PCLOB Releases Its (Very Redacted) XKEYSCORE Study

Back in December 2020, the Privacy and Civil Liberties Oversight Board completed a report on the National Security Agency’s XKEYSCORE system, whose existence had come to light as part of the Snowden leaks. XKEYSCORE is a software program that N.S.A. analysts use to query the vast repository of stuff that the agency has sucked up, including through bulk collection of communications abroad or foreign-to-foreign stuff transiting the U.S. network under Executive Order 12333. The report was entirely classified at the time, but a few months later a Democratic PCLOB member, Travis LeBlanc, got declassified and released a lengthy statement basically saying the report was garbage, which I wrote about for the New York Times. Anyway, the agency has now released a declassified version of the report itself, though it is so heavily redacted that I don’t see anything newsy to write about in it that wasn’t brought to light in the flap over the LeBlanc statement in 2021. Here it is:

How “The Dark Side of the Rainbow” Haunts My Career

I wrote in the New York Times Magazine (gift link) about my weird connection to the experience of listening to Pink Floyd’s “The Dark Side of the Moon” while watching “The Wizard of Oz,” which is sometimes called “The Dark Side of the Rainbow.” I didn’t invent this idea, but an article about it I wrote in 1995, as a 19-year-old college intern at the Fort Wayne Journal-Gazette, is its earliest available documentation. Not unlike the Oxford English Dictionary’s citations to the first published usage of a word — even though people were surely using that word in the same way earlier, just without leaving any record of it — this article has come to be a stand-in for its mysterious origins. As a result people keep citing it and it has barnacled itself to my career as a national security and legal policy journalist. I’ve come to accept that the world is intent on treating this somewhat ridiculous thing as a defining contribution, and that no matter what else I have done or may yet do professionally, if I get an obituary after I die, it may well mention that article as a somehow notable fact.

UPDATE: Thanks to brothers Jeff and Scott Warden for sending in this shot – it’s apparently been taped to Jeff’s wall since 1995:

A Note of Appreciation for Alberto Ibargüen as He Retires From the Knight Foundation

As Alberto Ibargüen — the head of the Knight Foundation and former publisher of The Miami Herald — retires, I would like to add a public note of personal appreciation to the encomiums.


In 1999, when I went to work for The Miami Herald as a cub reporter just out of college and he was its publisher, he took a mentor-like interest in me. We got to know each other over occasional dinners/drinks, a Miami Heat game, etc.

In late 2001 or early 2002, when I was thinking about applying for a Knight Foundation journalism fellowship at Yale Law School, he encouraged it (he has a law degree from Penn) and wrote a strong letter of recommendation that really helped me stand out from the pac

The Yale year transformed my life both personally — I met my future wife, Luiza Chwialkowska Savage, another fellow — & professionally, putting me on the path to journalism that specialized in post-9/11 legal policy & executive power issues like Gitmo, hot topics on campus that year.

Alberto and I continued to periodically stay in touch as he went on to lead the Knight Foundation, where has steered altruism at a programmatic level. The help he provided to me as an individual is just a footnote to that legacy. Thank you, Alberto, and enjoy retirement!

Originally tweeted by Charlie Savage (@charlie_savage) on March 26, 2023.

Judge Rejects Request to Unseal Executive Privilege Arguments Related to the Jan. 6 Grand Jury

Judge Beryl Howell, the chief judge of the Federal District Court for the District of Columbia, has decided not to unseal filings and rulings ancillary to the material presented to the grand jury investigating Trump’s attempt to overturn the 2020 election and the Jan. 6 attack on the Capitol. The New York Times and I had made that request, along with Politico and Kyle Cheney. I was hoping to liberate for public understanding the briefs and rulings about whether Trump’s former aides could lawfully avoid answering questions as witnesses under executive privilege, a hidden fight that has raised novel issues about the extent of a former president to assert residual secrecy powers and that has likely set precedents that will affect unrelated future disputes.

A Short Tribute to Norma Thiele (1930-2023), My High School Journalism Teacher — And Her Special Retirement Issue of “The Northerner”

Norma Thiele, my journalism teacher at North Side High School in Fort Wayne, Indiana, died on Monday at age 92. For more than four decades, “Miss Thiele” was a great writing teacher and adviser to the then-weekly student newspaper, The Northerner. After each issue of the paper, she would mark up everything that was wrong with it in red pen and staple it to the bulletin board; there was always a lot of red pen. She was also someone whom the teenaged version of me butted heads with a lot: she took no guff, but also had a big laugh. It was such a big and complicated influence that I wrote about our relationship as one of my college application essays. She retired at the end of my senior year in 1994. In honor of that, the editors of The Northerner – Josh Kline, Adam Loeffler and I – wrote to the former editors in chief going back two generations to solicit essays and memories about her. The principal, Dr. Richard Gardner, gave us some funds and we published all the essays in a special commemorative issue that surprised her when it showed up. On several occasions in the years since some of us newspaper vets met up with her for coffee or lunch to see how things were going. She never married and lived much of her life on a farm outside of Fort Wayne. But Miss Thiele took on a second career of sorts after retiring by becoming a mentor to the large Burmese refugee community in Fort Wayne — helping them adjust and navigate life, and often serving as an honored grandparent stand-in for people separated from their extended families. Her funeral service is tomorrow. https://www.midwestfuneralhome.com/obituary/Norma-Thiele

Updated 2/20/2023: Big thanks to Adam Loeffler, who found and scanned the tribute issue from her retirement, with remembrances from former editors-in-chief of The Northerner.

