Posts

FBI’s Russian Hack-and-Leak Investigation as Disclosed by the Sussmann Trial

/61 Comments/in , , /by

Now that he has been acquitted, it’s easy to conclude the Michael Sussmann prosecution was a pointless right wing conspiracy theory. It was!

But the exhibits that came out at trial are a worthwhile glimpse of both the FBI’s investigation into the 2016 Russian hack of Democrats and the Bureau’s shoddy investigation of the Alfa Bank anomalies.

I’ve started unpacking what a shitshow the FBI investigation into the latter was here and collecting technical exhibits pertaining the investigation here (though that post is currently out of date).

As to the Russian hack-and-leak, Sussmann’s team facilitated the process with a summary exhibit they included showing a selection of FBI communications pertaining to the investigation that either involve or mention Sussmann. Sussmann introduced these documents to show how obvious his ties to the Democrats would have been to the FBI, including to some people involved in the Alfa Bank investigation. A few of these communications refute specific claims Durham made, showing that meetings or communications Durham argued must relate to the Alfa Bank effort could be explained, in one case far more easily, as part of the hack-and-leak response. That is, some of these documents show that Durham was taking evidence of victimization by Russia and using it instead to argue that Sussmann was unfairly victimizing Trump.

 

 

Below, I’ve grouped the communications by topic (though a number of these communications span several topics). Note that Latham & Watkins’ paralegal only used the last date on these communications, which I will adopt. But a number reflect a communication chain that extends months and includes dates that are far more important to the Durham prosecution.

Some of these files include topics that have attracted a great deal of often misleading coverage, such as the efforts to get server images from the Democrats. Importantly, by the time the FBI asked for server images, according to these communications, the only place to get them was at CrowdStrike.

I don’t believe DNC/DCCC have the images that CS took. Only CS have those. It’s like paying ATM fees to your bank to get your cash. DNC/DCCC will be charged to get the images back.

After some discussion about who would pay CrowdStrike to create a second image, the firm offered to do it for free.

These communications also give a sense of the extent to which Democrats faced new and perceived threats all through the election. Given the communications below and some details I know of the Democrats’ response to the attacks, I suspect these communications do not include real attempted attacks, either because they were not reported or because the report went to FBI via another channel. While CrowdStrike attempted to ensure Sussmann was always in the loop, for example, that discipline was not maintained. And we know CrowdStrike found the compromise of the Democrats analytics hosted on AWS in September, a compromise that may only show up in these communications mentioned in passing. Some in the FBI seemed entirely unsympathetic to the paranoia that suffering a nation-state attack during an election caused, which couldn’t have helped already sour relations between the FBI and Hillary’s people.

Perhaps the most interesting communications — to me at least — pertain to efforts to authenticate the documents that got publicly posted and to identify any alterations to them. At least as laid out in these communications, the Democrats were way behind the public in identifying key alterations to documents posted by Guccifer 2.0, and it’s unclear whether the FBI was any further ahead. But these discussions show what kind of alterations the Democrats were able to identify (such as font changes) as well as which publicly posted documents the FBI was sharing internally.

FBI public statements

160614 DX102 A discussion of Jim Trainor’s preparation for a meeting with Ellen Nakashima in advance of her June 14, 2016 reporting the hack and CrowdStrike’s attribution. Among other things, they note Nakashima’s confidence that GOP PACs were also targeted.

160725 DX112 This email chain between Sussmann and Trainor captured Sussmann’s frustration that FBI made an announcement of an investigation into the DNC hack without first running the statement by Sussmann.

160729 DX117 Before FBI sent out a statement about the DCCC hack, Jim Trainor sent Sussmann their draft statement. In response, Sussmann complained that FBI said they were aware of media reports but not of the hack itself. The timing of this exchange is important because Durham’s team repeatedly described a meeting between Marc Elias and Sussmann that day pertaining to a server as relating to the Alfa Bank anomaly.

Points of contact

160616 DX105 An email thread sent within FBI OGC (including to Trisha Anderson) discussing an initial meeting between Jim Trainor, Amy Dacey, Sussmann, and Shawn Henry.

160621 DX107 Starting on June 16, Amy Dacey thanked Assistant Director Jim Trainor for meeting with the Democrats about the hack. The thread turned into a confused request from the campaign for a briefing about whether they, too, had been compromised.

160725 DX114 This chain reflects Hawkins’ confused response after Sussmann provided the contact information for a Hillary staffer with a role in technical security. Hawkins stated, “Nothing concerning HFA has come up.”

160809 DX127 After Donna Brazile replaced Debbie Wasserman Schultz, Sussmann set up a meeting between her and Jim Trainor.

160811 DX128 An email chain among cyber FBI personnel discusses three Secret threat briefings for the DNC, DCCC, and Hillary campaign. Sussmann was scheduled to attend all three briefings, and Marc Elias was scheduled to attend the DCCC and Hillary briefings (though he testified that he did not attend).

160811 DX130 Sussmann sent the FBI notice of a public report of the DNC’s establishment of a cybersecurity advisory board. The report was passed on to Jim Trainor.

DHS outreach

160802 DX106 A Lync chain starting in the initial aftermath of the Nakashima story, referencing an Intelligence Committee briefing, and discussing how to facilitate DHS assistance to the Democrats through Sussmann.

160802 DX120 With the goal of reaching out to the Democratic victims to offer assistance, DHS asked who the point of contact for both would be.

