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
/126
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.