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FBI Cyber Division’s Enduring Blue Pill Mystery

I’m writing a post on the technical analysis John Durham included in his report purporting to debunk the white papers submitted via Michael Sussmann to, first, the FBI and, then, the CIA. But first I’m going to do something even more tedious: Try to track down FBI’s persistent blue pill problem — or rather, the FBI’s apparent failure to ever analyze one of two thumb drives Sussmann shared with Jim Baker in September 2016, the Blue one.

Last year, before Sussmann’s trial, Durham had FBI’s top technical people review what he claimed were the data Sussmann had shared. He cited those reports in his own report, claiming they debunk the white papers.

Here’s how they are described in footnotes.

  • 1635 FBI Cyber Division Cyber Technical Analysis Unit, Technical Analysis Report (April 20, 2022) (hereinafter “FBI Technical Analysis Report”) (SCO _ 094755)
  • 1671 FBI Cyber Technical Operations Unit, Trump/Alfa/Spectrum/Yota Observations and Assessment (undated; unpaginated).

Not only doesn’t the YotaPhone report have a date, but it doesn’t have a Bates stamp reflecting that it was shared with Sussmann. I’ll get into why that is interesting in my follow-up post.

Below is a summary of the materials Sussmann provided to both agencies. By description, the Technical Analysis Report only reviews the white paper and the smaller of two sets of text DNS logs included on the Red Thumb Drive. By description the Trump/Alfa/Spectrum/Yota Observations only review the Yota White Paper.

The data FBI’s technical people reviewed appear to be restricted to what is marked in blue.

They did review the actual thumb drives turned over to the CIA, because they found hidden data on one; there’s no indication they reviewed the thumb drives provided to the FBI.

In fact, it’s impossible that they reviewed the data included on the second thumb drive Sussmann shared, the Blue one.

That’s because the FBI analysis claims Sussmann only provided 851 resolutions, which is the 19-page collection of text files included on the Red Thumb Drive, not even the larger set.

Similarly, the FBI experts told us that the collection of passive DNS data used to support the claims made in the white paper was also significantly incomplete. 1657 They explained that, given the documented email transmissions from IP address 66.216.133.29 during the covered period, the representative sampling of passive DNS would have necessarily included a much larger volume and distribution of queries from source IP addresses across the internet. In light of this fact, they stated that the passive DNS data that Joffe and his cyber researchers compiled and that Sussmann passed onto the FBI was significantly incomplete, as it included no A-record (hostname to IP address) resolutions corresponding to the outgoing messages from the IP address. 1658 Without further information from those who compiled the white paper data, 1659 the FBI experts stated that it is impossible to determine whether the absence of additional A record resolutions is due to the visibility afforded by the passive DNS operator, the result of the specific queries that the compiling analyst used to query the dataset, or intentional filtering applied by the analyst after retrieval. 1660

1659 The data used for the white paper came from Joffe’s companies Packet Forensics and Tech Company-I. As noted above, Joffe declined to be interviewed by the Office, as did Tech Company-2 Executive-I. The 851 records of resolutions on the USB drive were an exact match for a file of resolutions sent from University-I Researcher-2 to University-I Researcher- I on July 29, 2016, which was referred to as “[first name of Tech Company-2 Executive-l]’s data.” Id. at 7.

1660 Id. [bold]

There’s no way they would have come to this conclusion if they had seen the Blue Thumb Drive, which had millions of logs on it.

In fact, it appears that the FBI never did review that Blue Thumb Drive when they were investigating the Alfa Bank anomaly.

They didn’t do so, it appears, because the Cyber Division Agents who first reviewed the allegations, Nate Batty and Scott Hellman, misplaced the Blue Thumb Drive for weeks.

That may not have been an accident.

Batty and Hellman’s initial review, which they completed in just over a day, was riddled with errors (as I laid out during the trial). Importantly, they could not have reviewed most of the DNS logs before writing their report, because they claimed, “the presumed suspicious activity began approximately three weeks prior to the stated start [July 28] of the investigation conducted by the researcher.”

Even the smaller set of log files included on the Red Thumb Drive showed the anomaly went back to May. A histograph included in the white paper shows the anomaly accelerating in June.

Had anyone ever reviewed the full dataset, the shoddiness of their initial analysis would have been even more clear.

Here’s how the FBI managed to conduct an investigation on two thumb drives without, it appears, ever looking at the second one.

As the chain of custody submitted at trial shows, Jim Baker accepted the thumb drives, then handed them off to Peter Strzok, who then handed them off to Acting Assistant Director of Cyber Eric Sporre, who at first put the thumb drives in his safe, then handed them over to Nate Batty.

Within hours (these logs are UTC), Batty and Hellman started mocking the white paper but also complaining about the “absurd quantity of data.”

Hellman, at least, admitted at trial that he only knows the basics about DNS.

The next day, Batty told Hellman that their supervisor wanted them to write a “brief summary” of what he calls “the DNC report.” Batty appears to have known of Sussmann from other cases and he was informed that Sussmann was in the chain of custody.

In spite of the clear record showing Batty was informed who provided the thumb drives, in 2019, he told Durham that he and Hellman — whose analysis was so shitty — had considered filing a whistleblower complaint because they weren’t told what the documentary record shows he was clearly informed. And Durham thought that was sufficiently credible to stick in his report.

Before writing an analysis of this report, Batty admitted, they should first “plug the thumb drives” in and look at the files before they wrote a summary.

The documentary evidence shows that these guys formed their initial conclusion about the white paper without ever reviewing the data first.

A day later, Curtis Heide texted from Chicago and asked them to upload the thumb drives, plural, so they could start looking at them.

They only uploaded one, the Red Thumb Drive.

That’s clear because when Kyle Steere documented what they had received on October 4, he described that his report is, “a brief summary of the contents of the USB drive,” singular. The contents match what were on the Red Thumb Drive.

Two hours and 16 minutes later, after uploading the Red Drive, Batty asked if he should send the actual thumb drives to Chicago.

48 minutes later, Batty asked Hellman if he had the Blue Thumb Drive.

The chain of custody shows that Batty didn’t send anything on September 22, when he and Hellman were panicking about the missing Blue Thumb Drive. Instead, he put something in storage on October 6, two weeks later. That he put them in storage makes no sense, because when he wrote an Electronic Communication explaining why he was sending the thumb drives to Chicago on October 11 (by that point, 19 days after saying they would send the thumb drives to Chicago that day), he claimed,

Due to case operational tempo, and the need to assess the data at ECOU-1 prior to referring the matter to the [Chicago] division the evidence was not charged into evidence (at the NVRA) until October 6, 2016.

Not a shred of evidence in the available record supports that claim and a great deal shows it to be false.

But he didn’t send the physical thumb drives until October 12, FedEx instead of internal BuMail.

By October 12, the FBI had decided there was nothing to these allegations.

Somewhere along the way, there was some confusion as to whether there was one or two thumb drives. At the time the case ID was added — the case was opened on September 23 — it seems to have been understood there was just one thumb drive.

Batty does seem to have sent two thumb drives, one Red and one Blue, to Chicago after that 20-day delay, though.

At trial on May 23, Alison Sands dramatically pulled two thumb drives — a Red Thumb Drive and a Blue Thumb Drive — out of the evidence envelope where she put them years earlier.

Q. Ms. Sands, I’m showing you what’s been marked for identification as Government’s Exhibit 1. Do you recognize that?

A. Yes.

Q. What is that?

A. This is the la envelope.

Q. Do you know what this envelope contains?

A. Yes, it contains the thumb drives. So I basically took them out of evidence and put it into this envelope.

[snip]

Q. Now, Ms. Sands, do you recall how many thumb drives there were?

A. Yes, there’s two.

Q. Do you recall if they had any particular colors?

A. One is blue and one is red.

On the stand, Sands also introduced Steere’s memo, the one that documented the contents of the Red Thumb Drive. In doing so, though, she falsely claimed (at least per the transcript) that the memo described both thumb drives.

Q. Do you recognize what Government’s 206 is?

A. Yes.

Q. What is that?

A. It is the EC documenting what information was on the thumb drives that were provided.

She also introduced the items included on the Red Thumb Drive, one after another, into evidence.

Except for the 19-page set of text files used for technical analysis.

When prosecutor Brittain Shaw got to that file in Steere’s memo, she tried to move it into evidence, but both Judge Cooper and Sussmann attorney Michael Bosworth noted it was already in evidence.

MS. SHAW: Could we go back to Government’s Exhibit 206, please? Moving down the list —

BY MS. SHAW:

Q. The second item, what is that?

A. It is data that was provided as alleged evidence of these DNS lookup tables.

Q. After number 2, is that the title that was given to the file or is that something you assigned?

A. I believe that’s something we assigned.

Q. Okay.

MS. SHAW: And if I could have Government’s Exhibit 208, please. If you’d just blow that up a little bit. Thank you.

BY MS. SHAW:

Q. And, Ms. Sands, do you recognize what that is?

A. Yes, these are the DNS lookups that I just described.

MS. SHAW: All right. I would move Government’s Exhibit 208 into evidence.

MR. BOSWORTH: It may be —-

THE COURT: I think it’s probably in.

MS. SHAW: All right.

It was already in.

Almost a week earlier, Scott Hellman introduced what he called “a portion” of the data included with the exhibit. It was the 19-page text file of DNS logs that reviewed in the Technical Analysis included on the Red Thumb Drive. He didn’t describe it as one stand-alone document included on the thumb drive. He seemed to imply this was a selection the FBI had made.

Q. And if I could show just to you on your screen what’s been marked Government Exhibit 208. And Agent Hellman, this is about an 18- or 19-page document. But you just see the first page here. Do you recognize this?

A. It appears to be a portion of the technical data that came along with the narrative.

MR. DeFILIPPIS: All right. Your Honor, the government offers Government Exhibit 208.

MR. BERKOWITZ: No objection.

THE COURT: So moved.

Q. And if we look at that first page there, Agent Hellman, what kind of data is this?

A. It appears to be — as far as I can tell, it looks to be — it’s log data. So it’s a log that shows a date and a time, a domain, and an IP address. And, I mean, that’s — just looking at this log, there’s not too much more from that.

Q. And do you understand this to be at least a part of the DNS data that was contained on the thumb drives that I think you testified about earlier?

All the while, he and DeFilippis referred to this as “a part” of the DNS data and referred to the thumb drives, plural.

And that, it appears, may be all the data anyone at the FBI ever analyzed.

Update: I erroneously said there were texts between Batty and Hellman that may have gotten deleted. I’ve corrected that error.

Update: I added details from the Lync files showing Batty provided a claim that conflicts with all public evidence about why he didn’t check the thumb drives into evidence until after the investigation was substantively done.

Update: I’ve updated the table to show what Sussmann shared. Particularly given FBI’s shoddy record-keeping and Durham’s obfuscation, it’s not clear on which drive GX209 was, nor is it clear whether there was a separate set of CSV DNS logs on the Blue Drive and if so how many logs they included.

Doo-Doo Process: John Durham Claims to Know Better than Anthony Trenga and Two Juries

There’s something grotesque and unethical about John Durham’s conduct that has gotten little attention.

After getting his ass handed to him by two juries and one judge, in his report, Durham nevertheless repeated the allegations against Michael Sussmann and Igor Danchenko on which they have been acquitted. While in one discussion of his prosecutorial decisions, Durham described these as “allegations,” in his executive summary and elsewhere, he stated, as fact, that both men had made false or fabricated statements. Worse still, in his efforts to sustain his false statements allegations, Durham himself makes claims that were rebutted or undermined by the trial records.

John Durham lies about press contacts to cover up his failure to investigate exculpatory information

As a reminder, the researchers who found the Alfa Bank anomaly found it organically, and out of a suspicion — later validated by at least three Mueller prosecutions (Paul Manafort, Michael Cohen, and Alex Van der Zwaan) — that Trump and his associates were lying about their ties to Russia, Rodney Joffe shared the Alfa Bank anomaly with Michael Sussmann.

Sussmann definitely packaged up the allegations and asked Fusion GPS what they knew about Alfa Bank. He definitely billed that packaging-up process to Hillary. The campaign definitely approved sharing that information with the NYT.

But then, without the consent of the campaign, Sussmann blew their big story, by sharing the allegations with the FBI.

Sussmann claimed that he did so because, as a former cybersecurity prosecutor, he knew that if DOJ were going to have a chance to investigate these allegations, they would need to do so, covertly, before the allegations went public. He claimed to have done so because he had been in the position where a big allegation broke before law enforcement had an opportunity to investigate. As proof to support this claim, Sussmann noted — and over the course of months, forced Durham to collect the heretofore ignored evidence proving — that he helped the FBI kill the NYT story the campaign had approved, in the process making it clear that he had to ask someone (Joffe’s) consent to do so.

Because the FBI used overt means to investigate these allegations — a violation of DOJ pre-election guidelines that Durham doesn’t mention in his screed about the FBI — a seeming response to NYT’s efforts which was actually a response to the FBI bigfooting helped to fuel the story. The record shows, and Durham’s most aggressive prosecutor conceded at closing arguments, that the FBI fucked up this investigation in other ways, yet more FBI shortcomings that Durham doesn’t mention in his screed.

After the election, at a time when Sussmann no longer worked for Hillary, Joffe asked him to try to get the CIA to look at these anomalies. Before that meeting, Sussmann told one of his CIA interlocutors that he did have a client (something Sussmann also told to Congress), but described that his client wanted anonymity because of concerns about Russian retaliation. In the meeting where he passed off his thumb drives, he said he was not representing a client.

Those are the competing signals on which Durham obtained a criminal indictment and did so before having consulted significant swaths of directly relevant evidence: a question about how Sussmann intended those words, “represent” and “on behalf of,” a problem with the indictment that Sussmann identified immediately.

Here’s how Durham presented the Sussmann charges in the Executive Summary (all bold in this post my own).

The Office also investigated the actions of Perkins Coie attorney Michael Sussmann and others in connection with Sussmann’s provision of data and “white papers” to FBI General Counsel James Baker purporting to show that there existed a covert communications channel between the Trump Organization and a Russia-based bank called Alfa Bank. As set forth in Section IV.E.1.c.iii, in doing so he represented to Baker by text message and in person that he was acting on his own and was not representing any client or company in providing the information to the FBI. Our investigation showed that, in point of fact, these representations to Baker were false in that Sussmann was representing the Clinton campaign (as evidenced by, among other things, his law firm’s billing records and internal communications). 42 In addition, Sussmann was representing a second client, a technology executive named Rodney Joffe (as evidenced by various written communications, Sussmann’s subsequent congressional testimony, and other records).

Cyber experts from the FBI examined the materials given to Baker and concluded that they did not establish what Sussmann claimed they showed. At a later time, Sussmann made a separate presentation regarding the Alfa Bank allegations to another U.S. government agency and it too concluded that the materials did not show what Sussmann claimed. In connection with that second presentation, Sussmann made a similar false statement to that agency, claiming that he was not providing the information on behalf of any client.

[snip]

As explained in Section IV.E. l .c.i, the evidence collected by the Office also demonstrated that, prior to providing the unfounded Alfa bank claims to the FBI, Sussmann and Fusion GPS (the Clinton campaign’s opposition research firm) had provided the same information to various news organizations and were pressing reporters to write articles about the alleged secret communications channel. Moreover, during his September 2016 meeting at the FBI, Sussmann told Baker that an unnamed news outlet was in possession of the information and would soon publish a story about it. The disclosure of the media’s involvement caused the FBI to contact the news outlet whose name was eventually provided by Sussmann in the hope of delaying any public reporting on the subject. In doing so it confirmed for the New York Times that the FBI was looking into the matter. On October 31, 2016, less than two weeks before the election, the New York Times and others published articles on the Alfa Bank matter and the Clinton campaign issued tweets and public statements on the allegations of a secret channel of communications being used by the Trump Organization and a Russian bank – allegations that had been provided to the media and the FBI by Fusion GPS and Sussmann, both of whom were working for the Clinton campaign. [my emphasis; link]

And here’s how Durham presented his prosecutorial decision.

Accordingly, Sussmann’s conduct supports the inference that his representations to both the FBI and the CIA that he was not there on behalf of a client reflect attempts to conceal the role of certain clients, namely the Clinton campaign and Joffe, in Sussmann’s work. Such evidence also further supports the inference that Sussmann’s false statements to two different agencies were not a mistake or misunderstanding but, rather, a deliberate effort to conceal the involvement of specific clients in his delivery of data and documents to the FBI and CIA. [link]

[snip]

First, and as noted above, we identified certain statements that Sussmann made to the FBI and the CIA that the investigation revealed were false. Given the seriousness of the false statement and its effect on the FBI’s investigation, a federal Grand Jury found probable cause to believe that Sussmann had lied to the FBI and charged him with making a false statement to the Bureau, in violation of 18 U.S.C. § 1001. 1675 Ultimately, after a two-week trial, a jury acquitted Sussmann of the false statement charge.

We also considered whether any criminal actions were taken by other persons or entities in furtherance of Sussmann’s false statement to the FBI. The evidence gathered in the investigation did not establish that any such actions were taken. [link]

As noted above, just in these two passages Durham repeats, five times, that Sussmann made false statements, even though he never charged Sussmann with making false statements to the CIA and even though a jury found Sussmann not guilty of making false statements to the FBI (Durham also misrepresents that the billing evidence presented at trial, which didn’t show Sussmann billing Hillary for the meeting with Baker). This is a gross assault on due process, to accuse a man anew of the charges for which he has already been acquitted.

Durham claims, in explaining why he charged this flimsy case, that the [alleged] “false statement” was serious and had what he insinuates was a major effect on the FBI investigation. Remember: When Durham made this prosecutorial decision, he still had never bothered to check two Jim Baker phones in DOJ IG possession (one of which he had learned about years earlier), texts in Baker’s iCloud account that complicated his case, and documents in DOJ IG’s possession showing that the FBI understood — whether true or not — that the Alfa Bank allegation came from the DNC. Indeed, Durham obscures that while those Baker texts did show that Sussmann had conveyed such a claim by text, those belatedly discovered texts undermined Durham’s case at trial that Sussmann had repeated the claim in person (without providing any clarity about how Sussmann meant “on behalf of”). And one possible explanation for the acquittal is that the jury found that Sussmann didn’t repeat his claim that he was representing no client at the face-to-face meeting with Baker. Certainly, the record showed that whatever memory Baker had of that meeting had been selectively reconstructed with Durham’s help to match the story he needed to sustain a certain narrative, one that didn’t line up with the documentary evidence.

And evidence presented at trial completely undermined the claim that this was a material false claim, the reason Durham made the claim about seriousness in the first place. Sussmann’s attorneys showed that only the threat of prosecution altered FBI Agent Ryan Gaynor’s memory — backed by his contemporaneous notes — that, in fact, he always understood that the allegation came from a DNC attorney. Durham’s star FBI witness admitted on cross-examination that he developed his belief that a reference to the DNC in his colleague’s Lync texts was just a typo after prosecutor Andrew DeFilippis coached him on that point. There were other Lync texts recording a belief that the tip had come from the DNC. Several people at the FBI conducted this investigation as if they understood it to be an investigation of a DNC tip, which likely contributed to the errors the FBI made in their investigation. Durham claims the opposite.

Durham seems to hang his claim about seriousness on his own two inferences — one on top of another — that Sussmann had to have been deliberately hiding something, even though evidence presented at trial, most notably that Sussmann offered up information about having a client with both the FBI and CIA, undermined those inferences. As noted, Durham found April Lorenzen’s inferences as a private citizen to be potentially criminal, but he puts the weight of DOJ behind inferences that proved less robust than Lorenzen’s own.

