There was a flurry of filings in the Michael Sussmann case late yesterday. Here’s the latest.
On September 19, 2016, DNC/Clinton Campaign lawyer Michael Sussmann met with FBI General Counsel James Baker, where Baker was provided with data and “white paper” purporting to show covert communications (since proven to be bogus) between Russian Alfa Bank and the Trump Organization.
Special Counsel John Durham has just provided evidence that the night before – on September 18, 2016 – Sussmann sent Baker this text:
As it turns out, Sussmann was billing the Clinton Campaign for his work on the Alfa Bank hoax. This text from Sussmann to Baker is damning for Sussmann’s case, proving Sussmann’s efforts at deceiving a top official at the FBI about his clients, and demonstrating how Sussmann tried to convince Baker he was there to supposedly do the right thing.
Notes (produced by Durham) taken by Assistant FBI Director Bill Priestap and former FBI Deputy General Counsel Trisha Anderson – taken in their conversation with Baker after his Sussmann meeting – help corroborate Baker’s recollection of Sussmann’s lies:
In this filing, Sussmann seeks to preclude the use of these notes, arguing they hearsay not subject to an exception. (It also confirms that Priestap has testified before a grand jury – something we posited back in January.) Durham disagrees and argues they are admissible, and Durham likely wins this dispute.
Sussmann also asks the Court to order the Special Counsel to give Rodney Joffe immunity for his testimony – or have the case dismissed.
Of course, Joffe (Tech Executive-1 in the Sussmann indictment) is the Sussmann client who helped lead the effort to manufacture the Alfa Bank/Trump hoax. Sussmann maintains that Joffe would “offer critical exculpatory testimony on behalf of Mr. Sussmann” – but cannot because Durham is “manufacturing incredible claims of continuing criminal liability for Mr. Joffe that are forcing Mr. Joffe to assert his Fifth Amendment right.”
That’s a long way of saying that Joffe faces real (and perhaps imminent) criminal exposure. Let’s talk about that for a moment. The bad news for Joffe is good reading for us.
The April 1, 2022 letter from Joffe’s attorney to Sussmann’s attorney. In this letter (available here – with my highlights), Joffe’s counsel confirmed that Joffe “remains a subject” of the Special Counsel’s investigation. According to Andrew DeFilippis (from the Office of the Special Counsel), Joffe’s “status in the investigation was sufficient to establish a good faith basis to invoke the privilege against self-incrimination.”
To this statement, Joffe’s attorney responded that the statute of limitations had run since the events described in the Sussmann indictment. The Special Counsel disagreed, stating that “certain fraud statutes have longer than a five-year limitations period,” and the Russian Yota phone-related allegations (given to the CIA in February 2017) “percolated through various branches of the government and around the private sector after that date, in various forms.”
Sussmann’s attorney argues that Joffe would provide favorable testimony, including:
Sussmann and Joffe agreed that the information should be conveyed to the FBI and the CIA to help the government.
The information was conveyed to the FBI to provide a heads-up that newspaper outlets were going to publish a story about links between Alfa Bank and the Trump Organization.
The researchers and Mr. Joffe himself held a good faith belief in the analysis that was shared with the FBI, and Mr. Sussmann accordingly and reasonably believed the data and analysis were accurate.
Again, Sussmann likely loses on this front.
And While this gives us information on the Sussmann/Joffe relationship, it also gives an insight into Sussmann’s anticipated defense at trial. Unfortunately for Sussmann, there are powerful rebuttals to these points, most notably that the Sussmann/Joffe team was pushing the Alfa/Trump story to the press in the first place; the researchers’ doubts about the Alfa/Trump “evidence”; and how Joffe was in communications with Fusion GPS.
This Sussmann filing also mentions Durham’s “discriminatory approach to immunity in this case.” The motion continues, stating that one witness has immunity – and that the Special Counsel is considering granting immunity for a second witness.
This leads me to ask: who has immunity? It’s tough to tell from this filing, but I’m guessing it was someone associated with Joffe or the Alfa Bank research project – perhaps “Researcher-2”, who was identified as David Dagon.
There is a smaller (but not immaterial) chance it was DNC/Clinton lawyer Marc Elias himself. After all, Elias has testified before a grand jury and Durham has this to stay about the potential for Elias’s testimony at trial (identified as Campaign Lawyer-1):
And who is the person the Sussmann defense “understands” might be given immunity? I’m guessing it’s Christopher Steele.
Let me explain. In yet another filing, Sussmann implores the Court to prevent three categories of evidence/argument from being admitted at trial: (1) The gathering of the Alfa/Trump data; (2) The accuracy of the Alfa/Trump data; and (3) Christopher Steele (Fusion GPS) and the Steele Dossiers.
According to Sussmann’s attorneys, the Special Counsel “produced witness statements for Mr. Steele pursuant to 18 U.S.C. § 3500, presumably because the Special Counsel seeks to call Mr. Steele as a witness at trial.”
I’m thinking it is unlikely Steele gets called as a witness. I think it’s more likely that Steele’s witness statements were produced by Durham as a part of general discovery, and that Sussmann’s attorneys are outright speculating at the intent of the Special Counsel with respect to Steele. Thus the imprecise language (“presumably” and “understands”).
Finally, the allegations of conspiracy.
Durham states the “evidence of a joint venture or conspiracy” will establish that Sussmann and Joffe “worked in concert with each other and with agents of the Clinton Campaign to research and disseminate the Russian Bank-1 allegations.”
That statement from Durham leaves us with an important question: which “agents of the Clinton Campaign” were involved in this conspiracy?