Special Counsel Durham: your honor the firm & attorneys representing Sussman have countless conflicts. John, untimely much? Hey Kash I see you, again

Are. You. Kidding, Me? The fact Special Counsel Durham filed this motion with less than three months until Sussman’s trial begins is the dirty of dirtiest prosecution playbook. Hence I’m NOT impressed

…and Good Morning to you…

file411_dc

A post shared by File411 (@file411_dc)

Blessed be (not) this is long-haul insomnia and I suppose the silver lining is me publishing an article just after 3:15AM DC local time. Although it might have been the 3 cups of coffee I consumed shortly after 10PM. Either way my readers are the (maybe not so much) lucky recipients of the gift of insomnia…

Now before we dive head first into Special Counsel Durham’s late night February 11, 2022 filing — I would urge you to (re) read the February 2022 article (embedded below)… as that should provide you with a sufficient update to better understand the absurdity of Special Counsel Durham’s late night February 11, 2022 filing.

Special Counsel Durham “has no current recollection” Defendants Sussman & Danchenko case updates

Sussman retained Counsel (likely BEFORE) Sept 2021.

And you betcha I am going to throw down and make document number 25, bleed like only I know how. What Special Counsel Durham is doing is skipping right up to the line of gross prosecutorial misconduct. It is highly likely that Defendant Sussman retained his current counsel before September 2021. Meaning Special Counsel Durham has been aware that Sussman’s Defense Attorney (and Firm) might ←that being the operative word have a potential conflict. Yet here we are less than 86 days before the commencement of USA v Sussman’s criminal trial. Now that I’ve taken a few deep breaths let’s dive into the newly docketed filing. Also hat tip to my anonymous reader who made sure I saw the Government’s filing.

..Government (suddenly believes) there’s a conflict, yet waited SIX months to inform the Court…

In the late night February 11, 2022 the Government filed (see DDC-ECF for document 35 or via my Scribd Account) what I can only conclude as a head scratcher of a Motion. To be fair, I had to reread and parse out several sections of the Government’s Motion… before we dive in to the the Government’s Feb 11th Motion, I’d like for you to pay close attention to Special Counsel Durham’s conclusory statement on steroids:

• “it might be possible”

• “It may create a conflict”

• “it could create a conflict” and

• “Potential conflicts of interest might also arise“

The Government believes that any such waiver should be put on the record prior to trial. As set forth in further detail below, it is possible that conflicts of interest could arise from the fact that Latham and/or its employees

USA v Sussman Motion by USA Re: Conflicts

• (i) previously represented others in the Special Counsel’s investigation whose interests may conflict with those of the defendant,

• (ii) previously represented the defendant and his prior employer in connection with events that likely will be relevant at trial or at any sentencing, and

• (iii) maintained professional and/or personal relationships with individuals who could be witnesses in these proceedings.

Accordingly, for the reasons set forth below, the government respectfully requests that the Court inquire into the potential conflicts of interest set forth herein. Defense counsel has advised that the defendant has

Durham’s pivot, blame Obama Admin data mining isn’t exploiting DNS

…again the assumption here is the current firm representing Sussman —according to Special Counsel Durham “exploited” their business/contract relationship.

I’d now like to draw your attention to paragraph 5 of Doc #35 in its entity. And then pay close attention to what’s underlined and highlighted —because Durham’s own contradictory and conclusory arguments are not very persuasive… Assuming arguendo and pursuant to the (likely ←because I have yet to read/fine the Tech Company #1 Contract, specifically the terms and conditions of the Contract. But “mining” data, especially when there is (more than likely) a Services Contract —that’s not “illegal” —yet it is really curious that Special Counsel Durham didn’t charge Defendant Sussman with Conspiracy to Defraud the United Stares of America. Again Sussman was only indicted on one county of violating 18 U.S.C. §1001…

The Government’s evidence at trial will also establish that among the Internet data Tech Executive-1 and his associates exploited was domain name system (“DNS”) Internet traffic pertaining to

• (i) a particular healthcare provider,

• (ii) Trump Tower,

• (iii) Donald Trump’s Central Park West apartment building, and

• (iv) the Executive Office of the President of the United States (“EOP”). (Tech Executive-1’s employer, Internet Company-1, had come to access and maintain dedicated servers for the EOP as part of a sensitive arrangement…DNS resolution services to the EOP. Tech Executive-1 and his associates exploited this arrangement by mining the EOP’s DNS traffic and other data for the purpose of gathering derogatory information about Donald Trump.)

