As predicted Sussman filed a Motion to Dismiss the ONE count Indictment & Special Counsel Durham’s response

Special Counsel John Durham knows his case against Sussman is weaker than weak. He knew exactly what he was doing with the conflict stunt, yet has the temerity to feign ignorance. NOT BUYING IT

And Happy Friday to you…

Before we dive into Durham’s Response to Sussman’s Response (as accurately predicted) Sussman’s February 17, 2022 Motion to Dismiss I do think it’s important that you read the various articles because that will provide you with the full arch of this case… but first here’s your daily dose of saltwater/ocean therapy. The sunsets on the S/SW side of the Cape tend to be spectacular… so enjoy!

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Michael Sussman Case:

I would recommend you read the previously published articles. To say that I know both Sussman’s & Danchenko’s criminal cases pretty well. That might be me downplaying just how closely I’ve followed both of these cases.

• September 21, 2021 -What do Tea Leaves, data scientists, pings & DNS lookups have in common? A much deeper dive into the Sussman indictment

• November 4, 2021 - Igor Danchenko Indictment & initial appearance in EDVA -updated with FISC Orders & DOJ-OIG investigation

• December 17, 2021 -Special Counsel Durham -needs more time-Judge —>Speedy Trial Act, full speed ahead.

• February 1, 2022 - Special Counsel Durham “has no current recollection” Defendants Sussman & Danchenko case updates

• February 13, 2022 - Special Counsel Durham: your honor the firm & attorneys representing Sussman have countless conflicts.

And sure I could, yet again do a point-by-counter-point break down of just how ridiculous Mr Blue QANON-sense unhinged and painfully incorrect his threads are but Louise did an excellent job eviscerating his threads and “tin-foil-hat” conspiracy theories. You can read more of Louise’s smack down. Part 1 found here and Part 2 can be found here. I would highly recommend that you read Louise’s articles because she is far more articulate than I am as it relates to our Intelligence Community and the FISC warrants. This link will take you to the FISC various Orders/Memorandums/Opinion

And the most recent February 15, 2022 article, which is embedded below…in addition unlike some on social media I trust and respect my readers that I can not recall any instance from January 2017 to present where I willfully withheld any court filing. My personal PACER account runs an average of $286 per quarter. I then upload those public (federal) Court filings to either my google drive or Scribd

Sussman’s Response is exactly what many of us correctly predicted

USA v Sussman various case updates:

As my standard SOP, I will provide you with both the ECF links and Scribd Links, the latter is I know how expensive the ECF is. Believe it or not, I can actually afford to pay for the Court filings and I do not need to resort to any grifts. Shocker I’m actually paid pretty handsomely and <$300 per quarter isn’t going to put any dent into my finances. Candidly there really is no sense in my readers having to spend an average of $2.40 per filing.

February 17, 2022 RESPONSE by USA

as to MICHAEL A. SUSSMANN re 37 Cross MOTION to Strike…Document number 40 was uploaded to the public docket shortly before 7PM, DC local time. See DDC-ECF… see Scribd Link for a highlighted and annotated copy of the Government’s response

..but to summarize Special Counsel John Durham’s argument — the Government argues that they did not add those two paragraphs, to inflame the media, chill any of the Defendant’s Constitutional Rights and if some in the Media (Fox News, NewsMax)

…Donald J Trump who literally called for the “execution” of Defendants like Sussman. Also who exactly is Robert Durham? Is he related to John Durham (please note my acerbic sarcasm)

…media have overstated, understated, or otherwise…misinterpreted facts contained in the Government’s Motion

…defense counsel has presumed the Government’s bad faith and asserts that the Special Counsel’s Office intentionally sought to politicize this case, inflame media coverage, and taint the jury pool. (Dkt. No. 36). That is simply not true. The Government included two paragraphs of limited additional factual detail in its Motion for valid and straightforward reasons.

…misinterpreted facts contained in the Government’s Motion, that does not in any way undermine the valid reasons for the Government’s inclusion of this information.…

…to apprise the Court of the factual basis for one of the potential conflicts described in the Government’s Motion, namely, that a member of the defense team was working for the Executive Office of the President of the United States (“EOP”) during relevant events that involved the EOP. If third parties or members of the media have overstated, understated, or otherwise…misinterpreted facts contained in the Government’s Motion, that does not in any way undermine the valid reasons for the Government’s inclusion of this information.

🌶Spicy Snark Sidebar:

..true story a certain Blue QANON-Sense had zero understanding of the following basic and I mean basic legalese; Motion in Limine, ultra vires, sua sponte, sine die, 5K1, Rules 29, 30, 31 and 35, actus reus, amicus curiae, arguendo, de novo, stare decisis, landmark rulings, elements, materiality, or what the acronym USAM was —he also had no idea what VCAR was or that the DOJ has separate USAM for RICO & VCAR —I mean the list is absolutely endless and yet he decided the “I’m in the intelligence community” grift was well pass its expiration date, he naturally pivoted to now purporting to be a preeminent legal expert. (literally laugh out loud when someone sends me a text of his mendacious tweets. Come on guys we are talking about the same dude that fell for the “Gorilla Chanel” …And yes, absolutely I laugh out loud at their horrible hlegal hot takes really are.

