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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.

Judge Cooper Probes Andrew DeFilippis’ Conspiracy Theory about “Worker Bees” in a “Cabal”

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I’m certain that the hearing in the Michael Sussmann case the other day was not laugh-out-loud funny in real time. I’m certain that when Judge Christopher Cooper rules on what can and cannot come in, some of the conspiracy theory that John Durham is pursuing may come in to substantiate the motive he alleges Michael Sussmann had for allegedly hiding the existence of a client in a meeting with FBI General Counsel James Baker. I also recognize that Durham may moot many of these issues by bringing one or several interlocutory appeals before the trial to buy time to continue to spin his conspiracy theories some more.

But when I was reading the part of the transcript pertaining to whether Durham will be able to introduce researcher emails at trial, I started laughing out loud when Judge Cooper said this:

You could call Mr. Joffe.

The comment came after the discussion earlier in the hearing about what kind of evidence Durham might present to prove that Sussmann had a privileged relationship with both the Hillary campaign and Rodney Joffe.

It came after the discussion about whether Durham should be forced to immunize Rodney Joffe or not. That discussion had a lot more nuance than reports I had seen, including that Cooper floated the idea of prohibiting any Durham questions to Joffe about the allegations — that he had Sussmann share information showing the use of a YotaPhone by someone who was sometimes in Donald Trump’s presence — that Durham claims would be the basis of a contract fraud charge against Joffe if the data actually were only available as part of a DARPA contract that didn’t already, for very good cybersecurity reasons, encourage the tracking of such things.

THE COURT: What if the Court were to grant your motion in limine to keep out the information that he provided later to the CIA, and all the YotaPhone stuff is not in the case? Do you believe that Mr. Joffe would — and seeing that that appears to be the basis of the government’s position that there is some continuing exposure, do you think Mr. Joffe would see fit to change his position?

And the hearing, and so therefore this discussion on the conspiracy theory, came before Cooper turns to adjudicating Durham’s bid to pierce privilege claims, a bid which — I have already noted — makes a solid case that Durham should immunize Joffe rather than Fusion GPS’ Laura Seago, whom he plans to call as a witness.

So between the time when Cooper considered ways to make Joffe’s testimony available to Sussmann and the time when he turns to Durham’s false claim that the only possible way of accessing testimony about communications between Joffe and Seago is by calling Seago, the judge noted that one way of accomplishing what Durham claims to want to accomplish, rather than by introducing hearsay emails, would be to call Joffe.

Cooper made the comment to lay out that, if Durham really wanted to present the mindset researchers had as they attempted to understand a DNS anomaly involving a Trump marketing server and Alfa Bank, he could simply call the researchers directly.

And these emails, regardless of the words of any particular one, you’re offering them to show that the researchers had concerns about the data, right? And so you’re offering them for the truth of that proposition, that the folks who were in on this common venture had concerns about the data that Mr. Sussmann wanted to keep in the dark and, therefore, did not reveal to Mr. Baker why he was there. And so, the truth of the emails is that we have concerns.

Now, you know, if that’s a — if that’s an acceptable basis — if that’s relevant, right, you could certainly call those researchers. You could call Mr. Joffe. They could testify about how — you know, what was going on in, you know, those few weeks in August or whenever.

So, A, you know, why do you need the emails? [my emphasis]

In response to that, Andrew DeFilippis tried to spin that the government wasn’t trying to introduce the emails for the truth, but to show the existence of what he claims amounts to a conspiracy. In doing so, DeFilippis described that the emails were critical to tie Joffe to the effort to collect the data.

All we’re saying is that the existence of that written record itself might have provided a motive for Mr. Joffe or Mr. Sussmann to tell the lie that we allege he did. Now, that is the government’s secondary argument. The principal argument we’re making, Your Honor, is that these emails show a back-and-forth that tie Mr. Joffe to the data that went into the FBI, that tie Mr. Joffe to the white papers that went into the FBI, and tie Mr. Joffe to the entire effort which, absent that —

THE COURT: Mr. Joffe or Mr. Sussmann?

