• Re: OT: John Durham loves Hillary long time! (2/3)

    From John Doe@21:1/5 to All on Wed Apr 6 22:20:52 2022
    [continued from previous message]

    later provided the substance of the Russian Bank-1 allegations to personnel from the U.S. State
    Department, and the U.S. Investigative Firm provided such information to an official at the U.S.
    Department of Justice.
    • Emails, billing records, and testimonial evidence to be offered at trial reflect that
    during approximately the same time period – and before approaching the FBI about these matters
    – the defendant provided the Russian Bank-1 allegations to a reporter from a major U.S.
    newspaper.
    • As set forth in the Indictment, law firm billing records reflect that after providing
    the Russian Bank-1 allegations to the media, the defendant apprised Campaign Lawyer-1 of his
    efforts who, in turn, appears to have communicated with the Clinton Campaign’s senior leadership
    concerning these issues.
    • Emails and billing records will further show that, during the same time period, the
    defendant and Tech Executive-1 worked together on drafting a “white paper” that summarized the
    Russian Bank-1 allegations, which the defendant provided to the FBI during his September 19,
    2016 meeting. The defendant billed time drafting this paper to the Clinton Campaign. As
    described in further detail below, the evidence also will establish that Tech Executive-1 also
    solicited input on this white paper from the aforementioned University-1 researchers.
    • The evidence will show that the defendant also incorporated at least one of the
    aforementioned researchers into his efforts to disseminate the Russian Bank-1 allegations to the
    media for the benefit of the Clinton Campaign. For example, emails reflect that on September 17,
    2016 – two days before his meeting with the FBI – the defendant emailed Researcher-2, stating
    that “We have a mutual acquaintance,” in context apparently referring to Tech Executive-1. The
    Government expects that if called as a witness, Researcher-2 would testify that soon thereafter, the
    defendant spoke with Researcher-2. Researcher-2 would further testify that in their conversation,
    Researcher-2 asked the defendant whether the data underlying the Russian Bank-2 allegations had
    been lawfully collected and/or used. The defendant assured Researcher-2 that it had, thus
    reflecting the defendant’s apparent knowledge concerning the data’s origins. Researcher-2 would
    also testify that the defendant asked Researcher-2 to speak with the media about the Russian Bank-
    1 allegations, which Researcher-2 subsequently did.
    • At his September 19, 2016 meeting with the FBI General Counsel, the defendant provided three white papers to the FBI, which were drafted, respectively, by (i) the defendant,
    Tech Executive-1, and possibly others, (ii) Researcher-2, and (iii) the U.S. Investigative Firm
    (which, as noted above, the evidence will show was being paid by the Clinton Campaign at the
    time of the defendant’s meeting).
    • On October 31, 2016, the aforementioned reporter and another media outlet published articles regarding the Russian Bank-1 allegations. Within hours of these articles, the
    Clinton Campaign issued tweets and public statements concerning the purported existence of a
    secret communications channel involving the Trump Organization and Russian Bank-1.
    • Finally, the evidence of a joint venture or conspiracy will establish that in November 2016, soon after the Presidential election, Tech Executive-1 emailed a colleague,
    stating, “I was tentatively offered the top [cybersecurity] job by the Democrats when it looked like
    they’d win.”
    In sum, the above evidence, public information, and expected testimony clearly establishes
    by a preponderance of the evidence that the defendant and Tech Executive-1 worked in concert
    with each other and with agents of the Clinton Campaign to research and disseminate the Russian
    Bank-1 allegations. Accordingly, these parties acted as “joint venturer[s]” and therefore should
    be “considered as [] co-conspirator[s] for the purpose of [Rule 801(d)(2)(E)] even though no
    conspiracy has been charged.” Weisz, 718 F. 2d at 433.
    Emails Involving Tech Executive-1 and Internet Researchers
    Given this backdrop, emails and communications on these topics between and among Tech
    Executive-1, employees of various Internet companies, and/or the aforementioned researchers are
    admissible under the joint venture doctrine pursuant to Rule 801(d)(2)(E) and under other,
    applicable Rules of Evidence.

    For example, on or about August 20, Originator-1 sent the following lengthy email, which
    is quoted in part at Paragraph 23(h) of the Indictment:
    NOTE: The Russian money launderers, sometimes assisted by Americans
    like those you see listed in the PDF [Tech Executive-1] just shared [the
    Trump Associates List], and others you’ll see in [name redacted]’s next document .... Cyprus is one of the places they like. That's where [Russian Bank-1]-Forex is organized. Choose .com or .ru when studying their
    domains ... and remember we don’t need a russian IP, domain or company
    for money to flow from Russians to Trump.



    [Russian Bank-1]-* has massive tentacles in so many countries including
    the USA.

    Regarding this whole project, my opinion is that from DNS all we could
    gain even in the best case is an *inference*.

    I have not the slightest doubt that illegal money and relationships exist between pro-Russian and pro-Trump, meaning actual people very close to
    Trump if not himself. And by Putin’s traditional style, people Putin
    controls, but not himself. He controls the oligarchs and they control
    massive fortunes and cross nearly all major industries in a vast number of countries.

    But even if we found what [Tech Executive-1] asks us to find in DNS we
    don't see the money flow, and we don’t see the content of some message
    saying "send me the money here" etc.

    I could fill out a sales form on two websites, faking the other company's
    email address in each form, and cause them to appear to communicate
    with each other in DNS. (And other ways I can think of and I feel sure [Researcher-2] can think of.)

    IF [Tech Executive-1] can take the *inference* we gain through this
    team exercise ... and cause someone to apply more useful tools of more
    useful observation or study or questioning ... then work to develop even
    an inference may be worthwhile.

    That is how I understood the task. Because [Tech Executive-1] didn't tell
    me more context or specific things. What [name redacted] has been digging
    up is going to wind up being significant. It’s just not the case that you can rest assured that Hil[l]ary’s opposition research and whatever professional govts and investigative journalists are also digging ... they just don’t all come up with the same things or interpret them the same way. But if you
    find any benefit in what she has done or is doing, you need to say so, to encourage her. Because we are both killing ourselves here, every day for
    weeks.

    I’m on the verge of something interesting with hosts that talk to the list of Trump dirty advisor domain resources, and hosts that talk to [Russian Bank- 1]-* domains. Take even my start on this and you have Tehran and a set of Russian banks they talk to. I absolutely do not assume that money is passing thru Tehran to Trump. It’s just one of many *inferences* I'm looking at.



    SAME IRANIAN IP THAT TALKS TO SOME TRUMP ADVISORS, also
    talks to:

    [list of domains redacted]

    (Capitals don’t mean SUPER SIGNIFICANT it was just a heading.)

    Many of the IPs we have to work with are quite MIXED in purpose,
    meaning that a lot of work is needed to WINNOW down and then you will
    still only be left in most cases with an *inference* not a certainty.

