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CASE PREVIEW ByHoward M. Wasserman on Mar 1, 2022 at 10:24 am

Egbert v. Boule is a lawsuit seeking damages for alleged constitutional violations by a Border Patrol agent. (DCStockPhotography via Shutterstock)

The Supreme Court on Wednesday will consider the continued vitality and expansion of lawsuits for damages against federal officers under Bivens v. Six Unknown Named Agents. Egbert v. Boule considers whether to extend the Bivens cause of action to First Amendment retaliation claims and Fourth Amendment claims arising from immigration enforcement near the U.S.-Canada border.

Robert Boule is a U.S. citizen who owns and runs the Smugglers Inn, a bed-and-breakfast abutting the Canadian border in Blaine, Washington. The town is a reputed locus of cross-border criminal activity, and the Smugglers Inn purportedly attracts drug traffickers and people seeking to illegally cross the border.

Blaine, Washington (Arkyan via Wikipedia)

In 2014, Erik Egbert, a Customs and Border Patrol agent, approached Boule in town and asked about guests at his inn. Boule told Egbert of a guest who had flown from Turkey to New York the previous day and was flying to Washington and driving to the inn. Later that day, Egbert followed the vehicle transporting the guest onto the inns driveway and tried to speak with him. Boule sought to intervene and asked Egbert to leave his property. Egbert twice shoved Boule out of his way, pushing him to the ground. After confirming that the guest was lawfully in the country, Egbert and two other agents (who had been called to the scene when Boule confronted Egbert) left. Boule complained to Egberts superiors, after which Egbert allegedly contacted the Internal Revenue Service and state agencies, resulting in a tax audit and investigations of Boules activities.

Boule filed a Bivens lawsuit in federal district court, alleging that Egbert retaliated against him for complaining about Egberts behavior in violation of the First Amendment and used excessive force in violation of the Fourth Amendment. The district court granted summary judgment in favor of Egbert. The U.S. Court of Appeals for the 9th Circuit reversed, and the Supreme Court granted review.

Subsequent to the events giving rise to this case, Boule pleaded guilty to aiding and abetting violations of Canadian immigration law over human smuggling and was sentenced to time served.

The judicially created Bivens cause of action functions as the counterpart to 42 U.S.C. 1983, allowing suits for damages against federal officers for past constitutional violations. The Supreme Court has allowed three Bivens claims to proceed a Fourth Amendment claim against law enforcement, a Fifth Amendment due-process employment-discrimination claim, and an Eighth Amendment claim involving medical care in prison. But the court has described Bivens actions as disfavored judicial activity, rejecting recent claims in Ziglar v. Abbassi against high-level executive officials enacting post-9/11 national-security policy and in Hernandez v. Mesa against a Border Patrol agent over a cross-border shooting of a Mexican national.

Recent cases establish a two-step inquiry. First, the court asks whether the case involves an extension of Bivens into a new context that is different in a meaningful way from previous Bivens cases decided by this Court, even if that extension is modest. If the case extends Bivens into a new context, the court considers special factors that counsel hesitation about granting the extension. Central to this analysis is the presumption that Congress, not the courts, should decide whether a cause of action should be available against federal officers or on a set of facts.

Egbert begins by urging the court to categorically reject future extensions of Bivens. While the court has not closed the door to extensions, he argues that judicially created causes of action are relics of a discredited view of federal courts authority, reflected in the Supreme Courts refusal to recognize a new Bivens claim in 10 cases over 40 years. Egbert argues that courts should hesitate before granting a Bivens extension because every extension threatens the separation of powers by usurping congressional power to create private causes of action, to evaluate the far-reaching policy involved in allowing people to sue for money damages, and to make policy judgments about how best to hold federal officers accountable for constitutional misconduct. He argues that extending Bivens in this or any new context breathe[s] new life into doctrines this Court has extinguished.

If Bivens extensions remain permissible, Egbert argues that both claims in this case entail extensions into new contexts, and special factors counsel hesitation, compelling the court to reject both.

