Charlie Savage

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.

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

https://www.nytimes.com/2022/05/26/us/emergency-orders-internet-president.html

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 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: pic.twitter.com/RU1PDrDBEc

— Charlie Savage (@charlie_savage) May 25, 2022

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.

Good morning from the E. Barrett Prettyman courthouse in Washington DC, where opening arguments are set to begin in the Sussmann-Durham case. Packed media room so will likely be plenty of people live tweeting.

One of the cybersecurity researchers who developed the Alfa Bank data and analysis and had been on the prosecutors witness list, Manos Antonakakis, has invoked Fifth Amendment so won’t testify, DeFilippis said. /2

DeFilippis wanted an FBI agent to talk about how the FBI wondered if DNS data was spoofed as part of its inquiry (reached no conclusion); judge rules it can’t get into that as part of his earlier ruling they can’t raise that spectre if no evidence Sussmann had reason to doubt. /3

After opening arguments, Marc Elias, Sussmann’s former partner at Perkins Coie and and the general counsel of the 2016 Hillary Clinton campaign, will testify today and there will likely be some discussion of Steele dossier materials. /4

Atmospheric note: Though it doesn’t look like he will talk, John Durham is at the prosecutorial table. Unfortunately can’t see him on the cc tv feed angle. (Being in media room means we can use laptops & be online, plus see faces of lawyers rather than backs of heads.) /5

Deborah Shaw, member of the Durham team, begins opening arguments. Tells the jury that Sussmann was a privileged lawyer with connections who lied about having no client in order to use the bureau as a political tool for his clients, Clinton campaign and a technology executive./6

Notable: while describing the night-before text in which Sussmann indisputably told Baker he was not coming on behalf of any client, Shaw says it was the alleged reiteration of that statement in person the next day that is the charged crime. /7

Shaw addresses “the elephant in the room” – tells jury their feelings about Russia, Trump, Clinton can’t play a role in the case. This is about “our FBI” which should not be used as a tool by anyone, Republicans or Democrats./8

Shaw says this was about a look a leak and a lie. Look – Joffe had researchers look for derogatory info about Trump and Russia in DNS data. Leak – Sussmann tried to get NYT to write about it. Lie – Sussmann brought it to FBI but lied about having no client. /9

Shaw tells jury the FBI knew Sussmann was representing Democrats they were the victim of a hack (contends if they knew he was allegedly repping campaign on Alfa Bank they might not have quickly met with him). She doesn’t tell them Russia the perpetrator of that hack. /10

Wrapping up she again calls Sussmann privileged because he could walk into FBI and get meeting with Baker. Whether Republican or Dem, whether love Trump or hate him, we should all agree that FBI should not be used for political ends, she says./11

Bosworth says Sussmann didn’t lie and wouldn’t. He worked alongside FBI, former prosecutor had a clearance. Joffe is no mere tech exec but global DNS expert, and FBI confidential informant. When Joffe brought him the info, he took it seriously./12

Bosworth says was a time when questions about Trump’s connections to Russia were swirling. The plan was to take this new weird thing public and they took it to NYT. That’s what campaign wanted, get article that hurts Trump and helps them. Campaign didn’t want FBI meeting./13

Bosworth says Sussmann wanted to give the FBI heads up so they wouldn’t be caught flat footed when article came out, and FBI shut down the article. So govt theory is nonsensical./14

Bosworth emphasizing the Russian hack of DNC Sussmann got hired for. Says Sussmann not involved in analysis of the Alfa Bank data, didn’t know about spam server, not in position to understand “gobbledygoop” of DNS data. /15

A key factual/interpretive thing comes into view: Shaw said Sussmann went to FBI bc frustrated NYT was delaying the story – to sex it up and create urgency. Bosworth says Sussmann believed story’s publication was imminent when went to FBI – to give heads up of what was coming./16