160816 DX125 This email chain documents DHS’ “SitRep” of their understanding of the DNC/DCCC hacks and their efforts to reach out to help. This includes sharing of DNC/DCCC “artifacts” with NCCIC.

Authentication and venue

160708 DX109 An email chain seeking DNC help authenticating a document released by Guccifer 2.0.

160723 DX110 A discussion starting on July 21 about authenticating and extending after the initial WikiLeaks dump. Hawkins observed, “Looks like there will be multiple releases on that [the WikiLeaks] front.”

160802 DX118 After Adrian Hawkins asked CrowdStrike’s Christopher Scott a question about a public report that the Democrats’ analytics had been hacked, Scott explained that Sussmann had to be involved in any discussions between the FBI and their cybersecurity contractor. Hawkins also asked for specifics about the compromised servers that the FBI could use to establish venue.

160816 DX134 An email chain mentioning but not including Sussmann describes the efforts to establish venue (especially for Field staff who rely on laptops and travel a lot) as well as the efforts to authenticate documents.

160822 DX136 Two Lync messages describing a script that can be used to match WordPress documents with files stolen from the DNC.

160922 DX145 NSD’s Deputy Chief of  Cyber, Sean Newell, asks Sussmann to meet to discuss some information requests from NDCA. They set up a meeting for September 26.

160930 DX147 Hawkins follows up on Newell’s request for information with a much more detailed request from the San Francisco Division. This request includes details of the forensics NDCA was asking for, generally to include the CrowdStrike reports, network diagrams, logs, and images for the compromised hosts.

161004 DX148 In response to WikiLeaks promises about an upcoming file release, Newell follows up on a September 27 request he made of Sussmann for any files that were altered as well as a list of files that had been released but not circulated outside of the victim organizations first, including some indication whether those had been altered. Sussmann says they would have information available later that week.

161012 DX150 In another chain of responses to Newell’s information request, someone at Perkins Coie passes on a description from the DCCC about how an image posted by Guccifer 2.0 differed from the file structure as it appeared on their server, including as it pertained to a file named, “Pelosi Vote Email.”

161026 DX154 This chain is a follow-up to the Newell request, though it actually includes Guccifer 2.0 documents about Trump’s taxes discussed. It includes description of an altered document published by Guccifer 2.0, in which the font was changed. It also includes a DOJ NSD person asking FBI to print out the document because they don’t have any unattributable computers.

161024 DX165 This is yet another continuation of the Newell request, this one included the Trump Report altered by Guccifer 2.0. It includes some discussion of alterations to that document (as compared to unaltered ones released by WikiLeaks). It also describes documents that a DNC research staffer believes were taken from his local desktop.

CrowdStrike Reports

160815 DX132 Burnham to Farrar explaining there are two CloudStrike reports, one for the DNC and the other for the DCCC. The former is done, while the latter will be done soon.

160825 DX137 Hawkins asks Sussmann about the DNC CrowdStrike report, Sussmann explains it’s still a few days away, but then the next day says he’s reading “it” (which may be the DCCC report). Sussmann’s response gets forwarded to a few more people.

160830 DX 138 A Lync chain conveying that Sussmann had alerted the FBI that the CrowdStrike report was done and asking if WFO should pick it up.

Server images

161013 DX151 In another chain of responses to Sean Newell’s information request, the discussion turns from Sussmann’s effort to make sure the Democrats respond to all the FBI’s data request to how to obtain images (whether to have CrowdStrike spend 10 hours to do it or let FBI onsite to do it themselves). As part of this chain, Sussmann says that “in theory” the Democrats would be amenable to letting the FBI onsite to image the serves themselves, but then checks to see whether the data is at CrowdStrike or the DNC.

161013 DX152 This chain is follow-up to the request for server images. Sussmann connects the FBI and CrowdStrike, CS offers to image the servers for free, and the FBI provides the address where to send them.

161028 DX153 A Lync that starts with Newell requesting someone attend the October 11 meeting with Sussmann, continues through a discussion about how to get images of the compromised servers (including whether Sussmann may have misinterpreted the ask), and includes a discussion about a re-compromise.

Lizard Squad ransomware threat

160803 DX121 Late night on August 2, Sussmann reported a ransomware threat from the Lizard Squad. This email discusses the various equities behind such a threat and involves a guy named Rodney Hays, whom the Durham team would at one point insist must be Rodney Joffe.

160806 DX124 This chain reflects more of the response to Sussmann reporting a ransomware threat from Lizard Squad. As noted, it involves a guy named Rodney Hays that Durham’s team insisted must be Joffe.

160922 DX144 Over a month after the Democrats reported the Lizard Squad threat, Eric Lu wrote up the intake report, including the bitcoin address involved and Sussmann’s email to Rodney on August 9 thanking him for his assistance.

Other threats

160726 DX115 Sussmann set up a meeting with Hawkins and others so someone could report “some offline activity related to the intrusion.” This was around the time when Ali Chalupa believed she was being followed, though nothing in this chain describes the threat.

160908 DX140 On August 26, EA Hawkins wrote Sussmann directly alerting him to a new phishing campaign targeting Democrats. On September 7, he wrote back with three accounts that may have been targeted.

160916 DX141 Moore emailing Josh Hubiak — a cyber agent in Pittsburgh — asking for contact information for Michael Sussmann so she can obtain the contact information for a DNC bigwig whose Microsoft Outlook account was compromised, apparently by APT 28. Hubiak is one of the agents also involved in the Alfa Bank investigation.