As for the First Amendment retaliation claim, the context is new because the court has never recognized a First Amendment Bivens claim, particularly not in the context of retaliation by Border Patrol agents along an international border. A host of special factors counsel hesitation. Egbert argues that retaliation claims (in which lawful action becomes unlawful if done for the wrong reason) are nebulous and amorphous, producing difficult and complex litigation. Claims against Border Patrol agents working near the border raise national-security and immigration-enforcement concerns, different from claims against other federal agents. And a plaintiff in Boules position has alternative remedies, including claims under the Privacy Act, proceedings through the IRS and federal tax code, state tort law, and federal administrative investigations. These remedies reflect congressional consideration of the best way to deter constitutional violations by federal officers, and none involves a claim for damages based on retaliation for speech.

Fourth Amendment claims are available, as Bivens itself involved a Fourth Amendment violation for unlawful search and excessive force. But Egbert argues that the context of this case involves a new class of defendants (Border Patrol agents), a new location (an area along the border), and a new enforcement scheme (the application of immigration laws to foreign nationals). Similar special factors counsel hesitation, particularly the national-security concerns arising from claims challenging enforcement of immigration laws. And Congress provided for alternative remedies, including a claim against the United States under the Federal Tort Claims Act (which Boule began but did not pursue) and complaints to the Department of Homeland Security triggering employment sanctions for the misconduct.

The United States appears as amicus and has been given argument time. Unlike Egbert, the government does not argue that courts cannot extend Bivens. But it insists that extensions are unwarranted in this case.

Like Egbert, the government emphasizes that the Court has never recognized a First Amendment Bivens claim and that this Fourth Amendment claim is meaningfully different in several respects from the claim recognized in Bivens. Egbert is a Border Patrol agent and was investigating a foreign national who might have been involved in cross-border smuggling or immigration violations. It occurred steps away from an international border in an area known for illegal smuggling of persons, drugs, and money. The government insists these facts implicate an element of national security absent in Bivens.

The government identifies a similar list of special factors counseling hesitation and compelling the court to leave to Congress the choice to create a cause of action. It highlights past failure to extend Bivens to First Amendment claims, then emphasizes the special concerns for extending to retaliation claims against law enforcement. And it identifies a series of available alternative remedies for Egberts alleged misconduct: complaints through the IRS for false reporting of tax issues, a claim under the Privacy Act for disclosure of private information, state tort claims, administrative claims through the Customs and Border Patrol, and departmental disciplinary proceedings.

Boule filed his brief under seal with the courts permission, leaving a redacted brief publicly available.

Boule emphasizes that Bivens is not dead or long-buried, extinguished, or demolished, contrary to Egberts arguments. Egberts cert petition asked the court to reconsider Bivens, but the court declined to review that issue. And Boule argues that Abbasi did not reject Bivens as a relic or retreat from all applications of Bivens. Rather, Abbasi left room for cases that are the same or trivially different from the courts prior cases.

Boule argues that is this case. The Fourth Amendment claim involves an unlawful search and seizure by a federal officer on private property, materially indistinguishable from Bivens. And this lawsuit challenges conduct by a ground-level official on U.S. soil against a U.S. citizen at his dwelling. Boule argues that this case does not involve national-security policy or the actions of an officer stationed on the border trying to prevent unlawful entry into the United States. Boule also argues that he has no alternative remedies, as the Federal Tort Claims Act does not replace Bivens and administrative procedures do not provide substantive remedies.

Without holding so, Boule argues, several cases have assumed that First Amendment claims, including First Amendment retaliation claims, are cognizable under Bivens. And the court has established that the First Amendment prohibits government officials from retaliating against persons for speaking out about government misconduct. As with the Fourth Amendment claim, this claim does not implicate separation of powers; it involves ground-level, non-policymaking conduct by an individual officer. Moreover, Egberts alleged retaliation has no nexus to the conduct of agents at the border. Rather, Boules claim involves conduct away from the border, following completion of the initial encounter, when Egbert contacted numerous agencies to investigate Boule. Boule argues that this is not the typical complicated retaliation claim in which a search, arrest, or prosecution may have been retaliatory or may have been independently justified, requiring a court to parse the officers state of mind and the line between lawful and unlawful conduct. Instead, his is a straightforward retaliation claim, in which the causal connection between Egberts animus and Boules injury is obvious and not bound in complex inquiries into causation or probable cause.

See the original post here:
Border agents, the First Amendment, and the continued vitality of Bivens - SCOTUSblog

The United States Court of Federal Claims has ruled that landowners along a planned railroad conversion project in Southern Indiana should receive compensation from the federal government.

