joffe is to immunize Seago and breach both Joffe’s and the Democrats’ claims of privilege.

By far the easiest way of solving this issue — and the one that meets Sussmann’s due process rights — is instead to immunize Joffe.

It’s a great case Durham made that they should cede to Sussmann’s request and immunize Joffe!

We’ll see what Cooper thinks of these claims at the status hearing tomorrow (because the hearing is in person, it’s unclear whether I’ll be able to call in).

But what is clear is that Durham keeps presenting evidence that he’s looking in the wrong place for the evidence he says he needs.

Confirmed: John Durham Has Withheld Discovery That DOJ Already Disproved His Claims of Political Malice

In his reply filing in the fight over what evidence will be submitted at his trial, Michael Sussmann confirmed something I’ve long suspected: John Durham has not provided Sussmann with the discovery Durham would need to have provided to present his own conspiracy theories at trial without risking a major discovery violation.

Were the Special Counsel to try to suggest that Mr. Sussmann and Mr. Steele engaged in a common course of conduct, that would open the door to an irrelevant mini-trial about the accuracy of Mr. Steele’s allegations about Mr. Trump’s ties to Russia—something that, like the Alfa Bank allegations, many experts continue to believe in, and about which the Special Counsel has tellingly failed to produce any significant discovery.

Sussmann dropped this in the filing without fanfare. But it is clear notice that if Durham continues down the path he is headed, he may face discovery sanctions down the road.

I explained why that’s true in these two posts. A core tenet of Durham’s conspiracy theories is that the only reason one would use proven cybersecurity methods to test certain hypotheses about Donald Trump would be for malicious political reasons. Here’s how Durham argued that in his own reply.

As the Government will demonstrate at trial, it was also the politically-laden and ethically-fraught nature of this project that gave Tech Executive-1 and the defendant a strong motive to conceal the origins of the Russian Bank-1 allegations and falsely portray them as the organic discoveries of concerned computer scientists.

There’s no external measure for what makes one thing political and makes another thing national security. But if this issue were contested, I assume that Sussmann would point, first, to truth as a standard. And as he could point out, many of the hypotheses April Lorenzen tested, which Durham points to as proof the project was malicious and political, turned out to be true. They were proven to be true by DOJ. Some of those true allegations involved guilty pleas to crimes, including FARA, explicitly designed to protect national security; another involved Roger Stone’s guilty verdict on charges related to his cover-up of his potential involvement in a CFAA hacking case.

DOJ (under the direction of Trump appointee Rod Rosenstein, who in those very same years was Durham’s direct supervisor) has already decided that John Durham is wrong about these allegations being political. Sussmann has both truth and DOJ’s backing on his side that these suspicions, if proven true (as they were), would be a threat to national security. Yet Durham persists in claiming to the contrary.

Here’s the evidence proving these hypotheses true that Durham has withheld in discovery:

The researchers were testing whether Richard Burt was a back channel to the Trump campaign. And while Burt’s more substantive role as such a (Putin-ordered) attempt to establish a back channel came during the transition, it is a fact that Burt was involved in several events earlier in the campaign at which pro-Russian entities tried to cultivate the campaign, including Trump’s first foreign policy speech. Neither Burt nor anyone else was charged with any crime, but Mueller’s 302s involving the Center for National Interest — most notably two very long interviews with Dmitri Simes (one, updated, two, updated), which were still under investigation in March 2020 — reflect a great deal of counterintelligence interest in the organization.

The researchers were also testing whether people close to Trump were laundering money from Putin-linked Oligarchs through Cyprus. That guy’s name is Paul Manafort, with the assistance of Rick Gates. Indeed, Manafort was ousted from the campaign during the period researchers were working on the data in part to distance the campaign from that stench (though it didn’t stop Trump from pardoning Manafort).