Rodney Joffe’s De-Censored Complaint v Neustar about Bulk DNS Sales, Alfa Bank and Trump

Chancellor Kathaleen St. Jude McCormick, a judge in Delaware, has ordered a previously heavily redacted court document to largely be made public, partly at my request. It is a complaint that Rodney Joffe filed against his former company, Neustar, in a lawsuit over whether Neustar has to pay his legal bills for matters arising from his role in the suspicions developed in 2016 by a group of cybersecurity experts about odd internet data they said could be a sign of a clandestine communications channel between someone associated with the Trump Organization and Alfa Bank, a Kremlin-linked financial institution. Neustar sold large amounts of so-called DNS data to Georgia Tech, where two of those data scientists worked, in connection with that effort and a larger project of mining DNS data for insights into malicious activities online.

I don’t see a stand-alone news story here but there are some interesting details so I will post it for any who want to read. Among other things, it shows that Neustar established a subsidiary called ERP Services to handle sensitive government contracts.

My thanks to Samantha Hamilton, the New York Times’ First Amendment Fellow, for assisting me in writing to the court to ask for it to be released. Apparently a Wall Street Journal reporter also made that request. I was not in the court when Chancellor McCormick ruled, but the anonymous person behind a Twitter account that follows the Delaware Court of Chancery, @chancery_daily, reported that she ruled from the bench, saying that the “public’s right of access is fact fundamental” and most of the document did not meet legal standards for redaction. Thanks to that person as well.

The Alfa Bank suspicions were a sideshow to the FBI’s pre-existing investigation into the Trump campaign’s links to Russia, which later evolved into the Robert Mueller investigation. They got new attention when the Trump-era special counsel, John Durham, indicted Joffe’s lawyer, Michael Sussmann, on an accusation that he had lied to the F.B.I. when relaying the tip; Sussmann was acquitted.

Aside from the political swirl surrounding Trump and Durham, the episode also served to focus broader attention on the fact that DNS data — essentially, a record of when a computer has prepared to connect with another computer over the internet — existed as a thing that can reveal private information about web browsing and communications and that is largely unregulated. In December, Senator Ron Wyden, the Oregon Democrat who is deeply interested in surveillance and privacy issues like bulk data sales, sent a letter to the FTC focused on some of Neustar’s practices.

A Trip to Syria: ISIS Fighters’ Children Are Growing Up in a Desert Camp. What Will They Become?

I accompanied a military-escorted congressional fact-finding trip organized by @LindseyGrahamSC to look at detention of ISIS men & wives & children operated by a Kurdish-led militia that is the main US partner in northeastern Syria. Story has just posted:

This is what Al Hol — the vast camp for refugees and others displaced by war looks like from a helicopter. It is effectively a prison for ISIS wives and children, who are not allowed to leave. About 55,000 people are living there, half under age 12.

The delegation drove up a road between the main camp (for Iraqis and Syrians) and the annex (for third country nationals) and kids came to the fence to look. Here's a boy in a Star Wars shirt.

This boy, wearing clothes much too large for him, was clutching some notebooks and had made a star out of a sheet of paper, which he held up as we drove past him.

The delegation did not go inside the wire. Reporters — including my colleagues based in the Middle East — have done so. There were regular murders in the camp throughout 2021, and killings have surged since April.

A lot of the violence is attributed to hard-core ISIS zealot women who kill people for transgressions like talking to camp authorities. In this recent report, @SavetheChildren analyzed the trauma kids growing up there are experiencing.


Human rights groups and national-security specialists (including the military) broadly agree that leaving these kids to grow up there is a horrific problem. It is cruel today — and the conditions are likely to shape them into adults who will be radicalized & angry at the world.

We also went to Hasaka, where some of the adult men (and teenage boys culled from Al Hol as they grew older) are housed in a separate prison. In January, ISIS staged a major attack and breakout attempt on that prison, leading to a nearly two-week battle.

The attack came as the men had been housed in an ad hoc prison at an old technical college & were about to be moved to a more secure facility, custom-built by the UK as a prison. Authorities still don’t know exactly how many & who escaped: bodies were vaporized in the fighting.

Here's General "Amuda" (a nom de guerre), the head of a Syrian Democratic Forces commando unit that is a US partner force, on the roof of a prison building describing how the fierce fighting unfolded, day by day, to Graham. You can see some of the battle damage behind them.