Particularly given the fact that Durham only belatedly, months after indicting Sussmann, discovered evidence corroborating Sussmann’s explanation for reaching out to Baker — that he helped the FBI kill the NYT story the campaign very much wanted published — the Special Counsel’s misrepresentation of the timeline of press contacts is particularly dishonest. In response to an Eric Lichtblau email asking for more details about Russian hacking, Sussmann provided the tip. Durham’s claim that Sussmann “eventually provided” Lichtblau’s name falsely suggests it took more than a few days to make this happen. After that, Sussmann didn’t push the Alfa Bank story until it got published via other channels. For its part, Fusion was pushing this story weeks later, after April Lorenzen’s separately posted data had renewed questions about it. This muddled timeline repeats the outlandish claim Durham prosecutor Brittain Shaw made in opening arguments that an article most Democrats view as profoundly damaging was precisely the October Surprise Hillary wanted. But in this final report, it’s wildly dishonest spin to cover up the fact that Durham didn’t learn a key detail — that Sussmann helped kill the NYT story — until after charging him.

All the more so because telling the truth about Sussmann’s willingness to help the FBI kill the story suggests Sussmann’s version of the story is far more credible than Durham’s.

How Durham avoids admitting he charged a “literally true” statement as false

If you read nothing more than John Durham’s Executive Summary, you would never learn that John Durham falsely led the press to believe that Danchenko attributed the pee tape allegation to someone with distant ties to Hillary rather than the two Russians who admitted they went out drinking with Danchenko during the period in question. More importantly, you would never learn that Durham created that false pee tape panic out of what Judge Anthony Trenga ruled was a literally true statement.

This section of the Executive Summary, which doesn’t mention any prosecutorial decision regarding Dolan, is completely divorced from the prosecutorial decision it pertains to.

During the relevant time period, Danchenko maintained a relationship with Charles Dolan, a Virginia-based public relations professional who had previously held multiple positions and roles in the Democratic National Committee (“DNC”) and the Democratic Party. In his role as a public relations professional, Dolan focused much of his career interacting with Eurasian clients, with a particular focus on Russia. As described in Section IV.D. l.d.ii, Dolan previously conducted business with the Russian Federation and maintained relationships with several key Russian government officials, including Dimitry Peskov, the powerful Press Secretary of the Russian Presidential Administration. A number of these Russian government officials with whom Dolan maintained a relationship – and was in contact with at the time Danchenko was collecting information for Steele – would later appear in the Dossier.

In the summer and fall of 2016, at the time Danchenko was collecting information for Steele, Dolan traveled to Moscow, as did Danchenko, in connection with a business conference. As discussed in Section IV.D. l .d.iii, the business conference was held at the Ritz Carlton Moscow, which, according to the Steele Reports, was allegedly the site of salacious sexual conduct on the part of Trump. Danchenko would later inform the FBI that he learned of these allegations through Ritz Carlton staff members. Our investigation, however, revealed that it was Dolan, not Danchenko, who actually interacted with the hotel staff identified in the Steele Reports, so between the two, Dolan appears the more likely source of the allegations.

As discussed in Section IV.D. l .d.vi, our investigation also uncovered that Dolan was the definitive source for at least one allegation in the Steele Reports. This allegation, contained in Steele Report 2016/105, concerned the circumstances surrounding the resignation of Paul Manafort from the Trump campaign. When interviewed by the Office, Dolan admitted that he fabricated the allegation about Manafort that appeared in the Steele Report. Our investigation also revealed that, in some instances, Dolan independently received other information strikingly similar to allegations that would later appear in the Steele Reports. Nevertheless, when interviewed by the FBI, Danchenko denied that Dolan was a source for any information in the Steele Reports. [link]

When Durham gets around to describing his decision to charge Igor Danchenko in the Executive Summary, he makes no mention that one of those charges pertained to Dolan. Likewise, he makes no mention that Trenga threw out that charge before sending it to a jury.

Perhaps the most damning allegation in the Steele Dossier reports was Company Report 2016/95, which Steele attributed to “Source E,” one of Danchenko’s supposed sub-sources. This report, portions of which were included in each of the four Page FISA applications, contributed to the public narrative of Trump’s conspiring and colluding with Russian officials. As discussed in Section IV.D. l.f, Danchenko’s alleged source for the information (Source E) was an individual by the name of Sergei Millian who was the president of the Russian-American Chamber of Commerce in New York City and a public Trump supporter. The evidence uncovered by the Office showed that Danchenko never spoke with Sergei Millian and simply fabricated the allegations that he attributed to Millian.

When interviewed by Crossfire Hurricane investigators in late January 2017, Danchenko said that Source E in Report 2016/95 sounded as though it was Sergei Millian. As discussed in Section IV.D.1.f.i, Danchenko stated that he never actually met Millian. Instead, he said that in late-July 2016 he received an anonymous call from a person who did not identify himself, but who spoke with a Russian accent. Danchenko further explained that he thought it might have been Millian – someone Danchenko previously had emailed twice and received no response – after watching a YouTube video of Millian speaking. Thus, as detailed in Section IV.D. l .f.i, the total support for the Source E information contained in Steele Report 2016/95 is a purported anonymous call from someone Danchenko had never met or spoken to but who he believed might be Sergei Millian – a Trump supporter – based on his listening to a YouTube video of Millian. Unfortunately, the investigation revealed that, instead of taking even basic steps, such as securing telephone call records for either Danchenko or Millian to investigate Danchenko’ s hard-to-believe story about Millian, the Crossfire Hurricane investigators appear to have chosen to ignore this and other red flags concerning Danchenko’s credibility, as well as Steele’s.41

41 As noted in Section IV.D.2.f, a federal grand jury in the Eastern District of Virginia returned a five-count indictment against Danchenko charging him with making false statements. A trial jury, however, found that the evidence was not sufficient to prove his guilt beyond a reasonable doubt. See United States v. Igor Danchenko, 21-CR-245 (E.D. Va.). [link]

That’s what you’d learn from the Executive Summary.

It’s only in the body of his report where Durham reveals the Dolan-related charge and Judge Trenga’s finding that the statement he charged as a false statement was literally true. I’d like to congratulate Durham for here describing the false statements claims as “allegations” made by a grand jury, as distinct from the re-accusation of false statements made against Sussmann or his claim that Danchenko “fabricated the allegations” attributed to Millian. But even there he misrepresents the charges.

In November 2021, a grand jury sitting in the Eastern District of Virginia returned an indictment (“Indictment”) charging Igor Danchenko with five counts of making false statements to the FBI. The false statements, which were made during Danchenko’s time as an FBI CHS, related to his role as Steele’s primary sub-source for the Reports.

First, the Indictment alleged that Danchenko stated falsely that he had never communicated with Charles Dolan about any allegations contained in the Steele Reports. As discussed above, the documentary evidence clearly showed that Dolan was the source for at least one allegation in the Steele Reports. Specifically, that information concerned Manafort’s resignation as Trump’s campaign manager, an allegation Dolan told Danchenko that he sourced from a “GOP friend” but that he told our investigators was something he made up. 1384 The allegations regarding Dolan formed the basis of Count One of the Indictment.

Second, the Indictment alleged that Danchenko falsely stated that, in or about late July 2016, he received an anonymous phone call from an individual whom Danchenko believed to be Sergei Millian. Danchenko also falsely stated that, during this phone call, (i) the person he believed to be Millian informed him, in part, about information that the Steele Reports later described as demonstrating a well-developed “conspiracy of cooperation” between the Trump campaign and Russian officials, and (ii) Danchenko and Millian agreed to meet in New York. The available evidence was sufficient to prove beyond a reasonable doubt that Danchenko fabricated these facts regarding Millian. The allegations regarding Millian formed the bases for Counts Two through Five of the Indictment.

Following a one-week trial, and before the case went to the jury, the Court dismissed Count One of the Indictment pursuant to Federal Rule of Criminal Procedure 29. The Court held that Danchenko’s statement to the FBI regarding Dolan, i.e., that he [Danchenko] never “talked to [Dolan] about anything that showed up in the dossier” was “literally true” because, in fact, the information about Manafort was exchanged over email rather than in an actual verbal conversation. The Court denied Danchenko’s Rule 29 motion to dismiss related to the remaining counts of the Indictment. Following two days of deliberations, the jury concluded that the case had not been proven beyond a reasonable doubt.

In determining whether to bring criminal charges against Danchenko, the Office expected to be able to introduce additional evidence against Danchenko that supported the charged crimes. Thus, prior to trial, the Office moved in limine to introduce certain evidence as direct evidence of the charged crimes. Alternatively, the Office moved to admit the evidence as “other act” evidence pursuant to Federal Rule of Evidence 404(b) to prove Danchenko’ s motive, intent, plan and absence of mistake or accident. In particular, the Office sought permission to introduce evidence of:

(1) Danchenko’ s uncharged false statements to the FBI regarding his purported receipt of information reflecting Trump’s alleged salacious sexual activity at the Ritz Carlton Hotel in Moscow. In particular, the Office planned to call as a witness the German-national general manager of the Ritz Carlton, identified in the Steele Report 2016/080 as “Source E.” The Office expected the general manager would testify that he (i) had no recollection of speaking with Danchenko in June 2016 or at any time, (ii) had no knowledge of the allegations set forth in the Steele Report before their appearance in the media, and (iii) never discussed such allegations with Danchenko or any staff member at the hotel;

(2) Danchenko’s uncharged false statements to the FBI reflecting the fact that he never informed friends, associates, and/or sources that he worked for Orbis or Steele and that “you [the FBI] are the first people he’s told.” In fact, the evidence revealed that Danchenko on multiple occasions communicated and emailed with, among others, Dolan regarding his work for Steele and Orbis, thus potentially opening the door to the receipt and dissemination of Russian disinformation; and

(3) Danchenko’s email to a former employer in which Danchenko advised the employer, when necessary, to fabricate sources of information. Specifically, on February 24, 2016, just months before Danchenko began collecting information for the Steele Reports, the employer asked Danchenko to review a report that the employer’s company had prepared. Danchenko emailed the employer with certain recommendations to improve the report. One of those recommendations was the following:

Emphasize sources. Make them bold of CAPITALISED [sic]. The more sources the better. If you lack them, use oneself as a source ([Location redacted]-Washington-based businessman” or whatever) to save the situation and make it look a bit better. 1385

Danchenko’s advice that he attach multiple sources to information and obscure one’s own role as a source for information was consistent with Danchenko’s alleged false statements in which he denied or fabricated the roles of sources in the Steele Reports.

The Court ruled, however, that the evidence described above was inadmissible at trial. The prosecution was forced to then proceed without the benefit of what it believed in good faith was powerful, admissible evidence under Rule 404(6) of the Federal Rules of Evidence.

In reality, the question Danchenko answered about Dolan was an attempt to learn whether Dolan could have been a direct source to Steele, not to Danchenko. And Danchenko didn’t entirely deny talking to Dolan about such issues. He said they talked about “related issues perhaps but no, no, no, nothing specific.” One of the FBI Agents who tried to open an investigation into Dolan relied on the statements Danchenko did make, so it’s not like anything Danchenko said impeded that investigation.

Meanwhile, Durham’s description of the acquitted false statements against Millian conflates, as he repeatedly did during the prosecution, what Danchenko told the FBI he told Christopher Steele, and what showed up in the dossier, which Danchenko had no hand in writing. Danchenko said that some of the allegations in the dossier didn’t come from him — including the claim of conspiracy (and lots of FBI Agents have been disciplined because they didn’t pass on this detail to the FISA Court). What Danchenko told the FBI was that the caller had said there was an exchange of information with the Kremlin (which, in fact, Mueller’s investigation proved, there already had been!), but that there was, “nothing bad about it,” all of which (as Danchenko’s team made clear at trial) is utterly consistent with other things Millian was saying at the time. The alleged lie Danchenko told is that he believed at the time (in July 2016) that the caller was Millian. Also, Durham claims that Danchenko said he made plans to meet in New York; he doesn’t note that Danchenko said those were tentative plans. In other words, Durham here misrepresents what Danchenko actually said! Durham is the fabricator here, not Danchenko.

Having grossly overstated what the charge against Danchenko was, Durham claims that, “The available evidence was sufficient to prove beyond a reasonable doubt that Danchenko fabricated these facts regarding Millian.”

That’s why we have juries, buddy! No, there was not. Nuh uh.

For some reason, Durham feels the need to explain why he got his ass handed to him even though, he’s sure, he had enough evidence in hand to charge Danchenko.  He blames Judge Trenga’s exclusion of three pieces of evidence about uncharged conduct (here’s my post on that ruling and here’s Trenga’s order). Among the three pieces of evidence he claims he relied on when making a prosecutorial decision in November 2021 is an interview with the former General Manager of the Ritz that only happened in August 2022 (the indictment relies on Dolan and one of Dolan’s colleagues for that claim, not the Manager himself). At least as described, Durham would have needed a time machine for the GM’s testimony to have factored in his prosecutorial decision.

Plus, the claim that those three pieces of evidence — none of which directly pertain to Millian! — were what Durham relied on to make a prosecutorial decision in November 2021 conflicts with what his team said in a filing last September. Back then, they said certain emails from Millian were the most probative proof against Danchenko.

The July 2020 emails between Millian and Zlodorev also bear circumstantial guarantees of trustworthiness. Again, in July 2020, Millian had no motive to lie to Zlodorev.

Third, whether the statements relate to a material fact. The Government submits that this factor is not in dispute.

Fourth, whether the statements are the most probative evidence on the point. Millian’s emails written contemporaneous to the events at issue are undoubtedly the most probative evidence to support the fact that Millian had never met or spoken with the defendant.

Trenga decided those emails were inadmissible hearsay.

Durham probably points to three other pieces of evidence — one obtained nine months after the indictment and all unrelated to Millian — because to admit that his case relied on inadmissible hearsay would require Durham to admit something still more embarrassing. Those hearsay emails from Millian were only the most probative evidence because Durham insanely charged Danchenko relying on what Millian had said on his Twitter account.

Only three months after indicting Danchenko on November 3, 2021 did Durham get around to interviewing Millian.

1085 OSC Report of Interview of Sergei Millian on Feb. 5, 2022 at 1.

His team did that interview remotely; Durham didn’t even have direct proof that Millian was in Dubai when he did that interview.

The Government has conducted a virtual interview of Millian. Based on representations from counsel, the Government believes that Millian was located in Dubai at the time of the interview.

[snip]

The Government has also been in contact with Millian’s counsel about the possibility of his testimony at trial. Nonetheless, despite its best efforts, the Government’s attempts to secure Millian’s voluntary testimony have been unsuccessful. Moreover, counsel for Millian would not accept service of a trial subpoena and advised that he does not know Millian’s address in order to effect service abroad.

[snip]

In the case of a U.S. national residing in a foreign country, 28 U.S.C. § 1783 allows for the service of a subpoena on a U.S. national residing abroad. Here, the Government has made substantial and repeated efforts to secure Millian’s voluntary testimony. When those efforts failed, the Government attempted to serve a subpoena on Millian’s counsel who advised that he was not authorized to accept service on behalf of Mr. Millian. The Government, not being aware of Millian’s exact location or address, asked counsel to provide Millian’s address so that service of a subpoena could be effectuated pursuant to 28 U.S.C. § 1783. Counsel stated that he does not know Millian’s address. In any event, even if the Government had been able to locate Millian, it appears unlikely that Millian would comply with the subpoena and travel to the United States to testify.

And a week after that interview, Durham accused Millian (though he didn’t name him) of “misrepresent[ing] facts” when he claimed “they” were spying on the White House on the very same Twitter account on which Durham relied to obtain the indictment.

One day later, Millian’s Twitter account revealed that Millian told the Trump White House who was “working against them” long before it was publicly known (Durham made no mention of these Tweets when he tried to claim that emails Millian sent in 2020 could be considered reliable).

In other words, abundant evidence suggests that Durham indicted Danchenko without doing the most basic step first, testing Millian’s reliability. By the time he got to trial, Millian — who like Danchenko, had been the subject of a counterintelligence investigation, and who unlike Danchenko had been frolicking in St. Petersburg during 2016 with Oleg Deripaska, someone who had a key role in Russia’s interference in 2016 — proved more than unreliable.

Durham makes no mention of that truly humiliating prosecutorial misstep, an embarrassment set in motion when he decided to indict a man based on claims made on Twitter, in his entire Report.

And yet not only does Durham refuse to state clearly, in his description of the prosecutorial decision, that Danchenko was acquitted of the charges against him, in his Executive Summary he falsely claims that he has proven Danchenko fabricated the claim. Worse still, Durham complains about investigative steps the Crossfire Hurricane investigators appear to have taken (which are different from the Mueller ones, who obtained abundant records about Millian’s communications), but he himself focused exclusively on disproving a telephony call between the two men, in spite of evidence (including of the contacts setting up a meeting between Millian and George Papadopoulos in precisely the same period) that any such call would have happened over the Internet.

Durham does this while making it clear that one reason he charged the Millian counts is because the allegation attributed to Millian, “contributed to the public narrative of Trump’s conspiring and colluding with Russian officials.” That’s only a crime if someone lied to the FBI about it, and Durham didn’t prove his case that Danchenko did.

It should not be left to me, almost a week after this report got released, to point out something grotesque. Durham is still claiming that these men lied, even though two juries told him he didn’t have the evidence to prove that case. That’s not just a grave abuse of Michael Sussmann and Igor Dancheko’s due process, but it exhibits profound disrespect to the service of the jurors.

After both his acquittals, Durham issued a statement claiming, “we respect the jury’s decision and thank them for their service.” And then he wrote a 300-page report telling them he knew better.

“Ridiculous:” Durham’s Failed Clinton Conspiracy Theory

I put together a very rough list of the interviews that John Durham included in his Report and a table showing the organization of his report.

I’d like to describe what appears to have happened with the investigation. Remember a few things about this list: It won’t include everything. Even just among witnesses who testified at trial, Durham was known to have done initial interviews, then threatened them with prosecution, in an often successful attempt to shade their testimony (see this post for an example). With others, Durham is being affirmatively misleading by stating that people who did appear before the grand jury were unwilling to be interviewed.

This list is just a list of interviews that actually support his narrative.

2019: Manufacturing a new origin story

As noted, most of the junkets that Durham and Barr did in the first year of the investigation don’t appear. The only overseas investigative steps noted in 2019 include the Legal Attaché personnel in London and the two Australian sources, Alexander Downer and Erika Thompson (described as Australian Diplomat-1), behind the original tip on George Papadopoulos. Durham did two separate interviews with the Australians, done on the same day, months before the DOJ IG Report determined the investigation was properly predicated.

Durham relies heavily on Downer, instead of Thompson, and claims to have discovered a conflict in their two accounts.

