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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This Week’s Spygate Trial Is Bad News For Hillary Clinton

This Week’s Spygate Trial Is Bad News For Hillary Clinton

Subpoenaed Fusion GPS employee Laura Seago is likely to stay mum during questioning at the criminal trial of Michael Sussmann that starts this week. Her silence will be yet further evidence that the Hillary Clinton campaign financed and seeded the Russia collusion hoax to both the press and U.S. intelligence agencies.

Jury selection is scheduled to begin this morning in a D.C. federal court in the criminal case against former Clinton campaign attorney Michael Sussmann. While Sussmann faces a single charge of making a false statement to former FBI General Counsel James Baker, proof of that federal crime requires prosecutors to show Sussmann lied when he shared Alfa Bank data and whitepapers with Baker, telling the FBI lawyer that he was not acting on behalf of a client.

To prove that lie, Durham’s team, led by long-time prosecutor Andrew DeFilippis, will present evidence to the jury that Sussmann, in fact, was acting on behalf of two clients—the Clinton campaign and tech executive Rodney Joffe. The special counsel has already previewed much of the evidence it intends to present over the course of the expected two-week trial.

Prosecutors will first seek to establish that the Alfa-Bank hoax—a conspiracy theory that claimed Donald Trump had established a secret communications channel with the Russia-based Alfa Bank—originated with Sussmann’s client, Joffe, but was then shared with the Clinton campaign through its Perkins and Coie attorneys. The testimony of Georgia Tech researcher Dave Dagon, whom the special counsel gave immunity to last summer, will be key in this regard.

In the months leading up to the 2016 presidential election, Dagon worked closely with Joffe and the originator of the Alfa-Bank data, April Lorenzen, reviewing the data and a whitepaper supposedly showing the Russia-Trump connection. According to Durham’s indictment, Dagon also collaborated with Joffe and Lorenzen to craft another conspiracy theory related to the Russian-made Yota cell phones. In February 2017, Sussmann provided the CIA data related to the Yota cell phones, claiming that the Russian phones were typically used by top Russian officials and that the data showed the cellphones being in multiple locations near Trump, including in the executive office building of the president.

Dagon’s role, however, extended further, with him serving as the go-to expert to push the Alfa Bank story in the media. Emails reveal that the private investigative firm Fusion GPS, which Perkins and Coie hired on behalf of the Clinton campaign, pushed Dagon on reporters skeptical of the Alfa Bank story. Dagon’s testimony concerning his assistance to Fusion GPS in these efforts connects the Alfa-Bank hoax to the Clinton campaign because it was Perkins and Coie who hired Fusion GPS and not Joffe.

While Dagon holds some insight on Fusion GPS’s role in feeding the Alfa-Bank hoax to the media, prosecutors have also subpoenaed Fusion GPS’s “tech maven” Seago to testify. In response, Seago’s attorney, Holly Pierson, informed the government that Seago would invoke her Fifth Amendment privilege against self-incrimination absent a court order of immunity compelling her to testify at trial. Last month, on a motion by the special counsel, presiding judge Christopher Cooper entered an order immunizing Seago and compelling her to testify.

The court’s order, however, addressed solely Seago’s right not to incriminate herself, and did not address the question of attorney-client privilege. Another ruling last week by the D.C. federal judge addressed Joffe and the Clinton campaign’s claims of attorney-client privilege.

In that order, the court held that internal Fusion GPS emails related to “ordinary media-relations work” undertaken on behalf of the Clinton campaign were not protected by attorney-client privilege. Other emails, though, including eight emails with their attachments exchanged between Sussmann, Joffe, and Fusion GPS’s Seago, were protected by attorney-client privilege according to the court.

While the court’s order last week addressed only the few dozen emails at issue, the court noted it “will apply the principles set forth above to any assertions of privilege during witness testimony at trial.” Consequently, if prosecutors seek to inquire of Seago about communications she had with Joffe about the Alfa-Bank data and whitepapers, Seago is likely to respond that she cannot answer the questions based on attorney-client privilege.

Such a rejoinder, however, during the highly publicized Sussmann trial will force focus on the basis of that claim. And the premise underlying the court’s ruling that communications between Seago, Joffe, and Sussmann were protected by attorney-client privilege was that Joffe shared a “common interest” with the Clinton campaign.

Testimony by Seago that Fusion GPS worked with Joffe to push the Alfa-Bank conspiracy theory would further the special counsel’s goal of establishing that Sussmann represented Joffe and the Clinton campaign when he met with Baker; but her hiding behind attorney-client privilege would as well.

In fact, according to court filings the special counsel issued trial subpoenas to both the Clinton campaign and the Democratic National Committee “requesting the testimony of witnesses regarding the assertion of attorney-client privilege in front of the jury,” illustrating that Durham’s team sees value in the jury hearing from witnesses that the Clinton campaign sees itself as the client related to communications relevant to the Alfa Bank data.

Likewise, if Seago refuses to answer questions regarding conversations she had with Joffe and others regarding the Alfa Bank data, prosecutors can still win from that loss, with jurors learning from the assertion of privilege that the Alfa Bank theory arose from communications with Joffe, on behalf of the Clinton campaign.

The real loser, though, will be Hillary Clinton, who risks the spectacle of a court ruling during public proceedings that Seago’s communications with Joffe were protected by attorney-client privilege given Fusion GPS’s role of assisting the Clinton campaign. And that is but a sliver of the evidence likely to come out during Sussmann’s trial connecting Clinton to Spygate.