One of the big fears is that Turkey — which considers the SDF to be an arm of the PKK, a Kurdish separatist group in Turkey that is a designated terrorist organization — may soon attack the SDF in Northern Syria, as it did in 2019.

If Turkey attacks again, the SDF may pull its guards from Al Hol & the ISIS fighter prisons to defend its territory, losing control of the detainees. There could also be between 500k and 1.5 million newly displaced people from the border region, flooding toward this area. Chaos.

“If a Turkish attack in fact comes down, we’re going to potentially have ISIS 2.0,” Brig. Gen. Claude K. Tudor Jr., head of the anti-ISIS Special Ops task force, told Graham. He's at right; left is Maj. Gen. John W. Brennan Jr., head of the overall task force in Iraq and Syria.

Back in 2018, I accompanied @LindseyGrahamSC & @SenatorShaheen on a similar trip to look at ISIS fighter prisons run by the SDF. The takeaway was that it was not fair or sustainable for countries to outsource their ISIS nationals problem to the Kurds.

This is Guantanamo on steroids. In 2018, the SDF was detaining about 1k ISIS “fighters.” Four years later, it’s holding 10k. (5k Syrian; 3k Iraqi; & 2k from some 60 other countries.) The Kurds can’t prosecute them — they aren’t a sovereign government.

But if the takeaway from the 2018 trip was the near-term risks of outsourcing the custody of ISIS adult male fighters to the SDF, the takeaway from this one was the longer-term risk the world is creating by abandoning all these kids to grow up in this hell. What will they become?

Originally tweeted by Charlie Savage (@charlie_savage) on July 19, 2022.

The FBI’s 2021 Review of 9/11-Related Investigations With Saudi Links

This interesting 130-page report from July 2021 was included in a tranche of otherwise much older documents related to the government’s investigations into links between the 9/11 hijackers and various Saudi officials and agencies, which have been declassified as a result of Biden’s Executive Order 14040. Ahead of the 20th anniversary of the terrorist attacks of Sept. 11, 2001, and as various family members of victims of the attacks were lobbying for the release of such documents, the FBI appears to have written this report as a comprehensive review and summary of its work through the years on that topic.

Live-Tweeting the Sussmann-Durham Trial: Closing Arguments

Good morning again from the E. Barrett Prettyman courthouse in downtown Washington, DC. The Sussmann-Durham trial will at least start to wrap up today with closing arguments. /1

Jury deliberations should start this afternoon. But because the judge is leaving at 2:30 p.m. for his planned Memorial Day weekend vacation, deliberations would have to go very quickly if we’re going to hear any verdict today./2

They neglected to read a jury instruction yesterday about character witness. Durham team objects to doing so now as it would highlight; judge says he’ll read it to the jury but soft pedal it. Jonathan Algor will do the initial part of the closing argument for Durham team./3

The jury is brought in. Algor begins his argument: Sussmann lied on Sept. 19 to conceal his clients because he knew the chances of FBI investigation would be seriously diminished if they knew Clinton campaign role and Joffe wanted to conceal his role./4

Algor talks about the billing records, the thumb drives purchase, the pushing of same allegations to the media. “It wasn’t about national security. It was about promoting opposition research against the opposition candidate, Donald trump.”/5

Algor claims it’s not in dispute – equivalent to the fact FBI is part of govt – that Sussmann told Baker *on Sept. 19* he was not there on behalf of any client, based on Baker testimony & Priestap/Anderson notes. (Defense will disagree given Baker’s conflicting statements.) /6

Algor launches into “The origins of the Alfa Bank allegations” with a power point. He begins the story with a July 29 meeting with Marc Elias and Fusion GPS and Sussmann, billed to HFA for “confidential project.” So he starts the story w/ Sussmann “joining forces” with them./7

Mtgs/calls in mid Aug involving Joffe, Elias, Fusion GPS, billed to HFA. Evidence “leveraging his client, Rodney Joffe, to benefit his other client, the Clinton campaign. This is not cyber security work. This is nothing related to national security. This is pure oppo research.”/8

Late Aug. Fusion GPS works on its white paper describing Kremlin links to Alfa Bank. Eric Lichtblau reaches out to Sussmann re Russian hackings. Sussmann communicates with Fusion GPS and Joffe and Elias, incl re NYT. /9

Basically Algor is hitting the theme this was all opposition research billed to HFA. If their focus was legitimate national security concerns, why go to media first rather than FBI right away? /10

Comment: The defense’s narrative, as I understand it, is Sussmann *was* working for HFA in trying to get media to write about Alfa, but not in his decision to later give copy of same materials to FBI. If so they will argue that most of this is beside the point./11

Algor continues to march through Sussmann’s meetings and calls and preparing of materials on Alfa Bank, talking with Elias, talking with Lichtblau and Joffe – Sept 7, 8, 12 – and billing it to the Clinton campaign. /12

