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Joe Biden’s Voicemail To Hunter Means It’s Time To Appoint A Special Counsel

In 2018, while Hunter Biden was reportedly under investigation for his dealings with Chinese businessmen, Joe Biden left a voicemail message telling Hunter: “I think you’re clear.” This latest development in the Biden family pay-to-play scandal provides further proof a special counsel is needed to oversee the ongoing criminal probe.

In an exclusive, The Daily Mail on Monday reported that a voicemail recovered “from a backup of Hunter’s iPhone XS,” stored on his abandoned MacBook laptop, captured Joe Biden leaving this message for Hunter on December 12, 2018: “Hey pal, it’s Dad. It’s 8:15 on Wednesday night. If you get a chance just give me a call. Nothing urgent. I just wanted to talk to you. I thought the article released online, it’s going to be printed tomorrow in the Times, was good. I think you’re clear. And anyway if you get a chance, give me a call, I love you.”

The New York Times article referenced by the now-president, entitled “A Chinese Tycoon Sought Power and Influence. Washington Responded,” detailed the dealings of two corrupt Chinese businessmen, Ye Jianming and Patrick Ho—both of whom had connections to the Biden family through CEFC China Energy.

Ye acquired CEFC in 2006, according to the Times article, with the business focused on “securing the rights to overseas oil fields in strife-torn places like Chad, South Sudan, and Iraq.” “From 2009 to 2017, CEFC’s revenues jumped from $48 million to $37 billion,” the Times reported, noting that Ye’s first outreach to the Biden family came in 2015.

The Washington Post, which independently authenticated Hunter’s abandoned laptop months after its pre-election discovery, likewise reported that emails recovered from the hard drive showed that an intermediary for CEFC first “reached out to Hunter Biden in December 2015 to set up a meeting between the then-vice president’s son and Ye.”

The proposed 2015 dinner didn’t happen, but the Times article reported that an aide to Ye would later meet Hunter. Then, in May 2017, Hunter met with Ye in Miami. During that meeting, Hunter reportedly “offered to use his contacts to help identify investment opportunities for Ye’s company, CEFC China Energy, in liquefied-natural-gas projects in the United States.” As a thank you, Ye sent a note of gratitude and a 2.8-carat diamond to Hunter’s hotel room.

While the natural gas project discussed never materialized, in early August 2017, Hunter executed a consulting agreement with CEFC. It provided him a retainer of $500,000 and a monthly stipend of $100,000 while James Biden, Joe’s brother and Hunter’s uncle, pocketed $65,000 a month. According to the Washington Post, “over the course of 14 months, the Chinese energy conglomerate and its executives paid $4.8 million to entities controlled by Hunter Biden and his uncle.”

Then in November 2017, Ho, the CEFC vice-chairman and secretary-general, transferred to one of Hunter Biden’s entities $1 million, ostensibly for “representation.” Hunter, however, seemed to have no role in defending Ho, who was charged that month for crimes related to alleged bribes to officials in Chad and Uganda and attempting to arrange for CEFC to serve as a middleman with Iran to avoid sanctions. Following his arrest, Ho also called James Biden, although James believed the call was likely meant for Hunter.

In 2018, when the article that prompted Joe Biden’s messages hit, the millions in payments from CEFC to business ventures controlled by Hunter Biden were not known. Thus, at the time, the Times merely reported, “it is unclear whether Hunter Biden struck any business deals with CEFC or Mr. Ye.” Since then, the public has learned both of the multi-million-dollar connection between Hunter and CEFC and of a video showing Hunter calling Ho “the f-cking spy chief of China who started the company that my partner [Jianming], who is worth $323 billion, founded and is now missing.”

Also unknown when the Times ran its December 2018 story was that Hunter Biden was himself purportedly under investigation for his business dealings with CEFC. A month after the 2020 election, however, CNN reported that federal prosecutors in Delaware were investigating Hunter Biden’s business dealings, specifically his dealings in China and with CEFC. Significantly, in its report, CNN claimed that two people briefed on the Hunter Biden investigation claimed it “began as early as 2018.”

That Joe Biden told his son “I think you’re clear” in relation to reporting discussing Hunter’s connection with CEFC, and that this assurance came just one week after Ho’s conviction while Hunter Biden was reportedly under investigation for his business dealings with Ye and Ho, raises the question of whether Joe Biden had any inside information concerning the investigation of his son.

A related question concerns the Foreign Intelligence Surveillance Act wiretapping of Ho. According to The Daily Mail article that broke news of Joe Biden’s voicemail message, the outlet had obtained a copy of a FISA surveillance order that “revealed that federal agents were monitoring Ho as a potential spy for China.” That surveillance likely continued, at a minimum, until Ho’s arrest in late 2017, meaning that the FISA surveillance likely swept up some communications with or about Hunter Biden.

Even if not, the evidence continues to mount against the Biden family, leaving two fundamental questions: What is taking the Delaware U.S. attorney so long? And why hasn’t a special counsel been appointed yet?


Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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Why Handwritten FBI And DOJ Notes The Special Counsel Just Released Are Huge

Recently released handwritten notes from a briefing of the acting attorney general on the status of Crossfire Hurricane reveal the FBI either lied about the source of intel or the British intelligence community fed information to the U.S. agents investigating Donald Trump and his associates.

As part of the pre-trial discovery in the government’s prosecution of former Clinton campaign lawyer Michael Sussmann, the special counsel provided defense lawyers notes taken on March 6, 2017, during a high-level briefing of acting Attorney General Dana Boente about the then-ongoing investigation into supposed Russia collusion.

Boente, who held oversight of the DOJ and FBI related to the Crossfire Hurricane investigation because of then-Attorney General Jeff Sessions’s recusal, received an update during the meeting from the FBI’s then-Deputy Director Andrew McCabe, then-assistant director of the FBI Counterintelligence Division Bill Priestap, and Counterintelligence Deputy Assistant Director Peter Strzok. DOJ officials Tashina Gauhar, Mary McCord, and Scott Schools took notes during the briefing, and those notes became public during the Sussmann trial that ended in an acquittal last week.

Soon after the release of the notes, Hans Mahncke and Stephen McIntyre detailed for The Federalist, several passages that indicated the FBI had lied to the DOJ during the March 6, 2017 meeting in numerous ways. From the cryptic notes, Mahncke and McIntyre deciphered and exposed several significant false storylines sold to the acting attorney general, making their article a must-read.

While any lies, misrepresentations, or material omissions matter—or should, especially when told to the acting attorney general related to an investigation connected to the president of the United States, the note’s references to “CROWN reporting” prove particularly significant because of the FISA court’s insistence that the DOJ included Christopher Steele’s background as an MI6 agent in the FISA application prior to the secret surveillance court issuing an order to surveil Carter Page.

The phrase “CROWN Reporting” appeared multiple times in one set of handwritten notes taken during McCabe, Priestap, and Strzok’s March 6, 2017, FBI briefing of the DOJ and Acting Attorney General Boente. Next to “CROWN Reporting,” the notes referenced “convention,” Crimea” and “NATO” and “soften stance for exchange of Russian energy stocks.” These notations fell under the header of points related to Manafort.

A second reference to “CROWN source reporting” came during the FBI’s briefing of Boente concerning the investigation of Carter Page, with the notation following the general discussion of Page.

Huge Implications No Matter the Source

The notes do not elaborate on the “CROWN source” or who provided the “CROWN source reporting.” There are two possibilities, both of which have huge implications for the ongoing special counsel investigation.

First, the claimed “CROWN source” could be former MI6 spy Steele. To date, Steele remains the only person with a connection to British intelligence publicly known to have provided the FBI with information related to Trump and individuals connected to Trump during the Russia collusion investigation.

But if by “CROWN source” the FBI meant Steele, the individual briefing Boente lied to him in several ways, did so in a material way, and there is likely a paper trail that can confirm an earlier, similar lie by FBI agents.

While Steele had at one time served in the British intelligence service, his MI6 status ended long ago, when he retired in 2009 to start the private intelligence service Orbis Business Intelligence. Further, as the Department of Justice Office of Inspector General (OIG) reported more than two years ago, Steele told the OIG that the source network he used to compile the memoranda, referred to colloquially as the Steele dossier, did not involve sources from his time as an MI6 agent. On the contrary, his sources were “developed entirely in the period after he retired from government service.”

So not only was Steele not a “CROWN source,” his supposed “intel” also lacked any connection to “Crown Source Reporting.” Accordingly, unless the FBI had a still publicly unknown “CROWN source” who provided the information on which agents briefed the DOJ during the March 6, 2017 meeting, they lied to the DOJ.