The City of New Albany and the Indiana Trails Fund are in negotiations with railroad company CSX to turn out-of-service tracks into a recreational trail as part of the Rails to Trails initiative. The project would include more than 60 miles of railroad between New Albany and Bedford.

About 50 people who own property along the line filed lawsuits claiming the federal government owes them money, citing statutes regarding railroad conversions. A federal judge ruled in their favor in one of those cases on Feb. 18.

[The court] held the government is liable for taking these landowners property and has to move forward with paying them their just compensation, said attorney Lindsay Brinton, who represents the landowners. We now are in the stages where were hiring a local appraiser, and were getting out and valuing the amount of the governments taking. So its a big step in this case.

CSX discontinued use of the line in 2010 and entered discussions to transfer the tracks to trail developers in early 2018. The landowners filed suit shortly after the federal government allowed those negotiations to proceed.

CSXs effort to sell or lease the property is part of a process called railbanking, which was implemented by the federal government in 1983 to help preserve rail lines across the country. It allows railroad companies to transfer responsibility of lines to third parties for recreational purposes on an interim basis, leaving open the possibility that they could be reactivated as railroads.

Brinton said when the line started in the 19th century, the railroad company was granted an easement that allowed them to use the property, not own it. She said state law dictates it be returned to surrounding landowners when railroad use is discontinued.

Federal railroad conversion laws supersede that state statute, though, and the Fifth Amendment requires the federal government to provide just compensation to landowners if their property is seized under certain circumstances. Though the deal to sell or lease the railroad tracks for the project isnt finalized, the federal governments go-ahead means landowners are entitled to compensation.

What we have is a situation where its called inverse condemnation, where the taking occurs first, Brinton said. And then if the landowner wants to be compensated for that taking, the landowner has to file an affirmative claim for compensation. So they actually have to pursue litigation in order to be paid for the taking of their property.

Brinton said the Rails to Trails project is legal and following established precedent, but landowners are entitled to money. She said hundreds of other landowners in Southern Indiana could also have a claim to compensation.

I would say landowners should err on the side of it being worth looking into.

Brinton said landowners in Indiana own everything up to the middle of the railroad tracks unless the deed states otherwise, under a rule called the centerline presumption.

Neither New Albany nor the Indiana Trails Fund are directly involved in the litigation.

See original here:
Southern Indiana landowners entitled to government money for Rails to Trails project - 89.3 WFPL News Louisville

In a DC hearing on February 9 regarding Alfa Banks attempt to obtain documents from Michael Sussmann before his trial, DC Superior Judge Shana Frost Matini observed that the Alfa Bank allegations and the John Durham indictment seemed like they could be written by the same people.

[R]ight now, given the if the closeness of Alphas allegations, I mean, quite frankly, its reading Alphas submissions and what the and that compared to the indictment, theres its almost like they were written by the same people in some way. [Alpha misspelling original]

Judge Matini, a Trump appointee, scolded Alfa which over this past weekend was included in sanctions against Russian banks in retaliation for the invasion for claiming that their lawsuit and Durhams indictment of Sussmann were not closely related after having raised the indictment in the first place.

As to the claims that the criminal and civil proceedings are not closely related, this is a surprising representation for Alpha to make, given that Alpha was the one to bring the criminal charges to the Courts attention by filing what was styled as a notice of supplemental authority in support of its Motion to Compel.

Of course, there is no Supplemental Authority here. A criminal indictment is not an opinion of the Court. Its just a charge that the prosecuting authority is bringing against an individual with facts that are alleged to support the charge.

In dual lawsuits in FL and PA, Alfa Bank purports to be trying to figure out who allegedly faked DNS records to make it look like Alfa was in contact with Trump back in 2016 so it can sue those people. Rather than finding anyone to sue, however, it has instead spent its time subpoenaing experts to learn as much as it can about how the US tracks DNS records to prevent cyberattacks by among other hostile countries Russia.

Matini ruled that Alfas effort to get more information from Sussmann will have to wait until June, after his trial. (Its unclear whether the sanctioned bank will still have legal means to pay Skadden lawyers to pursue this lawsuit at that point.)

But since then, the timelines of the Alfa Bank and Durham investigations have closely paralleled.