160917 DX142 The day after the request for contact information for the DNC bigwig, there’s further discussion about how to contact him. The FBI also shares new files reflecting the network share for a different DNC person, a former IT staffer, that was uploaded to Virus Total.

160927 DX146 In response to public reports that some Democratic phones may have been targeted and a potential compromise of Powell’s phone (probably Colin, whose communications were posted to dcleaks), there’s some chatter about what information is available from Apple and Google. One of the key agents involved complains that, “it would be awesome if Google helped out, as I know they are at least 2 steps ahead of me and I’m in a sad, losing game of catchup.”

161011 DX149 This seems to be a collection of Lync notes from October 11, showing three different issues pertaining to Sussmann happening at once: the transfer of custody of the thumb drives to the Chicago office, a reference to a meeting with Sussmann, and a report of a new Democratic concern about exposed Social Security numbers.

161230 DX155 A Lync chain that goes from October 28 through December 30 covering the concern about a bug at DNC HQ, the response to the NYT article naming Hawkins, and another compromise alert.

161017 DX164 This may be a summary prepared for Mother Jones. Whatever the purpose (there is no date), it describes the timeline of FBI’s response to a request for a sweep of DNC headquarters in response to some anomaly. Sussmann permitted the sweep but asked that it be done covertly, so as not to alert DNC staffers.

Crossfire Hurricane

160804 DX123 On August 4, Joe Pientka forwarded the original June 14 Nakashima story to the agents who had just been assigned to the Crossfire Hurricane team with the explanation, “Just going through old — possibly pertinent emails.”

Jim Baker’s Tweet and the Recidivist Foreign Influence Cheater

/75 Comments/in , , /by

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A. For this matter?

Q. yes.

A. yes.

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

A. Concerned about what?

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

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

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

A. Correct.

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

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

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

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

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

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

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

/11 Comments/in , , /by

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

In the first words of her opening argument in the Michael Sussmann case, Durham prosecutor Brittain Shaw argued that this case is all about Sussmann’s privilege, his purported ability to exploit high level ties at DOJ to seed what she claims would be a smear campaign against the guy who was, in fact, hiding secret communications with the Kremlin and soliciting hacks of his opponent.

The evidence will show that this is a case about privilege: the privilege of a well-connected D.C. lawyer with access to the highest levels of the FBI; the privilege of a lawyer who thought that he could lie to the FBI without consequences; the privilege of a lawyer who thought that for the powerful the normal rules didn’t apply, that he could use the FBI as a political tool.

The really painful irony of this case, though, is that Sussmann is being significantly hamstrung because of privilege, attorney-client privilege, because it is limiting his ability to present evidence about what really happened.

When Judge Christopher Cooper ruled that a subset of emails that had been protected under privilege were not, after all, he explained that, the documents, “do not strike the Court as being particularly revelatory.” Even so, Sussmann and Fusion can’t, ethically, simply offer up emails over which the Democrats are claiming privilege. There’s good reason to believe if they could, they could show that significant parts of Durham’s conspiracy theory have been based on imagining that Democrats were hiding the worst possible plotting behind privilege claims, when in fact the reality was much more mundane.

Take two exhibits from the trial as an example. Durham is making much of a September 15, 2016 email from Marc Elias to top people on the campaign. Its subject line was “Alfa article.” But it appears to be sharing an article about “testimony of an oil trader.” If Sussmann could share it, it might simply show that Elias had seen an article about corruption and seen some tie with the Alfa Bank allegations. He can’t, because Elias is the one who made that connection.

Meanwhile, two exhibits Sussmann introduced into evidence show Robby Mook — who is not a lawyer — sharing Sidney Blumenthal “intelligence” with him that the Trump campaign was freaking out because they had gotten advance word of a NYT article about Trump’s ties with Russia.

The Trump campaign is having “a major league freak-out,” according to a Republican source who has been reliable in the past. What is causing the Trump “freak-out” is anticipation of an investigative story to be published by the New York Times. The subject is described as “Russia” and “a disaster.” “That is completely the story of everything going on since Thursday,” insists the source. The Times story, says the source, accounts for Tramp’s extraordinarily defensive aggressive reactions–his declaration that he will sue the New York Times, his personal tweeting attack on Maureen Dowd as “wacky” and a neuSidney rotic dope,” (though the source says “that’s just him anyway”), his call for the assassination of HRC, and the campaign’s push to the media of the flat-out lie that I was behind birtherism in 2008. On Saturday night, Trump tweeted: “My lawyers want to sue the tailing @nytimes so badly for irresponsible intent. I said no (for now), but they are watching. Really disgusting.” Trump did not specify why the Times might be guilty of”irresponsible intent,” which in any case lacks any legal weight. Earlier on Saturday, he tweeted that the Times was “a laughingstock rag.” The atmosphere inside the campaign is described as chaotic, frenetic and “spontaneous.” Bannon and Bossie are said to be grasping at anything to throw back in order to distract from and fend off the coming story. Journalistic sources have independently said that reporters at the Times are working on a Tromp-Russia story.

It wouldn’t be a high profile political trial, I guess, if Sid Blumenthal didn’t make a showing. Note that Mike Flynn’s Mueller interviews show him responding to some Sid Blumenthal stuff in precisely this period, so it’t clear Sid was talking to Republicans.