If They Lied, It Really Matters

Falsely attributing “intel” to a “CROWN source” proves significant, and not merely for Boente’s oversight of Crossfire Hurricane, but also for Boente’s decision to approve the third application to surveil Page under the Foreign Intelligence Surveillance Act (FISA). And the DOJ’s representation of a connection between Steele and British intelligence in the FISA applications appeared dispositive to the FISA court’s decision to authorize surveillance of Page.

Two little-noticed passages, separated by some 50 pages in the OIG’s 478-page report on FISA abuse, revealed the importance the FISA court put on Steele’s connection to British intelligence in ordering surveillance of Page. According to the OIG, before filing its official FISA application, the DOJ submitted a “read copy” to the FISA court to obtain feedback from the FISA court’s legal advisor on whether the application met the statutory requirements and on any issues of concern raised by the legal advisor or the FISA judge handling the application.

In the first read copy submitted to the FISA court related to Page, the application “contained a description of the source network that included the fact that Steele relied upon a Primary Sub-source who used a network of sub-sources, and that neither Steele nor the Primary Sub-source had direct access to the information being reported.” The draft application “also contained a separate footnote on each sub-source with a brief description of his/her position or access to the information he/she was reporting.”

After reviewing the read copy, the FISA court’s “legal advisor asked how it was that Steele had a network of sub-sources.” In response, the government’s Office of Intelligence (OI) attorney “provided additional information to him regarding Steele’s past employment history.”

The FISA court’s legal advisor then requested that additional information be included in the final application, resulting in the final version of the October 2016 FISA application including a footnote detailing Steele’s prior work for British intelligence. The FISA court granted the revised FISA application, ordering surveillance of Page to begin in October 2016. The FISA court renewed the surveillance order three additional times, once in December, again in March, when Boente signed the application, and finally on June 29, 2022, when Acting Attorney General Rod Rosenstein signed the final FISA application.

All of the applications referenced Steele’s past service in British intelligence, but, as noted above, Steele’s source network was unrelated to his government work and came entirely from his private work. Given that the FISA court’s legal advisor questioned “how it was that Steele had a network of sub-sources,” and that the advisor directed the OI attorney to expressly include Steele’s previous work as an MI6 agent in the application, the FISA court clearly believed Steele’s network of sources came from his time as a British agent.

Further, given the significance the FISA court placed on that fact, it seems likely the FISA court would have denied the surveillance order had it been told the truth—that Steele’s network of sources had been privately acquired.

FBI Liars Could Still Be Held Accountable

The FBI’s representation during the March 6, 2017 meeting that the supposed intel related to Manafort and Page came from “CROWN sources,”—again, assuming the agent meant Steele—suggests the Crossfire Hurricane team deceived the DOJ from the beginning, resulting in the OI attorney representing to the FISA court that Steele’s network of sources were sources used by British intelligence. That deception also likely affected Boente’s decision to sign the second renewal application.

While these events occurred more than five years ago, and a five-year statute of limitations governs false statement offenses, the D.C. Circuit has held that if a defendant engages in a scheme “to falisf[y], conceal[], or cover[]up” material facts, the limitations period does not begin to run until the scheme ends.

In this case, then, any FBI agents involved in concealing from the DOJ during the final preparation and review of the June 29, 2017, FISA application that Steele’s sources were not “CROWN sources” or connected to his work in British intelligence could still face criminal liability.

Go Get ‘Em, Durham

Further, while the Sussmann trial proved memories fail—sometimes conveniently—uncovering the individuals responsible for representing Steele’s source network as connected to his past life as an MI6 agent seems a relatively straightforward venture given what we learned from the special counsel’s conviction of Kevin Clinesmith.

Clinesmith pleaded guilty nearly two years ago to altering an email related to Page to make it appear that Page “was not a source” for the CIA. Clinesmith’s undoing came from the fact that in preparing the FISA application and renewals, the various government actors used email to confirm details, including with Clinesmith.

The OIG report on FISA abuse detailed that process, noting there were many “back-and-forth exchange[s]” “between the OI Attorney and the FBI, during which the OI Attorney asked many questions about Page, as well as about Steele’s reporting and the structure and access of his source network.” “To further address reliability, the OI Attorney sought information from the FBI to describe the source network in the FISA application,” according to the OIG report. And that information-gathering process included email exchanges and written summaries of briefings.

Either that briefing left the OI attorney with the impression that Steele’s source network came from his MI6 work, or after the FISA court legal advisor asked, “how it was that Steele had a network of sub-sources,” the OI attorney pushed the FBI for more information. If the latter, emails likely memorialize the exchanges.

Whether the FBI agents affirmatively misrepresented Steele’s source network as connected to his British intelligence work in their communiques with the OI attorney, and in turn the OI attorney relayed that information to the FISA court, is unknown to us, but hopefully not to Special Counsel Durham.

Even if no one lied to the OI attorney and he merely assumed Steele’s source network carried over from his time with MI6, a misrepresentation to Boente during the March 6, 2017, briefing that Steele was a “CROWN source” still matters because the FISA surveillance orders were renewed two more times after that meeting.

That, of course, is assuming the FBI meant Steele when they referenced a “CROWN source”—something not entirely clear. More on that shortly.


Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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Why The Special Counsel Needs To Fight For More Spygate Documents, Stat

Special Counsel John Durham’s prosecution of Igor Danchenko, the Russian national who served as Christopher Steele’s primary sub-source, will soon heat up—maybe as early as next week, if prosecutors are wise and return to the grand jury to obtain the documents the Hillary Clinton campaign wrongfully withheld based on attorney-client privilege. Those documents will likely reveal Fusion GPS peddled Danchenko’s lies directly to reporters.

The jury’s acquittal of former Clinton campaign attorney Michael Sussmann after less than a day of deliberations represented a setback to Durham’s three-year investigation of the Russia collusion hoax. Americans nonetheless learned much from the prosecution, including that Hillary Clinton held personal responsibility for the peddling of the Alfa Bank conspiracy theory and that, post-Donald Trump, the FBI and legacy media remain corrupt.

The special counsel team also learned a valuable lesson from the court’s rulings on the admissibility of documents withheld from the grand jury based on the Clinton campaign’s assertion of attorney-client privilege: Don’t wait until trial to challenge the improperly withheld documents.

Given the breakneck speed of the Sussmann prosecution, it is to be expected that, following Tuesday’s acquittal, the special counsel team regroups for a few days. But by Monday, their focus should turn to their prosecution of Danchenko.

Background on the Danchenko Case

In November 2021, the special counsel indicted Danchenko on five counts, charging him “with lying to the FBI during the agents’ questioning of him related to his role as Christopher Steele’s ‘Primary Sub-Source’ for the notorious dossier that enabled Obama administration surveillance of the Trump campaign.”

Over 39 pages, the speaking indictment revealed how Danchenko first met Steele in 2010. He was introduced to the former MI6 spy by Steele’s longtime friend, Fiona Hill, who knew Danchenko from their work at the Brookings Institute. Since then, Steele’s London-based firm, Orbis Business Intelligence, hired Danchenko for contract work related to Russia research.

In 2016, the Clinton campaign, through its law firm Perkins Coie, hired the U.S.-based research firm Fusion GPS. In turn, Fusion GPS hired Orbis and Steele to investigate the Trump campaign and any connections to Russia. Steele then contacted Danchenko, a Russian national, eventually relying heavily on Danchenko’s supposed “intel” in crafting the numerous memorandum that later became known as the Steele dossier, and referring to Danchenko throughout as “Primary Sub-Source 1.”

A Tissue of Lies

Danchenko, according to the special counsel’s indictment, lied extensively when providing Steele his supposed intel. The indictment also says one of Danchenko’s “sources,” Charles Dolan, Jr., who has long-time connections to the Clintons and the Democrat Party, lied to Danchenko.

Dolan was named in the indictment merely as “PR Executive-1.” According to the indictment, Dolan lied to Danchenko when he told Danchenko a “GOP friend” had told him that Paul Manafort had been forced to resign from the Trump campaign because of allegations connecting Manafort to Ukraine. While Dolan later admitted to the FBI that he had no such “GOP friend” and that he had instead gleaned this information from press reports, Dolan’s fabrication appeared in the Steele dossier thanks to Danchenko’s lies.

Yet when the FBI questioned Danchenko on June 15, 2017, according to the indictment, Danchenko “denied to agents of the FBI that he had spoken with [Dolan] about any material contained in the [Steele dossier].” That lie formed Count I of the special counsel’s charges against Danchenko.

