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

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

In the first of what will be a number of “scene-setters” for the Michael Sussmann trial next week, Devlin Barrett makes two significant errors. First, he misrepresents what Sussmann said in a text to James Baker on September 18, 2016.

In a text message setting up the meeting, Sussmann claimed he was not representing any particular client in bringing the matter to the FBI’s attention.

Here’s what the text says:

Jim – it’s Michael Sussmann. I have something time-sensitive (and sensitive) I need to discuss. Do you have availibilty [sic] for a short meeting tomorrow? I’m coming on my own – not on behalf of a client or company – want to help the Bureau. Thanks.

[I’m unclear whether the misspelling of “availability” is Sussmann’s or Durham’s.]

The distinction between “representing” and “on behalf of” will be a core issue litigated in this trial (as I’ll lay out below), which makes Barrett’s sloppiness affirmatively misleading.

Second, Barrett serially accepts Durham’s framing — that the cybersecurity researchers who started identifying the Alfa Bank anomaly months before Rodney Joffe ever talked to Michael Sussmann were doing “campaign research.”

The two-week trial will delve into the murky world of campaign research, lawyers and the role the FBI played in that election, as Trump and Hillary Clinton vied for the presidency, and federal agents pursued very different investigations surrounding each of them.

[snip]

Prosecutors signaled this week that they plan to call a host of current and former law enforcement officials to describe how the FBI pursued the Alfa Bank accusations, and to paint Sussmann as part of a “joint venture” that included Joffe, Clinton’s campaign, research firm Fusion GPS and cybersecurity experts.

[snip]

Cooper, however, has limited how deeply Durham’s team may go into the particulars of any alleged joint venture among Democratic operatives, ruling that he will not allow “a time-consuming and largely unnecessary mini-trial to determine the existence and scope of an uncharged conspiracy to develop and disseminate the Alfa Bank data.”

Barrett does this in spite of the fact that Durham has repeatedly said the only evidence he has supporting his joint venture conspiracy theory (even assuming it were illegal) is billing records. While Barrett cites the gist of Cooper’s ruling excluding Durham’s unsubstantiated claims of a “joint venture,” he doesn’t quote Cooper noting that, “some evidence suggests that Fusion GPS employees had no connection to the gathering or compilation of the Alfa Bank data.” Effectively, an experienced DOJ reporter has fallen for Durham’s use of unsubstantiated materiality claims to frame a prosecution that didn’t charge the underlying conspiracy. That’s a real disservice to readers who don’t know the difference between uncharged materiality claims and a charged conspiracy.

So here’s my effort to explain to newbies what the trial is about. Durham has to prove that:

  • Michael Sussmann said what Durham claims Sussmann did to James Baker on September 19, 2016
  • What he said was a lie
  • The alleged lie was material to the functioning of the FBI

Durham has to prove that Sussmann said what Durham claims he did on September 19, 2016

From the start, Durham has been uncertain what lie Sussmann told. As Sussmann pointed out in a motion for a bill of particulars right from the get-go, at various points in the indictment, Durham claimed that Sussmann’s lie was:

  • “that he was not doing his work on the aforementioned allegations ‘for any client'” (one)
  • “that he was not acting on behalf of any client” (one, two)
  • that he was not “acting on behalf of any client conveying particular allegations concerning a Presidential candidate” (one)

That is, repeatedly in the indictment, Durham was conflating the “work” of chasing down the allegations (which is not at issue in this prosecution at all) with the meeting where Sussmann shared those allegations with the FBI. The last formulation is what Durham charged, but as we’ll see, unless Durham supersedes this indictment today, he may have problems with that formulation as well.

Almost six months after Durham charged Sussmann for lying about sharing allegations on September 19, he got rock-solid proof — a text from Sussmann to Baker that Durham only found because Sussmann kept asking Durham to go back and look for these records — that Sussmann said, he was “coming on my own – not on behalf of a client or company – want to help the Bureau,” on September 18.

That rock-solid proof actually presents two problems for Durham. First, it raises the possibility that, even if the jury decides this was a lie, Durham can only prove Sussmann said it on September 18, not September 19. But the text also suggests what Sussmann may have meant by “on behalf of:” who benefits. He was not seeking a benefit for a client, he was trying to benefit the FBI.

That interpretation is consistent with what Sussmann said under oath in 2017, and it is an interpretation that Durham did not test before he charged Sussmann.