Anyway, that part — Blumenthal sharing with Mook — was not privileged. And that part makes it clear that Elias was right to be concerned about Trump suing if the Hillary campaign made factual observations about his ties with Russia. It also may (though this is uncertain) back Sussmann’s understanding that Eric Lichtblau was close to publishing the Alfa story, so close that Trump’s moles at the NYT had alerted him to it. But whatever Mook said about it to Elias, the campaign’s lawyer guarding against lawsuits, is privileged, as whatever Elias said to Sussmann and the Fusion guys when he forwarded Mook’s comment would be.

Whatever was said may have influenced Sussmann’s decision to go to the FBI, though, as this was shortly before he texted Jim Baker and asked to meet.

In his testimony, Elias stated that he had not given Sussmann permission to go to the FBI with the Alfa Bank story. He doesn’t think he knew until shortly afterwards, though could have learned before (the Blumenthal story may serve to explain a call that Sussmann knows prosecutors plan to dramatically reveal).

You testified that you became aware that Mr. Sussmann went to the FBI. Correct?

A. Yes.

Q. And your testimony was that you think that you were told right after, although there’s a possibility it was right before?

A. Yes.

Q. Your best recollection is which of those?

A. Is after.

Q. Okay. Did you tell him to go to the FBI?

A. No.

Q. Did he seek your permission to go to the FBI?

A. No.

Q. Did you authorize him to go to the FBI?

A. No.

Q. Are you aware of anyone at the Clinton Campaign that authorized Mr. Sussmann to go to the FBI to share the possibility of The New York Times story?

A. Not that I’m aware of. No.

Q. Did you consent to his going to the FBI?

A. No, not that I remember. No.

Elias even explained what a colossally bad idea it would be for a candidate whose campaign had been badly damaged by Jim Comey to go to the FBI.

A. First of all, the FBI had in my view not been particularly helpful in investigating or doing anything to prevent the leaks of the emails. The exfiltration is one thing, you know, the stealing of the emails. But the publication of the emails, it was not just this one time. I mean, we were dealing with multiple publications of emails. And it was not just this one client.

And I think my sense was that the FBI was not for a variety of reasons going to do anything that was going to be — like stop bad things from happening, which would be one reason to go for the FBI.

The second, which is more unique to the Clinton Campaign, is that I think he was then the FBI director, but James Comey had taken public stances in around that time period that were in my view unfair and putting a thumb on the scale against Secretary Clinton.

So I’m not sure that I would have thought that the FBI was going to be — give a fair shake to anything that they viewed as anti-Trump or pro-Clinton.

And then the final thing is that if The New York Times was going to run this story, like that’s the goal. Right? The New York Times runs the story. If you get the FBI involved, any number of things could prevent that from happening. Right?

In the most extreme instance, the FBI can go to the publication and say: Please don’t. But the second is, the newspaper itself might then want to do further reporting on the FBI investigation and delay its story. Right?

So, like, even in a world in which, like, the FBI is being helpful — not being helpful; even in a world in which the FBI is doing stuff, the media may not run the story because they want to get the full picture because they view the FBI piece of it as an essential piece of the story.

It’s certainly possible that, given this advance warning of a Trump shit-storm, Sussmann decided it would be best to give FBI a head’s up. Sussmann, however, can’t ethically share the communications between Elias and him, even if it would help him. That’s how privilege works.

With that in mind, consider what Shaw said in Durham’s bid to keep Eric Lichtblau off the stand (this appears to have been filed two days after Judge Cooper ordered it, but one of the Durham lawyers has had a family emergency so they may have gotten an extension).

After explaining that prosecutors need to question Lichtblau about things the scope of which have been specifically excluded in the trial, a footnote claims that they won’t violate Judge Cooper’s rules about such things (they have, serially, during the trial).

The government should be permitted to cross-examine Lichtblau about any communications he had with other individuals, including, but not limited to, Fusion GPS personnel and computer researchers, regarding the alleged connections between the Trump Organization and Alfa bank. To the extent Sussmann, Fusion GPS, or others (including computer researchers) approached or communicated with Lichtblau concerning Alfa Bank or related matters, the government should be permitted to question Lichtblau about such exchanges, as they are relevant to the defendant’s communications with Lichtblau on these same issues and are probative of the defendant’s alleged actions on behalf of clients (Rodney Joffe and the Clinton Campaign). The government also intends to cross-examine Lichtblau on issues pertaining to the credibility and reliability of his testimony. 1

[snip]

If Fusion GPS (which was hired by the defendant’s firm on behalf of the Hillary for America Campaign) and other persons known to Joffe and/or Sussmann similarly supplied opposition research-type information to Lichtblau regarding the Trump Organization as a part of a coordinated effort, this would be relevant to demonstrate that Sussmann was not acting merely as a concerned citizen trying to help the FBI when he met with FBI General Counsel and that his contrary representations were false. Indeed, the Government is aware that Sussmann and Joffe did enlist and/or task one or more other computer researchers to communicate with the media (including Lichtblau) concerning these matters

1 The government will abide by the Court’s order of May 7, 2022 and, in accordance with that order, will not “put on extensive evidence” about the accuracy of the data provided by Sussmann or his clients to the FBI, Lichtblau, or others. See Op. & Order (“In Limine Order”) at 5, ECF No. 121. [my emphasis]

Here, Shaw states as fact that the computer research was opposition research. It was not.