MR. DeFILIPPIS: First Mr. Joffe. And the reason why that’s important, Your Honor, is, again, because the defendant is alleged to have lied about whether, among other things, he had a relationship with Mr. Joffe, an attorney- client relationship. [my emphasis]

Cooper’s response — Mr. Joffe or Mr. Sussmann — nodded to the fact that Sussmann’s state of mind, not Joffe’s, is what’s on trial. Though shortly thereafter, he noted that the charged lie wasn’t even an attempt to hide Joffe personally.

THE COURT: Well, let’s just — you know, words matter, and let’s just be clear. He wasn’t asked “Are you here on behalf of Mr. Joffe?” and said no. He didn’t say “I’m not here on behalf of Mr. Joffe.”

He said generally, allegedly, he’s not here on behalf of a client, so at this point I’m not sure how relevant Mr. Joffe actually is at the time of the statement.

Indeed, much later, Sussmann’s lawyer noted that there’s no contest Sussmann told Baker he had gotten the allegations from cybersecurity experts.

What do we know is undisputed? That Mr. Baker will testify that Mr. Sussmann said the information was from cyber experts, okay? Not whether it was a client or not, but it was from cyber experts.

Cooper’s discussion of Durham’s conspiracy theory continued through DeFilippis’ effort to acknowledge that he’s not alleging collecting political dirt is illegal — though it may be “improper” — and then admitting this is not a “standard drug case.”

I have not seen one case where the charge is not conspiracy and the alleged conspiracy in which the statements are being made in furtherance of it is not criminal or improper in any way. Would this be the first time?

MR. DeFILIPPIS: Your Honor, I think — so we would not expressly allege to the jury that it was criminal. There are aspects of it that may be improper.

[snip]

And I think, Your Honor, that most — that this hasn’t come up often should not cause the Court to hesitate just because these facts are a bit different than your standard drug case or, you know, your standard criminal case.

And it continued to DeFilippis’ effort to describe why people whose actions preceded the alleged formation of a conspiracy and other people who expressed reservations about joining into this alleged conspiracy would be included in what Cooper dubbed “a cabal.”

THE COURT: Okay. So who was part of this joint venture, in your view?

MR. DeFILIPPIS: So, Your Honor, it would be three principal categories of people. We have the researchers and company personnel who supported Mr. Joffe once they were tasked by Mr. Joffe.

THE COURT: Okay, but they were just tasked. You’ve made the point yourself that some of them, you know, had concerns. Some of them had issues with the data. Some had concerns that what they were doing was proper or not until they were satisfied that it was.

MR. DeFILIPPIS: That’s true, Your Honor, but —

THE COURT: How are they members of this cabal?

[snip]

MR. DeFILIPPIS: — just to distill it down as to each category of people. The thrust of this joint venture was that there was a decision and an effort to gather derogatory Internet-based data about a presidential candidate — about a presidential candidate among these folks. There were the researchers who began doing that, it seems, before Perkins Coie became fully involved, and there are emails we will offer that show that data was being pulled in late July and August. So the researchers were the engine of this joint venture in the sense that they were doing the work, and they were doing — and the emails make clear they were doing it for the express purpose of finding derogatory information in Internet data. So that’s one category. [my emphasis]

I mean, even ignoring the fact that the record shows these researchers were not, in fact, analyzing data for “the express purpose of finding derogatory information in Internet data” — indeed, if one actually cares about national security, their actions might be better understood as an effort to protect Donald Trump from his dishonest campaign manager with a history of laundering money from Putin-linked oligarchs through Cyprus — DeFilippis admitted right here that the research into the data preceded the moment when DeFilippis wants to make it criminal (but not criminal in “your standard drug case” sense).

But Durham’s frothy lead prosecutor wants to treat cybersecurity research as — in Cooper’s word! — a cabal.

DeFilippis then went on to call some of the top cybersecurity researchers in the US, who found and started trying to understand an anomaly on their own volition, “the worker bees who are bringing the data and funneling it into this effort.”

Maybe I have a twisted sense of humor. But I was guffawing at this point.

Judge Cooper, however, capped DeFilippis’ effort with the same question:

THE COURT: And assuming that I agree that it’s relevant, you could get that in by calling witnesses without the emails, correct?