A more conspiratorial Lorenzen hypothesis (at least on its face) was that one of the family members of an Alfa Bank oligarch might be involved — maybe a son- or daughter-in-law. And in fact, German Khan’s son-in-law Alex van der Zwaan was working with Gates and Konstantin Kilimnik in precisely that time period to cover up Manafort’s ties to those Russian-backed oligarchs.

Then there was the suspicion — no doubt driven, on the Democrats’ part, by the correlation between Trump’s request to Russia for more hacking and the renewed wave of attacks that started hours later — that Trump had some back channel to Russia.

It turns out there were several. There was the aforementioned Manafort, who in the precise period when Rodney Joffe started more formally looking to see if there was a back channel, was secretly meeting at a cigar bar with alleged Russian spy Konstantin Kilimnik discussing millions of dollars in payments involving Russian-backed oligarchs, Manafort’s plan to win the swing states, and an effort to carve up Ukraine that leads directly to Russia’s current invasion.

That’s the kind of back channel researchers were using proven cybersecurity techniques to look for. They didn’t confirm that one — but their suspicion that such a back channel existed proved absolutely correct.

Then there’s the Roger Stone back channel with Guccifer 2.0. Again, in this precise period, Stone was DMing with the persona. But the FBI obtained at least probable cause that Stone’s knowledge of the persona went back much further, back to even before the persona went public in June 2016. That’s a back channel that remained under investigation, predicated off of national security crimes CFAA, FARA, and 18 USC 951, at least until April 2020 and one that, because of the way Stone was scripting pro-Russian statements for Trump, might explain Trump’s “Russia are you listening” comment. DOJ was still investigating Stone’s possible back channel as a national security concern well after Durham was appointed to undermine that national security investigation by deeming it political.

Finally, perhaps the most important back channel — for Durham’s purposes — was Michael Cohen. That’s true, in part, because the comms that Cohen kept lying to hide were directly with the Kremlin, with Dmitri Peskov. That’s also true because on his call to a Peskov assistant, Cohen laid out his — and candidate Donald Trump’s — interest in a Trump Tower Moscow deal that was impossibly lucrative, but which also assumed the involvement of one or another sanctioned bank as well as a former GRU officer. That is, not only did Cohen have a back channel directly with the Kremlin he was trying to hide,  but it involved Russian banks that were far more controversial than the Alfa Bank ties that the researchers were pursuing, because the banks had been deemed to have taken actions that threatened America’s security.

This back channel is particularly important, though, because in the same presser where Trump invited Russia to hack his opponent more, he falsely claimed he had decided against pursuing any Trump Organization developments in Russia.

Russia that wanted to put a lot of money into developments in Russia. And they wanted us to do it. But it never worked out.

Frankly I didn’t want to do it for a couple of different reasons. But we had a major developer, particular, but numerous developers that wanted to develop property in Moscow and other places. But we decided not to do it.

The researchers were explicitly trying to disprove Trump’s false claim that there were no ongoing business interests he was still pursuing with Russia. And this is a claim that Michael Cohen not only admitted was false and described recognizing was false when Trump made this public claim, but described persistent efforts on Trump’s part to cover up his lie, continuing well into his presidency.

For almost two years of Trump’s Administration, Trump was lying to cover up his efforts to pursue an impossibly lucrative real estate deal that would have required violating or eliminating US sanctions on Russia. That entire time, Russia knew Trump was lying to cover up those back channel communications with the Kremlin. That’s the kind of leverage over a President that all Americans should hope to avoid, if they care about national security. That’s precisely the kind of leverage that Sally Yates raised when she raised concerns about Mike Flynn’s public lies about his own back channel with Russia. Russia had that leverage over Trump long past the time Trump limped out of a meeting with Vladimir Putin in Helsinki, to which Trump had brought none of the aides who would normally sit in on a presidential meeting, looking like a beaten puppy.

Durham’s failures to provide discovery on this issue are all the more inexcusable given the fights over privilege that will be litigated this week.

