Live-tweeting the Sussmann-Durham trial, May 25

Good morning from the E Barrett Prettyman Courthouse in DC, where I’m taking back the torch from @adamgoldmanNYT in watching the Sussmann-Durham trial today. It’s possible the prosecution will wrap up its case and defense will open today, but we’ll see how it unfolds. /1

There was going to be args this a.m. on limits on questioning Eric Lichtblau, the ex-NYT reporter who was working on a potential Alfa Bank article. But I’m told Sussmann’s attorneys have decided to withdraw the subpoena, so Lichtblau will apparently not be a witness after all. /2

Judge opens by chastising the prosecution for a question to Novick suggesting a link between Sussmann and the data scientists’ research yesterday, saying it went against his evidentiary ruling. Tells them to keep it clean from here on out. /3

The objectionable q from prosecutor Algor was: “And w/out getting into any specific conversations, based on the totality of your work, who was the intended audience for the project?” and the answer was: “It was to go to an attorney with ties…” after which Berkowitz objected. /4

Berkowitz also objects to prosecution’s use yesterday of email from Joffe to researchers re “Is this plausible as an explanation?” which elicited an answer from Heide that the data or analysis might have been fabricated. /5

Berkowitz wants that Q&A struck from record and prosecution barred from using the email for the rest of the trial. DeFilippis doesn’t object to striking the answer from the record but wants to still be able to use the exhibit. Judge will mull. /6

Prosecution calls Kori Arsenault, a paralegal in Durham’s office, to be its summary witness. She used to work for US atty office in Connecticut (where Durham was US attorney in Trump years, AUSA before that) before coming to the special counsel office in August 2019. /7

Prosecution uses Arsenault to move into evidence a stack of Perkins Coie billing records – about 20 files consisting of hundreds of pages./8

Arsenault is prompted to describe several entries in a summary chart of the billing records showing Sussmann logged work on Alfa Bank stuff – white paper, talks with Elias, talks with expert and reporter – to the Clinton campaign. /9

The entry she reads for Sept. 19, 2016 – the day of the meeting with Baker – includes Sussmann logging 3.3 hours to the Clinton campaign for “work and communications regarding confidential project.”/10

Now introducing cell phone records involving Sussmann and Joffe. /11

Prosecution flags logs showing a call on Sept. 19 between Rodney Joffe and David Dagon (Georgia Tech data scientist and author of one of the white papers), and calls between Sussmann and @nakashimae of the WP and between Sussmann and @EricLichtblau, then of the NYT. /12

Prosecution flags logs of calls on Sept. 21, 2016, between Joffe and Sussmann, and between Jim Baker and Sussmann./13

Prosecution flags logs of a series of calls on Sept. 22, 2016, between Sussmann and Lichtblau, and another call between Sussmann and Baker. /14

Prosecution introduces a legal representation letter between Joffe in his personal capacity and Perkins Coie, signed by Sussmann./15

Prosecution is introducing various emails involving Sussmann and FusionGPS members to reporters at various outlets talking about the Alfa story./16

Prosecution introduces a record showing Sussmann expensed the purchase of flash drives, logging the cost to the Clinton campaign, a few days before the Baker meeting, for “confidential project.” /17

A receipt Sussmann submitted with the expense shows Sussmann bought the flash drives from a Staples on H St NW in DC on Sept. 13, 2016. Prosecution puts up a Google Map showing the Staples is a one-block walk from Perkins Coie’s DC office./18

On cross of Arsenault, Bosworth establishes that the Sept. 19 entry about 3 hours to Clinton campaign for confidential project doesn’t say “FBI” or “meeting,” whereas many of Sussmann’s other billing entries say meetings, incl “meeting with FBI.” /19

Bosworth uses Arsenault to introduce records of Sussmann expensing taxi from office to lunch and then “attend meeting at FBI” on September 19, 2016 — emphasizing that Sussmann did not bill that to the Clinton campaign or Joffe or any client. Billed to the law firm generally. /20

Similarly, when Sussmann expensed taxi from lunch to “attend meeting at FBI” on September 19 he billed it to the law firm generally, not to Clinton campaign or Joffe or any client. /21

Comment: In the opening the defense’s theory was that Sussmann *was* working for the campaign/Joffe when he sought to get reporters to write about Alfa Bank, but he was *not* working for any client when he brought the info to the FBI – did that on his own to give heads up. /22

On redirect, prosecution shows emails showing that on 9/20 Sussmann said he spend 4.5 hours on work on written materials/coms re confidential project the day before, but in a 11/6 email, after election, Sussmann said it’d been 3.3. hours on conf. proj – about an hour less. /23

