“What I find most striking about this pleading is John Durham’s use of the joint venture/conspiracy exception to [Rule] 404(b).”
Special counsel John Durham says he has evidence of a joint venture or conspiracy involving the Clinton campaign. In this episode, we discuss the details of Durham’s latest 48-page filing, why ex-Clinton campaign lawyer Michael Sussmann has a defense that is now “in shambles,” according to Kash, and what Kash sees as perhaps the greatest irony of all in Sussmann’s defense.
“The defense lawyers for Michael Sussmann, in a federal pleading, are calling the Christopher Steele dossier ‘inflammatory.’”
Below are some of the main documents referenced in the episode:
Special Counsel John Durham’s latest filing
Declassified House Permanent Select Committee on Intelligence (HPSCI) transcripts
Deposition of Michael Sussmann
Deposition of Jake Sullivan
Kash Patel: Hey everybody. And welcome back to Kash’s Corner.
Jan Jekielek: So Kash, we had some pretty interesting episode plans, and then John Durham came in, just threw us a spanner into the whole works.
Mr. Patel: He totally messed it up Jan. So I guess we’re going to talk about all things special counsel and John Durham and put off the rest for another time.
Mr. Jekielek: And motions in limine. We keep learning all these kinds of arcane legal jargon. So what is that all about?
Mr. Patel: Okay. So John Durham came in on a late night during one of the weekdays of this week and filed what’s called a motions in limine. He was actually responding to a defense motion in limine. And all that means is pre-trial motions. It’s fancy Latin, that lawyers get to throw around and sound cool. I did when I was a federal public defender and a national security prosecutor.
Basically, it’s setting up what you’re going to do at trial is the easiest way to think about it. The defense has things they want to accomplish, and the prosecution has things they want to accomplish. And the rules of evidence govern when you have to file these things and who you have to put on notice and what the prosecution’s responsibilities are for due process and all that stuff. We don’t have to get into the weeds of that. A, the defense on behalf of Sussmann came in and said a couple of things basically outlining what their defense is going to be.
And you and I have talked about this before, Jan. I think the defense has made a number of strategic blunders, not legal or ethical, strategic blunders along the way of this prosecution. If you recall in a previous episode or two, we talked about how the defense asked John Durham for more evidence at a higher clip. John Durham obliged and gave them lots of evidence very publicly, because he was allowed to do that pursuant to that request. And then they basically said, “Okay, wait, wait, thanks. That’s enough. We don’t need anymore.”
Then the defense issued a motion to dismiss just the other week, which was, I thought, a shocking move, especially in federal court, since there’s technically no actual mechanism to do that. But they basically unveiled their whole case. And remember under the law, the defense never has to divulge what their actual defense is going to be at trial. And as a public defender, I never did. Because you, under due process, have the right to not have your defense previewed by the prosecution. So you can put on your best, I don’t want to say show, but your best evidence. And remember the defendant is always presumed innocent. So that’s the heart of why the defense’s defense never has to be revealed.
They file this motion to dismiss and they basically say the crux of it is, “Hey judge, we don’t necessarily agree or disagree with everything John Durham’s filed. But the key is that my client’s charged with lying to the FBI and what we, the defense, are saying is that is immaterial.”
And if it’s immaterial under the law, then they have a technical out on the client being convicted. But they outlined all of the reasons why it was immaterial. And we can talk about some of that. And John Durham responded and said, “I disagree, and these are all the reasons why it’s material.” And then the defense went again and filed a motion in limine to preclude John Durham from using some of this information at trial. And then John Durham again, immediately thereafter said, “Okay, defense, you say I can’t use this stuff. Here’s all the litany of reasons in a 45 page pleading that we’re going to talk about as to why I can under the law.”
Mr. Jekielek: There’s a number of really stunning things in this pleading and several text messages. I almost didn’t believe, but let’s talk about this. What is all this 404B stuff? This is another one of these arcane, so to speak, legal things that many of us don’t know about, but.