The remaining four counts of the indictment concerned Danchenko’s alleged lies about his supposed conversation with the then-Russian Chamber of Commerce President Sergei Millian. According to the indictment, Danchenko told FBI agents on multiple occasions—thus the four counts—that he believed Millian had provided him information during an anonymous phone call, including the “intel,” later included in the Steele dossier, that there was “a well-developed ‘conspiracy of cooperation’ between the Trump Campaign and Russian officials.”

But Danchenko never spoke with Millian and Millian was not a source for Danchenko nor the Steele dossier, as Millian has long maintained. Millian will not comment further, telling The Federalist that Durham’s team requested he “not talk to the press about details of the investigation.”

Get Those Subpoenas Enforced

Some of those details will likely be made public, however, when pre-trial filings begin to hit the docket in the case against Danchenko. With the October 11, 2022, trial date only about four months away, one could anticipate various filings to flow in soon. But following the court’s ruling in United States v. Sussmann that the special counsel waited too long to challenge documents withheld from the grand jury based on the Clinton campaign’s assertion of attorney-client privilege, Durham’s team should move next week to enforce any subpoenas.

In the Sussmann case, on April 6, 2022, the special counsel filed a Motion to Compel documents withheld from the grand jury to be produced to the court in camera. On May 4, 2022, presiding judge Christopher Cooper ordered Fusion GPS to provide the court 38 documents sought by the special counsel’s office to allow the court to determine whether they were protected by attorney-client privilege. Then, on May 12, 2022, the court ruled that emails between Fusion GPS and the press “as part of an affirmative media relations effort by the Clinton Campaign” were not privileged and must be provided to prosecutors.

The court, however, further ruled that because the special counsel waited “until April 6, 2022, just over a month before trial was set to begin,” to challenge the privilege, “allowing the Special Counsel to use these documents at trial would prejudice Mr. Sussmann’s defense.” Accordingly, while the special counsel’s office obtained access to the documents, they could not use those documents during the prosecution of Sussmann.

To ensure prosecutors both have access to all material documents and the ability to use any relevant documents during the Danchenko trial, the special counsel’s office should move quickly to obtain any material previously withheld by Fusion GPS under the auspices of attorney-client privilege. In total, as the court explained in the Sussmann case, Fusion GPS withheld “approximately 1500 documents” from the grand jury, but the judge only considered privilege for 38 documents prosecutors sought access to in its case against the former Clinton campaign manager.

What’s Inside Those Documents

The details contained in Danchenko’s indictment, coupled with the content of various emails between Fusion GPS and reporters, suggest some of the 1,500 documents withheld will concern Danchenko’s supposed intel, even though Danchenko was one step removed from Fusion GPS, having been brought into the Russia collusion smear project by Steele.

The indictment, for instance, notes that on “July 28, 2016, Danchenko sent a message to an acquaintance” stating, “Thanks to my reporting in the past 36 hours, Steele and Steele’s assistant are flying in tomorrow for a few days so I might be busy.” That same day the FBI’s New York Field Office received two of Steele’s election reports.

July 28, 2016, is also the date the FBI received the “tip” from the Australian diplomat that George Papadopoulos “had received some kind of suggestion from Russia that it could assist . . . with the anonymous release of information during the campaign that would be damaging to [Hillary] Clinton.” That “tip” purportedly formed the basis for opening Crossfire Hurricane.

Massaging the Media

That July 28, 2016 message from Danchenko proves significant in context of the flurry of emails from Fusion GPS’s co-founders, Glenn Simpson and Peter Fritsch, to reporters that were made public during the Sussmann prosecution. During this same timeframe, Simpson and Fritsch were peddling to the media claims that Millian and Carter Page were part of the supposed Trump-Russia collusion. As with Millian, Danchenko had fabricated supposed intel about Page, providing it to Steele. Steele included it in the dossier, which he then handed off to the FBI.

For instance, on July 24, 2016, Simpson emailed the Washington Post’s Tom Hamburger with the subject line “millian,” providing Hamburger two email addresses for Millian. The next day, Mark Hosenball from Reuters emailed Simpson, asking him to “please remember to send me stuff on Sergei the Millian-aire.” Hosenball also asked Simpson for any “stuff on the Carter Page guy, including his most recent Russian excursions.”

On July 26, 2016, an email thread between Fritsch and Jay Solomon from the Wall Street Journal shows Fritsch saying, off the record, that an “easy scoop waiting for confirmation: that dude carter page met with igor sechin when he went to moscow earlier this month.” Fritsch also told Solomon that Page “met with a senior kremlin official called divyekin, who told page they have good kompromat on hillary and offered to help. He also warned page they have good kompromat on the donald.”

Fusion GPS also pushed Millian as a Russian stooge to ABC News’ Matthew Mosk in an email thread from July 28, 2016. Yet another email thread, between Simpson and the Washington Post’s Hamburger dated July 29, 2016, also confirms that Fusion GPS pushed the fiction that Page met with Sechin and Ivanov in Russia to the Post reporter. Hamburger told Simpson that he had checked with one of their Moscow sources, who called the claim of a meeting “bullshit” and “impossible.”

Feeding Fabrications to the FBI

The Danchenko indictment includes a second allegation that proves key when read with Fusion GPS’s emails to the media. According to the indictment, on September 18, 2016, Danchenko sent another message to the same acquaintance, stating that he had “work to do for Steele who’s probably coming to DC on Wednesday.” The indictment further noted that Steele then traveled to Washington D.C. on September 21, 2016.

While in D.C. on September 21, 2016, “at the direction of Fusion GPS, Christopher Steele brief[ed] the N.Y. Times, Washington Post, New Yorker, Yahoo! News, and CNN.” According to a Yahoo! News reporter present at that briefing, “Steele told him at the meeting that he had provided his election reporting to the FBI and that there were ‘people in the [FBI] taking this very seriously.”

The day after Danchenko mentioned the work he had to do for Steele, Fusion GPS’s Jake Berkowitz sent his boss Simpson and Mosk an email further painting Millian as a Russian asset. A thread between The New York Times’ Eric Lichtblau and Fritsch dating from September 24 and September 27, 2016 likewise focused on Millian, with Fusion GPS providing the Times reporter Millian’s IP address and screengrabs indicating it was registered in Moscow.

The timing and content of these emails suggest Danchenko’s lies went from Steele to Fusion GPS and then straight to the media. What the emails don’t disclose, however, are the conversations between Steele and Fusion GPS, internally at Fusion GPS, and between Fusion GPS and Marc Elias of Perkins Coie.

Some of the approximate 1,500 emails Fusion GPS withheld from the special counsel likely include discussions of the “intel” Steele obtained from Danchenko. It is well past time for Durham to fight for those documents.


Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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Reluctant Witness Devastates Defense Claims In Special Counsel Criminal Case

Former FBI General Counsel James Baker felt responsible for dragging his friend Michael Sussmann “into a maelstrom,” yet remained “100 percent confident” that Sussmann had claimed, when providing Baker the Alfa Bank “intel,” that he was not there “on behalf of any particular client.” Baker’s testimony yesterday in United States v. Sussmann proved devasting to the former Hillary Clinton campaign attorney both in substance and in circumstance.

The indictment charged Sussmann with violating Section 1001 of the federal criminal code by telling Baker he was passing on the Alfa Bank information as a concerned citizen, not on behalf of any client, when in fact Sussmann represented both the Clinton campaign and tech executive Rodney Joffe. Earlier this week, during opening arguments, Sussmann’s legal team told the jury that prosecutors would be unable to establish what Sussmann actually said to Baker and would fail to prove the alleged lie “mattered.”

Yesterday, Baker proved Sussmann’s high-powered Latham and Watkins’ attorneys wrong when the former FBI general counsel testified he was “100 percent confident” that Sussmann had denied acting “on behalf of any particular client” during their September 19, 2016 meeting. “My memory on this point, sitting here today, is clear,” Baker told the jury.

Sussmann made the comments “pretty close to the beginning of the meeting,” Baker explained, noting it was “part of his introduction to the meeting.” Sussmann would go on to provide Baker with two thumb drives and several whitepapers, which Baker said Sussmann explained concerned “an apparent surreptitious communications channel between Alfa-Bank, which he described as being connected to the Kremlin in Russia, and some part of the Trump Organization in the U.S.”

Besides attesting to his 100 percent confidence level in what Sussmann had said, Baker explained to the jury his apparent earlier equivocation about Sussmann’s representations. When asked by lead prosecutor Andrew DeFilippis about his congressional testimony in which he appeared not to remember Sussmann’s statements, Baker told the jury he had not prepared for questions about his meeting with Sussmann and had not refreshed his memory at the time.