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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Court Agrees To Let Spygate Cabal Hide Some Of Their Emails From The Grand Jury

Court Agrees To Let Spygate Cabal Hide Some Of Their Emails From The Grand Jury

Tech executive Rodney Joffe may assert attorney-client privilege for communications he had with employees of Fusion GPS because those communications furthered Joffe and the Clinton campaign’s common interest, a federal judge presiding over the criminal case against Michael Sussmann ruled yesterday. Prosecutors will now be greatly limited in the material they may elicit from one of the two witnesses granted immunity in exchange for their testimony against Sussmann.

Sussmann, whose trial in a D.C. federal court on a false statement charge is set to begin on Monday, scored a victory Thursday when presiding judge Christopher Cooper rejected Special Counsel John Durham’s attempts to present the jury copies of emails previously withheld by Joffe, the Clinton campaign, and the Democratic National Committee as privileged. The ruling came in response to Durham’s motion to compel Fusion GPS to provide the court, for in camera review, 38 emails the investigative research firm withheld from the grand jury based on the Clinton campaign’s claim of attorney-client privilege and work-product privilege. The latter protects notes, memoranda, and other communications capturing the mental impressions of an attorney, or those helping an attorney prepare for litigation.

Of the 38 emails, the court held that the Clinton campaign “had no valid basis to withhold 22 of” them. Those emails, the court concluded, did not concern legal advice but involved Fusion GPS employees’ interactions “with the press as part of an affirmative media relations effort by the Clinton Campaign.” “That effort,” the court noted, “included pitching certain stories, providing information on background, and answering reporters’ questions.”

Among the emails related to the “ordinary media-relations work” undertaken on behalf of the Clinton campaign were “internal Fusion GPS discussions about the underlying data and emails circulating draft versions of one of the background white papers that was ultimately provided to the press and the FBI.” Because those emails were not written in anticipation of litigation, but instead related “solely to disseminating the information they and others had gathered,” the court held the emails were not protected by either attorney-client privilege or work-product privilege.

Although the court held those 22 emails and the related attachments were not protected by attorney-client privilege, Judge Cooper nonetheless concluded that the special counsel’s office waited too long to file its motion to compel. “As a matter of principle,” the court explained, it would not “put Mr. Sussmann in the position of having to evaluate the documents, and any implications they might have on his trial strategy, at this late date.” Accordingly, the court held, “the government will not be permitted to introduce the emails and attachments that the Court has ruled are not subject to privilege.”

In reaching this conclusion, Judge Cooper noted that the emails did not appear “particularly revelatory,” suggesting there will be little harm to the special counsel’s case against Sussmann from the court’s ruling that the emails will be inadmissible at trial. And beyond the Sussmann case, the court’s ruling inures to the special counsel’s benefit because it establishes a precedent for Durham’s team to seek access to other communications withheld based on the Clinton campaign’s claims of attorney-client privilege. In total, there were nearly 1,500 other documents Fusion GPS withheld as privileged that the special counsel’s office may move to compel the production of as part of future grand jury proceedings or trials.

While that aspect of yesterday’s ruling proves positive for the broader special counsel’s investigation, the court’s conclusion that 16 of the 38 other emails remain privileged creates larger problems for Durham’s team. Eight of those emails also involved internal communications among Fusion GPS employees, the court noted, but because 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 litigation,” the court deferred to claims by Fusion GPS’s attorney Joshua Levy and Clinton campaign attorney Marc Elias that the emails related to legal advice.

Given that Elias maintained all the emails were protected by attorney-client privilege, the court’s unquestioningly accepting his word seems strange. And if a court applies the same standard to assess whether the remaining approximately 1,500 emails are privileged, the special counsel’s office may face challenges obtaining much that matters.

But it was the court’s ruling concerning the final eight emails that has the most immediate effect on the special counsel’s office, namely its prosecution of Sussmann for allegedly lying to former FBI General Counsel James Baker. The last eight emails, with attachments, consisted of two email chains initiated by Joffe to both Sussman and Fusion GPS employee Laura Seago. In opposing disclosure of the email threads, Joffe asserted that “the purpose of the [] communications at issue was to obtain [Fusion’s] assistance in cybersecurity and technical matters to allow Mr. Sussmann to provide [Mr. Joffe] competent, informed legal advice.”

The court held that Joffe’s communications to Sussmann were protected by attorney-client privilege even though the emails included a non-lawyer, Seago, because attorney-client privilege extends to communications by third parties that an attorney hires to facilitate “the effective consultation between the client and the lawyer.” In reaching this conclusion, the court reasoned that Seago’s “involvement related to the technical analysis of the data, which would naturally inform Mr. Sussmann’s advice to his client about the data.”

The court, however, ignored the fact that Fusion GPS, for whom Seago worked, was hired by Perkins Coie to assist the Clinton campaign and the DNC, not Joffe. And Joffe did not pay for Fusion GPS’s services, nor did Perkins Coie charge Joffe. Further, as the special counsel noted in its briefing of the issue, “Perkins Coie also had no agreement, contract, or other arrangement reflecting that Fusion GPS was providing services specifically to aid Perkins Coie’s legal representation of [Joffe].”

Nonetheless, the court held the email threads between Joffe, Sussmann, and Seago were protected by attorney-client privilege based on case law holding communications that further “a common interest” are protected. What the court didn’t say, though, but what must be true under privilege law and “the common interest rule” is that the court believed the communications furthered a common goal of Joffe and the Clinton campaign.