I am 100% certain that if Lichtblau could testify about all the people he spoke with on this story, he could explain that many if not most of the people involved — as well as a bunch of other people, including at least one whom prosecutors have affirmatively claimed did not have a role in chasing down this anomaly — believed the anomaly was real and were motivated out of a genuine alarm about the Russian attack that year. Yes, the NYT found people who pushed back (more so after the FBI killed the story). But that’s what makes Lichtblau’s work reporting, not opposition research.

If Lichtblau is able to testify, he could also provide a key piece of important context to evidence the government has already presented. Yesterday, Jim Baker described how, starting on September 21, he reached out to Sussmann for the name of the reporter working on the story.

Baker provided Lichtblau’s name to Bill Priestap before noon on September 22. But Lichtblau didn’t meet with the FBI until Monday, September 26.

We know that in between, the FBI called Cendyn, leading them to alter their DNS address, and the NYT called a representative for Alfa Bank which later — NYT believed, at least — led Alfa to alter their DNS address. The NYT believed that there was a response from Alfa that indicated they were trying to hide this activity.

A key part of Durham’s claim is that NYT wasn’t close to publishing when Sussmann went to the FBI and that Sussmann was, instead, trying to provide urgency for the story. That doesn’t accord with my understanding and it doesn’t accord with what Dexter Filkins has written. Durham can keep telling it so long as Lichtblau doesn’t testify.

One thing that happened, though — in addition to initial contacts that would have alerted Lichtblau that the FBI didn’t want him to publish — was the response to those calls after Sussmann and Joffe decided to share Lichtblau’s name. There was new news that Lichtblau had to try to understand that created a new delay.

As with Sussmann, it would be nice for Lichtblau if he could describe all the efforts he made to verify the story. If he could, it would demonstrably undercut several of the claims Durham is making. He can’t, because he has separate confidentiality agreements with those other sources.

Shaw, who accuses Sussmann of being privileged, completely flips how privilege works on its head (including by mis-citing the David Tatel concurrence in the Judy Miller subpoena, which as I understand it would support Lichtblau making the call about the scope of his testimony). She ties it to a topic rather than a privileged relationship to accuse Lichtblau of trying to selectively pick which parts of the story he can tell.

The D.C. Circuit has “declined to adopt a selective waiver doctrine” in the context of attorney-client communications that “would allow a party voluntarily to produce documents covered by the attorney-client privilege to one party and yet assert the privilege as a bar to production to a different party.” United States v. Williams Companies, Inc., 562 F.3d 387, 394 (D.C. Cir. 2009). “The client cannot be permitted to pick and choose among his opponents, waiving the privilege for some and resurrecting the claim of confidentiality to obstruct others.” Permian Corp. v. United States, 665 F.2d 1214, 1221 (D.C. Cir. 1981). Privilege holders must instead “treat the confidentiality of attorney-client communications like jewels—if not crown jewels” because courts “will not distinguish between various degrees of ‘voluntariness’ in waivers of the attorney-client privilege.” In re Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989).

This principle—which restricts a privilege of “ancient lineage and continuing importance,” In re Sealed Case, 877 F.2d at 980—necessarily governs the novel and qualified reporter’s privilege advanced in this case. Sussmann subpoenaed Lichtblau to appear as a witness and Lichtblau has not moved to quash. Lichtblau and defendant Sussmann cannot “tactical[ly] employ[]” the asserted privilege to pick and choose the topics that may be put to Lichtblau on the witness stand. Permian Corp., 665 F.2d at 1221. Privileges are not “tool[s] for selective disclosure.” Ibid

I get why someone in the grips of a fevered conspiracy theory would make this argument. Durham believes that everyone involved with the Alfa Bank story was part of the same malicious conspiracy targeting poor Donald Trump, even though DOJ has in its possession abundant proof that’s false. Yet even in this case, Cooper has distinguished between the privileged relationships that Joffe has with what the Democrats have, and he has also pointed to affirmative evidence that this wasn’t one big conspiracy.

But Shaw would have you believe that Lichtblau’s privilege obligations are tied to a project, a story, and not a bunch of individuals, many of whom he had existing relationships with well before this story.

A lawyer not in the grip of a fevered conspiracy theory, however, would understand that that kind of privilege doesn’t make you special, it creates an obligation, even if the obligation prevents you from using your profession from helping yourself.

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

/47 Comments/in , , /by

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

In this post, I laid out the elements of the offense, a single count of a false statement to the FBI, which will drive the outcome of the Michael Sussmann trial, in which jury selection begins today. As I showed, John Durham has to prove that:

  • Michael Sussmann said what Durham has accused him of saying, which is that he was not sharing information with the FBI on behalf of any client
  • Sussmann said that on September 19, not just September 18
  • Sussmann meant his statement to be understood to mean that no client of his had an interest in the data, as opposed to that he was not seeking any benefit for a client from the FBI
  • The lie made a difference in how the FBI operates

In this post I’d like to say a bit about the expected witnesses. Before I do, remember the scope of the trial, as laid out in several rulings from Judge Cooper.