Mr. Patel: Yes, when you are prosecuting a case under the rules of evidence, which is the federal procedural rules, that guide criminal prosecutions that you have to abide by, and the judge makes the decision. You are allowed to use what’s called 404B evidence. And the title of that federal rule of evidence is other bad acts. So basically what it says in sum is, the defendant is charged with X, Y, or Z. The prosecution can use other bad acts that the defendant committed, not necessarily crimes, but just other things they did in their life surrounding the indictment they’re charged with. And you can’t use it, you cannot use it to show the defendant’s guilty of the crime charged, that’s forbidden by the rules of evidence. But 404B has an exception. What it says is you can use all these other bad acts to show motive, intent, knowledge, planning, and operation.
And so all these exceptions, me as a federal public defender would respond to 404B pleadings all the time saying this is out of bounds, that’s talking about criminal conduct, that’s not meeting one of the exceptions. And what John Durham has methodically done is laid out the case, as we were talking about because the defense laid out their strategy, to meet each one of these responses.
So he’s provided all this evidence in the form of emails, in the form of text messages, in the form of deposition, sworn testimony, and what not to say, “Judge, the defense is incorrect. This is 404B evidence and it satisfies the statute.” So it’s a pretrial sort of kickboxing match about evidence. And the judge doesn’t have to rule right now, but he’ll take the motions under advisement, as we say, and he’ll rule just before trial or in the first couple of days of trial.
Mr. Jekielek: Well, and I guess we should mention that I think three of those pages are actually congressional testimony that you took from Sussmann.
Mr. Patel: Yes. When I was the Chief Investigator under then Chairman Nunez for the Russiagate investigation, part of what we did was, you have to one, go out and get the documents. That was the biggest part. Go out, get the FBI documents, the DOJ documents, the email traffic, classified, unclassified, put it together for the American people to read for themselves. In order to provide context for those documents, the window dressing, you have to go find the people in government positions, in private sector that spoke or owned those documents. Spoke to or owned them, I should say. And so, one of the individuals was Michael Sussmann. He was one of the 60 some odd people we deposed under oath. And at the time, he was the head or co-lead attorney for the Hillary Clinton campaign in DNC, the lawyer at Perkins Coie, the law firm that we now so tie to this entire series of events we’re talking about.
And during that deposition, I believe it was December 2017. I asked him flat out, I asked Michael Sussmann, and I’m paraphrasing, but we’ll put up the exact quote, “Are you doing any of this work…” And this work being, we were talking about him and his involvement in the Alfa Bank work, the Alfa bank material that he took to the FBI, and later to the CIA.
I said, “Are you, Michael Sussmann, doing all of that work on behalf of any client?” He said, under oath, “Yes, I absolutely am.” And so we knew four, five years ago that he was working for the Hillary Clinton campaign because we took that statement. We took the money that we had proven through subpoenas that was flowing from the Hillary Clinton campaign and the DNC to Fusion GPS, who’s also involved with this entire ordeal and we’ll get to that.
And we showed that the money was flowing from the campaign coffers to the law firm. Sussmann was coordinating and quarterbacking this entire operation. And that included two things, the Steele dossier and the Alfa Bank server on parallel tracks. And we’re focusing mostly on the Alfa Bank thing today, but we’ll touch on the Steele thing. And so I got him to admit. He said, “Yeah, I was there for a client.”
Fast forward to John Durham’s indictment, he’s indicted for lying he, Michael Sussmann to the FBI’s general counsel, James Baker. He, Michael Sussmann, went to see his friend in September 2016 with these things called white papers or these summaries that they had put together on Alfa Bank. And trying to find a connection between Trump Tower and some bank in Russia.
Mr. Jekielek: But ostensibly as a good Samaritan?
Mr. Patel: That’s what he said. That’s part of what’s in this pleading and that’s part of what’s been his defense. “No, no, I didn’t go there and lie. I was just doing work as a good Samaritan.” Well, it can’t both be true. Right, Jan? You told Congress under oath, you were there on behalf of a client, a paying client. And then you told the head of the FBI’s legal department, “I’m not here for any client. I’m here just as a good Samaritan.” One of those is a lie. And he got charged with lying to the FBI.
Mr. Jekielek: And now we have a text message from Sussmann to Baker that essentially follows the good Samaritan narrative.
