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

My position on these Criminal cases remains changed. I believe that Durham’s office is engaging in selective prosecution which is mainly buttressed by political motivations. This is now the 4th time

There are largely two camps concerning Special Counsel John Durham; 1) he’s doing a solid investigation or 2) Durham is engaging in selective prosecution. For obvious reasons I’m in the 2nd camp. At the onset of Special Counsel John Durham’s appointment my position has been: facts matter, pay attention to neighboring federal district courts and “that’s your evidence” because both of the indictments brought by Special Counsel Durham are beyond weak. And it stinks of “politically motivated aka selective prosecution”… My goal is to bring you up to speed on both cases. On a side note -I’ll never fully understand why some in the media have neglected to link the two cases but then again I’m not a credentialed reporter… I just happen to consistently notice very tiny details.

Jan 2022 Prerequisite background on both cases:

I think it might be beneficial for you to re-read the various articles, that I’ve embedded below in reverse chronological order

• See September 2021 article: What do Tea Leaves, data scientists, pings & DNS lookups have in common?

• See November 4, 2021 article: Igor Danchenko Indictment & initial appearance in EDVA

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

Defendants DANCHENKO and SUSSMAN are linked:

It is pretty important that you read those articles because it is very easy to overlook how the Sussman and Danchenko indictments are inextricably linked. And I stand behind my previous assertion that Special Counsel Durham’s miscalculation of indicting Sussman first and then Danchenko is largely lost on most. Without going into the complex and nuanced legalese - but factoring in Danchenko (who was indicted after Sussman) his EDVA Trial was originally set for April 2022 and it was recently rescheduled to October 2022. I have previously discussed the problematic nature of having DANCHENKO criminal case going before SUSSMAN (see the Dec 17 2021 article embedded above) that it could create a significant problem for Special Counsel Durham’s securing a conviction against DANCHENKO. Then with very little fanfare or explanation

Defendant Igor DANCHENKO EDVA Case Update

• On November 10, 2021 EDVA-ECF for ORDER with respect to Jury Trial instructions. Which again reaffirms the April 2022 Trial date

• See December 17, 2021 First MOTION to Inquire Re Potential Conflict by USA as to Igor Y. Danchenko via EDVA-ECF ..this is a relatively important filing because the Government brought up the argument that DANCHENKO’s attorneys had previously worked for and with the 2016 Hillary for President campaign and therefore could be construed as a conflicting.

• On January 12, 2022 the following minute entry which moved his trial to October 2022. See EDVA-ECF for Document No 41 (see Scribd) which is an Order from the Court setting a new trial scheduled specifically jury instructions. Additionally on Jan 12th the Court entered an order RE: potential conflicts previously raised by Special Counsel Durham (

  • Minute Entry for proceedings held before District Judge Anthony J. Trenga: Status Conference as to Igor Y. Danchenko held on 1/12/2022. U.S. appeared through Andrew DeFillipis, Jonathan Algor, IV, and Michael Keilty. Defendant appeared with counsel, Danny Onorato. Defendant orally waives speedy trial.

  • Motions are to be submitted by September 2, 2022. Jury Trial reset for 10/11/2022 at 10:00 AM in Alexandria Courtroom 701 before District Judge Anthony J. Trenga. Status Conference before Trial reset for 10/11/2022 at 09:00 AM before District Judge Anthony J. Trenga. Defendant continued on bond

On a parallel track you have the USA v SUSSMAN (via DDC) Defendant SUSSMAN had previously (and successfully) argued to the DDC that his criminal trial date should not be further delayed. Specifically citing Defendant DANCHENKO EDVA case was (operative word) scheduled to commence in April 2022. At the time the Government Special Counsel Durham had previously requested 2 continuances.

On December 14, 2021 the DDC split the difference (see the embedding Dec 2021 article above) and scheduled Defendant Sussman’s trail for May 2022 (which was still after Defendant DANCHENKO’s April 2022) but as you’ll note in January 2022 the EDVA Court reached Danchenko’s trial from April 2022 to October 2022 at the request of Special Counsel Durham… not to belabor my point the classic “which came first the chicken or the egg” it was obvious to me that Durham needed to secure Sussman’s conviction in order to further buttress his prosecution of Igor Danchenko. I noted months ago that Durham miscalculated and he needed Sussman to go first, not Danchenko. Yes I know that’s kind of confusing but I certainly wish reporters would better explain the nuances at play in these two inextricably linked cases.

Defendant Michael Sussman DDC Case update

On January 25, 2022 Special Counsel Durham’s office filed the following”

• MOTION to Continue Deadlines for Discovery by USA as to MICHAEL A. SUSSMANN. See DDC-ECF for Doc # 23 & 23-1 (or see via Scribd)

  

See page 2, paragraph 3 which reads in part - but pay close attention to what I’ve highlighted and emphasized in bold font:

…Permitting the Government to search for and produce such residual discovery – particularly where the Special Counsel maintains an active, ongoing criminal investigation – is both reasonable and consistent with the Government’s practices in other cases. To the extent the defense believes that any discovery produced after February 11, 2022 might prejudice the defendant or require the defense to amend or supplement any of its motions, the Government would not object to any reasonable adjournments or additional filings by the defense.