Of particular interest, on the morning of February 11, Rodney Joffe referred to as Tech Executive-1 in the Durham filings sat for an almost 5-hour deposition with Alfa Banks lawyers. He revealed that Durham had first approached him for an interview at least a year earlier. He revealed he had been asked to testify before the grand jury, but he declined to interview, presumably meaning he told Durham hed invoke the Fifth (just as Don Jr and probably his daddy are understood to have done with Mueller).

Joffes refusal to voluntarily feed this witch hunt continued in his Alfa deposition. Citing the ongoing Durham investigation, he invoked the Fifth Amendment a slew of times (though not as many times as your average Trump man in a financial fraud deposition or even Alex Jones in an interview about an insurrection). Those questions to which he invoked his Fifth Amendment rights and those he answered mapped out an interesting territory, marking who he does know and those Alfa thought he did but that he does not.

For example, he said he had never heard of Alfa Bank before investigating the anomaly related to it. He said he had never met Jean Camp or several of the other researchers that frothers are certain he conspired with. Joffe twice said he had never met Christopher Steele and also said he had no idea that Sussmann met with Steele about the server allegations. He denied knowing what the contract between Georgia Tech and DARPA looked like.

Alfa made a number of mistakes confusing a domain name with a business. Claiming he authored a paper that David Dagon had. Asking him about several emails he hadnt been sent.

There were several claims Alfa made that Joffes lawyer, Steven Tyrrell, established a record were unproven assumptions on Alfas part, such as that Joffe got one of the white papers described in the indictment. Importantly, that includes a question about the EOP server.

Q: I was just going to ask Mr. Joffe whether or not he knows who the executive branch office of the U.S. government is?

A: I have to invoke my Fifth Amendment rights.

Mr. Tyrrell: And Margaret, if I may, just I apologize. Just for the record, I want to be clear that that in invoking his rights and my allowing my client to invoke his rights, that should not be interpreted as an admission that the I mean, youll argue whatever it is, if you do, that the allegations, which are just allegations in the indictment, are accurate.

In addition to those curious objections, there were several things alleged in the indictment that Joffe outright denied. In several questions, Joffe challenged the meaning of an email Durham has used to suggest he anticipated, and wanted, a top cybersecurity job within a hypothetical Hillary Administration. After objecting to the form of the way the Alfa Banks Skadden lawyer tried to corner Joffe into answering the question, Tyrrell answered,

You know, again, our position on this is Mr. Joffe is happy to answer the question that was posed about whether he was ever offered the top cybersecurity job by the Democrats when it looked like theyd win. I think hes answered that question.

Hes not going to answer questions about communications that he may or may not have had with other people about the topic. And as to those, he would invoke his rights under the Fifth Amendment.

Joffe answered no to three questions about whether the Clinton campaign paid him for his work on the server allegations, a false claim that Kash Patel spread. Joffe also distinguished his concern about Donald Trump from a political desire to see him lose.

Ive never been interested in politics. Ive never been involved in politics. I havent voted for many, many years. I havent donated to any parties or any or given any kind of benefit to any parties, but I certainly over the last few years have had an interest in the politics of the country that I live in.

That explanation premised two invocations of his Fifth Amendment in response to questions about Trump specifically.

In other words, Joffes Alfa Bank deposition on February 11 undermined several of the premises of the Durham investigation, while it identified several areas where his lawyer suggested Alfas assumptions were wrong (in the hearing on Laura Seagos deposition, there was a central Alfa Bank assumption I know to be badly wrong).

Joffes deposition ended at 2:07PM ET on February 11.

Nine hours later, at 11:32PM, Durham submitted the belated conflicts motion which would have been filed in September if Durham really had concerns about any conflict and floated a number of claims about Joffe, claims that went beyond those in the indictment. Joffe is mentioned twenty times, including the following:

The defendants billing records reflect that the defendant repeatedly billed the Clinton Campaign for his work on the Russian Bank-1 allegations. In compiling and disseminating these allegations, the defendant and Tech Executive-1 also had met and communicated with another law partner at Law Firm-1 who was then serving as General Counsel to the Clinton Campaign (Campaign Lawyer-1).