  

…potential conflicts of interest may exist or arise …

…and the following is really important, please pay attention: the very last sentence of subsection (iv) that’s a textbook conclusion argument the Government is making. Furthermore Special Counsel Durham is threading a very tight needle. By using prejudicial words like “exploiting, exploited” that is absolutely intentional. And I’m pretty sure this will set up a pretextual argument that Sussman’s prosecution is selective prosecution. However it’s not lost on me that Durham likely used Kash Patel as a witness. And hypothetically speaking if Sussman does argue “selective prosecution” —I hope his legal team pulls the HPSCI Travel Expense Reports and on cross hammer Patel about the Nunes leak aka “unmasking” — The Government argues that the Firm representing Sussman “has potential conflicts” in these three specific areas:

• 2016 Hillary Clinton’s Presidential Campaign,

• an unnamed Clinton Campaign Lawyer-1, and

• an unnamed Tech Executive-1.

…it is possible that the defendant… is currently or will become in an adversarial posture with his former employer. Latham – through its prior representation of Law Firm-1 – likely possesses confidential knowledge about Law Firm-1’s role in, and views concerning, the defendant’s past activities… the Government believes that potential conflicts of interest may exist or arise from Latham’s prior representations of Campaign Lawyer-1 and Law Firm-1 in this investigation.

…Latham also has represented the defendant, Law Firm-1, and Campaign Lawyer-1 in other matters that predated the existence of the Special Counsel’s investigation…

Look I know I’m being extremely critical of Special Counsel Durham and more broadly his office…but this 13 page motion is one of the more disorganized and quasi strange assertions made by Durham - also See December 2017 -HPSCI Transcript of Michael Sussman’s testimony…or via the House Document Repository Link for Document CPRT-116-IG00-D078

In September 2016 [redacted] shared similar information in a one-on-one meeting with FBI General Counsel James Baker. HPSCI, Executive Session of [redacted], Dec. 18, 2017. Around the same time as his meeting with FBI, [redacted] shared the information with journalists, [redacted] of Slate, who published an article at the end of October. HPSCI, Executive Session of [redacted] Dec. 18, 2017; [redacted] “Was a Trump Server Communicating With Russia?,” Slate, Oct. 31, 2016. Candidate Clinton promoted the [redacted] article to her social media followers the same day it was published.

Now let’s take a road trip down Kash Patel history lane

I don’t know why in 2022 there’s any confusion about Kash Patel (he was Numbnut’s aka Devin Nunes) chief of staff and was also the chief counsel for the HPSCI. This was KNOWN. It’s not new. Again this has been known for several years

Lest you forget this 2019 archived thread —because I did not

Furthermore I spent countless hours tracking down the Q3 HPSCI TRAVEL EXPENSES. If my memory serves me correctly not a single person on Twitter talked about Kash (and Doug) traveling to the UK to confront (aka stalk) Christopher Steele. Until I tweeted the HPSCI travel expenses and then all of a sudden people started tweeting about it —although technically I tweeted about it in late 2018 until my Mic account was suspended..

