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Dear Readers.

A brief editorial comment: Last night I set your expectations that this article would “publish in the early morning” unfortunately by 9AM my work day blew up. I apologize for under delivering on expectations I set for you. Since his death, I was tasked to inform each client, while respecting my former boss & his family’s privacy. This has been a daily sucker punch to the face and gut. It’s like reopening a wound everyday and there’s no end in sight. Our clients interact with me, almost daily so our relationship is far more personal and casual than that of an attorney.

I’m considered support staff, yet I didn’t want to offload this task to a secretary, it would be unfair to burden them. Chiefly because this task is such a delicate conversation and it’s littered with land mines. My other bosses agreed that I would be the one to convey this emotionally gut wrenching news After informing the 11th client I’m almost numb in delivery the news. It’s hard to move on when everyday I’m required to face the worst day of my professional career. Again apologies for not publishing this article this morning. Better late than never, amirite?

Significant Case updates RE Sussman:

Apologies Defendant Sussman filed a flurry of new filings in the past 48 hours. Because I understand the gravity of various court cases, I (almost always) read the entire filing(s) prior to publishing an article. For obvious reasons I’ve been a little preoccupied but now that I’ve had the opportunity to read the motion and Exhibits A thru D and the Opinion/Order. At relevant times I will provide you with either an ECF link or Scribd link (and in some instances I’ll provide both) It’s a lot so lets just get into it.

May 7, 2022 - ORDER granting in part and denying in part 57, 61 Motion in Limine and denying 58, 59 Motion in Limine as to MICHAEL A. SUSSMANN (1). See full Order for details. Signed by Judge Christopher R. Cooper —see DDC-ECF for the Court’s 24 page Opinion and Order or via Scribd
On May 9, 2022 (technically it was filed on May 8th but it wasn’t fully uploaded to PACER until the 9th…) May 9, 2022 (technically it hit the docket on May 8, 2022) NOTICE of Defendant's Response to Special Counsel's Objections to Proposed Trial Exhibits by MICHAEL A. SUSSMANN re 119 Notice (Other) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) -see DDC ECF or see Scribd
May 11, 2022 - MOTION to Exclude Expert Testimony Set Forth in the Special Counsel's Supplemental Expert Disclosure by MICHAEL A. SUSSMANN. See DDC-ECF for 9 page Motion

The May 7th Opinion and Order

In a rather lengthy (24 page Opinion & Order) I’d like to walk you through what’s stated. To be clear the Court had previously ruled on Motions by the Government and Defendant Sussman. Insofar as to deny and grant the parties motions. Again I think it’s important for you to read… because this Opinion and Order is something casual observers should absolutely pay close attention to. In short the Court appears to have “split the baby” specifically ruling against the Government’s request to admit multiple caches of emails.

Many of these emails were not sent/received by Sussman and the Government failed to provide a cognizable nexus between Sussman and those who actually collected and analyzed the purported “data between Alfa Bank and the Trump Campaign” and Durham’s failure to provide that nexus largely guided the Court’s ruling.

In short the Court ruled (on the Joffe email cache) as irrelevant to the charge against Sussman. Moreover Durham never indicted Sussman with “conspiracy” ←that phrase has been repeated by Moi for months and as it turns out —now we know who was right and who used their Twitter account to spread uninformed “horseshit” — if you still believe that Blue QANON then that’s your cross to bear, not mine. I’ve been resolute with highlighting the actual facts versus putting forth an incongruent conspiracy theory. Unfortunately that’s what he traffics in and monetizes, as reflected by the public record of his uniformed and insane twitter threads (pro tip GET A JOB)

So here are the actual facts in the May7th Opinion & Order

The Court will impose certain limitations on the use of this evidence, however. As the Court previously ruled, unless the defense opens the door for admission by vouching for the data, the government will not be permitted to put on extensive evidence about its accuracy. See Data Order at 3–4.