Mr. Patel: Yes. So look, as a former public defender, one of the hardest things to defend against was your client’s own statements because you can’t run away from them. You have to own them and you have to craft a defense around them. The hardest thing to do is when you have written statements, recorded statements that your client gave, two different periods of time that are contradictory. And that’s what you have here. So what the prosecution I believe will do, what I would do, also, when I was later a federal prosecutor was, I would just take the transcript where he was deposed under oath and said X, and I’d hand it to the jury. And then I would take the recorded statements from the FBI’s general counsel and their agents where he said why on the exact same subject. Two totally opposite statements that were recorded. And you can just hand the jury the pieces of paper and say, “This is what he said. He lied.”
What’s the defense going to say? “Well, he was just joking to Congress.” The FBI’s notes are inaccurate. The FBI’s recordings of these conversations are wrong. Multiple agents got it wrong. The general counsel for the FBI came in and testified during this trial and lied.
Their defense is in shambles right now. And I think largely because of some strategic blunders, but mostly because Michael Sussmann lied and should be convicted of this crime.
Mr. Jekielek: Basically, they can’t use any of these defenses that you just outlined because he himself sent that message?
Mr. Patel: Yes. The text message, right? The night before Michael Sussmann went to meet with James Baker, the head of the FBI legal department, Michael Sussmann texts James Baker. And now John Durham has got that text message and put it in this pleading. And that text message, in Michael Sussmann’s own words that he typed out on his phone and hit send, say, and I’m summarizing, but we can put it up. “I am not coming to you on behalf of any client.” Then that’s it. That’s the case. But there’s so much more to this pleading.
Mr. Jekielek: I can’t help but think and ask myself the question, how long has Durham had this?
Mr. Patel: That’s a great question that no one’s talking about, and I think we’ve touched on it in past episodes. John Durham, as a federal prosecutor in national security cases, which this is a national security case, has had this for a long time. He didn’t just get it. You hold your best evidence as a prosecutor. You don’t divulge it. You turn it over to the defense, of course, because you have obligations to give them all of your information and evidence that you’re going to use at trial and that they might be able to use for their defense. Now, the defense isn’t going to put this statement out there.
And up until this point, John Durham had no cause to publicly put it out there because it would’ve been unethical for him to leak it. He could only issue it in a pleading. Going back to the defense’s blunders, the defense said, “I want a motion to dismiss.” They filed it. “I want to do a motion in limine on behalf of the defense.” And now John Durham’s saying, “Well, Judge, their defense is going to be that this statement was immaterial and that he did not lie. I have statements that directly contradict that from the defendant’s own cell phone.” So he filed it.
Mr. Jekielek: But the reason I asked that question is there were these phones, which were kind of held back from Durham for a while. And my question is, I wonder if that particular text message might have been from there.
Mr. Patel: So it could be. Exploiting cell phones should be a fairly mundane and automated process by now. But as we’ve seen, the FBI has an uncanny ability to lose cell phones, for Peter Strzok and Lisa Page and other folks involved in Russiagate investigation. They delete other cell phones. It’s one of the things that frustrates American citizens about our law enforcement is why aren’t we holding them accountable? And maybe John Durham had it for a while from one of these phones, maybe he just got it. But I think he had it for a while. And the point is, he’s got it. He’s now told the world he has it. And the defense is now going to have to scramble to figure out what to say to a jury with a straight face about their client.
Mr. Jekielek: So we’ve talked about one of the text messages, that’s the one that really struck me. But there’s a whole number of other communications in here that are worth digging into. Which ones did you remark on?
Mr. Patel: We’ve always said, or I’ve always said on the show that I think that the Hillary Clinton campaign, the DNC, Fusion GPS, Joffe the tech executive, and the media and Christopher Steele have all acted in concert, that is together, in some sort of conspiracy against… Whether it was against Donald Trump or whether it was just breaking the law. We said, they’ve done it together. And we’ve got called out for that even though we put forth evidence in the Nunez memo, supporting all the Steele dossier allegations and the concert that the actors acted in there between the Hillary campaign and all the folks that I just mentioned.
What I find most striking about this pleading is John Durham’s use of the joint venture conspiracy exception to 404B. What he’s saying, he, John Durham in a federal pleading, which is basically, you’re saying it under oath because you can’t lie as a prosecutor there. “Judge, not only did Michael Sussmann do all this stuff alone, and not only should you admit this evidence because it satisfies other elements of the evidentiary statutes. But even if I was wrong about all the other exceptions, I now have a joint venture, a conspiracy that I can show you through all this evidence.”
