Friday, April 15th was a busy day in the Michael Sussmann case.
Both the Sussmann defense team and the Special Counsel’s prosecution team made a series of filings.
Sussmann is the former Hillary Clinton campaign lawyer who has been indicted by Special Counsel John Durham for making a false statement to a federal official.
Last Week the Defense’s Motion To Dismiss Sussmann’s Indictment Was Denied
Briefly: Sussmann had asked the judge to rule on his own prior to trial that Sussmann’s lie to FBI General Counsel James Baker, the offense for which he had been indicted, was **immaterial** to the FBI opening an investigation into the Alfa Bank hoax, and dismiss Durham’s indictment.
Durham had countered by arguing that the established case law and precedent clearly shows that the question of materiality was up to jury to make at trial, and pointed out that all of the particular cases cited in Sussmann’s own Motion To Dismiss had all been made **after** the jury had rendered a verdict.
If the fix was in, all Cooper had to do was grant Sussmann's Motion To Dismiss the Special Counsel's indictment against him.
This will cause some black pillers to have to shift the goalposts.
Busy Day On The 15th
Nothing much happened for a few days, and then the 15th arrived and there was suddenly a flurry of filing activity.
The defense went first, making a series of filings on the court docket involving attempts to drastically limit what the Special Counsel can present as evidence in Sussmann’s upcoming trial, which is currently slated to begin on May 16th.
Reading through the filings, it quickly became apparent to me that Sussmann's trying to have the judge exclude most of the key evidence against him before the trial starts.
This is a Hail Mary filing and not a very well argued one.
Then, late that night it was the Durham Special Counsel’s turn, and a new filing suddenly appeared from them.
Special Counsel Durham files CIA notes from Michael Sussmann's February 2017 meeting with the CIA.
"In December 2016, the [Russian] Yota-phone was seen connecting to WIFI from the Executive Office of the President (the White House)."
This is confirmation that they spied on President-Elect Trump in December 2016.
Techno then followed up later with this, having looked the filings over:
Special Counsel John Durham filed something very significant in the Michael Sussmann case -
How Sussmann and his client (Joffe) used data from the Trump Transition - including when Trump was in the White House.
The CIA findings that this data was not plausible and was "user created"
And the immunity Durham has given to witnesses - including one from Fusion GPS.
Before digging into the new Durham filing, I made this comment on my Telegram channel, based on the screenshot provided by Techno Fog:
This proves that Hillary Clinton’s private spy network comprised of federal cyber contractors were indeed abusing and exploiting their access to federal communications collection databases and that they were mining those databases for non public data targeting Trump and his close associates.
These criminal cyber contractors were stealing federal data [some of it very likely classified] off the databases and giving it to other Clinton political operatives such as Michael Sussmann.
And now Durham has just unveiled definitive evidence these criminal cyber contractors were illegally stealing data from out of the EOP during the transition period after Trump won the 2016 election and giving that stolen data to the Clinton campaign’s dirty tricks operatives.
Durham’s Reply To Sussmann’s Motion To Exclude The FBI’s Cyber Unit Chief From Testifying At His Trial As An Expert Witness
One of Durham’s filings is his rebuttal to the defense team's Motion To Exclude the government's expert witness, FBI Cyber Unit Chief David Martin from testifying at the upcoming trial, scheduled to begin on May 16.
Durham informed the Sussmann defense team on March 30 that the government would be calling an expert witness to the stand to testify at the trial and explain to the jury what DNS data is, and what the Alfa Bank white papers were claiming about DNS data.
Durham also warned that if Sussmann or any defense witness attempts to claim the Alfa Bank hoax was authentic and really does show Trump/Russia communication, their expert witness is prepared to reply to that.
This has caused Sussmann's team to absolutely FREAK OUT.
They don't want any cyber expert explaining DNS lookup data to the jury or what the DNS allegations were in the Alfa Bank hoax that Sussmann handed off to the FBI. And how some of this DNS data appears to have been fabricated. And how anyone with even a basic understanding of the DNS system would have realized the Alfa Bank “evidence” was bogus.
So they immediately filed with the court a Motion To Exclude the government's expert witness. They don’t want FBI Cyber Unit Chief David Martin anywhere near the jury.
Now Durham just filed his rebuttal argument to the defense's Motion to Exclude.
This part right here is really why the defense team is trying to prevent Martin from testifying at Sussmann's trial.