The Court will also provisionally limit the presentation of evidence that the collection of the data by Mr. Joffe or others was somehow “objectionable.” The Special Counsel has not proffered sufficient evidence showing that Mr. Sussmann had concerns that the data was obtained inappropriately, or that he had any independent knowledge about the data collection

And there it is -a prosecutor can’t strong arm a (potential) hostile witness by dangling “Joffe is the target of an ongoing criminal investigation”

… the Special Counsel’s continued representation that Mr. Joffe is a subject of its investigation, rather than simply a witness, does not amount to prosecutorial misconduct on this record. The Court therefore has no basis to order the Special Counsel to extend use immunity to Mr. Joffe

In sum the May 7th Opinion and Order —you’ll note the Court was unpersuaded by the theory (and additional theories) proffered by Durham. The actual fact proves that Durham attempted to strong arm Mr Joffe and in so doing Durham also attempted to eviscerate the long held attorney client and work product doctrines while attempt to set fire to both Rules of criminal procedure and rules of evidence… now let’s dissect Sussman’s recent filings.

“an attorney…on behalf of a client”

Off the bat I should disclose I’m not exactly okay with Defendant Sussman’s strategy to impeach the testimony of (former) FBI General Counsel Jim Baker… but intellectually and strategically I understand why he’s doing this—because it makes sense and Sussman is fighting for his freedom and reputation. To be clear I’m not in the tank for Sussman. My only loyalty is to facts and documents that substantiate aforesaid facts.

Also I’m certainly not okay with an over jealous prosecutor who appears to be playing with a different set of rules. Durham’s conduct is well documented but until now I’ve rarely used the word “egregious” and let me tell you if anything in Sussman’s May 8th/9th filing is true —then I unapologetically stand behind my initial assertion that Durham’s gamesmanship is “selective prosecution” but holy SHITTLESTIX we are talking about exculpatory evidence that Durham intentionally withheld and then buried it in several generic sub folders and mislabeled… moreover if you understand the Government’s obligation concerning Brady materials (and the progenies; Jenks and Giglio, read more here, here, or here)

In late March 2022, the Special Counsel produced extraordinarily significant Brady material. See Brady v. Maryland, 373 U.S. 83 (1963). Specifically, the Special Counsel produced handwritten notes of several participants at a meeting held in March 2017, at which senior members of the FBI briefed DOJ’s Acting Attorney General about various aspects of the FBI’s investigation into potential Russian influence in the 2016 presidential election

As someone who prepares extensive discovery (almost) every week —my ass would have been immediately fired if it was discovered that we intentionally buried exculpatory evidence. As I’ve explained there are rules of criminal procedure and separate rules governing discovery…but I can not believe what I’m reading… additionally I’m going to reiterate the importance of footnotes. RAED THEM or else

Durham submitted the very same exhibits (handwritten notes) that he’s now objecting too -I’m not kidding

Apparently Durham is (hilariously) objecting to his on proposed exhibits. Yes I understand most won’t understand how hilarious this is. So allow me to translate the legalese: each party provides the Court with Exhibits, evidence etc no really this is why one should aways read the footnotes, which read in part:

The Special Counsel also requested that the defense “proffer a non-hearsay basis” for “multiple pages of handwritten notes taken by an FBI Headquarters Special Agent concerning his work on the investigation of the [Alfa Bank] allegations,” marked as Defense Exhibits 353, 370, and 410. Special Couns.’s Objs. at 3-4 …the defense notes that the Special Counsel included the same notes on his own exhibit list. See Special Couns.’s Ex. 279. In any event, the defense marked the notes for identification purposes. If or when it becomes necessary to offer the exhibits into evidence, the defense will raise the issue with the Court and provide appropriate reasoning at that time.

The defense has requested that the Special Counsel search for any additional records that may shed further light on the meeting and certain of those requests remain outstanding. To date, the Special Counsel has represented that the only additional notes from attendees at the meeting that he has identified do not reference whether or not Mr. Sussmann was acting on behalf of a client.
The absence in those notes of any reference to whether Mr. Sussmann was acting on behalf of a client also raises questions regarding materiality of the charged conduct: if the on behalf of information were truly material to the FBI’s investigation, presumably all note takers would have written it down.