The Indictment also alleges that, beginning in approximately July 2016, Tech Executive-1 had worked with the defendant, a U.S. investigative firm retained by Law Firm-1 on behalf of the Clinton Campaign, numerous cyber researchers, and employees at multiple Internet companies to assemble the purported data and white papers. In connection with these efforts, Tech Executive-1 exploited his access to non-public and/or proprietary Internet data. Tech Executive-1 also enlisted the assistance of researchers at a U.S.-based university who were receiving and analyzing large amounts of Internet data in connection with a pending federal government cybersecurity research contract. Tech Executive-1 tasked these researchers to mine Internet data to establish an inference and narrative tying then-candidate Trump to Russia. In doing so, Tech Executive-1 indicated that he was seeking to please certain VIPs, referring to individuals at Law Firm-1 and the Clinton Campaign.

The Governments evidence at trial will also establish that among the Internet data Tech Executive-1 and his associates exploited was domain name system (DNS) Internet traffic pertaining to (i) a particular healthcare provider, (ii) Trump Tower, (iii) Donald Trumps Central Park West apartment building, and (iv) the Executive Office of the President of the United States (EOP). (Tech Executive-1s employer, Internet Company-1, had come to access and maintain dedicated servers for the EOP as part of a sensitive arrangement whereby it provided DNS resolution services to the EOP. Tech Executive-1 and his associates exploited this arrangement by mining the EOPs DNS traffic and other data for the purpose of gathering derogatory information about Donald Trump.)

The Indictment further details that on February 9, 2017, the defendant provided an updated set of allegations including the Russian Bank-1 data and additional allegations relating to Trump to a second agency of the U.S. government (Agency-2). The Governments evidence at trial will establish that these additional allegations relied, in part, on the purported DNS traffic that Tech Executive-1 and others had assembled pertaining to Trump Tower, Donald Trumps New York City apartment building, the EOP, and the aforementioned healthcare provider. In his meeting with Agency-2, the defendant provided data which he claimed reflected purportedly suspicious DNS lookups by these entities of internet protocol (IP) addresses affiliated with a Russian mobile phone provider (Russian Phone Provider-1). The defendant further claimed that these lookups demonstrated that Trump and/or his associates were using supposedly rare, Russian-made wireless phones in the vicinity of the White House and other locations. The Special Counsels Office has identified no support for these allegations. Indeed, more complete DNS data that the Special Counsels Office obtained from a company that assisted Tech Executive-1 in assembling these allegations reflects that such DNS lookups were far from rare in the United States. For example, the more complete data that Tech Executive-1 and his associates gathered but did not provide to Agency-2 reflected that between approximately 2014 and 2017, there were a total of more than 3 million lookups of Russian Phone-Provider-1 IP addresses that originated with U.S.-based IP addresses. Fewer than 1,000 of these lookups originated with IP addresses affiliated with Trump Tower. In addition, the more complete data assembled by Tech Executive-1 and his associates reflected that DNS lookups involving the EOP and Russian Phone Provider-1 began at least as early 2014 (i.e., during the Obama administration and years before Trump took office) another fact which the allegations omitted.

As I noted, less than a day after Durham filed that motion, the former President suggested that Joffe had been spying and should be killed. In response to the furor, Joffes spox later issued a statement clarifying what went on precisely the information he had tried to plead the Fifth over.

In a statement, a spokesperson for Mr. Joffe said that contrary to the allegations in this recent filing, he was apolitical, did not work for any political party, and had lawful access under a contract to work with others to analyze DNS data including from the White House for the purpose of hunting for security breaches or threats.

After Russians hacked networks for the White House and Democrats in 2015 and 2016, it went on, the cybersecurity researchers were deeply concerned to find data suggesting Russian-made YotaPhones were in proximity to the Trump campaign and the White House, so prepared a report of their findings, which was subsequently shared with the C.I.A.

And some of the other researchers had to provide more details to push back on the frenzy (including that the data from EOP preceded Trumps inauguration). Few outlets, though, have presented the basic innumeracy in Durhams filing about the rarity of YotaPhones as anything but a contested issue.

And after Durham incited claims that Joffe should be killed, one week later Alfa Bank then affirmed the tie between Joffe and Tech Executive 1 by posting his deposition in their motion to get another four months to conduct their fishing expedition. That has had the effect of further inflaming the frothy right, and providing Durham sworn testimony from Joffe that he was otherwise not entitled to (including several warnings about how his case against Sussmann may be vulnerable).