I was sharing information, and I remember telling him at the outset that I was meeting with him specifically, because any information involving a political candidate, but particularly information of this sort involving potential relationship or activity with a foreign government was highly volatile and controversial. And I thought and I remember telling him that it would be a not-so-nice thing ~ I probably used a word more stronger than “not so nice” – to dump some information like this on a case agent and create some sort of a problem. And I was coming to him mostly because I wanted him to be able to decide whether or not to act or not to act, or to share or not to share, with information I was bringing him to insulate or protect the Bureau or — I don’t know. just thought he would know best what to do or not to do, including nothing at the time.

And if I could just go on, I know for my time as a prosecutor at the Department of Justice, there are guidelines about when you act on things and when close to an election you wait sort of until after the election. And I didn’t know what the appropriate thing was, but I didn’t want to put the Bureau or him in an uncomfortable situation by, as I said, going to a case agent or sort of dumping it in the wrong place. So I met with him briefly and

[snip]

so I told him this information, but didn’t want any follow-up, didn’t ~ in other words, I wasn’t looking for the FBI to do anything. I had no ask. I had no requests. And I remember saying, I’m not you don’t need to follow up with me. I just feel like I have left this in the right hands, and he said, yes. [my emphasis]

As has been explained over and over, Jim Baker’s testimony about what Sussmann said to him on September 19 (as opposed to what Sussmann texted him on September 18) has been all over the map:

Durham will argue that he got Baker’s testimony to match what he, Durham, claims to be sure is the truth by refreshing his memory with notes that Bill Priestap and Trisha Anderson took, the former when Baker told him about the meeting immediately afterwards and the latter in circumstances that are less clear.

The Priestap notes say four things:

  • Represent DNC, Clinton Foundation etc
  • Been approached by prominent cyber people
  • NYT, Wash Post, or WSJ on Friday
  • [Written slantways for reasons Priestap could not explain] said not doing this for any client

The Anderson notes say two things:

  • No specific client but group of cyber academics talked with him about research
  • Article this Friday, NYT/WPost [the notes fade out]

None of those notes say “on behalf of,” Anderson’s don’t address whether Sussmann offered up the claim or not, and Priestap seems to have written “not doing this for any client” after the fact, as if it wasn’t part of Baker’s initial telling.

None of those notes make it clear what part of the information Baker passed on came from the meeting itself and what part came from the text he had received the day before (and indeed, Priestap’s slantways note may suggest the detail about a client could have come later). Durham only has a refreshed memory of what Baker knew by September 19, not which parts he learned on September 18 and which he learned on September 19.

Literally six months after indicting Sussmann, Durham gave him different sets of notes recording how Andy McCabe explained the allegations to Dana Boente on March 6, 2017.

One set, from Tashina Gauhar’s notes, says this:

“Attorney” Brought to FBI on behalf of his client

Also advised others in media > NYT

Another set, from Mary McCord’s notes, says this:

First brought to FBI att by atty

[snip]

Attorney brought to Jim Baker + d/n say who client was. Said computer researchers saw the [activity?]. Said media orgs had the info, including NY Times.

These notes admittedly reflect what the FBI came to understand, possibly in the September 19 meeting, possibly hours after the September 19 meeting, possibly days, possibly months. But as McCord recorded it, the emphasis remained on the computer researchers and the NYT. That emphasis is important for materiality questions.

Durham has to prove what Sussmann said was a lie

Next, Durham has to prove that what Sussmann said was an intentional lie.

Probably, Durham will use the formulation Sussmann sent in his September 18 text, “I’m coming on my own – not on behalf of a client or company – want to help the Bureau,” since that’s the only thing he has real proof of. This is why Sussmann tried to nail down Durham on what “on behalf of” shortly after being charged. Because it could mean, “on the orders of,” “for a client I am retained by,” or “seeking some benefit or ask for.”

But Sussmann’s explanation, “want to help the Bureau,” tied as it is to some benefit for the FBI, presents new problems for Durham. As noted above, that’s precisely what Sussmann said in sworn testimony back in 2017, when he had no reason to believe there would ever be a special prosecutor checking his claims and at a time he no longer had that text to check. Sussmann framed it in terms of giving the FBI maximal flexibility during campaign season.

Importantly, Sussmann did take steps to help the Bureau, by (with Joffe’s assent), helping the FBI kill the story the NYT was close to publishing. Which is another thing Sussmann described when he testified under oath in 2017 and another thing Durham didn’t bother to investigate before indicting.

