In Isaac’s excellent reporting on opening statements in the false-statements trial of Democratic lawyer Michael Sussmann, he relates an assertion by defense lawyer Michael Bosworth that could blow back on Sussmann:
Bosworth said that Sussmann had everything to lose and nothing to gain from lying, and that Joffe is “one of the world’s leading cyber experts,” so he had no reason to doubt that the data represented a national-security concern.
Joffe is, of course, Rodney Joffe, a top exec at Nuestar and a Sussmann client (identified in the indictment as “Tech Executive-1”). He is one of the clients (the Clinton campaign is the other) that Sussmann is accused of lying about to the FBI in order to conceal their relationship. Joffe was principally responsible for compiling the Internet data used by the Clinton campaign to claim (at least inaccurately, if not falsely) that Donald Trump, then the GOP’s presidential nominee, had a secret communications back channel with Russia. The data tied to servers at Alfa Bank (an important Russian financial institution) an email domain that Joffe, Sussmann, and others wrongly associated with Trump.
As prosecutor Brittain Shaw explained in the government’s opening statement (on behalf of Special Counsel John Durham), “the server was merely a spam email server,” which “did not reflect a crime, nor was it a threat to national security.”
As I’ve previously explained, there are major issues regarding the Internet data (primarily, domain-name system records) that Sussmann purveyed to the FBI. At a minimum, after preliminarily opening an investigation based on Sussmann’s representations, the FBI concluded that the data were flawed and did not merit a full-blown investigation of the Alfa Bank collusion angle (even though the bureau was still relying on the preposterous Steele dossier in telling the FISA court that Trump might be a clandestine agent of Russia).
The CIA went further. After Sussmann brought the agency an update version of the data in February 2017, its analysts concluded that the information was not “technically plausible,” did not “withstand technical scrutiny,” “contained gaps,” “conflicted with [itself],” and was “user created and not machine/tool generated.”
Durham has caveated that, while the data were clearly flawed and did not prove the Trump–Russia connection that Sussmann claimed they did, he has not made up his mind about whether they were patently bogus, as the CIA found. Durham’s prosecutors are thus prepared to present extensive evidence showing that the data were inaccurate and unreliable.
That could be significant evidence of Sussmann’s motive and intent to lie. Sussmann is a highly experienced former Justice Department cybersecurity lawyer. In addition, his private practice specializes in cybersecurity; indeed, the Democratic National Committee famously retained him when its servers were allegedly hacked by Russian operatives. It is hard to believe that, if Sussmann scrutinized the records before bringing them to the bureau, he would not have spotted the flaws. And there is abundant evidence that he consulted with Joffe extensively before bringing the data to the FBI.
Obviously, if Sussmann knew that what he was bringing to the bureau was flawed, yet represented to the bureau that it showed a Trump–Russia communications back channel, that would be powerful proof that he was being deceitful. Consequently, the defense tack has been to claim that Sussmann relied entirely on Joffe’s assessment of the data, rather than analyzing them himself.
Part of that defense strategy is to prevent the jury from hearing much, if any, of Durham’s proof that the data were rife with errors and irregularities. The idea is that if Sussmann relied on Joffe, he was blissfully unaware of these problems, and therefore any inaccuracies are irrelevant to his state of mind.
In his pretrial ruling, Judge Christopher Cooper precluded Durham from showing the jury most of his evidence about the data’s flaws, but only on the Sussmann defense’s representation that it would not claim that the data were accurate.
Now, in his opening statement, Sussmann’s lawyer Bosworth has told the jury that, because of Joffe’s expertise, on which Sussmann supposedly relied exclusively, Sussmann had every reason to believe the data really did show a Trump–Russia connection. It’s subtle, but that is different from telling the jury he did not assess the data himself. Bosworth went the extra step of intimating that if someone of Joffe’s experience believed the data showed a Trump–Russia connection, that conclusion was entitled to great deference.
I would watch for prosecutors to ask Judge Cooper for latitude to rebut this suggestion by introducing more evidence about flaws in the data. Otherwise, the record will reflect that a renowned expert examined the Internet records and concluded that they reliably established a communications back channel between Trump and the Kremlin.
Durham should be permitted to knock that suggestion down, if he can. Further, he should be allowed to demonstrate that the data were so flawed, someone of Sussmann’s experience and training had to have known it when he peddled that data to the FBI.