The transcript of his House testimony confirms that the congressional hearing’s focus concerned the Christopher Steele dossier and not Sussmann or the Alfa Bank hoax. Baker’s full testimony reveals he was a witness caught off-guard by a topic and attempting to recall the events while being peppered with questions.

Baker further testified on Thursday that “it wasn’t until Durham’s investigators began ‘homing in’ on meeting with Sussmann in June 2020 that he thought in detail about what Sussmann said about not having a client.”

A jury is likely to find Baker’s explanation believable given Baker’s belated discovery of a text message Sussmann sent to Baker the night before the September 19, 2016 meeting. “I’m coming on my own – not on behalf of a client or company. [W]ant to help the Bureau,” the text from Sussmann to Baker read.

Baker’s Thursday testimony also helped seal a second substantive point being challenged by Sussmann’s defense: the government’s claim that Sussmann’s alleged lie “mattered.”

As a matter of law, a lie must “matter,” or in legalese be “material,” for it to constitute a Section 1001 offense. To be material, the lie must be “capable of influencing a decision” of the government actor. While Sussmann’s legal team has told the jury that Sussmann’s alleged statement did not matter even if false, in his testimony yesterday, Baker explained several ways in which the lie “influenced a decision” of the FBI.

First, Baker testified that he would not have taken the private meeting with Sussmann if he knew Sussmann was working on behalf of the Clinton team. Next, Baker explained he had “vouched” for Sussmann, telling top FBI counterintelligence agents that Sussmann was a serious lawyer “who could understand the importance and validity of the information,” based on his belief that Sussmann was acting as a concerned citizen. The former FBI general counsel further explained that because Sussmann had brought the information to him supposedly on his own behalf, he treated Sussmann as a sensitive confidential human source and protected his identity from other agents investigating the data.

On cross-examination, Sussmann’s legal team challenged Baker’s testimony and attacked his memory. But the defense is unlikely to leave a mark on Baker’s credibility, and not merely because of Baker’s 100 percent confidence in the substance of his testimony. Rather, it is the circumstances under which Baker testified that render him untouchable.

Baker testified that he considered Sussmann both a friend and a colleague. When asked why he had not previously provided the special counsel with the damning text Sussmann sent him the evening before their September 19, 2016 meeting, Baker told the prosecutor (and the jury):

“I’m not out to get Michael. This is not my investigation. This is your investigation. If you ask me a question, I answer it. You asked me to look for something, I go look for it. To the best of my recollection, nobody had asked me to go look for this material. I had not recalled that he had texted me until I saw this text in March.”

Baker’s answer conveyed to the jury much more than an explanation for why he had only recently provided prosecutors with the Sussmann text: His response told the jury he is a reluctant witness, and that reality is much more damaging to the defense than Baker’s assertion of 100 percent confidence in his memory.

The jury is unlikely to forget that point because, in one of the few unforced errors coming from Sussmann’s legal team, defense attorney Sean Berkowitz made the mistake of highlighting the fact that Baker is a reluctant witness testifying against his friend.

In cross-examining Baker, who had earlier told the jury that testifying before Congress “was terrible” and “sucked at multiple levels,” Berkowitz asked Baker whether testifying against his friend Sussmann was also a “terrible” experience.

“This is more orderly,” Baker replied, reportedly pointing to his chair, “It’s terrible, but orderly.”

Sussmann’s legal team is unlikely to repeat that mistake today when it finishes its cross-examination of Baker, but the jury is also unlikely to forget Baker’s words—and the special counsel is unlikely to let them.


Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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Spygate Conspirators Start Selling Their Hoax To A Washington DC Jury, But The Facts Don’t Fit

The Hillary Clinton campaign did not want its attorney, Michael Sussmann, to share the Alfa Bank data with the FBI, jurors were told yesterday during the defense’s opening arguments in the special counsel’s criminal case against Sussmann. But the information known to date, as well as the modus operandi of the Spygate players throughout the years they peddled the Russia-collusion hoax, render this argument laughable.

On Tuesday, trial in United States v. Sussmann began in earnest following a day of jury selection. At issue is whether the former Clinton campaign attorney lied to former FBI General Counsel James Baker when Sussmann provided him data and whitepapers purporting to show the existence of a secret-communications network between the Russian-based Alfa Bank and Donald Trump. Special Counsel John Durham’s team claims Sussmann lied when he shared the Alfa Bank “intel,” saying he wasn’t acting on behalf of a client, while, in fact, Sussmann represented both tech executive Rodney Joffe and the Clinton campaign.

Prosecutor Brittain Shaw set the stage for the jury, telling the 12 jurors and four alternates during opening argument that “Sussmann’s actions were part of ‘a plan to create an October surprise on the eve of a presidential election’ and to get the FBI to investigate, arguing the plan ‘largely succeeded.’”

Sussmann and Joffe “leaked the Alfa-Bank allegations to the New York Times,” Shaw continued, but “when that wasn’t published immediately, Sussmann brought a sense of urgency to the FBI about the media being on the verge of running a story.” According to prosecutors, “the FBI getting involved would make the story ‘more attractive’ to the press” and “Sussmann’s goal was to ‘inject’ the FBI into a presidential election.”

Not so, Sussmann’s lawyer Michael Bosworth countered, telling the jury in the defense’s opening argument that his client “had a genuine interest in national security” and was concerned about the data at a time when questions about Trump’s connections to Russia were swirling. According to Sussmann’s team, the Clinton campaign planned “to take this new weird thing public,” and they handed it to The New York Times. That’s what the campaign wanted—press coverage that hurt Trump and helped Clinton.

“The meeting with the FBI is the exact opposite of what the Clinton campaign would’ve wanted,” Bosworth told the jury, suggesting “the FBI quashed the news story after learning about it from Sussmann.” “The FBI meeting is something they didn’t authorize, they didn’t direct him to do, and they didn’t want him to do,” Sussmann’s lawyers argued. But once the Times was ready to publish the material, Sussmann called Baker “to help the FBI” “and warn them that a story was coming,” the defense claimed.

The evidence on all fronts suggests otherwise. First, emails exchanged between reporters and Peter Fritsch, a co-founder of the investigative research firm, Fusion GPS, that Perkins and Coie had hired on behalf of the Clinton campaign, indicate the Times was nowhere near “ready to publish the material” when Sussmann handed it off to Baker on September 19, 2016.

For instance, in one thread between Fritsch and the Times’ Eric Lichtblau, bearing the subject line “alfa and trump” and dated October 5, 2016, the duo were discussing Alfa Bank data published on Reddit, apparently by April Lorenzen. At that point, Fritsch is still telling the Times he has “no idea” where the material came from, but that “it’s either someone real who has real info or one of the donald’s 400 pounders,” whatever that meant. Fritsch then adds that the “de vos stuff looks rank to me,” in reference to the supposed communications between the Michigan health system’s computer and Alfa Bank.

Another email thread from October 18, 2016 also indicates the Times was not ready to publish the story. In that thread, Fritsch is pushing Reuter’s Mark Hosenball to run the Alfa Bank story. When Hosenball told him “the problem is that the nature of the data is way above my level of competence,” Fritsch responds, “it’s everyone’s problem” and then suggests he call David Dagon at Georgia Tech.

Then, on October 31, 2016, hours before Slate published the Alfa Bank story, in promoting the about-to-break news to Reuters, Fritsch wrote the “USG,” meaning the “United States government,” is “absolutely investigating.” This email shows Fusion GPS knew the value an FBI investigation added to a story it was pushing for the Clinton campaign.

A second problem with Sussmann’s storyline that the FBI meeting was “the exact opposite of what the Clinton campaign would’ve wanted” because it caused the government to quash the New York Times article flows from the fact Sussmann did not originally tell Baker the name of the outlet supposedly poised to publish the story.

In his congressional testimony, Baker explained that after he handed the Alfa Bank material off to the counterintelligence division, they wanted “more time to evaluate it before the media started publishing stuff.” According to Baker, agents asked him to “go back to Sussmann and find out who in the media is going to publish this because we might want to ask them to delay.”

In his testimony, Baker was fuzzy on the details and did not remember whether Sussmann had mentioned the media having the Alfa Bank material during their initial September 19, 2016, meeting or only later during a follow-up conversation. (If the latter, that will really throw a wrench in Sussmann’s theory of defense.)

What Baker stated unequivocally, however, was that Sussmann had not originally identified The New York Times as the outlet supposedly ready to run the story, and that it was only later when Baker followed up with Sussmann that they learned that fact. The FBI then “went to the New York Times” and “started a series of conversations with them to try to get them to slow down,” he said.