Sussmann - if he's really intent on going to trial and professing his innocence - wants to be able to testify on the stand - and have others testify for him - that he really honestly and truly believed the Alfa Bank allegations were real. He wants to testify he most certainly did not believe that the Alfa Bank project was a hoax or fake. He was not making stuff up for the Clinton campaign as part of dirty trick operation to vilify Donald Trump as a distraction from Hillary Clinton's own email server scandal, you see.
Sussmann’s intention appears to be to get on the stand and say that he and the people on the cyber team he was working with via Rodney Joffe at Neustar believed there really was a hidden communications line between Alfa Bank and Trump Tower.
But the SCO has now told him if he gets up there and says that, or any other defense witness claims that, Durham will have Martin to rebut that definitely with expert testimony.
The first objection that Sussmann's defense team makes to having FBI Cyber Unit Chief David Martin testify as an expert witness is that they claim the Special Counsel's Office waited to long to notify them that they were going to call an expert witness, tell them who that expert witness was, and what this expert would testify to.
Durham points out that the Federal Rule of Criminal Procedure 16 [FRCP 16] does not contain any specific timing requirement in it but the courts have ruled many times on what is considered to be a sufficient amount of time. And six weeks before trial is plenty of time.
March 30, the date the defense received notice that Martin would be testifying, was almost exactly 6 weeks from the time of the trial date [May 16] that Judge Christopher Cooper had previously set.
A month and a half is plenty of time, and Durham cites case law on this where the D.C. Circuit [which is where this case is being held] has ruled 6 weeks prior to trial is sufficient notice.
The only times the court has found notice of expert testimony by the government to be untimely was when notice was given only on the eve of the trial's start date.
If Durham had waited until around May 6th to inform the defense he'd be calling an expert witness, just 10 days before the trial starts, then the defense would have real grounds for objecting.
In United States v. Martinez [657 F.3d 811, 817 - 9th Cir. 2011] the court found the government waiting until just five days before trial to notify the defense of an expert witness was not timely.
In United States v. Johnson [228 F.3d 920, 922, 926 - 8th Cir. 2000] the prosecutors waited until just six days before trial to notify the defense they were calling in an expert witness, and the court ruled this notification was untimely.
Then Durham counters yet again by showing several of the cases cited by Sussmann's defense team actually help make Durham's case for him.
Both cases cited by Sussmann's team - US v. Day and US vs. Wilson, involve defense teams that waited far too long to notify the court of their intention to call expert witnesses.
In US v. Day the court excluded the expert witness the defense wanted to call to testify because the defense only gave the court an extremely vague two page report less than 14 days before the trial date.
In US v. Wilson, the court excluded the defense's expert witness because the defense waited until less than one week before trial to notify the court it intended to call that witness.
In contrast, Durham gave the defense a full six weeks notice of his intention to bring Martin in as his expert witness. And he didn't give them a vague 2 page report about what Martin will testify to, either.
Part of the Sussmann team's objections is that they didn't get sufficient notice that Martin would be called as a rebuttal expert witness.
Durham argues the Special Counsel's Office [SCO] has actually gone above it's Rule 16 requirements.
Durham points out the Rule 16 obligations only cover the government's case-in-chief.
That is, the case they give in the opening statement of the trial, and then the presentation of their case against the defendant, at which point the government rests and the defense begins to make it's own case.
So the government's case-in-chief extends only from the opening statement to the point the government rests.
However, after the defense has made it's own case to the jury, the government gets to make it's rebuttal case to the defense's presentation.
Durham can't yet tell Sussmann's team exactly what Martin would testify to as an expert rebuttal witness because the defense hasn't made it's case yet.
What kind of rebuttal testimony Martin would make depends on what kind of defense Sussmann mounts at trial.
And Durham has already warned the defense that if they have Sussmann or any other defense witness get on the stand and claim the DNS data really does show a real line of communication between Trump Tower and the Alfa Bank, and by inference, secret communications between Donald Trump and the Russian government, Martin will be called to give expert testimony rebutting those claims.
It's been established case law with precedent since 1974 that "Rebuttal witnesses are a recognized exception to all witness disclosure requirements." - US vs. Windham [5th Cir. 1974]
Neither side knows what kind of expert testimony will be needed or what particular expert witnesses they will call until they've heard the other side's case in the courtroom.
Thus, neither side is required to disclose to the other side exactly who their expert rebuttal witnesses will be before the trial starts.
