Thirty months after challenging Michael Horowitz, Durham team suggest they never looked at the evidence
In Michael Sussmann’s filing explaining he couldn’t include highly exculpatory notes – written by Tashina Gaushar, Mary McCord and Scott Schools – from a March 6, 2017 meeting in his motion in the limit because John Durham had provided them to him too late to include them, Sussmann claimed that the files were not among those Durham had obtained permission to provide late.
The special counsel fails to mention that these handwritten notes were buried in nearly 22,000 pages of discovery that the special counsel produced about two weeks before the in limine motions were due. Specifically, the Special Counsel produced the March 2017 notes as part of a March 18, 2022 production. The Special Counsel included the March 2017 notes in a subfolder generically labeled “FBI Declassified” and also labeled them only as “Declassified FBI/DOJ Documents” in his cover letter. See Letter from J. Durham to M. Bosworth and S. Berkowitz (March 18, 2022). And while the special counsel indicated in a March 18, 2022 phone call that some of the 22,000 pages were documents that referred to the “client,” he did not specifically identify the March 2017 notes or draw attention to this powerful exculpatory material. the way Brady and his brood demand.
[T]Nor did the special counsel explain why this powerful Brady material was produced years after their investigation began, six months after Mr. Sussmann was indicted, and just weeks before trial.3
Sussmann was wrong.
When Durham got an extension to its discovery deadlines, it got special permission to turn over (among other things) DOJ IG documents at a later date.
DOJ Office of Inspector General Materials. On October 7, 2021, at the initiative of the Office of Special Counsel, the prosecution team met with the DOJ Inspector General and other OIG staff to discuss what may be uncovered that may be in the possession of the OIG. The Office of the Special Advocate then submitted a formal written discovery request to the OIG on October 13, 2021, which requested, among other things, all documents, records and information in the possession of the OIG relating to the defendant and/or the allegations of the russian bank-1 .
[I]n January 2022, the OIG informed the Office of the Special Counsel for the first time that it would be extremely burdensome, if not impossible, for the OIG to apply the search terms contained in the discovery team’s request for discovery. indictment of October 13, 2021 to some of the OIG members. holdings – namely, the emails and other documents collected as part of the OIG’s investigation. The OIG therefore asked the Office of the Special Adviser to assist in locating these documents. The government is trying to resolve this technical problem as soon as possible and will keep the defense (and the Court, if necessary) informed of its progress.
During Monday’s preliminary hearing, Andrew DeFilippis explained that the files came from the DOJ IG (and were therefore subject to this later discovery deadline).
We located these statements in the notes in February or early March, when we received a huge production from the DOJ Inspector General’s Office. As soon as we noticed this in the notes, we put them on very fast declassification at the FBI and turned them over to the defense about a week later.
DeFilippis offered a flimsy excuse to bury the late-delivered Brady material two layers deep in folders without specific notice. He described the decision to flag the documents as an internal government decision, which is an odd description unless Michael Horowitz’s office – or those involved in declassifying the documents – forced the decision:
We then, speaking internally as a government, decided that it would be important to report those notes for the defense. And so the day we produced them, we got a call. We wanted to be able to point this out in a way that we didn’t just put it at the end of a paragraph in a discovery letter. We advised the defense that we were going to produce notes and that this included notes in which the word “client” appeared. And we told them that we thought it would be relevant to them.
Let me just say that there was absolutely no effort on the part of the government to delay here or hide them in a big production. This is precisely why we received a phone call and reported it to the defense.
It’s almost as if DeFilippis hoped it wouldn’t be announced.
I can understand why. I described how astonishing it was that Durham did not seek evidence from the DOJ IG until – by Durham’s own account – October 7, more than two weeks after indicting Sussmann (and probably not long enough before indicting Igor Danchenko to learn key details that undermine at least one charge against him).
But this late provision of exculpatory evidence means one of two things:
- Durham still had the files, but did such a poor job of searching that he couldn’t find it in his own files even when he started hunting Michael Sussmann.
- Durham never had these files
The latter is the most likely possibility, which as a threshold would mean Durham never reviewed the key files which DOJ IG had used in interviews with high-profile witnesses before challenging Michael Horowitz’s conclusion that the investigation was properly founded. Durham literally doesn’t review key files until three years into its investigation.