If Sussmann’s goal were truly to provide the FBI with a heads-up of the impending story, as his attorneys argued yesterday, he accomplished that objective on September 19, 2016. To achieve that goal, Sussmann would have no reason to answer Baker’s follow-up question concerning the name of the media outlet ready with the Alfa Bank story. In fact, as a lawyer, he would have a good reason to refuse: It was in the Clinton campaign’s interest for the story to run.

But if Sussmann instead sought to spur the media into action, sending the FBI into the arms of The New York Times proved a perfect plan, as it made the Alfa Bank story more marketable.

Here, we see a third problem with Sussmann’s line of defense: From the Steele dossier to the FISA surveillance of Carter Page, the Clinton campaign repeatedly fed the FBI and U.S. intelligence agencies supposed “intel” on Trump, which it also peddled to the press. Then it used leaks of the government’s investigation into Trump’s supposed connections with Russia to drive more media coverage of the Russia collusion story.

Yet Sussmann’s legal team told the jury the FBI meeting was something the Clinton campaign “didn’t authorize,” “didn’t direct him to do” and “didn’t want him to do.” That line of argument presents prosecutors with the perfect opening to inform the jury of the Clinton campaign’s modus operandi, and it will likely do so with the questioning of Sussmann’s former legal partner Marc Elias, who is scheduled to testify later today.


Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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This Week’s Spygate Trial Is Bad News For Hillary Clinton

Subpoenaed Fusion GPS employee Laura Seago is likely to stay mum during questioning at the criminal trial of Michael Sussmann that starts this week. Her silence will be yet further evidence that the Hillary Clinton campaign financed and seeded the Russia collusion hoax to both the press and U.S. intelligence agencies.

Jury selection is scheduled to begin this morning in a D.C. federal court in the criminal case against former Clinton campaign attorney Michael Sussmann. While Sussmann faces a single charge of making a false statement to former FBI General Counsel James Baker, proof of that federal crime requires prosecutors to show Sussmann lied when he shared Alfa Bank data and whitepapers with Baker, telling the FBI lawyer that he was not acting on behalf of a client.

To prove that lie, Durham’s team, led by long-time prosecutor Andrew DeFilippis, will present evidence to the jury that Sussmann, in fact, was acting on behalf of two clients—the Clinton campaign and tech executive Rodney Joffe. The special counsel has already previewed much of the evidence it intends to present over the course of the expected two-week trial.

Prosecutors will first seek to establish that the Alfa-Bank hoax—a conspiracy theory that claimed Donald Trump had established a secret communications channel with the Russia-based Alfa Bank—originated with Sussmann’s client, Joffe, but was then shared with the Clinton campaign through its Perkins and Coie attorneys. The testimony of Georgia Tech researcher Dave Dagon, whom the special counsel gave immunity to last summer, will be key in this regard.

In the months leading up to the 2016 presidential election, Dagon worked closely with Joffe and the originator of the Alfa-Bank data, April Lorenzen, reviewing the data and a whitepaper supposedly showing the Russia-Trump connection. According to Durham’s indictment, Dagon also collaborated with Joffe and Lorenzen to craft another conspiracy theory related to the Russian-made Yota cell phones. In February 2017, Sussmann provided the CIA data related to the Yota cell phones, claiming that the Russian phones were typically used by top Russian officials and that the data showed the cellphones being in multiple locations near Trump, including in the executive office building of the president.

Dagon’s role, however, extended further, with him serving as the go-to expert to push the Alfa Bank story in the media. Emails reveal that the private investigative firm Fusion GPS, which Perkins and Coie hired on behalf of the Clinton campaign, pushed Dagon on reporters skeptical of the Alfa Bank story. Dagon’s testimony concerning his assistance to Fusion GPS in these efforts connects the Alfa-Bank hoax to the Clinton campaign because it was Perkins and Coie who hired Fusion GPS and not Joffe.

While Dagon holds some insight on Fusion GPS’s role in feeding the Alfa-Bank hoax to the media, prosecutors have also subpoenaed Fusion GPS’s “tech maven” Seago to testify. In response, Seago’s attorney, Holly Pierson, informed the government that Seago would invoke her Fifth Amendment privilege against self-incrimination absent a court order of immunity compelling her to testify at trial. Last month, on a motion by the special counsel, presiding judge Christopher Cooper entered an order immunizing Seago and compelling her to testify.

The court’s order, however, addressed solely Seago’s right not to incriminate herself, and did not address the question of attorney-client privilege. Another ruling last week by the D.C. federal judge addressed Joffe and the Clinton campaign’s claims of attorney-client privilege.

In that order, the court held that internal Fusion GPS emails related to “ordinary media-relations work” undertaken on behalf of the Clinton campaign were not protected by attorney-client privilege. Other emails, though, including eight emails with their attachments exchanged between Sussmann, Joffe, and Fusion GPS’s Seago, were protected by attorney-client privilege according to the court.

While the court’s order last week addressed only the few dozen emails at issue, the court noted it “will apply the principles set forth above to any assertions of privilege during witness testimony at trial.” Consequently, if prosecutors seek to inquire of Seago about communications she had with Joffe about the Alfa-Bank data and whitepapers, Seago is likely to respond that she cannot answer the questions based on attorney-client privilege.

Such a rejoinder, however, during the highly publicized Sussmann trial will force focus on the basis of that claim. And the premise underlying the court’s ruling that communications between Seago, Joffe, and Sussmann were protected by attorney-client privilege was that Joffe shared a “common interest” with the Clinton campaign.

Testimony by Seago that Fusion GPS worked with Joffe to push the Alfa-Bank conspiracy theory would further the special counsel’s goal of establishing that Sussmann represented Joffe and the Clinton campaign when he met with Baker; but her hiding behind attorney-client privilege would as well.

In fact, according to court filings the special counsel issued trial subpoenas to both the Clinton campaign and the Democratic National Committee “requesting the testimony of witnesses regarding the assertion of attorney-client privilege in front of the jury,” illustrating that Durham’s team sees value in the jury hearing from witnesses that the Clinton campaign sees itself as the client related to communications relevant to the Alfa Bank data.

Likewise, if Seago refuses to answer questions regarding conversations she had with Joffe and others regarding the Alfa Bank data, prosecutors can still win from that loss, with jurors learning from the assertion of privilege that the Alfa Bank theory arose from communications with Joffe, on behalf of the Clinton campaign.

The real loser, though, will be Hillary Clinton, who risks the spectacle of a court ruling during public proceedings that Seago’s communications with Joffe were protected by attorney-client privilege given Fusion GPS’s role of assisting the Clinton campaign. And that is but a sliver of the evidence likely to come out during Sussmann’s trial connecting Clinton to Spygate.


Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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Fusion GPS Loses Its Fight Over “Privileged” Documents


Fusion GPS Loses Its Fight Over “Privileged” Documents

And – how Joffe’s “privilege” can be overcome

By Techno Fog via The Reactionary

We’ve documented the ongoing battle to obtain Fusion GPS e-mails and documents in the Michael Sussmann case. At issue in the Sussmann case are 38 e-mails and attachments between and among Fusion GPS, Rodney Joffe, and Perkins Coie.

These 38 e-mails and attachments are among approximately 1,500 documents that Fusion GPS withheld from production to the grand jury based on “privilege.”

What Fusion GPS has to produce.

Today, the court in the Sussmann case made an important ruling and rejected, in large measure, Fusion’s assertion of attorney-client or work-product privilege:

Fusion GPS will have to produce these documents to Special Counsel Durham by May 16, 2022. What do these e-mails and documents contain? The court’s order provides guidance, stating they relate to:

Internal Fusion GPS e-mails discussing the Alfa Bank data and e-mails circulating draft versions of the Alfa Bank white papers that were “ultimately provided to the press and the FBI.”

Here are some examples of what these e-mails might include. These are privilege logs in Fusion GPS’s other litigation relating to the Alfa Bank hoax.

The other emails.

This leaves 16 e-mails and documents remaining. For now, Durham will not get them. These are divided into two categories:

  1. Eight of the e-mails involve internal communications among Fusion GPS employees. The court was “unable to tell from the emails or the surrounding circumstances whether they were prepared for a purpose other than assisting Perkins Coie in providing legal advice to the Clinton Campaign in anticipation of litigaiton.” Coming from the court, that’s a long way of saying that the sworn declarations of Fusion/Clinton lawyers (Levy and Elias) were sufficient to meet the “privilege” burden. This doesn’t mean that Durham can’t overcome this hurdle – just that it hasn’t been overcome yet.
  2. The other eight e-mails and attachments include those among Fusion GPS’s Laura Seago, Sussmann, and Rodney Joffe. The court observed that the e-mails are consistent with Joffe’s assertion of privilege.