And to me, that’s what was most striking. And it was shown by their own emails. And what I mean by their is the folks that I just cited. And we can walk through that a little bit if you want.
Mr. Jekielek: Yeah, no, please. Let’s do that.
And what does joint venture conspiracy really mean?
Mr. Patel: Yeah, so that basically is a bunch of folks got together to do something illegal, essentially. And we’ve been saying that the whole time. But of course, we were castigated a lot in the mainstream media for saying there’s no proof for that, when there was, at least with the Steele dossier. And it started to come out that the Alfa Bank server narrative was also, I don’t want to say a hoax, but totally conjured up and a fiction that was forced into the media falsely to attack Donald Trump. And I think this pleading zeros out any doubt. So what they did was, going back to prosecution 101, what’s the best evidence? Theirs.
I did it when I was a Russiagate Chief Investigator. I took the FBI’s own documents, I took the DOJs own documents, the EIC’s own documents and said, “You guys wrote this, I didn’t write it. It’s your information. This is why I know you guys lied intentionally about the Steele dossier and everything you did at the FISA court.”
John Durham goes, “I’m going to go get these guys’ emails.” So he gets the emails from Fusion GPS, which as you know, is Glen Simpson and Peter Fritsch who own that operation. The media company, I get us if you want to call it that. But they put themselves out as an investigative firm. These are the guys that hired Christopher Steele to come in and paid him with money from the Clinton campaign to conjure up the Steele dossier. So they go get their emails. Then they go get Rodney Joffe’s emails, who’s the tech executive that Sussmann went to, to say, “Hey, I need information found on Alfa Bank server connections in Trump Tower so that I can show, quote unquote, a narrative and inference,” which is cited by John Durham, “so we can make a Trump Russia connection.”
He gets some of Sussmann’s emails on top of that. And he gets a few other people’s emails that we’re working with Rodney Joffe. And he outlines all of that in this extensive pleading. What does it show? It shows in August 2016, if not before, these characters participated in a joint venture conspiracy together to go out and perpetuate this fraud—fraud being the Alfa Bank’s server narrative.
So now he has their own words, their own email saying they’re meeting together, they’re getting money from the Hillary Clinton campaign, they’re all rolling in the same direction pursuant to the orders of Michael Sussmann at the direction of the Hillary Clinton campaign, I believe. And one of the other most striking parts of this is, we finally now know what we’ve been saying is true. John Durham has said, “Actually your own emails tell us that the Alfa Bank narrative that you tried to create is totally bogus.”
One of the companies that the tech executive Joffe worked with, came back to Joffe and said, “The information you’re looking for doesn’t exist. We can’t connect Alfa Bank to Trump Tower.” There’s literally a sentence that John Durham found in one of their emails that says, “If you want me to fake the information to make it look like there was a narrative and an inference, then I can go ahead and do that.” That’s what you call getting caught dead to rights.
That’s what John Durham means by a joint venture conspiracy, because it wasn’t one man acting alone. It was all these people, all these entities with the money flowing in from the Clinton campaign, acting in joint concert with the media. So that’s the other part I forgot. Right? So Fusion GPS, the investigative firm, takes all this information and funnels it to the media.
And there’re exchanges between the media and Fusion GPS in email format that John Durham also captures in this pleading. And the media goes back to Fusion and says, basically, “Wait a second. We don’t understand what you’re saying. Where’s the connection? Where’s the proof of this Alfa Bank server connection?” Fusion GPS basically comes in over the top and says, “Doesn’t matter. Get it out the door. It’s too important. We need the narrative out there.”
And then, here’s what happens. Shortly after the Alfa Bank server narrative is put into play in the press in, was it the fall of 2016? Maybe like September-ish, I can’t remember the exact date. Who? Jake Sullivan, one of the heads of the Hillary Clinton campaign, comes out and tweets the Alfa Bank server narrative, the story that his campaign had placed through Sussmann and Fusion GPS and Rodney Joffe. And says, “Look at this. Trump did collude with Russia. He has a server in Trump Tower and we have the connection.”
