Durham Sketches Out The Hillary Campaign's "Joint Venture"

I picked this up from CTH—John Durham has a new filing in the Michael Sussmann case:

GOVERNMENT’S REPLY CONCERNING THE PARTIES’ MOTIONS IN LIMINE AND

RULE 404(b) OBJECTIONS

I’ve been holding back in commenting on each and every filing, waiting for something really new to come up. What we see here is a very nice overview of what Durham refers to as a “joint venture”. In other words, a conspiracy involving two or more persons. When you substitute the true names for the descriptive monikers (Tech Executive-1, and so forth) you end up with a very nice narrative that describes the interaction among the players in the joint venture or conspiracy.

Now, first of all, this filing is divided into three sections, to make three major points:

I. A Joint Venture Plainly Existed Here

II. Evidence Concerning the Assembling of the ALFA BANK Data and Allegations is Not Cumulative

III. The Authors of the Relevant Emails Were Members of the Joint Venture

I’ll be quoting extensively from (I), actually its entirety, and (III). I’ve removed everything extraneous to presenting the substance or big picture of the narrative—citations, etc. I’ll set out the thoughts that come to me first, then I’ll append the relevant text from Durham’s reply.

Let’s bear in mind that Durham is charging Sussmann with one count of false statements to the federal government—to James Baker, the General Counsel of the FBI. Obviously Baker gave Durham the full story of Sussmann’s false representations. I assume that Durham got Baker to talk because Durham had some hammer over Baker—perhaps Baker’s role in getting the Carter Page FISA application approved. The interesting question, then, is: What does Durham have on people like Marc Elias (aka Campaign Lawyer-1) that forced Elias to spill the beans on Sussmann. Durham had some sort of a hammer, because Elias is cooperating, and it’s possible that several others who were active in the Hillary campaign are also cooperating. It’a absolutely clear from Durham’s “Reply” here that someone who was present at the conspiratorial meetings that are briefly described has told Durham who-said-what at those meetings.

I’m going to suggest that the handle that helps us come to grips with both the conspiracy and Durham’s approach to it is this: Everyone who was, in Durham’s view, a member of the joint venture or conspiracy, must have known that truth was not any sort of requisite in their “research”. But it seems to me that at least some of these people must have had an inkling that the point of the research re the Alfa Bank was to induce the FBI to open an investigation, shortly before the election, to tar Trump. That means, these co-conspirators were aware that, at least potentially, the data that they were gathering might be submitted to the FBI to induce the FBI to take some official action—opening an investigation. Not all of them—but certainly some of them—may have ever heard of 18 USC 1001, but they surely knew that lying to the FBI would ordinarily get a person in legal trouble. Without knowledge that what they were up to was illegal, this wouldn’t have been a conspiracy, so the point of drawing the FBI in must have been part of the common understanding.

Without at least this common understanding it’s not clear to me how Durham secured the cooperation he needed from someone like Elias—and possibly others. The question is, How does Durham know this? Durham doesn’t provide a full account of what was said at the meetings or what was in the emails that he refers to, but the roster of who was present is in itself highly suggestive. I mean, when you have Sussmann, Elias, Joffe, and Glenn Simpson together in a room discussing a “confidential project” involving the Alfa Bank that’s being billed to the Hillary campaign, it doesn’t take much imagination to suppose that the topic of submitting this stuff to the FBI was discussed. I take it that Durham was able to determine this, from the texts or emails or possibly from a witness—like the lady at Fusion GPS who has received immunity as a witness. Is it possible that this witness heard Simpson and Sussmann discussing the FBI angle?

As for some of the techies, it’s clear from the emails that they knew that they were constructing a bogus narrative to be used against Trump. This is where the flexibility of the conspiracy concept (“joint venture”) comes into play. Even though these people haven’t (yet) been charged, the existence of the conspiracy will be a major part of Durham’s case. That’s why Durham quotes from model jury instructions that are used in DC. The jury, if this case goes to trial, will be told that for a person to be a member of a conspiracy that person only needs to

“share in the general conspiratorial objective, though they need not know all the details of the plan or even possess the same motives. They need not know the identities of other co- conspirators.”

The interesting question that arises from all this is: Where is Durham going with this case? Netting a major player like Sussmann and forcing Elias to testify is a big win. Interestingly, however, Joffe hasn’t yet been indicted—although he has been described as a “target.” Why is Durham holding back? Sundance’s theory is that Joffe may have been accessing more government databases than we know of at this point. The problem with that, as it seems to me, is that while we may not know, Durham surely does know. So why not indict him? The answer to the delay—whether it has to do with additional databases or with a promised job for Joffe in the Hillary administration—may well lie in communications that Joffe may have had with people even closer to the Clinton inner circle. Durham may be seeking to get Sussmann to plead, then to leverage the cooperation of Sussmann and Elias to bag Joffe—and whoever those three (and maybe Glenn Simpson?) can finger from Hillary’s cabal. Sullivan? Mook? Palmieri? Podesta?

OK, I’m speculating, but Durham’s filing is some kinda teaser when you start thinking about it. The guarded references to Joffe’s communications certainly are conducive to that kind of speculation.

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I. A Joint Venture Plainly Existed Here

First, MICHAEL SUSSMANN’s portrayal of the joint venture at issue as ill-defined, “incoherent,” and too “complicated” for a jury to understand is simply wrong. Federal jury instructions have stated that in order to prove a conspiracy:

“the Government is not required to show that two or more people sat around a table and entered into a solemn pact, orally or in writing, stating that they had formed a conspiracy and spelling out all of the details. It is rare that a conspiracy can be proven by direct evidence of an explicit agreement.”