“The joint defense privilege,” or “the common interest rule,” is “an extension of the attorney-client privilege that protects from forced disclosure communications between two or more parties and/or their respective counsel if they are participating in a joint defense agreement.” The common interest rule “protects communications between the parties where they ‘are part of an on-going and joint effort to set up a common defense strategy’ in connection with actual or prospective litigation.” That rule applies to communications subject to the attorney-client privilege, including communications with technical experts retained to assist in the legal defense.

In this case, as prosecutors stressed in their briefing, there was no “formal or informal legal relationship” between Joffe and the DNC and the Clinton campaign. Case law holds, however, that the “parties need not agree in writing to pursue a common interest; the doctrine permits an exchange of confidential information when the parties have clearly and specifically agreed in some manner to pool information for a common goal.” But “without a written agreement, the party’s burden of proving that a statement was made in the common interest will undoubtedly be more difficult.”

Yet, even without a written agreement, the court found a “common interest” existed to protect Joffe’s communications with Fusion GPS’s Seago, who was hired by Elias to provide legal support to the Clinton campaign. And what was that “common interest?”

According to Joffe, he hired “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.”

So, in concluding a “common interest” existed between Joffe and the Clinton campaign, the court implicitly also found “the parties have clearly and specifically agreed in some manner to pool information for a common goal,” here the goal of feeding the press and the government the Alfa Bank hoax.

The end results then are that the special counsel’s office cannot compel Fusion GPS to turn over the eight emails between Joffe, Sussmann, and Seago. But yesterday’s holding has broader consequences for the trial because, in closing its 11-page opinion, the court noted that it “will apply the principles set forth above to any assertions of privilege during witness testimony at trial.”

That means if prosecutors seek to elicit testimony from Seago, or any other employee of Fusion GPS for that matter, on various communications with Joffe, the court could rule the questions out of bounds based on attorney-client privilege. Given that the special counsel was forced to provide Seago with immunity to obtain her testimony at Sussmann’s trial, the court’s ruling yesterday represents a setback to Durham’s case.

Durham does have a few options, including asking the appellate court to resolve the issue of privilege before the trial starts. Prosecutors may instead decide to push forward and play any claim of privilege by Seago on the stand to their advantage, using it as further evidence that Sussmann was representing Joffe and the Clinton campaign when he presented Baker with the Alfa Bank material. They may also point to the “common interest” underlying the privilege analysis as proof that yes, there was a joint venture between the Clinton campaign, Joffe, and others, sufficient to overcome the defendant’s hearsay objections to other evidence.

Whether yesterday’s ruling represents an overall loss to Sussmann or the special counsel is yet to be seen, but what is clear is that it is another damning indictment of Hillary Clinton.


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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Spygate Judge Tries To Protect Hillary Clinton In Latest Pre-Trial Rulings

Spygate Judge Tries To Protect Hillary Clinton In Latest Pre-Trial Rulings

The Obama-appointed judge presiding over the criminal case against former Hillary Clinton campaign attorney Michael Sussmann let politics trump the law when he declared in a weekend opinion he would not rule on whether the Clinton campaign and Democratic National Committee conspired with others to peddle the Russia collusion hoax.

Special Counsel John Durham charged Sussmann last September in a one-count indictment with making a false statement to then-FBI General Counsel James Baker when Sussmann provided Baker data and “whitepapers” purporting to show a secret communication network between Donald Trump and the Russian-based Alfa Bank. According to the indictment, Sussmann told Baker he was sharing the information on his own, when, in fact, Sussmann represented both tech executive Rodney Joffe and the Clinton campaign.

With trial set to begin in one week, the last month has seen a flurry of pretrial motions—called “motions in limine”—seeking pretrial rulings on the admissibility of evidence. The court previously ruled on several of the issues the parties presented, holding in many cases that a final decision must await trial. Then, late Saturday, presiding Judge Christopher Cooper issued a further opinion resolving many of the still-outstanding evidentiary challenges.

Overall, Cooper’s Saturday night opinion, like his previous rulings in this case, represented a studious and a balanced approach to the legal issues, with Sussmann prevailing at times, but the special counsel succeeding on other issues. For instance, in a victory for Durham, the court ruled that prosecutors could present evidence concerning how the Alfa Bank “data came into being and who was involved in its collection and analysis, as well as how Mr. Sussmann came to possess the data, what he did with it, and why.”

But the court also ruled in Sussmann’s favor, first reiterating its previous holding that unless Sussmann claims at trial that the Alfa Bank data is accurate, the government may not present evidence challenging its validity. Cooper further held that the government could not present evidence that Joffe inappropriately accessed proprietary or sensitive government information to gather the data or write the whitepapers, absent some evidence “showing that Mr. Sussmann had concerns that the data was obtained inappropriately.”

Judge Cooper further demonstrated his baseline when he confronted two more significant issues presented by the opposing parties. Sussmann scored a victory when the court held the government could not admit evidence concerning notes taken by former FBI Assistant Director Bill Priestap and former Deputy General Counsel Trisha Anderson unless they testified about their previous conversations with Baker. Even then, Judge Cooper indicated that at most the jury would likely only be read the contents of the notes, as opposed to receiving the notes themselves as exhibits to view.

Such a limitation will surely inure to Sussmann’s benefit because seeing in writing Priestap’s notation, “Michael Sussman[n]—Atty: Perkins Coie—said not doing this for any client” and Anderson’s note, “Sussman[n] Mtg w/ Baker,” “No specific client but group of cyber academics talked w/ him abt research,” would likely strike a more solid punch than merely hearing their testimony.