Algor reaches Sept 13 receipt from Staples showing purchasing some flash drives, meeting with Joffe. Meets with Joffe again Sept. 14. Emailing Lichtblau Sept. 15. Working on paper/confidential project. Billing his time for all this to Clinton campaign. /13

Saturday Sept. 17 – Sussmann is talking to David Dagon, one of the cyber experts who developed the Alfa suspicions and drafted one of the white papers. Talking to Elias, reporters. Billing to HFA. /14

Sunday Sept 18 – Sussmann spends 5.5 hours working on Alfa, billed to campaign. Texts Baker and says he wants a meeting and is coming on behalf of no client. That was a false statement Algor said. /15

Sept. 19 – At the meeting, Baker testified 100% confident Sussmann repeated that he was not there on behalf of any client. The truthful statement would have been the defendant was there on behalf of campaign/Joffe and gave the info to NYT. /16

Priestap notes and Anderson notes from talking to Baker on Sept. 19, after the Sussmann-Baker meeting, write that Baker said he said he was not there for a client. /17

Algor you’ve seen the billing practices, that the entire time working on Alfa he was working for HFA. Defendant’s story is he stops working for HFA on that topic when he steps into mtg with Baker. /18

Algor notes that on Sept. 20 email, Sussmann logged 4.4 hours working for HFA on 9/19. But on 11/6/2016, Sussmann sent email changing that log, saying he spent only 3.1 hours working for HFA on 9/19. Algor argues Sussmann changed time entry to cover that./19

Algor leads up to Sussmann expensing the thumb drives he bought at Staples to HFA. Who did the defendant think he was representing at that meeting on Sept. 19? I submit this show he thought he was representing the Clinton campaign./20

Algor points to notes after CIA meeting on Feb 17, 2017, saying defendant said he was not there on behalf of particular client so info not privileged. Then moves to Dec 2017 testimony to Congress when he said he had brought info to FBI on behalf of unnamed client (Joffe). /21

Algor accuses Sussmann of having concealed from Congress that he had worked with Fusion GPS which wrote one of the white papers he gave the FBI, and of making no mention of the Clinton campaign, which he had been billing “day after day.”/22

Algor goes over Sussmann and FusionGPS trying to get reporters to write about Alfa Bank allegations later in Sept and then October. Lichtblau and Franklin Foer finally write about them Oct. 31, 2016 and Clinton campaign promotes. fruition: “October surprise.” /23

(Comment: Algor doesn’t mention that Lichtblau’s Oct 31 article only mentioned the allegations in passing and said the FBI had already dismissed them, nor that Foer’s Slate article didn’t say anything about FBI investigation.) /24

Algor goes over testimony from FBI agents Hellmann, Sands, Heide saying they disagreed with and evidence didn’t substantiate the white paper, calling it “The opposition research that the Clinton campaign paid for, that the defendant brought to the FBI.” /25

Algor cites Baker’s testimony about how he would have handled the material differently if Sussmann had told FBI it was coming from the Clinton campaign, saying this proves materiality. Sands and Heide said similar things./26

Algor said Joffe had “lucrative contracts” w/ FBI and gave it other info as a confidential human source, but in this case he says Joffe wanted to hide that this data was coming from him. This was not nat-sec info, it was oppo research, so Joffe concealed his role. /27

Algor: “When you look at all of the evidence, is the defendant’s statement that he is not acting on behalf of a client the truth? No. A person acting in good faith, a person who knows the law, would not say and do the things that Mr. Sussmann did on Sept. 19.” /28

Algor sums up the main points and tells jury the evidence is overwhelming that Sussmann is guilty of making a false statement to the FBI on Sept. 19, 2016.

Now we’re in a 10-minute break and then the defense will open its closing argument. /29

Berkowitz opens with the 1983 magic trick where David Copperfield made the statue of liberty disappear. How did he do it? misdirection. the platform slowly pivoted while the curtain was up, so when it dropped they were facing a different direction. That’s what govt did. /39

The govt’s magic trick was to turn a 15-30 min meeting into a much longer swath of time Sussmann spent that day and billed to the Clinton campaign./40

“These are serious charges. Mr. Sussmann’s liberty is at stake. The time for political conspiracy theories is over. The time to talk about the evidence is now.”/41

Berkowitz: Political opposition research and trying to get reporters to write about it is legal. They own Sussmann was doing that. But Clinton campaign officials testified they didn’t tell him to take it to the FBI./42

Berkowitz says they own the Sept. 18 text but there’s a big dispute about whether Sussmann repeated that statement on Sept. 19. Isn’t it more likely Sussmann didn’t repeat it bc meeting short and Baker is misremembering that it was in his head from the text?/43

No notes of the meeting itself. Going through how Baker has told many different versions of what Sussmann said on different occasions, and only recalled this version after DeFilippis showed him the Priestap notes. /44