  • Durham can only raise questions about the accuracy of the Alfa Bank anomaly if Sussmann does so first
  • He generally can only discuss how the data was collected via witnesses; with one exception, Cooper has ruled the emails between Rodney Joffe and researchers to be inadmissible in a trial about whether Sussmann lied
  • While Cooper found that 22 of 38 Fusion emails over which Democrats had claimed privilege were not privileged, he also ruled that because Andrew DeFilippis got cute in delaying his request for such a review, Durham can’t use those emails or pierce any related claims of privilege at trial
  • That leaves the unprivileged emails between Fusion and journalists, which Cooper has ruled admissible; he even considered changing his decision and letting a tweet from Hillary come in as evidence (though note that the emails Durham got pre-approved barely overlap with the emails Durham wants to use at trial, so there still could be problems admitting individual emails at trial)
  • Cooper ruled the communications between Rodney Joffe, the person who shared the DNS anomaly with Michael Sussmann, and Laura Seago, his connection with Fusion, were privileged
  • Cooper ruled that Sussmann can elicit testimony from witnesses, including Robby Mook and Marc Elias, about how Trump’s request that Russia hack Hillary some more made him not just a campaign opponent, but a threat to national security

As I noted, a dispute over the final jury instructions suggests that Durham is beating a tactical retreat from his charged claim that Sussmann lied to cover up that he was representing both Hillary and Rodney Joffe.

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

Durham wants to be able to get a guilty verdict if the jury decides that Sussmann was hiding Hillary but not hiding Joffe. What Durham will really need to prove won’t be finalized until sometime next week, meaning both sides will be arguing their cases without knowing whether Durham will have to prove that 1) the allegations pertained to Donald Trump personally 2) Sussmann had two clients 3) he lied to hide both of them, or whether he has to prove only that Sussmann lied to hide one or more client.

Durham’s tactical retreat is likely dictated by the scope set by Cooper and will dictate the witnesses he wants to call.

This post laid out whom, as of last week, each side planned to call. Remember that it’s not uncommon for a defendant not to put any witnesses on the stand (though I would be surprised if that happened in this case). Normally, the scope of a witness’ testimony is set by the Direct examination of them. So, for example, if Durham puts Marc Elias on the stand to talk exclusively about his decision to hire Fusion GPS, then Sussmann could not ask him questions about other topics. But Sussmann incorporated Durham’s entire witness list, and Cooper ruled that he would rather not have to call people twice. So for at least the Democratic witnesses, Sussmann will have the ability to ask about things that Durham would really prefer not to appear before the jury even though Durham called that witness as a government witness. Because Durham doesn’t understand much of what really went on here, that may be a really useful thing for Sussmann to exploit.

Summary Witness: It is typical for prosecutors to call one of their FBI agents at trial as a sort of omniscient narrator who can both introduce a vast swath of evidence (such as records the accuracy of which have been stipulated for emails that can be introduced without witness testimony) and provide some interpretation of what it all means. Usually, that agent is not the lead agent, because the lead agent knows things that the prosecutor wants to keep from the defendant and the public, either details of an ongoing investigation or major investigative fuck-ups that haven’t been formally disclosed to the defendant. As of last week, DeFilippis maintained that, “It may be an agent who’s our summary witness, but we’re not looking to put a case agent on the stand.” That suggests there is no agent on his team that is sufficiently compartmented from his secrets to take the stand. Judge Cooper seemed a bit surprised by that.

Jim Baker: Jim Baker is the single witness to Michael Sussmann’s alleged crime. Durham is going to have a challenge walking him through the version of this story Durham wants to tell, not least because the materiality parts of it — whether Baker thought it unusual to hear from Sussmann, whether he thought it mattered who Sussmann’s client was — are also recorded in Baker’s past sworn testimony. Given the late discovery of a text showing that Sussmann wrote Baker on September 18 telling him he wanted to benefit the FBI, and given the even later discovery of March 2017 notes recording that the FBI understood that Sussmann did have an (undisclosed) client, Sussmann doesn’t even have to trash Baker to call into question his memory: he can allow Baker to admit he can’t separate out what happened in which of at least five communications he had with Sussmann that week, the sum total of which show that Sussmann wasn’t hiding the existence of a client, did represent that he was trying to help the FBI, and did help the FBI. The cross-examination of Baker will, however, be an opportunity for Sussmann to implicate Durham’s investigative methods, both for building an entire case around Baker after concluding, years earlier, that he wasn’t credible, and then, for refreshing Baker’s memory only with the notes that said what Durham wanted Baker to say, and not what the FBI ultimately came to know.

Bill Priestap and Tisha Anderson, Mary McCord and Tasha Gauhar: This trial is expected to feature two sets of witnesses — the first set called by Durham and the second called by Sussmann — who will be asked to reconstruct from their own notes what was said in a meeting attended by Baker. Priestap and Anderson will say that the day of Baker’s meeting with Sussmann, they wrote down that Sussmann didn’t have a client (but not in the words Sussmann is known to have used or the words that Durham has charged). McCord and Gauhar will say that in March 2017, Andy McCabe stated, in front of Baker and with no correction, that the FBI did know Sussmann had a client. The only notes in question that use the same phrase — “on behalf of” — that Durham used in the indictment say that Sussmann did say he was meeting with FBI on behalf of someone. I expect at least several of these witnesses will be asked materiality questions: If they didn’t ask who the client is, doesn’t that prove it didn’t matter? The notes of everyone involved, importantly, emphasized the import of Sussmann sharing an imminent newspaper article. Sussmann will also ask Priestap how and why he asked the NYT to hold the Alfa Bank story.