The Australian account reflects that two meetings of a casual nature took place with Papadopoulos. 215 These meetings were documented by Downer on May 11, 2016 and by Australian Diplomat-I later in the month. 216 Both diplomats advised that prior to the Spring of 2016, Papadopoulos was unknown to them. 217 Notably, the information in Paragraph Five does not include any mention of the hacking ofthe DNC, the Russians being in possession of emails, or the public release of any emails. In addition, when interviewed by the Office, Downer stated that he would have characterized the statements made by Papadopoulos differently than Australian Diplomat-1 did in Paragraph 5. According to Downer, Papadopoulos made no mention of Clinton emails, dirt or any specific approach by the Russian government to the Trump campaign team with an offer or suggestion of providing assistance. Rather, Downer’s recollection was that Papadopoulos simply stated “the Russians have information” and that was all. 218

As recounted to the FBI on August 2, 2016, by Australian Diplomat-1, the substance of Paragraph Five was written in a “purposely vague” way. 219 This was done because Papadopoulos left a number of things unexplained and “did not say he had direct contact with the Russians.” 220 The impression Papadopoulos made on the Australian diplomats was wide ranging. On the one hand, he “had an inflated sense of self,” was “insecure,” and was “trying to impress.” 221 On the other hand, he was “a nice guy,” was “not negative,” and “did not name drop.” 222

Downer noted that he

was impressed Papadopoulos acknowledged his lack of expertise and felt the response was uncommon for someone of Papadopoulos’ age, political experience and for someone thrust into the spotlight overnight. Many people in a similar position would represent themselves differently and [Downer] would have sniffed them out. If [Downer] believed Papadopoulos was a fraud [he] would not have recorded and reported on the meeting [he] had with Papadopoulos. 223

Downer also said that he “did not get the sense Papadopoulos was the middle-man to coordinate with the Russians.” 224 The Australian diplomats would later inform the FBI, and subsequently the Office, that the impetus for passing the Paragraph Five information in late-July was the public release by WikiLeaks ( on July 22, 2016) of email communications that had been hacked from the DNC servers. 225

215 We note there is an inconsistency in the statements given by Australian Diplomat-1 and former-High Commissioner Downer to the Crossfire Hurricane interviewers in August 2016 and what they told the Office when interviewed in October 2019. Australian Diplomat-1 and Downer were interviewed together in August 2016, and, according to the FD-302 prepared afterward by Supervisory Special Agent- 1, Papadopoulos made the statements about the Russians during the May 6, 2016 introductory meeting when he met only with Australian Diplomat-1. When the two diplomats were interviewed separately by the Office in October 2019, investigators were advised that Papadopoulos made the statements in front of both Australian Diplomat-1 and Downer during the second meeting on May 10, 2016.

216 The meetings with Papadopoulos took place on May 6 and 10, 2016. Australia 302 at 1- 2. The Australian diplomats documented the meetings in two cables dated May 11 and May 16, 2016; OSC Report of Interview ofAlexander Downer on Oct. 9, 2019 at 2; OSC Report of Interview ofAustralian Diplomat-1 on Oct. 9, 2019 at 3.

217 OSC Report of Interview of Alexander Downer on Oct. 09, 2019 at 1; OSC Report of Interview of Australian Diplomat-I on Oct. 09, 2019 at 1-2.

218 OSC Report of Interview of Alexander Downer on Oct. 09, 2019 at 2 (and related field notes); Downer also is reported to have stated in an interview that in talking with Papadopoulos there was “no suggestion that there was collusion between Donald Trump or Donald Trump’s campaign and the Russians.” Brooke Singman, Diplomat Who Helped Launch Russia Probe Speaks Out, Defends Role, Fox News (May 10, 2019), https://www.foxnews.com/politics/forrner-ausralian-diplomat-alexander-downer-defendswork-pushes-back-on-claim-he-tried-to-trap-papadopoulos. 219 Australia 302 at 2.

There’s no conflict.

Papadopoulos appears to have told the story about advance notice of Russia’s help to Thompson twice, once on May 6 and again, with Downer present, on May 10. She explains that not everything Papadopoulos said made it into her report. It’s likely Papadopoulos said more at the first meeting (I believe the record reflects that he drank more at the first meeting).

But by relying on Downer instead of Thompson, Durham claims that there was less to the tip than Thompson appears to have taken from it.

Having manufactured an alternate story about the initial predication, it’s no wonder Durham pushed Michael Horowitz not to say the investigation was fully predicated.

Durham also appears to have investigated why it took so long for the Steele reports to make their way from New York to DC. This is a fairly remarkable and sustained part of his report, because Durham is basically complaining that the pee tape report wasn’t immediately taken seriously.

Finally, from the very first year, Durham started doing investigations into the treatment of the Clinton Foundation investigation. As I have noted, his report leaves out really important details of that investigation: that agents who exhibited every bit as much bias as Durham finds in Peter Strzok, Lisa Page, or Kevin Clinesmith were running a key informant on the investigation, something no one has alleged happened with investigations into Trump’s associates.

That silence is all the more important given how Durham compares the predication of the Crossfire Hurricane investigation with that of Clinton Foundation, which relied in significant part on the Steve Bannon-linked Clinton Cash book which was every bit as shoddy as the Christopher Steele dossier, with a much more aggressive bias.

Once again, the investigative actions taken by FBI Headquarters in the Foundation matters contrast with those taken in Crossfire Hurricane. As an initial matter, the NYFO and WFO investigations appear to have been opened as preliminary investigations due to the political sensitivity and their reliance on unvetted hearsay information (the Clinton Cash book) and CHS reporting. 388 By contrast, the Crossfire Hurricane investigation was immediately opened as a full investigation despite the fact that it was similarly predicated on unvetted hearsay information. Furthermore, while the Department appears to have had legitimate concerns about the Foundation investigation occurring so close to a presidential election, it does not appear that similar concerns were expressed by the Department or FBI regarding the Crossfire Hurricane investigation. Indeed, in short order after opening the Crossfire Hurricane file and its four subfiles, the FBI was having one of its long-time CHSs meet not with just one Trump campaign associate, but meet and record conversations with three such insiders. And a little more than a month after opening the Crossfire Hurricane file on Page, a “senior U.S. law enforcement official” was publicly reported as confirming for Michael Isikoff and Yahoo! News that the FBI had Page on its radar screen. 389

Durham says two Australians who had no stake in the election (and who likely didn’t want to create a row with a major political candidate) have the same credibility as a long term political hoaxster paid by Trump’s ultimate campaign manager.

And in making this comparison, Durham doesn’t consider the urgency of the ongoing Russian attack on democracy (something that he generally ignores throughout the report). The underlying crime behind the Papadopoulos tip was potential (and real, in the case of both Paul Manafort and Roger Stone) ongoing involvement in Russia’s efforts to interfere in the election.

2020: Laying the ground work for the Clinton conspiracy

Early in 2020, Barr made Durham a Special Counsel, giving him authority to use a grand jury.

The very next day, he met with Jim Baker.

In cross-examination at the Sussmann trial, Baker lawyer Sean Berkowitz situated this meeting and another, in June 2020, when Baker’s story about the Sussmann meeting was still radically different than the one he told at trial, in terms of a leak investigation into Baker that had just closed. Baker had recently been criminally investigated by Durham, he knew that Durham would come after him again on the Russian investigation, and that February 2020 meeting was the first after the close of the leak investigation.

Q. So you know what it’s like to be under criminal investigation. Right?

A. Yes.

Q. You know what it’s like to be under criminal investigation by this man?

A. Yes.

Q. That’s Mr. Durham?

A. Yes.

Q. In fact, sir, in March of 2017 Mr. Durham was appointed by the Department of Justice to conduct a criminal investigation of the unauthorized disclosure of classified information to a reporter. Correct?

A. I don’t remember exactly when he was appointed, but that’s roughly correct based on my recollection of the timeframe.

Q. And you were a subject of that investigation?

A. I was never told that I was a subject.

Q. Is it fair to say that your lawyer refused to let you answer questions before Congress because you were under investigation?

A. He did object to certain questions — certain questions — because I was under investigation. That’s correct.

Q. Under criminal investigation. Right?

A. It was a criminal investigation was my understanding, yes.

Q. And you refused to answer those questions on the gounds that it might incriminate you?

A. I refused to answer those questions on advice of counsel, and it was a voluntary interview so I could refuse to answer any questions that I didn’t want to answer.

Q. And the investigation took place between 2017 and 2018. correct:

A. Say that again.

Q. The investigation took place between 2017 and 2019. correct?

A. I think it was not closed until 2020 by the Department.

[snip]

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

A. For this matter?

Q. Yes.

A. Yes.

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

A. Concerned about what?

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

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

[snip]

Q. It’s the first time you saw him after you were the subject of the criminal investigation by him?

A. Again, I was never told that I was a subject.

Q. Was that the first time?

A. Yeah, I think that was the first time.

In June 2020, Baker’s story started to evolve until ultimately, he testified, claiming 100% certainty about a story that had changed at least four times, to precisely the story Durham would want him to.

Most of the early 2020 interviews relied on by Durham in his report pertain to two topics: His reinvestigation of how the Clinton Foundation investigation proceeded, and his pursuit of a claim that Hillary framed Donald Trump (marked as “Russian intelligence” in the timeline).

Starting in June 2020, Durham appears to have started focusing on Igor Danchenko, burning him as a source, reviewing the long-dormant counterintelligence investigation into him, and focusing the same kind of pressure on Danchenko handler Kevin Helson (whom Durham seems to have referred for further investigation, on a date he doesn’t provide, for his handling of Danchenko). In July 2020, Barr provided Lindsey Graham the interview transcripts for Danchenko, which would lead to (or provide the excuse for) Danchenko’s exposure. In September 2020, the Senate Judiciary Committee would stage a FISA hearing to expose Danchenko’s past counterintelligence investigation.

None of these were effective investigative steps. Most witnesses didn’t testify at trial, and the one who did — Helson — was a devastating witness against Durham’s case (which may be why he was referred for further investigation). Those investigative steps did make Danchenko far more insecure, both legally and financially.

On September 29, John Ratcliffe would also share the report and, a week later, the underlying intelligence, around which Durham would build his Clinton conspiracy theory: A Russian intelligence Report that Hillary’s complaints about Trump’s pro-Russian bias stemmed from an attempt to cover up her email scandal and not from real concern about Russia or frustration with being victimized by a nation-state hack during an election.

On October 19, after Nora Dannehy disrupted Durham’s plan to release an initial report before the election, Barr made him Special Counsel so he could stick around for two more years to try to build the case he hadn’t done by 2020.

One of the most telling things about Durham’s actions in 2020 is that he didn’t do any of the ground work he needed to do to investigate the accusations he would make in late 2021. His primary work on the Alfa Bank case was making Danchenko far, far more vulnerable. He records virtually no obvious investigative work on the Alfa Bank allegations in 2020. He did little work on the dossier allegations. Some key investigative steps — getting a technical review of the Alfa Bank allegation and trying to secure Sergei Millian’s make-or-break testimony — waited until 2022, well after he had actually indicted these cases.

2021: Preparing actual indictments to hang failed conspiracy theories on

And it’s not just those two indictments Durham neglected in 2020. Here’s something Carter Page should think seriously about: John Durham did not do the investigation into the problems with his FISA application until the statutes of limitation started to expire in 2021. Given that investigative history, it’s fairly clear that Durham was never going to charge FBI agents in conjunction with those applications. Never. He had other priorities.

Instead, in 2021, he started making belated attempts to substantiate his Clinton conspiracy, with interviews to set up Charles Dolan as a witness.

Durham did no apparent interviews into Sergei Millian in 2021.

He did begin the effort — one paralleled and assisted by Alfa Bank lawsuit against the researchers in question, which to a DC judge seemed,”almost like they were written by the same people in some way,” — to spin the research into DNS anomalies into a deliberate plan by Hillary’s team.

In Durham’s investigations, however, there were obvious basic investigative failures. Durham didn’t interview people from Cendyn and Listrak until after the Sussmann indictment (and in the latter case, it’s not clear whether Durham spoke to anyone authoritative or even got the name of all the people interviewed).

I’ve already laid out how Durham didn’t even ask Michael Horowitz for relevant evidence until after the indictment. It was several months later before he asked Jim Baker to check his iCloud for the exculpatory communications that Sussmann correctly predicted would be there.

Durham didn’t interview Sergei Millian — and even then, he only did so remotely, with no agreement he would testify at trial — until February 2022, three months after indicting Danchenko.

These indictments — both of which could only have worked if charged as conspiracy indictments for which Durham had no evidence — were always bound to fail. They were bound to fail because they weren’t the result of an investigation, the logical progression from a clear crime committed. They were instead legal clothes hangers on which he could try to hang a conspiracy theory. They might have worked if Sussmann or Rodney Joffe or Danchenko had caved to the economic and legal pressure Durham was applying (as he did with Danchenko, Durham also got Joffe discontinued as an FBI source, but that had no financial repercussions for Joffe). But the charges were so flimsy Sussmann and Danchenko mounted a fairly clearcut defense.

Late 2021 to 2022: Chasing Clinton conspiracies

There’s a detail, though, that is all the more revealing given Durham’s failure to conduct an adequate investigation into these charges before indicting. As I noted last year, even after Sussmann was indicted, Durham refused the former Clinton lawyer’s demand for a list of the people on the Clinton campaign with whom he had coordinated his Alfa Bank efforts. It wasn’t until months later that it became clear — as Sussmann laid out in a filing — that Durham hadn’t even interviewed any of the people Sussmann purportedly coordinated with until after the indictment.

[T]he Special Counsel has alleged that Mr. Sussmann met with the FBI on behalf of the Clinton Campaign, but it was not until November 2021—two months after Mr. Sussmann was indicted—that the Special Counsel bothered to interview any individual who worked full-time for that Campaign to determine if that allegation was true.

Here’s what those interviews look like, as laid out in the Durham Report:

11/10/21: Jennifer Palmieri

11/12/21: Jake Sullivan

1/19/22: John Podesta (Russian Intelligence)

5/11/22: Hillary Clinton (Russian Intelligence)

Those questions weren’t focused on Sussmann, though. They were focused on Durham’s Clinton conspiracy, the claim that she had made a plan to frame Donald Trump.

During an interview of former Secretary Clinton, the Office asked if she had reviewed the information declassified by DNI Ratcliffe regarding her alleged plan to stir up a scandal between Trump and the Russians. 44 ° Clinton stated it was “really sad,” but “I get it, you have to go down every rabbit hole.” She said that it “looked like Russian disinformation to me; they’re very good at it, you know.” Clinton advised that she had a lot of plans to win the campaign, and anything that came into the public domain was available to her.

In addition, the Office interviewed several other former members of the Clinton campaign using declassified materials441 regarding the purported “plan” approved by Clinton.

The campaign Chairperson, John Podesta, stated that he had not seen the declassified material before, characterized the information as “ridiculous,” and denied that the campaign was involved in any such “plan.”442 Jake Sullivan, the campaign Senior Policy Advisor, stated that he had not seen the intelligence reporting before and had no reaction to it other than to say, “that’s ridiculous.”443 Although the campaign was broadly focused on Trump and Russia, Sullivan could not recall anyone articulating a strategy or “plan” to distract negative attention away from Clinton by tying Trump to Russia, but could not conclusively rule out the possibility. 444 The campaign Communications Director, Jennifer Palmieri, who was shown the Referral Memo, 445 stated that she had never seen the memorandum before, found its contents to be “ridiculous,” and could not recall anything “like this” related to the campaign. 446 She stated that Podesta, Mook, Sullivan and herself were aware of a project involving ties between Trump and Russia being conducted by Perkins Coie, the campaign law firm, but she did not think Clinton was aware of it, nor did she receive any direction or instruction from Clinton about the project.447

Another foreign policy advisor (“Foreign Policy Advisor-2”) confirmed that the campaign was focused on Trump and Russia, but that focus was due to national security concerns and not designed to distract the public from Clinton’s server issue. 448

Every single one of them called Durham’s conspiracy theories “ridiculous.”

For good reason. As I’ve laid out, the timeline Durham obscures, in which Trump’s rat-fucker had contact with Russia weeks before Hillary purportedly ginned up this plan, disproves the conspiracy theory.

Which explains something about the Sussmann trial — led by Andrew DeFilippis, the same AUSA who had willingly attempted to trump up a crime against John Kerry. Over and over, Durham’s prosecutors willfully ignored Judge Christopher Cooper’s orders, thereby introducing evidence with no evidentiary basis. They did so most blatantly when, minutes after Cooper ordered DeFilippis not to read from a paragraph of a Hillary Tweet calling on FBI to investigate the Alfa Bank allegations, he did so anyway, predictably leading the same outlets that wrote supine reviews of the Durham report to focus exclusively on something not before the jury.

After Judge Cooper said he would reserve his decision, Berkowitz noted that in fact, DeFilippis planned to use the tweet to claim the campaign wanted to go to the FBI when the testimony at trial (from both Elias and Mook) would establish that going to the FBI conflicted with the campaign’s goals.

[T]hey are offering the tweet for the truth of the matter, that that’s what the campaign desired and wanted and that it was a accumulation of the efforts.

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

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

Then, after both Elias and Mook had testified that they had not sanctioned Sussmann going to the FBI, DeFilippis renewed his assault on Cooper’s initial exclusion, asking to introduce it through Mook’s knowledge that the campaign had tried to capitalize on the Foer story.

Having ruled in the past that the tweet was cumulative and highly prejudicial, Cooper nevertheless permitted DeFilippis to introduce the tweet if he could establish that Mook knew that the campaign tried to capitalize on the Foer story.

But Cooper set two rules: The government could not read from the tweet and could not introduce the part of the tweet that referenced the FBI investigation. (I explained what DeFilippis did at more length in this post.)

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

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

THE COURT: Okay.

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

THE COURT: Sure. Sure.

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

THE COURT: You can use anything to refresh.

MR. DeFILIPPIS: Okay.

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

Having just been told not to read the tweet, especially not the part about the FBI investigation, DeFilippis proceeded to have Mook do just that.

The exhibit of the tweet that got  to the jury had that paragraph redacted and that part of the transcript was also redacted. But, predictably, the press focused on little but the tweet, including the part that Cooper had explicitly forbidden from coming into evidence.

In his report, Durham obscures the timeline of all this to falsely suggest that Hillary endorsed going to the FBI in September, before Sussmann met with the FBI, and not days before the election, when Franklin Foer reported the story.

On October 31, 2016 – about one week before the election – multiple media outlets reported that the FBI had received and was investigating the allegations concerning a purported secret channel between the Trump Organization and Alfa Bank. For example, Slate published an article that discussed at length the allegations that Sussmann provided to the FBI. 1530

Also on that day, the New York Times published an article titled Investigating Donald Trump, F.B.f Sees No Clear Link to Russia. 1531 The article discussed information in the possession of the FBI about ··what cyber experts said appeared to be a mysterious computer back channel between the Trump Organization and the Alfa Bank.” 1532 The article further reported that the FBI had “spent weeks examining computer data showing an odd stream of activity to a Trump Organization server,” and that the newspaper had been provided computer logs that evidenced this activity. The article also noted that at the time of the article, the FBI had not found “any conclusive or direct link” between Trump and the Russian government and that “Hillary Clinton’s supporters … pushed for these investigations.” 1533

As noted above, in the months prior to the publication of these articles, Sussmann had communicated with the media and provided them with the Alfa Bank data and allegations. 1534 Sussmann also kept Elias apprised of his efforts. 1535 Elias, in tum, communicated with the Clinton campaign’s leadership about potential media coverage of these issues. 1536

In addition, on September 15, 2016, Elias provided an update to the Clinton campaign regarding the Alfa Bank allegations and the not-yet-published New York Times article, sending an email to Jake Sullivan (HFA 154 ° Chief Policy Advisor), Robby Mook (HF A Campaign Manager), John Podesta (HF A Campaign Chairman), and Jennifer Palmieri (HFA Head of Communications), which he billed to the Clinton campaign as “email correspondence with J. Sullivan, R. Mook, J. Podesta, J. Palmieri re: Alfa Bank Article.” 1541

On the same day that these articles were published, the Clinton campaign posted a tweet through Hillary Clinton’s Twitter account which stated: “Computer scientists have apparently uncovered a covert server linking the Trump Organization to a Russian-based bank.” 1542 The tweet included a statement from Clinton campaign advisor Jake Sullivan which made reference to the media coverage article and stated, in relevant part, that the allegations in the article “could be the most direct link yet between Donald Trump and Moscow[,] that “[t]his secret hotline may be the key to unlocking the mystery ofTrump’s ties to Russia[,]” and that”[w ]e can only assume that federal authorities will now explore this direct connection between Trump and Russia as part oftheir existing probe into Russia’s meddling in our elections.”