Berkowitz notes they hadn’t recovered the existence of the text until much later, so Baker places the recovered memory in the meeting itself. Isn’t there reasonable doubt? Case is over if you aren’t confident he thought it came from the meeting itself/ 45

Berkowitz talks about other ways Baker has recalled the meeting in different ways, like how long it was. “I submit to you the govt has not proved beyond a reasonable doubt that on Sept. 19 Mr. Sussmann repeated the words from his text.” You can go home based on that alone./46

Berkowitz is now making the case it was true that he was not there on behalf of any client. He had no ask, wasn’t advocating for anything. Sussmann testified to Congress he had no ask. Baker testified at the trial Sussmann didn’t ask him to do anything. /47

Berkowitz – CIA notes are the same, he was just giving them info. Doesn’t mean he doesn’t have clients. But there is a difference between having clients and doing something on their behalf./48

Berkowitz puts up testimony from Elias and Mook – they didn’t ask him to go to the FBI or authorize him to go to the FBI. Indeed, they said it wasn’t in their interests for him to go. Mook didn’t trust the FBI bc email investigation, wouldn’t even go to briefing with FBI. /49

Berkowitz: Elias said they wanted the NYT to run the story; get the FBI involved and it could get messed up. That’s what happened here./50

Comment: Berkowitz told jury the NYT had vetted the story and decided to run it before the FBI asked it to hold it. If the NYT is “Lichtblau” perhaps he wanted to run it, but as has been reported, NYT *as an institution* – his editors – were skeptical and never ready to pub. /51

Berkowitz is pointing to how Sussmann’s habit in billing records was to say “meeting with FBI” on other occasions when he did so, but he didn’t say that in billing records to HFA on Sept. 19./52

Berkowitz mocks the Staples receipt for flash drives and google map. bought the drives on Sept. 13 when he was doing tremendous amount of work for campaign. Doesn’t text Baker for meeting until Sept. 18 — right after email saying Trump freaking out over imminent Russia story. /53

Berkowitz focuses on how Sussmann didn’t bill HFA for his taxi rides for the FBI meeting, even though he knew how to bill expenses to clients. /54

Berkowitz acknowledges that Joffe was a client of Sussmann’s. But there are no records of any bills to Joffe for a meeting of Sept. 19, 2016, or other hours spent or expenses./55

Berkowitz says prosecution’s theory seems to be Joffe would get business benefit from turning that information to the FBI. What financial benefit would he get? Grasso said Joffe said he was providing info for the good and was terrified for his security, what Russians could do./56

Berkowitz says their best evidence is Sussmann’s congressional testimony when he said he went “on behalf” of a client (Joffe). Suggests in context, the words were inaccurate, imprecise, product of confusion. /57

Berkowitz reads the portion of the same congressional testimony he read into evidence at the end of his case: Sussmann said he was giving the information because thought Baker would know what if anything to do with it, wasn’t looking for the FBI to do anything. /58

Reads from Baker’s trial testimony about how the FBI would in fact want a heads up if the NYT was about to publish an article about a national security matter. /59

Berkowitz again says he gave the info to the NYT, wasn’t conclusive, NYT presumably investigated further and then when it had vetted and was prepared to publish (Comment: *see earlier tweet re how that is not true, tho unclear if Sussmann understood that), he went to FBI. /60

Berkowitz: What did he have to gain by giving this info on the eve of the NYT publishing a story? (*see above) Why lie? He had a top secret clearance, vibrant nat-sec practice. Prosecution’s political conspiracy theory doesn’t make any sense-everything to lose nothing to gain./61

Talks about Joffe’s expertise, contracts with millions of $ in govt contracts. Why would Sussmann, not a DNS expert, have any reason to doubt what Joffe was telling him? If evidence shoddy, why take to Pulitzer Prize winning reporter? /62

Berkowitz: Shows picture of Lichtblau with Pulitzer Prize medal. Sussmann told Baker Lichtblau was shooting to publish on Sunday but may not have all the details wrapped up by then. (*see above)/63

Berkowitz talks about the Perkins Coie letter to the editor in 2018 which denied Sussmann had been sent to the FBI by the Clinton campaign but did say he had a client (Joffe). Sussmann sent it to Baker. Doesn’t make sense he’d do that if Sussmann thought he had lied to Baker. /64

Berkowitz talks about the March 2017 FBI/DOJ meeting at which it was discussed how Sussmann had brought the information to Baker and had a client, and Baker didn’t object and say no that’s wrong./65

Berkowitz notes that Baker and Sussmann had a number of interactions in the days following the Sept. 19 meeting — after the Priestap/Anderson notes. (I think he is implying maybe Sussmann clarified later?)/66

Berkowitz talks about the reach-out to the CIA in Jan/Feb 2017. Certainly not doing that on behalf of the now-defunct Clinton campaign. The reach-out to CIA notes says has a client with information, not asking for anything. /67

