Spygate Conspirators Start Selling Their Hoax To A Washington DC Jury, But The Facts Don’t Fit

The Hillary Clinton campaign did not want its attorney, Michael Sussmann, to share the Alfa Bank data with the FBI, jurors were told yesterday during the defense’s opening arguments in the special counsel’s criminal case against Sussmann. But the information known to date, as well as the modus operandi of the Spygate players throughout the years they peddled the Russia-collusion hoax, render this argument laughable.

On Tuesday, trial in United States v. Sussmann began in earnest following a day of jury selection. At issue is whether the former Clinton campaign attorney lied to former FBI General Counsel James Baker when Sussmann provided him data and whitepapers purporting to show the existence of a secret-communications network between the Russian-based Alfa Bank and Donald Trump. Special Counsel John Durham’s team claims Sussmann lied when he shared the Alfa Bank “intel,” saying he wasn’t acting on behalf of a client, while, in fact, Sussmann represented both tech executive Rodney Joffe and the Clinton campaign.

Prosecutor Brittain Shaw set the stage for the jury, telling the 12 jurors and four alternates during opening argument that “Sussmann’s actions were part of ‘a plan to create an October surprise on the eve of a presidential election’ and to get the FBI to investigate, arguing the plan ‘largely succeeded.’”

Sussmann and Joffe “leaked the Alfa-Bank allegations to the New York Times,” Shaw continued, but “when that wasn’t published immediately, Sussmann brought a sense of urgency to the FBI about the media being on the verge of running a story.” According to prosecutors, “the FBI getting involved would make the story ‘more attractive’ to the press” and “Sussmann’s goal was to ‘inject’ the FBI into a presidential election.”

Not so, Sussmann’s lawyer Michael Bosworth countered, telling the jury in the defense’s opening argument that his client “had a genuine interest in national security” and was concerned about the data at a time when questions about Trump’s connections to Russia were swirling. According to Sussmann’s team, the Clinton campaign planned “to take this new weird thing public,” and they handed it to The New York Times. That’s what the campaign wanted—press coverage that hurt Trump and helped Clinton.

“The meeting with the FBI is the exact opposite of what the Clinton campaign would’ve wanted,” Bosworth told the jury, suggesting “the FBI quashed the news story after learning about it from Sussmann.” “The FBI meeting is something they didn’t authorize, they didn’t direct him to do, and they didn’t want him to do,” Sussmann’s lawyers argued. But once the Times was ready to publish the material, Sussmann called Baker “to help the FBI” “and warn them that a story was coming,” the defense claimed.

The evidence on all fronts suggests otherwise. First, emails exchanged between reporters and Peter Fritsch, a co-founder of the investigative research firm, Fusion GPS, that Perkins and Coie had hired on behalf of the Clinton campaign, indicate the Times was nowhere near “ready to publish the material” when Sussmann handed it off to Baker on September 19, 2016.

For instance, in one thread between Fritsch and the Times’ Eric Lichtblau, bearing the subject line “alfa and trump” and dated October 5, 2016, the duo were discussing Alfa Bank data published on Reddit, apparently by April Lorenzen. At that point, Fritsch is still telling the Times he has “no idea” where the material came from, but that “it’s either someone real who has real info or one of the donald’s 400 pounders,” whatever that meant. Fritsch then adds that the “de vos stuff looks rank to me,” in reference to the supposed communications between the Michigan health system’s computer and Alfa Bank.

Another email thread from October 18, 2016 also indicates the Times was not ready to publish the story. In that thread, Fritsch is pushing Reuter’s Mark Hosenball to run the Alfa Bank story. When Hosenball told him “the problem is that the nature of the data is way above my level of competence,” Fritsch responds, “it’s everyone’s problem” and then suggests he call David Dagon at Georgia Tech.

Then, on October 31, 2016, hours before Slate published the Alfa Bank story, in promoting the about-to-break news to Reuters, Fritsch wrote the “USG,” meaning the “United States government,” is “absolutely investigating.” This email shows Fusion GPS knew the value an FBI investigation added to a story it was pushing for the Clinton campaign.

A second problem with Sussmann’s storyline that the FBI meeting was “the exact opposite of what the Clinton campaign would’ve wanted” because it caused the government to quash the New York Times article flows from the fact Sussmann did not originally tell Baker the name of the outlet supposedly poised to publish the story.

In his congressional testimony, Baker explained that after he handed the Alfa Bank material off to the counterintelligence division, they wanted “more time to evaluate it before the media started publishing stuff.” According to Baker, agents asked him to “go back to Sussmann and find out who in the media is going to publish this because we might want to ask them to delay.”

In his testimony, Baker was fuzzy on the details and did not remember whether Sussmann had mentioned the media having the Alfa Bank material during their initial September 19, 2016, meeting or only later during a follow-up conversation. (If the latter, that will really throw a wrench in Sussmann’s theory of defense.)

What Baker stated unequivocally, however, was that Sussmann had not originally identified The New York Times as the outlet supposedly ready to run the story, and that it was only later when Baker followed up with Sussmann that they learned that fact. The FBI then “went to the New York Times” and “started a series of conversations with them to try to get them to slow down,” he said.

If Sussmann’s goal were truly to provide the FBI with a heads-up of the impending story, as his attorneys argued yesterday, he accomplished that objective on September 19, 2016. To achieve that goal, Sussmann would have no reason to answer Baker’s follow-up question concerning the name of the media outlet ready with the Alfa Bank story. In fact, as a lawyer, he would have a good reason to refuse: It was in the Clinton campaign’s interest for the story to run.

But if Sussmann instead sought to spur the media into action, sending the FBI into the arms of The New York Times proved a perfect plan, as it made the Alfa Bank story more marketable.

Here, we see a third problem with Sussmann’s line of defense: From the Steele dossier to the FISA surveillance of Carter Page, the Clinton campaign repeatedly fed the FBI and U.S. intelligence agencies supposed “intel” on Trump, which it also peddled to the press. Then it used leaks of the government’s investigation into Trump’s supposed connections with Russia to drive more media coverage of the Russia collusion story.

Yet Sussmann’s legal team told the jury the FBI meeting was something the Clinton campaign “didn’t authorize,” “didn’t direct him to do” and “didn’t want him to do.” That line of argument presents prosecutors with the perfect opening to inform the jury of the Clinton campaign’s modus operandi, and it will likely do so with the questioning of Sussmann’s former legal partner Marc Elias, who is scheduled to testify later today.


Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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Fusion GPS Loses Its Fight Over “Privileged” Documents

Fusion GPS Loses Its Fight Over “Privileged” Documents


Fusion GPS Loses Its Fight Over “Privileged” Documents

And – how Joffe’s “privilege” can be overcome

By Techno Fog via The Reactionary

We’ve documented the ongoing battle to obtain Fusion GPS e-mails and documents in the Michael Sussmann case. At issue in the Sussmann case are 38 e-mails and attachments between and among Fusion GPS, Rodney Joffe, and Perkins Coie.

These 38 e-mails and attachments are among approximately 1,500 documents that Fusion GPS withheld from production to the grand jury based on “privilege.”

What Fusion GPS has to produce.

Today, the court in the Sussmann case made an important ruling and rejected, in large measure, Fusion’s assertion of attorney-client or work-product privilege:

Fusion GPS will have to produce these documents to Special Counsel Durham by May 16, 2022. What do these e-mails and documents contain? The court’s order provides guidance, stating they relate to:

Internal Fusion GPS e-mails discussing the Alfa Bank data and e-mails circulating draft versions of the Alfa Bank white papers that were “ultimately provided to the press and the FBI.”

Here are some examples of what these e-mails might include. These are privilege logs in Fusion GPS’s other litigation relating to the Alfa Bank hoax.

The other emails.

This leaves 16 e-mails and documents remaining. For now, Durham will not get them. These are divided into two categories:

  1. Eight of the e-mails involve internal communications among Fusion GPS employees. The court was “unable to tell from the emails or the surrounding circumstances whether they were prepared for a purpose other than assisting Perkins Coie in providing legal advice to the Clinton Campaign in anticipation of litigaiton.” Coming from the court, that’s a long way of saying that the sworn declarations of Fusion/Clinton lawyers (Levy and Elias) were sufficient to meet the “privilege” burden. This doesn’t mean that Durham can’t overcome this hurdle – just that it hasn’t been overcome yet.
  2. The other eight e-mails and attachments include those among Fusion GPS’s Laura Seago, Sussmann, and Rodney Joffe. The court observed that the e-mails are consistent with Joffe’s assertion of privilege.