In context, Durham falsely leaves the impression that Hillary supported going to the FBI in advance, even though both Robby Mook and Marc Elias testified that the last thing Hillary wanted to do was let the FBI get more involved in her campaign. In context, Durham falsely leaves the impression that Sussmann had sustained contacts with the NYT starting in September and never stopping, when the evidence he cites pertains exclusively to early September communications, after which Sussmann worked with the FBI to kill the story.

In a follow-up post, I will lay out just how grotesque Durham’s conspiracy theory is — the digital equivalent of slut-shaming a rape victim.

But for now, consider the abundant evidence that Durham didn’t investigate the charges he ultimately charged. He was far too busy, instead, pursuing this Clinton conspiracy theory he started chasing at least as early as February 2020.

Update: Added table showing the organization of Durham’s Report.


Dates

5/13/19: Preliminary review 

5/28/19: UK Legat-1

6/4/19: UK ALAT-1

6/17/19: SSA-1 (Steele Reports, Papadopoulos)

6/17/19: CIA Employee-1 (Page FISA)

6/18/19: SSA-1 (bias)

6/19/19: Case Agent-1 (defensive briefing, Steele Reports, Papadopoulos)

7/2/19: Handling Agent-1 (Page FISA)

7/2/19: NYFO ASAC-1 (Page FISA)

7/3/19: Michael Harpster (Steele Reports)

8/1/19: Mike Rogers

8/6/19: NYFO ADC-1

8/12/19: Randall Coleman (Clinton Foundation, Steele Reports)

8/12/19: Diego Rodriquez (Clinton Foundation)

8/14/19: HQ Analyst-3 

9/16/19: Cyber Agent-2 (Alfa)

10/17/19: SSA-2 (Clinesmith, Papadopoulos)

8/21/19: Case Agent-1

8/29/19: OGC Unit Chief-1 (bias, Australia referral, Page FISA)

9/5/19: NYFO Case Agent-1 (Page FISA)

10/9/19: Erika Thompson; Alexander Downer

12/9/19: DOJ IG Report

12/10/19: HQ Analyst-3 

1/6/20: David Johnson (Steele Reports)

1/15/20: NYFO Case Agent-1 (Clinton Foundation)

1/16/20: Diego Rodriquez (Clinton Foundation)

1/28/20: HQ Unit Chief-3 (Clinton Foundation)

2/6/20: Special Attorney to Attorney General (may reflect grand jury)

2/7/20: Jim Baker (defensive briefing)

2/13/20: Cyber Agent-3 (Alfa)

2/19/20: HQ Analyst-3 (Page FISA)

2/25/20: HQ Analyst-2 (Russian Intelligence, Clinesmith)

2/28/20: Jonathan Moffa (Russian Intelligence)

3/18/20: Paul Abbate (Clinton Foundation)

4/14/20: Field Office-1 Handling Agent-3 

4/23/20 Field Office-1 Handling Agent (Clinton Foundation)

4/23/20: Michael Harpster (Steele Reports)

5/1/20: Mueller SSA-1

5/5/20 Field Office-1 Handling Agent (Clinton Foundation)

5/6/20: Steele Reports

5/28/20: HQ SSA-4 (Clinton Foundation)

6/11/20: Jim Baker (Russian Intelligence)

6/18/20: Jim Baker (Russian Intelligence)

6/25/20: SA-2 (Steele Reports)

6/29/20: Michael Steinbach (initial EC)

6/30/20: Referral regarding existing counterintelligence investigation

7/1/20: OI Attorney (Page FISA)

7/8/20: Ray Hülser (Clinton Foundation)

7/14/20: Kevin Helson (Page FISA)

7/22/20: SSA-1 (Russian intelligence, Steele Report) 

7/23/20: OGC Unit Chief-1 (Page FISA)

7/28/20: Baltimore Special Agent-2 (Danchenko)

8/13/20: Baltimore Case Agent-1 (Danchenko)

8/13/20: CIA Employee-2 (Alfa)

8/19/20: IC Officer #6 (Russian Intelligence)

8/20/20: WFO Clinton Foundation Case Agent-1 

8/21/20: John Brennan (Russian Intelligence)

9/9/20: Acting OGC Section Chief-1 (Clinton Foundation)

9/10/20: Field Office-1 SAC

9/22/20: Field Office-1 Handling Agent-3

9/29/20: Patrick Fallon (Clinton Foundation)

9/29/20: John Ratcliffe shares Russian Intelligence with Lindsey Graham

10/19/20: Special Counsel appointment

10/27/20: OI Unit Chief-1 (Page FISA)

11/24/20: Kevin Helson (Danchenko)

12/8/20: HQ Supervisory Analyst-1 (Danchenko)

12/15/20: HQ SSA-3 (Alfa)

12/18/20: Baltimore Special Agent-1 (Danchenko)

12/21/20: Designation to use classified information

12/23/20: IC Officer#12 (Russian Intelligence)

12/20: Referral regarding accuracy of info in non-Page FISA (possibly Millian?)

2/2/21: Tech Company-1 Employee 1 (Alfa)

2/11/21: DARPA Program Manager-1 (Alfa)

2/25/21: Tech Company-1 Employee 1 (Alfa)

3/3/21: SSA-1 signed statement on Steele Reports

3/18/21: SSA-3 (Page FISA)

3/21/21: SA-1 (Page FISA)

4/8/21: Field Office-1 SSA-1

4/13/21: US Person-1 (Dolan Associate) (Danchenko)

4/14/21: Research Exec-1 (Alfa)

4/22/21: HQ Unit Chief-2

5/5/21: SSA-2  (bias, Page FISA, Danchenko, Clinesmith, Papadopoulos)

5/5/21: Field Office-1 Handling Agent-2 (second CI investigation)

6/21/21: David Archey (Defensive briefings)

6/29/21: CIA Employee-3 (Alfa)

6/30/21: OGC Attorney-1 (Page FISA)

6/30/21: Danchenko Employer-1 Exec-1 

7/7/21: Field Office-1 ASAC-1

7/9/21: Jennifer Boone

7/9/21: Tech Company-1 Employee 1 (Alfa)

7/21/21: Foreign Policy Advisor-1 (Russian Intelligence)

7/21/21: SSA-1 (Page FISA)

7/22/21: University-1 Researcher-1 (Alfa)

7/26/21: Brian Auten (bias, Russian Intelligence, Steele Reports)

7/27/21: Kevin Helson (Danchenko)

8/21: University-1 Researcher-2 (Alfa) [appears to be one 302 on more than one conversation]

8/9/21: NJ-Based Company Exec (Danchenko)

8/10/21: University-1 Researcher-3

8/11/21: Handling Agent-1 (Page FISA)

8/16/21: Mueller Analyst-1 (Danchenko)

8/12/21: Tech Company-3 Exec-1 (Alfa)

8/31/21: Charles Dolan (Danchenko)

8/31/21: Mueller SSA-1 (Danchenko)

9/7/21: Charles Dolan (Danchenko)

9/16/21: Michael Sussmann indictment

9/17/21: Brookings Fellow-1 (Danchenko)

10/21/21: UCE-1 (Papadopoulos)

10/27/21: Listrak Employee-1 and personnel (Alfa)

10/29/21: Mueller Analyst-1 (Danchenko)

11/1/21: Charles Dolan (Danchenko)

11/3/21: Danchenko indictment

11/17/21: Cendyn CEO and CTO (Alfa)

11/9/21: Jonathan Winer (Steele Reports)

11/10/21: Jennifer Palmieri

11/12/21: Jake Sullivan

11/16/21: Brookings Fellow-2 (Danchenko)

11/17/21: Cendyn CEO and CTO (Alfa)

12/2/21: HQ Analyst-3 (Steele)

11/20/21: Victoria Nuland

11/30/21: Victoria Nuland (Steele Reports)

12/13/21: James Clapper

1/19/22: John Podesta (Russian Intelligence, Alfa)

2/2/22: David Cohen

2/5/22: Sergei Millian (Danchenko)

3/1/22: Handling Agent-1 (Page FISA)

3/28/22: Foreign Policy Advisor-2

5/11/22: Hillary Clinton (Russian Intelligence)

6/22/22: SSA-1 (Russian Intelligence)

8/9/22: Ritz GM (Danchenko)

12/14/22: Referral to DOD IG on DARPA

How Richard Barnett Could Delay Resourcing of the Trump Investigation

In the rush to have something to say about what Special Counsel Jack Smith will do going forward, the chattering class has glommed onto this letter, signed by US Attorney for Southern Florida Juan Gonzalez under Jack Smith’s name, responding to a letter Jim Trusty sent to the 11th Circuit a day earlier. Trusty had claimed that the Special Master appointed to review the contents of Rudy Giuliani’s phones was a precedent for an instance where a judge used equitable jurisdiction to enjoin an investigation pending review by a Special Master.

The question raised was whether a court has previously asserted equitable jurisdiction to enjoin the government from using seized materials in an investigation pending review by a special master. The answer is yes. The United States agreed to this approach – and the existence of jurisdiction – in In the Matter of Search Warrants Executed on April 28, 2021, No. 21-MC-425-JPO (S.D.N.Y.) (involving property seized from Hon. Rudolph W. Giuliani) – and, under mutual agreement of the parties, no materials were utilized in the investigation until the special master process was completed. 1 See, e.g., Exhibit A. The process worked. On November 14, 2022, the United States filed a letter brief notifying the District Court that criminal charges were not forthcoming and requested the termination of the appointment of the special master. See Exhibit B. On November 16, 2022, the matter was closed. See Exhibit C.

As the government noted, none of what Trusty claimed was true: the government itself had sought a Special Master in Rudy’s case and Judge Paul Oetken had long been assigned the criminal case.

That is incorrect. As plaintiff recognizes, the court did not “enjoin the government,” id.; instead, the government itself volunteered that approach. Moreover, the records there were seized from an attorney’s office, the review was conducted on a rolling basis, and the case did not involve a separate civil proceeding invoking a district court’s anomalous jurisdiction. Cf. In the Matter of Search Warrants Executed on April 9, 2018, No. 18-mj-3161 (S.D.N.Y.) (involving similar circumstances). None of those is true here.

The government could have gone further than it did. The big difference between the Special Master appointed for Rudy and this one is that Aileen Cannon interfered in an ongoing investigation even though there was no cause shown even for a Special Master review, and indeed all the things that would normally be covered by such a review (the attorney-client privileged documents) were handled in the way the government was planning to handle them in the first place.

Josh Gerstein had first pointed to the letter to note that both Gonzalez, the US Attorney, and Smith, the Special Counsel, had submitted a document on Thanksgiving. The claim made by others that this letter showed particular toughness — or that that toughness was a sign of Smith’s approach — was pure silliness. DOJ has been debunking false claims made about the Special Master reviews of Trump’s lawyers since August. That they continue to do so is a continuation of what has gone before, not any new direction from Smith. Indeed, the most interesting thing about the letter, in my opinion, is that a US Attorney signed a letter under the authority of a Special Counsel, the equivalent of a US Attorney in seniority. If anything, it’s a testament that DOJ has not yet decided where such a case would be prosecuted, which would leave the decision to Smith.

A more useful place to look for tea leaves for Jack Smith’s approach going forward is in Mary Dohrmann’s workload — and overnight decisions about it.

Thomas Windom is the prosecutor usually cited when tracking the multiple strands of investigation into Trump’s culpability for January 6. But at least since the John Eastman warrant in August, Dohrmann has also been overtly involved. She’s been involved even as she continued to work on a bunch of other cases.

With two other prosecutors, for example, she tried Michael Riley, the Capitol Police cop convicted on one count of obstructing the investigation into January 6. In addition to Jacob Hiles (the January 6 defendant tied to Riley’s case), she has prosecuted a range of other January 6 defendants, ranging in apparent levels of import:

She has also been involved in several non-January 6 prosecutions:

In other words, on the day Smith was appointed, Dorhman was prosecuting several January 6 defendants for trespassing, several for assault, and a cop convicted of obstructing the investigation, even as she was investigating the former President. Though she hasn’t been involved in any of the conspiracy cases, Dohrmann’s view of January 6 must look dramatically different than what you’ll see reported on cable news.

As laid out above, Dorhmann has been juggling cases since January 6; this is typical of the resource allocation that DOJ has had to do on virtually all January 6 cases. That makes it hard to tell when she started handing off cases to free up time for the Trump investigation. That said, there have been more signs she’s handing off cases — both the Vaughn Gordon and Sean McHugh cases — in the days since Smith was named.

But something that happened in the Richard Barnett case revealed how her reassignments on account of Smith’s appointment have been going day-to-day.

Back on November 21 — three days after Garland appointed Jack Smith — Richard Barnett’s attorneys filed a motion asking to delay his trial, currently scheduled for December 12. Their reasons were largely specious. They want to delay until after the DC Circuit decides whether to reverse Carl Nichols’ outlier decision that threw out obstruction charges in the context of January 6; even Nichols hasn’t allowed defendants awaiting that decision to entirely delay their prosecution. They also want to delay in hopes the conspiracy theories that the incoming Republican House majority will chase provide some basis to challenge Barnett’s prosecution.

On November 4, 2022, a Congressional report from members of the House Judiciary Committee released a one thousand page report based on whistleblowers documenting the politicization and anti-conservative bias in the FBI and the Department of Justice. This historic report will no doubt serve as a road map for probes of the agencies now that the Republicans have gained control of the House of Representatives. Included among the many allegations is the recent revelation that the FBI fabricated schemes to entrap American citizens as false flag operations for political purposes. This devastating report was compounded ten days later on November 14, 2022, by revelations that the FBI was involved in infiltrating other groups of January 6th defendants.

As a third reason, Barrnett’s team noted that one of his lawyers, Joseph McBride (who famously said he didn’t “give a shit about being wrong” when floating conspiracy theories about January 6) had to reschedule a medical procedure for the day of the pretrial conference.

Mr. Barnett’s attorney, Mr. Joseph McBride, was scheduled to have a necessary medical procedure on November 17, 2022, but due to unforeseen complication, the procedure could not be performed and must be rescheduled for December 9, 2022, the day of the pretrial conference and a few days before trial.

Per Barnett’s filing, the government objected to the delay.

Counsel for the Government stated that they will oppose this motion, however, they agreed to stay the deadline for Exhibits, due Monday November 21, 2022, until this motion is resolved. The Government also requested that a status conference be scheduled for that purpose.

According to the government response, Barnett’s attorneys first requested this delay on November 17, the day before Smith was appointed. That’s the day Barnett’s team asked the government whether they objected to a delay.

The government has diligently been preparing for trial. Under the Court’s Amended Pretrial Order, the parties were due to exchange exhibit lists on November 21, 2022. ECF No. 63. On November 17, 2022, however, defense counsel Gross contacted the government to state that the defense again wanted to continue the trial. Defense counsel also indicated that the defense was not prepared to exchange exhibit lists on November 21.

By the time the government filed their response on November 22, four days after Smiths’ appointment, DOJ had changed its mind. DOJ still thinks Barnett’s reasons for delay are bullshit (and they are). But the government cited an imminent change in the prosecution team and suggested a trial a month or so out.

As reflected in the Defendant’s motion, the government initially opposed the Defendant’s request for a continuance. Def.’s Mot. at 1. As discussed below, the government maintains that certain of the Defendant’s proffered reasons do not support a continuance of the trial. Nevertheless, the government has considered all the attendant circumstances and no longer opposes the motion. Accordingly, for the reasons set forth below, the government submits that the Defendant’s motion should be granted without a hearing, the trial date vacated, and a status hearing set to discuss new trial dates.

[snip]

Finally, the government notes that while it is diligently preparing for trial, an imminent change in government counsel is anticipated. Thus, given the government’s strong interest in ensuring continuity in its trial team, coupled with the defendant’s lack of readiness, the government, in good faith, will not oppose the defendant’s continuance. Under such unique time constraints, the government therefore requests that the Court vacate the trial date, without need for a hearing, and set a new trial date and extend the remaining pretrial deadlines by 30 to 45 days. [my emphasis]

The judge in the case, Christopher Cooper, ruled on Wednesday that he will only delay the trial if both sides can fit in his schedule. In his order, he mostly trashed the defense excuses. But he noted that the government, too, should have planned prosecutorial changes accordingly.

The Court will reserve judgment on the Defendant’s 88 Motion to Continue the December 12, 2022 trial date pending receipt of a joint notice, to be filed by November 28, 2022, indicating specific dates on which the parties would be available for trial following a brief continuance. If the parties cannot offer a date that also conforms with the Court’s schedule, the Court will deny the motion and proceed with the scheduled trial. The Court finds that none of the reasons advanced in the Defendant’s motion are grounds for a continuance. This case was charged nearly two years ago, one trial date has already been vacated at the defense’s request, and the present date was set over four months ago. Defense counsel, which now number at least three, have had more than ample time to prepare for trial. The defense has not identified any material evidence that it is lacking, either from the government’s voluminous production of both case-specific and global discovery, or from other public sources. Nor is the pendency of the appeal in U.S. v. Miller an impediment to trial. This and other courts have proceeded with numerous January 6th trials involving the charge at issue in Miller. If the Circuit decides the issue in the defense’s favor, then Mr. Barnett will receive the benefit of that ruling. There is no good reason to halt the trial in the meantime. As for any anticipated change in government trial counsel, the government has been aware of the current trial date for months and should have planned accordingly. That said, the Court would be willing to exercise its discretion and grant a brief continuance should a mutually agreeable date be available. The Court notes, however, that it has a busy docket of both January 6th cases and other matters and therefore may not be able to accommodate the parties’ request. [my emphasis]

Unless and until Dorhmann spins off all her other cases, it won’t be clear whether a change in Barnett’s case indicated she expected to focus more time on Trump or that DOJ wanted to create single reporting lines through Smith (or even whether the change in prosecutorial team involved one of several other prosecutors assigned to the case).

Lisa Monaco has been micro-managing the approach to January 6 from the moment she was confirmed in April 2021. Sure, it’s certainly possible that DOJ didn’t make the final decision on whether to appoint a Special Counsel, and if so, whom, until after Trump announced he was running or until after the GOP won the House. Maybe they delayed any resource discussions until after finalizing a pick.

But depending on the reasons why DOJ changed its mind on Barnett’s case, it’s possible that his still-scheduled December 12 trial could delay the time until Smith has his team in place, by several weeks. It’s also possible DOJ will just go to trial, a high profile one that poses some evidentiary complexities, with the two other prosecutors.

As I’ve suggested above, managing the workload created by the January 6 attack has been unbelievably complex, with rolling reassignments among virtually all prosecution teams from the start. Dohrmann’s caseload is of interest only because the mix of cases she has carried range from trespassers to the former President.

But at this moment, as Smith decides how he’ll staff the investigation he is now overseeing, that caseload may create some avoidable complexities and potentially even a short delay, one that could have been avoided.

Update: In a filing not signed by Mary Dohrmann, the two sides offered January 9 as a possible trial date.

A Roger Stone Pardon for MacronLeaks Isn’t As Crazy as It Sounds

In April 2020, DOJ released the warrants from the Roger Stone investigation. With six of those, DOJ redacted broad swaths of the justifications behind the warrants, none of which were shared with him as part of his obstruction prosecution.

September 26, 2018: Mystery Twitter Account

September 27, 2018: Mystery Facebook and Instagram Accounts

September 27, 2018: Mystery Microsoft include Skype

September 27, 2018: Mystery Google

September 27, 2018: Mystery Twitter Accounts 2

October 5, 2018: Mystery Multiple Googles

All six were obtained by Patrick Myers, an FBI agent located in Pittsburgh, whereas almost all the warrants obtained before that were signed by agents located in DC (in earlier weeks, Myers had also obtained a warrant targeting a second account used by the GRU persona, Guccifer 2.0).