I just wanted to tell you about a phone call that I had with him 2 days after I met with him, just because I had forgotten it When I met with him, I shared with him this information, and I told him that there was also a news organization that has or had the information. And he called me 2 days later on my mobile phone and asked me for the name of the journalist or publication, because the Bureau was going to ask the public — was going to ask the journalist or the publication to hold their story and not publish it, and said that like it was urgent and the request came from the top of the Bureau. So anyway, it was, you know, a 5-minute, if that, phone conversation just for that purpose.

Along with the September 18 text showing Sussmann told Baker he wanted to help the FBI, there were several texts reflecting that when Baker asked Sussmann for the name of the outlet that was reporting on the Alfa Bank allegations, Sussmann told Baker he had to ask someone before sharing the name.

Those text messages include, among other things, texts indicating that Mr. Sussmann asked to meet with Mr. Baker in September 2016 not on behalf of a client but to help the Bureau; texts indicating that Mr. Sussmann told Mr. Baker he had to check with someone (i.e., his client) before giving him the name of the newspaper that was about to publish an article regarding the links between Alfa Bank and the Trump Organization; and other texts, including a copy of a tweet that then-President Trump posted regarding Mr. Sussmann.

Then, Sussmann and Baker spoke on the phone several times on September 21 and 22.

Mr. Sussmann and Mr. Baker also had several phone conversations over the course of that week, including on Wednesday, September 21 and on Thursday, September 22.

We’ll learn more details at the trial, but we know that Baker and Bill Priestap called the NYT and got them to kill the story.

One reason this is important is because — as Sussmann’s attorney noted in a recent hearing — this is the opposite of what Sussmann would have done if he was working on behalf of the campaign.

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.

The decision to go to the FBI contravened Hillary’s best interest.

The other reason those exchanges are important is because, as Sussmann pointed out, the best explanation for how Andy McCabe (that “top of the Bureau” that decided to take steps to kill the story) came to learn that Sussmann did have a client was via those exchanges.

The FBI could not have come to that belief based on conversations they had with Mr. Sussmann after his phone calls with Mr. Baker the week of September 19, 2016, because the FBI chose not to interview Mr. Sussmann about the information he provided to Mr. Baker, and the FBI chose not to ask Mr. Sussmann about or interview the cyber experts whom Mr. Sussmann identified as the source of the information he shared with the FBI.

Indeed, that timeline may explain why Baker’s memories about this are so inconsistent: because what Sussmann told him on September 18, what he told him on September 19, and what he told him on September 21 have all blended into one.

In any case, though, the best evidence suggests the FBI probably learned Sussmann had a client within three days of the time Sussmann first brought the allegations to the FBI (because that was the last he spoke with the FBI). That undermines Durham’s claim that Sussmann was hiding some big conspiracy. Within days, he appears to have made it obvious he did have a client.

Durham has to prove the alleged lie was material to the functioning of the FBI

I’m not going to get too far into the work Durham will have to do to prove that Sussmann’s lie — if he can prove what Sussmann said, if he can prove Sussmann said it on September 19 and not September 18, and if he can prove it really was a lie — had the ability to affect the decisions the FBI could have made.

Sussmann has many ways to attack Durham’s materiality argument. He’ll do so by proving:

  • FBI knew he represented the Democrats (indeed, that’s what Priestap’s notes say)
  • FBI knew of his ties to Joffe
  • His characterization that this came from cybersecurity experts was true
  • After the Franklin Foer piece was published, a separate FBI Agent attempted to open an investigation (showing what would have happened if Sussmann had not shared the information and just let NYT publish)

If I were him, I would also point to all the evidence (including from the March 2017 notes) that what most mattered to the FBI was not whom his client was but that the NYT was going to publish this.

But, given the timeline laid out by Sussmann’s texts and calls with James Baker, I’d make one more point. All the evidence suggests that FBI knew he had a client by September 22 — probably by September 21.

The FBI Agents who will describe the steps they took will apparently describe making a second call to Cendyn on September 23.

That is, the timeline will show that FBI learned Sussmann had a client before they even spoke to Cendyn a second time.

If Sussmann’s client or clients mattered, the FBI learned about them so early in the process that it would not have affected the overall investigation.

Durham’s tactical retreat

I know a lot of people think Durham has a slam-dunk case with that September 18 text, but that’s simply not the case — though as always, you never know what a jury is going to decide.