Berkowitz says Sept 21 there was a 13 min call btwn Baker & Sussmann. Baker testified he asked who the reporter was & Sussmann said had to check. That takes 10 sec to say. Berkowitz suggests maybe Sussmann discussed with Baker how he had to check w/ client before divulging. /68

Berkowitz notes follow-up discussion. Why did Baker and Sussmann talk about client in subsequent testimony? These are not necessarily precise terms, confusion, ongoing dialogue. They want to give you a snapshot in time. I want to give you context. I want to give you evidence. /69

Berkowitz turns to materiality. Did it matter? No. Put yourself back to 2016. Russia had hacked Democrats and released emails. There was an ongoing FBI investigation irrespective of this into allegations of Trump connections to Russia. /70

Berkowitz: Investigation into those allegations was viewed as a serious national security matter. Argues Alfa allegations coming from a serious DNS expert (Joffe), brought in by a serious national security lawyer, would have been taken seriously regardless./71

Berkowitz says Baker testimony he might not have taken the meeting if Sussmann had told him he was bringing info on behalf of Clinton campaign is red herring because the text is not the charged statement, it’s what was said at the meeting that is at issue./72

Berkowitz says Baker would have given the information to Crossfire Hurricane agents regardless. “Look at what they did back then, not what they are saying now. … They would have taken the same investigative steps no matter what.” /73

Cites Hellman testimony saying from technical point of view, they would have taken same steps analyzing the data regardless. Sands said wouldn’t have done anything different. Berkowitz says makes sense: they were given actual data w/ nat-sec implications./74

Berkowitz said Sussmann had DNC tattooed on his forehead. Cites FBI notes of people identifying him with that. The claim not on behalf client doesn’t filter down to agents, in notes. But files littered with references to DNC. /75

Berkowitz: They all thought it came from DNC anyway. Cites all the FBI meetings in Aug/Sept when Sussmann was representing DNC on other things. They all knew he was a lawyer for Democrats. Why would they send Sussmann in if there was conspiracy to hide source? /76

The special counsel has come up with a convoluted theory. Notes Ryan Gaynor had told prosecutors in earlier interviews he thought it came from DNC lawyer and they kept pushing him if he remembered if that was what S was for the mtg. On stand he said otherwise. /77

Notes that after Gaynor told them in interview he didn’t want investigators to know the info came from Dem lawyer because didn’t want them to view the data as biased. Then special counsel told him he was not a subject of criminal investigation. Then he changes to close hold./78

[*Correction: I should have written that he was, not that he was not, now a subject of a criminal investigation]

Berkowitz says it’s not true there was a close hold. They didn’t interview Mr. Baker. They didn’t interview Sussmann. They could have and didn’t. If they had we wouldn’t be here. That’s on them, not on Sussmann./79

Berkowitz: The FBI never interviewed the cyber experts. They didn’t interview Dagon, the author of white paper to gauge his motivations. Didn’t interview Sussmann. “Shocking.” The FBI didn’t press. They didn’t want to know. Materiality. /80

Berkowitz. Something can be relevant without rising to “material.” Look at what they did — not what they say now. Cites Priestap says FBI gets information from people with motivations all the time. Motivations can be important but not only factor./81

Berkowitz: Vague meeting minutes, phone logs. When you see the things Mr. DeFilippis puts up, ask yourself where’s Mr. Sussmann. He’ll be on some but not most. Ask yourself who on witness stand is saying what [prosecutors] said./82

Berkowitz talks about circumstantial evidence instruction. If you go to bed and no snow, wake up and snow, then you can conclude it snowed. But here, prosecutors bought a snow making machine and blew it all over the lawn, he says. /83

Berkowitz: No proof Sussmann told reporters FBI was investigating. The FBI itself went to Lichtblau. Foer’s Slate article didn’t have any reference to FBI investigation. Only the NYT article had it, and it said the FBI dismissed it. That’s the leak? That’s the conspiracy? /84

Berkowitz: And the FBI investigation was “shoddy.” Got the source wrong in opening document. Hellman decided it was by someone with mental disability within a few hours. Never talked to Sussmann or researchers. Went to Alfa Bank’s own consultant. That was the investigation./85

Berkowitz: When there were opinions that conflicted with their own — Dagon — they ignored them. Says it sounds like the prosecution. Tunnel vision. Anything that doesn’t fit their theory they ignore. Thank god you are here, he tells the jury. /86

Berkowitz points out that the special counsel’s main witnesses faced investigation themselves. Baker, Heide, and Gaynor. Why did prosecutors meet with them over and over and over? On Baker: “It’s no wonder he delivered on the stand.” /87

Berkowitz: Practically every govt witness on the stand was inconsistent w/ what they said before & prosecutors had pushed them in trial prep. Look at what Sussmann’s character witnesses said about him. Think about who he is & who they brought to the stand vs him. /88

Berkowitz says DeFilippis gets to go last. Q’s for him:
How can Mr. Baker be so confident Michael Sussman when he took notes as opposed to Sept. 18 when he got the text? 100% confident? /89

Q: How can he have gone to the FBI on behalf of the Clinton campaign when its leaders said they didn’t ask him to do that and it was against the campaign’s interests? /90

More q’s summing up what he’s said. What’d they talk about on Sept. 21? Why’d he text the WSJ letter to the editor to Baker? Why’d he go to CIA when election was over if his motive was political rather than sincere concern? /more /91

More q’s Why didn’t FBI interview him and cyber experts if motive was material? Why did prosecutors have to interview their key witnesses so many times?