Everything that DeFilippis wants to do — even before he wants to get Laura Seago (who, Sussmann attorney Sean Berkowitz revealed later, would testify that she doesn’t even know about key parts of DeFilippis’ conspiracy theory, starting with Christopher Steele’s involvement) to offer the non-unique testimony about her conversations with Joffe — is best done by calling Joffe as a witness.

I’m not the only one, it seems, who recognizes that some of what Durham wants to do actually depends on calling Joffe as a witness.

Michael Sussmann’s Lawyers Complain of “Wildly Untimely” Notices from John Durham [Updated, with Confirmation]

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Republished given confirmation that Durham is trying to point to privilege claims to insinuate wrong-doing. 

On March 31, there was a combined motions and status hearing in the Michael Sussmann case. The parties started by arguing Sussmann’s motion to dismiss (response; reply) based on a claim his alleged lie was not material. Here’s my live-tweet of the hearing.

Judge Christopher Cooper observed that the dispute was “Well briefed and argued on both sides” and promised to rule quickly. But the odds are still really good that he’ll rule against Sussmann because the standard for materiality is so thin. So that argument was perhaps more interesting for a few details that came out in the process, such as that the claim is that Sussmann offered up that he had no client, and that in all the discovery Sussmann has received, there’s no evidence anyone every asked the source of the DNS data he shared with the government even while they repeatedly recognized that Sussmann was a lawyer for the DNC.

We don’t think Baker or anyone else at FBI ever asked, btw, where’d this info come from. If source mattered so much, you’d think someone would have said, where’d this come from, how’d they get it.

Both details would help Sussmann defeat a materiality claim at trial, but Cooper can’t take it into account.

It was in the status discussion where things got more interesting. Cooper asked why he hadn’t seen any 404(b) notices (which is notice that the government wants to use otherwise incriminating information to prove its case in chief, often to prove motive), and AUSA Andrew DeFilippis said they had provided it to the defense. Sussmann’s lawyer, Sean Berkowitz, described that they were going to file motions in limine about the notices, but observed that “one was untimely,” meaning Durham’s team missed the March 18 deadline.

DeFilippis then asked for extra time to deal with Sussmann’s CIPA 5 motion, which is where he asks for classified information to be declassified to use at trial. Sussmann had little problem with that.

Then Berkowitz complained about an expert the government just informed Sussmann they wanted to call — an FBI agent whose primary purpose would be to explain the DNS and Tor technologies at the core of the tip Sussmann shared with the FBI. Cooper quipped, “aren’t we going to have the jury understand the technical” aspects of the trial, and suggested he, himself, needed such a tutorial as well. Berkowitz noted that that deadline had passed weeks ago and the late notice didn’t give Sussmann enough time to qualify their own expert to respond.

The real issue, it soon became clear, was that the government wants to reserve the right to use this witness to rebut any claim Sussmann would make that the data was “real.” DeFilippis argued they need to be able to rebut Sussmann’s claim that the allegation he made was “unsupported.” “That’s different,” Judge Cooper noted, “than whether the data was accurate.”

It’s clear, based on what DeFilippis said, that he intends to conflate accurate data — a real, still unexplained anomaly — with an unpersuasive hypothesis about what that anomaly might be. DeFilippis countered that if the data were “cherry picked or fabricated” — neither of which he has charged — then it might suggest a motive for Sussmann to lie. But Berkowitz argued that the only thing that matters it that Sussmann believed the data was accurate. Importantly, Durham’s indictment falsely suggests that Sussmann was privy to some of the researchers discussion about this.

Berkowitz’s frustration with all that was nothing compared to his fury that, just the night before, prosecutors had told them that they intended to use a motion in limine (which is supposed to deal with what evidence can and cannot be introduced at trial) to try to breach privilege claims that various witnesses have made. As Cooper noted, that’s not a motion in limine, it’s a motion to compel.

Berkowitz: We learned last night that SC is challenging privilege. Only last night we learned they do intend to challenge privilege in motion in limine. Wildly untimely. Implicates underlying case.

DeFilippis: We’ve been working with asserted privilege holders. Those holders would be Tech Executive-1, Clinton campaign, another political organization. We have tried to understand theory of privilege. Unable to get comfort. We now intend to call witnesses from [Fusion] and [Perkins Coie].