Along the way, he learns that the conspiracy theories he’s been pursuing for months and years are false.
The revelation that Durham uncovers exculpatory information in DOJ IG files is as important to efforts to blow the charge against Mike Flynn two years ago as it is to the Sussmann charge. That’s because the Jeffrey Jensen review of the Flynn prosecution and the Durham inquiry were meant to be closely aligned. Indeed, I have shown that the handwritten FBI notes that Durham will rely on at trial show the same signs of unreliability as the documents that were altered in the Flynn case.
As I explained in this post, the Jensen documents started with the Bates stamp used throughout the Flynn prosecution.
But after a while, they used a Bates stamp with a different typeface, while continuing the same series, suggesting someone else was sharing documents.
But if they’re relying on the same source documents, Durham should at least know that the notes from that meeting exist. Jeffrey Jensen received and relied on at least one set of notes – Jim Crowell’s notes – from the March 6, 2017 meeting. These notes, along with Tashina Gauhar’s notes from a previous briefing and any that have been changed, also have bold font.
Tashina Gauhar’s notes given to Sussmann (and the others given) are not only based on a scan of her original notes and contain no post-its, but they both bear the Durham Bates stamp (SCO-074095), but also one that probably comes from DOJ IG (SCO-FBIPROD_021529).
All of this seems to suggest that there was the same selection of cherries that was made in Durham’s investigation and Jensen’s “review”. Neither could have been seen again! – What really happened. They reviewed selected records, then (in the Jensen review) altered those records to make false claims that the former president used in a debate attack.
I will return to the question of what appears in Sussmann’s published notes that conflict with Flynn’s versions.
But I’m also interested that Durham is late in providing further notes from the meeting.
2 Defense instructed the special advocate to search for any additional records that could shed more light on the meeting and some of these requests remain outstanding. To date, the special adviser has stated that the only additional notes from meeting participants that he identified do not specify whether or not Mr. Sussmann was acting on behalf of a client. The absence in these notes of any reference to whether Mr. Sussmann was acting on behalf of a client also raises questions as to the significance of the impugned conduct: whether the behalf information was really important to the FBI investigation, it’s likely that all the note takers would have written it down. [my emphasis]
Durham can’t withhold notes because they don’t mention that Sussmann has a client. This is because the Scott Schools notes mention that the Alfa Bank tip came from a lawyer, but do not mention that he was there on behalf of a client (the schools notes may have been included because these are the only ones of the three provided that attributed this discussion to Andy McCabe).
There are at least two other sets of notes from this meeting known or suspected to exist:
And there were at least three other people present at the meeting known to take notes:
- Bill Priestap
- Andy McCabe
- Dana Boente
Importantly, in Durham’s objection to the admission of these notes as evidence, he states that James Baker (inexcusably as a lawyer) did not take notes of this or any other meeting, but he doesn’t say if Priestap (or Trisha Anderson) took notes. .
Additionally, the DOJ staff who took the notes that the defendant might seek to offer were not present at the defendant’s 2016 meeting with the FBI’s general counsel. And while the FBI’s general counsel was present for the March 6, 2017 meeting, the government found no notes he took there.
If Priestap took notes, a copy should be in Durham’s possession, in Priestap’s notebook already on Durham’s exhibit list.
The DOJ has been trying to block anyone from viewing Andy McCabe’s notes for some time.
But one thing the handing over of the notes withheld by DOJ IG for others will show is if any changes were made to the notes of Strzok, Priestap and McCabe.
It will also make it easy to test why Jensen’s review redacted a date and added one – albeit the correct one – in Jim Crowell’s notes.
In other words, I wonder if Durhams’ reluctance to hand over these documents stems not from facts about his own investigation, but from an awareness of the selection – and perhaps worse – that being handed over reveals. the past.
Three Messages About Altered Mike Flynn Case Documents
Jeffrey Jensen’s “investigation”: Post-its and other irregularities (September 26, 2020)
DOJ shorter: We’ve done some shit… Please release Mike Flynn (October 27, 2020)
John Durham has unaltered copies of the documents that were altered in the Flynn file (December 3, 2020)