By John Haughey
In August 2016, Clinton Campaign attorneys Marc Elias and Michael Sussmann met with Neustar Senior Vice President Rodney Joffe in their Perkins Coie Washington D.C. law offices and “encouraged” him to concoct a “narrative” tying the Trump Organization to a Russian bank, according to federal prosecutors.
But whether that concocted “narrative,” and the “decision tree” that seeded and circulated it to the FBI a month later, is relevant in Special Counsel John Durham’s case against Sussmann for making a false statement to the FBI remains uncertain.
United States District Judge Christopher Cooper during a 43-minute teleconference hearing Wednesday waded through the first of many disputes regarding what witnesses and evidence will be heard when Sussmann’s trial begins May 16.
Durham, in April 6 court filings, sought to compel the Democratic National Committee (DNC), the Clinton campaign, Fusion GPS, Perkins Coie, and others to provide documents and communications they’ve refused to hand over as allegedly protected by attorney-client privilege.
Since Monday, the DNC, Clinton Campaign, Fusion GPS and Perkins Coie have all petitioned to intervene in the case to challenge Durham’s motion.
Five witnesses called by Durham connected to the Clinton campaign have invoked their Fifth Amendment rights and will not cooperate with the investigation.
Cooper set Friday and Monday deadlines for all parties to file responses to all petitions and motions piling up in the case in anticipation of ferreting through them during an April 27 in-person hearing in his Washington, D.C., courtroom.
“There are a number of individuals seeking to file” motions in the case, he said. “There will be quite a cast. We need to figure out a way to streamline that” by merging “overlapping arguments.”
Attorneys Sean Berkowitz, Michael Bosworth, Natalie Hardwick Rao and Catherine Yao of Latham & Watkins LLP, representing Sussmann, in filings have called for restrictions on witness testimony and argue that notes taken by two FBI officials not be entered as evidence in the case.
Wednesday’s expedited hearing focused solely on their petitions to limit testimony by expert witnesses on the veracity of the data provided by the attorney presented to the FBI, and on how that information was gathered and circulated.
Durham alleges Sussmann knowingly lied in claiming to be acting as “a concerned citizen” on Sept. 19, 2016, when he gave Baker documents regarding alleged DNS (Domain Name System) traffic between Russia-based Alfa Bank and the Trump Organization.
During that meeting, Sussmann who specializes in cybersecurity litigation allegedly failed to tell Baker he had worked in the past for Joffe, whose firm monitored DNS traffic for the Executive Office, that his Perkins Coie law firm represented Clinton’s campaign committee, and that the conveyed data was gleaned, in part, from “opposition research” conducted by Fusion GPS and included hearsay allegations collected by former British intelligence officer Christopher Steele in the discredited “Steele” dossier.
Sussmann gave Baker three “white papers” that claimed two servers at Alfa Bank sent more than 2,700 “look-up” messages in 2016 to a Trump Organization-connected server operated by Spectrum Health, a managed care health care organization in Michigan.
According to one “white paper,” Spectrum Health’s IP address is a TOR exit node used exclusively by Alfa Bank.” Tor, short for The Onion Router, is open-source software that enables anonymous, presumably untraceable, communication.
However, as was easily determined, those 2,700 “look-ups” were dispatched by Cendyn, which does marketing and promotions for hotels, including for Trump hotels, through a spam email contractor, Philadelphia-based Listrak.
Prosecutors say Sussmann was knowledgeable enough to know the information he was conveying to the FBI, and later to the CIA, was spurious if not downright false.
Assistant U.S. Attorney Andrew DeFilippis told Cooper that exploring the “decision tree” that concocted the allegations is relevant because it illustrates Sussmann knew the data was suspect and was advancing it as part of a “joint venture” with the Clinton Campaign, DNC, and Joffe, orchestrated by Elias and Sussmann at Perkins Coie.
“This project was originated with tech executive 1 (Joffe) and was carried out with the help of agents of the Clinton Campaign,” DeFilippis said. “There were meetings with campaign lawyer one (Elias) with the defendant (Sussmann) in which (Joffe) is encouraged to create imprints and a narrative tying a presidential candidate to Russia through” the data conveyed to the FBI.
Sussmann’s attorneys insist the “decision tree” is not relevant, or material, to the charge lodged against their client—lying to the FBI—especially since Durham had previously said the veracity of that conveyed information, and how it was gathered, was not part of his investigation.
“The government (said) it did not intend to (address) the accuracy of the data” with “the caveat” it would do so if cross-examination made it relevant, argued Sussmann attorney Sean Berkowitz, noting the defense “has no plans to offer evidence that there was a link between Trump servers and the Alfa Bank” because it has nothing to do with the false statement charge.