    Trump/ advisor domains I've been using. These include ALL from [Tech Executive-1’s] PDF [the Trump Associate’s List] plus more from [name redacted]’s work:

    [list of domains redacted]

    [RUSSIAN BANK-1] DOMAINS.

    [list of domains redacted]

    More needs to be added to both lists.


    The Government respectfully submits that none of the above email – or other, similar
    emails – constitutes inadmissible hearsay. As an initial matter, such communications are clearly
    probative separate and apart from their specific assertions because they reflect the fact that Tech
    Executive-1’s tasking triggered and/or affected particular research efforts that ultimately
    culminated in the defendant’s September 2016 meeting with the FBI General Counsel.
    Accordingly, the Government does not seek to offer any of this email for its truth (i.e., its analytical
    hypotheses, assertions, or inferences) but, rather, to establish the factual context in which the email
    arose and the effects it had on the recipients, including to explain the defendant’s “future conduct.”
    Safavian, 435 F. Supp. 2d at 45–46. More specifically, the Government does not seek to prove
    whether Originator-1 and the email’s recipients “s[aw] the money flow,” whether Russian Bank-1



    has “massive tentacles” in many countries, or whether or not the researchers could in fact
    “fake” internet data and cause the appearance of communications. Rather, the Government
    intends to offer this email to show that the technical issues and allegations discussed therein are
    the very same issues that the defendant discussed with Tech Executive-1, Campaign Lawyer-1,
    and the FBI, thereby proving the existence of the defendant’s attorney-client relationships on these
    issues.
    Moreover, even if this email were offered for the truth of its contents, it would still be
    admissible because Originator-1 sent the message in furtherance of the above-described joint
    venture to gather and disseminate purportedly derogatory internet data regarding a Presidential
    candidate. Weisz, 718 F. 2d at 433.
    Tech Executive-1’s response to this email, which is quoted in part at Paragraph 23(i) of the
    Indictment, is similarly admissible. It states:
    So the task is indeed broad.

    Being able to provide evidence of *anything* that shows an
    attempt to behave badly in relation to this, the VIPs would be
    happy.

    They’re looking for a true story that could be used as the basis for
    closer examination.

    So the prior hypothesis was all that they needed: A mailsever
    dedicated or related to trump configured with an ACL, and with
    traffic almost exclusively with [Russian Bank-1] was sufficient to
    do the job. Even though there was no evidence of financial
    exchange, there was clear communication.

    Trump has claimed he and his company have had NO dealings with
    .ru other than the failed Casino, and the Miss universe pageant. He
    claims absolutely NO interaction with any financial institutions.

    So any potential like that would be jackpot.




    As with the prior email, the Government does not seek to offer this correspondence for the truth of its specific assertions, i.e., that Trump had denied having business
    with Russia; that “the VIPs” would be “happy” with particular information; or that such VIPs were
    looking for a “true story.” Rather, the Government intends to offer this email for the different
    purpose of demonstrating that the issues and efforts reflected therein related directly to the
    defendant’s subsequent meeting with the FBI and therefore tend to prove the existence of the
    attorney-client relationships about which he lied. Accordingly, the email is not hearsay. See Gibbs
    v. State Farm Mutual Insurance Co., 544 F. 2d 423, 428 (9th Cir. 1976) (letter informing the
    insurer’s attorney that father of child injured in accident “would have been happy” with a particular
    settlement was properly admitted to show that insurer had received this information and did not
    constitute hearsay). In addition, much of the email’s content reflects instructions or commands
    from Tech Executive-1 (“the task is indeed broad”), which, as noted above, constitute “verbal acts”
    that are not hearsay. Mitchell, 274 F. Supp. 2d at 42. Other portions of the email reflect statements
    of Tech Executive-1’s subjective beliefs or perceptions (“any potential like that would be
    jackpot”), which also do not constitute hearsay because the Government does not seek to prove or
    endorse their truth. In any event, the Court could properly deal with this concern by issuing an
    appropriate limiting instruction.
    To the extent it could be argued that the Government seeks to prove the truth of the email’s
    assertion that the “task” Tech Executive-1 issued was “indeed broad,” or its suggestion that this
    task originated with certain “VIPs” (i.e., Law Firm-1 and the Clinton Campaign), such
    communications are still admissible as co-conspirator statements. Indeed, they reflect that Tech
    Executive-1 was acting in furtherance of the joint venture’s goal of assembling and disseminating
    purportedly derogatory information about Trump’s and his associates’ internet activities.



    Accordingly, the email – and other emails that reflect efforts to create a “narrative” or “inference”
    connecting Trump to Russia – are admissible in their entirety as reflecting co-conspirator
    statements. 8 Gewin, 471 F. 3d at 201–02.
    Similarly, admissible are emails from the same time period which reflect that Tech
    Executive-1 (i) proceeded to disseminate the Russian Bank-1 allegations despite having previously
    expressed, and received others’ expressions of, serious doubts and differing views about their
    strength, and (ii) purposefully crafted a written analysis to conceal the allegations’ potential
    weaknesses. These emails constitute even stronger evidence of a joint venture or conspiracy. For
    example, and as partially set forth in the Indictment:
    • On August 21, 2016, Tech Executive-1 urged the researchers to push forward with
    additional research concerning Trump, which he stated would “give the base of a very useful
    narrative.” Later in the same email, Tech Executive-1 expressed his own belief that
    the “trump-email.com” domain was “a red herring,” noting that the host for that domain “is a
    legitimate valid [customer relationship management] company.” Tech Executive-1 therefore
    concluded that “we can ignore it, together with others that seem to be part of the marketing world.”

    Note 8. Such statements are also admissible on the alternative grounds that they satisfy Rule
    801(d)(ii)(C), which provides that statements are not hearsay if they are “made by a person whom
    the party [against whom the statement is being offered] authorized to make a statement on the
    subject.” Because Tech Executive-1’ reference to “VIPs” refers to the defendant (and others), it
    reasonable to conclude that the defendant “authorized” these taskings and certain statements
    reflected in this email.

    Note 9. The Government expects that if called as a witness, Researcher-2 would testify that he
    (Researcher-2) subsequently convinced Tech Executive-1 of the plausibility of the Russian Bank-
    1 allegations based on a review of additional data.



    • On August 22, 2016, Researcher-1 expressed his own view in an email that Tech Executive-1’s research project was flawed, stating in part:
    Lets for a moment think of the best case scenario, where we are able
    to show (somehow) that DNS (MX or otherwise) communication
    exists between Trump and R[ussia]. How do we plan to defend
    against the criticism that this is not spoofed UDP traffic we are
    observing? There is no answer to that. Lets assume again that they
    are not smart enough to refute our “best case” scenario. [Tech
    Executive-1], you do realize that we will have to expose every trick
    we have in our bag to even make a very weak association? Let[’]s
    all reflect upon that for a moment. [S]orry folks, but unless we get
    combine netflow and DNS traffic collected at critical points between
    suspect organizations, we cannot technically make any claims that
    would fly public scrutiny. This is not a typical attribution problem
    when the two parties (defenders vs. attackers) are clearly separated.
    In this case we will have not only the Trump folks trying to sho[o]t
    this down, but all the privacy freaks trying to come up with a crazy
    conspiracy theory on how we obtain the data. Sorry to say this, we
    are nowhere close coming with a plan to attack this problem that will
    fly in the public domain. The only thing that drive us at this point is
    that we just do not like [Trump]. This will not fly in eyes of public
    scrutiny. Folks, I am afraid we have tunnel vision. Time to
    regroup?”



