Day 1 of the Michael Sussmann Trial

Day 1 of the Michael Sussmann trial is a wrap.

It started with disclosure by Special Counsel DeFilippis informing the Court that government witness Dr. Manos Antonakakis (identified as Researcher-1 in the Sussmann indictment) “has decided to invoke his Fifth Amendment right.” He would not be called to the stand. More background on Manos here.

From there it was time for opening statements.

Special Counsel Brittain Shaw made clear that this case is “about privilege: the privilege of a well-connected D.C. lawyer with access to the highest levels of the FBI; the privilege of a lawyer who thought that he could lie to the FBI without consequences.” Using that privilege, Sussmann:

“went straight to the FBI general counsel's office, the FBI's top lawyer. He then sat across from that lawyer and lied to him. He told a lie that was designed to achieve a political end, a lie that was designed to inject the FBI into a presidential election.”

Circumventing the political leanings of the jury, the Special Counsel explained that “we are here because the FBI is our institution that should not be used as a political tool for anyone.” She elaborated that Sussmann, on behalf of his clients - the Hillary Clinton Campaign and Rodney Joffe - planned to manipulate the FBI, and trigger negative news stories, “to create an October surprise on the eve of the presidential election.” As to the evidence:

You're going to see emails and phone records that show that beginning in the summer of 2016 the defendant worked with Fusion GPS to develop the Trump/Alfa story and plant it in the press.

She also gave us this preview:

The attorney for Sussmann, in their opening, argued there was no lie. Instead, Sussmann “went to the FBI to help the FBI” - so they wouldn’t be “caught flat-footed” by a New York Times story discussing the purported Alfa Bank/Trump connections. Of course, they admitted as a result of the Sussmann/Baker meeting, the FBI decided it wanted “to investigate.” To condense Sussmann’s defense: no lie and no reason to lie.

FBI Supervisory Special Agent David Martin.

Agent Martin was the first government witness to testify. He explained the technicalities of the DNS data which alleged to have shown a secret back channel between Alfa Bank and the Trump Organization.

Sussmann’s attorney asked Martin if he knew Rodney Joffe a “confidential human source for the FBI.”

Martin replied “I was told that after the fact.”

On redirect, the Special Counsel offered this interesting bit of information relating to Joffe: “Are you aware that Mr. Joffe was closed for cause as a source?”

FBI Special Agent Scott Hellman

Hellman was involved in investigating the Alfa Bank allegations. He testified that the evidence (data and white papers explaining the data) provided to then-FBI general counsel James Baker from Sussmann was passed off to none other than the infamous Peter Strzok. One of these white papers stated:

“The only plausible explanation for this server configuration is that it shows the Trump Organization and Alfa Bank to be using multiple sophisticated layers of protection in order to obfuscate their considerable recent email traffic.”

Hellman disagreed with that finding, and the general Trump/Alfa allegations presented by Joffe/Sussmann, stating they “were not supported by the technical data.” Their methodology was “questionable” and the purported secret communications “just didn’t ring true at all.” He further questioned the timing of the data, stating he found it suspicious that these researchers “started looking, and they found that the activity had just started three weeks prior.”

This gets us to the issue of materiality. Sussmann’s attorneys argue that even if there were lies, they weren’t material to the investigation. The Special Counsel asked why sources matter. The key exchange:

Update - we now have the transcript for the afternoon session.

After the lunch recess, there was a discussion of whether Joffe’s termination as a source would be allowed to be discussed further during the trial. The court requested it be kept out - as Joffe’s data collection effort “is not at issue” in the trial. Special Counsel DeFilippis explained why Joffe had been “terminated” as a source:

the reason he was terminated, as we understand it from the FBI, is because of what he did in connection with the conduct that the defendant was involved in, which is, rather than bringing this Alfa-Bank information to his source handler, bringing it to the general counsel of the FBI, that was a breach of how a source is supposed to report information.

Continuing with Special Agent Hellman’s testimony…

After Agent Hellman reviewed a Alfa Bank white paper that had been submitted by Sussmann, Hellmann sent a message to a colleague that the white paper “feels a little 5150ish.” On cross-examination, here’s his explanation of what that meant:

Despite the issues with the white paper’s conclusions, FBI “counter intelligence” eventually opened an investigation into the purported Trump/Alfa Bank connections. According to Sussmann’s attorney:

when “counter intelligence” opened the investigation, “they said that they received a referral from the DOJ detailing an unusually-configured email server in Pennsylvania belonging to the Trump Organization and said that they received a white paper that was produced by an anonymous third party.”

Agent Hellman affirmed it was “strange” that the referral came from the DOJ.

Back to Joffe. Sussmann’s attorney also asked about Joffe bringing his handling agent, Tom Grasso, this info back in September 2016:

According to the transcripts, some of this information had to do with an “IP address of the person of interest at the bank.” The person of interest? We not sure of their identity - yet. Why Joffe thought to send his handling agent that info is also unknown.

Testimony of Steve DeJong (Neustar)

In 2016, DeJong worked on “DNS Operations and data analysis” at Neustar. Here’s his testimony on Joffe requesting Nuestar data concerning Joffe’s political opponents:

How common was politically motivated research?

On cross, DeJong was asked about Joffe’s history. Apparently, Joffe has worked on “other government-related FBI investigations” and has received awards from the FBI. DeJong had no personal interactions with Sussmann; for this “research” project he was specifically tasked by Joffe.

With that, the first day concluded. After the jury was dismissed, there was a brief discussion about whether Robby Mook can be called by Sussmann for testimony on Friday so that Mook can go on a Spanish holiday. We’ll provide updates as the trial continues.