Sussmann, however, failed in his attempt to force the government to provide Joffe immunity so Joffe would be willing to testify in Sussmann’s defense. Sussmann had argued that the government had no reasonable basis to claim that Joffe remained a target of a criminal investigation given that the five-year statute of limitations for false statements had run, and that therefore the special counsel’s threat of prosecution served solely to induce Joffe to plead the fifth and refuse to testify on behalf of Sussmann.

Not only did the court reject this argument, in doing so the court stated—simply and without commentary—that “the Special Counsel’s continued representation that Mr. Joffe is a subject of its investigation, rather than simply a witness, does not amount to prosecutorial misconduct on this record.” Given that Sussmann framed the government’s claim that Joffe remained a target as unbelievable, the court’s refusal to question the special counsel’s representation illustrates Judge Cooper’s baseline apolitical equilibrium.

The Obama appointee faltered, however, on the Clinton campaign and handling the special counsel’s argument that various emails, even if they were hearsay, were admissible under the “co-conspirator statement” exception to the hearsay rule. At issue were emails between Joffe and the Georgia Tech researchers Manos Antonakakis, Dave Dagon, and April Lorenzen, the “originator” of the Alfa Bank data whom Joffe had allegedly tasked to mine internet data to find a Trump-Russia connection.

After concluding some, but not all, of the emails were hearsay, the court addressed the government’s argument that the emails were admissible under federal rules of evidence as “a co-conspirator statement.”

First, Some Lawsplaining

Under federal rules of evidence, a statement made by a “co-conspirator” of a defendant “during and in furtherance of the conspiracy” is admissible even though it is hearsay. Hearsay is an out-of-court statement, oral or in writing, that is presented to the jury to prove the truth of the matter asserted in the statement.

The “conspiracy” need not be criminal, however, for a statement made by another member of the “conspiracy” to be admissible, with courts typically calling non-criminal conspiracies “joint ventures.” But before a court may admit a statement under this “co-conspirator” exception, it must find “by a preponderance of the evidence” that such a conspiracy or joint venture existed. (A “preponderance of the evidence” means it is more likely that a conspiracy existed than that it didn’t, i.e., that the court is 50.1 percent sure there was such a joint venture.)

The Joint Venture

In the Sussmann case, the special counsel submitted that Joffe, Sussmann, and the Clinton campaign (or its agents) were “acting in concert toward a common goal”—i.e., “assembling and disseminating the [Alfa Bank] allegations and other derogatory information about Trump to the media and the U.S. government.” The Georgia Tech researchers and Lorenzen were also part of this joint venture, according to prosecutors.

Judge Cooper, however, refused to consider whether such a joint venture existed, stating instead that, for a variety of reasons, his court was exercising “its discretion not to engage in the kind of extensive evidentiary analysis that would be required to find that such a joint venture existed, and who may have joined it.”

A court is well within its discretion to refuse to undertake a “lengthy journey” to assess whether a “joint venture” existed and thus whether the various emails are admissible under the “co-conspirator statement” exception to the hearsay rule. But in the same breath that he declared himself unwilling to make this excursion, Judge Cooper contradicted his own reasoning.

“The government has indicated that it intends to call one or both of the Georgia Tech researchers at trial,” Judge Cooper wrote. “Either of them could testify to their role in assembling the data, how they came to be tasked with the project, and whether they believed the research was done for the Clinton Campaign or some other purpose.”

Thus, contrary to the court’s rationale, there is no “lengthy journey” to traverse: The court need only wait until trial to allow the government to elicit from witnesses testimony confirming the “joint venture”—something Cooper ruled they “could” testify about. In fact, in its brief in arguing the emails were admissible as “co-conspirator” statements, the special counsel’s office noted that a court could “preliminarily admit hearsay statements of co-conspirators, subject to connection through proof of conspiracy.”

But Judge Cooper didn’t even need to admit the emails were “subject to connection through proof of conspiracy.” All the Obama appointee needed to do was follow the same approach he did when confronted with other evidentiary issues that were unclear or where the admissibility depended on the proof at trial: wait for trial to issue a ruling.

Further, ruling on the admissibility of the emails based on the “co-conspirator” exception to the hearsay rule during trial would require little effort, as Cooper’s Saturday opinion itself recognized, by noting that it “has already ruled on the admissibility of many of the emails on other grounds.”

That Judge Cooper deviated from the approach he took with other evidentiary issues, namely withholding final ruling until trial, only on the question of whether the Clinton campaign had conspired to peddle the Alfa Bank hoax, suggests politics motivated that approach.

Two Other Supporting Facts

Two other details from Judge Cooper’s opinion bolster that conclusion. First, not only did Cooper declare he would not rule on the co-conspirator exception for purposes of the specific emails the special counsel’s office sought to introduce, he prejudged the importance of other emails “the Court has not yet seen.”

“Whatever few emails remain,” the court noted, “are likely to be either irrelevant or redundant of other admissible evidence,” thus negating, in the court’s view, the need to address the co-conspirator exception to the hearsay rule.

Tellingly, after announcing he would not consider the co-conspirator exception in deciding whether these still-unseen emails were admissible, Judge Cooper added that during trial he would consider whether those same emails might be admissible for a non-hearsay reason. Again, why not do the same on the co-conspirator exception?

The answer seems clear: A court declaring that Hillary Clinton’s then-lawyer had engaged in a conspiracy to “gather and spread damaging information about a Presidential candidate shortly before the scheduled election” would be a devastating blow to the Democrat.