As part of the Democrats’ nesting privilege claims objecting to Durham’s motion to compel privileged documents, Marc Elias submitted a declaration describing how, given his past knowledge and involvement defending against conspiracy theory attacks on past Democratic presidential candidates launched by Jerome Corsi and Donald Trump, and given Trump’s famously litigious nature, he believed he needed expertise on Trump’s international business ties to be able to advise Democrats on how to avoid eliciting such a lawsuit from Trump. (Note, tellingly, Durham’s motion to compel doesn’t mention a great deal of accurate Russian-language research by Fusion — to which Nellie Ohr was just one of a number of contributors — that was never publicly shared nor debunked as to quality.)

There are four redacted passages that describe the advice he provided; he is providing these descriptions ex parte for Judge Cooper to use to assess the Democrats’ privilege claims. Two short ones probably pertain to the scope of Perkins Coie’s relationship with the Democratic committees. Another short one likely describes Elias’ relationship, and through him, Fusion’s, with the oppo research staff on the campaign. But the longest redaction describing Elias’ legal advice, one that extends more than five paragraphs and over a page and a half, starts this way:

That is, the introduction to Elias’ description of the privilege claims tied to the Sussmann trial starts from Trump’s request of Russia to hack Hillary. Part of that sentence and the balance of the paragraph is redacted — it might describe that immediately after Trump made that request, the Russians fulfilled his request — but the redacted paragraph and the balance of the declaration presumably describes what legal advice he gave Hillary as she faced a new onslaught of Russian hacking attempts that seemingly responded to her opponent’s request for such hacking.

Given what Elias described about his decision to hire Fusion, part of that discussion surely explains his effort to assess an anomaly identified independently by researchers that reflected unexplained traffic between a Trump marketing server and a Russian bank. Elias probably described why it was important for the Hillary campaign to assess whether this forensic data explained why Russian hackers immediately responded to Trump’s request to hack her.

As I have noted, in past filings Durham didn’t even consider the possibility that Elias might discuss the renewed wave of hacking that Hillary’s security personnel IDed in real time with Sussmann, Perkins Coie’s cybersecurity expert.

It’s a testament to how deep John Durham is in his conspiracy-driven rabbit hole that he assumes a 24-minute meeting between Marc Elias and Michael Sussmann on July 31, 2016 to discuss the “server issue” pertained to the Alfa Bank allegations. Just days earlier, after all, Donald Trump had asked Russia to hack Hillary Clinton, and within hours, Russian hackers obliged by targeting, for the first time, Hillary’s home office. Someone who worked in security for Hillary’s campaign told me that from his perspective, the Russian attacks on Hillary seemed like a series of increasing waves of attacks, and the response to Trump’s comments was one of those waves (this former staffer documented such waves of attack in real time). The Hillary campaign didn’t need Robert Mueller to tell them that Russia seemed to respond to Trump’s request by ratcheting up their attacks, and Russia’s response to Trump would have been an urgent issue for the lawyer in charge of their cybersecurity response.

It’s certainly possible this reference to the “server” issue pertained to the Alfa Bank allegations. But Durham probably doesn’t know; nor do I. None of the other billing references Durham suggests pertain to the Alfa Bank issue reference a server.

Durham took a reference that might pertain to a discussion of a correlation between Trump’s ask and a renewed wave of Russian attacks on Hillary (or might pertain to the Alfa Bank anomaly), and assumed instead it was proof that Hillary was manufacturing unsubstantiated dirt on her opponent. He never even considered the legal challenges someone victimized by a nation-state attack, goaded by her opponent, might face.

And yet, given the structure of that redaction from Elias, that event is the cornerstone of the privilege claims surrounding the Alfa Bank allegations.