But meeting to agree on the express goal of a joint venture is precisely what happened here, on more than one occasion. In particular, the evidence at trial will show that in or around June 2016, ... RODNEY JOFFE, APRIL LORENZEN (aka "Tea Leaves"), and other researchers begin to discuss searching for and collecting derogatory internet data about the online activities of Donald Trump and his associates. Around this time, LORENZEN assembled and shared initial purported data with JOFFE (who, in turn, shared the data with SUSSMANN).

The evidence will further show that the joint venture continued and crystallized early in August 2016 when SUSSMANN, JOFFE, and agents of the Clinton Campaign met at PERKINS COIE. In particular, on August 12, 2016, SUSSMANN, JOFFE, the Clinton Campaign’s General Counsel (MARC ELIAS), and GLENN SIMPSON of the Clinton Campaign’s hired investigative firm (FUSION GPS) met in ELIAS’s office. There, they discussed the same ALFA BANK allegations that SUSSMANN would later bring to the FBI. The evidence will show that at the meeting, the parties agreed to conduct work in the hope that it would benefit the Clinton Campaign, namely, gathering and disseminating purportedly derogatory data regarding Trump and his associates’ internet activities. In particular, the Government expects the evidence will show that as a result of these conversations and during this same time period, JOFFE did exactly that: he tasked employees from multiple Internet companies and from Georgia Tech working under a pending DARPA contract to mine and gather vast amounts of internet metadata in order to support an “inference” and “narrative” tying the candidate to Russia. And calendar entries reflect that as he obtained the results of these taskings, JOFFE conducted further communications, meetings, and calls with PERKINS COIE, including: an August 17, 2016 call with SUSSMANN and ELIAS; an August 19, 2016 meeting with SUSSMANN and ELIAS; and a September 8, 2016 call and meeting with SUSSMANN—all of which SUSSMANN billed to the Clinton Campaign.

In further support of the above, the Government expects the evidence will show, among other things, that:

• At 2:01 AM on August 12, 2016, GLENN SIMPSON of FUSION GPS emailed SUSSMANN “Meeting in lobby in AM?” referring to his plan to join SUSSMANN, JOFFE, and ELIAS for the above-referenced meeting.

• According to calendar entries, this meeting occurred between 7:30 AM and 9:30 AM. SUSSMANN billed this time to the Clinton Campaign with the billing description “meeting with ELIAS, others regarding [] confidential project.”

• According to expected testimony, during this same time period, JOFFE called STEVE DEJONG, CEO of Neustar, and tasked DEJONG to mine and analyze vast amount of Internet traffic for any derogatory information he and his employees could find about Trump and his associates’ internet connections and online communications.

• In order to guide the data mining project, JOFFE sent DEJONG a list (the “Trump Associates List”) containing email addresses, IP addresses, physical addresses, and other information of several Trump associates. Multiple individuals on the list were at that time the focus of extensive opposition research by FUSION GPS.

• JOFFE told DEJONG in express terms that he was conducting this project with someone from a Washington, DC law firm with close ties to Clinton and the Democratic party, referring to his communications with PERKINS COIE and FUSION GPS.

• Also during this time period, and as set forth in the Government’s prior filings, JOFFE tasked and/or coordinated with APRIL LORENZEN, Georgia Tech’s MANOS ANTONAKAKIS, and Georgia Tech’s DAVID DAGON to carry out similar data mining in order to gather additional internet metadata about Trump and his associates. In doing so, JOFFE exploited sensitive internet data that researchers were provided to guard against cybersecurity threats, but which JOFFE instead directed them to mine for political purposes.

• As JOFFE continued to meet and communicate with PERKINS COIE and FUSION GPS, he made clear his desire to ensure that the “VIPs” (referring to PERKINS COIE and the Clinton Campaign) would be “happy” with the project’s findings.

In other words, the goal of the joint venture could not have been more clear: it was to gather and disseminate derogatory non-public information regarding the internet activities of a political candidate and his associates. And that venture was far from collateral to the charged crime. Indeed, the above-described joint venture was the very project that led JOFFE to rely upon SUSSMANN’s services; the very project that gave rise to the ALFA BANK allegations; the very project that prompted agents of the Clinton Campaign to meet with JOFFE; and the very project that caused SUSSMANN to meet with the FBI General Counsel and lie to him about the clients who were behind all of this work. As the Government will demonstrate at trial, it was also the politically-laden and ethically-fraught nature of this project that gave JOFFE and SUSSMANN a strong motive to conceal the origins of the ALFA BANK allegations and falsely portray them as the organic discoveries of concerned computer scientists.

III. The Authors of the Relevant Emails Were Members of the Joint Venture

Finally, SUSSMANN misunderstands the law of conspiracies and joint ventures when he claims that certain authors of the emails cited in the Indictment and the Government’s Motion were not members of the joint venture at all. For example, SUSSMANN claims that “there is not evidence that the Researchers were working in concert with the Clinton Campaign or were even aware of the Campaign’s activities.” But it is black-letter law in this Circuit that:

“it is enough ‘that members of the conspiracy in some way or manner, or through some contrivance, positively or tacitly, came to a mutual understanding to try to accomplish a common and unlawful plan.’ All co-conspirators must share in the general conspiratorial objective, though they need not know all the details of the plan or even possess the same motives. They need not know the identities of other co- conspirators.”

Thus, the researchers’ purported lack of knowledge concerning certain aspects of the conspiracy (or of other participants in it) is of absolutely no moment.