Oh you’d like to see receipts? Cool I can do that and let me be clear I could lay down yet another example of a certain Blue QANON once again taking my research and passing it off as his. He does this a lot. But I’d rather you focus on the facts containing herein…

So yes it does appear that Special Counsel Durham will call Kash Patel as a material witness in the forthcoming Sussman Trial. Again I could be wrong but I don’t think I am because I spent countless hours researching this back in 2019

Moreover in a September 2021 Interview (and no there is zero percent, like zero I am going to embed Kash Patel’s “Kash’s Corner interview) but below is an excerpt from the transcript of the interview - see what I emphasize in bold font…

…he wouldn’t tell me back then in 2016 who the client was…

Wait in 2016? Perhaps Patel was getting ahead of his skis because as previously noted Sussman’s HPSCI Depo occurred in 2017, not 2016…and it’s possible Patel simply made an error on which year it was. What’s also interesting is the HPSCI Depo transcript —redacted Kash Patel’s name, except on page 26 ( Document CPRT-116-IG00-D078) so it’s telling that Patel unmasked himself. Tiny. Tiny. Details are some of my favorite things…

Mr. Patel: When we were doing, when we were charged by the speaker at the time in 2016 to invest what they call the Russian active measures against the US election, part of our job under Chairman Nunes was to call in 60 some witnesses and swear them in under oath and depose them, question them, interrogate them.

And we depose principals, attorney generals, FBI directors, deputies, private individuals, Clinton campaign officers. And one of the people we interviewed and deposed was Michael Sussmann. And I actually took that deposition, and that deposition of Michael Sussmann sworn testimony from 2016 is cited in John Durham’s indictment from just the other week.

And what it says was, it takes part of the questioning and it says, were you, Michael Sussmann, working on behalf of anybody in regards to this Alfa Bank information? And he in the deposition that I took said, yes, it was on behalf of a client, and he repeated it and confirmed it, the deposition is in the indictment, it speaks for itself, but he wouldn’t tell me back then in 2016 who the client was, even though we knew.

They claimed attorney client privilege and that they wouldn’t let us get into who the campaign or who the figure was, but we had proven it back then, which is why we took that deposition with such rigor on those line of questions.

But. But. Your honor there are so many potential conflicts…

…Latham attorneys played a role in, and were witnesses to, this testimony and related conversations, it is possible that their past advice might give rise to a potential conflict of interest. For example, it is possible that motion practice surrounding the admissibility of this testimony may require consideration of issues such as the appropriate boundaries of the attorney-client privilege, the potential waiver of such privilege by the defendant or Tech Executive-1 and the Clinton Campaign, and/or the potential applicability of an advice of counsel defense

..Latham also has represented the defendant, Law Firm-1, and Campaign Lawyer-1 in other matters that predated the existence of the Special Counsel’s investigation but which are likely relevant to these proceedings… At numerous times during the defendant’s testimony, attorneys from Latham interjected to clarify and/or address issues relating to attorney-client privilege and other topics…

…the defendant acknowledged bringing the Russian Bank-1 allegations to the FBI General Counsel and to Agency-2 on behalf of a specific client, namely, Tech Executive-1

…Because the defendant was aware of and/or reviewed these media statements, the Government may seek to offer them as evidence pursuant to Rule 404(b) or other provisions of law to establish that the defendant sought to conceal the Clinton Campaign’s ties to the Russian Bank-1 allegations from the FBI and others. Latham’s advice concerning these statements therefore may become at issue in motions in limine, trial testimony, or other aspects of these proceedings

…one of the members of the defendant’s current defense team… previously worked as Special Counsel to the then-FBI Director from 2013 to 2014. In connection with that work, Defense Team Member-1 developed professional and/or personal relationships with several individuals who later were involved with and/or knowledgeable of the FBI’s investigation of the Russian Bank-1 allegations. For example, Defense Team Member-1 appears to have developed a professional relationship with the former FBI General Counsel to whom the defendant made his alleged false statement and who will likely be a central witness at trial…

…While it is unlikely that these past interactions and activities will give rise to an actual conflict of interest…

So why bring it up “the potential conflict of interest”, especially at this late stage in this criminal case? One reasonably informed assumption is; Special Counsel Durham decision to prosecute Sussman —the prosecution case against Sussman is not as strong as some might think… because Durham’s (not so) clever conclusory assumption is Sussman was the nexus for one entity “data mining” DNS for/from a second entity. Again to be clear there’s nothing criminal with data-mining specifically DNS data-mining. Especially if there’s a service contract and likely a lengthy statement/scope of work. Regardless of Durham narrative that the data mining was nefariousness. It’s not…and what is it that I always say about footnote?