With respect to the Joffe e-mails, we note that he is still a subject – perhaps a target – of the Special Counsel’s investigation. Here’s a portion of the transcript from an evidentiary hearing in the Sussmann case that discusses their ongoing investigation into Joffe:

Because the investigation into Joffe is ongoing, it makes sense that the Special Counsel is hesitant to disclose to the court information that could overcome this purported “privilege.” Keep in mind the crime-fraud exception, where communications are not considered privileged where they “are made in furtherance of a crime, fraud, or other misconduct” (citation omitted). In other words, the Special Counsel may still be able to get Joffe’s e-mails – assuming Joffe is charged under 18 USC 1031. He can also get them through the grand jury process, as we saw with Mueller’s investigation of Paul Manafort.1

I’ll also add that the fact that privilege applies to some of these documents strengthens the Special Counsel’s argument that Sussmann was representing a client when he met with then-FBI General Counsel James Baker in September 2016.

As to the e-mails and documents Durham will obtain, he cannot use them during trial. The court considered Durham’s efforts to be too close to the May 16, 2022 trial date to allow these e-mails and documents into trial. I’m not sure that matters. Sussmann is facing a false statement charge, and the court observed these e-mails are not “particularly revelatory.”

Finally, while “Court takes no position on the other approximately 1500 documents that Fusion GPS withheld as privileged,” we can assume based on this ruling that the majority of those documents would not be privileged. Durham will likely get most of them.

For those interested: After I wrote this post, New York Times reporter Eric Lichtblau filed this request for a protective order. Lichtblau will be called as a witness by Sussmann’s attorneys to discuss “communications between Mr. Sussmann and Mr. Lichtblau” – meetings at which Rodney Joffe was present (that confidentiality privilege was waived).

The Special Counsel has refused to limit Lichtblau’s testimony to that narrow topic:

Durham is taking this position because Lichtblau was in contact with Peter Fritsch (and Glenn Simpson) of Fusion GPS leading up to the 2016 election. Fritsch was feeding Lichtblau Fusion “opposition research” (what we might accurately call bullshit), and Lichtblau was at least somewhat receptive, though not salivating like Franklin Foer. These are relevant to the broader “media relations” strategy that Sussmann and Fusion GPS pursued on behalf of the Hillary Clinton campaign.

Here are the e-mails:

**********

(TLB) published this article by Techno Fog via The Reactionary with our appreciation for the coverage

Header featured image (edited) credit: Durham/FOX NEWS screen shot

Emphasis added by (TLB) editors

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Court Agrees To Let Spygate Cabal Hide Some Of Their Emails From The Grand Jury

Tech executive Rodney Joffe may assert attorney-client privilege for communications he had with employees of Fusion GPS because those communications furthered Joffe and the Clinton campaign’s common interest, a federal judge presiding over the criminal case against Michael Sussmann ruled yesterday. Prosecutors will now be greatly limited in the material they may elicit from one of the two witnesses granted immunity in exchange for their testimony against Sussmann.

Sussmann, whose trial in a D.C. federal court on a false statement charge is set to begin on Monday, scored a victory Thursday when presiding judge Christopher Cooper rejected Special Counsel John Durham’s attempts to present the jury copies of emails previously withheld by Joffe, the Clinton campaign, and the Democratic National Committee as privileged. The ruling came in response to Durham’s motion to compel Fusion GPS to provide the court, for in camera review, 38 emails the investigative research firm withheld from the grand jury based on the Clinton campaign’s claim of attorney-client privilege and work-product privilege. The latter protects notes, memoranda, and other communications capturing the mental impressions of an attorney, or those helping an attorney prepare for litigation.

Of the 38 emails, the court held that the Clinton campaign “had no valid basis to withhold 22 of” them. Those emails, the court concluded, did not concern legal advice but involved Fusion GPS employees’ interactions “with the press as part of an affirmative media relations effort by the Clinton Campaign.” “That effort,” the court noted, “included pitching certain stories, providing information on background, and answering reporters’ questions.”

Among the emails related to the “ordinary media-relations work” undertaken on behalf of the Clinton campaign were “internal Fusion GPS discussions about the underlying data and emails circulating draft versions of one of the background white papers that was ultimately provided to the press and the FBI.” Because those emails were not written in anticipation of litigation, but instead related “solely to disseminating the information they and others had gathered,” the court held the emails were not protected by either attorney-client privilege or work-product privilege.

Although the court held those 22 emails and the related attachments were not protected by attorney-client privilege, Judge Cooper nonetheless concluded that the special counsel’s office waited too long to file its motion to compel. “As a matter of principle,” the court explained, it would not “put Mr. Sussmann in the position of having to evaluate the documents, and any implications they might have on his trial strategy, at this late date.” Accordingly, the court held, “the government will not be permitted to introduce the emails and attachments that the Court has ruled are not subject to privilege.”

In reaching this conclusion, Judge Cooper noted that the emails did not appear “particularly revelatory,” suggesting there will be little harm to the special counsel’s case against Sussmann from the court’s ruling that the emails will be inadmissible at trial. And beyond the Sussmann case, the court’s ruling inures to the special counsel’s benefit because it establishes a precedent for Durham’s team to seek access to other communications withheld based on the Clinton campaign’s claims of attorney-client privilege. In total, there were nearly 1,500 other documents Fusion GPS withheld as privileged that the special counsel’s office may move to compel the production of as part of future grand jury proceedings or trials.

While that aspect of yesterday’s ruling proves positive for the broader special counsel’s investigation, the court’s conclusion that 16 of the 38 other emails remain privileged creates larger problems for Durham’s team. Eight of those emails also involved internal communications among Fusion GPS employees, the court noted, but because the court was “unable to tell from the emails or the surrounding circumstances whether they were prepared for a purpose other than assisting Perkins Coie in providing legal advice to the Clinton Campaign in anticipation of litigation,” the court deferred to claims by Fusion GPS’s attorney Joshua Levy and Clinton campaign attorney Marc Elias that the emails related to legal advice.

Given that Elias maintained all the emails were protected by attorney-client privilege, the court’s unquestioningly accepting his word seems strange. And if a court applies the same standard to assess whether the remaining approximately 1,500 emails are privileged, the special counsel’s office may face challenges obtaining much that matters.

But it was the court’s ruling concerning the final eight emails that has the most immediate effect on the special counsel’s office, namely its prosecution of Sussmann for allegedly lying to former FBI General Counsel James Baker. The last eight emails, with attachments, consisted of two email chains initiated by Joffe to both Sussman and Fusion GPS employee Laura Seago. In opposing disclosure of the email threads, Joffe asserted that “the purpose of the [] communications at issue was to obtain [Fusion’s] assistance in cybersecurity and technical matters to allow Mr. Sussmann to provide [Mr. Joffe] competent, informed legal advice.”

The court held that Joffe’s communications to Sussmann were protected by attorney-client privilege even though the emails included a non-lawyer, Seago, because attorney-client privilege extends to communications by third parties that an attorney hires to facilitate “the effective consultation between the client and the lawyer.” In reaching this conclusion, the court reasoned that Seago’s “involvement related to the technical analysis of the data, which would naturally inform Mr. Sussmann’s advice to his client about the data.”

The court, however, ignored the fact that Fusion GPS, for whom Seago worked, was hired by Perkins Coie to assist the Clinton campaign and the DNC, not Joffe. And Joffe did not pay for Fusion GPS’s services, nor did Perkins Coie charge Joffe. Further, as the special counsel noted in its briefing of the issue, “Perkins Coie also had no agreement, contract, or other arrangement reflecting that Fusion GPS was providing services specifically to aid Perkins Coie’s legal representation of [Joffe].”

Nonetheless, the court held the email threads between Joffe, Sussmann, and Seago were protected by attorney-client privilege based on case law holding communications that further “a common interest” are protected. What the court didn’t say, though, but what must be true under privilege law and “the common interest rule” is that the court believed the communications furthered a common goal of Joffe and the Clinton campaign.

“The joint defense privilege,” or “the common interest rule,” is “an extension of the attorney-client privilege that protects from forced disclosure communications between two or more parties and/or their respective counsel if they are participating in a joint defense agreement.” The common interest rule “protects communications between the parties where they ‘are part of an on-going and joint effort to set up a common defense strategy’ in connection with actual or prospective litigation.” That rule applies to communications subject to the attorney-client privilege, including communications with technical experts retained to assist in the legal defense.