In the wake of the release of the Florida filing, Joffes lawyers intervened in the Sussmann case and then filed a separate sealed motion to strike the (misleading) references to Joffe in the filing.

A Trump appointed judge in DC believes these efforts look like theyre being written by the same people. Whether Durhams sources and a sanctioned Russian Banks sources are colluding, these parallel developments had the effect of depriving Joffe of his ability to fully invoke the Fifth Amendment. And with the help of a sanctioned Russian bank, it gave Durham a substantial benefit in a criminal investigation.

January 25: Durham asks to extend discovery deadline

January 28: Durham admits that Durham was informed about the James Baker phone he claimed to forget knowing about

February 9: Michael Sussmann succeeds in staying Alfa Banks effort to get documents from him

February 10: Fusion GPS Laura Seago attempts to quash a subpoena

February 11, 9:30AM: Rodney Joffe deposition

February 11, 11:32PM: Durham files a motion purporting to be a conflicts motion that misrepresents the evidence

February 14: Sussmann asks to strike unsupported allegations in conflicts motion

February 14: Peter Fritsch deposition

February 17: Sussmann moves to dismiss the case, arguing his alleged lie would not be material

February 17: Durham claims that the close associates of the investigation that lied about what the conflicts motion said have nothing to do with the Durham team

February 18: Alfa Bank requests another extension to keep looking for John Does in FL

February 24: Rodney Joffes lawyers file notices of appearance in the Sussmann docket

February 25: Judge Christopher Cooper schedules a hearing on the conflicts motion for March 7

February 28: Joffe files a sealed motion to expunge the references to Tech Executive-1

March 1: Judge Cooper sets a Friday deadline for the government to respond to Joffes motion

March 7: Hearing scheduled to address conflicts memo

Here is the original post:
John Durham and Newly-Sanctioned Alfa Bank's Filings: "Almost like they were written by the same people" - emptywheel - Emptywheel

Since Friday, several developments have exposed more of the behind-the-scenes details of the special counsel investigation into Spygate, including the public release of the deposition of Tech Executive-1, Rodney Joffe. Joffes deposition, coupled with other details previously known, reveals several significant facts while highlighting the many questions that remain unanswered.

Heres what we learned and what investigative trails require further probing.

Earlier this month, the Russian-connected Alfa Bank filed a motion in a Florida state court seeking an extension of time to serve the numerous John Doe defendants it had sued there in June 2020. Alfa Bank had sued John Doe, et al. as stand-ins for the defendants it claimed were responsible for executing a highly sophisticated cyberattacking scheme to fabricate apparent communications between [Alfa Bank] and the Trump Organization in the months leading up to the 2016 presidential election.

After filing suit, Alfa Bank began discovery in an attempt to learn the identity of the individuals responsible for what the large, privately owned Russian bank alleged was the creation of a fake computer trail connecting it to the Trump Organization. Among others Alfa Bank sought information from was Joffe, the man identified as Tech Executive-1 in Special Counsel John Durhams indictment against former Hillary Clinton campaign attorney Michael Sussmann.

Joffes attempts to quash Alfa Banks subpoena failed. On February 11, 2022, the tech executive alleged by Durham to have exploited sensitive data from an executive branch office of the federal government to mine for derogatory information on Trump sat for his deposition. On Friday, an internet sleuth discovered the public filing of Joffes deposition, which revealed that Joffe had finally been deposed by Alfa Bank.

In addition to revealing that Joffes deposition had taken place, the transcript from the deposition established that Durham had asked to interview Joffe more than a year earlier, but Joffe refused to speak with Durhams team. After Joffe refused to submit to a voluntary interview, the special counsels office subpoenaed him to testify before a grand jury.

Joffe told Alfa Bank lawyers that he refused to answer questions before the grand jury, exercising his Fifth Amendment rights. The former Neustar tech executive likewise asserted his Fifth Amendment rights in response to a subpoena for documents served by the special counsels office.

Friday also saw Joffes attorneys, Steven Tyrrell and Eileen Citron, file notices of appearances for Joffe as a proposed intervenor in the special counsels criminal case against Sussmann. Joffe could seek to intervene in the case to challenge a subpoena, to seek a protective ordermaybe because of purported attorney-client communications Joffe had with Sussmann or to prevent Durham from discussing his alleged role in public filingsor to otherwise protect a legal right or interest.