Trying to Protect Democrats and Clinton

Judge Cooper’s efforts to counter the impact of the case on Clinton, and more broadly the Democratic Party, extend beyond merely declaring the “co-conspirator” exception off limits. Rather, in his weekend opinion, after announcing his plan to punt, Judge Cooper proceeded to question the special counsel’s theory, calling the “contours” of the joint “venture and its participants are not entirely obvious.” He then noted he was “particularly skeptical that the researchers” shared in this common goal.

Beyond being an unnecessary annotation to a case in which he expressly declined to address the co-conspirator exception, Judge Cooper’s analysis constructed a strawman to destroy. Durham’s team never claimed that the researchers joined in a conspiracy with Clinton directly, and never claimed they intended to peddle the Alfa Bank hoax to the FBI.

Rather, the joint venture concerned the shared goal of gathering and spreading damaging information about Trump and involved agents of the Clinton campaign, such as Fusion GPS. And the evidence of that joint venture was overwhelming, easily satisfying the preponderance of the evidence test. But even if Judge Cooper was not so sure about that conclusion, waiting for the trial testimony was the proper procedure, as his many earlier rulings demonstrate.

In refusing to consider the co-conspirator exception to the hearsay rule, Judge Cooper may see himself as keeping politics out of the case. After all, as the federal judge noted in the opinion, the special counsel did not charge Sussmann with a conspiracy. But a conspiracy need not be charged for the co-conspirator exception to apply, and this case is political to its core—just as the FBI’s investigation of Trump and the corrupt press’ reporting on the Russia collusion hoax was.

And Hillary Clinton was behind it all, whether the court opts to ignore the conspiracy or not.


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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New Documents Suggest Democrats Sicced The CIA On Their Domestic Enemy, The President

New Documents Suggest Democrats Sicced The CIA On Their Domestic Enemy, The President

Newly released CIA memoranda suggest the tech gurus behind the Alfa Bank hoax also tracked Donald Trump’s movements to devise another collusion conspiracy theory. While smaller in scale than other aspects of Spygate, the Yotaphone hoax represents an equally serious scandal because it involved both the mining of proprietary information and sensitive data from the Executive Office of the President (EOP) and the apparent surveillance of Trump’s physical movements.

When Special Counsel John Durham charged former Hillary Clinton campaign attorney Michael Sussmann in September 2021, the indictment focused on the Alfa Bank hoax that Sussmann, tech executive Rodney Joffe, and other cybersecurity experts had crafted. The indictment detailed how Joffe and other tech experts had allegedly mined data and developed “white papers” that deceptively created the impression that Trump had maintained a secret communication network with the Russia-based Alfa Bank.

Then, allegedly on behalf of the Clinton campaign and Joffe, Sussmann provided the Alfa Bank material to the media and to the FBI’s general counsel at the time, James Baker, with Sussmann falsely telling Baker he was sharing the “intel” on his own and not on behalf of any client. That alleged lie formed the basis for the one count, Section 1001 false statement charge against Sussmann.

There’s Another Alleged Lie

The 27-page indictment, however, also spoke of Sussmann sharing “updated allegations” on February 9, 2017, to another U.S. government agency, namely the CIA, while allegedly repeating the same false claim that he was not sharing the “intel” on behalf of any client. From the framing of the indictment, it appeared that what Sussmann had shared with the CIA concerned the same Alfa-Bank data provided to the FBI several months earlier, albeit updated.

But then two months ago, as part of the government’s “Motion to Inquire Into Potential Conflicts of Interest,” Durham’s team revealed for the first time that when Sussmann met with the CIA in early 2017, he provided agents with internet data beyond the Alfa Bank conspiracy theory. This data, Sussmann claimed, “demonstrated that Trump and/or his associates were using supposedly rare, Russian-made wireless phones in the vicinity of the White House and other locations.”

The “supposedly rare, Russian-made wireless phones” were “Yotaphones.” Following Durham’s filing of the conflicts of interest motion, it appeared Sussmann bore responsibility for peddling a second conspiracy theory to the CIA. But the details contained in the government’s motion proved insufficient to understand the Yotaphone angle to Spygate. That all changed on Friday, when the special counsel filed two CIA memoranda memorializing what Sussmann said about the Yotaphones and the data Joffe and his tech experts had compiled.

What Sussmann Told the CIA

The first memorandum, dated January 31, 2017, summarized what Sussmann told a former CIA employee in hopes of scoring a meeting with the CIA. Sussmann said his client “had some interesting information about the presence and activity of a unique Russian made phone around President Trump.” Sussmann claimed the activity started in April 2016 when Trump was working out of the Trump Tower on its Wi-Fi network. That phone was also used on the “Wi-Fi at Trump’s apartment at Grand Central Park West,” according to Sussmann.

The memorandum then noted that “when Trump traveled to Michigan to interview a cabinet secretary, the phone appeared with Trump in Michigan.” The unnamed cabinet secretary apparently refers to Trump’s education secretary Betsy DeVos, whose husband Richard DeVos was chairman of the Michigan-based Spectrum Health in 2016.

According to the notes, Sussmann also told his contact that “the phone was never noticed in two places at once” and was seen “only around the President’s movement.” The memo noted that once, when Trump was not in Trump Tower, the phone was active on the Trump Tower WiFi network. Then, “in December 2016, the phone disappeared from Trump Tower Wi Fi network and surfaced on [the Executive Office Building] network,” the memorandum said, with Sussmann claiming it was the same Yotaphone and that it “surfaced” at the Executive Office Building after Trump moved to the White House.