    • On September 15, 2016, Tech Executive-1 solicited the researchers’ views on the
    white paper he and the defendant had been drafting, and, in doing so, arguably implied that he was
    seeking to mislead non-DNS experts: “Please read as if you had no prior knowledge or
    involvement, and you were handed this document as a security expert (NOT a dns expert) and
    were asked: ‘Is this plausible as an explanation?’ NOT to be able to say that this is, without doubt,
    fact, but to merely be plausible. Do NOT spend more than a short while on this (If you spend more
    than an hour you have failed the assignment). Hopefully less. :)”
    • On the same date, Researcher-1 replied, endorsing Tech Executive-1’s approach:
    “A DNS expert would poke several holes to this hypothesis (primarily around visibility, about



    which very smartly you do not talk about). That being said, I do not think even the top security
    (non-DNS) researchers can refute your statements. Nice!” Ind. . ¶ 24(f). (The Government expects
    Researcher-1 will testify at trial that he endorsed Tech Executive-1’s approach of downplaying the
    paper’s weaknesses because Tech Executive-1 was important to the success of the then-pending
    Agency-1 contract with University-1, and Researcher-1 therefore felt pressure to please Tech
    Executive-1. Apart from this email, however, Researcher-1 consistently maintained that the
    Russian Bank-1 data did not support any definitive conclusions.)
    • On September 15, 2016, Originator-1 responded to Tech Executive-1, stating, in
    part, that the paper’s conclusion was “plausible” in the “narrow scope” defined by Tech Executive-
    1, and noting in part that: “if the whitepaper intends to say that there are communications between
    at least [Russian Bank-1] and Trump, which are being intentionally hidden by [Russian Bank-1]
    and Trump, I absolutely believe that is the case.”
    • Researcher-2 replied on the same date, stating in part, “I would preface the whitepaper by noting the criminal context of the inquiry. . . .While I'm not aware of any EULA
    privacy rights Trump might expect, I expect they all vanish when his network is used for criminal
    purposes. (Want to bribe people? Use cash in envelopes, not ACH transfers.) So from an
    organizational point of view, this data collection is consistent with anti-cyber crime policies. I’d
    be happy to help write/review more drafts, if I better understood the audience. (Hopefully the
    i[n]tended audience are officials who have subpoena powers, who can investigate the purpose the
    private VPN with [Russian Bank-1]. I believe this is at a threshold of probable cause for violation
    of Commerce Dept sanctions, FEC elections rules, and has releva[n]cy for the Bureau’s Fancy
    Bear inquiry, etc._ I also have some graphs/animations of the Trump [] router, which I can clean



    up and contribute. (They merely give a glimpse of aggregate volume, since we lack actual flows.)
    I’d need until the weekend.”
    • On September 16, 2016, Originator-1 emailed these researchers, discussing, among
    other things, the draft white paper’s allegation that there was a “TOR exit node” (i.e., a node used
    for anonymized internet traffic) at a particular U.S.-based healthcare company (“Healthcare
    Company-1”) that Russian Bank-1 purportedly had used to communicate with the Trump
    Organization:
    [Researcher-2], You give your adversaries every courtesy, while
    your adversary advances with baseball bats. It’s certainly
    admirable, and I would expect nothing less of you. If everyone in
    America were as measured, fair and careful, what concerns could
    we ever have? It would be easy for you or I to introduce doubt and
    my kind of scientific accuracy at points where people need to make
    a decision how to vote - or a decision about where to look for actions
    counter to our national interests. Many people are not able to weigh
    the intricacies of probability or connection that you and I weigh
    regarding packet contents, protocols, src and dst.
    You can’t sell KFC with the scientifically accurate statement that
    dead chicken parts are heated to 180 F for 6 minutes in a solution of triacylglycerols. You just say “Finger Lickin' Good”. Both are true.
    I have no reason to think that [Russian Bank-1] has a VPN
    somehow through mail1.trump-email.com. That would suggest we
    are dealing with masterminds of the internet, at [Russian Bank-1],
    maybe [Healthcare Company-1/its owners], and Trump. It would be
    interesting to discover, fun to understand. It COULD be. Instead of
    masterminds of internet protocols, I imagine we have ordinary thugs
    all around.
    I firmly believe that [Russian Bank-1/Healthcare Company-1]/
    Trump are communicating with that server mail1.trump-email.com
    as an artifact of the processing.
    []
    [Tech Executive-1’s] carefully designed actions provide the
    possibility of: 1. causing the adversaries to react. Stop using?
    Explain? 2. Getting more people with more resources to find out



    the things that are unknown, whether those be NON-internet
    channels of connection between Trump, [Healthcare Company-
    1][owners of Healthcare Company-1], [Russian Bank-1] ... money
    flows, deals, God knows it could be [owners of Healthcare
    Company-1’s] children married to Russians who run [Russian Bank-
    1]. Or like Researcher-2 shared, someone’s wife vacationing with
    someone else’s wife. I have no clue. These are things other people
    may look into, if they know a direction of interest to look. 3. Legal
    action to protect our country from people who act against our
    national interests.
    I don’t care in the least whether I’m right or wrong about VPN
    from [Russian Bank-1], [TOR] from Russian Bank-1, or just
    SMTP artifact pointing to a 3-way connection. [Tech Executive-
    1] has carefully crafted a message that could work to accomplish
    the goals. Weakening that message in any way would in my
    opinion be a mistake.

    All of these communications are admissible and not hearsay because, as noted above, the
    Government does not intend to prove the truth of the various subjective opinions, views, or
    positions being expressed by these researchers. The Government does not, for example, seek to
    prove the truth of the emails’ assertions that the Russian Bank-1 allegations would not “fly in the
    face of public scrutiny;” that Trump and his associates were “ordinary thugs all around;” or that
    Originator-1 “firmly believe[ed]” that Russian Bank-1 was “communicating with the server
    mail1.trump-email.com as an artifact of the processing.” Rather, the Government intends to offer
    these emails as proof that the Russian Bank-1 allegations arose and evolved in the context of a
    specific research project involving these academics and the defendant’s alleged client, Tech
    Executive-1. Accordingly, these emails are not hearsay.
    Indeed, many of the emails’ contents are relevant and not hearsay for the additional reason
    that they shed important light on the defendant’s and Tech Executive-1’s “intent, motive, or state
    of mind,” and “help to explain their future conduct.” Safavian, 435 F. Supp. at 45–46. In