False Statement and Materiality…

It seems like this might be the appropriate time to reacquaint yourself with the actual statue is Sussman’s one count indictment:

18 U.S.C. §1001 Statements or entries generally —reads in part (specifically 18 U.S.C. §1001 (a)(2):

(a) Except as otherwise provided in this sec￾tion, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully…

(2) makes any materially false, fictitious, or fraudulent statement or representation;

Elements required —again MATERIALITY

Furthermore according to the Department of Justice - United States Attorney Manual USAM 9-42.001 - the Government must satisfy the following elements:

Whether the above acts are criminal depends on whether there is an affirmative response to each of the following questions:

1. Was the act or statement material?

2. Was the act within the jurisdiction of a department or agency of the United States? and

3. Was the act done knowingly and willfully?

MOTION to Dismiss Case by MICHAEL A. SUSSMANN.

And as accurately predicated Sussman filed a Motion to Dismiss (MTD) the one count indictment. See DDC-ECF (or via my Scribd Account) —and let me tell you - those of us who actually know what we are talking about have cited phrases like “materiality…material…overreach, selective prosecution, how is providing a tip considered prosecutable vis-a-vis 18 U.S.C. §1002…and it’s turns out that (as previously discussed) the materiality of Sussman’s alleges false statement… see the opening of Sussman’s MTD …

Unfortunately, the Special Counsel has done more than simply file a document identifying potential conflicts of interest… Rather, the Special Counsel has again made a filing in this case that unnecessarily includes prejudicial—and false—allegations that are irrelevant to his Motion and to the charged offense, and are plainly intended to politicize this case, inflame media coverage, and taint the jury pool."

Blackstone “...trifling collateral circumstances”—are immaterial and cannot give rise to criminal liability…

the law criminalizes only false statements that are material—false statements that matter because they can actually affect a specific decision of the government. By contrast, false statements about ancillary matters—false statements about what Blackstone called “trifling collateral circumstances”—are immaterial and cannot give rise to criminal liability.

“…false statement alleged in the Indictment is immaterial as a matter of law..”

It has long been a crime to make a false statement to the government. But the law criminalizes only false statements that are material—false statements that matter because they can actually affect a specific decision of the government… by contrast, false statements "about ancillary matters" are "immaterial and cannot give rise to criminal liability."

I will say Sussman’s argument - specifically an analogy about an ex-spouse isn’t an analogy that I would recommend using —but the central argument that Sussman repeatedly hammers is; materiality, Durham’s over-use of “could have…might have…perhaps possible…” the reason I’m specifically pointing this out is Sussman (competently) argues that his one statement/sentence with James Baker in no way should be construed as “material” and as previously noted the burden is on the Government to ensure the prerequisite three elements are proven…

… where individuals have been prosecuted for providing tips to government investigators, they have historically been charged with making a false statement only where the tip itself was alleged to be false, because that is the only statement that could affect the specific decision to commence an investigation…

… Indeed, the defense is aware of no case in which an individual has provided a tip to the government and has been charged with making any false statement other than providing a false tip. But that is exactly what has happened here."

…And tellingly, the Indictment includes no explanation as to why such information would have been material to the FBI’s decision whether or not to initiate an investigation when Tech Executive-1—far from being a stranger to the FBI—was someone with whom the FBI had a longstanding professional relationship of trust and who was one of the world’s leading experts regarding the kinds of information that Mr. Sussmann provided to the FBI.

“He met with the FBI, in other words, to provide a tip…There is no allegation in the indictment that the tip he provided was false. And there is no allegation that he believed the tip he provided was false. Rather, Mr. Sussmann has been charged with making a false statement about an entirely ancillary matter—about who his client may have been when he met with the FBI—which is a fact that even the Special Counsel’s own Indictment fails to allege had any effect on the FBI’s decision to open an investigation."

…purported false statement is immaterial as a matter of law…

Incidentally the amount of case lawm both from Federal District Court(s), several US Circuit Court of Appeals and numerous Supreme Court cases regarding “materiality” is required to give rise to criminal liability. In Sussman’s response, I believe it contains no less than 19 cases and case law regarding materiality. The point is (again the DOJ-USAM is crystal clear) that Special Counsel Durham is required to meet the three elements.

…Both precedent and the allegations of the Indictment therefore make clear that Mr. Sussmann’s purported false statement is immaterial as a matter of law. And it is altogether unsurprising that the discovery that the Special Counsel has produced only serves to reinforce that fact. Multiple individuals involved in the FBI’s subsequent investigation of the data provided by Mr. Sussmann have confirmed that the purported false statement had no impact on the investigation, including the decision whether to open it. The FBI also regularly accepts and investigates information provided by anonymous tipsters.