The Yotaphone is rare, Sussmann told his contact, with only about a dozen or so present in the United States, and Russian government officials often receive a high-end version of the phone as a gift. According to Sussmann, the Yotaphone connected to Trump made a number of WiFi calls to Moscow and St. Petersburg from April 2016 until February 2017.

Adding Some Pressure to the Deal

Sussmann did more than merely pass on this information, however. He also “claimed that his client did not want to provide this [information] to the FBI as he knows that the FBI did not have resources to deal with these issues,” but also that the source—or Sussmann, it is not clear which—“did not trust the FBI” because Sussman is “openly a Democrat” and “does lots of work for the DNC.” Sussmann added “that his client would most likely only provide the data to senior bona fide [redacted] officers (active duty) and if there is no interest, he would most likely go to [the] New York Times.”

To further push for the CIA meeting, Sussmann then stressed that, given that he is “an experienced attorney with full clearances and lots of [redacted] experience, he believes that this client is telling the truth as he knows it.” “He cares about the security of the country” and wanted the CIA “to know about the Yotaphone activity close to the President,” Sussmann claimed.

Sussmann’s preview of this Yotaphone “intel” to his contact served its purpose, with the CIA arranging to meet with Sussmann in person less than two weeks later, on February 9, 2017. At that meeting, Sussmann again noted that he was passing the current information directly to the CIA “based on how the FBI had handled” the information he had previously provided that agency.

During Sussmann’s February 9, 2017 meeting with the CIA, the memorandum notes that Sussmann provided the agency thumb drives with separate data files for the Yotaphone by the location of the “domain name system” or DNS lookups, including one for Trump’s Central Park apartment, one for the EOP, one for Spectrum Health Care, and one for the Trump Tower. That data, Sussmann told the CIA agents, related to DNS information, “indicat[ed] that a Russian-made Yota-phone had been seen by [Sussmann’s contacts] connecting to the WiFi from the Trump Tower in New York, as well as a from a location in Michigan, at the same time that then-candidate Trump was believed to be at these locations.”

These People Were Watching Trump For Years

The data included in those files, however, reflected but a segment of the DNS lookups by the Yotaphones. The special counsel discovered that fact when it obtained more complete DNS data from a company that assisted Joffe in assembling the Yotaphone allegations. For instance, the more complete data assembled by Joffe and his associates showed the DNS lookups involving the EOP began at least as early as 2014, but Sussmann omitted that detail when providing the material to the CIA.

That Joffe and his associates had assembled more complete DNS data related to the Yotaphones than that provided to the CIA—data that disproves the Trump-Russia collusion theory—is a huge scandal: Those allegations indicate an intent to deceive by omission.

But it is not merely what data wasn’t provided to the CIA, it was what data was provided and how it was gathered.

From Durham’s earlier filings, it was already clear that Joffe had culled the DNS data by using proprietary information related to the Trump Tower, Trump’s residential building, and Spectrum Health, as well as exploiting sensitive data from the EOP. At the time, the corrupt media downplayed the misuse of the EOP DNS data by focusing on the fact that Joffe and his crew had accessed the EOP data while Barack Obama was still president. But these newly released CIA notes establish that the EOP DNS data specifically targeted Trump “after his move to the White House.”

The memoranda expose two additional troubling details. While the earlier court filings created the appearance that the DNS data had merely been pulled from locations connected to Trump, the memoranda speak of the phones connected to “Wi-Fi used at Trump’s apartment.” It thus appears that the DNS data directly targeted the Wi-Fi networks specifically used by Trump.

Even more disconcerting are the repeated references in the memoranda to Trump’s physical location during the DNS lookups, whether at the Trump Tower, in Michigan, or at the White House. Sussmann even claimed, according to one of the CIA memoranda, “the phone was never noticed in two places at once, only around the President’s Movements.”

These newly revealed details suggest that Joffe and his team were surveilling Trump’s movements, leading one to wonder whether they were doing so by geolocation technology. The four data files Sussmann provided the CIA related to the Yotaphones likely hold the answer to that question.

Democrats Sicced the CIA on the President

But no matter how Joffe and others tracked Trump’s movements, that a political enemy of Trump would provide the CIA fraudulent-by-omission data to prompt an investigation into the sitting president of the United States is horrifying. These memoranda also make clear that was the goal, as Joffe had Sussmann bypass the FBI and go to great lengths to get the “intel” in the hands of the CIA.

In fact, Sussmann first attempted to peddle the Yotaphone data to the CIA in mid-December 2016, when he communicated with the CIA’s general counsel, Caroline Krass. But when those efforts failed, he contacted a former CIA employee, threatening to go to The New York Times if the CIA didn’t bite.

As noted above, the ploy worked, resulting in Sussmann’s meeting with two CIA agents on February 9, 2017. The memorandum from that meeting also suggests Sussmann wasn’t shooting straight with the CIA.

A Pyramid of Lies

Foremost, of course, was Sussmann’s claim “that he was not representing a particular client,” even though the previous month he had told the former CIA agent his client “cares about the security of the country.” Also, according to Durham, Sussmann continued to represent Joffe during this meeting.

Relatedly, Sussmann told the CIA that his “contacts” “preferred anonymity, citing a potential threat from the Russian Intelligence Services.” But as other court filings established, Joffe had previously shared information with intelligence agencies directly, making a claim he sought anonymity for safety reasons suspect.