After talking about subsequent calls that week between Baker and Sussmann, Bosworth talks about Baker’s bad memory, has testified different things at different times. The March 2017 meeting notes discussing client. “That’s reasonable doubt if there ever was.” /17

Bosworth tries to poke other holes. Sussmann was the last lawyer Dems would have sent if trying to conceal since FBI knew he was a Dem/DNC/campaign lawyer. Campaign didn’t direct or want him there; Joffe gained nothing. Source didn’t matter anyway; FBI didn’t even ask./18

Bosworth wraps up. 20 minute break./19

First prosecution witness, FBI supervisory special agent David Martin, is sworn in. He is cyber crime specialist. Shaw is walking through his background and experience./20

Martin is explaining to the jury what DNS data is, laying out some basic background. I’m not going to live tweet much of this part./21

Shaw wraps up a dry Q&A with Martin on topics like DNS data and recursive servers and Tor exit nodes. Bosworth opens by getting him Martin to agree that this complicated stuff that has taken him a lot of education and training to become an expert in./22

Starting with the premise that DNS data doesn’t tell you for sure whether a computer actually communicated with another one, he gets Martin to agree that to actually find out if it happened, you’d need steps like search warrants, subpoenas — i.e. stuff FBI can do./23

Bosworth gets Martin to agree that Joffe is a respected DNS for-real expert and was an FBI confidential source, which he did. Shaw comes back to ask him if he knew Joffe was terminated as a source for cause, which he didn’t. That’s it for Martin./24

Now we will hear from FBI supervisory special agent Scott Hellman who oversees cybercrime investigations. DeFilippis is now leading the questioning, for now just laying groundwork and basics./25

Hellman took custody of the thumb drives of Alfa Bank-Trump-related DNS data Sussmann provided to Baker. Discussion of chain of custody. Baker gave to Peter Strzok, and then along to less prominent names. /26

I think Hellman said he didn’t learn where Baker had gotten the data from. He and his supervisor analyzed the data and compared their assessment to a narrative that came with it./27

Hellman explains he and his supervisor were skeptical. They looked at the data & the white paper that accompanied it & disagreed with the methodology/conclusions. Didn’t think it made sense that a secret channel would use a server with Trump’s name on it, connecting directly./28

Hellman says they thought it was “conveniently coincidental” that the supposed secret coms had started three weeks before the inquiry described in the white paper. And they thought Russia had more sophisticated means to communicate secretly if it wanted. /29

Hellman says in terms of technical analysis, he would do the same steps regardless of knowing where the data came from. But…/30

…In terms of what level of investigation to open, he would want to know who provided the data and with what motivation to figure out how much he trusts the “facts” & whether to gather more info. (He didn’t open investigation bc no hacking; Chicago FBI did – a full, he said)./31

DeFilippis wraps up. Break for lunch until 2 p.m./32

We’ve been back a bit. Before jury came in, there was discussion of Joffe being terminated as a confidential source in 2021. The reason was he should have given Alfa Bank info to his handler, not the FBI general counsel. Judge told prosecution to stay away from termination. /33

Sean Berkowitz, another lawyer for Sussmann, is cross-examining Hellman. Hellman thought it was weird Baker didn’t tell him where the data came from. (Someone above him in the chain didn’t either.) Berkowitz shows internal FBI messages showing others knew it was from Sussmann./34

When Hellman started reading the material he texted a colleague & said the more he reads it, it feels a little 5150ish. Hellman testifies that means he wondered if the person who wrote it was suffering from a mental disability./35

Berkowitz brings up Sept 21, 2016, text message to Hellman from his supervisor saying they had been asked to write up a summary of their analysis of the DNC report, suggesting contemporaneous knowledge it had a Dem source. Hellman disclaims memory of seeing that in realtime./36

Berkowitz gets Hellman to say that DeFilippis recently suggested to him that “DNC report” was maybe just a typo for “DNS report.” Hellman doesn’t think it’s likely he just missed at the time that there was knowledge it was DNC. /37