But I think that Durham is already planning a tactical retreat.

As Sussmann noted in a recent filing summarizing conflicting views on jury instructions, Durham’s indictment describes Sussmann’s alleged lie this way:

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

Never mind that Durham characterized the allegations as pertaining to “a Presidential candidate,” which presents other problems for Durham, he has also accused Sussmann of lying about having two clients.

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

4 Authority: Indictment.

5 Authority: Indictment.

Durham’s language about “conjunctive” versus “disjunctive” will likely be the matter for heated debate next week. Particularly in the wake of Cooper’s decision that the materials from the researchers won’t come in as evidence, Durham seems to be preparing to prove only that Sussmann lied about representing Hillary, and not about Joffe. Sussmann, meanwhile, seems to believe that Durham will have to prove that his alleged lie was intended to hide both alleged clients.

The problem with Durham’s fall-back position is that if Sussmann really were representing Hillary at that FBI meeting, he wouldn’t have killed the NYT story that would have helped her campaign.

Update: Corrected date on Sussmann’s HPSCI interview, which was 2017.

John Durham’s Pyrrhic Privilege Victory

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As I predicted might happen, Judge Christopher Cooper has ruled that a chunk of the Fusion GPS emails over which the Democrats claimed privilege are not privileged and ordered Fusion to give the emails to Durham.

Applying the two asserted privileges to the 38 emails it has reviewed, the Court finds that Fusion GPS had no valid basis to withhold 22 of the 38 emails, but that it has met its burden to establish privilege over the remaining 16. The Court analyzes each category separately.

[snip]

Consistent with this ruling, Fusion is directed to provide the Special Counsel the documents numbered 2–11, 15, 16, 19–21, and 24–30 in the privilege log accompanying the government’s motion by Monday, May 16, 2022.

But because Durham blew all his deadlines, he can’t use these emails at trial.

Based on the above timeline, the Special Counsel waited some eight months after it was aware of the privilege holders’ final position to seek court intervention. See Def’s Resp. at 6–7, ECF No. 71. The Special Counsel responds that it was engaged in good faith discussion with the privilege holders to resolve this issue without burdening the Court. That may well be so, and the Court obviously encourages parties to negotiate disputes on their own. Still, the record shows that these discussions ended in January 2022—yet the Special Counsel waited to file this motion until April 6, 2022, just over a month before trial was set to begin. And, given the number of privilege holders involved and the fact-bound nature of the issues, resolving the motion has naturally taken us to the eve of trial.

Under these circumstances, allowing the Special Counsel to use these documents at trial would prejudice Mr. Sussmann’s defense. See Armenian Assembly of Am., Inc. v. Cafesjian, 772 F. Supp. 2d 129, 158–59 (D.D.C. 2011) (production of documents “on the eve of trial . . . forced Defendants to spend a significant amount of time and resources reviewing these materials instead of preparing their witnesses, rehearsing their arguments, and otherwise preparing”). Although these documents are relatively few in number and do not strike the Court as being particularly revelatory, the Court is not in the best position to predict how new evidence might affect each side’s trial strategy and preparation. The Court therefore will not, as a matter of principle, put Mr. Sussmann in the position of having to evaluate the documents, and any implications they might have on his trial strategy, at this late date. See United States v. Alvin, 30 F. Supp. 3d 323, 343 (E.D. Pa. 2014) (granting defendant’s motion to dismiss indictment on speedy trial grounds, noting that the defendant “was put in the position of requiring” a prior continuance “by the Government’s failure to turn over discovery” until five days before trial); Leka v. Portuondo, 257 F.3d 89, 101 (2d Cir. 2001) (disclosure of evidence on the eve of trial “tend[s] to throw existing strategies and preparation into disarray”)

Accordingly, the government will not be permitted to introduce the emails and attachments that the Court has ruled are not subject to privilege. The Court takes no position on the other approximately 1500 documents that Fusion GPS withheld as privileged, as they are not the subject of the government’s motion. However, the Court will apply the principles set forth above to any assertions of privilege during witness testimony at trial.

Cooper ruled the 8 emails involving Laura Seago and Rodney Joffe are privileged.

Cooper did say these emails were not “particularly revelatory,” so this may not matter in the grand scheme of things. Based on what I’ve seen — as someone who was a Fusion critic before it was fashionable — they believed they were involved in a good faith effort to understand Trump’s ties to Russia and other corrupt actors.