Tells jury there’s reasonable doubt, return a not guilty verdict.

and we’re in another break. /92

CORRECTION to Tweet 78 above: Then special counsel told Gaynor he WAS now a subject of investigation, not that he wasn’t. /93

DeFilippis is starting. He says this is not a close case, not even close to a close case. What you just saw was a magic trick. Defense is trying to make all the evidence you saw go away and have come up with retroactive explanation for the evidence./94

DeFilippis: When you look at actual evidence, your common sense will tell you defendant made a false statement and knew it was false. Defense is trying to lawyer that away. Don’t let them. Government has met its burden. /95

DeFilippis: You do have proof beyond reasonable doubt Sussmann said this in the Sept. 19 meeting. Baker was testifying against his friend and he said 100% confident. He choked up and hesitated. Why? He didn’t want to be here but did it because he had to and bc it’s the truth. /96

DeFilippis: Would Baker, former high ranking FBI official, subject himself to perjury by misstating what happened, against a friend? No. If you credit his statement that Sussmann 100% said in mtg what he said in text, that’s proof beyond reasonable doubt. Plus notes. /97

DeFilippis: CIA meeting memo also said no particular client. Sussmann made the same statement in two separate meetings with the government. That’s what happened. Don’t get distracted from evidence, crystal clear. /98

DeFilippis acknowledges in passing Sussmann said he had a client in setting up the CIA meeting but says in the meeting itself he said otherwise. Lawyers go into meetings with talking points. Plan the same for both. /99

DeFilippis turns to the transcript of the House testimony where under oath before Congress he said “on behalf of a client.” Said one thing to them, another to two meetings with government, one at height of campaign, that’s not a mistake, that’s intentional. /100

DeFilippis turns to argument that Clinton campaign didn’t authorize it or want it. If we take Mook and Elias at their word, they said best way to figure out who someone is representing, look at who they billed. /101

Sussmann billed the Clinton campaign. “Damning evidence.” Thumb drives. On Sept. 22nd, three days after he gives thumb drives to FBI, Sussmann expenses thumb drives to Clinton campaign. Why do that unless he thought took info to FBI for campaign? /102

(Comment: Seems to me a hole is that prosecution never established that those particular thumb drives went to FBI, versus to reporters etc. But Berkowitz didn’t make an issue of that to jury.) /103

DeFilippis: Sussmann obviously thought the meeting was for the campaign because he billed time the next day for hours on Sept. 19 to the campaign, and three days later he expensed to the campaign the thumb drives he gave to the FBI. /104

DeFilippis: Defense suggested the 13 minute call could have included discussion of a client. They were friends; no evidence they talked about that. /105

DeFilippis, Sept. 21 text from Sussmann, after that call, said “travel and persons availability were not ideal” meaning needed to check with Joffe. Doesn’t say “travel and client’s availability.” This was a continued effort to mislead Baker that he had a client. Plus CIA mtg./106

DeFilippis: Why did Sussmann make that false statement? You’ve heard ‘this lie, even if it happened, no harm no foul. Everyone knew Sussmann was DNC lawyer working for Clinton campaign.’ But they knew him as a DNC cyber lawyer, not as an opposition research guy. /107

DeFilippis puts up the defense chart showing the tons of meetings Sussmann had with FBI at which he was representing DNC. This was the motive for the lie. He had to lull Baker away from the notion these allegations might have political motivations. /108

DeFilippis says Sussmann wanted to make Baker think that neutral cybersecurity researchers had stumbled on this data. It’s not that people knew Sussmann was was a political hack and it didn’t matter; they thought of him as a cyber guy. /109

DeFilippis states that Sussmann brought information put together by Fusion GPS and someone working with the Clinton campaign. (Note: Rodney Joffe’s lawyers deny he was working with the Clinton campaign; he met once with Marc Elias.) /110

DeFilippis: Berkowitz told you this wouldn’t have affected the investigation; this was technical data and they would have done the same things. But that’s not what the evidence shows. /111

DeFilippis. From the very beginning, before the charged false statement was even made, you know it was material, bc Baker said might not even taken the meeting if Sussmann had told him he was coming on behalf of a client. Shows you how important. /112