Berkowitz established that Hellman’s not a DNS expert and his look at the data/analysis was about a day. Got Hellman to say his technical steps would have been the same if knew where data came from, but Hellman says he would have noted that in his report. DeF back now. /38

DeF asked Hellman about rules for opening investigations in the DIOG. Hellman doesn’t remember the acronym. (It’s Domestic Investigations and Operations Guide.) Berkowitz is annoyed at asking Hellman about this topic since H’s team didn’t open one. (Counterintelligence did.) /39

DeF uses Hellman to establish that confidential human sources are supposed to give info to the FBI via their handlers. Berkowitz comes back with email to establish that Joffe did apparently give info on this topic in Sept 2016 via a SA Tom Brasso who was apparently handler./40

That’s it for Hellman. In a break now, back at 4. Not clear who next witness will be but hot mic picks up judge suggesting this will be over today 4:30 or 4:45./41

We’re back. Next witness is Steve De Jong, a Neustar employee whose group does DNS internet services and hosting for companies. DeF questioning about what Neustar does. /42

DeJong says Joffe & GA Tech researcher Antonakakis asked for searing Neustar’s DNS data for long list of Trump & Alfa domains. He pulled logs back to June ’16. (Recall Hellman finding it “conveniently coincidental” that traces seemed to begin just 6 weeks before the study.)/43

Bosworth briefly questions De Jong. Establishes that Joffe is respected DNS expert and worked with government/FBI, won FBI award. Sussmann had nothing to do with pulling and analyzing the DNS data. And we’re done for the day./44

Cleanup: Tomorrow will pick up w/ Deborah Fine, Laura Seago, Marc Elias, Tom McMahon, and then Jim Baker if they get to him which seems ambitious. Prosecution no longer intends to call Robby Mook but defense will; he has asked if can go early bc has trip planned./45

Conventional news article:

Originally tweeted by Charlie Savage (@charlie_savage) on May 17, 2022.

Another development for in-the-weeds enthusiasts of the Durham-Sussmann case: the defense has a new filing with a bunch of handwritten notes of a March 6, 2017, FBI meeting attended by Baker at which there was knowledge that Sussmann had a client. /1

https://pacer-documents.s3.amazonaws.com/36/235637/04519212888.pdf

The defense appears to be planning to use this to suggest that Sussmann at the meeting itself or early subsequent phone calls made clear that he had a client, making things murkier. And to point out that Durham apparently didn't show these notes to Baker to refresh his memory. /2

The previous notes ("d/n say who client was") were from Mary McCord, the head of DOJ national security division. These are from Tashina Gauhar, a top intelligence oversight DOJ official: /3

The were also trying to figure out Trump's outlandish tweet accusing Obama the "bad (or sick) guy" of having wiretapped Trump Tower during the campaign, whether there was anything that could be a garbled version of./4

The notes attached to the filing also show a snapshot of Trump-Russia investigation generally at that point in time, including discussion of Manafort, Flynn, Page, Papadopoulos, etc./5

I want to study all this more, but for now:/end
Exhibit A is Tashina Gauhar: https://pacer-documents.s3.amazonaws.com/36/235637/04519212889.pdf
Ex B is Mary McCord https://pacer-documents.s3.amazonaws.com/36/235637/04519212890.pdf
Ex C is the calendar invite showing who was there
https://pacer-documents.s3.amazonaws.com/36/235637/04519212891.pdf
Ex D is Scott Schools

https://pacer-documents.s3.amazonaws.com/36/235637/04519212892.pdf

P.S. I think this is them puzzling over the Louise Mensch / Heat Street thing

Originally tweeted by Charlie Savage (@charlie_savage) on May 9, 2022.