However starting on page 14 of 19 this is what you need to pay particular attention to - you’ll note that Special Counsel Durham’s filing repeatedly attempts to put the onus on the DOJ-OIG -note how many times Durham states “for the first time”… in their January 25, 2022 filing. And not to be a buzz kill but Defendant Sussman was indicted on one yes ONE count of making false statements.

Yet inconceivably Special Counsel Durham repeatedly represents that this case is “extremely complicated” —moreover that Durham’s investigation is “still ongoing and complicated”… and that’s Durham’s main argument for requesting

“…the Court should grant the Government’s request to permit the production of any residual discovery on or before March 18, 2022….”

Pay close attention to Paragraph 10(a)(ii) this is more important than I can properly explain… which reads in part:

Second, in early January 2022, the Special Counsel’s Office learned for the first time that the OIG currently possesses two FBI cellphones of the former FBI General Counsel to whom the defendant made his alleged false statement, along with forensic reports analyzing those cellphones. Since learning of the OIG’s possession of these cellphones, the Government has been working diligently to review their contents for discoverable materials. The Government expects to make those materials available to the defense later this week.

Note the Exhibit A attached to the Government’s January 25, 2022 Motion to Continue Discovery Deadlines. Which is the email communiques between Defendant Sussman’s attorneys and with Special Counsel Durham’s office

But the really important filing occurred on January 28, 2022 via Special Counsel Durham’s: SUPPLEMENT by USA as to MICHAEL A. SUSSMANN re 33 MOTION to Continue Deadlines for Discovery -see DDC-ECF for document number 34 (or via Scribd) and this is where things take a wild turn. Durham waited three days to file his supplemental filing? Subterfuge something -something —misleading or making misrepresentations to the Court isn’t exactly a good thing but Durham’s January 28, 2022 filing actually strains credulity…

“…The Government wishes to provide some additional context for this statement…”

Of course Special Counsel Durham wants to provide additional details because his previous filings run counter to what his office filed on January 25, 2022.. remember the recently highlighted Paragraph 10(a)(ii) of their January 25, 2022 filing. Which actually raises the question did Durham intentionally mislead the Court? Why is it nearly four years later (after the DOJ-OIG “refreshed Durham’s memory” is his office now suddenly reviewing the DOJ-OIG’s “public filing”..

…After reviewing the Special Counsel’s Office’s public filing, the DOJ Office of Inspector General (“OIG”) brought to our attention based on a review of its own records that, approximately four years ago, on February 9, 2018, in connection with another criminal investigation being led by then-Acting U.S. Attorney Durham

No recollection of a previous call?

to cut through the legalese here -let me explain this in layman’s terms, after the DOJ-OIG had informed Special Counsel Durham’s Office that he and his investigators participated

…that the OIG had requested custody of a number of FBI cellphones.

OIG records reflect that among the phones requested was one of the two aforementioned cellphones of the then FBI General Counsel. OIG records further reflect that on February 12, 2018, the OIG Special Agent had a conference call with members of the investigative team, including Mr. Durham, during which the cellphones likely were discussed. OIG records also reflect that the OIG subsequently obtained the then-FBI General Counsel’s cellphone on or about February 15, 2018. providing some support to that investigation informed an Assistant United Attorney working with

Tantamount to the “dog ate my homework” excuse…

the “no current recollection of that conference call..” is a very nuanced lawyerly statement because Durham’s filing explicitly states “no current recollection” in short what most might overlook it actually kind of important because Durham’s equivocation, in my view strikes to the heart of Durham’s Investigation and the two indictments.

…Special Counsel Durham has no current recollection of that conference call, nor does Special Counsel Durham currently recall knowing about the OIG’s possession of the former FBI General Counsel’s cellphones before January 2022…

…prosecution team has produced to the defense today OIG forensic reports of the aforementioned two cellphones. Moreover, at the request of the Special Counsel’s Office, the OIG conducted additional forensic examination of those cellphones earlier this month and, on the evening of January 26, 2022,

Setting aside the overt subterfuge - Durham’s continual change in position is odd but I also think it’s likely a byproduct of how weak Durham’s cases really are. And that’s something that continues to intrigue me.

As previously mentioned on January 28, 2022 the Court Granted the Government’s request via a minute order, see below…

Incidentally the Court Granted Durham’s request to Continue Deadlines for Discovery —but I’d keep an eye out for Defendant Sussman’s response. I’m not saying Defendant Sussman will move to dismiss his indictment but what is abundantly obvious is his Defense team is zeroing on Special Counsel Durham’s sloppy investigation and equally sloppy filings. Because if Defendant Sussman can prove that Durham intentionally mislead the Court and/or violating the Court’s order regarding Brady, Jenks and Giglio discovery materials or they can prove that Durham is slow walking discovery production…then yes I’d expect Defendant Sussman to file a Motion to Dismiss the Indictment…

I think for now you are sufficiently up to speed on these two cases and again you don’t have to agree with me on my (likely biased) assessment of Special Counsel Durham’s cases but I find it both offensive and intriguing that he repeatedly stated the investigation is ongoing… specifically concerning Defendant Sussman

and of course your daily saltwater therapy which is a 4 part series of let’s take a stroll along the beach… t-minus 60 days before we return to the house to complete various projects before high season

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I’m hitting the road soon and that means with any luck I’ll be back in the DC area to have supper with my family and I can tuck them in for the night. Now that it’s February I know that the light of the General Assembly’s session is in sight and by early March I won’t have 16+ hour long work days.