That’s it for Arsenault. We’re in morning break. Prosecution says going to read some transcripts into the record when we get back./24

Correction to tweet 23 above: the election was two days after the Nov. 6 email, not two days before like I said. Apologies. h/t @emptywheel /25

We are back. Some stipulations. Everyone agrees that it’s true the FBI is a part of the federal executive branch. Also everyone agrees transcripts are accurate of Sussmann testimony to HPSCI and Baker testimony to HJC/Oversight and OIG./26

DeFilippis reading Qs&As from Sussmann testimony, climaxing with this portion I’ve highlighted. With that, the government rests. /27

It looks like the defense is going to open with the March 6, 2017, meeting at DOJ that Baker attended where they discussed Russia investigation stuff, and which included a reference to the Alfa Bank allegations. Notes show they knew Sussmann had a relevant client. /28

After reading stipulations from former DOJ official Scott Schools about his notes of the meeting, we get the first defense witness: Tashina Gauhar, former associate deputy attorney general. /29

Bosworth is asking Gauhar about this calendar notice for the meeting, which she organized, and asking her about who the various invitees are. I’ve highlighted Jim Baker./30

Bosworth is introducing the idea that Gauhar takes notes at meetings and tries to make them accurate. She took seven pages of notes of this meeting. Says she doesn’t remember the meeting but these are her notes. /31

Bosworth focuses her on a section of her meeting notes, page 6, in which they brought up the Alfa Bank matter. (I’ve added arrow to the “‘attorney’ brought to FBI on behalf of his client.”) She doesn’t remember who was speaking or anything about this./32

My comment: This March 2017 meeting was a briefing for the acting attorney general (then Boente after Sessions recused) about the status of the investigation into Russian election interference. The FBI had long since dismissed the Alfa Bank suspicions by then…(more) /33

(cont’d) …but from the notes at the end of the mtg they turned to puzzling over Trump’s recent out-of-the-blue claim that Obama had wiretapped Trump Tower and whether it might have some basis in some garbled thing. Someone seems to have raised Alfa as part of that. /34

That’s it for Gauhar. Bosworth calls Mary McCord, who was head of the DOJ’s National Security Division at the time of the March 2017 meeting. /35

Here’s McCord’s notes, which Bosworth is having her read, including “attorney brought to Jim Baker & d/n say who client was.” I’ve highlighted the same passages that defense highlighted for jury. /36

McCord didn’t write down anything about the status of the Russia investigation in that made up the bulk of Gauhar’s notes, but on cross says she had already been briefed on that topic multiple times. Recalls McCabe talking at the mtg; doesn’t recall if Baker also spoke./37

On redirect, Bosworth gets McCord to say no indication that anyone objected or disagreed with what was being said. (His point is apparently that Jim Baker didn’t speak up and say ‘hey that’s wrong about Sussmann having an unnamed client relevant to Alfa allegations.’)/38

That’s it for McCord and, apparently, for the March 2017 meeting. Now we get former FBI agent Tom Grasso, who focused on investigating cybercrimes in partnership with private sector and regularly interacted with Rodney Joffe./39

Thomas Grasso says Joffe was reliable. Going over documents showing he nominated Joffe for an FBI director’s award for the help he provided to the bureau on dismantling the Butterfly Botnet that involved 4M infected computers. Here’s a press release on that (not trial exhibit)/40

Berkowitz is talking about this Grasso email showing Joffe called him and provided some info about the Alfa Bank matter. Grasso recalls Joffe describing it as being a matter the FBI was investigating about about coms between Trump campaign and some entity in Russia./41

Grasso said he then spoke to another FBI agent, Allison Sands about it, and her response was something like not that again, the thrust being FBI was already aware of it and it washed out. He recalls no follow-up. /42

Grasso was NOT the FBI’s “handler” of Joffe in his capacity as a confidential human source. Grasso knew Joffe was a CHS. Berkowitz gets him to say he didn’t tell Joffe he couldn’t take info bc he had to go through his handler – a claim the prosecution has put forward. /43

On cross, DeFilippis asks Grasso whether he knows what circular reporting is & whether he has ever encountered someone planting info w/ two different parts of the FBI so it looks corroborating. Grasso says he has never encountered that, but DeFilippis’s insinuation is clear. /44

DeFilippis gets Grasso to say that while Joffe had shared info with him on various occasions, Grasso usually let his handling agent know. In this case, Joffe asked him not to let anyone know his identity as the source, so no one else at FBI knew anonymous source was Joffe. /45