Did anyone else catch what Sussman’s Motion says?

Because it’s there in black and white —and let me tell you I had to read pages 3 & 4 twice because I had a hard time believing what Sussman’s Motion states…the relevant subsections can be found on page 3, specifically paragraphs 1 and 2 on page 3, which reads in part:

…it is highly significant that, as of March 2017, when the FBI was asked to provide DOJ leadership with a summary of the Alfa Bank investigation (which by that time had concluded), the FBI at the highest levels described the Alfa Bank allegations as having come from an “attorney . . . on behalf of his client,” see Ex. A, Tashina Gauhar Notes…

You might ask why is this a big deal -again if you understand the Government’s Brady obligation (which was reiterated in the March and April 2022, respectively Court’s Order then you’ll understand why I had to reread pages 3 & 4. The first reading I had to pick my jaw up from tgrlilee floor. And to be clear if (operative word) Sussman’s filing is accurate —holy mother of lodestars —it’s bad and Durham should be taken to task by the Court. As a prosecutor you know the Federal Criminal Rules of Procedure and Federal Rules of Evidence are. Again I think it’s important to let this particular (potential) Brady issue to be fully developed and how the Court will rule.

Brady Obligations are not voluntary they are required

Moving on to pages 5 & 6 here you will note that Sussman states that Durham’s Objections over Sussman’s Motion in Limine are “untimely” and are sans foundation… look at the timeline that Sussman’s Motion details. In non-legalese Sussman’s argument is Durham intentionally buried and mislabeled numerous pieces of evidence. Specifically the contemporaneous notes by numerous FBI officials at (and this is important so please pay attention) “time of the meeting” the reason those three words are particularly important it gives rise to hearsay objections and exemptions but it also questions the validity of Durham’s conduct. Again it’s possible that Sussman might be over exaggerating but I don’t think he is because his Motion includes 4 separate exhibits and I’m pretty sure Sussman’s defense team will lean in, like all the way in…as they should because that’s what competent defense attorneys do.

To the extent the Special Counsel argues, as the defense expects he will, that Mr. Baker’s recollection of the meeting has been “refreshed” by Mr. Priestap’s notes, it is obvious that the Special Counsel’s failure to refresh Mr. Baker’s recollection with the contradictory March 2017 Notes is relevant to Mr. Baker’s credibility as well as the manner in which the Special Counsel has handled a critical witness.

At the briefing, as related to the Alfa Bank investigation, Mr. McCabe appears to have provided a general summary of the allegations that had been brought to the FBI. Most importantly, notes from other participants at the meeting indicate that Mr. McCabe explained that the allegations were brought to the FBI by an attorney “on behalf of his client,” see Ex. A, Tashina Gauhar Notes, at SCO-074100 (emphasis added), but that the attorney “d[id]/n[ot] say who [the] client was,” see Ex. B, Mary McCord Notes, at SCO-074070 (emphases added). There is no indication whatsoever from any participants’ notes that Mr. Baker—or Mr. Priestep or Ms. Anderson—refuted or corrected Mr. McCabe’s explanation…

That paragraph alone undermines Durham’s case, like a double tap to the heart because Sussman is going to the actual heart of Durham’s case. Again if what Sussman states is true. Clearly I’m inclined to believe Sussman because he included four exhibits and based on the time/date stamp there’s zero ambiguity. And this is later highlighted on page 6…

Again Sussman’s motion highlights that at some point senior FBI and a DAG made notes (now being proffered as contemporaneous) because here’s the thing (again I’m not looking to discredit Jim Baker, I actually respect him a lot) —Notwithstanding the record suggest that Baker’s recollection has dramatically changed and that is the heart of why Sussman plans to impeach Baker’s testimony…