In this case, as prosecutors stressed in their briefing, there was no “formal or informal legal relationship” between Joffe and the DNC and the Clinton campaign. Case law holds, however, that the “parties need not agree in writing to pursue a common interest; the doctrine permits an exchange of confidential information when the parties have clearly and specifically agreed in some manner to pool information for a common goal.” But “without a written agreement, the party’s burden of proving that a statement was made in the common interest will undoubtedly be more difficult.”

Yet, even without a written agreement, the court found a “common interest” existed to protect Joffe’s communications with Fusion GPS’s Seago, who was hired by Elias to provide legal support to the Clinton campaign. And what was that “common interest?”

According to Joffe, he hired “Sussmann to assist him in a specific legal matter – namely, to advise him how to share sensitive information concerning an extremely litigious Presidential candidate with either investigative journalists or Government agencies without revealing his identity and exposing himself to potential liability, frivolous litigation, and/or threats of violence and/or harassment.”

So, in concluding a “common interest” existed between Joffe and the Clinton campaign, the court implicitly also found “the parties have clearly and specifically agreed in some manner to pool information for a common goal,” here the goal of feeding the press and the government the Alfa Bank hoax.

The end results then are that the special counsel’s office cannot compel Fusion GPS to turn over the eight emails between Joffe, Sussmann, and Seago. But yesterday’s holding has broader consequences for the trial because, in closing its 11-page opinion, the court noted that it “will apply the principles set forth above to any assertions of privilege during witness testimony at trial.”

That means if prosecutors seek to elicit testimony from Seago, or any other employee of Fusion GPS for that matter, on various communications with Joffe, the court could rule the questions out of bounds based on attorney-client privilege. Given that the special counsel was forced to provide Seago with immunity to obtain her testimony at Sussmann’s trial, the court’s ruling yesterday represents a setback to Durham’s case.

Durham does have a few options, including asking the appellate court to resolve the issue of privilege before the trial starts. Prosecutors may instead decide to push forward and play any claim of privilege by Seago on the stand to their advantage, using it as further evidence that Sussmann was representing Joffe and the Clinton campaign when he presented Baker with the Alfa Bank material. They may also point to the “common interest” underlying the privilege analysis as proof that yes, there was a joint venture between the Clinton campaign, Joffe, and others, sufficient to overcome the defendant’s hearsay objections to other evidence.

Whether yesterday’s ruling represents an overall loss to Sussmann or the special counsel is yet to be seen, but what is clear is that it is another damning indictment of Hillary Clinton.


Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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Spygate Judge Tries To Protect Hillary Clinton In Latest Pre-Trial Rulings

The Obama-appointed judge presiding over the criminal case against former Hillary Clinton campaign attorney Michael Sussmann let politics trump the law when he declared in a weekend opinion he would not rule on whether the Clinton campaign and Democratic National Committee conspired with others to peddle the Russia collusion hoax.

Special Counsel John Durham charged Sussmann last September in a one-count indictment with making a false statement to then-FBI General Counsel James Baker when Sussmann provided Baker data and “whitepapers” purporting to show a secret communication network between Donald Trump and the Russian-based Alfa Bank. According to the indictment, Sussmann told Baker he was sharing the information on his own, when, in fact, Sussmann represented both tech executive Rodney Joffe and the Clinton campaign.

With trial set to begin in one week, the last month has seen a flurry of pretrial motions—called “motions in limine”—seeking pretrial rulings on the admissibility of evidence. The court previously ruled on several of the issues the parties presented, holding in many cases that a final decision must await trial. Then, late Saturday, presiding Judge Christopher Cooper issued a further opinion resolving many of the still-outstanding evidentiary challenges.

Overall, Cooper’s Saturday night opinion, like his previous rulings in this case, represented a studious and a balanced approach to the legal issues, with Sussmann prevailing at times, but the special counsel succeeding on other issues. For instance, in a victory for Durham, the court ruled that prosecutors could present evidence concerning how the Alfa Bank “data came into being and who was involved in its collection and analysis, as well as how Mr. Sussmann came to possess the data, what he did with it, and why.”

But the court also ruled in Sussmann’s favor, first reiterating its previous holding that unless Sussmann claims at trial that the Alfa Bank data is accurate, the government may not present evidence challenging its validity. Cooper further held that the government could not present evidence that Joffe inappropriately accessed proprietary or sensitive government information to gather the data or write the whitepapers, absent some evidence “showing that Mr. Sussmann had concerns that the data was obtained inappropriately.”

Judge Cooper further demonstrated his baseline when he confronted two more significant issues presented by the opposing parties. Sussmann scored a victory when the court held the government could not admit evidence concerning notes taken by former FBI Assistant Director Bill Priestap and former Deputy General Counsel Trisha Anderson unless they testified about their previous conversations with Baker. Even then, Judge Cooper indicated that at most the jury would likely only be read the contents of the notes, as opposed to receiving the notes themselves as exhibits to view.

Such a limitation will surely inure to Sussmann’s benefit because seeing in writing Priestap’s notation, “Michael Sussman[n]—Atty: Perkins Coie—said not doing this for any client” and Anderson’s note, “Sussman[n] Mtg w/ Baker,” “No specific client but group of cyber academics talked w/ him abt research,” would likely strike a more solid punch than merely hearing their testimony.

Sussmann, however, failed in his attempt to force the government to provide Joffe immunity so Joffe would be willing to testify in Sussmann’s defense. Sussmann had argued that the government had no reasonable basis to claim that Joffe remained a target of a criminal investigation given that the five-year statute of limitations for false statements had run, and that therefore the special counsel’s threat of prosecution served solely to induce Joffe to plead the fifth and refuse to testify on behalf of Sussmann.

Not only did the court reject this argument, in doing so the court stated—simply and without commentary—that “the Special Counsel’s continued representation that Mr. Joffe is a subject of its investigation, rather than simply a witness, does not amount to prosecutorial misconduct on this record.” Given that Sussmann framed the government’s claim that Joffe remained a target as unbelievable, the court’s refusal to question the special counsel’s representation illustrates Judge Cooper’s baseline apolitical equilibrium.

The Obama appointee faltered, however, on the Clinton campaign and handling the special counsel’s argument that various emails, even if they were hearsay, were admissible under the “co-conspirator statement” exception to the hearsay rule. At issue were emails between Joffe and the Georgia Tech researchers Manos Antonakakis, Dave Dagon, and April Lorenzen, the “originator” of the Alfa Bank data whom Joffe had allegedly tasked to mine internet data to find a Trump-Russia connection.

After concluding some, but not all, of the emails were hearsay, the court addressed the government’s argument that the emails were admissible under federal rules of evidence as “a co-conspirator statement.”

First, Some Lawsplaining

Under federal rules of evidence, a statement made by a “co-conspirator” of a defendant “during and in furtherance of the conspiracy” is admissible even though it is hearsay. Hearsay is an out-of-court statement, oral or in writing, that is presented to the jury to prove the truth of the matter asserted in the statement.

The “conspiracy” need not be criminal, however, for a statement made by another member of the “conspiracy” to be admissible, with courts typically calling non-criminal conspiracies “joint ventures.” But before a court may admit a statement under this “co-conspirator” exception, it must find “by a preponderance of the evidence” that such a conspiracy or joint venture existed. (A “preponderance of the evidence” means it is more likely that a conspiracy existed than that it didn’t, i.e., that the court is 50.1 percent sure there was such a joint venture.)

The Joint Venture

In the Sussmann case, the special counsel submitted that Joffe, Sussmann, and the Clinton campaign (or its agents) were “acting in concert toward a common goal”—i.e., “assembling and disseminating the [Alfa Bank] allegations and other derogatory information about Trump to the media and the U.S. government.” The Georgia Tech researchers and Lorenzen were also part of this joint venture, according to prosecutors.

Judge Cooper, however, refused to consider whether such a joint venture existed, stating instead that, for a variety of reasons, his court was exercising “its discretion not to engage in the kind of extensive evidentiary analysis that would be required to find that such a joint venture existed, and who may have joined it.”

A court is well within its discretion to refuse to undertake a “lengthy journey” to assess whether a “joint venture” existed and thus whether the various emails are admissible under the “co-conspirator statement” exception to the hearsay rule. But in the same breath that he declared himself unwilling to make this excursion, Judge Cooper contradicted his own reasoning.

“The government has indicated that it intends to call one or both of the Georgia Tech researchers at trial,” Judge Cooper wrote. “Either of them could testify to their role in assembling the data, how they came to be tasked with the project, and whether they believed the research was done for the Clinton Campaign or some other purpose.”