Agents Heide, Sands, and Gaynor, plus Agent Martin: Durham plans to call three of the FBI Agents who investigated the anomaly — for a couple of hours each, in the case of Heide and Sands — to talk about how they did so. Let me suggest that not only is this overkill, it may backfire in spectacular fashion, because the March 2017 notes make it clear that these agents did not take very basic steps to chase this anomaly down and Heide, at least, is not a cyber agent (in the same period he was also investigating George Papadopoulos). In addition to having those hours and hours of testimony, Durham will call Agent Martin, ostensibly to explain what one could learn from the anomaly, though there’s still a fight about the scope of his testimony,  particularly with respect to misleading claims he would make about the scope of the data accessed to find the anomaly in the first place.

Antonakakis, Dagon, DeJong, and Novick: According to what DeFilippis said last week, in the wake of Cooper’s ruling excluding all but one of the researchers’ emails, he likely will not call David Dagon, may or may not call Manos Atonakakis, but will call two employees of Rodney Joffe whom, DeFilippis claims, were “tasked by” Joffe, in the first case to pull some but not all of the data researchers used to test the anomaly, and in the second case to do research that may not have been presented to the FBI. If these decisions hold, his presentation of the data will be, as I understand it, affirmatively false. For that reason, Sussmann might have been able to challenge Durham’s reliance on these witnesses in the absence of others; that Sussmann is not doing so may suggest he knows that the witnesses won’t do what Durham thinks they will. If Durham persists in this plan, it means he’ll have FBI agents spend 5 hours describing how they chased down an anomaly, without ever really explaining what the anomaly is (and how it could have easily been investigated using about two different steps that the FBI didn’t take). Perhaps (given his tactical retreat), Durham may want to eliminate virtually all discussion of the anomaly at the heart of this case. Alternately, this is a tactical move to force Sussmann to call David Dagon (whom Durham has immunized) or Manos Antonakakis (whose status is unknown) in hopes that they’ll help him make his YotaPhone case or explain the full scope of the data accessed (particularly if he gets Martin to make misleading comments about that topic first). But if Durham forgoes his chance to call the researchers and Sussmann does so himself, it may allow Sussmann to rebut Durham’s claims about what the anomaly was and what went into the two white papers presented to the FBI. In addition, Sussmann can have these witnesses explain how far before the involvement of the Democrats this research started and how Trump’s open invitation to Russia to do more hacking meant the anomaly posed a possible national security threat worthy of sharing with the FBI.

Robby Mook, Marc Elias, and Debbie Fine: Rather than talking about the anomaly, Durham wants to talk about the Hillary campaign. At least as of last week (before Cooper excluded some of this stuff on privilege and belated privilege challenges), Durham will definitely call Mook, may call Elias, but may rely instead on a Hillary lawyer named Debbie Fine, who was on daily calls with Fusion. Durham wants to claim,

[T]he strategy, as the Government will argue at trial, was to create news stories about this issue, about the Alfa-Bank issue; and second, it was to get law enforcement to investigate it; and perhaps third, your Honor, to get the press to report on the fact that law enforcement was investigating it.

Sussmann, by contrast, knows he has a witness or witnesses who will rebut that.

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

As suggested above, Elias is a witness Sussmann will call even if Durham does not. Among other things, Sussmann will have Elias explain what it was like to have Donald Trump openly asking Russia to hack Hillary some more.

Laura Seago: Before Cooper ruled on privilege issues, DeFilippis (who doesn’t know how to pronounce her last name) said he would call Seago. She was the pivot point between Fusion and Rodney Joffe. According to Fusion attorney Joshua Levy, Seago knows little about the white paper from Fusion that Sussmann shared with the FBI. “Seago didn’t contribute to it, doesn’t know who did, doesn’t know who researched it, doesn’t know who wrote it, doesn’t know its purpose; and the government’s aware of all that.” So it’s unclear how useful she’ll be as a witness.

Eric Lichtblau: As I noted the other day, Durham is trying to prevent Lichtblau from testifying unless he’s willing to testify to all his sources for the Alfa Bank story (which would include a bunch of experts never named in any charging documents). My guess is that Cooper will rule that forcing Lichtblau to talk about communications with Fusion would be cumulative, though he might force Lichtblau to talk about an in-person meeting he had at which Fusion shared information that did not derive from Joffe. If Sussmann succeeds in getting Lichtblau’s testimony, however, he will be able to talk about what a serious story this was and what a disastrous decision agreeing to hold the story was for his own career and, arguably, for democracy.

Perkins Coie billing person and McMahon: As Durham has repeatedly confessed, most of the substance of his conspiracy theory is based off billing records. But there’s a dispute about whether Sussmann fully billed his meeting with Baker (Sussmann has noted, for example, that he paid for his own taxi to and from the meeting). Durham will have a Perkins Coie person explain how they track billing and will call a former DNC person with whom Sussmann had lunch immediately before his Baker meeting, either because Sussmann said something to him about the Baker meeting, or because he needs to rule out that Sussmann billed for the lunch meeting but not Baker.

Agent Grasso: In addition to the hours and hours of testimony about how the FBI did investigate the anomaly, Durham also wants to call an Agent Grasso, with whom Joffe shared a piece of the Alfa Bank allegations directly. This may actually be an important witness for Durham, because it might show that the packaged up allegations shared with Baker were substantially different than what Joffe was sharing when his identity was not hidden.

Kevin P: Durham only plans to call one of the two CIA personnel at the meeting in January 2017 (ironically meaning a meeting in March 2017 will get far more focus than a meeting that played a central role in the indictment). It sounds like Sussmann will get the one person to validate an email from another person who also recorded Sussmann saying he had a client.