    particular, the mere fact that these emails (i) existed in written form prior to the defendant’s
    September 19, 2016 meeting with the FBI and (ii) reflected instances of serious doubts about
    whether the Russian Bank-1 data might have been “spoofed,” a “red herring,” “wrong,” or a
    product of “tunnel vision” or bias against Trump, provided Tech Executive-1 and the defendant
    with motive to conceal the origins and provenance of the Russian Bank-1 allegations from the FBI.
    In particular, a reasonable jury could infer from these and other facts that Tech Executive-1 made
    the defendant aware of these prior doubts and therefore supplied the defendant – as Tech
    Executive-1’s representative – with a motive to conceal their client relationship from the FBI
    General Counsel. A jury could similarly infer that even if Tech Executive-1 did not make the
    defendant aware of these communications, he nevertheless instructed the defendant to deny the
    existence of such a client relationship for the same reason (i.e., to avoid the FBI’s potential
    discovery of the doubts reflected in these prior discussions).
    This is particularly true because one of the white papers that the defendant assisted Tech
    Executive-1 in drafting and then delivered to the FBI stated unambiguously that “[w]hile there
    may be possible explanations for the configurations of mail1.trumpemail.com and the [Healthcare
    Company-1] TOR node, there is no plausible explanation other than that [Russian Bank-1] and the
    Trump Organization are using multiple sophisticated layers of protection to obfuscate their
    communications.” (emphasis in original). The same white paper further stated that “[t]he only
    plausible explanation for this server configuration is that it shows the Trump Organization and
    [Russian Bank-1] to be using multiple sophisticated layers of protection in order to obfuscate their
    considerable recent email traffic.” This disparity between the white paper’s strong assertions and
    some of these prior email communications therefore would naturally cause Tech Executive-1 to
    fear that the FBI might inquire with him or these researchers as to how the allegations were



    compiled, reviewed, and analyzed. Thus, completely separate and apart from whether the
    assertions and opinions in these emails are true, the existence of such a written record alone
    provided a motive for Tech Executive-1 to conceal the origins of the materials that the defendant
    provided to the FBI. Accordingly, these emails are admissible as non-hearsay. Moreover, to the extent the Government arguably seeks to prove the truth of any assertions
    contained within these emails, those messages are still admissible because they clearly reflect a
    “joint venture” or conspiracy to disseminate information for political purposes, for the reasons
    described above. Weisz, 718 F. 2d at 433. More specifically, these emails show that the
    researchers and Tech Executive-1 were acting in concert with the defendant and others to gather
    and spread damaging information about a Presidential candidate shortly before the scheduled
    election.
    Emails Involving the U.S. Investigative Firm
    Finally, the Government respectfully submits that numerous communications in which
    personnel from the U.S. Investigative Firm sought to discuss, advance, and disseminate the
    Russian Bank-1 allegations are admissible for the same and other reasons. For example, the
    Government seeks to offer, among others, the following emails obtained from the U.S.
    Investigative Firm:
    • On October 15, 2016 – two weeks before news stories would first appear about the
    Russian Bank-1 allegations – a reporter emailed an employee of the U.S. Investigative Firm,
    stating in part, “anything new Russkie/Donald wise?,” to which the U.S. Investigative Firm
    employee responded, “do the [expletive] [Russian Bank-1] secret comms story. It’s hugely
    important. Forget the wikileaks side show.”
    • On the same date, the reporter replied:



    [T]he problem with the [Russian Bank-1] story at this point is that
    my cyber expert colleagues cannot satisfy themselves about the
    authenticity of some of the key data, which they say from what they
    can tell is NOT public data. We are in contact with your experts via
    different channels but my colleague [] in Silicon Valley still hasn’t
    got the confidence he says he needs to understand where all the data originated. If you can help more with this pls do…

    • Later on that date, the U.S. Investigative Firm employee replied: “It’s everyone’s
    problem. Call [Researcher-2] at [University-1].”
    • On October 22, 2016, another reporter, who would soon publish a news story regarding the Russian Bank-1 allegations, emailed Researcher-2 at his University-1 email address:
    I’m a reporter with [news outlet redacted]. I’ve just been explained
    the [Russian Bank-1]/Trump story. My sense is that other reporters
    have called on you for help—and that this is a somewhat frustrating
    process. I wish [Newspaper-1] had published its story. This is a
    crucial piece of reporting. As you will see, I have been on the
    Trump/Russia case before pretty much anyone. I began writing
    about [Trump’s former campaign manager]’s ties back in April.
    Then I wrote this story in early July. []

    In both cases, my articles helped drive coverage in the MSM
    [mainstream media]. Would it be possible to talk? I’ve been
    presented with the underlying facts of the story and find them
    completely convincing. I’ve explained the facts to my editors and
    they want me to push to get the piece done quickly. I have their
    complete and total backing. But before I can publish, I need some
    help from a well-versed expert such as yourself.

    • On October 30, 2016, the aforementioned U.S. Investigative Firm employee forwarded to the same reporter a tweet stating that the U.S. Senate Majority Leader had “talked w/
    top NatSec officials who say that [the FBI Director] ‘possesses explosive information’ about
    Trump's ties to Russia.” The U.S. Investigative Firm employee’s email stated: “time to hurry.”
    The reporter replied “Here’s the first 250 words,” and included in the email a partial draft of the
    article for the U.S. Investigative Firm employee’s review. The reporter published the article the
    next day.



    The above emails are admissible for at least three reasons. First, these emails constitute
    business records of the U.S. Investigative Firm and therefore are admissible as non-hearsay. Fed
    R. Evid. 803(6).
    Second, certain of these emails (namely, those sent by the U.S. Investigative Firm)
    constitute communications in furtherance of the above-described joint venture, insofar as they
    indisputably reflect a common plan and mutual coordination among the U.S. Investigative Firm,
    Tech Executive-1, the defendant, and the aforementioned university researchers (e.g., “Call
    [Researcher-2] at [University-1]”) to generate press coverage about the Russian Bank-1
    allegations.
    Third, such emails constitute non-hearsay because the Government does not seek to offer
    them for the truth of their assertions (e.g., “my articles helped drive coverage [of Trump’s former
    campaign manager]” or “my colleague [] in Silicon Valley still hasn’t got the confidence he says
    he needs”). Rather, the Government will introduce these emails to establish, among other things,
    their factual context and future effects. Namely, the Government will offer these emails to show
    that the media’s coverage of the Russian Bank-1 allegations was triggered in part by the
    defendant’s work and coordination with Tech Executive-1, the University-1 researchers, the
    Clinton Campaign, and the U.S. Investigative Firm.
    III. The Court Should Admit Certain Acts and Statements as Direct Evidence, or Alternatively, Pursuant to Federal Rule of Evidence 404(b)

    The government next moves to admit certain evidence and statements, including evidence of (i) the defendant’s February 2017 meeting at Agency-2, (ii) the defendant’s
    December 2017 Congressional testimony, and (iii) Law Firm-1’s statements to the media in
    October 2018.