In his order releasing the warrants, Judge Christopher Cooper explained that all the redacted information (and so the information justifying these warrants) was redacted to protect, “the private information of non-parties, financial information, and non-public information concerning other pending criminal investigations.”

One of those warrants explicitly said that the government requested a gag on the provider involved (in that case, Twitter) because Roger Stone seemed not to understand the full extent of the investigation into him.

It does not appear that Stone is currently aware of the full nature and scope of the ongoing FBI investigation. Disclosure of this warrant to Stone could lead him to destroy evidence or notify others who may delete information relevant to the investigation.

In addition to the crimes for which Mueller declined to charge Stone (foreign donations) or of which he was convicted (witness tampering and obstructing an investigation), the warrant sought evidence of conspiracy (18 USC 371), two foreign agent laws (18 USC 951 and 22 USC 611), and computer hacking (18 USC 1030).

These warrants strongly suggest that in April 2020, as Bill Barr was making unprecedented efforts to limit Stone’s punishment for the crimes of which he had been convicted, DOJ continued to investigate whether Stone conspired with foreign entities — and given that a Guccifer 2.0 warrant is among this series, Russia would be that foreign entity — to engage in computer hacking.

That’s important background to the seizure from Trump’s office of document reflecting Executive Clemency for Stone that appears to have a link to a French President, possibly Emmanuel Macron.

If Stone were involved with the MacronLeaks operation on which the GRU teamed up with alt-Right figures in Stone’s orbit, it’s conceivable Trump secretly pardoned him to prevent him from being included in the indictment covering that operation.

Based on the FOIA exemptions in various versions of the Mueller Report released, the Stone investigation that continued after Mueller closed up shop appears to have been closed between September 18, 2020 and November 2, 2020. On the latter date — literally the day before the 2020 election — DOJ provided Jason Leopold a version of the Mueller Report with newly-unsealed passages. It revealed for the first time that, on page 178, a footnote modified the discussion in the body of the Report about whether Stone could be prosecuted for conspiring with Russia on computer hacking by explaining that Mueller had referred the issue to DC US Attorney’s Office for further investigation.

The Office determined that it could not pursue a Section 1030 conspiracy charge against Stone for some of the same legal reasons. The most fundamental hurdles, though, are factual ones.1279

1279 Some of the factual uncertainties are the subject of ongoing investigations that have been referred by this Office to the D.C. U.S. Attorney’s Office.

A version of the report released to Leopold on June 3, 2019 redacted that footnote because of an ongoing investigation. And a spreadsheet justifying all continued redactions released on September 18, 2020 seems to have redacted it too. The unredacted publication of it on November 2, 2020 suggests whatever investigation in Stone DOJ had been pursuing had been closed.

Stone’s wasn’t the only investigation that got shut down in the months before Donald Trump would lose the presidency. In that period, previously redacted references to investigations into two of Paul Manafort’s businesses, and an investigation into a suspected $10 million cash infusion during the 2016 election from an Egyptian state-owned bank were unsealed — though both were unsealed by the time of that September filing. There was even reference to a warrant for Erik Prince’s phone, suggesting any investigation into him had similarly been shut down.

What made Stone’s case different, however, is that DOJ never told us what the investigation was about (indeed, two referrals that likely pertain to Stone were redacted in that November 2020 release, which they shouldn’t have been if the cases were really closed).

The most important referral from the Mueller investigation, then — the one that Billy Barr was hired to make go away — simply got deep-sixed sometime in the months when it looked like Trump would lose the election, with no explanation as to what the investigation even was. And, again, it appears to have happened between September 18 and November 2, 2020.

As it happens, DOJ rolled out an indictment against GRU on October 19, just 15 days before the election (and just 14 days before DOJ released the language pertaining to Stone). It covered six GRU attacks, though focused especially on the 2018 Olympic Destroyer attack on the Pyeongchang Olympics.

But it included, almost as a throwaway, GRU’s role in the 2017 MacronLeaks campaign. By description, it held just one of the charged individuals accountable for the spearphishing part of the MacronLeaks campaign: Anatoliy Kovalev, the one guy (as noted) also charged in the DNC hack.

Defendant ANATOLIY SERGEYEVICH KOVALEV was a Russian military intelligence officer assigned to Military Unit 74455. KOVALEV sent spearphishing emails targeting a wide variety of entities and individuals, including those associated with French local government entities, political parties, and campaigns; the 2018 Winter Olympics; the DSTL; and a Georgian media entity. KOVALEV also engaged in spearphishing campaigns for apparent personal profit, including campaigns targeting large Russian real estate companies, auto dealers, and cryptocurrency miners, as well as cryptocurrency exchanges located outside of Russia. KOVALEV is a charged defendant in federal indictment number 18-CR-215 in the District of Columbia. [my emphasis]

In the Mueller indictment of the GRU, Kovalev is described as the guy responsible for the hacking that targeted voting infrastructure — the kind of stuff that really could have affected the outcome, especially in North Carolina.

72. In or around July 2016, KOVALEV and his co-conspirators hacked the website of a state board of elections (“SBOE 1”) and stole information related to approximately 500,000 voters, including names, addresses, partial social security numbers, dates of birth, and driver’s license numbers.

[snip]

75. In or around October 2016, KOVALEV and his co-conspirators further targeted state and county offices responsible for administering the 2016 U.S. elections. For example, on or about October 28, 2016, KOVALEV and his co-conspirators visited the websites of certain counties in Georgia, Iowa, and Florida to identify vulnerabilities.

76. In or around November 2016 and prior to the 2016 U.S. presidential election, KOVALEV and his co-conspirators used an email account designed to look like a Vendor 1 email address to send over 100 spearphishing emails to organizations and personnel involved in administering elections in numerous Florida counties. The spearphishing emails contained malware that the Conspirators embedded into Word documents bearing Vendor 1’s logo.

The Olympic Destroyer indictment obtained weeks before the election held Kovalev (and the GRU) accountable for the spearphish and communications with some French participants.

27. From on or about April 3, 2017, through on or about May 3, 2017 (during the days leading up to the May 7, 201 7, presidential election in France), the Conspirators conducted seven spearphishing campaigns targeting more than 100 individuals who were members of now-President Macron’s “La Republique En Marche!” (“En Marche!”) political party, other French politicians and high-profile individuals, and several email addresses associated with local French governments. The topics of these campaigns included public security announcements regarding terrorist attacks, email account lockouts, software updates for voting machines, journalist scoops on political scandals, En Marche! press relationships, and En Marchel internal cybersecurity recommendations.

28. KOVALEV participated in some of these campaigns. For example, on or about April 21, 2017, KOVALEV developed and tested a technique for sending spearphishing emails themed around file sharing through Google Docs. KOVALEV then crafted a malware-laced document entitled “Qui_peut_parler_ aux journalists.docx” (which translates to “Who can talk to journalists”) that purported to list nine En Marche! staff members who could talk to journalists about the previous day’s terrorist attack on the Champs-Elysees in Paris. Later that day, the Conspirators used an email account that mimicked the name of then-candidate Macron’s press secretary to send a Google Docs-themed spearphishing email to approximately 30 En Marche! staff members or advisors, which purported to share this document.

29. From on or about April 12, 2017, until on or about April 26, 2017, a GRU-controlled social media account communicated with various French individuals offering to provide them with internal documents from En Marche! that the user(s) of the account claimed to possess.

But it professed utter and complete ignorance about how the stolen documents started to get leaked.

30. On or about May 3 and May 5, 2017, unidentified individuals began to leak documents purporting to be from the En Marche! campaign’s email accounts.

But they weren’t unidentified, at least not all of them! As a DFIR report released 15-months before this indictment laid out, while there was a Latvian IP address that hadn’t been publicly identified at that point (one the FBI surely had some ability to unpack), the American alt-right, including Stone associate Jack Posobiec, made the campaign go viral, all in conjunction with WikiLeaks.

First there was a rumor spread from that Latvian IP to 4Chan to William Craddick to Jack Posobiec.

Last but not least came the “#MacronGate” rumor. Two hours before the final televised debate between Macron and Le Pen, on Wednesday, May 3, at 7:00 p.m.,41 a user with a Latvian IP address posted two fake documents on 4chan. The documents suggested that Macron had a company registered in Nevis, a small Caribbean island, and a secret offshore bank account at the First Caribbean Bank, based in the Cayman Islands. Again, the rumor itself was not entirely new. Macron himself had seen it coming. More than two weeks earlier on TV he warned that this type of rumor was likely to appear: “This week, you will hear ‘Mr. Macron has a hidden account in a tax haven, he has money hidden at this or that place.’ This is totally false, I always paid all my taxes in France and I always had my accounts in France.”42 What was new this time, however, was the release of two documents supposedly proving this rumor. The user who posted the two documents on 4chan did it purposefully on the evening on the final televised debate to attract more attention, and even suggested a French hashtag: “If we can get #MacronCacheCash trending in France for the debates tonight, it might discourage French voters from voting Macron”43.

Then the rumor spread on Twitter. The 4chan link was first posted by Nathan Damigo, founder of the American neo-Nazi and white-supremacist group Identity Evropa, and was further circulated by William Craddick, founder of Disobedient Media and notorious for his contribution to the Pizzagate conspiracy theory that targeted the US Democratic Party during the 2016 American presidential campaign. The first real amplifier was Jack Posobiec—an American alt-right and pro-Trump activist with 111,000 followers at the time: his tweet was retweeted almost 3,000 times. Only after 10:00 p.m. did the rumor begin to spread in French, mostly through far-right accounts using the #MacronCacheCash hashtag. The first tweets in French seemed to have been automatically translated from English.44

[snip]

The same user with the Latvian IP address who posted the fake documents on Wednesday announced on Friday morning that more were coming, promising, “We will soon have swiftnet logs going back months and will eventually decode Macron’s web of corruption.”49 Those responsible for #MacronGate thereby provided evidence that they were the same people responsible for the #MacronLeaks that were released later that day.

Then there were the leaked files themselves, which followed the same pattern: an anonymous leak to Craddick to Posobiec to WikiLeaks.

The files were initially posted on Archive.org, an online library site, supposedly in the morning63 (the time of first release on the website cannot be determined, as these original threads have since been deleted). At 7:59 p.m., the links to the threads were posted on PasteBin, a file-sharing site, under the name “EMLEAKS.” At 8:35 p.m., they were shared on 4chan. Then came their appearance on Twitter: Craddick was again the first to share the link to the PasteBin dump at 8:47 p.m., quickly followed by Jack Posobiec at 8:49 p.m., who provided a link to the 4chan thread with, for the first time, the hashtag #MacronLeaks.64 Contrary to what would later become a widespread misconception, Posobiec was not the first to tweet, Craddick was. However, Posobiec was the first to use the hashtag that would lend its name to the entire operation, hence the confusion. Posobiec’s tweet and hashtag was retweeted eighty-seven times within five minutes. He later said he had been alerted to the incoming dump by the user with a Latvian IP address who had posted the #MacronGate fake documents two days prior: “The same poster of the financial documents said to stay tuned tomorrow for a bigger story–so I pretty much spent the next 24 hours hitting refresh on the site.”65

So far, this conversation was exclusively Anglophone. This makes it clear that the hashtag #MacronLeaks was launched and spread in the United States, by the American alt-right. It was WikiLeaks that internationalized the spread, at 9:31 p.m., by tweeting: “#MacronLeaks: A significant leak. It is not economically feasible to fabricate the whole. We are now checking parts,” with a link to the files on PasteBin. Only then came the first French amplifiers, who happened to be Le Pen supporters

MacronLeaks was, openly and proudly, a joint venture between the GRU, far right influencers in Stone’s immediate orbit, and WikiLeaks. It was an attempt to repeat the 2016 miracle that elected Donald Trump, by supporting the Russian-supporting Marine Le Pen by damaging Macron.

There’s something unusual about the indictment, too. Alone among the indictments obtained by the Pittsburgh US Attorney’s office that month (October 2020), it was the single one signed in wet blue ink by the US Attorney, Scott Brady. Both the copy released by DOJ and the one docketed in PACER also lacked a jury foreperson’s signature.

Admittedly, most of the indictments WDPA obtained that month were fairly podunk crimes that wouldn’t need heightened security: a fentanyl dealer, a cocaine dealer, two unhoused men charged with theft, an aggravated assault, manufacturing a controlled substance, Social Security fraud, VA benefit fraud, all were signed in black ink, at least some of them electronically. But a child sexual trafficking indictment and a CSAM possession indictment, both originally filed under seal, also bear the foreperson’s signature and that black ink signature. Even a ransomware indictment rolled out nationally on October 15 — which would have the same kind of international sensitivities and national coordination as the GRU indictment — had a normal jury foreperson’s signature.

While Brady was not a surprising choice for US Attorney in Pittsburgh (he had previously been an AUSA), he was perhaps the most politicized of Trump’s US Attorneys. He’s the guy whom Barr put in charge of ingesting the dirt on Hunter Biden that Rudy Giuliani was getting from suspected Russian agents.

To be clear: There’s no public allegation that Stone had anything to do with MacronLeaks, though HateWatch places him at a Milo Yiannopoulos party where MacronLeaks appears to have come up, after the leaks but before the French election. I’m not saying that Stone was involved in the MacronLeaks operation.

But the response to the Stone reference in the subpoena receipt has assumed that the Stone reference cannot be related to the French President reference, all assumptions made by journalists that never covered the ongoing aspects into whether Stone conspired with Russia on a hack. If Trump did issue his rat-fucker a secret pardon for follow-on cooperation with Russian hackers, though, it would explain a number of things about the aftermath of the Mueller investigation, including what happened to the investigation into whether Stone conspired with Russia on hacking campaigns.

For his part, Trump included a bit of a tirade about the Stone reference in his motion for a Special Master last night.

In addition, did the affiant to the warrant fairly disclose any pretextual “dual” purpose at work in obtaining the warrant? For example, the Receipt for Property largely fails to identify seized documents with particularity, but it does refer to the seizure of an item labelled “Executive Grant of Clemency re: Roger Jason Stone, Jr.” Aside from demonstrating that this was an unlawful general search, it also suggests that DOJ simply wanted the camel’s nose under the tent so they could rummage for either politically helpful documents or support other efforts to thwart President Trump from running again, such as the January 6 investigation.

This is legally and politically nonsensical. If the pardon is the known pardon, then it’s not politically damaging at all. If it’s a real pardon of any kind — as a pardon written on a cocktail napkin arguably would be — then it’s a Presidential Record and squarely within the scope of the warrant (which permits seizure of any Presidential record created during Trump’s term). If the information about the French President is part of the document and appears to be sensitive, then it would qualify as a likely classified document. If the pardon were found in Trump’s safe next to his leatherbound box of TS/SCI documents, then it would be covered by the proximal search protocol laid out in the warrant. The pardon was legally seized.

Trump’s claims are nonsensical. But they’re also the the kind of squealing that invites further attention to what the clemency document really is.

“The Bell Can Never Be Unrung” … The Many Times Durham’s Prosecutors Flouted Judge Cooper’s Orders

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

The jury in the Michael Sussmann case will return to work this morning. They deliberated for some period on Friday (I’m not sure whether how long they deliberated has been reported). But the jury was unable to get questions answered or a verdict accepted after Judge Christopher Cooper left for the long holiday at 2:30PM. Even if the jury ends up finding Jim Baker’s testimony unreliable — which would likely be the quickest way to come to a verdict one way or another — I would expect it to take the jury a bit of time to sort through the centrality of his testimony to the charges.

So while we wait, I want to catalog how Durham’s team blew off just about every adverse decision Cooper made against them.

1. Delayed Request for Privileged Material

As I laid out in this post, Cooper ruled that a bunch of the emails over which the Democrats had originally claimed privilege were not. But because Durham waited so long to request a review of the privileged documents, Cooper ruled Durham could not use the emails at trial.

In cross-examination of Fusion’s tech person, Laura Seago, DeFilippis used the content of one of those emails that apparently discussed hiding her Fusion affiliation from Tea Leaves. (I laid out this exchange in this post.)

MR. DeFILIPPIS: So we have an issue with regard to Ms. Seago’s testimony. The government followed carefully Your Honor’s order with regard to the Fusion emails that were determined not to be privileged but that the government had moved on.

As Your Honor may recall, there was an email in there in which Ms. Seago talks very explicitly about seeking to approach someone associated with the Alfa-Bank matter and concealing her affiliation with Fusion in the email. When we asked her broadly whether she ever did that, she definitively said no when I, you know, revisited it with her. So it raises the prospect that she may be giving false testimony.

And so we were — you know, I considered trying to refresh her with that, but I didn’t understand that to be in line with Your Honor’s ruling. So the government is — we’d like to consider whether we should be — we’d like Your Honor to consider whether we should be able to at least recall her and refresh her with that document?

THE COURT: I don’t remember that question, but the subject matter was concealing Fusion or her identities in conversations with the press. If I recall correctly, that email related to “tea leaves,” correct?

After repeatedly asking Seago whether she had hidden her affiliation from the media, he asked about this email, catching Seago in a gotcha (though both Judge Cooper and Sussmann lawyer Sean Berkowitz took the question, as Seago seemed to, to relate to outreach to the press).

After setting his perjury trap, DeFilippis immediately tried to recall Seago onto the stand to delve into the content of this email. In this case, Judge Cooper ruled that DeFilippis had waived his opportunity to do so.

THE COURT: Well, I think the time to have asked the Court whether using the document to refresh was consistent with the order was before she was tendered and dismissed. So I think you waived your opportunity. All right? So we’re going to move on.

2. Non-Expert Expert Testimony

One of the most contentious arguments leading up to trial was Durham’s belated attempt to use an expert witness, ostensibly to discuss the technical complexities of DNS and Tor at the heart of the case (topics which prosecutors had witnesses explain over and over in as much detail as their nominal expert witness David Martin did), to address the accuracy of the research on the DNS anomaly.

This was an attempt to lead the jury to believe the anomaly was fabricated by Rodney Joffe and the researchers, in spite of the fact that Durham obtained plenty of evidence it was not.

On April 25, Judge Cooper ruled that Durham could have an expert discuss the technicalities of the data, but could only raise the accuracy if Sussmann did so himself.

Then on May 6, Durham attempted to expand that ruling by asking the expert to address materiality. In discussions the morning of opening arguments that focused entirely on the testimony of non-DNS expert Scott Hellman, not the nominal expert on DNS David Martin, Cooper prohibited Martin’s discussion of spoofing. (I describe these discussions here.)

Ironically, this was all supposed to be about visibility, the import of understanding how much DNS traffic a researcher could access to the quality of that researcher’s work. In Hellman’s own analysis — for which he fairly demonstrably did not review the data that Sussmann shared with the FBI very closely —  he showed no curiosity about the issue.

Searched “…global nonpublic DNS activity…” (unclear how this was done) and discovered there are (4) primary IP addresses that have resolved to the name “mail1.trump-email.com”. Two of these belong to DNS servers at Russian Alfa Bank. [my emphasis]

Nevertheless, DeFilippis used this nested set of witnesses as an opportunity to get Hellman — who admitted he had only a basic understanding of DNS, who didn’t review the data very closely, and who formed his initial conclusion in about a day — to comment on the methodology of the researchers.

Q. And what, if anything, did you conclude about whether you believed the authors of the paper or author of the paper was fairly and neutrally conducting an analysis? Did you have an opinion either way?

MR. BERKOWITZ: Objection, Your Honor.

THE COURT: Basis?

MR. BERKOWITZ: Objection on foundation. He asked him his opinion. He’s not qualified as an expert for that.

THE COURT: I’ll overrule it.