So Durham is in fact, correct. He has gone far above his obligations under Rule 16 by informing the defense he'll call Martin as his rebuttal witness if Sussmann or anyone else attempts to claim on the stand the Alfa Bank allegations about Trump/Russia collusion have real merit.
What Sussmann and the defense want to be able to do is spin their own tale about DNS data and what the Alfa Bank white papers and thumb drives show.
This is another reason they don't want Martin testifying.
They only want the jury hearing Sussmann and Joffe's version of what they were doing and what the DNS data shows.
Well they had to try. Sussmann's defense team actually claims to the court that they are objecting to FBI Cyber Unit Chief David Martin testifying as an expert witness because they say the Durham SCO did not disclose to them how Martin is "qualified to testify specifically about DNS or TOR."
🤷♂️😬
You are reading that correctly. Sussmann's team had the balls to say "You didn't show us why the guy who is the Chief of the FBI's Cyber Unit is qualified to testify as an expert witness on what DNS or TOR are to a jury."
Durham says: “Tell you what. I'll drop a big report on Agent Martin's qualifications in your lap before the trial gets here. But you know you're reaching here, guys."
In the last section of this rebuttal filing, Durham addresses the defense's claim that the expert testimony FBI Cyber Chief Martin would give at trail would be prejudicial to the defendant.
Defense claims Martin will 'twist the evidence' to make it say stuff it doesn't actually say, that he will sell an inaccurate take of the DNS data and Alfa Bank papers and thumb drives to the jury in order to get Sussmann convicted.
Durham counters this by noting that in previous discussions with the defense, they had informed the SCO that they did not intend to have Sussmann or any defense witness offer evidence or testimony that would imply or prove the authenticity of the DNS data as far as establishing a real line of communication between Trump Tower and Moscow.
One has to wonder why if the Sussmann team already made this claim to Durham, they are still seeking to prevent Martin's testimony as a rebuttal witness.
Martin's only supposed to be brought in as such if Sussmann or another defense witness alleges the Trump/Russia communication allegation is true or was believed to be real. So this warning from Durham seems to be to remind Sussmann and all potential defense witnesses that they had better not renege on their earlier statements about not bringing up the validity or authenticity of the Alfa Bank allegations at trial.
That's how Durham's team ends the filing: noting that Martin will only be called as a rebuttal witness if the defense proffers the jury a claim attempting the prove the accuracy and/or reliability of the data the defendant provided to the FBI and the CIA.
So as long as the defense keeps it's word and doesn't attempt to do that they have nothing to fear from David Martin. 😉
Thus I conclude my survey of the Durham rebuttal to the defense's Motion To Exclude.
Durham’s Rebuttal To Defense’s Motion To Compel The Government To Grant Rodney Joffe Immunity So He Can Testify As A Witness For The Defense
What a strange set of circumstances here. Only the prosecution can grant immunity to witnesses. Sussmann’s legal team has submitted a motion to the court asking Judge Cooper to compel Durham to immunize Rodney Joffe and grant him complete immunity to that Joffe can then get on the stand and testify in Sussmann’s defense. And if Judge Cooper won’t grant Joffe the requested immunity, they are then demanding he dismiss the case.
This is a transparent gambit to keep Joffe from spilling the beans and testifying truthfully about his work with Sussmann on the construction of the Alfa Bank hoax.
If Joffe is granted immunity in exchange for his testimony, then he can't later be charged for any criminal conduct he's forced to reveal under oath, should he not assert 5th Amendment rights.
It should be kind of obvious that if Joffe is granted immunity, he's got no compelling reason to tell the truth on the stand. He can say whatever he wants to, and Sussmann obviously hopes Joffee would use immunity to lie and help his defense.
But if he has no immunity, then under oath on the stand if he lies or tells the truth about criminal activity, he can be charged for that later.
Only in extraordinary cases has the court agreed that the prosecution must grant full immunity to a defense witness before trial.
That circuit precedent was established in 1989 in the case US v. Lugg and the case US v. Praetorius.
Only if the court has seen grievous and provable prosecutorial misconduct has immunity been granted to a defense witness.
Needless to say, despite the Sussmann defense team's remonstrations, Judge Cooper hasn't caught the Durham SCO engaging any kind of misconduct, grievous or otherwise.
The applicable law here when it comes to demands to immunize a defense witness in order to keep them from invoking their Fifth Amendment rights is US v. Ebbers [2nd Cir. 2006].