The shocking part is he, as the head of the Hillary Clinton campaign, is putting out this tweet as if he had nothing to do with it or no knowledge of it. Another guy I interrogated under oath is Jake Sullivan in December 2017. And I think that deposition, we could put up a link to it, is a reason that he has a lot of concern as to whether or not John Durham [is] coming after him for lying to Congress. And I’ll just put it to our audience this way. Do you really think Jake Sullivan had no idea or no direction or no involvement in perpetuating the Alfa Bank server narrative? I don’t believe it for one second. I think I asked him about it in my interrogation of him, just like I asked Sussmann. And he’s got some legal jeopardy.
Mr. Jekielek: Well, it’ll be interesting to see where this develops. But correct me if I’m wrong here, but I don’t believe that Fusion GPS has been so unambiguously tied to the Alfa Bank narrative as of yet. Of course, it’s been very tied to the Steele dossier. But what are your thoughts here?
Mr. Patel: I think I agree with you. I don’t think there’s been a narrative out there in the media. You and I have talked about it probably on our show in the past that ties Fusion directly to Alfa Bank, right? This in no twisted terms directly implicates Fusion GPS’s act, it puts them in the middle of this joint venture because they’re the hub that’s taking in the information from Sussmann, from Rodney Joffe, from the other tech executives and the university that they cited to find this narrative and inference about a connection.
It all goes into the Fusion GPS calculator while Steele is working with them to conjure up the Steele dossier narrative. And then Fusion GPS meets with all of these cast of characters, including Michael Sussmann and other lawyers at Perkins Coie, the Clinton campaign lawyers. And then go to the media and seed these stories. But I think you’re right. I don’t know of another instance, at least in a pleading, that so directly implicates Fusion GPS as a joint venture co-conspirator, which is exactly what John Durham’s done here with their own emails.
Mr. Jekielek: According to the pleading, the FBI wasn’t the only agency that Sussmann went to.
Mr. Patel: In John Durham’s pleading that we’re talking about today, he says, Michael Sussmann went to, “another government agency with that information.” Now based on public media reporting, I can say, I believe that agency to be the CIA. And why is that important? Why is that relevant? Who cares if Michael Sussmann also took that same Alfa Bank information over to the CIA?
What John Durham says is 404B, Judge, shows intent, shows knowledge. Because he went and took that same information to the CIA. And what John Durham is saying is, he, Sussmann, said the same exact thing to them. “I’m here on behalf of no one. I’m here as a good Samaritan. Here is a white paper or a summary of information. Maybe you, the intelligence community, should utilize this,” What I now call political hot garbage, “and try and investigate a sitting.” Because at this time, President Trump was already in office.
So again, careful what you wish for defense. John Durham is now taking the step appropriately to inform the judge that, while I’m not saying that in and of itself was a crime, him going to the CIA and lying to them, it could be. He’s using in this case in chief to show, “Judge I’ve got document…” I believe the only way he could do this was if he had documentation and written records from the CIA saying, Mr. Sussmann came to us on such and such a date and presented this information and said it was on behalf of nobody.
There’s also references to some of this information in the deposition I took. So I think he put those two things together and said, “Okay, if Michael Sussmann’s going to come out and say, I didn’t lie to FBI general counsel Baker about presenting this evidence in terms of who I was presenting it for.” Well, he did the exact same thing, just a few short months after he went to the FBI, to the CIA. And that’s why I think it’s even more problems for Michael Sussmann. He’s going to have a hard time running away from, “I didn’t do it once. Judge, I didn’t do it twice. It was just a combination of errors. And I misspoke.”
Mr. Jekielek: And it’s incredible to see that, basically Durham making this case again and again and again. And that’s I guess what you need to really make the jury sure of what you want to tell them.
Mr. Patel: That’s how you layer cake it. I mean, that’s literally how you build… Conspiracies are very hard to go into court and say, “Judge, I got one piece of evidence to show these people conspired and lied.” But if you can start layering it, I’ve got testimonial evidence, live human beings coming in and saying it. I’ve got documentary evidence, I’ve got emails, I’ve got text messages, I’ve got recorded conversations. I’ve got the defendant’s own words, recorded sworn testimony under oath to Congress. If you can start layering those things on top of each other, it becomes a very, very strong case for the prosecution. And that’s what I think John Durham’s doing here.