Thus, contrary to the court’s rationale, there is no “lengthy journey” to traverse: The court need only wait until trial to allow the government to elicit from witnesses testimony confirming the “joint venture”—something Cooper ruled they “could” testify about. In fact, in its brief in arguing the emails were admissible as “co-conspirator” statements, the special counsel’s office noted that a court could “preliminarily admit hearsay statements of co-conspirators, subject to connection through proof of conspiracy.”

But Judge Cooper didn’t even need to admit the emails were “subject to connection through proof of conspiracy.” All the Obama appointee needed to do was follow the same approach he did when confronted with other evidentiary issues that were unclear or where the admissibility depended on the proof at trial: wait for trial to issue a ruling.

Further, ruling on the admissibility of the emails based on the “co-conspirator” exception to the hearsay rule during trial would require little effort, as Cooper’s Saturday opinion itself recognized, by noting that it “has already ruled on the admissibility of many of the emails on other grounds.”

That Judge Cooper deviated from the approach he took with other evidentiary issues, namely withholding final ruling until trial, only on the question of whether the Clinton campaign had conspired to peddle the Alfa Bank hoax, suggests politics motivated that approach.

Two Other Supporting Facts

Two other details from Judge Cooper’s opinion bolster that conclusion. First, not only did Cooper declare he would not rule on the co-conspirator exception for purposes of the specific emails the special counsel’s office sought to introduce, he prejudged the importance of other emails “the Court has not yet seen.”

“Whatever few emails remain,” the court noted, “are likely to be either irrelevant or redundant of other admissible evidence,” thus negating, in the court’s view, the need to address the co-conspirator exception to the hearsay rule.

Tellingly, after announcing he would not consider the co-conspirator exception in deciding whether these still-unseen emails were admissible, Judge Cooper added that during trial he would consider whether those same emails might be admissible for a non-hearsay reason. Again, why not do the same on the co-conspirator exception?

The answer seems clear: A court declaring that Hillary Clinton’s then-lawyer had engaged in a conspiracy to “gather and spread damaging information about a Presidential candidate shortly before the scheduled election” would be a devastating blow to the Democrat.

Trying to Protect Democrats and Clinton

Judge Cooper’s efforts to counter the impact of the case on Clinton, and more broadly the Democratic Party, extend beyond merely declaring the “co-conspirator” exception off limits. Rather, in his weekend opinion, after announcing his plan to punt, Judge Cooper proceeded to question the special counsel’s theory, calling the “contours” of the joint “venture and its participants are not entirely obvious.” He then noted he was “particularly skeptical that the researchers” shared in this common goal.

Beyond being an unnecessary annotation to a case in which he expressly declined to address the co-conspirator exception, Judge Cooper’s analysis constructed a strawman to destroy. Durham’s team never claimed that the researchers joined in a conspiracy with Clinton directly, and never claimed they intended to peddle the Alfa Bank hoax to the FBI.

Rather, the joint venture concerned the shared goal of gathering and spreading damaging information about Trump and involved agents of the Clinton campaign, such as Fusion GPS. And the evidence of that joint venture was overwhelming, easily satisfying the preponderance of the evidence test. But even if Judge Cooper was not so sure about that conclusion, waiting for the trial testimony was the proper procedure, as his many earlier rulings demonstrate.

In refusing to consider the co-conspirator exception to the hearsay rule, Judge Cooper may see himself as keeping politics out of the case. After all, as the federal judge noted in the opinion, the special counsel did not charge Sussmann with a conspiracy. But a conspiracy need not be charged for the co-conspirator exception to apply, and this case is political to its core—just as the FBI’s investigation of Trump and the corrupt press’ reporting on the Russia collusion hoax was.

And Hillary Clinton was behind it all, whether the court opts to ignore the conspiracy or not.


Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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Clinton Lawyer Michael Sussmann’s Latest Defense Strategy: Litigate Trump-Russia Collusion Lies

With trial set to begin in just over a week in a Washington D.C. federal court in the criminal case against Michael Sussmann, the former Clinton campaign attorney has revealed his defense strategy: put Donald Trump on trial for colluding with Russia.

Given the heavily slanted anti-Trump jury pool living in the district, it is no surprise that Sussmann’s defense team would seek to play on the Orange-Man-Bad sentiments likely living loudly in the eventual jurors. But a court filing from late yesterday reveals that Sussmann’s lawyers hope to make Trump and his supposed Russia affiliations a focus of the trial.

On Thursday, Sussmann and Special Counsel John Durham’s legal teams filed their respective objections to each other’s proposed trial exhibits. The Special Counsel’s office objected to three categories of exhibits Sussmann appears poised to present to the jury, including: (1) emails related to Sussmann’s work on cyber issues for the Democratic National Committee and the Clinton campaign; (2) notes taken by an FBI agent concerning his investigation of the Alfa Bank allegations and notes taken during a March 6, 2017 briefing by the FBI for the Department of Justice on various Trump-related investigations; and (3) a series of more than twenty news articles about Trump and Russia, which prosecutors listed in a table for the court.

The Special Counsel acknowledged there may be some relevance to the first two categories of trial exhibits, but prosecutors argued that Sussmann must nonetheless establish the documents do not constitute inadmissible hearsay. The third category of supposed evidence in the form of news articles, however, has “no evidentiary or factual basis,” according to Durham’s team.

Those articles, the Special Counsel noted in its court filing, “appear to relate to (i) the DNC hack, and/or (ii) Donald Trump’s purported illicit ties to Russia.”

“News articles regarding such matters are not themselves probative of the charged conduct in any way,” Durham explained. And “permitting the defense to admit the above-listed series of news articles would amount to the ultimate ‘mini-trial’ – of the very sort that will distract and confuse the jury without offering probative evidence,” the Special Counsel stressed in objecting to the admission of the twenty-some articles that date from May 14, 2016, to August 15, 2016.

The Special Counsel did not specify what that “mini-trial” would consist of, but a quick skim of the article titles makes clear Sussmann’s goal is to put Trump on trial for colluding with Russia.

From the first article, “Election 2016: Trump Goes His Own Way with Putin—Warm words and push to improve ties with Moscow aren’t shared by Obama, GOP rivals“, and onward, the media coverage Sussmann seeks to present to the jury consists of a tour de force of the press pushing the Russia collusion hoax. And as with the Alfa Bank hoax that Sussmann and Fusion GPS peddled to the press, much of the coverage Sussmann seeks to rely upon seems to find its roots in efforts by the Clinton campaign to seed the Trump-Russia story with friendly media.

For instance, The Time’s article Sussmann seeks to admit as evidence, entitled, “Donald Trump’s Man, Many, Many, Many Ties to Russia,” quotes Clinton campaign manager Robby Mook. Mook, of course, launched the entire Russia-collusion hoax live on CNN on the convention floor to distract from news that the DNC had worked to sabotage Bernie Sanders’ campaign.

Time Magazine’s coverage also relied on reporting by the Slate’s Franklin Foer. Emails since made public reveal Foer worked hand-in-glove with Fusion GPS to frame Trump as a Russian operative, with Foer eventually “breaking” the Alfa Bank story shortly before the 2016 presidential election.

The Washington Post’s similarly titled article, “Here’s what we know about Donald Trump and his ties to Russia,” pushed another pre-election conspiracy theory, implying that the Trump-connected Felix Sater was Russian mafia. To the contrary, since unsealed documents show Sater served as a vital asset to our intelligence community.

Sussmann nonetheless seeks to admit these and other articles at his trial, and his legal team will surely argue they are admissible because they will establish his concern over the Alfa Bank data and whitepapers was genuine. But, as Durham argues, the articles should nonetheless be excluded because of the “unfair prejudice” that will result.

“Unfair prejudice,” as the Special Counsel notes, results if there is “an undue tendency to suggest [making a] decision on an improper basis, commonly, though not necessarily, an emotional one.” Said otherwise, “evidence is unfairly prejudicial ‘if it appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case.”

Or, divorced from its legalese, prosecutors are complaining that Sussmann seeks to present to the jury “evidence” that Trump colluded with Russia so jurors will let Sussmann off scot-free. That the Clinton campaign pushed much of that other Russia-collusion coverage matters not to Sussmann because he knows it will be equally irrelevant to an anti-Trump jury.

But it should matter to the judge because Trump is not on trial and the visceral hatred of Trump and Putin — especially now with Russia’s war in Ukraine — make the articles framing Trump as a Russian stooge unfairly prejudicial to the prosecution.

So, watch for the court to exclude those exhibits, while allowing Sussmann to nonetheless argue he approached the FBI out of a genuine concern for our national security. And don’t be surprised if the D.C. jury buys it.


Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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