Exhibits A thru 4 filed with Sussman’s Motion Doc 123

To be clear Sussman’s main arguments are, Durham buried exculpatory evidence by mislabeling and essentially forced Sussman’s defense team to locate a needle in a 20K and 600K discovery production and that there was Brady materials that the government is obligated to disclose and produce for the Defendant. Moreover Sussman’s adjacent argument is Durham waited nearly 30 days after the Court’s Order directing Durham to provide Brady materials in a timely manner and that’s what caused Sussman’s “un-timely” Motion-In-Limine and that’s pretty damn important… obligations are not voluntary especially when a court issued an order with a clear date of production;

Exhibit A (doc 123-1) are handwritten notes see DDC ECF or Scribd
Exhibit B (doc 122-2) also a handwritten note for the March 2017 FBI meeting. See DDC-ECF or via Scribd
Exhibit C (doc 123-3) the calendar entry of the March 2017 see DDC-ECF or Scribd
Exhibit D (doc 123-4) handwritten notes produced -See DDC-ECF or see via Scribd

Keep in mind that a nearly a month after the Court’s Order directing the Government to produce Brady Materials in a timely manner & properly labeled) Sussman’s Motion (doc 123) argues that Durham made several Brady violations both in terms of timelines and labeling. Again as someone who not only complies evidence but understands the Rules, I’m telling you my ass would have been immediately fired and my contract terminated if I made this kind of (arguably premeditated) filing error. At nearly every step Durham has conducted himself with unethical and contorted himself (in the case in chief) that go against an “officer of the Court” —clearly I’m biased but again in my industry winning fair and square means you follow the rules and you don’t play dirty. Here Sussman makes a very compelling argument that Durham violated both rules and ethics.. In sum -Durham’s strong arming a potential witness by dangling “you’re part of any ongoing criminal investigation” is about one of the most egregious prosecutorial misconduct I’ve seen in a long time. That’s why I’m exceptionally crucial of Durham’s conduct and you should be too..

Now if you’ve made it this far into the article here’s your reward -a 30 second video of the ocean just as a gnarly coastal storm was moving out to sea…

file411_dc

A post shared by File411 (@file411_dc)

May 11, 2022 Filing by Sussman -Expert Testimony-

While I understand that much of what I write 8s extremely long and detailed there’s a reason for that. I genuinely believe that my readers are smart and that they want to know the facts versus an uninformed theory. I don’t do conspiracy theories, like ever. I’m beholden to facts and producing (at times too many facts) documents that support aforesaid facts. Because after all everyone has an opinion but some of us come with facts —and occasionally pontificate on said facts.

MOTION to Exclude Expert Testimony Set Forth in the Special Counsel's Supplemental Expert Disclosure by MICHAEL A. SUSSMANN.

Sussman’s Motion largely argues that the Court had previously ruled on six defined areas that allows the Government to proffer evidence, however Sussman’s Motion (Doc 127) and reiterated the limitations and contours of six areas of question regarding the FBI’s expert testimony (you can read more on the April 2022 order, here) but Durham literally pulled an 11th hour Hail Mary and it’s not how a prosecutor should conduct themselves. The Court has been no For Example I now refer you to pages 1 & 2 which reads in part:

But the opinions set forth in the above topics 4-9 are not about “the type of conclusions that can be drawn from analyzing the kind of data Sussmann shared with the FBI” as permitted by the Court. Order at 5.1
Instead, the Special Counsel apparently intends to use expert testimony to cast doubt on the specific data and conclusions that Mr. Sussmann provided to the FBI and opine on the materiality of the alleged false statement in this case.

Sussman Notice of Objection re Expert Testimony

Here Susssman (correctly) argues that the Court has previously ruled that the “data collection” is not permissible because it would be confusing to the Jury but most importantly Sussman was not involved in the data collection and reasonably believed the data was correct. Moreover (and yes I’ll keep repeating this) Sussman was not indicted with “conspiracy” -irrespective of Durham’s overt attempts to correlate and conflate “conspiracy” with Joint Venture. Which is why I’ve repeatedly highlighted this fatal infirmity of Durham’s filings —because this tiny detail is actually pretty important, as it goes to the heart of Durham’s ever changing theory.