    A. Applicable Law

    Federal Rule of Evidence 404(b) provides that evidence of “other crimes, wrongs or acts”
    may not be admitted to prove bad character, but may be admissible for other purposes, such as to
    prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
    or accident.” Fed. R. Evid. 404(b). The standards governing the admissibility of evidence under
    Rule 404(b) are well established:
    [A] Rule 404(b) objection will not be sustained if: 1) the evidence of
    other crimes or acts is relevant in that it has any tendency to make the existence of any fact that is of consequence to the determination of the
    action more probable or less probable than it would be without the
    evidence; 2) the fact of consequence to which the evidence is directed

    [continued in next message]

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    * Origin: fsxNet Usenet Gateway (21:1/5)
  • From John Doe@21:1/5 to All on Wed Apr 20 00:34:51 2022
    [continued from previous message]

    critical meeting that the defendant had with the FBI General Counsel on September 19, 2016. In

    particular, such facts will shed important light on the (i) background and substance of the Russian

    Bank-1 allegations that the defendant provided to the FBI; (ii) the nature of the defendant’s work

    and relationships with his alleged clients; (iii) the authorship of the various white papers and other

    materials; (iv) the factual context for the defendant’s alleged false statement; and (v) specific

    reasons why the defendant and/or his clients would have wanted to conceal the origins and

    provenance of this data and their work. Facts concerning the origins of such purported data and

    related allegations therefore constitute direct evidence of the charged offense because they are part

    of the story of the alleged crime and tend to prove the existence of the defendant’s attorney-client

    relationships with both Tech Executive-1 and the Clinton Campaign.

    These facts are also particularly relevant where, as here, the defendant is expected to claim

    that his alleged lie to the FBI was immaterial. In that context, such facts will permit the jury not

    only to evaluate the truth or falsity of the defendant’s alleged statement, but also to consider what

    material information the defendant’s alleged lie concealed and what alternative investigative steps

    or conclusions the FBI might have pursued had the defendant not lied to General Counsel in this

    manner. All of these facts are therefore not “extrinsic or extraneous but, rather are ‘inextricably

    intertwined with the evidence regarding the charged offense, [and are] necessary to complete the

    story of the crime . . . .’ United States v. Badru, 97 F.3d [1471,] 1474 (D.C. Cir. 1996) (citing United

    States v. Weeks, 716 F.2d 830, 832 (11th Cir. 1983)).’” United States v. Eiland, No. CRIM.04-

    379(RCL), 2006 WL 516743, at *4 (D.D.C. Mar. 2, 2006).

    Nor does the defendant’s attempt to distance himself factually from the origins of the

    purported data and allegations aid his argument. As an initial matter, the Government has already

    proffered to the Court and/or expects to offer at trial considerable evidence that the defendant – a

    former DOJ cyber lawyer who identified himself as an expert in privacy, cybersecurity, and

    technology law – was involved in and/or aware of the data’s origins. For example:

    ? Days before his meeting with the FBI, the defendant emailed Researcher-2 – the

    author of one of the relevant white papers and one of the primary researchers who analyzed the

    Russian Bank-1 allegations – stating that they had a mutual friend, referring to Tech Executive-1.

    ? Also in mid-September 2016, Researcher-2 left a voicemail for the defendant at his

    office seeking to speak with him.

    ? If called as a witness,7 Researcher-2 would testify that soon thereafter, he spoke with

    the defendant and raised concerns about whether the data concerning Trump and Russian Bank-1

    was being unlawfully collected and used.

    Note 7:
    The Government has not yet made a final determination regarding which researchers it will call
    as witnesses at trial.

    Reflecting sufficient awareness of the data’s origins to opine on the issue, the

    defendant assured Researcher-2 that the data had, in fact, been lawfully collected and used.

    Researcher-2 would testify, in particular, that the defendant stated that the data was collected under

    contracts for what is described as “passive DNS” collection, and that the use of the data complied

    with principles of “informed consent.” Researcher-2 would further testify that he understood the

    defendant to be familiar with the “corporate sources” of the relevant data.

    ? Billing records demonstrate that in September 2016, the defendant billed the Clinton

    Campaign for “drafting” a “white paper,” which, in context, referred to the Russian Bank-1 white

    paper—reflecting that the defendant had enough familiarity with the data and relevant subject

    matters to assist in crafting the relevant analysis.

    ? Testimony at trial will further establish that during his meeting with Agency-2, the

    defendant described the relevant Russian Bank-1 and Russian Phone Provider-1 data as “private

    collection,” distinguishing it from Government-collected data.

    ? According to Agency-2 records and expected testimony at trial, the defendant also

    stated that the data he was providing was “DNS information [that] his contacts had gathered.”

    ? The evidence at trial will also establish that the defendant carried with him to the

    FBI and Agency-2 two separate sets of thumb drives containing data files that were named, among

    other things, “log of DNS lookups for mail.trump_email.com, 851.txt,” “[Russian Phone Provider-1]-cpwest8,”

    “[Russian Phone Provider-1]-eop.csv,” “[Russian Phone Provider-1]-[Healthcare Provider-1].csv,” and

    “[Russian Phone Provider-1]-trumporg.csv,” all apparent references to the

    specific source and/or destination of purported DNS lookups.

    Note 8:
    “cpwest” apparently refers to Trump’s Central Park West apartment building.

    The foregoing facts support the inference that the defendant was partially or fully aware of

    the origins and provenance of the relevant data, and that he participated meaningfully in the analysis

    of such data. To the extent such data was obtained in a manner that was illegal or unethical, a jury

    reasonably could infer that the defendant and his clients shared a potential motive to conceal

    material facts—particularly since the defendant assured one of the relevant researchers

    (Researcher-2) that the collection and use of the data was lawful.

    But even assuming the defendant was unaware of the data’s precise origins, facts

    concerning the opposition research project that Tech Executive-1 and his associates conducted,

    combined with the defendant’s own billing of time on the Russian Bank-1 allegations to the Clinton

    Campaign, still supplied a highly plausible motive for the defendant to deny the involvement of his

    clients in these matters. Such facts are also probative for the additional reason that they reflect a

    shared “plan” between the defendant, Tech Executive-1, and/or the Clinton Campaign to collect

    and disseminate materials through the defendant, and evince “preparation” for the meeting at which

    the defendant made his alleged false statement. Fed R. Evid. 404(b). Accordingly, all of this

    evidence is admissible as direct evidence and, alternatively, as “other acts” evidence pursuant to

    Rule 404(b), regardless of whether it sheds light on arguably unethical and/or criminal conduct.

    Eiland, 2006 WL 516743, at *4 (“As long as evidence of the uncharged criminal conduct is offered

    as direct evidence of a fact in issue, and not as circumstantial evidence of the character of the

    accused, it is admissible independent of its superficial similarity to that which would be considered

    evidence of ‘other crimes’ under Rule 404(b).” United States v. Gray, 292 F. Supp. 2d 71, 77-78

    (D.D.C. 2003) (Lamberth, J.) (citing Badru, 97 F.3d at 1475 (citing 22 CHARLES A. WRIGHT &

    KENNETH W. GRAHAM, JR., FEDERAL PRACTICE AND PROCEDURE § 5239 at 450 (1978))).