Here's what's happening: Sussmann wants to call Rodney Joffe to the stand as a defense witness because he thinks Joffe will give testimony that will help his case with the jury.
BUT HERE'S THE PROBLEM.
Joffe has done nothing but invoke his 5th Amendment right ever since he was exposed in this scandal.
Sussmann's team knows if Joffe is not given immunity [and maybe even if he is], if he’s called to the stand he's not gonna say shit and he's just gonna invoke his 5th amendment right against self-incrimination.
So Sussmann is demanding that Judge Cooper ORDER Durham to give Joffe immunity. This is one of the weakest arguments I’ve ever seen. I fully expect Judge Cooper to deny the motion.
Needless to say, Durham has no interest in giving the guy who was quarterbacking the entire private federal contractor spy network for Hillary Clinton immunity just so he can testify for Sussmann's defense in this trial.
Durham says unless the court can find some gross prosecutorial misconduct by his team, there's no precedent for granting a defense witness immunity.
Durham points out ever since his office first contacted Joffe through his lawyers, he has consistently refused any cooperation and has invoked his 5th amendment rights.
In fact, as you can see from footnote [4], the Special Counsel's Office hasn't even had one face to face meeting with Joffe's lawyers. The one time a meeting had been agreed upon, Joffe changed his mind and had his lawyer cancel the meeting.
This appears to mean that Joffe has never appeared before a grand jury to testify. He made it abundantly clear to the SCO he would invoke the 5th.
Durham then says Joffe remains an ongoing subject of his criminal investigation.
Sussmann's lawyers attempt to prove two examples of prosecutorial misconduct so the court will grant Joffe immunity so he can testify for Sussmann's defense:
1. They claim the SCO has threatened him.
Which is absurd. Durham's done nothing close to any of the examples in the cases they cite.
2. Sussmann tries to claim the 5 year statute of limitations has expired so Joffe is being threatened by the SCO for something that can't be prosecuted anyway.
Durham scoffs at this. The defense does not know what evidence the government has collected and continues to collect, or what violations of the law the SCO is investigating.
Remember, the 5 year clock does not start ticking until the last overt act is taken to further the criminal conspiracy.
Who knows what Sussmann's last overt act was to keep the Trump/Russia hoax conspiracy going? And since it's a conspiracy, any of Sussmann's coconspirators could have done something in 2018, 2019, 2020, hell maybe even THIS YEAR to try to cover up what they did.
Trying to continue covering up and hiding your criminal conspiracy is...guess what?
AN OVERT ACT TO FURTHER THE CONSPIRACY.
So Durham quickly dispenses with the "statute already ran out!" dodge.
Sussmann then tries to argue that Durham has been discriminatory in how he grants immunity, only giving it to people who are cooperating and helping him build his case.
[loud farting sound here as I laugh so hard I can't help it]
Here's Durham revealing that in as far as the Alfa Bank hoax investigation goes, only ONE PERSON has been granted immunity thus far: "Researcher-2".
And "Researcher-2" was granted this immunity back on July 28 of 2021.
That was before Sussmann was indicted later in September of 2021.
So Sussmann trying to argue that the SCO is discriminatory in how it is granting immunity doesn't fly.
Durham reveals they pursued Researcher-2's immunity and granted a deal because 5 others involved in this ‘joint venture’ stonewalled his investigators and his grand jury by pleading the 5th.
Key detail here. We know Joffe has done nothing but invoke the 5th. Now the SCO reveals that five others involved in this have also done nothing but invoke the 5th.
This led the SCO to pursue Researcher-2 and come to a deal with this person where they are immunized/granted immunity in exchange for their cooperation and testimony against the others.
Sussmann's whining to the court that it's not FAIR that Durham granted a prosecution turncoat , a former member of his own Alfa Bank criminal conspiracy, immunity but is refusing to give it to Joffe so he can testify on Sussmann's behalf at his trial.
Durham Reveals That It Looked Like Sussmann Attempted To Hide Text Messages From Him But It’s OK Because He Got Them From Someone Else
What else did they find on those phones that wasn't turned over when it should have been?
If Sussmann tried to avoid discovery obligations by holding back text messages, Durham has caught him at it. And he just let him know he caught him at it.
Thanks for working so hard to keep us informed and up to date with the lunacy we are all facing.
Thanks brian! Love the articles!! Great read as always! 👍