Also false, according to the special counsel, was Sussmann’s claim during his February 9, 2017 meeting with the CIA that “one of his contacts,” who was a “clearance holder,” had collected the data from his “private collection.” While that may have been true about the data collected for the Trump Tower, Trump’s Central Park West apartment building, and Spectrum Health, the data related to the EOP was accessed and maintained by Joffe’s employer “as part of a sensitive arrangement whereby it provided DNS resolution services to the EOP.”

Joffe’s exploitation of the government’s EOP data to take down the president of the United States presents another huge scandal.

Sussmann also told the agents that while his firm supported several Democratic causes and officeholders, including the Democratic National Committee and former presidential candidate Hillary Clinton, his “work was unrelated to his reason for contacting the CIA.” But Joffe’s motivation in continuing to target Trump was far from apolitical, and Sussmann knew this.

While the special counsel’s office did not charge Sussmann with making a false statement to the CIA, Durham’s team seeks to present evidence of Sussmann’s representations to the CIA as evidence of his motive and intent to also deceive the FBI. But the scandal here goes much beyond Sussmann, and the Yotaphone hoax far surpasses what the public seems to realize—and represents yet another instance of Trump’s enemies spying on him.


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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3 Blockbuster Revelations From The Latest Special Counsel Court Filings

3 Blockbuster Revelations From The Latest Special Counsel Court Filings

New court filings in a Spygate case solve some long-running mysteries and hint at serious developments.

Late Friday, three new memoranda and a handful of exhibits hit the docket in Special Counsel John Durham’s criminal case against former Hillary Clinton campaign attorney Michael Sussmann. The filings analyzed about a dozen tedious issues concerning what evidence prosecutors may use at trial to prove Sussmann broke the law by lying to then-FBI General Counsel James Baker when he showed Baker information that supposedly indicated Donald Trump had a secret communications channel with the Russia-based Alfa Bank.

The evidentiary issues and the court’s resolution of them will prove vital when the trial begins next month. The special counsel’s office will try to prove Sussmann falsely told Baker he was not presenting the Alfa Bank information on behalf of a client, when in fact he represented both the Clinton campaign and tech executive Rodney Joffe. More on those evidentiary rules another time, but for now, here are three fascinating takeaways revealed in Friday’s flurry of court filings.

The Mystery of the Appearing Text Solved—Sort Of

Two weeks ago, when the wave of pre-trial evidentiary filings began, the special counsel’s office revealed for the first time that the day before Sussmann met with Baker, Sussmann sent this text to Baker’s personal cellphone: “Jim—it’s Michael Sussmann. I have something time-sensitive (and sensitive) I need to discuss. Do you have availability for a short meeting tomorrow? I’m coming on my own—not on behalf of a client or company—want to help the Bureau. Thanks.”

The existence of this text is huge because, as the special counsel stressed in its filing, it shows that “the night before the defendant met with the General Counsel, the defendant conveyed the same lie in writing.” That’s the “same lie” Sussmann then allegedly told Baker in person during their September 19, 2016 meeting, namely that he was not presenting the Alfa Bank-Trump information on behalf of a client.

The text message thus debunked one of the main themes floated by those defending Sussmann: that the special counsel “is bringing a false statement charge based on an oral statement allegedly made five years ago to a single witness that is unrecorded and unobserved by anyone else.”

The revelation of the text message, however, also raised numerous questions. From the court filings in the Sussmann case and comments made by Sussmann’s attorneys, it appeared neither side knew of the text message at the time the indictment dropped. Why not? And why was the text just now becoming known?

On Friday we learned the answers to these questions, in part.

“On March 4, 2022, Mr. Baker apparently retrieved from his personal phone copies of text messages that he had sent and received with Mr. Sussmann between 2016 and 2020,” Sussmann’s attorneys wrote in their brief. Sussmann further claimed the special counsel had said that “the text messages had been stored on the cloud and Mr. Baker had not thought to produce them earlier.”

So Durham did not know of this text message at the time of the indictment, nor for five more months. But it was Baker, not the Department of Justice’s Office of Inspector General, who provided the text.

The latter had been another possible source of the late-provided evidence, as the OIG had belatedly turned over two Baker cell phones to the special counsel’s office in January. Left unanswered, however, is why Baker was just now sharing with the special counsel’s office text messages he exchanged with Sussmann, including this coffin-nailing one.

The late reveal of this text message raises another question for the court to consider: Whether Sussmann’s failure to preserve this text message indicates Sussmann attempted to “obstruct justice.” In Friday’s court filings, Sussmann’s attorneys argued their client had no obligation to his former law firm, Perkins and Coie, to preserve the text message, so Sussmann’s failure to do so when he replaced his personal cellphone in November 2016 was not an attempt to “obstruct justice.” Conversely, the special counsel’s office wants the jury informed that Sussmann did not provide this text message to his employer, Perkins and Coie.

This issue will be yet another for the trial court to resolve. The more interesting question here concerns Baker’s behavior: after all, he is the one supposedly cooperating with the special counsel’s office.

Yes, the Executive Office of the President Spying Was About Trump

The second blockbuster revelation from Friday’s filings concerned the Russia Yota cell phone hoax Sussmann fed to the CIA during a February 9, 2017, meeting, allegedly on behalf of Joffe.

Approximately two months ago, the special counsel revealed how, as part of this hoax, Trump’s enemies surveilled the internet traffic at Trump Tower, his New York City apartment building, a Michigan business, and later the Executive Office of the President of the United States (EOP). Sussmann then provided that data to the CIA, telling agents there were “suspicious lookups” of the “internet protocol or IP addresses affiliated with a Russian mobile phone provider” connected to the supposedly rare Russian Yota phone.