    The defendant’s efforts to pre-emptively bar additional evidence concerning the accuracy

    of the data and allegations at issue also should be rejected. As the Government has made clear in

    its prior filings, its approach to these issues at trial will depend, in part, on the particular defenses

    and arguments that the defendant raises. If the defendant were to concede or decline to dispute the

    fact that no secret channel of communications actually existed between the mail1.trump-email.com

    server at issue and Russian Bank-1, then the Government would not seek to offer proof concerning

    the ultimate accuracy and reliability of the relevant data.

    At a minimum, however, the Government does expect to adduce evidence at trial reflecting

    (i) the fact that the FBI and Agency-2 concluded that the Russian Bank-1 allegations were untrue

    and unsupported and (ii) the primary bases for these conclusions, including the particular

    investigative and analytical steps taken by these agencies. (For example, while the FBI did not

    reach an ultimate conclusion regarding the data’s accuracy or whether it might have been in whole

    or in part genuine, spoofed, altered, or fabricated, Agency-2 concluded in early 2017 that the

    Russian Bank-1 data and Russian Phone Provider-1 data was not “technically plausible,” did not

    “withstand technical scrutiny,” “contained gaps,” “conflicted with [itself],” and was “user created

    and not machine/tool generated.” The Special Counsel’s Office has not reached a definitive

    conclusion in this regard.)

    Separate and apart from whether the data was actually unreliable or provided a motive for

    the defendant to lie, evidence concerning the steps the FBI and Agency-2 took to investigate these

    matters is critical to establishing materiality because it will enable the jury to evaluate those steps

    which, in turn, will inform their conclusions about whether the defendant’s alleged false statement

    was material and could tend to influence or impair government functions. In this regard, the

    Government also intends to call a witness from at least one of the companies responsible for using

    and maintaining the mail1.trump-email.com mass marketing server that was the subject of the

    Russian Bank-1 allegations. Such witness’s testimony will be highly probative for two reasons:

    first, to establish and explain the steps that the FBI took in its investigation (including contacting

    and obtaining information directly from these companies), and second, to inform the jury’s basic

    understanding of the mail1.trump-email.com email server that was the subject of the Russian Bank-1

    allegations and the defendant’s alleged false statement.

    As the Government sets forth more fully in its separately-filed response to the defendant’s

    motion concerning expert testimony, the Government also reserves the right to elicit testimony,

    including expert testimony on rebuttal or otherwise, concerning the ultimate accuracy and/or

    reliability of the data. For example, if called to testify on these matters, the Government’s expert

    would explain his view that while he has not determined with certainty whether the data at issue

    was in whole or in part authentic, fabricated, spoofed, or cherry-picked, the purported data

    nevertheless does not support a number of specific conclusions set forth in the primary white paper

    that the defendant worked on with Tech Executive-1 and provided to the FBI. The expert would

    further testify that several statements in that white paper – including its main conclusion that the

    “only plausible” explanation for the referenced DNS lookups was a covert communications channel

    – are inaccurate and/or over-stated. And he would testify, for example, that a person who had basic

    technical familiarity with TOR (a vehicle for anonymized internet traffic) would know that the

    paper’s assertions regarding Russian Bank-1’s purported exclusive use of a TOR exit node at

    Healthcare Company-1 were inaccurate and lacked support.

    Such testimony might become highly relevant if, for example, the defendant seeks to

    persuade the jury that he reasonably relied in good faith on Tech Executive-1’s analytical

    conclusions and therefore lacked a motive to conceal information about his clients. In that event,

    it would only be fair that the Government be permitted to rebut or challenge the purported

    reasonableness of the defendant’s reliance. And regardless, such opinions by the Government’s

    expert would also be relevant to explain why Tech Executive-1 and the defendant would have had

    a motive to instruct his counsel to conceal Tech Executive-1’s involvement in these matters.

    Such testimony concerning the data’s accuracy and/or reliability might also prove relevant

    if the defendant seeks to persuade the jury that the mass marketing server at issue was, in fact, used

    to establish a secret channel of communications, despite the passage of time and the evidence to the

    contrary. Permitting the defense to advance such an argument unopposed would serve to sow

    confusion, advance conspiracy theories, and unfairly prejudice the jury’s consideration of the

    defendant’s false statement and its materiality.

    In short, because the defendant’s alleged false statement occurred in the context of highly

    technical allegations and information, it is only natural and proper that such technical concepts and

    analysis will be a part of the Government’s presentation of the evidence. Because the relevance of

    any particular evidence or conclusion in this regard depends on the particular theories and

    arguments that the defense might advance, the Government respectfully submits it is appropriate

    for the Court to reserve decision on these matters until the Government and the Court have gained

    a fuller picture of the defense’s trial strategy.

    V. The Defendant’s Motion to Preclude Testimony Concerning U.K. Person-1 Should be
    Denied.

    Next, the defendant moves to preclude evidence and argument regarding information that a

    United Kingdom based investigator (“U.K. Person-1”) provided to the FBI. As detailed below, this

    information is highly probative because it provides evidence regarding the attorney-client

    relationships surrounding the Russian Bank-1 allegations.

    As set forth in the Government’s prior filings, in or about June 2016, the U.S. Investigative

    Firm retained U.K. Person-1 on behalf of both Law Firm-1 and the Clinton Campaign. See Dkt.

    No. 64 at 9-10, 15-16. U.K. Person-1 then compiled information and reports that became a

    “dossier” which contained allegations of purported coordination between Trump and the Russian

    government. In the summer of 2016, the defendant met with U.K. Person-1 at Law Firm-1’s

    offices, during which the defendant told U.K. Person-1 about the Russian Bank-1 allegations. After

    the meeting, personnel from the U.S. Investigative Firm tasked U.K. Person-1 to research and

    produce intelligence reports about Russian Bank-1, which he did.

    Note 9:
    As noted in the Government’s prior filing, U.K. Person-1 testified to these facts in a foreign legal
    proceeding. Regardless of whether the substance of that foreign testimony is offered or admissible
    at trial, the Government proffers such information here in order to demonstrate the relevance to the
    charged conduct of certain evidence concerning U.K. Person-1.

    According to U.S. government records and public information, U.K. Person-1’s dossier

    included a report about Russian Bank-1’s relationship with Vladimir Putin. The relevant report,

    dated September 14, 2016 – just five days before the defendant’s meeting with the FBI – was titled

    “Russia/US Presidential Election: Kremlin-[Russian Bank-1] Group Cooperation.” Separately, in

    October 2016, U.K. Person-1 also provided Tech Executive-1’s allegations regarding a purportedly

    secret server between Russian Bank-1 and the Trump Organization to a U.S. State Department

    official at a meeting in Washington, D.C.

