Day 2 of the Michael Sussmann Trial

Day 2 of the Michael Sussmann trial started with some housekeeping. Here are the rulings of note:

1. Robby Mook, who has a scheduled vacation in Spain, will testify on Friday. He’s a defense witness.

2. Evidence of Steele’s meetings with Sussmann and Fusion GPS in July 2016, and his tasking to conduct research on Alfa Bank, according to the judge, “can come in.” The judge observed they are “relevant to Mr. Sussmann’s activities for the campaign and his attorney-client relationship, as far as it went, with the campaign as it relates to Alfa-Bank.”

Onto the witnesses. We start with the short testimony of Deborah Fine.

Fine began working for the Hillary Clinton Campaign (aka Hillary for America) as “one of several deputy general counsels” in May 2016. She answered to Marc Elias, the campaign’s general counsel.

After being presented with calendar entries confirming her daily calls with Fusion GPS, she testified that she worked with them as “part of my work for the campaign.” In fact, she regularly interacted with Glenn Simpson and co-founder Peter Fritsch. Fine conceded that Fusion GPS were seemingly free to conduct research on their own, stating she “personally didn’t direct them” to accomplish specific tasks.

On cross, she admitted she didn’t now if Marc Elias spoke to anyone else at the Clinton Campaign about the activities of Fusion GPS. She was out of the loop regarding efforts to bring the Alfa Bank allegations to the NY Times or to the FBI.

Testimony of Laura Seago

Laura Seago worked with Fusion GPS back in 2016, where she reported directly to Fritsch and Simpson. She has been granted immunity by the Special Counsel for her testimony. She understood Marc Elias to be the Fusion GPS contact for the Clinton Campaign.

Seago stated she was present at a summer 2016 meeting with “Mr. Elias, my colleague Peter Fritsch from Fusion GPS, Mr. Sussmann, and Mr. Sussmann’s client Rodney Joffe.” As to the nature of that meeting:

“The general purpose, to the best of my recollection, was to discuss allegations of communications between the Trump organization and Alfa-Bank.”

Once the Alfa Bank allegations were developed, Seago met with journalist Franklin Foer (who would write the October 31, 2016 Alfa Bank article in Slate). The purpose of that meeting was to discuss “the allegations of communication between the Trump Organization and Alfa-Bank.”

They sold Foer on the Alfa Bank data at that meeting, telling him there were “highly credible computer scientists who seemed to think that these allegations were credible.” These “credible computer scientists” would ultimately be cited in Foer’s article. She admitted that Fusion GPS did nothing to validate the DNS records - something she said was “beyond my capabilities.”

Seago was walked-through a number of e-mails she had with Joffe and other members of Fusion GPS. Some of these were privileged (the Joffe e-mails) so the Special Counsel was unable to discuss with Seago the contents. However, she did know about contents of the Joffe e-mails generally:

Finally, she admitted to understanding whose interests were served by planting the Alfa Bank story.

Now we get to Marc Elias.

Elias met weekly with Fusion GPS at his office. Typically Peter Fritsch and Glenn Simpson would be in attendance. Generally, those meetings involved discussions of Elias’s “needs” and Fusion GPS’s “work” - which included what Elias described as the “unusual connections” the Trump Campaign had with Russia. They would also report to Elias on their findings related to Trump during the election.

Notably, Elias mentioned Jake Sullivan as someone at the Clinton Campaign who knew about the Trump/Russia research (though there is uncertainty as to whether Sullivan knew about Fusion’s activities). Elias would give the campaign these updates.

A brief aside: Jake Sullivan’s wife is Margaret Goodlander - who serves as counsel to Attorney General Merrick Garland. We understand that she has not recused herself from anything having to do with the Special Counsel’s investigation. We further understand that Goodlander is keeping close tabs on Durham’s investigation. We’ll report on that down the road…

Anyway, Elias also testified that the Clinton Campaign paid them (Perkins Coie) a “flat fee” for their legal services. Why is this important? Because it explains why Sussmann would block bill the Clinton Campaign (see tweet below). (“Block billing” is having a multi-hour entry with a generalized description. Example: “6.5 hours on confidential project.”) For flat fee work, attorneys are generally allowed block billing because the client isn’t paying the hourly rate. In contrast, for hourly work, lawyers are expected to provide more detail of the tasks they completed.

John Haughey @JFHaughey58

Proceedings have resumed with more of Elias being queried on billing records that show Sussmann toiling on a "confidential project." July 29, 2016, $4,455 for 5.3 hours, and Aug. 12, 2016, $1,252 for 1.5 hours on “confidential meetings with M. Elias, others.” #SussmannTriaL .

The Special Counsel then walked Elias through a number of billing entries/emails from and involving Sussmann. These included meetings with Elias, meetings with Joffe, and Fusion - and involved “the Alfa-Bank allegations.” The Special Counsel undoubtedly proved that that Sussmann was billing his time on the Alfa Bank work to the Clinton Campaign.

Then there’s the infamous Slate article on the Alfa Bank/Trump connections. Sussmann told Elias that the Alfa Bank data had been provided to the media. And after the Slate article was published, Elias forwarded it to the campaign:

Elias further offered that he would have briefed the Clinton Campaign about the Alfa Bank matter. He also admitted that he had discretion to instruction Fusion GPS to pursue leads and take investigative steps without checking with the Clinton Campaign.

Cross Examination of Marc Elias.

Some notable moments of the Elias cross-examination included:

• An e-mail from Robby Mook to Elias forwarding an article discussing that reporters at the New York Times are working on a Trump-Russia story (Alfa Bank).

• Sussmann didn’t seek Elias’s authorization or permission to go to the FBI. He couldn’t recall anyone with the Clinton Campaign telling Sussmann to go to the FBI.

• Elias was frustrated with the FBI for not doing anything “particularly helpful in investigating or doing anything to prevent the leaks of the [DNC] emails.”

Re-direct of Marc Elias

• Fusion GPS did not need to consult with Elias before sharing info with the media.

• Elias admitted the existence of an FBI investigation can prompt news stories. He also admitted that FBI investigations can speed up news stories. These questions attacked the heart of the Sussmann defense - and address how the New York Times article from Eric Lichtblau “got stuck” because his editors were reluctant to pursue the story.

The last witness - former FBI General Counsel James Baker

Recall that Baker was approached by Sussmann for a meeting in September 2016 regarding the Alfa Bank allegations. The lie told at that meeting - that Sussmann wasn’t there on behalf of a client - is at issue in this case.

Sussmann had scheduled the meeting via a text to Baker’s phone. It read:

Baker remarked he was surprised that Sussmann obtained his cell number. They agreed via text to meet the next day at Baker’s FBI office the next day.

And at that point the day ended.

After the witness and jury left, the Special Counsel informed the court that the next witnesses after Baker would be Bill Priestap, Trish Anderson, and Special Agent Gaynor.

As for us? We’ll be traveling the next few days - but hope to provide as detailed updates as possible.