Berkowitz questioned Durham’s justification for calling as expert witnesses technicians who cobbled together the DNS “white papers” as well as FBI Special Agent David Martin, the agency’s Cyber Technical Analysis Unit Chief.
Durham in filings said the “primary purpose” of Martin’s testimony “will be to describe for the jury the basic mechanics, architecture, and terminology of the DNS system and DNS data so that they can understand various technical concepts that appear in documents and other evidence that the Government will offer at trial.”
Berkowitz said Durham’s motion to call Martin as a witness states the agent would testify that “someone with basic technical knowledge would know the assertions were inaccurate and lack support,” thus implying “that someone with Mr. Sussmann’s background could not have reasonably believed” the conclusions in the “white papers.”
“We don’t want that allowed, we want to know where the lines are” in what Martin will testify about, he said.
“Let’s stop here,” Cooper said before querying DeFilippis if “there is something about the data on its face that is so unbelievable that there is no way (Sussmann) could have believed that? Other than that, why do you need to get into the actual data?”
“We have to distinguish the truth of the allegation” and “where the data was cherry-picked” to concoct the “narrative” and dispel that there was a “secret channel” between the Trump Organization and Russia, DeFilippis said.
Cooper noted the FBI has already concluded the data “did not support the existence of a secret communication channel” but what the prosecution seeks “is slightly different” in saying that, because the allegations were proven to be unsubstantiated, that they were concocted as part of a conspiracy.
“I guess it is difficult to prove a negative conclusively,” DeFilippis said.
Berkowitz said the defense “will have comfort” if Durham stuck with his statement not “to offer expert testimony about the accuracy of conclusions,” but said questioning Martin and other witnesses about the veracity of “underlying information” in the case against Sussmann “is irrelevant.”
“It will create a trial within a trial” that would stray “into levels of detail about what multiple witnesses may or may not have said when the FBI interviewed them” and “prejudice the jury,” he said.
Durham’s latest filings, just weeks before the trial is scheduled to begin, “troubles us,” Berkowitz said, because the special counsel now wants to discuss “Mr. Sussmann’s motivations and what the FBI did or didn’t do because of the information,” which would make it a different case—essentially, a conspiracy case.
Conjecture that “if it had known the truth, as the government purports it to be, (the FBI) would have taken different steps” in response to the allegation “is a whole different kettle of fish. We could be here all summer trying this case,” he said.
DeFilippis said technicians are viable witnesses because “they are most capable of explaining what the servers are” and contributed to the “white papers” that Sussmann delivered to Baker.
“We do think it is relevant and highly probative for a jury to at least hear from these companies” as part of the “decision tree” that compiled the data, he said.
“It could have affected the way the FBI approached those companies, followed up with them, or didn’t follow up with them,” Cooper said.
“One of the white papers acknowledged that this was an email spam server and tried to explain it away,” DeFilippis said. “Those companies are in the mix of the allegations and, more importantly, the misrepresentation.
“Mr. Sussmann certainly did not have the expertise” to ascertain the validity of the data, Berkowitz said, noting “there are over 10,000 pages in one exhibit” provided by Durham.
Determining if a statement is false is one thing, he said, ascertaining if it was knowingly fabricated and circulated is something else altogether and “a dangerous game.”
“If you are talking about motives, you need to find some type of direct evidence,” Berkowitz said. “Finding something is not substantiated is not saying it is false. We do not want to get into that game. We don’t think it is relevant.”
Sussmann’s attorneys also don’t want the consultant who had previously concluded on behalf of the CIA that the data “not plausible” and “user-generated” called as a witness.
The CIA’s conclusions are “a separate issue from the FBI. We don’t understand why these CIA analyses of the data are relevant,” Berkowitz said, noting the analysis was conducted by someone “that special counsel no longer has on witness list.
“Regardless of that, the evidence and argument are not relevant,” he continued, adding, “The CIA’s conclusion does not suggest the data was fabricated” which is “inconsistent with what the FBI concluded.”
DeFilippis said the government should be “allowed to advance the basic conclusion that this is not a true allegation” and that determination “is relevant in the overall arc of the FBI’s investigation.”
Berkowitz said Cooper should not allow the government to engage in “tradeoffs” about what can be admitted and what cannot.
“We do not intend to get into the accuracy of the data. Everything (DeFilippis) has said in this call suggests this is exactly what they intend to get into,” he said. “This is not about we may do this, and we may do that. This is about my clients’ right to be tried on the facts relevant in this case.”
As of 6 p.m. EST Wednesday, Cooper had not issued rulings on Sussmann’s two petitions.