According to the special counsel’s filings, Sussmann claimed “these lookups demonstrated that Trump and/or his associates were using supposedly rare, Russian-made wireless phones in the vicinity of the White House and other locations.”

When news broke that to craft the Yota phone hoax Joffe had accessed data his internet company obtained “as part of a sensitive arrangement whereby it provided DNS resolution services to the EOP,” the corrupt media framed that explosive detail as a nothingburger because the data appeared to have been collected while Barack Obama was still president.

For instance, The New York Times reported that the data relating to the White House’s EOP “came from Barack Obama’s presidency.” The Times then quoted two lawyers representing one of the researchers who aided Joffe: “To our knowledge,” the attorneys claimed, “all of the data they used was nonprivate DNS data from before Trump took office.”

Of course, as I noted at the time, as “a matter of pure logic, the data Sussmann presented to the CIA related to the White House must have somehow related to Trump or it would not ‘demonstrate’ that ‘Trump and/or his associates were using’ the Russian cell phones ‘in the vicinity of the White House.’” Most likely, “the data presented concerned the transition period”—a fact Durham’s team later confirmed in a filing noting Joffe exploited the EOP data “both before and after the Presidential election.”

Friday’s filings did more, however, than merely reconfirm that the EOP data Joffe exploited was collected after the election: Two exhibits filed by the special counsel revealed that the mining of the EOP data, as well as of the internet traffic at Trump Tower, Trump’s New York City apartment building, and a Michigan business, were targeted to Trump’s physical presence at those locations. This raises the further question of whether the cybersecurity experts were using geolocation technology to surveil Trump’s movements.

An exhibit filed Friday by the special counsel’s office, consisting of a “Memorandum of Conversation” that summarized a CIA agent’s conversation with Sussmann, revealed these new details. That memo reported that Sussmann had claimed “the presence and activity of a unique Russian made phone around President Trump.” The alleged use of this phone started in April 2016, when “Trump was working out of the Trump Tower on its Wi-Fi network.” After his move to the White House, “the same phone surfaced on the [Executive Office Building] network.”

The Yota cell phone that was purportedly “close to” Trump at the Trump Tower network also surfaced “at Wi-Fi used at Trump’s apartment at Grand Central Park West,” and “when Trump traveled to Michigan to interview a cabinet secretary the phone appeared with Trump in Michigan,” Sussmann claimed, according to the memo. Sussman also claimed “the phone was never noticed in two places at once, only around the President’s movements,” with Sussmann further stressing that “in December 2016 the phone disappeared from Trump Tower Wi-Fi network and surfaced on [the Executive Office Building network.”

In addition to establishing beyond doubt that the mining of the sensitive EOP data concerned Trump, these new details suggest it was not merely the Yota cell phones and the internet at locations connected to Trump being surveiled, but Trump’s own physical movements. This is far from the nothingburger the press has been pushing.

It’s Tech Researcher-2, David Dagon, Who Has Immunity

The third piece of news flowing from Friday’s filings concerns the special counsel’s grant of immunity to Georgia Tech researcher David Dagon—and only to Dagon. “The only witness currently immunized by the government, Researcher-2, was conferred with that status on July 28, 2021,” Durham’s memorandum explained. “And the Government immunized Researcher-2,” it continued, “because, among other reasons, at least five other witnesses who conducted work relating to the [Alfa Bank] allegations invoked (or indicated their intent to invoke) their right against self-incrimination.”

Durham’s decision to grant Dagon immunity proves intriguing for several reasons. First, unlike Researcher-1, who has been identified by his attorney as Georgia Tech researcher Manos Antonakakis, Dagon continued to work with Joffe and April Lorenzen to craft the second set of data Sussmann provided to the CIA related to the supposed Yota cellphone connection to Trump. The Sussmann indictment also alleged Dagon had drafted a white paper apparently related to the Alfa Bank allegations and that Sussmann asked Dagon to “speak on background with members of the media” regarding the Alfa Bank allegation.

An email from Fusion GPS’s Peter Fritsch, who was working with Sussmann and Joffe to peddle the Alfa Bank story, also told a media contact to “call David Dagon at Georgia tech” when a Reuters reporter indicated the publication had not run the story because of an inability to authenticate the data.

These details suggest Dagon holds a wealth of knowledge related to both the Alfa Bank hoax and the Yota cell phone charade, including various players’ parts in crafting the plots. More significantly, Dagon likely knows what information he and his fellow cyber researchers conveyed to Sussmann regarding the data and its weaknesses.

This insider’s view will prove significant if, at trial, Sussmann attempts to frame his motive in passing the information on to the FBI and CIA as altruistic. Likewise, Dagon’s firsthand knowledge of any efforts by Sussmann to peddle the Alfa Bank theory to the press will be important to the special counsel’s efforts to show Sussmann was working on behalf of the Clinton campaign.

Dagon also has the ability to counter Sussmann’s claims of ignorance about the technicalities of DNS data. The Georgia Tech researcher is prepared to testify that when he raised concerns with Sussmann about whether the Trump-Alfa Bank data had been ”lawfully collected and used,” in assuring him that there were no legal issues, Sussmann demonstrated an understanding of the data sources.

Yet, according to last week’s filings, Durham has not yet definitively decided which tech researchers to call as witnesses at Sussmann’s trial. Those seeking to more fully understand the scope of Spygate had better hope Dagon is among the witnesses called. From Friday’s filings, it is clear there is still much more to learn.


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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