Late on Friday, special counsel John Durham filed a shocking document with the court in which he indicted no one for anything. It adds no charges or suspects, and concerns only the technical possibility of a conflict of interest for a law firm which, Durham admits in the opening section, could be addressed with a simple voluntary statement.
Naturally, the right has gone wild over this breakthrough proof of an extensive conspiracy.
Following this procedural request for a motion to “inquire into potential conflicts of interest,” Donald Trump made the only possible response, calling for Hillary Clinton and her whole campaign team to face the death penalty. “In a stronger period of time in our country,” wrote Trump in a statement, “this crime would have been punishable by death.” But apparently, this is a weak time, so no one is likely to hang for the crime of a professional conflict of interest—a possible conflict of interest—that would require a change in attorney. Which is all that Durham is asking for in filing for an inquiry.
The whole court filing has to do with the sole existing charge generated by the expansive, multi-year, multi-million dollar investigation of Michael Sussman, who was indicted in 2021 by a grand jury on a single charge of lying to the FBI. That indictment came because Sussman brought the FBI’s attention to data files that suggested a connection between a server in Trump Tower and a Russian bank and claimed he was not doing this for any client, when in fact his firm had been hired by the Clinton campaign, as well as others.
What does Durham’s new filing add to that case? Exactly nothing.
On the surface, Durham is complaining that Sussman’s attorneys, from the firm Latham and Watkins, have a potential conflict of interest because of a next of shared clients between that firm and Sussman’s firm. That’s it. Durham is asking for a “voluntary waiver” explaining the scope of any connection. Story over.
Except that Durham included in the filing a “Statement of Facts” including a couple of things that did not appear in Sussman’s indictment. Things that don’t appear to be facts at all.
Following the filing, Fox News pundits from Laura Ingraham to Sean Hannity seem to have discovered that Sussman is accused of goading the FBI into looking into potential connections between Trump and Russia. This is being treated as new information that somehow reveals the entire Trump—Russia connection was a setup from the beginning.
There is only one thing wrong with this: Everything.
First, there’s very little new in this highly technical procedural request. The charge against Sussman was fully described six months ago when the original indictment was made. At the time, the Department of Justice even put out a handy announcement explaining that:
“Sussman... met with the FBI General Counsel at FBI Headquarters in Washington, D.C. Sussmann had requested the meeting to provide the General Counsel with certain data files and “white papers” that allegedly demonstrated a covert communications channel between the Trump Organization and a Russia-based bank. Sussmann, who had previously represented the Democratic National Committee in connection with a cyber hack, falsely stated to the General Counsel that he was not bringing these allegations to the FBI on behalf of any client.”
That’s it. That’s the entire crime in question, and all the details about it have been available for months. It should also be noted that the data that was passed over by Sussman was not connected to any charges leveled against members of Trump’s organization or campaign, and was unconnected to the over 100 meetings between Trump’s team and Russian operatives described in the report compiled by the Republican-led Senate Intelligence Committee.
The new filing from Durham doesn’t suggest that anyone else is going to be indicted. It doesn’t suggest that there will be any additional charges against Sussman. It provides only vague additions to the information already included in the earlier indictment. But there is one implication buried in the new document that has generated all that heat on the right and led to Trump’s call to string ‘em all up.
That information involves a second meeting, one that took place between Sussman and the FBI in February 2017. Durham has lodged no charges against Sussman related to that meeting. Not only is it brought up for no apparent reason in this document concerning Sussman’s legal representation, but there’s also an extra implication about that meeting that would change the whole nature of the case.
To understand what it is, the easiest route is to look at the reply filed by Sussman’s attorney. In brief, Sussman’s legal team says that Durham’s “factual background” includes several items that aren’t facts at all.
“Approximately half of this Factual Background provocatively—and misleadingly —describes for the first time Domain Name System (‘DNS’) traffic potentially associated with former President Donald Trump, including data at the Executive Office of the President (‘EOP’), that was allegedly presented to [the CIA] in February 2017. These allegations were not included in the Indictment; these allegations post-date the single false statement that was charged in the Indictment; and these allegations were not necessary to identify any of the potential conflicts of interest with which the Motion is putatively concerned. Why then include them? The question answers itself.”
The answer, says the legal team, is that Durham wants to imply that Sussman was handing over data after Trump took office, and targeting systems belonging to the government. Which, says Sussman’s team, Durham knows is not true.
“... the Special Counsel is well aware that the data provided to [the CIA] pertained only to the period of time before Mr. Trump took office, when Barack Obama was President. Further—and contrary to the Special Counsel’s alleged theory that Mr. Sussmann was acting in concert with the Clinton Campaign—the Motion conveniently overlooks the fact that Mr. Sussmann’s meeting with [the CIA] happened well after the 2016 presidential election, at a time when the Clinton Campaign had effectively ceased to exist.”
Sussman met with the CIA shortly after Trump had already taken office, but brought in data related to the campaign period. That seems like a pretty decent case in support of Sussman’s claim that he was acting only to bring this information to the government’s attention as a good citizen, and not as an agent of a campaign that no longer existed.
This is probably why none of this information was in the indictment. It’s not clear if any of this was ever run past the grand jury, or whether Durham just decided to fling this into the case without ever bothering with that step.
Durham has clearly included in his “factual background” claims not in evidence as part of the indictment, including implications that Sussman went to the CIA with information on official servers from after Trump took office. That claim has been further expanded by right-wing operatives to describe all of this as part of a conspiracy to connect Trump and Russia that began during the campaign and continued after Trump took office; one that involved the Clinton campaign hacking into government servers and planting evidence.
However, missing from this scenario is:
- Any evidence that the Clinton campaign was involved with Sussman bringing information to the government at any time.
- Any evidence that anyone ever illegally accessed any server, government or otherwise.
- Any evidence that the data provided included anything other than information collected before Trump took office.
- Any evidence that Sussman did more than collect actual data, as provided to him, with nothing added, exaggerated, or falsified in any way.
As Marcy Wheeler at emptywheel has pointed out, this set of additional “facts” was spawned out of a conversation that occurred in 2017. One in which Kash Patel—former Devin Nunes' assistant and eventual chief of staff to the acting secretary of defense—questioned Sussman:
Patel: What was your contact [with the CIA] about?
Sussman: So the contact [with the CIA] was about reporting to them information that was reported to me about possible contacts, covert or at least nonpublic, between Russian entities and various entities in the Untied States associated with the — or potentially associated with the Trump Organization.
Patel: And when did that contact [with the CIA] occur, month and year?
Sussman: February 2017.
As Wheeler rightly points out, this shows Patel has known about this information for over four years. He knew who Sussman talked to. He knew the topic of the conversation. He knew the date. He knew all this when he was absolutely in a position to act on this information as part of the House investigation. He did nothing.
And that’s all that’s in Durham’s document. That’s the “new” information that has the right ready to drag the gallows back onto the Capitol lawn.
Piecing together the “facts” in Durham’s latest filing results in an extraordinary claim associated with that February 2017 meeting. It indirectly claims, or at least heavily implies, that tech specialist Rodney Joffe accessed DNS servers—including those associated with the Executive Office of the President—for the purpose of gathering derogatory information about Donald Trump. But if that’s the case, why isn’t Joffe facing any charges?
Maybe Durham is saving that until, say, October. Because the whole purpose of the document filed last Friday seems to have been nothing more than dribbling one scant drop of water into a right-wing conspiracy theory that has long gone dust dry.
Reprinted with permission from Daily Kos