We should know more shortly, when Joffes attorney files the related motion to intervene. That motion is likely to come within the next week or so, given that on Friday, the court in United States v. Sussmann scheduled a hearing for March 7, 2022, to address potential conflicts of interests between Sussmann and his current attorneys, and Joffe is likely interested in ensuring Durhams team does not further implicate him in the matter.

The transcript of Joffes deposition testimony discovered on Friday consisted mainly of the former tech executive refusing to answer questions because of the special counsels pending investigation, with Joffe responding to Alfa Banks inquiries by pleading the Fifth. However, several times Joffe responded to questions about specific individuals by saying he had not heard of the person or organization.

One such exchange proved intriguing and seemingly contradictory to an email obtained pursuant to a Right-to-Know request served on Georgia Tech, the university where two of the researchers who allegedly mined data for Joffe worked.

Just a few questions more, Alfa Banks attorney began, before asking, Mr. Joffe, are you a member of the so-called Union of Concerned Nerds as described by L. Jean Camp? Basically, shes used it as a description to describe a group of computer researchers who search for malware and other malicious content and actors on the internet, the attorney for the Russian bank continued.

Joffe responded that he cant remember having heard that term, before adding: And I dont belong to any organization. However, when asked whether he was a member of a group of individuals who sought to investigate potential foreign interference in the 2016 U.S. Presidential election or compiled supposed evidence of the Alfa Bank server connecting to the Trump campaign, Joffe pled the Fifth.

In posing these questions, Alfa Bank sought to connect Joffe to the reports of the supposed secret communication channel between it and the Trump administration and specifically to Slates reporting from October 31, 2016, headlined: Was a Trump Server Communicating With Russia?

Author Franklin Foer opened the article by highlighting a small, tightly knit community of computer scientists . . . some at cybersecurity firms, some in academia, some with close ties to three-letter federal agencies, who claimed to have discovered the Alfa Bank-Trump server connections. Foer then quoted Indiana University computer scientist L. Jean Camps wry formulation of the group: Were the Union of Concerned Nerds.

Apparently, Joffe was not in on Camps joke, even if he was in on the research, as Durhams indictment of Sussmann suggests.

But what about Joffes second claim that I dont belong to any organization? As I reported last week, a random email included in a trove of documents provided by Georgia Tech in response to a Right-to-Know Request showed Joffe forwarding an email sent to cw-general@ops-trust.net to university researcher Manos Antonakakis. That Joffe had received the ops-trust.net email and then forwarded it to Antonakakis proves important because Ops-Trust matches many of the details included in the Slate article (and later two New Yorker articles) discussing the researchers behind the Alfa Bank claims.

For instance, Ops-Trust is aself-describedhighly vetted community of security professionals, which includes, among other experts, DNS administrators, DNS registrars, and law enforcement officials. Membership in Ops-Trust is extremely limited, with new candidates accepted only if nominated and vouched for by their peers.

Unfortunately, Alfa Banks attorney did not quiz Joffe on Ops-Trust, but his denial of belonging to any organization raises several questions. What was his connection to Ops-Trust? Did Joffe use that connection to obtain non-public information to mine for data to destroy Trump? Is he no longer connected to Ops-Trust, and is that why he claimed not to be a member of any organization?

Requests last week to Joffes attorney and other individuals connected to Ops-Trust seeking information concerning Joffes continued involvement with Ops-Trust went unanswered. A request to Camp on whether she was a member of Ops-Trust in 2016 and whether she knew Joffe or the Georgia Tech researchers through that organization also went unanswered.

In the special counsels criminal case against Sussmann, Durhams team revealed that Sussmann had provided the evidence of the Alfa Bank-Trump covert communication channel to the FBI on September 19, 2016 and shared an updated version of the Alfa Bank allegations with the CIA on February 9, 2017. According to the special counsels office, Sussmann also provided the CIA data that purported to show traffic at Trump-related locations connecting to the internet protocol or IP addresses of a supposedly rare Russian mobile phone provider.

The questioning of Joffe by Alfa Banks attorney now suggests Sussmann may have also provided that same data to the Senate Armed Services Committee.