With respect to the Joffe e-mails, we note that he is still a subject – perhaps a target – of the Special Counsel’s investigation. Here’s a portion of the transcript from an evidentiary hearing in the Sussmann case that discusses their ongoing investigation into Joffe:

Because the investigation into Joffe is ongoing, it makes sense that the Special Counsel is hesitant to disclose to the court information that could overcome this purported “privilege.” Keep in mind the crime-fraud exception, where communications are not considered privileged where they “are made in furtherance of a crime, fraud, or other misconduct” (citation omitted). In other words, the Special Counsel may still be able to get Joffe’s e-mails – assuming Joffe is charged under 18 USC 1031. He can also get them through the grand jury process, as we saw with Mueller’s investigation of Paul Manafort.1

I’ll also add that the fact that privilege applies to some of these documents strengthens the Special Counsel’s argument that Sussmann was representing a client when he met with then-FBI General Counsel James Baker in September 2016.

As to the e-mails and documents Durham will obtain, he cannot use them during trial. The court considered Durham’s efforts to be too close to the May 16, 2022 trial date to allow these e-mails and documents into trial. I’m not sure that matters. Sussmann is facing a false statement charge, and the court observed these e-mails are not “particularly revelatory.”

Finally, while “Court takes no position on the other approximately 1500 documents that Fusion GPS withheld as privileged,” we can assume based on this ruling that the majority of those documents would not be privileged. Durham will likely get most of them.

For those interested: After I wrote this post, New York Times reporter Eric Lichtblau filed this request for a protective order. Lichtblau will be called as a witness by Sussmann’s attorneys to discuss “communications between Mr. Sussmann and Mr. Lichtblau” – meetings at which Rodney Joffe was present (that confidentiality privilege was waived).

The Special Counsel has refused to limit Lichtblau’s testimony to that narrow topic:

Durham is taking this position because Lichtblau was in contact with Peter Fritsch (and Glenn Simpson) of Fusion GPS leading up to the 2016 election. Fritsch was feeding Lichtblau Fusion “opposition research” (what we might accurately call bullshit), and Lichtblau was at least somewhat receptive, though not salivating like Franklin Foer. These are relevant to the broader “media relations” strategy that Sussmann and Fusion GPS pursued on behalf of the Hillary Clinton campaign.

Here are the e-mails:

**********

(TLB) published this article by Techno Fog via The Reactionary with our appreciation for the coverage

Header featured image (edited) credit: Durham/FOX NEWS screen shot

Emphasis added by (TLB) editors

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Why The Hillary Clinton Campaign Can’t Hide 38 Documents From The Special Counsel

Why The Hillary Clinton Campaign Can’t Hide 38 Documents From The Special Counsel

Documents made public last week by the Federal Election Commission reveal that Hillary Clinton campaign payments to Fusion GPS to dig up dirt on Donald Trump were not treated as legal expenses. These newly released documents eviscerate the Democratic National Committee and Clinton campaign’s attempts to hide behind attorney-client privilege in the special counsel’s criminal case against former Clinton campaign attorney Michael Sussmann.

Sussmann, who awaits trial in a D.C. federal court later this month on the charge that he made a false statement to former FBI General Counsel James Baker, is currently fighting to keep prosecutors from seeing 38 documents withheld from the grand jury based on claims of attorney-client privilege. In early April, Special Counsel John Durham’s team filed a motion to compel those secreting the documents to provide them to the court to allow the judge to assess, in camera, whether they were properly withheld. In response, Sussmann argued the special counsel had waited too long to force the issue and that his criminal case was the wrong forum to litigate the question.

The day after the former Clinton campaign attorney filed his response opposing in camera review of the material, his “fellow Spygate hoaxers sought to join in Sussmann’s efforts to keep the documents concealed” by seeking to intervene in the case. Last week, the trial court granted the flurry of motions to intervene, authorizing tech executive Rodney Joffe, Fusion GPS, Perkins Coie, the DNC, and the Clinton campaign to file briefs opposing disclosure of the documents.

On Wednesday the court will hear oral arguments on the special counsel’s motion and decide whether the 38 documents must be turned over, initially to the court and then eventually to prosecutors. While Durham’s team previously had a strong case that the documents were not protected by attorney-client privilege, a document dump last week by the FEC further strengthens the prosecutor’s position.

A little more than a month ago, news broke that the FEC had fined the DNC and the Clinton campaign more than $100,000 related to those organizations’ reporting of fees paid in 2016. Those fees were paid to Fusion GPS for opposition research but marked on financial disclosures as legal expenses remitted to its law firm, Perkins Coie. Until Thursday, however, the basis for the FEC’s conclusion that probable cause existed that the DNC and Clinton campaign had misreported the purpose of those disbursements remained buried in the bureaucracy.

The now-released file about the FEC’s investigation into the DNC and the Clinton campaign contains a bevy of material. It includes, most relevantly, memoranda prepared by the FEC’s Office of General Counsel and approved by the FEC.

The memoranda conclude that probable cause supports a finding that both the Clinton campaign and the DNC misrepresented the purpose of the payments to Fusion GPS. While the political organizations reported the payments to Fusion GPS as “legal services” or “legal and compliance consulting,” the FEC concluded probable cause existed that the expenses instead related to opposition research.

The memoranda—one issued related to the DNC and the second addressing the complaint against the Clinton campaign—begin with the FEC general counsel’s office reciting the now well-known facts, beginning with the players. Perkins Coie served as general counsel for the DNC during the 2016 election cycle, the memoranda say. Then, in April 2016, Perkins Coie hired Fusion GPS to perform “a variety of research and consulting services.” The memoranda then recount the evidence the FEC general counsel reviewed, which “included invoices, account statements, copies of checks, and wire transfers.”

That evidence, the FEC concluded, showed “the DNC paid Fusion $777,907.97 for opposition research” while reporting the work as “legal and compliance consulting.” Similarly, the FEC concluded the Clinton campaign inaccurately reported $175,000 of payments to Fusion GPS for opposition research as “legal services.”

Rather than fight the FEC’s conclusion, the DNC and Clinton campaign entered settlement agreements with the agency, agreeing to pay a fine and refrain from similar violations in the future. While not conceding the violations found by the FEC, the DNC and the Clinton campaign nonetheless agreed they would “not further contest the Commission’s findings.”

After the DNC and the Clinton campaign filed their motions to intervene in the Sussmann case, the attorney for The Coolidge Reagan Foundation—the organization that had filed the complaints against the DNC and the Clinton campaign with the FEC—dispatched a three-page letter to the special counsel’s office. The foundation’s letter from its counsel Dan Backer summarized the key details about the FEC’s recent decision, then suggested the DNC and Clinton campaign’s agreement not to “further contest the Commission’s findings” should prevent them from asserting attorney-client privilege in the Sussmann case.

“The Government should not permit HFA and the DNC to adopt conflicting positions in different proceedings, depending on the federal agency against which they are litigating,” the foundation argued, adding that the trial court may find those breaches of the settlement agreement “material in ruling on any privilege claims.”

While the special counsel’s office made no mention of the FEC’s findings in its response to the DNC and the Clinton campaign’s filings, the foundation’s letter to Durham highlighted a second point that now proves prescient. In his letter, Backer noted that although the FEC memoranda “will not be made public for another week,” the details uncovered in the FEC investigation will likely be useful to the special counsel in attempting to counter the claims of attorney-client privilege pushed in the Sussmann litigation.

Indeed, the FEC memoranda released last week provide additional evidence countering the DNC and the Clinton campaign’s claims of privilege not previously highlighted in the special counsel’s briefing.