Mr. Jekielek: So what’s this about Durham wanting to move this under the business records exemption? And this is something I don’t really understand.
Mr. Patel: Yes. It’s a great question. A lot of people wonder, what about private companies? Aren’t their emails, isn’t their work product have some sort of protection from being utilized in federal criminal prosecution? Generally it does, but the same federal rules of evidence that talk about 404B, joint venture and all this stuff prescribe a business records exemption to documents that a prosecutor collects in connection with an indictment he is pursuing.
So what John Durham is saying is Fusion GPS, Perkins Coie, Rodney Joffe, even to a certain extent, the tech executives and all these other folks, they created all of these emails, all of these text messages, all of these documents pursuant to their business, their job. And the federal rules of evidence allow for you as a prosecutor to submit that evidence through the business records exemption, as long as you as a prosecutor, and John Durhams satisfied this I believe, show that they, Fusion GPS, Rodney Joffe, Michael Sussmann, Christopher Steele, whoever we’re talking about, produced that email, that work product pursuant to their business.
And once you can show that in a proper chain of custody, which is pretty easy because you just say, “Yeah, I exploited it from Michael Sussmann’s computer. I got this from Rodney Joffe’s phone. I got this from Fusion GPS’s email server.” Then you can go ahead and present it to the judge and say, “It’s under the business records exception. And I’m using it to show,” you sort of connect, “the joint venture. Or I’m using it to show motive or intent or knowledge or planning.”
And it’s very hard for Michael Sussmann to defeat all of those 404B exceptions because seemingly each piece of evidence, to me, satisfies multiple, multiple exceptions, not just one about his prior bad acts or his motive or his knowledge or his intent. Because the heart of his defense is saying, “Nothing to see here, Judge. It’s either immaterial or he didn’t lie.”
Well, he wrote an awful lot of emails and text messages to an awful lot of people, had tens of millions of dollars flow through his law firm, paid out a lot of people to create false information, presented it to the FBI, the CIA and the media. That’s a whole lot of work for someone who’s now going to say, “Just kidding. I didn’t really have anything to do with that. And we were never going to actually use it. So none of its material.” That, my friend, is a stretch. And I think I tried 60 some odd jury trials to a verdict in federal and state court. A lot of them as a public defender. And I don’t know, even if I could make that argument with a straight face.
Mr. Jekielek: It’s incredible, isn’t it, how Durham is using these pleadings. This is ostensibly just entering evidence right into the trial to the judge. And so many, so many nuanced details here. It’s quite fascinating, frankly.
Mr. Patel: Yes. And I think one interesting tidbit for our audience is, I spoke to President Trump about the latest John Durham pleading. And what I think he found most striking is the level of detail that John Durham is going to methodically lay out his case. And what I’m able to tell you guys is that, I relay to former President Trump that, as a former federal prosecutor, you want to get it right. And if you’re investigating the largest criminal conspiracy in U.S. Presidential history, you got to get it right, you got to layer it and you got to make sure I’s are dotted and your T’s are crossed because any one mistake can cost you the case.
And I think that this is just the base of the pyramid. So he’s laying out this huge joint venture conspiracy. Now he has all the players at the lower level and just above that rung. And where you go from there is you go up, you go up to the Lisa Pages, Peter Strzok, Andy McCabes, Fusion GPS’ of the world, Bruce Ohr, Nellie Ohr and Chris Steele. That’s how you slowly build your conspiracy till you get to the tip. Who is your ultimate target? I don’t know who his ultimate target is, but mine would be Andy McCabe.
Mr. Jekielek: That’s exactly what I was going to ask you. Which is, you’re not suggesting that all these people are and get indicted, but you think there is someone high up who will be.
Mr. Patel: Yes. Unlikely that all of them get indicted, likely that a lot of them are cooperating. And thanks for bringing that up. So in the pleading, one of the FBI agents whose notes that John Durham submits to be produced into evidence during his case in chief is from the former assistant director of counterintelligence. That is Bill Priestap. He, John Durham, writes in his pleading, “Judge, I’m going to have,” not by name, but by title, “former assistant director of counterintelligence, who I believe is Bill Priestap. He’s going to testify that those are his notes. They were taken contemporaneously. And they literally say, Michael Sussmann told the FBI, he was not working on behalf of a client when he presented that information.”