Understand that this discussion would be entirely different if Sussman was indicted with “conspiracy” —he wasn’t and that’s an unarguable fact. Moving on to pages 3 and 4 —here Sussman states that Durham greatly widened the scope in contravention of a previous court order. Again it is imperative to wait for the Court’s ruling. But Sussman’s arguments are persuasive and strong -as he’s using the previous March and April of 2022 Court Order

On April 8, 2022, the defense filed a motion to exclude proposed expert testimony—objecting specifically to testimony regarding the accuracy of the data and conclusions provided to the FBI—and requesting additional information regarding the proposed testimony regarding DNS data. See Def.’s Mot. to Exclude Gov’t’s Proposed Expert Witness Test. at 2, 3 n.3, ECF No. 66.
In response, the Special Counsel described the testimony Special Agent Martin intends to offer regarding DNS data and TOR as falling into the following six categories…

Moving on to pages 5 and 6 here Sussman further articulates that the untimely notice by Durham regarding the areas of questions/testimony go far beyond the previous allowable six areas. Durham expended it to nine areas and (this is important) without seeking leave from the Court, this isn’t actually unusual. But what is unusual is Durham’s well documented playing fast and loose with the Rules…

But the opinions set forth in the above topics 4-9 are not about “the type of conclusions that can be drawn from analyzing the kind of data Sussmann shared with the FBI” as permitted by the Court. Order at 5.1
Instead, the Special Counsel apparently intends to use expert testimony to cast doubt on the specific data and conclusions that Mr. Sussmann provided to the FBI and opine on the materiality of the alleged false statement in this case.

And lastly on pages 7 and 8 —Sussman (again) uses the Court’s previous orders which precludes the Government from proffering evidence (applicable to both testimony and documents) concerning the purported data collection. Again Sussman wasn’t involved in the data collection. He reasonably believed that the data (which he later presented to both the FBI and CIA) was accurate. Again if Sussman was involved in the data collection then obviously the discussion would be dramatically different. Bottom line is Sussman wasn’t involved in collecting said data and he wasn’t indicted for a “conspiracy” or (which is laughable that Durham is quadruple down) vis-a-vis a “joint venture” —the reason that this particular fact matters is it goes to not only Sussman’s state of mind (mens rea) and any action (actus reus) he did or did not take.

…the Special Counsel appears to be attempting to get in through expert opinion precisely the type of testimony the Court has precluded from fact witnesses. See, e.g., Op. & Order at 5, ECF No. 121 (hereinafter, “Op. & Order”) (prohibiting the Special Counsel from offering exhibits suggesting that the collection of data was objectionable). For example, testimony about the Special Counsel’s fourth supplemental topic regarding “spoofing” would suggest to the jury that the specific data Mr. Sussmann provided to the FBI could have been spoofed, even though there is no evidence suggesting that Mr. Sussmann had any such knowledge. The Court has already ruled that emails about potential spoofing constitute the “kinds of technical issues and conclusions about the data” that are not relevant. See Op. & Order at 10. Expert testimony on this topic should be excluded for the same reason..,, (emphatic added)

And with that I think you are now fully debriefed on the most recent case filings. Lastly I have been ordered to take tomorrow off because my other bosses are concerned with my own state of mind. To that end they actually reserved a few spa treatments at the Ritz for me. I think they know that I’m on the edge of completely losing what few marbles I have left. In short that’s my long explanation that it’s unlikely I’ll publish an article until May 16th. Until then be well.

-Filey

PS a NYS Judge released Trump from the Contempt sanctions provided that he pays the $110,000 and finally complies with the subpoenas requiring his deposition and production of documents

ORDER TO SHOW CAUSE - DECLINED/WITHDRAWN

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