For instance, the Clinton campaign reported payments of $175,000 to Perkins Coie as payments for “legal services,” but the FEC memorandum stressed that the Perkins Coie invoices did not treat all of the charges as related to “legal services.” Rather, the invoices reviewed by the FEC showed that in billing the Clinton campaign Perkins Coie distinguished between fees for “legal services rendered” and fees for “professional services — other.” The only service billed as “legal services rendered,” the FEC noted, related to the $5,000 monthly retainer fee paid to Perkins Coie. Conversely, all of the charges related to Fusion GPS’s work charges appeared as “professional services—other.”

The FEC memorandum also stressed that the invoices Fusion GPS sent to Perkins Coie for the services rendered on behalf of the Clinton campaign listed “a monthly retainer fee plus additional fees labeled as ‘Russia Research’ or ‘Russian language researcher.’” Those Fusion GPS charges included payments “Fusion made to its sub vendors, Nellie Ohr, Graham Stack, Edward Austin Limited, and Orbis Business Intelligence Ltd.” The sub-vendors all conducted opposition research for Fusion GPS related to Trump, the FEC memorandum explained, again countering the proposition that the subcontractor and its vendors were assisting Perkins Coie in providing legal services to the Clinton campaign.

Similarly, the FEC memorandum discussing the charge against the DNC noted that it reported paying Perkins Coie $66,500 on August 16, 2016, for “Research Consulting,” while later invoices categorized the payments to Perkins Coie as fees for “legal and compliance consulting.” The FEC found the initial category of “research consulting” captured the accurate purpose of the expenditures and indicated the DNC realized “research consulting” represented the more appropriate classification of the expenses

The invoices also showed that Perkins Coie charged the DNC for the entire portion of the fees invoiced by Fusion GPS. This fact suggested Perkins Coie served as simply a pass-through entity for Fusion GPS’s opposition research. This concerned the commissioners, as a transcript of the hearing made clear: Merely running bills through a law firm could not convert them into legal expenses, the commissioners stressed.

While the FEC’s analysis of the payments to Fusion GPS focused on whether the DNC and the Clinton campaign properly reported the purpose of the expenses, and not on whether an attorney-client relationship existed for purposes of privilege, the evidence discussed provides the special counsel additional ammunition to argue in support of an in camera review of the documents, and their eventual disclosure to prosecutors.

No matter how the court resolves the issue of attorney-client privilege, though, the FEC’s memoranda expose the Clinton campaign and the DNC’s attempts to hide their funding of the Russia collusion hoax. When the Sussmann trial begins later this month, the country will learn even more details of the breadth and depth of the conspiracy when those behind the Alfa Bank hoax testify—with or without the 38 documents now in dispute.


Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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4 Takeaways From Spygate Colluders’ Mad Rush To Hide Their Tracks In Court

4 Takeaways From Spygate Colluders’ Mad Rush To Hide Their Tracks In Court

On April 19, a bunch of panicked participants in the Spygate scandal rushed the courthouse to intervene in the special counsel’s criminal case against former Hillary Clinton campaign attorney Michael Sussmann. They hope to prevent prosecutors from accessing a few dozen documents that might further reveal their role in peddling the Alfa Bank hoax.

The motions to intervene came just one day after Sussmann also sought to keep the documents away from prosecutors. The special counsel has requested the trial court review the documents in camera to assess whether they are in fact protected by attorney-client privilege.

Here are the top takeaways from these filings.

1. Sussmann Seeks to Keep the Documents Secret Based on Procedure

Two weeks ago, Special Counsel John Durham filed a motion to compel third parties to produce 38 documents withheld from prosecutors in response to grand jury subpoenas based on claims of attorney-client privilege. In his motion, Durham argued that the communications between tech executive Rodney Joffe and employees of the investigative firm Fusion GPS were not privileged, and that documents the Clinton campaign refused to turn over were not protected by attorney-client privilege.

Sussmann faces trial next month on the charge that he lied to then-FBI General Counsel James Baker when he provided Baker “intel” supposedly showing that Donald Trump had established a back-door communication channel with the Russia-based Alfa Bank. Sussmann responded to Durham’s motion on Monday. In his response, Sussmann attacked the special counsel’s motion mainly on procedural grounds, claiming Durham “moved at the wrong time, in the wrong forum, using the wrong process, and seeking the wrong documents.”

The special counsel waited too long to litigate the privilege, Sussmann first argued, claiming that prosecutors knew, in some cases, for as much as one year that Clinton and Joffe were asserting attorney-client privilege. Now, with trial just weeks away, it is too late to allow the special counsel to obtain access to these documents.

Further, because the documents at issue were sought pursuant to grand jury subpoenas, Sussmann argues the special counsel was required to seek to enforce the subpoenas with separate proceedings before the chief judge of the district, not as part of its criminal case against him. According to Sussmann, the special counsel also improperly used the grand jury subpoena in the first instance to obtain what was clearly intended to be trial evidence. Lastly, Sussmann claims the documents are irrelevant to the limited criminal charge against him.

The special counsel has until Monday, April 25, 2022, to respond to these arguments. In the meantime, it will also need to respond to the flurry of third-party motions filed yesterday.

2. Fusion GPS and Perkins Coie Doth Protest Too Much

Yesterday saw four separate sets of motions to intervene, from would-be-intervenors Fusion GPS, Perkins Coie, Hillary for America, and Joffe. As of publication, the Democratic National Committee (DNC), which together with Hillary for America had hired Perkins Coie, has not filed a motion to intervene.

While there is nothing surprising about Hillary for America and Joffe seeking to intervene to protect their communications, Fusion GPS and Perkins Coie’s involvement seems strange because it is blackletter law that the attorney-client privilege “belongs solely to the client.” In other words, it is Hillary for America (and the DNC) holding the privilege, not the law firm of Perkins Coie, nor the investigative firm, Fusion GPS, that Perkins Coie hired. Similarly, it is Joffe who holds the privilege and not Sussmann or Fusion GPS.

Watch for the special counsel’s office to oppose intervention by both Fusion GPS and Perkins Coie. Also, given that Hillary for America and Joffe both filed motions to intervene, the court may well deny Fusion GPS and Perkins Coie’s attempts to jump into the case and leave the dispute to the clients to litigate.

Of course, Fusion GPS and Perkins Coie have already filed their proposed briefs in support of maintaining the secrecy of the 38 documents, so denying their motions to intervene will have little practical consequence. One unforeseen consequence, however, may be that the special counsel’s office points to inconsistencies in Fusion GPS’s brief and prior statements made by its founders to counter Hillary for America’s claims of attorney-client privilege.

3. Joffe Seemingly Confirms the False Statement Part of the Crime

While Fusion GPS and Perkins Coie hold no right to attorney-client privilege, as Sussmann’s claimed client, Joffe will likely be allowed to intervene to assert his claim of privilege. In seeking to intervene, Joffe filed with the court his proposed response to the special counsel’s motion to compel the filing with the court of various documents concerning Joffe. In his response, Joffe seemingly confirms that Sussmann lied, just as the special counsel’s office alleged.

Joffe “engaged Mr. Sussmann to assist him in a specific legal matter—namely to advise him how to share sensitive information concerning an extremely litigious Presidential candidate with either investigative journalists or Government agencies without revealing his identity and exposing himself to potential liability, frivolous litigation, and/or threats of violence and/or harassment,” according to Joffe’s brief.

This acknowledgment tracks precisely what the special counsel alleged Sussmann did: Sussmann allegedly told the FBI and the CIA that he was not representing a client when, in fact, he represented Joffe in meeting with the agencies. During those meetings, Sussmann shared with federal agents the supposed Alfa-Bank “intel,” and in the case of the CIA, the Yotaphone material.

Sussmann’s lines of defense seem to be shrinking by the day, with the text he sent to Baker the day before their meeting providing strong evidence that Sussmann told Baker he was not representing any client in sharing the Alfa-Bank material. Now Joffe seemingly confirms that he hired Sussmann to determine how to achieve that end, i.e., handing off the Alfa Bank data without revealing his identity.

But just hiring Sussmann is not enough to protect Joffe from the special counsel’s subpoena, because Durham is not demanding Joffe’s communications with Sussmann. Rather, the special counsel’s office is seeking four emails (and attachments) between Joffe and an employee of Fusion GPS.