*****

The judge in the Sussmann-Durham case has issued a ruling about a number of evidentiary issues. May write about this later, but for in-the-weeds enthusiasts here's my preliminary read of the takeaways: /a

https://pacer-documents.s3.amazonaws.com/36/235637/04519212781.pdf

1 – Emails among researchers with Joffe can’t come in
2 – Emails from FusionGPS to press can come in
3 – Joffe "VIPs" email can’t come in
4 – Joffe “was going to get a cybersecurity job” email can’t come in
/b (cont'd)

5 – Joffe "what would a security expert/non DNS expert think of this white paper" email can come in
6 – Anderson/Priestap notes can come in only if Baker’s memory is challenged and then Anderson/Priestap testify they don’t remember the conversations (I think)
/c (cont'd)

7 – What Sussmann said to CIA in February 2017 can come in
8 – How the Yotaphone data was gathered/analyzed and what the CIA did with it and thought about it can’t come in
/d (cont'd)

9 – No order to immunize Joffe so he'll agree to testify as defense witness, but prosecutors are forbidden from raising whether Joffe’s role in the collection
effort was somehow “objectionable” or illegal so judge says maybe he'll choose to testify w/out immunity
/e (cont'd)

Notably, judge declined to hold "a time-consuming & largely unnecessary mini-trial to determine the existence & scope of an uncharged conspiracy to develop and disseminate the Alfa Bank data" & portrayed that theory as foggy.
f/end

Originally tweeted by Charlie Savage (@charlie_savage) on May 7, 2022.

I attended a pre-trial hearing in the Durham-Sussmann case this afternoon at which a litany of evidentiary issues were discussed, many without resolution. It was far too weedy/incremental for a general-reader news article, but here’s my impression of takeaways for enthusiasts. /1

Team Durham (lead prosecutor Andrew DeFilippis) will call Perkins Coie’s managing partner to discuss a 2018 Perkins statement that Sussmann’s FBI meeting was on behalf of a client with no connection to the Clinton campaign. Sussmann apparently helped draft that statement. /2

One chunk of evidence will be Sussmann’s testimony before the House Intel Cmte. Judge Cooper said prosecutors can ask whether Sussmann mentioned the Clinton campaign & on cross defense can point out that no one asked him about it. Not clear (to me) who the witness will be. /3

DeFilippis says prosecutors no longer intend to make an issue of Sussmann deleting certain data from his law firm work phone before turning it in. (They had accused him of violating a firm preservation policy; defense then dug up the actual policy showing it was no violation.) /4

A defense lawyer said they don’t intend to introduce evidence alleging political bias on behalf of the Durham investigation. /5

Judge Cooper said he would exclude, as hearsay and duplicative evidence, a Clinton campaign tweet about the Alfa Bank suspicions. /6

A defense lawyer revealed – I think this is new – that “weeks” before Sussmann’s February 2017 CIA meeting on the Yotaphone suspicions, an FBI agent had recommended closing the bureau’s inquiry into the Alfa Bank suspicions. /7

The defense had asked for portions of the indictment to be struck from the record. Judge Cooper said it was not his practice to show the jury the indictment at all, so that took care of that. /8

Re Perkins Coie emails whose headers Durham obtained, but whose contents were withheld under attorney-client privilege, the judge 1st said that prosecutors could show them to the jury but not tell the jury that the reason for the redactions was a privilege claim. But … /9

…then a defense lawyer complained that showing the jury large amounts of black would be prejudicial and invite speculation, and the judge seemed to suggest that they could be reformulated to avoid that. It was not clear to me whether this was a ruling or just a musing. /10

Re defense request for immunity for Joffe, the judge was reluctant to go there and reluctant not to take at face value Durham’s claim that he remains at risk of prosecution even though the CIA meeting was >5 yrs ago. …more/11

Notably, DeFilippis mentioned a govt contracting fraud law w/ a longer statute of limitations. …. more 12

It remains unclear (to me) whether the judge will ask for an in camera review of the basis for prosecutors telling Joffe that he remains at risk (meaning he’d take the 5th & not testify about his understanding of whether Sussmann went to the FBI *on his behalf* as a client.) /13