Because of all the things I laid out in this post, Judge Cooper may never have to evaluate these privilege claims at all. To introduce privileged evidence, Durham has to first withstand:

  • Denial because his 404(b) notice asking to present it was late, and therefore forfeited
  • Denial because Durham’s motion to compel violated local rules and grand jury process, in some ways egregiously
  • Rejection because most of the communications over which the Democrats have invoked privilege are inadmissible hearsay
  • The inclusion or exclusion of the testimony of Rodney Joffe, whose privilege claims are the most suspect of the lot, but whose testimony would make the communications Durham deems to be most important admissible

Cooper could defer any assessment of these privilege claims until he decides these other issues and, for one or several procedural reasons, simply punt the decision entirely based on Durham’s serial failures to follow the rules.

Only after that, then, would Cooper assess a Durham conspiracy theory for which Durham himself admits he doesn’t have proof beyond a reasonable doubt. As part of his bid to submit redacted and/or hearsay documents as exhibits under a claim that this all amounted to a conspiracy (albeit one he doesn’t claim was illegal), Durham argues that unless he can submit hearsay and privileged documents, he wouldn’t otherwise have enough evidence to prove his conspiracy theory.

Nor is evidence of this joint venture gratuitous or cumulative of other evidence. Indeed, the Government possesses only a handful of redacted emails between the defendant and Tech Executive-1 on these issues. And the defendant’s billing records pertaining to the Clinton Campaign, while incriminating, do not always specify the precise nature of the defendant’s work.

Accordingly, presenting communications between the defendant’s alleged clients and third parties regarding the aforementioned political research would hardly amount to a “mini-trial.” (Def. Mot. at 20). Rather, these communications are among the most probative and revealing evidence that the Government will present to the jury. Other than the contents of privileged communications themselves (which are of course not accessible to the Government or the jury), such communications will offer some of the most direct evidence on the ultimate question of whether the defendant lied in stating that he was not acting for any other clients.

In short, because the Government here must prove the existence of client relationships that are themselves privileged, it is the surrounding events and communications involving these clients that offer the best proof of those relationships.

Moreover, even if the Court were to find that no joint venture existed, all of the proffered communications are still admissible because, as set forth in the Government’s motions, they are not being offered to prove the truth of specific assertions. Rather, they are being offered to prove the existence of activities and relationships that led to, and culminated in, the defendant’s meeting with the FBI. Even more critically, the very existence of these written records – which laid bare the political nature of the exercise and the numerous doubts that the researchers had about the soundness of their conclusions – gave the defendant and his clients a compelling motive, separate and apart from the truth or falsity of the emails themselves, to conceal the identities of such clients and origins of the joint venture. Accordingly, they are not being offered for their truth and are not hearsay.

This passage (which leads up to a citation from one of the Georgia Tech researchers to which Sussmann was not privy that the frothers have spent the weekend drooling over) is both a confession and a cry for help.

In it, Durham admits he doesn’t actually have proof that the conspiracy he is alleging is the motive behind Michael Sussmann’s alleged lie.

He’s making this admission, of course, while hiding the abundant evidence — evidence he didn’t bother obtaining before charging Sussmann — that Sussmann and Joffe acceded to the FBI request to help kill the NYT story, which substantiates Sussmann’s stated motive.

And then, in the same passage, Durham is pointing to that absence of evidence to justify using that same claimed conspiracy for which he doesn’t have evidence to pierce privilege claims to obtain the evidence he doesn’t have. It’s a circular argument and an admission that all the claims he has been making since September are based off his beliefs about what must be there, not what he has evidence for.

Thus far the researchers’ beliefs about what kind of back channels they might find between Trump and Russia have far more proof than Durham’s absence of evidence.

Again, Durham doesn’t even claim that such a conspiracy would be illegal (much less chargeable under the statute of limitations), which is why he didn’t do what he could have had he been able to show probable cause that a crime had been committed: obtaining the communications with a warrant and using a filter team. Bill Barr’s memoir made it quite clear that he appointed Durham not because a crime had been committed, but because he wanted to know how a “bogus scandal” in which DOJ found multiple national security crimes started. ”Even after dealing with the Mueller report, I still had to launch US Attorney John Durham’s investigation into the genesis of this bogus scandal.” In his filing, Durham confesses to doing the same, three years later: using his feelings about a “bogus scandal” to claim a non-criminal conspiracy that he hopes might provide some motive other than the one — national security — that DOJ has already confirmed.