    All of this evidence is highly probative, insofar as it establishes that the defendant (i)

    represented and worked for the Clinton Campaign in connection with its broader opposition

    research efforts, (ii) took steps to integrate the Russian Bank-1 allegations into those opposition

    research efforts, (iii) coordinated with U.K. Person-1, the U.S. Investigative Firm, and Tech

    Executive-1 in connection with the Russian Bank-1 allegations, and (iv) carried out his September

    19, 2016 meeting with the FBI in order to, among other things, further the interests of the Clinton

    Campaign with assistance from the U.S. Investigative Firm.

    Importantly, the Government does not seek to introduce the entirety of the U.K. Person-1

    dossier into evidence but, rather, seeks to offer only the one report described above that discusses

    Russian Bank-1’s alleged ties to Putin. Contrary to the defendant’s assertion, the Government is

    not interested in creating a “circus full of sideshows” or engaging in “mini-trials” concerning U.K.

    Person-1 and his reporting. Rather, the Government seeks only to introduce limited information

    pertaining to U.K. Person-1, as it is highly probative of the central issue in dispute in this case, i.e.,

    whether the defendant was acting on behalf of the Clinton Campaign when he assembled and

    conveyed the Russian Bank-1 allegations.

    And finally, U.K Person-1’s information is interwoven with the Government’s proof

    because the former FBI Assistant Director’s notes referenced above contain on the same page as

    the Russian Bank-1 allegations (and on the following page) additional notes reflecting that FBI

    Headquarters received parts of the U.K. Person-1 dossier from an overseas FBI agent on the very

    same date as the defendant’s meeting with the FBI General Counsel. Those notes state, among

    other things, that the dossier’s author was hired by the U.S. Investigative Firm to “dig up dirt on

    Trump” for an un-named U.S. client. The fact that FBI Headquarters received on the same date

    both sets of information involving the same political campaign (the Clinton Campaign), the same

    law firm (Law Firm-1), and the same investigative firm (the U.S. Investigative Firm) makes U.K.

    Person-1’s involvement in these matters relevant. It is also strong evidence concerning the

    materiality of the defendant’s alleged false statement that he was not acting for any client.

    Moreover, this evidence satisfies the balancing test of Rule 403. Any prejudicial effect

    deriving from the controversial nature of the U.K. Person-1 dossier is greatly outweighed by the

    probative value of this evidence on what will be a core factual issue—i.e., the defendant’s ties to,

    and attorney-client relationship with, the Clinton Campaign. Indeed, the subject matters addressed

    in the relevant U.K. Person-1 report, and in testimony concerning U.K. Person-1’s role in these

    events, are no more politically charged or prejudicial than other, plainly admissible evidence

    regarding allegations of a secret server between Russian Bank-1 and the Trump Organization. See

    United States v. Day, 591 F.2d 861, 878 (D.C. Cir. 1978) (“[I]t is a sound rule that the balance

    should generally be struck in favor of admission when the evidence indicates a close relationship

    to the offense charged.”) (citing McCormick on Evidence (2d ed. 1972) p. 453 n. 55). If necessary,

    the Court certainly could fashion an appropriate limiting instruction to guard against any risk of

    unfair prejudice. See United States v. McCarson, 527 F.3d 170, 174 (D.C. Cir. 2008) (“where as

    here, there is no compelling or unique evidence of prejudice, we deem such limiting instruction

    sufficient to protect a defendant’s interest in being free from undue prejudice”) (internal quotation

    marks and citation omitted); see also United States v. Bell, 795 F.3d 88, 100 (D.C. Cir. 2015);

    United States v. Gartmon, 146 F.3d 1015, 1023 (D.C. Cir. 1998).


    VI. The Defendant’s Objections to the Government’s Rule 404(b) Notices are Meritless.

    Finally, the defendant lodges various objections to the admission of certain evidence that

    the Government noticed pursuant to Rule 404(b). Each of these objections is meritless and the

    Court should therefore admit the noticed categories of evidence at trial.

    A. The Government’s 404(b) Notice was Timely.

    As an initial matter, the defendant’s argument that the Government’s March 23, 2022

    supplemental Rule 404(b) notice was untimely and prejudicial is baseless. The Government timely

    filed its initial Rule 404(b) notice on March 18, 2022. Less than a week later, and partially in

    response to comments that defense counsel made on a conference calls with the Special Counsel’s

    Office, the Government filed a supplemental notice which contained two additional categories of

    evidence that the government intends to introduce at trial but did not initially conceive as Rule

    404(b) evidence—namely, the “origins of the purported data at issue” and “evidence concerning

    the strength and reliability of the relevant data and allegations.” The supplemental notice expressly

    stated that the Government believes “the below evidence falls squarely within the definition of

    direct evidence of the charged offense.” (emphasis added). It continued to explain, however, that

    “our recent discussions, including the conference call we held last Friday, have raised the prospect

    that you may hold a different view. We therefore are providing herein notice pursuant to Rule

    404(b) for [] additional categories of evidence [] in an abundance of caution and to aid your

    preparation for trial.” (emphasis added).

    In a further abundance of caution, and also to aid the defense, the Government provided in

    that same letter further (and rather detailed) explanations supporting the admission of the other

    categories of evidence that the Government had previously noticed in its prior, March 18, 2022

    letter.

    The defendant now seeks to punish the Government for exercising an abundance of caution

    in seeking to ensure – within days of its original notice – that the defense understood fully the

    categories of evidence the Government would seek to admit at trial and the proffered bases for that

    evidence. Any argument that the defense suffered undue prejudice on account of this gesture of

    good faith cannot withstand scrutiny. Indeed, the defendant has retained highly-skilled and

    competent counsel, and the Government provided this supplemental notice to the defendant nearly

    two months prior to trial. The defendant characterizes the supplemental notice as “untimely” but

    fails to demonstrate, as he must, how the purportedly untimely notice prejudiced the defendant at

    such a relatively early stage in the parties’ trial preparations. See United States v. Watson, 409 F.3d

    458, 465 (D.C. Cir. 2005). Accordingly, no punitive actions or other remedy by the Court is

    appropriate.


    B. The Government should be Permitted to Provide Context for the Defendant’s
    February 9, 2017 False Statement to Agency-2.

    The defendant next moves to preclude the Government from offering portions of his

    December 2017 Congressional testimony. The defense, in part, agrees with the Government that

    testimony concerning the defendant’s February 9, 2017 meeting with Agency-2 is relevant and

    admissible under Rule 404(b) to prove the defendant’s motive, intent, plan, absence of mistake and

    lack of accident. In particular, the defendant states that he does not object to the introduction of his

    statement to Agency-2 that he was not acting on behalf of a particular client in providing the

    allegations to Agency-2. See Def. 404(b) Resp. at 20. However, the defendant does object to the

    government’s introduction of other evidence providing the fuller context of the defendant’s meeting

    with Agency-2, including, but not limited to, the specific information exchanged in the meeting.