DeFilippis cites Baker’s testimony about how it would have raised more questions to lawyer. Might have had an agent at the meeting, more lawyers. Would have slowed things down, which affects the functioning of the agency./113

DeFilippis says if Joffe’s confidential human source handler had gotten involved that would also have raised more questions, e.g. why is this CHS providing information in this manner? /114

DeFilippis: All of these things could have and likely happened had Sussmann been honest, and this is all before the investigation even starts. But play it forward. The FBI may never have investigated. Or it might’ve opened preliminary invest. or assessment rather than full. /115

DeFilippis: Gaynor might not have recommended close hold to begin with but instead might have recommended they tell the agents in the field where the information was coming from. That would have played out differently. /116

DeFilippis: Had Sussmann told the truth, the FBI even if it had investigated it, it might have devoted fewer resources. If any of these things might have played out in diff way, the def’s false statement is material. /117

DeFilippis: Why did he tell that lie? The mtg with Baker wasn’t the only part of the plan. You heard from Grasso that a couple weeks later, Joffe provided additional info but asked him not to reveal identity. Circular reporting. You know what was going on./118

DeFilippis: Joffe was putting different info into another part of FBI that looks like corroboration while saying don’t say who I am. This is J trying to put politically charged allegations into another part of FBI in order to create appearance of 2 diff streams of info. /119

DeFilippis: Can there be any doubt that the plan here was to give info to the FBI, give info to the media, and then have the media write about the FBI investigation? Insinuates Hosenball learned of investigation from Sussmann. The plan was to create Oct surprise. /120

DeFilippis: If the public were to know this was all circular reporting, it would have gravely undermined the entire effort. /121

DeFilippis: You’ve seen the FBI didn’t do everything right here. They made mistakes. They even kept information from themselves. But that’s not relevant to whether Sussmann made a false statement. /122

Judge Cooper interrupts to tell DeFilippis “let’s wrap it up here.” /123

DeFilippis: Let me end with this. Privilege of a lawyer who thought he could lie. A tech exec who used privilege of access to sensitive info to do oppo research. You the jury have privilege to decide the truth. /124

DeFilippis: You heard about the statue of liberty, like her torch let your guiding light be the truth. You can’t be influenced by anyone’s political views including your own. It’s been honor and privilege to present the evidence to you. /125

DeFilippis: follow the instructions, use your common sense. Confident you will reach one and only verdict consistent with the law, the evidence, and the truth, which is the defendant is guilty as charged. Thank you.

and he’s done

Judge tells jury verdict must be unanimous. Exhibits put into evidence will go into the jury room with you on a laptop. After eating lunch, you should select a foreperson. Punishment in event of conviction is not your concern./127

Judge tells them not to read media coverage about the case “over the weekend.” Obviously that instruction’s premise is they won’t reach a verdict before he leaves town in the next 95 minutes. /128

Judge: Remember that you are not partisans or advocates in this matter; you are judgers of the facts.

Now apologetically dismissing the alternate jurors./129

Judge says he unfortunately has to be out of the building this afternoon & so will not be in a position to accept any verdict this afternoon. But wants them to start deliberating now before three days off. So he’s precluding any quick verdict: we’ll see what happens Tuesday. /130

Jury leaves. Judge congratulates both sides on a case well tried. He says if the jury reaches a verdict, he wants to be the one to take it, so it'll be held and they'll take it on Tuesday. Tells everyone to have a good weekend. /131

Originally tweeted by Charlie Savage (@charlie_savage) on May 27, 2022.

Live-tweeting the Sussmann-Durham trial May 26

Good morning from the E. Barrett Prettyman courthouse in Washington DC, where the Sussmann-Durham trial is set to resume. Yesterday the prosecution wrapped and defense witnesses began. As of last evening, defense had not decided whether Sussmann himself will take the stand./1

The defense will NOT be calling Sussmann to testify./2

Judge makes sure Sussmann knows he has a right to testify in his defense but doesn’t have to do so. Sussmann, stands up to affirm to the judge that after speaking with his lawyers, he has chosen not to testify./3

Some pre-jury cleanup. Judge strikes a few bits from record where witnesses suggested you’d have to ask Sussmann why he did something. Discussion of whether they can squeeze in closing args before 2:30 p.m. Friday when judge plans to leave town for for Mem Day wkend vacation./4

No more witnesses — after reading some lines into the record from Baker’s 302 about why he scheduled the quick meeting with Sussmann, the defense rests. Prosecution also rests. Judge telling jury schedule is accelerated but closing args will be first thing tomorrow. /5

Talking about jury instructions. Govt & defense agree the charged act has to be what he said on Sept. 19 – the face-to-face meeting with Baker – rather than ‘on or about’ which could encompass the Sept. 18 text. /6

So that is all very abrupt and anticlimactic for today. I am headed out to work on other things. Here’s a very different kind of story I was working on earlier this week when @adamgoldmanNYT was your live blogger; it just went up online. /7