And to be candid I didn’t even consider the wide ranging impacts Special Counsel Durham’s prosecution of Sussman actually is. Notable Sussman argues that the conversation with James Baker was two lawyers speaking to each other. And it was implied that, at the Sussman spoke to James Baker at the behest of Rodney Joffe (who by the way is being falsely portrayed as an eccentric “researcher” —when it was Sussman who provided Durham’s Office with the name of Rodney Joffe of Neustar and it took Durham several months to even interview Joffe…

…to avoid a serious First Amendment problem, the materiality element must be construed as limiting Section 1001 prosecutions to those “likely to work particular and specific harm”—i.e., not alleged ancillary falsehoods that could not possibly influence the decision at issue. The resulting chill on First Amendment speech that would be felt if the Special Counsel’s expansive view of materiality prevails would be devastating. Well-intentioned lay people with truthful information about criminal wrongdoing would be discouraged from providing that information to law enforcement for fear of a felony prosecution under Section 1001.

…the tipsters who would be chilled are those providing truthful information about criminal wrongdoing that the FBI or other government agencies should be investigating. … The fear is that they would later be criminally prosecuted for (purportedly) lying about ancillary matters, such as their motivation for reporting the criminal wrongdoing in the first place. So, a jilted ex-wife would think twice about reporting her ex-husband’s extensive gun-smuggling operation lest the FBI later decide to prosecute her for failing to disclose her motivation for turning him in. If would-be tipsters or sources fear that an incomplete disclosure will subject them to criminal liability, the FBI would be seriously weakened in its ability to gather information from the public, and recruit and maintain confidential human sources.

This last section of Sussman’s Motion is important:

…That the alleged false statement at issue here was made by one lawyer to another (government) lawyer about the existence of an attorney-client relationship makes the Special Counsel’s overreach even more problematic… If lawyers fear criminal liability for their routine interactions with government lawyers, there will be an inevitable chilling effect upon day-to-day communications between lawyers and the government, and lawyer-client relationships more generally.

..the materiality element should not be read to authorize such a dangerous and unprecedented prosecution…

Subjecting lawyers to criminal scrutiny of this nature would inject fear into the attorney-client relationship and interfere with the ability of lawyers to zealously represent their clients… or to make effective arguments when approaching the government on behalf of their clients. The same policies that are enshrined in various privileges and in Section 1001 itself warrant a cautious and circumspect approach when deciding whether and how a false statement prosecution should proceed in the context of lawyer-to-lawyer communications about a client relationship….

So for now we just have to wait and see for the Court’s decision on the various motions still left on the table. But my original assessment remains unchanged —this case/indictment was and still is very weak. Irrespective of what a known Blue-QANON conspiracy theorist tweets. I cringed when I saw the various comments on his ridiculously long and atrocious threads.

I suppose we should collectively slow clap at the Blue-QANON-sense. Who recently decided to going MAGA-tin-foil-hat with a conspiracy theory that actually give MAGA-QANON a run for their money. He actually tried to tie the Obama Administration, the Intelligence Community and Sec Clinton to his nonsensical conspiracy theory —would the opposite occurred. And lastly just because I may have made a prediction on February 9th that Zev’s recent broadcast was in fact setting the groundwork to being E Garbage back to the Narrativ Platform. By E-Garbage’s own Tito & Xanax induced logic, then holy shittlestix that means Trump spied on Trump (see FPDS database search for all Neustar and/or Joffe contract awards) the fact E Garbage’s minions are doing on day three of their relentless attacks, trolling, and harassing of @EmptyWheel because she dared to point out the insanity that was his thread.

And to be clear in the past Marcy and I have had spirited debates. During the Michael Cohen Criminal proceedings I had realized that Marcy was looking at the wrong docket and instead of being an asshole, I gently guided her to the correct case/docket. Again I respect her analysis —even the one’s I don’t 100% agree with, but by and large we might take different paths to get to a conclusion but we often arrive at the same conclusion…

And like I previously stated (see comment) E Garbage’s hilariously long threads were nuttier than squirrel poop. After Zev shanked his previous collaborators, I casually texted a few friends and predicted that Zev did that solely to bring E Garbage back on his platform…

…as it turns out my (Feb 9th text) prediction was entirely accurate Lastly, I do not agree with what Zev did to Stephanie Koff aka @LinconlsBible. It was extremely shitty thing to do. Especially the allegations he made but offered zero in the form of evidence/proof. The fact, that of all people, I’m the one saying that, the irony is not lost on me. Just to reiterate all of the Court filings contained in this article can be obtained via my Scribd account. At any rate I have to hit the road, with any luck this will be the last Friday that I need to get up at this ungodly hour and drive a few hours to the State Capitol