While Joffe claims that Fusion GPS served as “an intermediary” to Sussmann to assist Sussmann in providing legal advice to Joffe, that argument is likely to fail because there is no evidence that Sussmann retained Fusion GPS on behalf of Joffe—as opposed to on behalf of the Clinton campaign. And if Fusion GPS was not an intermediary between Sussmann and Joffe, then there is no attorney-client privilege for Joffe’s communications with Fusion GPS.

4. Hillary’s Chutzpah

Not too long ago, news broke the Federal Election Commission had fined the DNC and Hillary for America in the six digits after finding probable cause that they violated federal election law by misreporting the purpose of certain disbursements. The disbursements concerned payments made between July 15, 2016 and August 26, 2016 to Perkins Coie and were described in disclosure reports as “legal services.” That money instead went to Fusion GPS for purported “opposition research.”

While Hillary for America and the DNC entered into a conciliation agreement to resolve the issue without conceding the violations, they also agreed not to further contest the commission’s finding of probable cause. Yet yesterday Hillary for America filed a motion to intervene to prevent the disclosure of materials in the possession of Fusion GPS and Perkins Coie that are supposedly protected by attorney-client privilege, supporting its motion with, among other things, a declaration by former campaign manager Robby Mook.

In his declaration, Mook states that he believed “throughout the campaign that whatever work Perkins Coie performed, either through its own professionals or through any contractors it may have engaged to assist, the work was done for the purpose of providing legal services and legal advice to [Hillary for America.]”

Of course, what Mook believes and what he “believes” are likely two different things, given that Mook launched the Russia collusion hoax on behalf of the Clinton campaign live on CNN based on what he “believed” Russia was doing. But, in any event, what Mook believes is irrelevant—what matters is what the district court concludes in the weeks to come.


Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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The Alfa Bank Hoax Is Looking A Lot Like Crossfire Hurricane

The Alfa Bank Hoax Is Looking A Lot Like Crossfire Hurricane

A lawyer for former Hillary Clinton campaign attorney Michael Sussmann revealed last week that federal agents never asked Sussmann the origin of the data he provided the FBI related to the Alfa Bank hoax. Beyond highlighting the hackery of the Crossfire Hurricane team, this revelation raises broader concerns about the cozy relationship between the government and private cybersecurity experts.

On Thursday, Sussmann’s Latham and Watkins attorney Michael Bosworth pushed for the dismissal of the special counsel’s criminal case. That case charged Sussmann with lying to former FBI General Counsel James Baker when he provided Baker “white papers” and data ostensibly showing a secret communications channel between the Trump organization and the Russia-connected Alfa Bank. According to the indictment, Sussmann falsely claimed during his meeting with Baker that he was not acting on behalf of a client, when in fact he was working for both the Clinton campaign and tech executive Rodney Joffe.

During last week’s oral argument on Sussmann’s motion to dismiss, Bosworth posited that Sussmann’s allegedly false statement was not “material” to the FBI—and thus not a crime—by arguing that because the FBI never questioned Sussmann on the source of the Alfa Bank information, it was irrelevant to the investigation.

Not once will the evidence show, Bosworth argued, that “anyone at the FBI ever asked Mr. Sussmann, ‘Hey, by the way, where did this information come from?’ No one asked. Not once. Ever.” Sussmann’s attorney continued: “Regardless of who his clients were, if the source of his information was so critical to the government’s investigation, if it mattered so much, you’d think at some point someone would have said, ‘Hey, buddy, you provide this tip to the government. Where did this stuff come from? Who gave it to you? Where did—how did they get it?”

Bosworth’s argument came in response to prosecutor Andrew DeFilippis’s assertion that the special counsel’s office would “put on the stand at trial witnesses who will say that, when you’re analyzing data, you don’t simply close your eyes to where the data came from and compare it to other data or look for corroboration through other sources. The first thing any responsible forensic analysis will ask is ‘Where was the data from?’”

Picking up on Bosworth’s argument, the court interrupted DeFilippis, asking: “If that’s the first thing a responsible investigator would ask, then why would it matter whether Mr. Sussmann was there on behalf of a client or not? Wouldn’t the natural question have been, ‘Where did this stuff come from?’”

DeFilippis responded that because the former FBI general counsel wrongly believed Sussmann had come forward “as a good citizen,” that lulled Baker into accepting the data and white papers without question. Sussmann’s attorney called that argument “nonsensical,” saying that, “if, as the special counsel claims, the first question that investigators would ask is where did the data come from, that’s the question that’s paramount.”

Bosworth then stressed that the FBI knew the data didn’t originate with Sussmann because he’s “a lawyer” and isn’t “sitting on a pool of DNS data,” and because Baker testified repeatedly that “Sussmann told him that the information originated with various cyber experts.” “At no point did the FBI say, “Who are those experts? Can we talk to them? Where did they get it from?” Bosworth continued. “So, the notion that Mr. Sussmann’s statement about a client somehow affected the FBI’s willingness to ask the basic questions they ask in any case just doesn’t hold water,” Sussmann’s attorney concluded.

Bosworth made an excellent point—actually two, as we will soon see—just not the winning point he thought. The failure of the FBI to ask “the basic questions” about the data and white papers Sussmann provided on the purported Trump-Alfa Bank secret communications speaks not of the unimportance of that information, but of the incompetence (or political corruption) of the Crossfire Hurricane team.

The Tips of Many Icebergs

The FBI’s glaring lack of curiosity concerning the source of the Alfa Bank “intel” mirrors in many respects how the agents assigned to investigate Trump approached the Steele dossier. With Christopher Steele’s supposed intel, the Crossfire Hurricane team undertook some steps to identify Steele’s sources and to verify the information contained in the memoranda. Yet before they were able to do either, the Department of Justice submitted a Foreign Intelligence Surveillance Act (FISA) application to the FISA court and obtained a warrant to surveil former Trump campaign advisor Carter Page.

The DOJ later submitted three renewal applications to the FISA court, again relying heavily on the Steele dossier, even though agents were unable to confirm any of the non-public “intel” of relevance and after discovering numerous problems with Steele’s reporting. The Department of Justice’s Office of Inspector General or OIG later found that the FISA applications targeting Page contained 17 “significant inaccuracies and omissions.”

Soon after, the then-presiding judge of the FISA court, Rosemary Collyer, blasted the FBI for its handling of the Page FISA applications. She also stressed “the frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other FBI applications is reliable.”

The FISA abuse seen in the Page case exposed the DOJ and FBI’s sloppiness, disregard for the law, incompetence, and political bias, casting doubt on the entire FISA process. Similarly, the revelation last week that no one from the FBI asked Sussmann for the source of the Alfa Bank data and whitepapers suggests these same problems broadly infect federal law enforcement and intelligence agencies.

Relying on Obviously Suspect Information

With Steele, the feds believed the unbelievable in part because of Steele’s pedigree as a former MI6 agent. Here the FBI relied unquestioningly on Sussmann and the data and white papers he provided from “various cyber experts” to open an investigation into the supposed Alfa Bank-Trump communications network.

While Sussmann’s attorney posited that the FBI unquestioningly accepted the data and white papers because the source of the information was irrelevant, the more likely explanation is that the law enforcement and intelligence communities worked regularly with Sussmann, tech companies, and cyber experts, and placed unwavering trust in those sources.

Sussmann’s congressional testimony confirmed that he had “various contacts with members of law enforcement and the intelligence community on behalf of a number of different clients” since leaving the Department of Justice. He had served as “a prosecutor in the {DOJ’s] Computer Crime and Intellectual Property Section” before joining Perkins Coie.

Sussmann likewise revealed in court filings that Joffe, “far from being a stranger to the FBI—was someone with whom the FBI had a long-standing professional relationship of trust and who was one of the world’s leading experts regarding the kinds of information that Mr. Sussmann provided to the FBI.”

There’s a Whole Lot of This Going On

It was also not merely Sussmann and Joffe with whom the FBI and intelligence agencies held close contact. Rather, documents obtained from right-to-know requests to Georgia Tech reveal extensive coordination between the Department of Defense’s Defense Advanced Research Projects Agency (DARPA), the FBI, and cybersecurity experts.