It has been known for some time that after Americans elected Trump, Democrats regrouped and continued to push the Russia collusion hoax, including the Alfa Bank angle. The New Yorker, in a 2018 article rehashing the Alfa Bank claims and referring to Joffe with the pseudonym Max, wrote that after Trumps inauguration two Democrat senators had reviewed the data assembled by Maxs group.

One of the Democratic senators approached a former Senate staffer named Daniel Jones and asked him to give the data a closer look, The New Yorker article continued. Jones then spent a year researching the Alfa Bank allegations and writing a report for the Senate.

According to The New Yorkers coverage, then, the senators had the data and provided it to Jones. Jones confirmed that sequence when a former Sen. Dianne Feinstein staffer and founder of the left-wing The Democracy Integrity Project sued Alfa Bank seeking to keep confidential his deposition testimony and documents provided to the Russian bank.

In his complaint, Jones stated in court filings that in early-to-mid 2017, the U.S. Senate Armed Services Committee asked him to research the alleged connections between Alfa Bank and the Trump Organization. Specifically, the Senate committee requested that Mr. Jones evaluate information it had received about DNS look-ups between Alfa Bank servers and Trump Organization servers.

Significantly, Jones stated that the Senate Committee informed him that the source of the DNS records had a history of providing accurate information, a lengthy history of reliably assisting the U.S. law enforcement and intelligence communities and was an individual or entity with sensitive contracts with the U.S. government. Jones added that he met with a representative for the source of the DNS records at the committees request.

While Jones does not identify that source or the sources representative with whom he met, in Joffes deposition, Alfa Bank lawyers stated that Jones had testified he had liaised with Mr. Joffe on various issues related to the server allegations. The sensitive contracts language from Jones filing also seems eerily like Durhams charge that Joffe had exploited internet data, including some accessed under sensitive government contracts.

Alfa Banks questioning of Joffe also seems to suggest a similar theory: Were you aware that Mr. Sussmann provided documents including white papers and data files to Congress? Alfa Banks counsel asked, clarifying that she meant not just the actual senators or representatives but also their staff. And did you direct Mr. Sussmann to provide such documents to Congress? the Russian bank attorney continued.

While Joffe refused to answer the questions, again pleading the fifth, Joffe admitted in his deposition that he knew Kirk McConnell. McConnell worked as a staffer for Sen. Jack Reed and in that role McConnell served as a contact for Jones related to the Alfa Bank research.

If Sussmann had provided the Alfa Bank data to the two Democrat senators on behalf of Joffe, as appears possible from these details, that would represent the fourth time Sussmann had served as an intermediary for Joffe with federal officials: In addition to the FBI and CIA, we know from Durhams filings that Sussmann also provided the DOJs inspector general information purporting to show that Joffe had observed that a specific OIG employees computer was seen publicly in Internet traffic and was connecting to a Virtual Private Network in a foreign country.

While at this point there is no evidence that Joffes tip to the DOJs inspector general connects to the other efforts undertaken by Joffe and his lawyer to push a Trump-Russia conspiracy theory within the Deep State, questions remain that are only heightened by the possibility that the Joffe-Sussmann team also fed senators on the Armed Services Committee their intel.

How exactly did Joffe see this internet connection? Did he exploit any government or private data? Was he specifically watching computer traffic at the DOJ? Where else was he monitoring internet connections? And why?

Of course, the more global question remains as well: When will the corrupt media begin reporting on the biggest political scandal of the last century?

Margot Cleveland is a senior contributor to The Federalist. 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 Prizethe law schools 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.

Original post:
4 New Things We Just Learned About The Special Counsel Investigation - The Federalist

1. Eric Trump Invoked Fifth Amendment About 500 Times, N.Y. AG Says  Bloomberg
2. Eric Trump spent six hours pleading the Fifth Amendment more than 500 times  Salon
3. Eric Trump invoked the Fifth Amendment 500 times, NY AG says  syracuse.com
4. Eric Trump, Weisselberg Invoked 5th Amendment Rights More Than 500 Times  Business Insider
5. Ivanka's apartment, Eric pled the fifth 500 times: Inside Letitia James' Trump report  The Independent
6. View Full Coverage on Google News

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Eric Trump Invoked Fifth Amendment About 500 Times, N.Y. AG Says - Bloomberg