Cooper: Not a motion in limine, it is a motion to compel.

Berkowitz: This issue is an issue that has been discussed for well over a year. Honestly to only now bring it up, 6 weeks before trial. Violations of due process, we’re going to get new info, it’s an ambush.

It’s really hard to view this as anything but a stunt to try to save Durham’s conspiracy theories.

In a normal situation involving a big law firm like Perkins Coie, well-lawyered people associated with the Hillary campaign (because of PC’s role as Sussmann’s former employer, Hillary and the DNC would count as separate entities), as well as Fusion GPS (which has been fighting similar issues from Russian oligarchs for years now), such privilege claims would take at least three months to work out.

For sake of comparison, John Eastman’s privilege fight, for a legal argument with none of the formal retainer agreements like those PC has, for emails inappropriately stored on Chapman University’s cloud, in which there’s substantive evidence — now affirmed by a judge — that Eastman himself has criminal exposure, has been going on since January 20, and it is nowhere near done.

As Berkowitz notes, the trial is six weeks away.

The most likely outcome of this effort would either be a delay of the trial and/or some inconclusive outcome, which Durham would undoubtedly use to sow more conspiracy theories without charging them, pointing to Democrats’ defense of privilege to insinuate the privilege claims must hide some proof of conspiracy.

But it looks all the more intentional given the now-famous delayed waiver motion Durham went through in February. The waivers covered by Durham’s filing include several of the witnesses he has belatedly said he wants to pierce privilege now:

  • Whether Perkins Coie (which Latham represented along with Sussmann in the Durham investigation) knew how Sussmann was billing his time
  • Perkins Coie’s past claims about the DNC’s activities
  • The advice Kathryn Ruemmler gave Sussmann when Kash Patel raised his meeting with the FBI in a December 2017 HPSCI appearance
  • What Latham told a PR firm regarding public statements about the meeting in 2018

That is, more than six weeks before telling Sussmann that, after not formally attempting to pierce privilege in the last year, Durham now wants to do so, Durham made Sussmann waive any conflict with all the privileged relationships that Durham wants to pierce.

As I noted at the time, Durham was asking Sussmann to waive conflicts even without having pierced privilege.

Latham also provided Perkins Coie advice regarding a PR statement that, Durham admits, he’s not been able to pierce the privilege of and he knows those who made the statement had no knowledge that could implicate the statement in a conspiracy.

He’s now trying to do that. It’s really hard to believe that’s a coinkydink.

And unlike the attorney-client waiver used in the Paul Manafort case, Durham is not citing independent proof that Sussmann lied to his lawyers. Unlike the waiver with Eastman or with Michael Cohen’s hush payments, Durham is not citing participation in a conspiracy.

This is still a false statements case that Durham is sure, absent the evidence to charge it, is a conspiracy. And now at the last minute, he’s attempting to salvage that conspiracy.

Update: A motion in limine from Sussmann confirms I was totally right about Durham’s ploy. He wants to submit privilege logs to the jury — privilege logs to which Sussmann is not the privilege holder and therefore is helpless to waive — to insinuate that he’s covering something up.

Again, there can be no mistake as to the purpose for the Special Counsel’s tactics here. The animating theory of the Special Counsel’s Indictment is that, in meeting with the FBI and Agency-2, Mr. Sussmann sought to conceal that he was secretly working on behalf of the Clinton Campaign and Mr. Joffe. Lacking actual evidence of Mr. Sussmann’s guilt, the Special Counsel seeks instead to convict Mr. Sussmann by insinuating to the jury that such evidence must exist— by inviting them to draw the inference that, because Mr. Sussmann’s alleged clients and co-conspirators have chosen to withhold information relating to the very same relationship the Special Counsel alleges they and Mr. Sussmann sought to conceal, that information must be inculpatory.

Permitting the Special Counsel to prejudice Mr. Sussmann and to shirk his burden of proof by leading the jury to an adverse inference would be impermissible under any circumstance. But it is particularly egregious here, because Mr. Sussmann is not the privilege holder. The Special Counsel’s tactics would accordingly penalize Mr. Sussmann for another party’s invocation of their own right to assert the privilege, a decision that was not his to make. Convicting him on the basis of such fundamentally unfair circumstances would amount to a miscarriage of justice.