Some of this coordination came through private organizations such as Ops-Trust, a self-described “highly vetted community of security professionals focused on the operational robustness, integrity, and security of the Internet” that includes both law enforcement and private cybersecurity experts. The National Cyber Forensics and Training Alliance, or NCFTA, likewise “facilitates collaboration and information sharing between private industry, academia, and the law enforcement/intelligence community” with the FBI having an agent “collocated” at the NCFTA.

Emails reviewed by The Federalist show regular communication between the FBI and members of the NCFTA listserv discussing investigative matters, including requests by the FBI for “law enforcement friendly contacts” at tech companies. No wonder, then, that the FBI was “lulled” into opening an investigation into the supposed Trump-Alfa Bank connection based on Sussmann’s word that the data and white papers originated with cyber experts.

Just Consider One Other Georgia Tech Researcher

While the documents publicly available remain limited mainly to those accessible from Georgia Tech, that material still provides a glimpse at the deep connection between private cybersecurity experts and members of federal law enforcement and intelligence agencies.

Emails show, for instance, that Manos Antonakakis, the Georgia Tech researcher who reviewed one of the white papers Sussmann later provided to Baker, worked for years with FBI agents, communicated with DARPA about various requests to assist with FBI or DOJ investigations, and provided analyses used in various criminal matters. Antonakakis also provided an analysis for the federal government of hackers believed to be working for the Russian military intelligence agency GRU, known publicly by the nickname “Fancy Bear.”

Other documents show that as part of Antonakakis’ work with DARPA and the $17 million contract awarded Georgia Tech researchers to “identify the virtual actors responsible for cyberattacks, a technique known as ‘attribution,” Antonakakis conducted attribution analysis for the federal government, including with data provided by Joffe.

A Situation Ripe for Setups

This collaboration between government entities and private cybersecurity experts is, as the Wall Street Journal recently reported, of “enormous intelligence value” and “can help governments and companies detect and counter cyberattacks.” The Journal’s coverage, however, missed the mark when it then noted that “the monitoring of web traffic flow by government entities and private cybersecurity experts” raises “privacy implications.”

This analysis missed the larger and more serious scandal: Individuals with wide access to sensitive government and proprietary data can exploit that data to target a political opponent. They can draft misleading “white papers,” present the data and white paper to the FBI and CIA with whom they hold a trusted relationship, and thereby trigger a criminal (or national security) investigation.

The Sussmann indictment and other documents filed in his criminal case allege this exact scenario, with one cyber expert called merely the “Originator” but since identified as April Lorenzen creating a dataset purporting to show the Trump-Alfa Bank connection. She shared her data with Joffe, who tasked Antonakakis, Dave Dagon, and employees working at technology companies connected to Joffe “to mine Internet data to establish ‘an inference’ and ‘narrative’ tying then-candidate Trump to Russia.”

Apparently Fabricating Allegations Out of Spite

Joffe would later present to other researchers a “white paper” that purported to explain the basis for the Trump-Alfa Bank theory, asking for their feedback. While Antonakakis did not support the paper and thought it “was not great,” privately he told Joffe that while “a DNS expert would poke several holes to this hypothesis (primarily around visibility,” “very smartly you do not talk about” that. “That being said,” Antonakakis added, “I do not think even the top security (non-DNS) researcher can refute your statements. Nice!”

Knowing the deficiencies in the white paper, Joffe nonetheless allegedly had Sussmann hand it off to the FBI’s general counsel, which then triggered a federal investigation into the supposed Trump-Alfa Bank connection. The Clinton campaign also pushed the Alfa Bank hoax to the media, directing reporters to talk to Georgia Tech’s Dagon about the analysis.

Sussmann also presented a second set of data to the CIA that allegedly consisted of internet traffic exploited by Joffe, Dagon, and Lorenzen related to, among other locales, the Trump Tower, Donald Trump’s Central Park West apartment building, and the Executive Office of the President of the United States. In providing this data to the CIA, the “trusted” Sussmann told agents, the data “demonstrated that Trump and/or his associates were using supposedly rare, Russian-made [Yota] wireless phones in the vicinity of the White House and other locations.”

Not only was there “no support for these allegations,” according to the special counsel, the data provided to the CIA was cherry-picked to create the appearance of a Trump-Russia connection, while additional data compiled by the researchers but not shared with the CIA conflicted with the Yota cell phone theory.

Weaponizing National Security Against Political Targets

These allegations indicate that, as with the Steele dossier, politically motivated actors presented false or misleading information to federal agents to prompt an investigation into Trump. As in the case of Steele’s intel, the Crossfire Hurricane team took the data seriously, in part because it came from supposedly trusted sources.

Just as the implications of the FISA abuse extended beyond Page’s case and raise concerns about the entire FISA system, the implications of cybersecurity experts allegedly exploiting nonpublic internet traffic to frame a political enemy reach beyond Trump. If cybersecurity experts could trigger an investigation into Trump for political reasons, they can prompt an investigation of anyone, for any reason. Maybe they already have.

Lorenzen, Dagon, Joffe, and Sussmann allegedly culled data to fit a narrative and possibly draft misleading “white papers” that Sussmann, on behalf of Joffe, then presented to the FBI and CIA for political ends. This destroys the public’s trust in cybersecurity experts. The FBI’s failure to ask even the most basic questions when it received the data and unsigned “white papers” from Sussmann renders them likewise suspect.

Yet Dagon’s attorney has the chutzpah to claim, as the Wall Street Journal put it, “that the indictment of Mr. Sussmann would have a chilling effect on decades of constructive cooperation between private cybersecurity researchers and government.” “Because the way the government and Durham has handled this, the cybersecurity community now is afraid to take anything to law enforcement,” Jody Westby told the paper. As a result, “the whole nation is at a higher risk level,” Westby warned.

On this latter point, Westby is correct: Our nation is at higher risk of cyber-attack. But the blame for that firmly lies with the cybersecurity experts who abused the great power entrusted to them to hurt Trump.

It is not merely those who prepared the material or presented it to the FBI or CIA who hold responsibility. Every cybersecurity expert who bolstered the Alfa Bank hoax, defended a theory that a “DNS expert” could easily poke several holes in, refused to reveal those deficiencies, failed to call out colleagues for abusing the government and public’s trust, and instead blamed the special counsel’s office for revealing the sham, shares in the blame.

The work private cybersecurity experts do, and the help they provide the FBI and intelligence agencies, is of vital importance to our country and its national security. It is precisely because of this that the Alfa Bank and Yota cell phone hoaxes are so scandalous.


Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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Exclusive: Researcher Tells Durham He Saw Holes In The Alfa Bank Hoax Before Democrats Shopped It To The FBI

Exclusive: Researcher Tells Durham He Saw Holes In The Alfa Bank Hoax Before Democrats Shopped It To The FBI

A Georgia Tech researcher says he tried to politely throw cold water on a key part of the Russia collusion hoax before the Alfa Bank lie was eventually shopped to the media and government agencies, according to a newly obtained document. This new detail was one of several revealed in a document drafted by George Tech’s Manos Antonakakis—the man branded “Researcher-1” in Special Counsel John Durham’s indictment of Michael Sussmann on one count of lying to FBI General Counsel James Baker.

As I explained previously, “that indictment alleged that when Sussmann met with Baker on September 19, 2016, to provide the FBI attorney with data and ‘white papers’ that purported to establish a secret communication channel between the Trump organization and the Russia-connected Alfa Bank, Sussmann falsely claimed he was not acting on behalf of a client, when in reality Sussmann was working both for the Clinton campaign and an unnamed ‘U.S. technology industry executive’ since confirmed to be Rodney Joffe.”

After the Sussmann indictment dropped, Antonakakis emailed his private lawyers and an attorney and higher-ups at Georgia Tech a document entitled “fallacies” that purported to identify several portions of the indictment he claimed are false or misleading. Last week, The Federalist reported on several details contained in an abbreviated version of the “fallacies” document obtained from Georgia Tech pursuant to a Right-to-Know request.

On Thursday, The Federalist received a more complete version of the summary drafted by Antonakakis two days after news broke of Sussmann’s indictment. That version included Antonakakis’s synopsis of what he told Durham’s team about the Alfa Bank hoax.