On notes by two of Jim Baker’s FBI colleagues (Bill Priestap and Tricia Anderson) to whom he spoke after Sussmann, both reflecting no client, judge said won’t admit them as official evidence but will still likely permit them to be read to jury under a hearsay exception. /14

On the emails among the cybersecurity researchers as they developed the Alfa Bank DNS data suspicions, which Sussmann was not a party to, the judge signaled he is reluctant to let them in. …more/15

DeFilippis argued those should be admissible as statements by conspirators or participants in a joint enterprise. Judge said his reading of the cases is that’s never happened when there’s no charged conspiracy & the alleged joint enterprise was not a crime. But no ruling yet. /16

DeFilippis acknowledged that Chris Steele is not going to be a witness (since he’s not in the US). Similar arguments regarding to what extent Steele & dossier stuff can be brought in under the prosecution’s joint enterprise theory. Also no ruling yet. /17

There’s some evidence that still needs to undergo Classified Information Procedures Act (CIPA) substitution process. Defense doesn’t have the clearances yet to get into the SCIF and look at it. Judge warned that the clock is ticking. (Trial starts mid May.)/18

DeFilippis sought clarity that Judge Cooper will let discussion of CIA/Yotaphone meeting in, but set parameters on it. Judge affirmed.

So judge will issue a written ruling sorting through some of these; others may be decided at the trial depending on how things go.
/19&end

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

The Nation commissioned me to write a review-essay about the Afghanistan War and the book The Afghanistan Papers: A Secret History of the War by Clint Whitlock of The Washington Post. The magazine has now published it in its April 4/11 issue under the headline “Mission Creep: What are the lessons of the United States’ 20-year war in Afghanistan?”

Here is a public link to read it.

Reality check for some Trump critics: The Jan. 6 Committee filing’s vague hand gesture in the direction of possible crimes or fraud by Trump in a dispute over a subpoena is a far cry from a road map for criminal prosecution based on the same evidence.

In this 🧵, I will explain why the Jan 6 Cmte filing does not, in itself, mean there has been a breakthrough for criminally prosecuting Trump. For those who wish to understand the world as it is: /1

The Jan 6 Cmte filing says Trump may have violated two statutes, both centered on actions for which lots of evidence is pretty well understood and is not in dispute: In public and private, Trump pressured Pence not to certify the election results./2

For that to be a crime, Trump had to know that there was no lawful basis for Pence to do what he was demanding. Lawyers in WH (and pretty much everywhere) agree there was no such lawful basis. Problem: John Eastman told Trump that Pence did have that authority./3

Does John Eastman telling Trump that he interpreted the law differently than, say, Pence’s counsel, raise a reasonable doubt about whether Trump knew he was asking Pence to do something that was illegal? Ponder that while considering this:/4

The Jan 6 Committee filing was not a criminal referral asking DOJ to prosecute Trump. Rather, it arose in a very different context: civil litigation over a subpoena./5

Specifically, the committee has subpoenaed Chapman University to get documents John Eastman wrote related to his convos with Trump about a stolen election and Pence’s power. Eastman sued to block it from complying, invoking attorney-client and attorney-work-product privileges./6

The committee is trying to get a judge to agree that it can enforce its subpoena anyway under an exception to those privileges for material that relates to a crime or fraud. That’s the context in which the committee invoked the possibility of a Trump crime. Read on: /7

Is it legitimate for the committee to say there may have been a crime, given that Eastman’s advice muddies the water about whether Trump knew he was asking for something illegal? Well, the legal standards in this context are much easier to meet./8

To win what it is initially asking for – to have the judge privately examine the docs – the cmte need only convince the judge that it has a “good faith” reason to be believe that such a private viewing “may reveal” evidence that the crime-fraud exception applies./9

& to defeat Eastman’s attempt to block its subpoena, the cmte need only convince the judge that the “preponderance of the evidence” suggests the conversations involved a crime — or even just “common law fraud,” meaning deceit that could be the subject of a civil lawsuit./10