That shows to me folks like him are helping the prosecution and not necessarily going to get indicted. That’s just an example of something, of how to portray that. And my belief in what’s going to happen. Others, I think are in his cross hairs. I think Fusion GPS is. I think Andy McCabe is. Lisa Page, Peter Strzok, Bruce Ohr, Nellie Ohr, Fusion GPS, Glen Simpson, Peter Fritsch, and some FBI employees along the way who helped perpetuate that fraud to the FISA court.
John Durham is showing you in these pleadings that he’s building up. And that’s what you do in a federal indictment. You can’t start at the top. It’s impossible to say, “I want to get the CEO. I want to get the owner. I got to go out after that guy.” That may be your target, but you have to build up with evidence that you can use at trial for that. And that’s what I think John Durham’s doing.
Mr. Jekielek: Well, so Hans Mahncke, one of our reporters, analysts, I know he read the thing immediately after it was published in the middle of the night, I don’t know how he does it. We were just talking this morning, and his theory is basically that by talking about, portraying this whole conspiracy and so forth in the pleading, that Durham is kind of nudging Sussmann and saying, “Hey, maybe it’s time for you to play ball with me.”
Mr. Patel: That is a prosecution strategy. It’s an approach when you’re working on a joint venture conspiracy. You rarely have the evidence that you can present to get everybody convicted without having someone, as we say, flip, and that goes, turn states, you’ve heard it in movies, and cooperate with the federal government. It’s a strategy. And I think Hans is correct in that John Durham has considered it and probably rolled it out.
But I don’t think it’s one that Michael Sussmann’s going to take. I just don’t believe his universe is going to allow him to come in after making all these pleadings and all these statements and fighting this in both the media and in court so hard. He could. He could change. He could change his plea and say, “I’m going to cooperate now.”
But for me as a prosecutor, there also comes a point in time in your prosecution when you make the determination, it’s your call, that I’m not going to give the defendant a deal. I don’t need him anymore. I’ve got so much more evidence along the way that I’ve been collecting, collecting, collecting. And thanks to some of the defendant’s strategic blunders, I’ve obtained even more evidence that I didn’t think I was going to get. And now I’ve put it out that I’m going to convict him and I don’t need him.
I’ve had that happen when I was a public defender. I’ve missed the opportunity, that is to say, because the guys I was representing said, “I don’t want a deal just yet. I don’t want to deal just yet.” And there’s always a shelf life to that. And so I think Michael Sussmann has probably missed that opportunity even if he wanted to do it. And I just don’t think he ever would want to cop to a plea. That doesn’t mean there’s not other people that are already cooperating with John Durham.
Mr. Jekielek: Right. Are there any others other than Bill Priestap in your estimation?
Mr. Patel: Well, James Baker’s obviously cooperating. He’s the star witness, I think you would say, in terms of the Michael Sussmann prosecution, because he was the recipient of said lie. And he’s got a couple of his agents, a deputy general counsel, a few other folks that were named in there. Now, all those folks aren’t necessarily in any legal jeopardy, they’re just cooperating to help and do the right thing. Some of them might be. So just want to make that really clear.
But I think there are others in the whole grand scheme of Alfa Bank, Christopher Steele, Fusion GPS, Steele dossier. Maybe the tech executives are cooperating. Maybe the university that he keeps citing is cooperated. Maybe one of the other internet company folks that Sussmann hired is cooperating against them. It sounds like to me, that’s what he has. That’s much my reading of this pleading and all the other ones he’s doing is that he’s got some folks on board team America, as we say, for purposes of not just this prosecution, but the rest of his investigation.
Mr. Jekielek: Kash, let’s talk about one of these, I guess we call it an unforced error, that’s kind of how you’ve described it in the past, that the defense may have done to basically elicit this massive pleading from Durham. So the line is fascinating because the language is so obscure in a way. They say, that’s right, “The indictment contains no reference to Mr. Steele or the inflammatory Steele dossier. The indictment similarly contains no allegations, nor is there any evidence of Mr. Sussmann’s knowledge, awareness or involvement in any of Mr Steele’s efforts to provide the information to the government?”