R-E-A-D them, all of them. Because that’s where you can find the “good stuff”…

For Example Footnote # 1, which reads in part;

…One of the Latham attorneys who represented the defendant during this time period is now serving at the U.S. Department of Justice. It is the understanding of the Special Counsel’s Office that this attorney expeditiously and appropriately recused himself from any involvement in the Special Counsel’s investigation and these proceedings

For Example, footnote #3, also reads in part:

According to counsel for Law Firm-1, the attorneys at Law Firm-1 and Latham who participated in drafting and/or reviewing these statements were unaware at the time that the defendant had billed work on the Russian Bank-1 allegations to the Clinton Campaign.

For Example, footnote #4 which reads in part:

Following his employment at the FBI, Defense Team Member-1 worked from 2014 to early 2017 as an attorney in the EOP… involved in certain factual issues that the Government expects will be relevant at trial and any sentencing proceedings. Latham has represented… while employed at the EOP, Defense Team Member-1 had no role in the aforementioned events or arrangements involving Tech Executive-1, Internet Company# 1, and/or allegations involving the purported use of Russian-made phones. The Government similarly has not seen evidence to suggest that Defense Team Member-1 had any role in, or direct knowledge of, the Russian Bank-1 allegations or the FBI’s ensuing investigation.

… and perhaps my tired eyes are not reading footnote #4 correctly but it appears Defendant Sussman’s Defense Counsel and more broadly the firm representing Sussman —at least two of them, left the Firm and worked for the DOJ and it appears one of the two also left the DOJ, whereas one is still at the DOJ.

Oh COME on did you think the firm didn’t preemptively run a comprehensive conflicts check?

In my industry one of the very first things we do, is run a comprehensive “conflict check” —and then we will rerun an additional “conflict check” —Notwithstanding should a potential conflict emerge, we will then inform the client and prospective new client. Explaining to both there could be a conflict. And if both clients agree to representation by the firm, than is almost memorialized by some type of letter/waiver. Which is signed by all parties. Additionally large firms will also proactively build a virtual Chinese Wall that bifurcates the attorneys and clients.

Yet the some total of the Government’s recent filing —their arguments are odd and a few literally make zero sense. With less than three months before Sussman’s trial begins —only now does Special Counsel Durham lay down the “potential conflicts” card? So color me unimpressed… with Durham’s untimely “potential conflicts” argument. Nonetheless I’d be on the look out for a response from Sussman before the Court issues a ruling. But to be fair prosecutors raising the “potential conflicts flag” is somewhat SOP -what isn’t SOP is the untimeliness with <3 months before Sussman’s criminal trial is underway, in earnest…

Curcio hearing -something something: A hearing that investigates whether a conflict of interest exists. Typically the Judge will ask a series of questions to the defendant. Generally speaking, if both the prosecution and the defendant via his/her defense attorneys agree, that a conflict exists. That’s when the Court will schedule a Curcio Hearing. The oral examination occurs to get the parties on the record. My assumption is; since neither Sussman & the firm he hired, and the attorneys representing him do not share the Government’s concern that there are potentially numerous “conflict of interest” —that’s likely why the Government didn’t request a Curcio hearing. 🌶spicy speculation alert🌶 alternatively there could be a joint defense agreement might (operative word) be in play but I stand by my assertion that Durham’s recent filing is ridiculously underwhelming… again the prudent course of action; wait for Sussman to respond to the Government’s Motion/Notice and then wait and see what the Court’s final determines will be.

Again I could be wrong but if you read Durham’s 13 page filing