    This evidence is plainly necessary to provide context and backdrop to the defendant’s false

    statement to Agency-2. Without this information, the jury would be forced to analyze the

    defendant’s statement in a vacuum. See United States v. Flores, 888 F.3d 537, 544 (1st Cir. 2018)

    (“Attempting to analyze each piece of evidence in a vacuum is inconsistent with Supreme Court

    case law, which makes pellucid that each item is to be considered as part of the totality of the

    circumstances.”)

    As noted, the defendant objects to the introduction of additional statements that the

    defendant made to Agency-2 personnel during the meeting. In one such statement, the defendant

    informed Agency-2 personnel that he had previously brought information to the FBI on a “similar,”

    but “unrelated” matter, referring to the Russian Bank-1 allegations. As stated in the Government’s

    404(b) notice, this statement was misleading because information regarding the Russian Bank-1

    allegations was among the materials that the defendant provided to Agency-2, and it was therefore

    not “unrelated.” The defendant objects to the introduction of this statement by claiming that the

    Government has no evidence that the defendant’s statement was false or misleading. The defendant

    also argues that this statement, even if false or misleading, “has no bearing on the charged crime.”

    Id. at 20. But as set forth below, regardless of whether this statement was true, partially true, or –

    as the Government contends – false and misleading, the statement is admissible because it provides

    crucial context for the defendant’s meeting and the other statements he made therein.

    To provide the jury with the full context of the defendant’s meeting with Agency-2, the

    government plans to offer evidence at trial reflecting that on January 31, 2017, the defendant had a

    conversation with a former Agency-2 employee (“Former Employee-1”). During that conversation,

    the defendant asked Former Employee-1 for assistance in setting up a meeting with Agency-2

    personnel to provide Agency-2 with certain information that a “client” (in context, Tech Executive-1)

    had provided to the defendant. The defendant described this information, in sum and substance,

    as the Russian Phone Provider-1 allegations, which the Government has summarized in previous

    filings with the Court. When Former Employee-1 inquired if the defendant had brought these

    allegations to the FBI, the defendant stated, in sum and substance, that his client “did not want to

    provide this to the FBI as he knows that the FBI did not have resources to deal with these issues[.]”

    The defendant subsequently stated that if Agency-2 was not interested in the allegations, the client

    would most likely go to the New York Times. (In order to provide the Court with a more

    comprehensive recounting of the expected testimony, the Government attaches hereto as Exhibit A

    an email from Former Employee-1 summarizing his exchange with the defendant).

    On February 9, 2017, the defendant met with Agency-2 employees and made substantially

    the same false statement as the one the Indictment charges he made to the FBI General Counsel just

    months earlier. This statement is memorialized in a Memorandum for Record (“MFR”) prepared

    after the meeting. The MFR reflects that the defendant, in addition to providing an updated version

    of the Russian Phone Provider-1 allegations, also provided an updated version of the Russian Bank-1

    allegations to Agency-2. Following the description of the Russian Bank-1 allegations, the

    Agency-2 employee wrote in the next paragraph:

    [Agency-2 Employee] advised Mr. Sussmann that given the location
    of such activities [redacted] and involvement of US Persons, we
    would need to refer all relevant information to the FBI. [Agency-2
    Employee] also advised that [they would] need to report any evidence
    of criminal activity to the FBI/DOJ. Mr. Sussmann had no objections
    to providing any relevant information to the FBI. He mentioned that
    he had previously contacted [the] FBI General Counsel, [] on a
    similar, though unrelated, matter. Based on how the FBI had handled
    the matter, and because he thought [Agency-2] had the necessary
    technical expertise, he wanted to pass the current information directly
    to [Agency-2.]

    In context, the defendant’s statement that he had provided the FBI with “similar, though unrelated”

    allegations is false, or at best, misleading. Indeed, the defendant had also provided the Russian

    Bank-1 allegations to the FBI on September 19, 2016. (In order to provide context to the Court, a

    partially-redacted version of the Agency-2 MFR is attached hereto as Exhibit B.)

    The defendant next argues that even if this statement was false and/or misleading, the

    statement has “no bearing on the charged crime.” This argument misses the mark. The statement

    bears directly on the Russian Bank-1 allegations, which underpin the meeting in which the charged

    false statement was made. Moreover, as stated in the Government’s 404(b) notice, this statement

    is also relevant as part of the broader factual context of the Agency-2 meeting and supports an

    inference of the defendant’s “intent” and “plan” to deceive Agency-2 by prompting them to act on

    information without truthfully describing or disclosing the relevant background, including the fact

    that the FBI had already been made aware of the allegations in the very meeting in which the

    charged crime occurred. And it reinforces the significance and materiality of the defendant’s lie

    that he made the effort to tell it on multiple occasions to two separate government agencies.

    Furthermore, the defendant’s statement to Former Employee-1 that his client would likely

    bring the allegations to the New York Times absent a meeting with Agency-2, is consistent with

    the defendant’s actions of providing the Russian Bank-1 allegations to the New York Times.

    In sum, all of the evidence to be offered by the Government regarding the defendant’s

    meeting with Agency-2 is intertwined with the defendant’s offense conduct, and the contents of the

    Agency-2 meeting are therefore admissible.

    C. The Government Should be Permitted to Introduce All Relevant Portions of the
    Defendant’s Congressional Testimony.

    The defendant next challenges the admission of the portions of the defendant’s December

    2017 Congressional testimony other than those in which he discusses the client on whose behalf he

    met with the FBI General Counsel. But other portions of that testimony are plainly admissible—

    first, as direct evidence of the charged crime, second, as the defendant’s own statements, and, third,

    pursuant to Rule 404(b).

    As stated in its Rule 404(b) notice, separate and apart from its relevance as direct evidence

    that the defendant’s statement to the FBI General Counsel was false, the defendant’s December

    2017 Congressional testimony is relevant and admissible pursuant to Rule 404(b) to prove, among

    other things, the defendant’s “motive,” “intent,” “plan,” and “knowledge.” In particular, the

    defendant’s testimony misleadingly conveyed the impression to Congress that the defendant’s only

    client for the Russian Bank-1 allegations was Tech Executive-1. That testimony failed to disclose

    the fact that the only client billed for the defendant’s pre-election work on those allegations was the

    Clinton Campaign. Therefore, this testimony is relevant to prove the defendant’s “motive,”

    “knowledge,” “intent,” and “plan,” insofar as the defendant exhibited a consistent pattern of seeking

    to hide the Clinton Campaign’s role as a beneficiary of, and billed party for, the Russian Bank-1

    allegations. In this regard, the Government plans to offer portions of the defendant’s Congressional

    testimony that bear upon two highly relative facts, namely, (1) the defendant’s relationship to, and

    work for, the Clinton Campaign, and (2) the defendant’s provision of the Russian Bank-1

    allegations to the media. For the reasons stated below, the government should be able to introduce

    the following relevant areas of that transcript which are probative of those facts:

    First, to demonstrate and corroborate that the defendant was acting on behalf of the Clinton

    Campaign in assisting its opposition research efforts and attending his September 19, 2016 meeting


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