DeFilippis asks a series of q’s that get the prosecution theory across – Did Joffe tell you he was working w/ representatives of a political campaign? Working w/ Fusion GPS? That the project arose in the context of opposition research that the Clinton campaign was working on? /46

DeFilippis asks if Grasso would have viewed it differently had Joffe said “I’m working with some investigators and some lawyers who are working for the Clinton campaign and that is part of what I’m doing with this information keep my name out of it.” /47

DeFilippis asks Grasso if Joffe told him he was expecting a job in a future admin. Grasso said he didn’t but he has read that in the media. Berkowitz objects & judge sustains. (Joffe said that in a later email but says it was a joke, he was never offered job/didn’t want one.)/48

On redirect Berkowitz gets Grasso to recall that Joffe said he wanted to remain anonymous in reporting the Alfa information was that he feared for his safety/life in providing information about Russia. /49

Berkowitz gets Grasso to say that Joffe was consistently reliable and credible in providing information to the FBI, didn’t send the FBI down rabbit holes, and provided info to the FBI for good citizen reasons. Grasso is done. Lunch break until 2 p.m. /50

We are back. Brandon Charnov, a project assistant (junior paralegal) at Lathem & Watkins (Sussmann’s defense team’s law firm) is on the stand. He’ll play the role that Arsenault did for prosecutors this morning – be used to get docs into the record. /51

Charnov will be going to law school this fall. Why in the world would you want to do that? asks Judge Cooper, to light laughter in the courtroom. /52

Defense uses Charnov to introduce a chart of numerous FBI communications and meetings showing the bureau knew Sussmann had Democratic clients. Goes through several examples of FBI emails from August and September 2016 mentioning him as a Clinton campaign/DNC/DCCC lawyer. /53

On cross, prosecutors point out that Sussmann’s February 2017 meeting with the CIA is not on Charnov’s chart of FBI communications showing FBI agents knew Sussmann represented Democrats; the chart only goes to October 2016. Charnov is done. Now for a character witness./54

Jimma Elliott-Stevens, a Switzerland-based lawyer for Thomson Reuters Corp, testifies. She is DC native. Was assistant in 90s before going to law school to Sussmann and brought her 3 year old son to work and he became effectively godfather; also advised her on her career./55

Elliott-Stevens says in the 30 years she’s known Sussmann “he’s pretty instrumental in my life. And he’s come to know my family, I’ve come to know his family. He’s always been someone whose integrity has been beyond reproach. I know him as an honest, hardworking man of faith.”/56

On cross, prosecutor Brittain Shaw establishes that Elliott-Stevens is just Sussmann’s friend and doesn’t know anything about the facts of this case. That’s it for her as a character witness. /57

Martha Stansell-Gamm, a retired DOJ cybercrime prosecutor, is now testifying as a character witness. She helped found the Justice Department’s computer crime section in 1991, before there was a World Wide Web, she notes. /58

Stansell-Gamm, who hired Sussmann into the section, talks about his father dying in a fire, his older sister getting a brain tumor, how he met his wife and that they have three children. “He has known life’s pain, he has known life’s beauty & I would say it has centered him.”/59

After telling stories about Sussmann’s contributions to computer crimes section’s work, Stansell-Gamm says has confidence in his honesty. On brief cross, Brittain Shaw thanks her for stories about section’s early days & establishes that S-G hasn’t heard any trial testimony. /60

Discussion now about a sealed defense motion, if Sussmann were to testify, to preclude govt from cross-examining him about materials submitted to the govt pre-indictment in effort to persuade the govt not to go forward with the case. It’s sealed bc attachments are sealed. /61

Jury has been brought back in. Defense is reading into evidence additional portions of Sussmann’s testimony to HPSCI that prosecutors skipped over regarding his stated motive. This is the additional bit:

Jury sent home. Berkowitz complains that DeFilippis violated judge’s order again in q’ing Grasso about things like whether he ever heard that Joffe was expecting a job. DeFilippis says it was cross. Judge says you gotta have good faith basis to ask; he never said in prep./64

Relatedly, on the earlier issue, the judge rules that he will exclude from evidence that “Is this plausible as an explanation?” email that prosecutors used Heide to introduce yesterday and Heide’s interpretation of it.

That’s it for today. Thanks for following along with me. /65

News article with @ktbenner

Originally tweeted by Charlie Savage (@charlie_savage) on May 25, 2022.