“This part has been taken out of context,” Antonakakis wrote of the indictment’s excerpt from an email he had sent to Joffe after reviewing a draft white paper laying out the Alfa Bank-Trump theory. That excerpt to Joffe read: “A DNS expert would poke several holes to this hypothesis (primarily around visibility, about which very smartly you do not talk about). That being said, I do not think even the top security (non-DNS) researcher can refute your statements. Nice!”

Antonakakis initially countered that he was asked “to review it as a non-DNS expert and that is what I did,” before explaining what he had told the special counsel.

“If my memory serves me right,” Antonakakis wrote, “I was explicit when I told them that I was not the creator or even an editor of this document.” “I told them that I said what I said in my review of this document,” Antonakakis continued, “because this IMHO [was] the best and most polite way I can tell [Joffe] that this analysis is not great.”

So, according to Antonakakis, it was manners that caused him to tell Joffe he “very smartly” did not discuss the main “hole” in the Alfa Bank analysis. It was also proper deportment that compelled the Georgia Tech expert to exclaim “Nice!” to the fact that “even the top security (non-DNS) researchers” would be unable to refute Joffe’s statements.

Last week’s cache of documents is not the first to confirm that Antonakakis had rejected the Alfa Bank-Trump secret communication network theory posited in the white paper Sussmann later presented to the FBI’s general counsel. In an earlier email obtained from Georgia Tech, Antonakakis wrote that “Researcher 1,” as Antonakakis called himself, “never supported the article.”

The tone and tenor of these emails mimic those excerpted in the Sussmann indictment that likewise show Antonakakis found the Alfa Bank theory half-baked. For instance, after Antonakakis found no connections between the trump-email.com domain and Russia when he ran a search for the domain, he provided his frank feedback that the results do “not make much sense with the storyline you have.”

Antonakakis would later tell Joffe, Lorenzen, and Researcher 2, who was his Georgia Tech colleague David Dagon, that they needed to regroup because their dislike for Trump was giving them “tunnel vision” and their theory would not withstand public scrutiny.

While in private and when questioned by a federal prosecutor Antonakakis presented a dim assessment of the Alfa Bank-Trump theory, an attorney representing the Georgia Tech researcher framed “their hypothesis” as remaining, “to this day,” “a plausible working theory.” Antonakakis has also remained mum since the indictment dropped, even as other supposed experts continue to push the Alfa Bank theory. But why?

The indictment, when read in light of the numerous documents obtained from Georgia Tech, indicates the Alfa Bank data presented to Baker (and later the CIA) came from outside of Georgia Tech. It shows Antonakakis saying “these datasets apparently have originated from April,” an apparent reference to April Lorenzen, whom the Sussmann indictment called the “Originator.” Georgia Tech “did not pay or use these data in any of our programs,” Antonakakis would write, which is also consistent with the allegations in the Sussmann indictment.

Antonakakis also appears to have had no role in compiling the data, conceptualizing the Alfa Bank theory, writing the report, or editing it. Rather, Antonakakis’s involvement seems limited to “querying” internet data maintained by Joffe’s internet company on August 19, 2016, which led him to believe the “storyline” “does not make much sense,” and reviewing Joffe’s draft report and providing feedback to Joffe, albeit while seemingly cheering on Joffe’s ability to hide the holes in the report.

Nor is there any indication that Antonakakis knew that Joffe, with Sussmann’s help, intended to present the report to the FBI, CIA, and media. In contrast, the Sussmann indictment alleged that Dagon, after reviewing Joffe’s draft paper, noted that while questions remained, “in substance and in part, that the paper should be shared with government officials.”

The Sussmann indictment also alleged that Dagon, identified as Researcher-2 in the indictment, had also drafted a white paper apparently related to the Alfa Bank allegations Sussmann provided to the FBI. Additionally, Sussmann asked Dagon to “speak on background with members of the media” regarding the Alfa Bank allegation, which Dagon did, the indictment alleged.

The special counsel’s office made no similar allegations about Antonakakis. So why doesn’t Antonakakis go public with his expert analysis that the Alfa Bank-Trump research was “not great”? Why not “poke holes” in the white paper, as he said a DNS expert could easily do?

Is it a misplaced loyalty to his colleagues and a fear that frankness will create more problems for Joffe, Dagon, and Lorenzen? Or is his attorney, who previously represented Christopher Steele’s Primary Sub-Source, Igor Danchenko, driving the “Alfa Bank-Trump theory remains plausible” strategy?

No matter the answer, we know the Alfa Bank paper was bunk, and the foremost expert in DNS analysis knows it too.


Margot Cleveland is a senior contributor to The Federalist. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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5 New Special Counsel Arguments Against A Russia Hoaxer’s Attempt To Escape

5 New Special Counsel Arguments Against A Russia Hoaxer’s Attempt To Escape

Special Counsel John Durham demolished a key Russia hoax figure’s attempt to get criminal charges against him dropped.

Approximately two weeks ago, Michael Sussmann’s legal team filed a motion to dismiss the criminal charge the special counsel’s office brought against the former Hillary Clinton campaign attorney. On Friday, the special counsel filed a response that demolished Sussmann’s legal arguments, highlighted several significant facts related to the pending charge, and revealed the ridiculousness of the defense’s attempt to hide behind the First Amendment.

Here are five key takeaways from Durham’s response.

1. Sussmann’s Alleged Lie Was Material Even Under the Defense’s Screwy Standard

In September 2021, the special counsel’s office charged Sussmann in a one-count indictment with lying to former FBI General Counsel James Baker in violation of 18 U.S.C. § 1001(a)(2). As I explained last month, “Specifically, the indictment charged that when Sussmann met with Baker on September 19, 2016, and provided him ‘white papers’ and data files purporting to show the Trump organization had established a secret communications channel with the Russia-connected Alfa Bank, Sussmann falsely claimed he was not acting on behalf of a client. In truth, the indictment alleged, Sussmann was working both for the Clinton campaign and an unnamed ‘U.S. technology industry executive,’ since identified as Rodney Joffe.”

Late last month, Sussman’s legal team filed a motion to dismiss the criminal charge, arguing that even if he had lied, his falsehood did not constitute a crime because Section 1001(a)(2) criminalizes only “a materially false, fictitious, or fraudulent statement or representation.” Sussmann’s alleged lie, according to defense attorneys, was not material. The government’s response decimated that argument, laying out first the strawmen erected by Sussmann’s lawyers.

“Distilled to its core,” the special counsel began, the defendant’s argument rests on the premise that the only question is whether Sussmann’s alleged lie was material to the “discrete decision” of whether the FBI should launch an investigation into the Alfa Bank data and white papers. But materiality is not so narrow, Durham’s response stressed. Rather, “a false statement is material if it has the capability to influence a ‘discrete decision’ or ‘any other function of the agency.’”

After stating the correct standard, the special counsel’s office detailed how Sussmann’s lie could have affected the function of the FBI—stressing also that the materiality standard considered the “potential,” as opposed to actual, effects of the falsehood. For instance, Durham’s team explained, had the FBI known Sussmann presented the Alfa Bank theory to Baker as a representative of the Clinton campaign and Joffe, “the FBI likely would have asked certain questions and conducted interviews during the investigation that would bear directly upon the information’s reliability and/or Tech Executive-1’s motivation in providing the information.”

Durham added that, even using the incorrect narrow standard Sussmann posited, his alleged misrepresentation was material because it could have influenced the FBI’s decision-making. Here, Durham stressed the FBI’s decision was not “binary in nature, i.e., whether or not to initiate an investigation.” Rather, given how the FBI initiates and conducts an investigation, had Sussmann truthfully informed Baker of his clients’ identities—or even that he was working on behalf of a client—the “FBI could have taken any number of steps prior to opening what it terms a ‘full investigation,’ including, but not limited to, conducting an ‘assessment,’ [or] opening a ‘preliminary investigation.’”

Moreover, given the “stringent guidelines” of the DOJ and FBI concerning matters that could potentially affect elections, coupled with “the temporal proximity to the 2016 U.S. presidential election,” the FBI, had it known that Sussmann was providing the information on behalf of the Clinton campaign, may have opted to delay or decline to initiate an investigation.