Those standards leave room the committee to achieve its goal – to get Eastman’s papers – even if the judge has a LOT of doubt about Trump’s mental state when he pressured Pence. Preponderance of the evidence = 51% chance it was a crime, 49% chance it was not. /11

Compare that to a criminal trial in which prosecutors must convince all 12 people on a federal jury — verdicts have to be unanimous — that there was no reasonable doubt Trump knew he was asking Pence to do something unlawful, notwithstanding Eastman’s advice to the contrary./12

This is all based on the evidence as understood today, and laid out in the committee’s filing. Perhaps that will change. Maybe they get Eastman’s papers and there is a smoking gun in them that he and Trump knew it was all bullshit! But this is the world as it exists today./13

Originally tweeted by Charlie Savage (@charlie_savage) on March 4, 2022.

I am saddened to hear that @walterdellinger has died. We nerded out over legal issues many times over the years. A running joke was that I was the only one who was more impressed about the fact that he had led the Office of Legal Counsel than served as acting solicitor general.

I looked up articles I wrote since joining the NYT in 2008 that cited Walter Dellinger. Here’s a record of the sorts of things we talked about: /1

In 2008, he argued a case before the Supreme Court about the scope and limits of Second Amendment gun rights. /2

In 2009, when congressional Dems & the ABA criticized Obama for continuing to use signing statements deeming parts of bills unconstitutional as he signed them into law – a practice they had called on Bush to stop – Dellinger defended the practice. /3

Also in 2009, when Justice Stevens retired from the Supreme Court, Walter had this to say about Obama’s search for a nominee to succeed him. /4

Soon after, for an article on the nomination search that focused on Elena Kagan and Judges Diane Wood and Merrick Garland (oops, that seat went to Sonia Sotomayor!), Walter shared this thought with NYT readers./5

In another article related to the nomination search that focused on comments Obama had made about liberal courts having overreached in the past, which alarmed progressives, Walter said this. /6
(aside: maybe we quoted him too often for this storyline)

In 2011, when Obama nominated Don Verrilli to be solicitor general, Walter said this./7

Later in 2011, when I uncovered that Obama rejected the view of DOD’s general counsel and OLC, and gone with other admin lawyers’ views re the legality of continuing to bomb Libya after the War Powers Resolution’s 60-day clock expired, Walter said this: /8

In 2012, when Obama nominated Sri Srinivasan, Walter’s partner at O’Melveny and Myers, to be an appeals court judge on the DC Circuit, Walter said this:/9

In 2013, when Obama decided to bomb Syria for using chemical weapons but also decided to ask Congress for authorization first, Dellinger said he approved of going to lawmakers rather than acting unilaterally./10

In 2014, when Obama decided to bomb ISIS as it was sweeping across Iraq – controversially claiming he already had authorization under the 2001 AUMF against 9/11’s perpetrators since ISIS had started off as a faction of Al Qaeda, Walter was supportive:/11

In 2018, when the Trump OLC released a memo asserting that Trump had the power to attack the Syrian government (for using chemical weapons) w/out going to Congress, I wrote about an earlier war powers memo Walter had written as head of the Clinton OLC./12

In 2019, during a government shutdown in a standoff between Trump & the Dem Congress over funding for a wall, I wrote about the possibility of emergency powers as a face-saving way out that would not require either side to back down. Walter said this:/13

Also in 2019, when a judge ruled that Trump had to tape testimony for a trial over a lawsuit brought by protesters who said that his private security guards had assaulted them on a public sidewalk in front of Trump Tower, Walter said this:/14

A few days later, Pelosi announced an impeachment inquiry over Trump’s efforts to coerce Ukraine’s president into announcing that the Bidens were under criminal investigation. I wrote an explainer about how the process works that included this from Walter:/15

In Sept 2020, when RBG died, giving Trump & the GOP Senate an opportunity to replace her with a conservative, I co-wrote a story about Obama’s unsuccessful efforts to nudge her into retiring earlier. It included this episode about Walter and Breyer. /16

This year, Walter was among a handful of outside lawyers Biden asked his White House counsel to consult about whether he could lawfully extend a Covid evictions moratorium — knowing it would later lose in court but relieving political pressure: /17

I last quoted him 2 months ago, when Biden’s bipartisan Supreme Court reform commission, of which he was a member, approved its report. I ended the piece with Walter looking down the road to a time long after all of us will have passed away./18

Walter and I also spoke many other times where I was just trying to understand something disputed or complex about the law. Walter was always generous with his time for that sort of thing.