But Durham will now go after 1,500 other Fusion emails in pursuit of his grand conspiracy theory. Which means that unless Durham does something really stupid, we may be stuck with him until he lets all his other statutes of limitation expire.

 

Thirty Months after Disputing Michael Horowitz, Durham’s Team Suggests They’ve Never Looked at the Evidence

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In Michael Sussmann’s filing explaining that he couldn’t include highly exculpatory notes — written by Tashina Gaushar, Mary McCord, and Scott Schools — from a March 6, 2017 meeting in his motion in limine because John Durham had provided them to him too late to include, Sussmann claimed that the files were not among those for which Durham had gotten permission to provide late.

The Special Counsel neglects to mention that these handwritten notes were buried in nearly 22,000 pages of discovery that the Special Counsel produced approximately two weeks before motions in limine were due. Specifically, the Special Counsel produced the March 2017 Notes as part of a March 18, 2022 production. The Special Counsel included the March 2017 Notes in a sub-folder generically labeled “FBI declassified” and similarly labeled them only as “FBI/DOJ Declassified Documents” in his cover letter. See Letter from J. Durham to M. Bosworth and S. Berkowitz (Mar. 18, 2022). And although the Special Counsel indicated on a phone call of March 18, 2022 that some of the 22,000 pages were documents that made references to “client,” he did not specifically identify the March 2017 Notes or otherwise call to attention to this powerful exculpatory material in the way that Brady and its progeny requires.

[snip]

[T]he Special Counsel has also failed to explain why this powerful Brady material was produced years into their investigation, six months after Mr. Sussmann was indicted, and only weeks before trial.3

Sussmann was wrong.

When Durham got an extension to his discovery deadlines, he got special permission to turn over (among other things) materials from DOJ IG at a later date.

DOJ Office of Inspector General Materials. On October 7, 2021, at the initiative of the Special Counsel’s Office, the prosecution team met with the DOJ Inspector General and other OIG personnel to discuss discoverable materials that may be in the OIG’s possession. The Special Counsel’s office subsequently submitted a formal written discovery request to the OIG on October 13, 2021, which requested, among other things, all documents, records, and information in the OIG’s possession regarding the defendant and/or the Russian Bank-1 allegations.

[I]n January 2022, the OIG informed the Special Counsel’s Office for the first time that it would be extremely burdensome, if not impossible, for the OIG to apply the search terms contained in the prosecution team’s October 13, 2021 discovery request to certain of the OIG’s holdings – namely, emails and other documents collected as part of the OIG’s investigation. The OIG therefore requested that the Special Counsel’s Office assist in searching these materials. The Government is attempting to resolve this technical issue as quickly as possible and will keep the defense (and the Court as appropriate) updated regarding its status.

In the pre-trial hearing on Monday, Andrew DeFilippis explained that the files came from DOJ IG (and therefore were subject to that later discovery deadline).

We located those statements in the notes in February or early March, when we received a huge production from the DOJ Inspector General’s office. As soon as we noticed that in the notes, we put them on very rapid declassification at the FBI and turned them over to the defense about a week later.

DeFilippis offered an unconvincing excuse for burying belatedly provided Brady material two layers deep in file folders without specific notice. He described the decision to flag the materials as an internal Government decision, which is an odd description unless Michael Horowitz’s office — or those involved in declassifying the records — forced the decision:

We then, speaking internally as the Government, decided it would be important to flag those notes for the defense. And so the day that we produced them, we got on a call. We wanted to be in a position to flag it in a way that we didn’t just put it in the end of a paragraph of a discovery letter. We flagged for the defense that we were going to be producing notes and that that included notes in which the word “client” appeared. And we told them that we thought that would be relevant to them.

[snip]

Let me just say that there was absolutely no effort by the Government to delay here or to hide these in a large production. That is precisely why we got on a phone call and flagged it for the defense.

It’s almost like DeFilippis was hoping this would get no notice.

I can understand why. I’ve described how astounding it was that Durham did not go looking for evidence from DOJ IG until — by Durham’s own telling — October 7, more than two weeks after indicting Sussmann (and likely not long enough before indicting Igor Danchenko to learn key details that undermine at least one charge against him).