The special counsel’s office further stressed that the question of materiality typically presents a jury question, or at a minimum it is premature to decide the issue at this point. In this respect, Durham’s team stressed that the case law Sussmann presented in support of his claim involved cases where the government had already presented its evidence to the jury or involved a challenge to jury verdict on materiality.

In sum, in the government’s response brief, the special counsel refuted six ways to Sunday Sussmann’s claim that his alleged lie was not material, with this pithy summary striking to the heart of the matter: “The defendant’s false statement to the FBI General Counsel was plainly material because it misled the General Counsel about, among other things, the critical fact that the defendant was disseminating highly explosive allegations about a then-Presidential candidate on behalf of two specific clients, one of which was the opposing Presidential campaign.”

While Sussmann’s legal team will still have an opportunity to file a reply brief before the court rules, denial of Sussmann’s motion to dismiss is inevitable.

2. Sussmann Was Not the Clinton Campaign’s Political Lawyer

In addition to refuting Sussmann’s legal argument that his alleged lie to Baker was not “material,” the special counsel’s office countered several factual claims presented by Sussmann’s lawyers in his motion to dismiss. For instance, in seeking dismissal of the criminal charge, Sussmann’s legal team stressed that “the Indictment makes clear that the FBI and Mr. Baker himself were well aware that Mr. Sussmann was representing the Democratic National Committee at a time when Hillary Clinton, the Democratic nominee for president, was the Democratic National Committee.”

Sussmann’s friends in the media have also pushed this narrative since news of the criminal charge against Sussmann first broke. The Washington Post wrote on the day the indictment dropped that legal experts cast doubt on the case, framing the lie as trivial because “the indictment itself says the FBI already knew Sussmann was a lawyer for the Democratic National Committee.”

Friday’s response by the special counsel’s office destroyed this talking point by stressing that while “the FBI General Counsel was aware that the defendant represented the DNC on cybersecurity matters arising from the Russian government’s hack of its emails,” evidence at trial will establish that Baker did not know “that he provided political advice or was participating in the Clinton Campaign’s opposition research efforts.”

“Indeed, the defendant held himself out to the public as an experienced national security and cybersecurity lawyer, not an election lawyer or political consultant,” Durham’s team continued. Thus, according to the special counsel, “when the defendant disclaimed any client relationships at his meeting with the FBI General Counsel, this served to lull the General Counsel into the mistaken, yet highly material belief that the defendant lacked political motivations for his work.”

While case law makes clear that a lie may be material even if the law enforcement officer knows a person is lying at the time, the special counsel’s response provides a strong counter to the press’ propaganda-tinged reporting that Baker clearly knew Sussmann was a Clinton lawyer.

3. The FBI’s Relationship With Joffe Proves His Use of Sussmann Was Suspect

The special counsel’s Friday response also countered a second factual argument presented in Sussmann’s Motion to Dismiss concerning Sussmann’s client Joffe. In framing his alleged lie to the FBI as not material, Sussmann argued the indictment includes no explanation as to why the knowledge that Sussmann was representing Joffe “would have been material to the FBI’s decision whether or not to initiate an investigation when Tech Executive-1—far from being a stranger to the FBI—was someone with whom the FBI had a long-standing professional relationship of trust and who was one of the world’s leading experts regarding the kinds of information that Mr. Sussmann provided to the FBI.”

Rather than advance Sussmann’s argument, however, Joffe’s “longstanding relationship of trust” with the FBI shows the significance of Sussmann’s statement to Baker that he did not represent anyone in the meeting. The special counsel’s team hammered that point in its response brief: “As the defendant’s motion reveals, Tech Executive-1 had a history of providing assistance to the FBI on cyber security matters, but decided in this instance to provide politically-charged allegations anonymously through the defendant and a law firm that was then-counsel to the Clinton Campaign.”

“Given Tech Executive-1’s history of assistance to law enforcement, it would be material for the FBI to learn of the defendant’s lawyer-client relationship with Tech Executive-1 so that they could evaluate Tech Executive-1’s motivations,” Durham continued.

The significance of this point has escaped the Durham deniers who cast Joffe and his tech friends as merely concerned citizens sharing intel with the government: That Joffe used a private lawyer to peddle the Alfa Bank theory to the FBI, rather than reach out himself, is suspect. The ramifications also don’t end there, because Joffe also used Sussmann to push the Alfa Bank narrative, as well as claims to the CIA that Trump or his associates were using rare Russian cell phones “in the vicinity of the White House.”

But there’s more: Sussmann also shared information from Joffe with the inspector general of the Department of Justice, but without apparently telling the DOJ Joffe’s identity. Instead, Sussman in early 2017, told the Office of Inspector General that his unnamed client “had observed that a specific OIG employee’s computer was ‘seen publicly’ in ‘Internet traffic’ and was connecting to a Virtual Private Network in a foreign country.”

If Joffe had a “long-standing relationship of trust” with the FBI, why didn’t Joffe take this information to the FBI? Or if Joffe wanted Sussmann to provide the information to the OIG, why wouldn’t Sussmann disclose that Joffe had been the client who made the observation so the DOJ knew the tip came from a reliable source?

It now also appears that, after the election, Sussmann may have shared Joffe’s Alfa Bank data with two Democrat senators on the Senate Armed Services Committee, prompting further investigation into this second Russia collusion hoax. So, far from supporting Sussmann’s argument that his alleged lie was immaterial, Joffe’s status as a long-standing respected source for the FBI suggests hiding the political motives proved essential to the plot.

4, Yes, Spying on The Executive Office of the President Concerned Trump

Last week’s response by the special counsel’s office to Sussmann’s Motion to Dismiss also countered the spin the corrupt media launched to downplay news that Joffe had tracked DNS traffic of Trump Tower, Trump’s New York City apartment, a health-care provider connected to a Trump supporter, and the Executive Office of the President, and then took that supposed intel to the CIA.

When that news broke, the usual suspects pounced on the fact that the DNS lookups at the Executive Office of the President occurred before Trump took over as commander-in-chief. However, as Friday’s response made clear, the DNS tracking of the Executive Office of the President was all about Trump.

According to the special counsel’s brief, in Sussmann’s meeting with the CIA, “the defendant provided data which he claimed reflected purportedly suspicious DNS lookups by these entities of internet protocol (‘IP’) addresses affiliated with a Russian mobile phone provider.” The brief continued: “The defendant further claimed that these lookups demonstrated that Trump and/or his associates were using a type of Russian-made wireless phone in the vicinity of the White House and other locations.”

In short, that Trump was not president when the DNS spying took place at the Executive Office of the President means nothing: Trump was the target.

5. Sussmann Should Have Known Better—So Stop Hiding Behind the First Amendment

The special counsel’s office concluded its response brief by refuting Sussmann’s argument that the government’s theory of materiality raises serious constitutional concerns and risks “chilling valuable First Amendment speech.” Here, Durham’s team began by ridiculing the hypothetical Sussmann’s lawyers posited as an example of the type of speech potentially chilled—that of a jilted lover afraid to report her ex’s “extensive gun-smuggling operation” to the feds.

“This comparison is absurd,” the special counsel wrote, stressing that “far from finding himself in the vulnerable position of an ordinary person whose speech is likely to be chilled, the defendant—a sophisticated and well-connected lawyer—chose to bring politically-charged allegations to the FBI’s chief legal officer at the height of an election season.”

“He then chose to lie about the clients who were behind those allegations,” Durham’s team continued, emphasizing that “using such rare access to the halls of power for the purposes of political deceit is hardly the type of speech that the Founders intended to protect.”

The special counsel punched down more by noting that Sussmann, “as a former government attorney and prosecutor . . . was well aware that the law required him to be honest and forthright when communicating with the FBI.” “That lawyers should be honest in their dealings with federal law enforcement agencies is not an imposition that the Constitution prohibits. It is an expectation that undergirds the integrity of our legal system,” Durham concluded.

Of course, the converse is also true: Honest and forthright communications by the FBI and the DOJ “undergirds the integrity of our legal system.” That is why the Spygate scandal is so devastating to our country.