RIP @walterdellinger

Originally tweeted by Charlie Savage (@charlie_savage) on February 16, 2022.

With The New York Times — and in one case, with my colleague Mark Mazzetti — I filed two new Freedom of Information Act cases this week. I thank the Times’ newsroom lawyer, David McCraw, and our annual First Amendment fellow, Jess Hui, for their representation in this litigation.

The case with Mark is asking the Defense Intelligence Agency for documents that would show whether it has been purchasing Domain Name System (DNS) logs or Internet traffic data from commercial brokers, and if so what it has been doing with them particularly in regards to searching for data associated with Americans.

Context: Last January I wrote about the DIA’s disclosure (in unclassified correspondence with the office of Senator Ron Wyden, Democrat of Oregon) that it has purchased smartphone app locational data from brokers and sometimes queried it, without a warrant, for information about an American’s past movements; that was interesting in part because in a landmark 2018 case called Carpenter, the Supreme Court held that the Constitution requires the government to obtain a warrant to compel phone companies to turn over location data about their customers, but the government has concluded that this ruling does not apply to locational data acquired through voluntary commercial transactions. Meanwhile, there is growing awareness of how DNS and/or netflow logs can be used to identify which websites or servers a particular user has accessed or which users are visiting a particular website or server, and debate about what the rules should be for government access to that kind of data. (This attention is mainly due to a legislative fight over whether to prevent the government from using Section 215 of the Patriot Act to gather Internet traffic logs, which Mr. Wyden has played a leading role in, but the power of DNS logs has also been in the news due to the Trump-era special counsel John Durham’s investigation into suspicions raised by a group of data scientists in 2016 about odd DNS data suggesting hidden communications between servers for the Trump Organization and a Kremlin-linked Russian bank.) In April, Wyden and other lawmakers introduced The First Amendment is Not For Sale Act to address commercial sales to the government of data pertaining to Americans’ communications. In May, Joseph Cox of Vice’s Motherboard reported on a letter from Wyden to the Pentagon revealing that the lawmaker had asked whether the Defense Intelligence Agency was buying commercially available DNS and netflow data, but that it had provided answers in a form he was not permitted to make public.

The other new FOIA case is seeking an updated (post 2015) set of the F.B.I.’s internal incident reports that it produces whenever an agent fires a weapon outside of a shooting range. The reports reconstruct a narrative account of what happened and assess whether the agent’s decision to pull the trigger complied with the F.B.I.’s policy, which allows deadly force only if agents fear that their lives or those of others are in danger. They can also reflect any disciplinary action or discussion of changes to training and procedures arising from the scrutiny.

Context: I’ve been periodically requesting and publishing these reports for years, and after having to fight a FOIA lawsuit for the first set, I was able to get updated tranches without litigation for some time. However the bureau has ignored my most recent request, so we are again suing to compel their disclosure in compliance with the information act. Notably, the first set of documents I obtained showed that the F.B.I. had deemed its agents faultless in at least 150 incidents in which they had shot someone dating back at last 20 years, including deeming a “good shoot” a case where it paid $1.3 million to an innocent man an agent shot in the jaw. After we began running stories on this pattern, the F.B.I.’s internal process seems to have gotten tougher, finding at least two shooting incidents to not have complied with its policy. But I’ve not obtained any such reports since 2016, so this lawsuit aims to make public what has happened since then.