But this late provision of exculpatory evidence means one of two things:

  • Durham has always had the files, but did such a poor job of looking for it in discovery he didn’t find it in his own files even as he started hunting Michael Sussmann
  • Durham never had these files

The latter is the more likely possibility, which, as a threshold matter, would mean Durham never reviewed key files that DOJ IG had used in high level witness interviews before disputing Michael Horowitz’ conclusion that the investigation was predicated appropriately. Durham is, literally, only reviewing key files three years into his investigation.

Along the way, he’s learning that conspiracy theories he has been chasing for months and years are false.

The revelation that Durham is discovering exculpatory information in DOJ IG’s files is as important to the efforts to blow up the Mike Flynn prosecution two years ago as it is to the Sussmann prosecution. That’s because the Jeffrey Jensen review of the Flynn prosecution and the Durham investigation were believed to be closely aligned. Indeed, I have shown that the handwritten notes from the FBI that Durham will rely on at trial show the same markers of unreliability that documents that were altered in the Flynn case had.

As I explained in this post, Jensen’s documents started with the Bates stamp used throughout the Flynn prosecution.

But after a period of time, they used a Bates stamp with a different typeface, albeit continuing the same series, suggesting someone else was doing the document sharing.

But if they’re drawing on the same source documents, Durham should at least know notes of that meeting exists. Jeffrey Jensen received and relied on at least one set of notes — Jim Crowell’s notes — from the March 6, 2017 meeting. Those notes, along with Tashina Gauhar’s notes of an earlier briefing and all those that got altered, also have the fat typeface.

The Tashina Gauhar notes turned over to Sussmann (and the others turned over) not only are based off a scan of her original notes and have no post-it notes on them, but they bear both Durham’s Bates stamp (SCO-074095), but also one that likely comes from DOJ IG (SCO-FBIPROD_021529).

All of which seems to suggest there was the same cherry-picking that went into the Durham investigation and the Jensen “review.” Neither reviewed — neither could have!! — what really happened. They reviewed selected records and then (in the Jensen review) altered those records to make false claims that the former President used in a debate attack.

I’ll come back to the issue of what appears in the notes Sussmann released that conflicts with the Flynn releases.

But I’m also interested that Durham is stalling on providing other notes from the meeting.

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

Durham can’t be withholding notes because they don’t mention Sussmann having a client. That’s because Scott Schools’ notes mention that the Alfa Bank tip came from an attorney, but don’t mention that he was there on behalf of a client (Schools’ notes may have been included because they are the only ones of the three provided that attributed this discussion to Andy McCabe).

There are at least two other sets of notes from this meeting that are known or presumed to exist:

And there were at least three other people present at the meeting known to take notes:

  • Bill Priestap
  • Andy McCabe
  • Dana Boente

Importantly, in Durham’s objection to admitting these notes as evidence, he makes it clear that James Baker (inexcusably as a lawyer) did not take notes of this or any other meeting, but he does not say whether Priestap (or Trisha Anderson) took notes.

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.

If Priestap took notes, one copy should be in Durham’s possession, in the notebook of Priestap’s notes already on Durham’s exhibit list.

DOJ has been trying to prevent anyone from looking at Andy McCabe’s notes for some time.

But one thing that turning over the DOJ IG retained notes for the others will show is whether alterations in the Strzok, Priestap, and McCabe notes were made.

It’ll also make it easy to test why Jensen’s review redacted a date and added one — albeit the correct one — in the Jim Crowell notes.

 

That is, I wonder if Durhams’ reluctance to turn over those materials stems not from any facts about his own investigation, but from an awareness of the cherry-picking — and possibly worse — that having turned over the past one reveals.

Three posts on the altered documents from the Mike Flynn case

The Jeffrey Jensen “Investigation:” Post-It Notes and Other Irregularities (September 26, 2020)

Shorter DOJ: We Made Shit Up … Please Free Mike Flynn (October 27, 2020)

John Durham Has Unaltered Copies of the Documents that Got Altered in the Flynn Docket (December 3, 2020)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the DNS stuff? not us at all.

outside computer experts

we did up an alfa memo unrelated to all this

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That, Sussmann says, is a Brady violation.

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

Update: Intro and close fixed.

The March 6, 2017 Notes: Proof about Materiality

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jim C[rowell, who took the notes]

FBI/McCabe/Baker/Rybicki/Pete/Toscas

Scott/Tash/McCord/Dana/

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

The jury is entitled to hear both these narratives.

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

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

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

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

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

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

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

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

John Durham Wails about Michael Sussmann Adopting His Own Evidentiary Standards

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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

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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.