A. Sorry, can you please repeat the question?

Q. Sure. Did you draw a conclusion one way or the other as to whether the authors of this paper seemed to be applying a sound methodology or whether, to the contrary, they were trying to reach a particular result? Did you —

A. Based upon the conclusions they drew and the assumptions that they made, I did not feel like they were objective in the conclusions that they came to.

Q. And any particular reasons or support for that?

A. Just the assumption you would have to make was so far reaching, it didn’t — it just didn’t make any sense.

This is precisely the kind of opinion that Cooper had prohibited from an actual expert, admitted from someone whose own shoddy analysis became a recurrent theme for the defense.

3. Hearsay Clinton Tweet

DeFilippis’ efforts to get excluded information introduced was still more brazen with hearsay materials.

On May 7, Judge Cooper issued his initial ruling on which parts of Durham’s conspiracy theory could be admitted at trial. In general, Cooper permitted the introduction of Fusion GPS emails with the press about the Alfa Bank allegations, all of which post-date Sussmann’s alleged lie. He excluded all but one of the emails between Rodney Joffe and the researchers (more on the exception below).

Cooper equivocated wildly about a tweet sent out under Hillary Clinton’s name in response to the Franklin Foer story on the anomaly. In a hearing on April 27, he excluded it as hearsay.

THE COURT: All right. The Clinton Campaign Tweet, the Court will exclude that as hearsay. To the extent that the government believes that it offers some connection to the campaign and an attorney-client relationship, it’s likely duplicative of other evidence, so the Tweet will not come in.

In a pre-trial hearing on May 9 (after he had issued his order on motions in limine), Cooper explained he was revisiting the decision.

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

After Sussmann lawyer Sean Berkowitz explained that the defense would not contest that the campaign wanted a story out there, Cooper opined that would make the tweet cumulative.

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

DeFilippis claimed that without the tweet they would have no evidence about how the campaign worked the press on this issue (even though both Marc Elias, called as a government witness, and Robby Mook, who was originally listed as a government witness, eventually testified to the issue on the stand). After Judge Cooper said he would reserve his decision, Berkowitz noted that in fact, DeFilippis planned to use the tweet to claim the campaign wanted to go to the FBI when the testimony at trial (from both Elias and Mook) would establish that going to the FBI conflicted with the campaign’s goals.

[T]hey are offering the tweet for the truth of the matter, that that’s what the campaign desired and wanted and that it was a accumulation of the efforts.

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

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

Then, after both Elias and Mook had testified that they had not sanctioned Sussmann going to the FBI, DeFilippis renewed his assault on Cooper’s initial exclusion, asking to introduce it through Mook’s knowledge that the campaign had tried to capitalize on the Foer story.

Having ruled in the past that the tweet was cumulative and highly prejudicial, Cooper nevertheless permitted DeFilippis to introduce the tweet if he could establish that Mook knew that the campaign tried to capitalize on the Foer story.

But Cooper set two rules: The government could not read from the tweet and could not introduce the part of the tweet that referenced the FBI investigation. (I explained what DeFilippis did at more length in this post.)

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

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

THE COURT: Okay.

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

THE COURT: Sure. Sure.

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

THE COURT: You can use anything to refresh.

MR. DeFILIPPIS: Okay.

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

Having just been told not to read the tweet, especially not the part about the FBI investigation, DeFilippis proceeded to have Mook do just that.

The exhibit of the tweet that got sent to the jury had that paragraph redacted and that part of the transcript was also redacted. But, predictably, the press focused on little but the tweet, including the part that Cooper had explicitly forbidden from coming into evidence.

4. Hearsay about Joffe’s Request for Feedback

As noted above, Judge Cooper permitted just one email between Joffe and the researchers to come into evidence: a request for feedback Rodney Joffe made of the researches. But he did so based on Durham’s representation that either David Dagon or Manos Antonakakis — both of whom received the email — would testify.

Neither did.

During Sean Berkowitz’ cross-examination of Curtis Heide, one of the agents assigned to investigate the anomaly, Sussmann’s attorney had Heide explain how they knew David Dagon had a role in the research, but nevertheless never bothered to speak to him directly.

AUSA Jonathan Algor used that as an opportunity to ask to introduce not just the email that had been permitted, but also the response, claiming that by highlighting how shoddy the FBI investigation was, Berkowitz was opening the door to accuracy questions.

MR. ALGOR: So, Your Honor, there was a good amount of cross-examination regarding David Dagon.

THE COURT: Yes.

MR. ALGOR: And specifically asking about reaching out to him and also going into that he was the source of the white paper and what types of questions you would ask him and all. I think that this goes right to the red herring email.

THE COURT: I’m sorry, the what email?

MR. ALGOR: The red herring email, which you’ve previously excluded. It was Government Exhibit 124, when you would go through what type of questions. Now that Mr. Berkowitz has asked these, I would ask: What would you have asked having to provide data related to it? You know, Were there drafts of the white paper? Would Agent Heide ask who else he communicated with and what he believed regarding all of that data? And so I think he’s opened the door regarding that email.

Berkowitz noted that neither Sussmann nor Heide knew of the email.

MR. BERKOWITZ: Judge, this is not an email that was authored by Mr. Dagon. My cross-examination went directly to their investigation, who they spoke to, who they didn’t speak to. I asked him, he doesn’t know what Mr. Dagon said to Mr. Sussmann, if anything, and he said he didn’t. And I don’t think that opening the door to these communications where there’s no indication that it went to Mr. Sussmann is appropriate.

Cooper ruled that Algor could not introduce the email response.

That did not open the door to the excluded email about which — about what his and the other researchers’ views on the data or motivations may have been. In any case, the emails reflect — or the email reflects the views of Mr. Joffe, not Mr. Dagon, and those views came a full month and a half before the FBI was in a position to interview Mr. Dagon. They are, therefore, not relevant to Mr. Dagon’s views or motivations in any event.

So you can — you can certainly ask him, as you have in direct, what he would have done differently, what he would have questioned Mr. Dagon about, you know, to establish a materiality argument, but we’re not going to get into what the researchers’ motivations were. Okay?

Minutes later, Algor walked how Heide didn’t know any of the people on the email, and elicited from Heide the opinion that even asking the opinion might suggest people were trying to fabricate the data.

Q. Okay. And it — the “from” is Rodney Joffe. Do you see that?

A. Yes.

Q. And then the “to” is to Manos Antonakakis. Do you see that?

A. Yes.

Q. Do you know who that is?

A. I do not.

Q. And David Dagon, do you see that second name?

A. Yes.

Q. Do you know who David Dagon is?

A. No.

Q. You testified —

A. I’m sorry.

Q. — earlier —

A. I never met David Dagon, but I do know that he was the information that the source came forward and said he was potentially the author of the white paper.

Q. Okay. And that’s from a CHS that your team was contacted by?

A. Yes. Yes.

Q. And then, finally, April Lorenzen. Do you know who April Lorenzen is?

A. I do not.

[snip]

Q. Would you also want to know whether the authors of the white paper were trying to make it out so that it wasn’t — so that it couldn’t be understood if you weren’t a DNS expert?

A. That would be important.

Q. And if you could read that last line, please.

A. It says, “Do NOT spend more than a short while on this (if you spend more than an hour you have failed the assignment). Hopefully less.”

Q. And just going back to the line above, it says, without — it says, “NOT to be able to say this is, with out doubt, fact, but to merely be plausible,” would you want to understand that coming from the source of the white paper?

A. Yes.

The discussion of the bench conference immediately after Heide left the stand (Berkowitz generally refrained from objecting to these shenanigans in front of the jury) is entirely redacted. But as noted below, Judge Cooper ultimately excluded the entire email as hearsay introduced without proper foundation.

6. Hearsay Commentary on an Attorney

In the very same sidebar where Judge Cooper excluded the Heide testimony, he also explicitly prohibited prosecutors from tying a research request that Rodney Joffe had given a colleague, Jared Novick, to an attorney. The research request pertained to Richard Burt and Carter Page (among others) at a time both had established ties to Russia. Novick testified to Joffe’s displeasure with his work abilities and it’s quite clear the two don’t like each other.

MR. BERKOWITZ: So with respect, Judge, to that, it sounds as if outside the norm of what he normally does, that he thought it was likely for a political campaign. I’m not sure that his determination that he thought it was for an attorney is relevant. If they want to put in an attorney-client-privileged document that he saw, I think he can do that. But if he says I understood this was going to an attorney connected to the campaign, that’s hearsay. And it really doesn’t have anything to do with Mr. Sussmann, unless they can tie it up in any way.

THE COURT: Is there — is there any link to the defendant?

MR. ALGOR: Your Honor, just that he understood the tasking was related to opposition research regarding Trump; that he was told by Mr. Joffe — and his understanding was — that it was — it was someone tied to the Clinton campaign. But his understanding overall, full context and understanding, regardless of what Mr. Joffe said, was that this was going to someone tied to the campaign; and that also in receiving the document that had attorney-client privilege, that he understood it to be for an attorney.

THE COURT: How is that not hearsay if Mr. Joffe offered for the purpose of showing that, in fact, it was from —

MR. ALGOR: Because it’s a full understanding. It’s not getting into the actual specific statements that Mr. Joffe told him, but just the full context of what he was tasked to do and who the ultimate receiver was.

THE COURT: Okay.

MR. KEILTY: One second, Your Honor.

THE COURT: You can elicit his understanding that it was for a campaign, that it was unusual, that it may have had some political purpose. But I want you to stay away from any suggestion, which I don’t think has been established, that it was from Mr. Sussmann, including by suggesting it was from an attorney. Okay? [my enphasis]

Once again, minutes after Judge Cooper issued an order — this one ruling that Durham’s team could not elicit any reference to an attorney — Algor nevertheless got a former Joffe associate to do so.

Q. And, again, you — during cross-examination, Mr. Berkowitz asked you a series of questions regarding — regarding your work for Mr. Joffe on this project?

A. Uh-huh.

Q. And without getting into any specific conversations, based on the totality of your work, who was the intended audience for the project?

A. It was to go to an attorney with ties.

MR. BERKOWITZ: Objection, Your Honor.

THE COURT: Sustained.

That was the first time Berkowitz started getting really insistent about the pattern of Durham’s prosecutors completely ignoring explicit prohibitions from Cooper.

MR. BERKOWITZ: And — and just briefly, Your Honor, I don’t know when is an appropriate time to — to raise this. I want to express what — and I am not a — a hotheaded person —

THE COURT: You’re not a what?

MR. BERKOWITZ: I’m not a hotheaded person, but I have deep concern over the last line of questioning with the witness eliciting something that I think was clearly prohibited. And it’s consistent, in our view, with the line of questioning relative to Mr. Elias, [sic] relative to them reading the tweet that had been excluded. And, again, I know you don’t apportion bad faith, and I’m not asking you to do that at this point, but I just — I’m — I’m really concerned about the number of those issues that have come in and the prejudice to Mr. Sussmann. And I don’t know how best to deal with it, but I want to raise that to your attention.

Judge Cooper finally warns Durham to follow his orders

The Novick questioning finally stirred Cooper to try to do something about prosecutors flouting his orders. The first thing the next morning, he issued a both-sides warning about adhering to his rulings.

THE COURT: Okay. Good morning, everybody. All right. I just want to return briefly to the discussion we had at the end of the day yesterday.

You know, we’ve been here for two weeks. I have tried my best to let you folks try your cases as you see fit without undue intervention from the Court, as is my usual practice. But I obviously have set some evidentiary guardrails in the case that I expect both sides to follow, and I think you’ve done that for the most part.

Yesterday, however, I thought it was pretty clear — that I was pretty clear that in Mr. Novick’s testimony the government was not to suggest a link between the defendant and — on the one hand, and Mr. Joffe and the researchers’ data collection efforts on the other hand, or their views about the data. I didn’t think there was an evidentiary foundation for that.

I thought that the jury would only be able to speculate about any such connection, and I thought that any knowledge Mr. Novick had about that was necessarily hearsay from Mr. Joffe, who obviously is not here to testify. And I thought, at least, the final question in the redirect that was asked yesterday, nevertheless, attempted to establish such a link.

You know, I know that questions get asked rhetorically or argumentatively that are likely to draw an objection, and I will give lawyers some slack on that, but I expect both sides to comply with my evidentiary rulings.

There’s a lot of evidence in this case. There’s a lot for the jury to digest. They will have plenty of validly admitted evidence to pore over, and from here on out, including in arguments, I expect both sides to comply with both the letter and the spirit of the Court’s evidentiary rulings. So let’s keep it clean from here, okay?

MR. KEILTY: Yes, Your Honor.

Berkowitz used that exchange to request that Cooper exclude the entirety of the email that Algor used to invite Heide to suggest the data had been fabricated as the only way to limit the damage from prosecutors breaking Cooper’s rules.

MR. BERKOWITZ: Thank you very much for that, Your Honor. I have one other request related to it. And I don’t mean to go to the well, but there was an additional line of questioning yesterday related to Government Exhibit 132 with Agent Heide. I’m happy to provide a copy of it, if you would like.

THE COURT: Just remind me what it is.

MR. BERKOWITZ: It’s the document they sought to admit between Rodney Joffe, David Dagon, and Manos Antonakakis, “Is this a plausible explanation?”

THE COURT: Yes, I know that one. Actually, pass it up.

MR. BERKOWITZ: Your Honor, I went back and read the basis for your admitting the document, which was that it was not hearsay because there was a statement, “can you review,” and a question, “is this a plausible explanation?” I think we all contemplated at the time that both Mr. Dagon and Mr. Antonakakis were on the witness list and might testify.

You did allow it in. We didn’t object on the basis that you had previously ruled on it.

The manner in which it was used with the witness, I think, didn’t comply with the spirit of the Court’s ruling. There were questions asked related to “if you had spoken with Mr. Dagon, and you were aware of this communication” words to the effect of “would that have been concerning?”

And the witness — and I’m not suggesting that it was elicited intentionally, but the witness said “it would concern me because it appears as if it’s fabricated.”

Berkowitz noted that (like the Clinton tweet before it, though Berkowitz didn’t make the connection) that exchange got reported in the press.

That’s been reported in the press, even though you struck it from the record at our request.

Our remedy request, Your Honor, in light of that, and in light of the lack of probative value of that document with no connection to Mr. Sussmann, would be to strike the question and answering related to that document, to strike that document from the record, and not allow the prosecution team to use it with any defense witnesses, as well as not to use it in argument because it would have been stricken from the record.

We think the probative value of that document at this stage is minimal, and I expect that if it is published to the jury and used in any way, the jurors will associate it with the fabrication comment. And you worked real hard — and we have all worked really hard — to keep out the accuracy of the data. And the prejudicial nature of the document and the testimony associated with it is something that we think, while it can’t be remedied, and the bell can never be unrung, they should not be reminded and put before them. [my emphasis]

After having just been scolded, DeFilippis nevertheless made a bid to keep the document that might trigger the improperly elicited comment in as evidence.

Michael Keilty — the closest thing to a grown-up on this team — then tried to explain away Algor’s flouting of the rules with Novick.

MR. KEILTY: One last thing, Your Honor, just with respect to the final question to Mr. Novick yesterday. I think Your Honor’s aware that the government obviously did not intend for that — to elicit that answer. Instead, it intended to elicit an answer regarding Mr. Novick’s thoughts about whether this was involved with a political entity or political campaign. We didn’t have the opportunity or the benefit of conferring with Mr. Novick prior to Your Honor’s ruling. So we apologize for that, but we just wanted to put on the record some of the reasons why.

THE COURT: Well, you could have asked, “Without telling me who it came from, what was your understanding of the general nature of the source?” Right?

7. Hearsay on Top of Hearsay about Joffe’s Joke about a Job

But the Durham team’s defiance of Cooper didn’t stop there. While Cooper had permitted (with the proper foundation) a Joffe email that elicited feedback, Cooper had excluded an email — sent to someone never identified as a witness in this case — in which Joffe had joked about working in cybersecurity under a Clinton Administration. Nevertheless, as part of a long exchange with retired FBI Agent Tom Grasso in which DeFilippis asked Grasso materiality questions about stuff he heard about but had no firsthand knowledge of — each time presented as fact rather than as a conspiracy that Durham had explicitly been prohibited from presenting because they hadn’t charged it — Durham’s lead prosecutor raised the allegation he had been prohibited from raising.

Q. So when he came to you or at any time after that, did Mr. Joffe disclose to you whether he was working on this with representatives of the — of a political campaign?

A. He did not, no.

Q. And do you think you’d remember if he had told you at the time, you know, “I’m doing this, working with some folks who are working with the political campaign”?

A. I would think I would remember that, yes.

Q. So Mr. Joffe didn’t tell you — have you heard of a firm called Fusion GPS?

A. I have heard of Fusion GPS, yes, sir.

Q. Okay. And are you generally aware that they had — without getting into any specific work you did, are you generally aware that they had done some work for the Clinton Campaign at the time?

A. Yes, I —

Q. Okay.

A. Yes, I am aware of that, yes.

Q. So Mr. Joffe didn’t say he was working with Fusion GPS on this project?

A. Not that I recall, no.

Q. And Mr. Joffe never told you that, you know, this project had arisen in the context of opposition research that the Clinton Campaign was working on?

A. I do not recall that coming up, no.

Q. If Mr. Joffe had come to you and said, “I’m working with some investigators and some lawyers who are working for the Clinton Campaign, and, you know, that’s part of what I’m doing here with this information, can you please keep my name out of this,” would you have viewed that differently than you viewed the information as you got it?

[snip]

Q. Okay. And in the 2016 election period, you and Mr. Joffe, I imagine, never discussed politics or anything like that?

A. I don’t recall political discussions with him, no.

Q. Okay. And did you — so you certainly didn’t know that he was working with folks affiliated with a particular political party or campaign on what he brought to you, right?

A. I have no recollection of that.

Q. And any recollection of hearing or learning that he was expecting any kind of position in a future political administration?

A. I do not have a recollection of that other than — let me rephrase that. I have a recollection of that being reported in the media, but I don’t have a —

MR. BERKOWITZ: Objection, Your Honor.

THE COURT: Sustained. [my emphasis]

When Berkowitz raised this exchange at the end of the day, Judge Cooper noted that the several meetings they had with Grasso were ample basis for DeFilippis to understand that Grasso had no knowledge of those matters (or, for that matter, the topics covered by that entire line of questioning).

MR. BERKOWITZ: Judge, I regret that I’m going back to this same issue that we started the day with where  you admonished counsel to be careful of the guardrails related to evidentiary rulings. We had another situation n today that I think ran afoul of your comments. There was an email that was the subject of a motion related to Mr. Joffe communicating about a potential job. And in the cross-examination of Agent Grasso there was a question about, “He certainly didn’t know he was working with folks affiliated with a particular political party or campaign when he brought that to you. Right?”

Answer: “I have no recollection of that.” I didn’t object.

And then he followed up with: “And any recollection of hearing or learning that he was expecting any kind of position in a future political administration, knowing that there was nothing in the 3500 materials related to that and knowing an objection that was sustained could elicit a belief that he would do that?”

The witness answered, “I do not have a recollection of that other than — let me rephrase that. I have a recollection of that being reported in the media.”

I objected. Your Honor, they had met with this witness four times. They had pretried him twice. There was nothing in the 3500 material to suggest that he had any belief of that or any recollection or any connection.

And it’s another instance in a litany of instances that’s suggesting to the jury topics and issues that were the subject of your ruling. And I, you know, particularly  with the potential testimony of Mr. Sussmann coming up, I don’t know what else to say or to do, and we’ll consider filing a motion. But I wanted to raise the issue, and I take no joy in continuing to do this. But I cannot stand by while it continues to go on.