Agent Gessford: One FBI Agent Sussmann will call will authenticate emails Sussmann will use with other witnesses to show what FBI’s understanding of Sussmann’s activities were in 2016. Not only will he use these emails to prove that the FBI knew well he was representing Hillary on cyber issues, but he will likely also use these emails to talk about what it looks like for a campaign to be systematically attacked through the entirety of a campaign by a hostile nation-state, which will make the potential seriousness of the Alfa Bank anomaly quite clear.

Agent Giardina: This is someone the scope of whose testimony Durham may have actually tried to limit by calling him himself. Sussmann will have Giardina explain that after the Frank Foer article, he tried to open an investigation, which Sussmann will use to prove that the FBI would have opened an investigation whether or not he shared the tip with the FBI.

Jonathan Moffa: Moffa, a senior FBI agent involved in the Crossfire Hurricane and Alfa Bank investigations will address materiality. He’ll explain how, given the UNSUB investigation open to find out who in Trump’s camp got a heads up to the hack-and-leak investigation, it was inevitable they would chase down this tip and treat it, like the CH investigation itself, as a Full Investigation.

DOJ IG Michael Horowitz: On paper, Horowitz’s testimony will be limited to explaining how an anonymous tip from Joffe via Sussmann is supposed to work, which is that someone in a position to direct a tip to the right person does so and succeeds in addressing a national security concern. Joffe provided a tip to Horowitz in January 2017 that — we can assume given Horowitz’s testimony — proved to be valuable. This tip will also demonstrate that DNS research is not as limited as Agent Martin will claim it is. But given the way that Durham has failed to understand basic aspects of Horowitz’s investigation, including ones that disproved large swaths of Durham’s conspiracy theories, this testimony might be somewhat contentious.

Update, 5/22: Very belatedly added Moffa after writing this post.

The Sussman Trial

/35 Comments/in /by

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

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

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

Section 1001’s statutory terms are violated if someone:

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

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

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

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

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

/16 Comments/in , /by

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

The Witness List for the Michael Sussmann Trial

/18 Comments/in , /by

According to the transcript for the pre-trial hearing yesterday, here is the status of the witness lists. The most interesting one, to me, is Michael Horowitz, who presumably will testify that Rodney Joffe shared a worthwhile tip on the same terms that Sussmann attempted to do with James Baker.

Prosecution:

  • Trisha Anderson: Yes, for 30 minutes
  • Apple custodian: stipulation
  • Manos Antonakakis: “Possibly yes” for less than an hour of testimony
  • James Baker: Yes, for several hours
  • Special Agent Batty: Unclear
  • Mr. Chadason: Under a half hour
  • David Dagon: Likely no (possibly on rebuttal)
  • Mr. DeJong (who pulled data for Joffe): Probably yes, for half hour
  • Marc Elias: Possibly yes, for 45 minutes
  • Robby Mook: Yes, for 30 to 45 minutes
  • Special Agent Gaynor (on the course of the investigation): Yes, 30 to 45 minutes
  • Mr.Grasso (Special Agent whom Joffe provided a piece of the Alfa Bank allegations to): Yes, a half hour
  • Special Agent Heide (one of the case agents on the investigation): Yes, a couple of hours
  • Special Agent Hellman (who first analyzed the allegations): About half an hour
  • Agent Martin (expert): Under half an hour
  • Steven M: Unlikely to call in case in chief
  • Mr. Novick (CEO of one of Joffe’s companies): 45 minutes to an hour
  • Kevin P (CIA meeting): 30 minutes
  • Bill Prestap: 30 minutes
  • Ms. Sands (one of case agents): a couple of hours
  • Special Agent Schaaf: Unlikely on case in chief
  • Laura Seago: Perhaps an hour
  • Mr. McMahon (former DNC employe, had lunch immediately before Sussmann’s meeting with Baker): under 15 minutes
  • Perkins Coie billing department
  • Debbie Fine (Clinton lawyer who participated in daily Fusion GPS meetings): An hour or less
  • Not looking to put one of their own agents on the stand

Defense (may change in light of Prosecution decisions):

  • Steven M: May call
  • Marc Elias
  • Ben Gessford (LYNC messages involving Clinton hacks): 30 minutes
  • Marc Giardina (who wanted to open investigation in response to Slate article)
  • Tasha Gauhar: Under 30 minutes
  • Not Shawn Henry
  • Michael Horowitz: Referrals to law enforcement
  • Eric Lichtblau: An hour or so (concern about limits of privilege)
  • Mary McCord
  • Jonathan Moffa (as to Sussmann’s credibility)
  • Scott Schools (possible stip): 15 minutes
  • Character witnesses

Update: I had accidentally left Priestap out.

Update: I also accidentally left out McCord and Moffa.

John Durham Wails about Michael Sussmann Adopting His Own Evidentiary Standards

/96 Comments/in , /by

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

/50 Comments/in , , /by

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

MR. TYRRELL: Pardon me?

THE COURT: Were you adamant a year ago that —

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

THE COURT: Very well.

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

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

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

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

Catch-22.

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

“ANSWER: Not that I recall.

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

“ANSWER: Not that I recall.

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

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

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

THE COURT: Okay.

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

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

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

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

MR. ALGOR: Yes, Your Honor.

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

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

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

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

Durham Prosecutor Brittain Shaw Gets Cute with Forfeited Claim

/30 Comments/in , /by

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

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

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

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

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

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

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

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

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

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

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

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