Donald Trump Suggested Michael Sussmann Should Be Killed because Rodney Joffe “Spied” on Barack Obama

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Michael Sussmann has filed his response to John Durham’s transparent attempt to inflame the frothers. In it, he notes what I did: Durham used an unrelated filing (one that, Sussmann’s filing noted, had already been addressed between the parties) to make claims that were not charged.

Importantly, he notes that Durham misrepresented the dates of the anomalous data found at the Executive Office of the Presidency that Sussmann presented at a February 9, 2017 meeting with the CIA. The data predates the Donald Trump inauguration.

In his Motion, the Special Counsel included approximately three pages of purported “Factual Background.” See Dkt. No. 35 at 2–5. Approximately half of this Factual Background provocatively—and misleadingly1 —describes for the first time Domain Name System (“DNS”) traffic potentially associated with former President Donald Trump, including data at the Executive Office of the President (“EOP”), that was allegedly presented to Agency-2 in February 2017. See id. at 3–4. These allegations were not included in the Indictment; these allegations post-date the single false statement that was charged in the Indictment; and these allegations were not necessary to identify any of the potential conflicts of interest with which the Motion is putatively concerned. Why then include them? The question answers itself.

1 For example, although the Special Counsel implies that in Mr. Sussmann’s February 9, 2017 meeting, he provided Agency-2 with EOP data from after Mr. Trump took office, the Special Counsel is well aware that the data provided to Agency-2 pertained only to the period of time before Mr. Trump took office, when Barack Obama was President. Further—and contrary to the Special Counsel’s alleged theory that Mr. Sussmann was acting in concert with the Clinton Campaign—the Motion conveniently overlooks the fact that Mr. Sussmann’s meeting with Agency-2 happened well after the 2016 presidential election, at a time when the Clinton Campaign had effectively ceased to exist. Unsurprisingly, the Motion also omits any mention of the fact that Mr. Sussmann never billed the Clinton Campaign for the work associated with the February 9, 2017 meeting, nor could he have (because there was no Clinton Campaign). [my emphasis]

Not only must Durham know the true dates of the data involved but so — as I’ve noted — must Kash Patel, who has known about this issue for four years. That means Patel insinuated that Hillary’s associates hacked Trump, knowing full well the claim was false.

And it led the former President to claim that those involved should be killed.

Sussmann has asked Judge Christopher Cooper to strike the improper language from the motion.

He has also provided yet more evidence that Durham didn’t take basic investigative steps necessary to vet the allegations he made in the indictment before actually indicting Sussmann. Durham didn’t interview any Clinton Campaign staffer to find out whether Sussmann coordinated with the campaign until after the indictment.

[T]he Special Counsel has been investigating for years, and some of the Special Counsel’s “ongoing” investigation seems to be work that should have been completed before indicting Mr. Sussmann. For example, the Special Counsel has alleged that Mr. Sussmann met with the FBI on behalf of the Clinton Campaign, but it was not until November 2021—two months after Mr. Sussmann was indicted—that the Special Counsel bothered to interview any individual who worked full-time for that Campaign to determine if that allegation was true. It is not.

As I noted earlier, Durham had to admit that he had no basis to substantiate claims of coordination with the Hillary Campaign in a filing last year. But that was October. It was not until after he had to confess he had overblown that claim in the indictment that Durham first interviewed a Hillary staffer.

In his filing, Sussmann makes it clear he intends to move to dismiss the indictment.

In addition, Mr. Sussmann reserves all rights to submit appropriate motions and seek appropriate relief concerning this conduct should the Indictment not be dismissed and should the case proceed to trial, including by seeking extensive voir dire about potential jurors’ exposure to prejudicial media resulting from the Special Counsel’s irresponsible actions.

If he keeps to the original filing deadline, that motion will be submitted this Friday. While not normally a basis to dismiss an indictment, Sussmann will be able to present entire swaths of proof that Durham didn’t take basic investigative steps before accusing Sussmann of things that turned out not to be true.

And now he’ll be able to point back to this filing to show that Durham misrepresented basic facts that might get someone killed.

Update: I managed a whole appearance on MSNBC without potty mouth.