DeFilippis at first tried to excuse blowing off Cooper’s ruling by saying that the rules for cross-examination are different. But not if the witness was originally a witness for the prosecution.

THE COURT: Counsel?

MR. DeFILIPPIS: Yes, Your Honor. I guess we’re glad that Mr. Berkowitz raised it in the sense that, you know, typically the rules for cross-examination are different from evidence presented in a case in chief. And if there is a good-faith basis to ask — inquire as to knowledge of a matter, Your Honor, the government didn’t phrase the question tethered to any email or refer to any hearsay.

It was just inquiring as to knowledge and then inquiring as to whether that fact would be relevant to what  it is that Mr. Grasso’s interactions with Mr. Joffe were.

So if, again if the Court wants —-

THE COURT: Counsel, I don’t disagree with that, but you got to have a good faith basis for asking the question. Right? And if you prepped this guy and he’s never said anything about it, then there’s no good-faith basis. Okay? Him reading it in The New York Times or whatever is not a good-faith basis.

Then DeFilippis claimed that the question — which came after two earlier ones in which he asked Grasso questions about things he had “heard of” — was not deliberately intended to elicit such a response.

MR. DeFILIPPIS: Yeah, and to be clear, Your Honor, the portion where he said he read in the — we didn’t know that, and we wouldn’t have intentionally elicited something from a press account. So we will certainly be careful.

THE COURT: He was the defense’s witness here, but he was on your witness list. You should have known. If there was a basis to ask that question, you should have known what it was.

MR. DeFILIPPIS: Yeah. Understood, Your Honor.

Only after this exchange on prosecutors using someone who had originally been a government witness to invite speculation did Cooper exclude the entire email discussion involving Heide.

THE COURT: In that vein, let’s go back to GX-132 the admission of the email did not sit well with me yesterday, and it still does not sit well with me.

The Court ruled that the document was [sic] hearsay originally because it contained a question and a request, as opposed to an assertion. But the Court made clear in its order that, in order to be admitted, it would still need a proper foundation. The witness through which the document ultimately was admitted, albeit not without an objection from the defense, was Mr. Heide, who, as far as I could tell, had no personal knowledge whatsoever of the email. He didn’t know Mr. Joffe. He didn’t know the researchers who received it. He obviously was not a party to the email. So frankly, I don’t see how he could testify to that email in his personal knowledge as required by Rule 602.

So for that reason, I don’t think it was properly admitted through that witness. As I said yesterday, we had expected at least two of the researchers to testify based on who was on the government’s list. And I think it would have been properly admissible through those people to explain how the data came into being  as the Court ruled prior to trial. So I am going to exclude that email as well as any testimony by Mr. Heide describing his interpretation or views or thoughts on the email. Okay?

Conspiracy theory

This repeated defiance of Judge Cooper was treated as one after another evidentiary issue, usually prosecutors sneaking in hearsay with no basis. Ultimately, however, it was about a more basic ruling Judge Cooper had made, that this trial would not be about a conspiracy theory that Durham wanted to criminalize without charging.

As Berkowitz observed in his close,

This case is not about a giant political conspiracy theory. It’s about a short meeting.

[snip]

So the people who were part of this large political conspiracy theory are the people at HFA, Rodney Joffe, and Fusion GPS. They’re the people that are supposedly involved in this conspiracy.

There will be a lot said about this trial, no matter the verdict. But the serial defiance of the Durham prosecutors was a successful attempt to do something else that Judge Cooper had prohibited: to criminalize, under a conspiracy theory, perfectly legal behavior.

OTHER SUSSMANN TRIAL COVERAGE

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

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

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

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

John Durham’s Lies with Metadata

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

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

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

Jim Baker’s Tweet and the Recidivist Foreign Influence Cheater

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

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

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

Technical Exhibits, Michael Sussmann Trial

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

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

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

The Staples Receipt and FBI’s Description of Michael Sussmann Sharing a Tip from Hillary

“and” / “or” : How Judge Cooper Rewrote the Michael Sussmann Indictment

 

“and” / “or” : How Judge Cooper Rewrote the Michael Sussmann Indictment

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

I’ve been tracking a dispute about the jury instructions in the Michael Sussmann trial, but only got time to check the outcome last night. At issue was whether some of the extraneous language from the indictment would be included in the description of the charge.

Here’s the language the grand jury approved in the indictment.

O]n or about September 19, 2016, the defendant stated to the General Counsel of the FBI that he was not acting on behalf of any client in conveying particular allegations concerning a Presidential candidate, when in truth, and in fact, and as the defendant knew well, he was acting on behalf of specific clients, namely, Tech Executive-1 and the Clinton Campaign. [my emphasis]

Sussmann had wanted the instructions to include that language claiming Sussmann was lying to hide two clients.

Mr. Sussmann proposes modifying the last sentence as follows, as indicated by underlining: Specifically, the Indictment alleges that, on or about September 19, 2016, Mr. Sussmann, did willfully and knowingly make a materially false, fictitious, and fraudulent statement or representation in a matter before the FBI, in violation of 18 U.S.C. § 1001(a)(2), namely, that Mr. Sussmann stated to the General Counsel of the FBI that he was not acting on behalf of any client in conveying particular allegations concerning Donald Trump, when, in fact, he was acting on behalf of specific clients, namely, Rodney Joffe and the Clinton Campaign.5 The government objects to the defense’s proposed modification since it will lead to confusion regarding charging in the conjunctive but only needing to prove in the disjunctive.

When Judge Cooper instructed the jury, however, he rewrote the indictment approved by the grand jury to reflect that maybe Sussmann was just hiding one client.

Specifically, the Indictment alleges that in a meeting on September 19, 2016, Mr. Sussmann did willfully and knowingly make a materially false, fictitious, and fraudulent statement or representation in a matter before the FBI in violation of 18 USC 1001(a)(2); namely, that Mr. Sussmann stated to the General Counsel of the FBI that he was not acting on behalf of any client in conveying particular allegations concerning Alfa-Bank and Donald Trump, when, in fact, he was acting on behalf of specific clients, namely Rodney Joffe or the Clinton Campaign. [my emphasis]

Now, perhaps there was some discussion I missed finding that the government only had to prove Sussmann was hiding one client — the disjunctive proof business, above. And perhaps it will not matter — I think Sussmann’s team raised plenty of issues with Jim Baker’s credibility such that the jury will find the whole prosecution preposterous, but I also think Durham’s team may have thrown enough cow manure at the jury to stifle rational thought.

But this slight change — unilaterally replacing “and” with “or” — seems to intervene to help Durham recover from one of the most abusive aspects of the prosecution, his failure to take basic investigative steps before charging Sussmann.

As I’ve repeatedly shown, Durham did nothing to test Michael Sussmann’s sworn explanation for his meeting with Jim Baker — that he wanted to give the FBI an opportunity to intervene before a shitshow story happened during election season — before charging. He spent months and months after the indictment scrambling to find the documentation for the efforts the FBI made to kill the NYT story (and ultimately only found part of that documentation), evidence he should have consulted in advance.

Durham also never subpoenaed Jim Baker for related materials before charging this.

Those two facts are how it was possible that Baker only discovered the September 18, 2016 text in which Sussmann explained he was trying to help the FBI on March 4, 2022, almost six months after the indictment (though Andrew DeFilippis misrepresented this at trial).

We also know from Sussmann’s discovery requests that Durham did little to explore Rodney Joffe’s relationship with the FBI before charging. While Durham knew that Joffe had been an informant — and had forced FBI to remove him as such, allegedly as retaliation because Joffe wouldn’t cooperate with Durham’s investigation — it’s not clear whether Durham had found two instances where Joffe had offered up more information about the Alfa Bank allegations to an FBI agent (not his handler) who knew his identity and could easily have shared it with investigators.

In other words, even if you think Sussmann was attempting to hide the Hillary campaign’s role in the underlying allegations (which is different from hiding the campaign’s role in the meeting with the FBI, though Durham’s team surely hopes the jury misses the distinction), the trial actually presented a fair amount of evidence that Sussmann wasn’t hiding Joffe’s role. The FBI knew of Joffe’s role within days of Sussmann’s meeting.

For months, Durham has been spinning a wild conspiracy theory claiming Joffe had direct ties to the Hillary campaign that he simply didn’t have. That is the conspiracy theory he laid out in the indictment. That is the conspiracy theory he should be held to.

But Cooper rewrote that part of the indictment such that Durham is not being held to his own conspiracy theories when it matters.

OTHER SUSSMANN TRIAL COVERAGE

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

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

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

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

John Durham’s Lies with Metadata

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

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

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

Jim Baker’s Tweet and the Recidivist Foreign Influence Cheater

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

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

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

Technical Exhibits, Michael Sussmann Trial

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

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

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

The Staples Receipt and FBI’s Description of Michael Sussmann Sharing a Tip from Hillary

 

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

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

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

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

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

The coming onslaught of Fusion documents

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

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

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

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

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

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

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

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

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

1:37PM: Fritsch responds,

the DNS stuff? not us at all

outside computer experts

we did put up an alfa memo unrelated to all this

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

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

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

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

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

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

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

1:44PM: Fritsch to Lichtblau:

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

[mediafire link] [my emphasis]

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

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

tuta sent me this guidance

[snip]

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

2:32PM: Fritsch to Lichtblau:

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

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

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

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

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

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

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

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

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

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

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

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

Sussmann will argue that keeping secrets facilitates national security interests.

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

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

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

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

A. Yes.

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

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

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

A. I recall that exact statement.

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

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

A. I do.

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

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

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

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

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

Q. Changed back to being a witness?

A. To a witness, yes.

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

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

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

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

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

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

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

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

Fun with missing Bates stamps

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

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

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

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

Calling the agent of a foreign agent to ask for comment

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

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

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

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

A. Yes.

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

A. Yes.

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

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

[snip]

A. I’m sorry?

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

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

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

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

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

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

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

A. Yes.

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

A. Yes.

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

A. Yes.

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

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

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

A. Yes.

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

A. Yes.

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

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

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

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

[snip]

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

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

[snip]

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

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

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

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

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

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

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

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

Agent Gaynor belatedly rediscovers the Mediafire package

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

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

He included Moffa and Joe Pientka on that email.

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

OTHER SUSSMANN TRIAL COVERAGE

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

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

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

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

John Durham’s Lies with Metadata

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

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

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

Jim Baker’s Tweet and the Recidivist Foreign Influence Cheater

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

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

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

Technical Exhibits, Michael Sussmann Trial

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

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

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

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

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

Here’s how CNN covered it.

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

Q. Okay.

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

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

A. Starting with “This could”?

Q. Yes.

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

Q. I’m sorry, start at the top.

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

Q. Yes.

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

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

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

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

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

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

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

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

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

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

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

So we think Your Honor’s prior ruling stands.

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

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

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

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

[snip]

THE WITNESS: Yes, Your Honor.

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

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

THE COURTROOM DEPUTY: Everyone can be seated.

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

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

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

THE COURT: Okay.

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

THE COURT: Sure. Sure.

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

THE COURT: You can use anything to refresh.

MR. DeFILIPPIS: Okay.

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

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

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

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

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

THE COURT: Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MR. BERKOWITZ: Correct.

THE COURT: Mr. DeFilippis?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When Michael Sussmann attorney Sean Berkowitz was walking FBI Agent Scott Hellman through the six meetings he had with Durham’s team on Tuesday — meetings he first had as a witness about the investigation into the Alfa Bank allegations and later in preparation for his trial testimony — Berkowitz asked Hellman about how, sometime earlier this year, Andrew DeFilippis and Jonathan Algor asked him whether he could serve as their DNS expert for the trial.

Q And then, more recently, you met with Mr. DeFilippis and I think Johnny Algor, who is also at the table here, who’s an Assistant U.S. Attorney. Correct?

A. Yes.

Q. They wanted to talk to you about whether you might be able to act as an expert in this case about DNS data?

A. Correct.

To Hellman’s credit, he told Durham’s prosecutors — who have been investigating matters pertaining to DNS data for two years — that he only had superficial knowledge of DNS and so wasn’t qualified to be their expert.

Q. You said, while you had some superficial knowledge, you didn’t necessarily feel qualified to be an expert in this case, correct, on DNS data?

A. On DNS data, that’s correct.

It wasn’t until the third day of trial before Durham’s team presented any evidence about the alleged crime. Instead, Durham’s first two witnesses were their nominal expert, David Martin, and Hellman, who told Durham he wasn’t an expert but who offered opinions he neither had the expertise to offer nor had done the work to substantiate.

That’s important, because DeFilippis used him to provide an opinion only an expert should give. And virtually everything about his testimony — his claim to have relied on the data in the materials without looking at the thumb drives, an apparently made up claim about the timing of the analysis, and behaviors that the FBI normally finds suspicious — suggest he’s not only not a DNS expert qualified to assess this report, but his assessment of the white paper Sussmann shared also suffers from serious credibility issues.

The battle over an expert

The testimony of the nominal expert, David Martin, was remarkably nondescript, particularly given the fight that led up to his testimony. Durham’s team sprung even having an expert on Sussmann at a really late date: on March 30, after months of blowing off Sussmann’s inquiries if they would. Not only did they want Martin to explain to the jury what DNS and Tor are, Durham’s team explained, but they also wanted him to weigh in on the validity of conclusions drawn by researchers who had found the anomaly.

  • the authenticity vel non of the purported data supporting the allegations provided to the FBI and Agency-2;
  • the possibility that such purported data was fabricated, altered, manipulated, spoofed, or intentionally generated for the purpose of creating the false appearance of communications;
  • whether the DNS data that the defendant provided to the FBI and Agency-2 supports the conclusion that a secret communications channel existed between and/or among the Trump Organization, Alfa Bank, and/or Spectrum Health;

[snip]

  • the validity and plausibility of the other assertions and conclusions set forth in the various white papers that the defendant provided to the FBI and Agency-2;

As Sussmann noted in his motion to limit Martin’s testimony, he didn’t mind the testimony about DNS and Tor. He just didn’t want this trial to be about the accuracy of the data, especially without the lead time to prepare his own expert.

As the Government has already disclosed to the defense, should the defense attempt to elicit testimony surrounding the accuracy and/or reliability of the data that the defendant provided to the FBI and Agency-2, Special Agent Martin would explain the following:

  • That while he cannot determine with certainty whether the data at issue was cherry-picked, manipulated, spoofed or authentic, the data was necessarily incomplete because it was a subset of all global DNS data;
  • That the purported data provided by the defendant nevertheless did not support the conclusions set forth in the primary white paper which the defendant provided to the FBI;
  • That numerous statements in the white paper were inaccurate and/or overstated; and
  • That individuals familiar with these relevant subject areas, such as DNS data and TOR, would know that such statements lacked support and were inaccurate and/or overstated.

Based off repeated assurances from Durham that they weren’t going to make accuracy an issue in their case in chief, Judge Cooper ruled that the government could only get into accuracy questions if Sussmann tried to raise the accuracy of the data himself. But if he said he relied on the assurances of Rodney Joffe, it wouldn’t come in.

The government suggests that Special Agent Martin’s testimony may go further, depending on what theories Sussmann pursues in cross-examination or his defense case. Consistent with its findings above, the Court will allow the government’s expert to testify about the accuracy (or lack thereof) of the specific data provided to the FBI here only in certain limited circumstances. In particular, if Sussmann seeks to establish at trial that the data were accurate, and that there was in fact a communications channel between Alfa Bank and the Trump Campaign, expert testimony explaining why this could not be the case will become relevant. But, as the Court noted above, additional 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”).

Then, days before the trial, the issue came up again. Durham sent a letter on May 6 (ten days before jury selection), raising a bunch of new issues they wanted Martin to raise. Sussmann argued that Durham was trying to expand the scope of what his expert could present. Among his complaints, Sussmann argued that Durham was trying to make a materiality argument via his expert witness.

Third, the Special Counsel apparently intends to offer expert testimony about the materiality of the false statement alleged in this case. Indeed, the Special Counsel’s supplemental topic 9 regarding the importance of considering the collection source of DNS data is plainly being offered to prove materiality. But the Special Counsel did not disclose this topic in either his initial expert disclosure or Opposition, and the Court’s ruling did not permit such testimony. The Special Counsel should not now be allowed to offer an entirely new expert opinion under the guise of eliciting testimony regarding the types of conclusions that can be drawn from a review of DNS data.

Judge Cooper considered the issue Tuesday morning, before opening arguments. When asking why Martin had to present the concept of visibility, DeFilippis explained that Hellman–the Agent who’s not an expert on DNS but whom DeFilippis nevertheless had asked to serve as an expert on DNS–would talk about the import of knowing visibility to assess data.

THE COURT: Well, but isn’t the question here whether a case agent — is your case agent later going to testify that that was something that the FBI looked at or wanted to look at in this case and was unable to do so, and that that negatively affected the FBI’s investigation in some way? MR.

DeFILIPPIS: Yes, and I expect Special Agent Hellman, who will testify likely today, Your Honor, I expect that that is a concept that he will say was relevant to the determination that — determinations he was making as he drafted analysis of the data that came in. And, again, I don’t think we — for example, another way in which this comes up is that the FBI routinely receives DNS data from various private companies who collect that data, and it is always relevant sort of the breadth of visibility that those companies have. So it’s relevant generally, but also in this particular case the fact that the FBI did not have insight into the visibility or lack of visibility of that data certainly affected steps that the FBI took.

THE COURT: Okay. But Mr. Sussman has not been accused of misrepresenting who the source is. He’s simply — but rather who the client is. So how do you link that to the materiality of the alleged false statement?

MR. DeFILIPPIS: Because, Your Honor, I think we view them as intertwined. It was because — it was in part because Mr. Sussman said he didn’t have a client that made it more difficult for the FBI to get to the bottom of the source of this data or made it less likely they would, and so — and, again, I don’t think we expect to dwell for a long time on this, but I think the agents and the technical folks will say that that is part of why the origins of the data are extremely relevant when they took investigative steps here.

When Cooper noted Sussmann’s objection to Martin discussing possible spoofing of data, DeFilippis again answered not about what Martin would testify, but what Hellman would.

As DeFilippis explained, he claimed to believe that under Cooper’s ruling, the government could put in any little thing they wanted that they claimed had been part of the investigation.

And Special Agent Hellman, when he testifies today — now, Your Honor’s ruling we understand to permit us to put into evidence anything about what the FBI analyzed and concluded as its investigation unfolded because that goes to the materiality of the defendant’s statement. So Special Agent Hellman — through Agent Hellman we will offer into evidence a paper he prepared when the data first came in, and among its conclusions is that the data might — he doesn’t use the word “spoof” — but might have been intentionally generated and might have been fabricated. That was the FBI’s initial conclusion in what it wrote up.

So in order for the jury to understand the course of the FBI’s investigation and the conclusions that it drew at each stage, those concepts are at the center of it.

[snip]

MR. DeFILIPPIS: Okay. Your Honor, I’m sorry. We understood your ruling to be that the FBI’s conclusions as it went along were okay as long as we weren’t asserting the conclusion that it was, in fact, fabricated. You know, I mean, it’s difficult to chart the course of the FBI’s investigation unless we can elicit at each stage what it is that the FBI concluded.

Judge Cooper ordered that references to spoofing be removed — leading to a last minute redaction of an exhibit — but permitted a discussion of visibility to come in.

After all that fight, Martin’s testimony was not only bland, but it was recycled powerpoint. He not only admitted lifting the EFF description of Tor for his PowerPoint, but he included their logo.

Hellman delivers the non-expert expert opinion Durham was prohibited from giving

As I said, Martin was witness number one, Hellmann — the self-described non-expert in DNS — was witness number two.

Even though Hellman admitted, again, that he’s not a DNS expert, DeFilippis still had him go over what DNS is.