Margot Cleveland is a senior contributor to The Federalist. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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Spygate Figure Whose Attorney Outed Him To The New York Times Now Wants His Name Hidden In Court Documents

Spygate Figure Whose Attorney Outed Him To The New York Times Now Wants His Name Hidden In Court Documents

No longer able to control the media narrative about Rodney Joffe’s role in peddling the Alfa Bank hoax to the FBI and CIA, his attorneys now seek to silence Special Counsel John Durham. That revelation came from a brief docket entry in a federal district court earlier this week documenting a sealed motion to intervene that Joffe’s lawyers had filed in the criminal case against Michael Sussman, in which they asked for references to “Tech Executive-1” to be expunged from the court filings.

The special counsel’s office indicted Sussmann on September 16, 2021, charging the former Clinton campaign lawyer with one count of lying to FBI General Counsel James Baker when Sussmann provided Baker information purporting to show a secret communication channel between the Trump organization and the Russian-based Alfa Bank. Specifically, the indictment charged that “Sussmann lied about the capacity in which he was providing the allegations to the FBI,” with Sussmann falsely stating “he was not doing his work on the aforementioned allegations ‘for any client.’”

According to the indictment, Sussmann was acting “on behalf of specific clients, namely, (i) a U.S. technology industry executive (‘Tech Executive-1’) at a U.S. Internet company (‘Internet Company-1’), and (ii) the Hillary Clinton Presidential Campaign (the ‘Clinton Campaign’).”

At no point in the indictment, or in later court filings, did Durham name Joffe as Tech Executive-1, or even for that matter name the “U.S. Internet company” at which Joffe worked. Nonetheless, in a transparent attempt to frame the narrative about his role in pushing the Alfa Bank hoax, Joffe’s attorney confirmed that his client was “Tech Executive-1” in an interview with The New York Times.

The New York Times Helps Both Ways

The Times’ chief Clinton spinner, Charlie Savage, along with Adam Goldman, then provided Joffe’s legal team a PR assist in the September 30, 2021 article, “Trump Server Mystery Produces Fresh Conflict.” With a subhead proclaiming that internet researchers were pushing back on suggestions in the Sussman indictment that they did not believe their own Alfa Bank research, the Times article quoted Joffe’s attorney, Steven A. Tyrrell, as he framed his client as merely a concerned tech expert.

“His client had a duty to share the information with the F.B.I.,” the Times reported Tyrrell as stating. Savage and Goldman then aided that take by noting that Joffe in 2013 “received the F.B.I. Director’s Award for helping crack a cybercrime case, and retired this month from Neustar, another information services company.”

In addition to Joffe’s attorneys outing him in the Times article, attorneys for Joffe’s colleagues in the Alfa Bank “research” all went public on their clients’ behalf too. “The indictment’s ‘Originator-1’is April Lorenzen, chief data scientist at the information services firm Zetalytics,” her attorney Michael J. Connolly confirmed. And “the indictment’s ‘Researcher-1’ is another computer scientist at Georgia Tech, Manos Antonakakis,” with “Researcher-2” confirmed as David Dagon by his lawyer.

The Times article then proceeded to push the narrative that the researchers all stood by the Alfa Bank theory, with Joffe’s attorney claiming their research “culminated in the well-supported conclusions that were ultimately delivered to the F.B.I.” Jody Westby and Mark Rasch, lawyers for Dagon, told the Times that “the Alfa Bank results ‘have been validated and are reproducible. The findings of the researchers were true then and remain true today; reports that these findings were innocuous or a hoax are simply wrong.”

Mark E. Schamel, the lawyer for the third researcher, Antonakakis, told the Times “his client had provided ‘feedback on an early draft of data that was cause for additional investigation.’” Schamel added, according to the Time, that “their hypothesis” “to this day, remains a plausible working theory.”

PR Strategy Backfires

Confirming his identity to the Times and then going on the offensive likely seemed a strong strategy to Joffe’s attorney, but once lawyers confirmed his identity, and those of Dagon, Antonakakis, and Lorenzen, journalists could conduct their own research, rather than merely serving as scribes to the self-interested lawyers.

That’s complicated matters because at times Joffe communicated with the researchers via email at Dagon and Antonakakis’ Georgia Tech addresses, and Georgia law takes a very favorable view to transparency via its Right to Know law. Various Right to Know requests have revealed several details at odds with the preferred narrative.

For instance, while Antonakakis’ lawyer told Time the Alfa Bank “hypothesis” “to this day, remains a plausible working theory,” emails obtained by a Right to Know request show “Researcher 1,” as Antonakakis called himself in the email, “never supported the article.”

The Federalist asked Antonakakis’ attorney how he could reconcile his statement to the Times that the hypothesis of the white paper “that there are hidden communications between Trump and Alfa Bank” “to this day, remains a plausible working theory” with Antonakakis’ separate private statement that he “never supported the article.” His attorney did not respond to the request for clarification.

Another email from Antonakakis from August 20, 2016 to Lorenzen, with Joffe copied, had the Georgia Tech researcher saying “the conclusion here is that there is no conclusion.” Later that day Joffe would respond, “fuck <sigh>” in an email to Antonakakis concerning the first analysis, a seeming reference to the Alfa research given that Lorenzen and Dagon were both copied on the email.

A Right to Know request also revealed that Antonakakis’ attorney viewed Joffe’s “‘fuck’ email response” as “indicating that the preliminary analysis did not produce a definite answer,” but he claimed that doesn’t mean communications didn’t occur.

When Things Are Good, Go To NYT. When Bad, Sue

In addition to these emails, others provided in response to a Right to Know request to Georgia Tech document anti-Trump vitriol that also doesn’t serve Joffe’s PR push. Such growing negative attention, coupled with the special counsel’s continued use of legal filings in the Sussmann case to detail how the Alfa Bank hoax (and the related Russian cell phone canard) went down, provide a backdrop to Joffe’s motion that seeks to force Durham to remove references to Tech Executive-1 in past (and likely future) court filings.

Although Joffe’s motion is sealed, the docket entry notes he presents a constitutional claim. That constitutional claim is likely premised on the due process clause of the Constitution, as courts have found due process violations when the government names an unindicted individual in an indictment or later court filings.

“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner,” precedent teaches. Yet a named, but unindicted, individual “is not afforded a forum in which he can attempt to vindicate himself.” Expungement of the individual’s name is appropriate in those circumstances, absent an important governmental interest to identifying the individual.

Joffe’s Attorney Named Him Publicly First

The problem for Joffe, however, is that the government did not name him. To the contrary, the special counsel’s office complied with Department of Justice guidelines that provide that “federal prosecutors should remain sensitive to the privacy and reputation interests of uncharged third-parties,” and neither name them or provide an “unnecessarily-specific description” of the individual.

For instance, the guidelines explain, a third party can be referred to generically in most cases such as “a Member of Congress,” as opposed to “Senator X.” And uncharged third parties can be referred to as “an individual.”

In this case, Durham’s team used generic descriptions and neither named Joffe nor provided an “unnecessarily-specific description.” Also, it was not Durham who outed Joffe, but his attorney when he confirmed Joffe’s identity as Tech Executive-1 to The New York Times as part of an apparent PR move.

While it is true that by the time Joffe’s attorney confirmed his identity it was widely understood that Joffe was Tech Executive-1, that belief came not from Durham’s indictment but from internet sleuths who had been following the Alfa Bank civil lawsuit. In fact, one Twitter investigator who goes by Fool Nelson, along with assists from another using the moniker Walkafyre, identified Joffe, Dagon, and Lorenzen as responsible for the Alfa Bank research even before the indictment dropped.

Because the special counsel’s office did not identify Joffe, either by name or in all but name, Durham has nothing to answer for. Whether the court will agree, however, is another question. The court may believe that now that Joffe’s identity is known, future filings must omit any reference to Tech Executive-1, or maybe even be filed under seal.

The latter solution, however, raises other constitutional concerns, namely the First Amendment right to access to criminal court proceedings, which Durham’s team will likely stress in its response to Joffe’s motion. That response is due today, but given the court ordered the special counsel’s office to file it under seal, we will be without further insights until the court issues its decision.


Margot Cleveland is a senior contributor to The Federalist. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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