An absolutely central part of Durham’s strategy to win this trial is to present his conspiracy theories, whether by belatedly piercing privilege claims he should have addressed before charging Sussmann (even assuming he’ll find what he admits he doesn’t have proof is there), or by presenting his absence of evidence and claiming it is evidence. He will only be permitted to do if Judge Cooper ignores all his rule violations and grants him a hearsay exception.

But if he manages to present his conspiracy theories, Sussmann can immediately pivot and point out all the evidence in DOJ’s possession that proves not just that the suspicions Durham insists must be malicious and political in fact proved to be true, but also that DOJ — his former boss! — already deemed these suspicions national security concerns that in some cases amounted to crimes.

John Durham’s entire trial strategy consists of claiming that it was obviously political to investigate a real forensic anomaly to see whether it explained why Russia responded to Trump’s call for more hacks by renewing their attack on Hillary. He’s doing so while withholding abundant material evidence that DOJ already decided he’s wrong.

So even if he succeeds, even if Cooper grants him permission to float his conspiracy theories and even if they were to succeed at trial, Sussmann would have immediate recourse to ask for sanctions, pointing to all the evidence in DOJ’s possession that Durham’s claims of malice were wrong.

Update: The bad news I’m still working through my typos, with your help, including getting the name of Dmitri Simes’ organization wrong. The good news is the typos are probably due to being rushed out to cycle in the sun, so I have a good excuse.

Update: Judge Cooper has issued an initial ruling on Durham’s expert witness. It limits what Durham presents to the FBI investigation (excluding much of the CIA investigation he has recently been floating), and does not permit the expert to address whether the data actually did represent communications between Trump and Alfa Bank unless Sussmann either affirmatively claims it did or unless Durham introduced proof that Sussmann knew the data was dodgy.

Finally, the Court takes a moment to explain what could open the door to further evidence about the accuracy of the data Mr. Sussmann provided to the FBI. As the defense concedes, such evidence might be relevant if the government could separately establish “what Mr. Sussmann knew” about the data’s accuracy. Data Mot. at 3. If Sussmann knew the data was suspect, evidence about faults in the data could possibly speak to “his state of mind” at the time of his meeting with Mr. Baker, id., including his motive to conceal the origins of the data. By contrast, Sussmann would not open the door to further evidence about the accuracy of the data simply by seeking to establish that he reasonably believed the data were accurate and relied on his associates’ representations that they were. Such a defense theory could allow the government to introduce evidence tending to show that his belief was not reasonable—for instance, facially obvious shortcomings in the data, or information received by Sussmann indicating relevant deficiencies.

Ultimately, Cooper is treating this (as appropriate given the precedents in DC) as a question of Sussmann’s state of mind.

Importantly, this is what Cooper says about Durham blowing his deadline (which in this case was a deadline of comity, not trial schedule): he’s going to let it slide, in part because Sussmann does not object to the narrowed scope of what the expert will present.

Mr. Sussmann also urges the Court to exclude the expert testimony on the ground that the government’s notice was untimely and insufficiently specific. See Expert Mot. at 6–10; Fed. R. Crim. P. 16(a)(1)(G). Because the Court will limit Special Agent Martin’s testimony largely to general explanations of the type of technical data that has always been part of the core of this case—much of which Mr. Sussmann does not object to—any allegedly insufficient or belated notice did not prejudice him. See United States v. Mohammed, No. 06-cr-357, 2008 WL 5552330, at *3 (D.D.C. May 6, 2008) (finding that disclosure nine days before trial did not prejudice defendant in part because its subject was “hardly a surprise”) (citing United States v. Martinez, 476 F.3d 961, 967 (D.C. Cir. 2007)).

This suggests Cooper may be less willing to let other deadlines slide, such as the all-important 404(b) one.