Q. How familiar or unfamiliar are you with what is known as DNS or Domain Name System data?

A. I know the basics about DNS.

Q. And in your understanding, on a very basic level, what is DNS?

A. DNS is basically how one computer would try and communicate with another computer.

After getting Hellman to explain how he purportedly got chain of custody signatures on September 20, 2016 for the materials Michael Sussmann dropped off with James Baker on September 19, DeFilippis walked Hellman through how, he claimed, he had concluded that the allegations Sussmann dropped off were unsupported. Hellman reviewed the data accompanying the white paper, Durham’s star cybersecurity witness claimed on the stand, and after reviewing that data, determined there was no allegation of a hack in the materials and therefore nothing for the Cyber Division to look at. And, as a report he wrote “within a day” summarized, he concluded the methodology was horrible.

As you read the following exchange, know that (as I understand it) some, if not most, of what Hellman describes as the methodology is wrong. Obviously, if Hellman’s understanding of the methodology is wrong, then the opinion that DeFilippis elicits from a guy who admitted he was not an expert on DNS but whom DeFilippis nevertheless asked to serve as his expert witness on DNS before inviting David Martin in to present slides lifted from the Electronic Frontier Foundation instead [Takes a breath] … If Hellman’s understanding of the methodology and the data he’s looking at is wrong, then his opinion about the methodology is going to be of little merit.

With that understanding, note the objection of Sean Berkowitz, who fought DeFilippis’ late hour addition of an expert that DeFilippis wanted to use to opine on the validity of the research, bolded below.

So we looked at the top part, which set out your top-line conclusion. You then have a portion of the paper that says, “The investigators who conducted the research appear to have done the following.” Now, Special Agent Hellman, it appears to be a pretty technical discussion, but can you just tell us, in that first part of the paper, what did you set out and what did you conclude?

A. It looks to be that they were looking for domains associated with Trump, and the way that they did that was they looked at a list of sort of all domains and looked for domains that had the word “Trump” in them as a way to narrow down the number of domains they were looking at.

And then they wanted to find, well, which of that initial set of Trump domains, which of them are email servers associated with those domains. And the way they did that was to search for terms associated with email, like “mail” or other email-related terms to then narrow down their list of domains even further to be Trump-associated domains that were email servers.

Q. And did you opine on the soundness of that methodology? In other words, did you express a view as to whether this was a good way to go about this project?

A. We did not — I did not feel that that was the most expeditious way to go about identifying email servers associated with the domain.

Q. And why was that?

A. You can name an email server anything you want. It doesn’t have to have the words “mail” or “SMTP” in it. And so by — if you’re just searching for those terms, I would wager to guess you would miss an actual email server because there are other — there are other more technical ways that you can use — basically look-up tools, Internet look-up tools where you can say, for any domain, tell me the associated email server. That’s essentially like a registered email server. But the way that they were doing it was they were just looking for key terms, and I think that it just didn’t make sense to me why they would go about identifying email servers that way as opposed to just being able to look them up.

Q. Was there anything else about the methodology used here by the writer or writers of this paper that you found questionable or that you didn’t agree with?

A. I think just the overall assumptions that were being made about that the server itself was actually communicating at all. That was probably one of the biggest ones.

Q. And what, if anything, did you conclude about whether you believed the authors of the paper or author of the paper was fairly and neutrally conducting an analysis? Did you have an opinion either way?

MR. BERKOWITZ: Objection, Your Honor.

THE COURT: Basis?

MR. BERKOWITZ: Objection on foundation. He asked him his opinion. He’s not qualified as an expert for that.

THE COURT: I’ll overrule it.

A. Sorry, can you please repeat the question?

Q. Sure. Did you draw a conclusion one way or the other as to whether the authors of this paper seemed to be applying a sound methodology or whether, to the contrary, they were trying to reach a particular result? Did you —

A. Based upon the conclusions they drew and the assumptions that they made, I did not feel like they were objective in the conclusions that they came to.

Q. And any particular reasons or support for that?

A. Just the assumption you would have to make was so far reaching, it didn’t — it just didn’t make any sense.

That’s how, as his second witness, Andrew DeFilippis introduced the opinion of a guy who admitted he wasn’t an expert on DNS that DeFilippis had asked to serve as an expert even though DeFilippis should have known that he didn’t have the expertise to offer expert opinions like this.

If Sussmann is found guilty, I would bet a great deal of money this stunt will be one part of a several pronged appeal, because Judge Cooper permitted DeFilippis to do precisely what Cooper had prohibited him from doing before trial, and he let him do it with a guy who by his own admission is not a DNS expert.

Cyber Division reaches a conclusion without looking at the thumb drives

Now let’s look at what Hellman describes his own methodology to be.

First, it was quick. DeFilippis seems to think that serves his narrative, as if this stuff was so crappy that it took a mere glimpse to discredit it.

Q. Special Agent Hellman, how long would you say it took you and Special Agent Batty to write this up?

A. Inside of a day.

Q. Inside of a day, you said?

Berkowitz walked Hellman through the timeline of it, and boy was it quick. There’s some uncertainty about this timeline, because John Durham’s office doesn’t feel the need to make clear whether exhibits they’re turning over in discovery reflect UTC or ET. But I think I’ve laid it out below (Berkowitz got it wrong in cross-examination, which DeFilippis used to attack his analysis).

As you can see, not only were FBI’s crack cybersecurity agents making a final conclusion about the data within a day but — by all appearances — they did so before they had ever looked at the thumb drives included with the white papers. From the record, it’s actually not clear when — if!!! — they looked at the thumb drives. But it’s certain they had their analysis finalized no more than one working day after they admitted they hadn’t looked at the thumb drive, which was itself after they had already decided the white paper was shit.

Timeline

September 20, 10:20AM: Nate Batty tells Jordan Kelly they’ll come from Chantilly to DC get the thumb drives

September 20, 10:31AM: Jordan Kelly tells Batty the chain of custody is “Sussman to Strzock to Sporre”

September 20, 12:29PM: Hellman and Nate Batty accept custody of the thumb drives

September 20, 1:30PM: Hour drive back to Chantilly, VA

September 20, 4:44PM: Hellman appears to explain the process of picking up the thumb drives to jrsmith, claiming to have spoken to Baker on the phone. jrsmith jokes about “doctor[ing] a chain of evidence form.”

September 20, 4:58: Hellman says the more he reads the report “it feels a little 5150ish,” suggesting (as he explained to Berkowitz on cross) the authors suffered from a mental disability, and Hellman complains that “it contains an absurd quantity of data” to which Batty responded, the data seemed “inserted to overwhelm and confuse the reader.”

September 21, 8:47AM: Batty tells Hellman their supervisor wants them to “write a brief summary of what we think about the DNC report.” Batty continues by suggesting that “we should at least plug the thumb drives into Frank’s computer and look at the files…”

9/22, 9:44AM: Curtis Heide, in Chicago, asks Batty to send the contents of the thumb drive so counterintelligence agents can begin to look at the evidence. The boys in Cyber struggle to do so for a bit.

9/22, 2:49PM: Batty asks Hellman what he did with the blue thumb drive.

9/22, 4:46PM: Batty sends “analysis of Trump white paper” to others.

In other words, the cyber division spent less than 28 hours doing this analysis.

Yes. The analysis was quick.

Hellman says his analysis is valid because he looked at the data

The hastiness of the analysis and the fact that Hellman didn’t look at the thumb drive before making initial conclusions about the research is fairly problematic, because when he discussed his own methodology, he described the data driving everything.

Q. Now, what principally, from the materials, did you rely on to do your analysis?

A. So it was really two things. It was looking at the data, the technical data itself. There was a summary that it came with. And then also we were comparing what we saw in the data, sort of the story that the data told us, and then looking at the narrative that it came with and comparing our assessment of the data to the narrative.

[snip]

Q. And in connection with that analysis, did you also take a look at the data itself that was underlying this paper?

A. Yes

[snip]

Q. And if we look at that first page there, Agent Hellman, what kind of data is this?

A. It appears to be — as far as I can tell, it looks to be — it’s log data. So it’s a log that shows a date and a time, a domain, and an IP address. And, I mean, that’s — just looking at this log, there’s not too much more from that.

Q. And do you understand this to be at least a part of the DNS data that was contained on the thumb drives that I think you testified about earlier?

A. Yes.

[snip]

A. It would have mattered — well, I think on one hand it would not have mattered from the technical standpoint. If I’m looking at technical data, the data’s going to tell me whatever story the data’s going to tell me independent of where it comes from. So I still would have done the same technical analysis.

But knowing where the data comes from helps to tell me — it gives me context regarding how much I believe in the data, how authentic it is, do I believe it’s real, and do I trust it. [my emphasis]

He repeated this claim on cross with Berkowitz.

I just disagreed with the conclusions they came to and the analysis that they did based upon the data that came along with the white paper.

When Berkowitz asked him why counterintelligence opened an investigation when Cyber didn’t, Hellman suggested that the people in CD wouldn’t understand how to read the technical logs.

A. Um, I think they’d probably be looking at it from the same vantage point, but if you’re not — you don’t have experience looking at technical logs, you may not have the capability of doing a review of those logs. You might rely on somebody else to do it. And perhaps counterintelligence agents are going to be thinking about other investigative questions. So I guess it would probably be a combination of both.

“If I’m looking at technical data,” DeFilippis’ star cybersecurity agent explained, “the data’s going to tell me whatever story the data’s going to tell me.”

Except he didn’t look at the technical data, at least not the data on the thumb drives, before he reached his initial conclusion.

Hellman makes a claim unsupported by the data in his own analysis

I’ll leave it to people more expert than me to rip apart Hellman’s own analysis of the white paper Sussmann shared with the FBI. In early consultations, I’ve been told he misunderstood the methodology, misunderstood how researchers used Trump’s other domains to prove that just one had this anomaly (that is, as a way to test their hypothesis), and misstated the necessity of some long-term feedback loop for this anomaly to be sustained. Again, the experts will eventually explain the problems.

One part of his report that I know damns his methodology, however, is where he says the researchers,

Searched “…global nonpublic DNS activity…” (unclear how this was done) and discovered there are (4) primary IP addresses that have resolved to the name “mail1.trump-email.com”. Two of these belong to DNS servers at Russian Alfa Bank. [my emphasis]

This is the point where every single person I know who assessed these allegations who is at least marginally expert on DNS issues stopped and said, “global nonpublic DNS activity? There are only a handful of people that could be!” See, for example, this Robert Graham post written in response to the original Slate story, perhaps the most influential critique of the allegations, probably even on Durham. Every marginally expert person I know has, upon reading something like that, tried to figure out who would have that kind of visibility on the data, because that kind of visibility, by itself, would speak to their expertise. Those marginally expert people did not have the means to identify the possible sources of the data. But a lot of them — including the NYTimes!! — were able to find people who had that kind of visibility to better understand the anomaly. When Hellman read that, he simply said, “unclear how this was done” and moved on.

Still, Hellman did not contest (or possibly even test) the analysis that said there were really just four IP addresses conducting look-ups with the Trump marketing server. Dozens of people have continued to test that result in the years since, and while there have been adjustments to the general result, no one has disproven that the anomaly was strongest between Alfa Bank and Trump’s marketing domain.

Where Hellman’s insta-analysis really goes off the rails, however, is in his assertion that, “it appears that the presumed suspicious activity began approximately three weeks prior to the stated start date of the investigation conducted by the researcher.”

I’m not a DNS expert, but I’m pretty good at timelines, and by my read here are the key dates in the white paper.

May 4, 2016: Beginning date for look-up analysis

July 28, 2016: Lookup for hostnames yielding Trump

September 4, 2016: End date for look-up analysis

September 14, 2016: Updated search for look-ups covering June 17 through September 14

The start date reflected in this white paper is July 28, 2016. Three weeks before that would be July 7, 2016, a date that doesn’t appear in the white paper. The anomaly started 85 days before the start date reflected in this white paper (and the start date for the research began months earlier, but still over three weeks after the May 4 start date).

I don’t understand where he got that claim. But DeFilippis repeated it on the stand, as if it were reflected in the data, I guess believing it makes his star cybersecurity agent look good.

DeFilippis’ star cybersecurity agent has some credibility problems

There are a few more problems with the credibility of Hellman, DeFilippis’ star cybersecurity agent who is not a DNS expert. One of those is that he compared notes with his boss before first testifying.

Q: And you also spoke with Nate Batty around that time, Right?

A: Yes.

Q: Did you talk to him before the first interview to kind of get ready for it?

A: I think so, but I don’t remember.

Q: Is that something that you encourage witnesses to do, to talk to other witnesses to see if your recollections are consistent?

A: No.

In addition, notwithstanding that Batty was told that Sussmann was in the chain of control, Batty claimed to believe the source was “anonymous” and Hellmann claimed to believe it was sensitive–a human source. Even after comparing notes their stories didn’t match.

There are other problems with Hellman’s memory of the events, notably that in his first interview — the one he did shortly after comparing notes with Batty — he claimed that Baker had told him he was unable to identify the source of the data.

Q. And when you went to Mr. Baker’s office, do you remember what, if anything, was said during that discussion or during that interaction?

A. I remember being in the office, but I don’t distinctly recall what the conversation was. I do remember after the fact, though, that I was frustrated that I was not able to identify who had provided these thumb drives, this information to Mr. Baker. He was not willing to tell me.

At the very least, this presents a conflict with Baker’s testimony, but it’s also another testament to how variable memories can be four years, much less six years, after the fact.

Hellman also claimed, when asked on cross, that the first time he had ever seen the reference to a “DNC report” in September 21 Lync notes he received was two years ago, when he was first interviewed.

A: The first time I saw this was two years ago when I was being interviewed by Mr. DeFilippis, and I don’t recall ever seeing it. I never had any recollection of this information coming from DNC. I don’t remember DNC being a part of anything we read or discussed.

Q: Okay. When you say, the first time you saw it was two years ago when you met with Mr. DeFilippis, that’s not accurate. Right? You saw it on September 21st, 2016. Correct?

A: It’s in there. I don’t have any memory of seeing it.

And when Sean Berkowitz asked about Hellman the significance of seeing the reference to a “DNC report” first thing on September 21, he described that DeFilippis suggested to him that it was likely just a typo for DNS.

Q. What’s your explanation for it?

A. I have no recollection of seeing that link message. And there is — I have absolutely no belief that either me or Agent Batty knew where that data was coming from, let alone that it was coming from DNC. The only explanation that popped or was discussed was that it could have been a typo and somebody was trying to refer to DNS instead of DNC.

Q. So you think it was a typo?

A. I don’t know.

Q. When you said the only one suggesting it — isn’t it true that it was Mr. DeFilippis that suggested to you that it might have been a typo recently?

A. That’s correct.

When asked about a topic for which there was documentary evidence Hellman had seen in real time that he claimed not to remember, Andrew DeFilippis offered up an explanation that Hellman then offered on the stand.

On the stand, DeFilippis also tried to get Hellman to call a marketing server a spam server, though Hellman resisted.

Once you look closely, I don’t think Hellman’s testimony helps Durham all that much. What it proves, however, is that DeFilippis attempted to coach testimony.

One final thing. DeFilippis got his star cybersecurity agent to observe that the researchers didn’t include their name or other markers on their report, as if that’s a measure of unreliablity.

Q. Now, let me ask you, were you able to determine from any of these materials who had actually drafted the paper alleging the secret channel?

A. No.

Q. In other words, was it contained anywhere in the documents?

Here’s what Hellman’s own report looks like:

There’s a unit — ECOU1 — but the names of the individual agents appear nowhere in the report. The report is not dated. It does not specifically identify the white papers and thumb drives by control numbers, something key to evidentiary analysis.

It has none of the markers of regularity you’d expect from the FBI. Hellman’s own analysis doesn’t meet the standards that DeFilippis uses to measure reliability.

This long-time Grand Rapids resident is furious that Hellman judged there was no hack

Everything above I write as a journalist who has tried to understand this story for almost six years. Between that and 18 years of covering national security cases, I hope I now have sufficient familiarity with it to know there are real problems with Hellman’s analysis.

But let me speak as someone who lived in Grand Rapids for most of this period, and had friends who had to deal with the aftermath of Spectrum Health appearing at the center of a politically contentious story.

Hellman had, as he testified, two jobs. First, he was supposed to determine whether there were any cyber equities, then he was supposed to do some insta-analysis of the data without first looking at the thumb drives.

According to Hellman, there was no hack.

I was asked to perform two tasks in tandem with Special Agent Batty, and our tasks were, number one, to look at this data, look at the data and look at the narrative that it came with and identify were there any what’s known as cyber equities. And by that it was, was there any allegation of a hacking. That’s what cyber division does. We investigate hacking. So was there an allegation that somebody or some company or some computer had been hacked. That was first.

[snip]

As I mentioned, the first piece was we had to identify was there any real allegation of hacking; and there was not. That was our first task by our supervisor. There was not.

[snip]

The allegation was that someone purported to find a secret communication channel between the Trump organization and Russia. And so we identified first that, no, we didn’t think that there was any cyber equity, meaning that there was probably nothing more for cyber to investigate further, if there was no hacking crime.

Except here’s what the white paper says about Spectrum, that Grand Rapids business that was swept up in this story.

The Spectrum Health IP address is a TOR exit node used exclusively by Alfa Bank. ie.,  Alfa Bank communications enter a Tor node somewhere in the world and those communications exit, presumably untraceable, at Spectrum Health There is absolutely no reason why Spectrum would want a Tor exit node on its system. (Indeed, Spectrum Health would not want a TOR node on its system because, by its nature, you never know what will come out of a TOR node, including child pornography and other legal content.)

We discovered that Spectrum Health is the victim of a network intrusion. Therefore, Spectrum Health may not know it has a TOR exit node on its network. Alternatively, the DeVos family may have people at Spectrum who know there is a TOR node. i.e.,  could have been placed there with inside help.

When faced with some anomalous activity that seemed to tie into the weird DNS traffic, the experts suggested that maybe the Spectrum hack related to the DNS anomaly.

To be clear, this Tor allegation is the the weakest part of this white paper. You will hear about this to no end over the next week. It was technically wrong.

But the allegation in the white paper is that maybe a recent hack of Spectrum Health is why it had this anomalous traffic with Trump’s marketing server. There’s your hack!!

Had the people at FBI’s cybersecurity side actually treated this as a possible compromise, it might have addressed the part of this story that never made any sense. And we might not, now, six years later, be arguing about what might explain it.

Let me be clear: I do think the white paper overstated its conclusions. I don’t think secret communication is the most obvious explanation here.

But there are hacks and then there are hacks in the testimony of DeFilippis’ star cybersecurity agent.

Update: Corrected an attribution to Batty instead of Hellman.

Update: Fixed my own timeline.

Update: Added link to Robert Graham’s analysis.

Update: This may be where Hellman gets his erroneous three week claim. There were two histograms included with the report. One, the close-up, does start around July 7.

But the broader scope shows look-ups earlier, very actively in June, but with a few stray ones in May.

The government didn’t include the pages and pages of logs that Batty complained about in this exhibit. Had they, it would be clear to jurors that this claim is false.

Update: Correction on two points. First, I think I’ve finally got the Lync exchange above correct between Batty and Hellman. As noted, Hellman complains that “it contains an absurd quantity of data” to which Batty responded, the data seemed “inserted to overwhelm and confuse the reader.”

Second, I was wading through exhibits this morning and found the exhibit of 19 pages of logs. Here’s just a subset of them, including logs that go back to May 2016. Hellman didn’t look even at the printed page of log files closely enough to realize his claim about three weeks was wrong. These data weren’t intended to overwhelm the reader. They were there to show how the anomaly accelerated during the election.