Mr. Patel: Yes. Those words are very meticulously chosen and by a very smart defense attorney. And just stepping back for a second. So that defense pleading, that defense motion in limine, directly preceded John Durham’s response motion in limine. But before both of those two motions happened, there was a teleconference in mid-March, which is just a court hearing that you do over the telephone between the parties on the Sussmann case. And during that teleconference, it came up that the possibility that John Durham would call Christopher Steele as a witness in the case, and or use some of Christopher Steele’s testimony or evidence from Christopher Steele. So that spurred the defense in part to come in with this statement that you just read to our viewers.
And as a former public defender, looking at that, and a former federal prosecutor, it’s almost too cute by a half. Because what the defendant and Michael Sussmann could have said was, “I don’t have anything to do with Christopher Steele. Doesn’t matter. Call whoever you want.” Instead, they said, “The indictment doesn’t name anything Christopher Steele is doing.”
The indictment doesn’t have to do that. The evidence can flow underneath the indictment during the case in chief, that’s the whole point. The indictment is a summary of the crimes you are charging the defendant with. It’s not supposed to have everything. The more interesting part of that sentence or paragraph is the second part, where they say, the defense for Sussmann says, “Nor is there any evidence that John Durham provided about Mr. Sussmann’s knowledge or involvement with any of Mr Steele’s activities.”
I want our audience to pause on that for a second. This was an opportunity for the defense for Michael Sussmann to come out and say, “Not only has John Durham not produced any evidence, there is not any in existence because our client has no relationship with Christopher Steele.”
That’s what you do if you are ethically able to say that as a defense attorney. To me, what that means is the defense knows, somewhere in the ether, Michael Sussmann and Christopher Steele either communicated directly or indirectly. And as we talked about, and I really want to highlight this real quick. Some of the information that John Durham put out was that in August 2016, as admitted through their own emails, Fusion GPS, Michael Sussmann, Perkins Coie, Rodney Joffe, tech executives and the media all talking and communicating about Russian collusion in August 2016. Was Christopher Steele part of those conversations via Fusion GPS, who he’s hired by since Fusion GPS was in those conversations? Are we to believe that the investigative firm being paid millions of dollars by Michael Sussmann and the DNC wasn’t telling their client what they were finding?
So it’s a very interesting maneuver or word choice, I should say, by the defense, in this case, when they could have just flat out said, “Nothing to see here, never met the guy, never talked to the guy, never communicated with the guy and didn’t know that any of the client’s money was being paid to Christopher Steele.” They didn’t say any of those things. And these are excellent lawyers. They just said, there’s no evidence. There’s nothing in the evidence yet to show that. To me that says it’s almost a half admission that I think they, again, they went too far by trying to get the Steele stuff out of the way. And what’s funny, maybe funny is not the right word, but maybe the irony of all ironies is the defense lawyers for Michael Sussmann plead in writing to a federal court that the Steele dossier is, quote, inflammatory.
Mr. Jekielek: That is incredible, isn’t it? Say that again.
Mr. Patel: Yes. The defense lawyers for Michael Sussmann, in a federal pleading, are calling the Christopher Steele dossier inflammatory. Yeah, they just pled that to a federal judge. They, the guys at Perkins Coie, who paid Fusion GPS millions of dollars to Christopher Steele to write his bogus Steele dossier, which they later jammed down the FISA court to surveil candidate Trump and later President Trump, his lawyers, the central actor of this, his lawyers are now saying, “Well, that dossier is highly inflammatory.”
We have said that and proved otherwise when we did the Russiagate investigation on since, because we took out the credibility, we used the FBI’s own documents. We showed the corruption of the FBI and the Hillary Clinton campaign paid for it. It’s very ironic now to see the former lawyer, head lawyer for the DNC coming out and saying in court, “That document is inflammatory.
Mr. Jekielek: And so I think it’s time for a shout out, Kash.
Mr. Patel: Today’s shout out goes to Philip Nary. Thanks so much for posting your comments on our wall. Jan and I look forward to reading everybody’s comments and we appreciate your support. We’ve also noticed an uptick in comments on our truth social accounts regarding Kashs corner. So we really appreciate that. And we very much look forward to seeing you all back next week on Kashs corner.
This interview has been edited for clarity and brevity.
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